________________________________________________________________________________________________

Remedial Law
Reviewer

Jannycer M. Auza
10-17-83
Genesis M. Auza
04-02-91

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 1

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FOREWORD

First and foremost, there is NO claim of ORIGINALITY in creating this work, except for the
fact of organizing, compiling and editing various sources. This is basically in CODAL form
with annotations, primarily, from Ateneo and San Beda Remedial Law Reviewers, the
Books of Herrera, the works of Atty. Angel Ucat, Lawphil.net, Chan Robles Virtual Law
Library, some selected Supreme Court decisions and classroom discussions of professors.
Some cited cases are personally researched and some are merely copied from different
sources. Provisions not anymore explained are either self-explanatory or are not critical
areas for the Bar Examination. This is created/organized for the purpose of taking the BAR.
This is intended to be used as a PERSONAL Review material in Remedial Law and other
related laws falling under the coverage of the Bar Examination.

DISCLAIMER

This work is PERSONALLY prepared with a very limited time. The text may contain some
clerical and grammatical errors. Too little time was available for the editing of this work.
Nevertheless, this is created with the sincere belief that this is personally helpful to the
author for purposes of the BAR as well as to any person who may, in any way, show
interest. This, however, is NOT intended for sale. It may be copied by friends and person/s
who might be interested in this work. The author is in NO WAY liable for any erroneous
information contained in this work. Questions, suggestions and/or clarifications are,
however, WELCOME.

JANNYCER AUZA
Poblacion, San Miguel, Bohol
CP # 09091289995

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 2

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cases where the issues have already been

joined. (C) Yes, since procedural rules have

REMEDIAL
retroactive effect. (D) Yes, since procedural
rules generally apply prospectively to
pending cases.

LAW Remedial Law; Concept (2006)

What is the concept of remedial law? (2%)
SUGGESTED ANSWER:
The concept of Remedial Law lies at the very core of
procedural due process, which means a law which hears
INTRODUCTION before it condemns, which proceeds upon inquiry and
renders judgment only after trial, and contemplates an
opportunity to be heard before judgment is rendered
SUBSTANTIVE REMEDIAL LAW (Albert v. University Publishing, G.R. No. L-19118,
January 30, 1965).
LAW Remedial Law is that branch of law which prescribes
It is that part of law It refers to the law that the method of enforcing the rights or obtaining
that creates, defines or provides the means or redress for their invasion (Bustos v. Lucero, G.R. No.
regulates rights methods whereby L-2068, October 20, 1948; First Lepanto Ceramics, Inc.
concerning life, liberty causes of action may v.CA, G.R. No. 110571, March 10, 1994).
or property, or the be effectuated, wrongs
powers of agencies or redressed and reliefs JUDICIAL POWER
instrumentalities for obtained It includes the duty of the courts of justice to
the administration of settle actual controversies involving rights which
public affairs. ( ADJECTIVE LAW) are legally demandable and enforceable and to
Makes vested rights NO vested rights determine whether or not there has been a
Prospective in Retroactive grave abuse of discretion amounting to lack or
application excess of jurisdiction on the part of any branch
Cannot be enacted by Supreme Court is or instrumentality of the Government (Sec. 1 Art.
the Supreme Court expressly empowered VIII 1987 Const.)
to promulgate
procedural rules Remedial Law in Phil. System of Gov’t (2006)
subject to certain How are remedial laws implemented in our system
limitations. of
government? (2%)
Remedial Law vs. Substantive Law (2006) SUGGESTED ANSWER:
Distinguish between substantive law and remedial law. Remedial laws are implemented in our system of
(2%) government through the pillars of the judicial
SUGGESTED ANSWER: system,
SUBSTANTIVE LAW is that part of the law which including the prosecutory service, our courts of
creates, defines and regulates rights concerning life, justice
liberty, or property, or the powers of agencies or and quasi-judicial agencies.
instrumentalities for the administration of public. This is
distinguished from REMEDIAL LAW which prescribes POWER OF JUDICIAL REVIEW
the method of enforcing rights or obtaining redress for Power of the Supreme Court (and such other
their invasion (Bustos v. Lucero, G.R. No. L-2068, October lower courts) to declare a law, treaty,
20, 1948). international or executive agreement,
presidential decree, proclamation, order,
Bar Exam Question 2011 instruction, ordinance, or regulation
(76) X’s action for sum of money against Y unconstitutional.
amounting to P80,000.00 accrued before the
effectivity of the rule providing for shortened JURISDICTION is the power of and authority of
procedure in adjudicating claims that do not a court to try, hear, and decide a case and to
exceed P100,000.00. X filed his action after the carry its judgment into effect.
rule took effect. Will the new rule apply to his
case? (A) No since what applies is the rule in NOTE: The statement that jurisdiction is
force at the time the cause of action accrued. conferred by law is not entirely correct.
(B) No, since new procedural rules cover only

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 3

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Jurisdiction over the subject matter is what is
conferred by law. Jurisdiction over the parties,
issues, and res is governed by procedural laws.
REQUISITES FOR VALID EXECISE OF
JURISDICTION
1. Must have jurisdiction over the parties.
 Plaintiff; acquired the moment he files his
complaint, petition, or other initiatory
pleading.
NOTE: Non-payment of the required filing fees at
the time of the filing of thee complaint or other
initiatory pleading fails to vest jurisdiction over the
case. However, when the plaintiff paid the filing fees
assessed by the clerk of court, and the amount
turns out to be deficient, the trial court acquires
jurisdiction, subject to the payment of the deficiency
within the prescriptive period (Fedman vs. Agcaoli,
GR No. 165025).
 Defendant; acquired either by his voluntary
appearance in court and his submission to
its authority, or by service of summons or
other coercive process upon him.
Instances of voluntary appearance:
a. Asking extension of time to
file answer;
b. Filing an answer;
c. Filing motion for
reconsideration of the
judgment by default;
d. Filing a petition to set aside
the judgment of default;
e. When defendant jointly
submits a compromise
agreement for approval of
the trial court.
2. Must have jurisdiction over the subject matter
of the controversy.
 Conferred by law and not by agreement of
the parties.
 Determined by the allegations made in the
complaint (NOT from the answer, as a rule)
 Governed by law at the time the action is
COMMENCED.
GR: Lack of jurisdiction over the subject matter
is non-waivable by the parties and may be
raised at any stage of the proceeding, the court
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
being authorized to dismiss the case motu
proprio.
Exception: Estoppel by Laches- (Tijam vs.
Sibonghanoy 23 SCRA 29).
NOTE: The question of jurisdiction, in the
case of Tijam, was raised in the first time on
appeal.
Important: Estoppel by laches, was applied in
the case pending before the RTC for 15 years,
where the defendant filed an ANSWER and
asserted AFFIRMATIVE RELIEFS
(counterclaim).[Soliven (soliven fast corp.)?
vs. CA (2004)].
Jurisdiction; Over the Plaintiff, Subject
Matter (2009) No.III. Amorsolo, a Filipino
citizen permanently residing in New York
City, filed with the RTC of Lipa City a
complaint for Rescission of Contract of Sale
of Land against Brigido, a resident of
Barangay San Miguel, Sto. Tomas,
Batangas. The subject property, located in
Barangay Talisay, Lipa City, has an
assessed value of 19,700. Appended to the
complaint is Amorsolo’s verification and
certification of non-forum shopping
executed in New York City, duly notarized
by Mr. Joseph Brown, Esq., a notary public
in the State of New York. Brigod filed a
motion to dismiss the complaint on the
following grounds: (a) The court cannot
acquire jurisdiction over the person of
Amorsolo because he is not a resident of
the Philippines; (2%) SUGGESTED
ANSWER: The first ground raised lacks
merit because jurisdiction over the
person of a plaintiff is acquired by the
court upon the filing of plaintiff‟s
complaint therewith. Residency or
citizenship is not a requirement for
filing a complaint, because plaintiff
thereby submits to the jurisdiction of
the court.
(b) The RTC does not have jurisdiction over
the subject matter of the action involving
real property with an assessed value of
P19,700.00; exclusive and original
jurisdiction is with the Municipal Trial
Court where the defendant resides; (3%)
and
SUGGESTED ANSWER: The second
ground raised is also without merit
because the subject of the litigation,
Rescission of Contract, is incapable of
4
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pecuniary estimation the exclusive original
jurisdiction to which is vested by law in the
Regional Trial Courts. The nature of the
action renders the assessed value of the
land involved irrelevant.
GR: Court has the authority to dismiss the case
motu proprio for lack of jurisdiction. Motion to
dismiss on said ground does not need
presentation of evidence.
Exception: In an ejectment case where the
defense invokes tenancy relationship. In this case,
the court must conduct a preliminary hearing on
said defense of agricultural tenancy. If there is
indeed tenancy relations, the EXCLUSIVE
jurisdiction falls with the DARAB (Concepcion vs.
CFI of Bulacan,119 SCRA 222).
JURISDICTION OVER THE NATURE OF THE
ACTION
Here, a court which ordinarily would have
authority and competence to take a case, is
rendered without it because the type of the action
has been reposed by law in certain other courts or
quasi-judicial agencies.
Examples:
a. When the offender or the victim in a crime is
a minor, even if the crime is punishable by
prision correctional which is cognizable by
an inferior court, the case falls with a proper
Family Court, an RTC, specifically
designated by the SC;
b. Heinous Crimes. Not all RTCs have
cognizance of said cases. There are special
branches of RTCs specially designated as
heinous crimes courts;
c. Intra-corporate controversies now falling
under RTC, but only those RTCs specially
designated by SC in AM No. 00-03;
d. In case involving sales subdivision lots by
developers to lot buyers or sales of lots in
memorial parks which fall under HLURB
(sec. 1, PD 957);
e. Case between landlord and tenant and
arising from tenancy relationship which falls
under DARAB (RA 6657);
f. Section 1 of PD 1818 providing that “No
court in the Philippines shall have
jurisdiction to issue any restraining order,
preliminary injunction, or preliminary
mandatory injunction in any case, dispute,
or controversy involving an infrastructure
project… of the government… to prohibit
any person or persons, entity or government
official from proceeding with, or continuing
the execution or implementation of any of
such project… or pursuing any lawful
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
activity necessary for such execution,
implementation or operation.
NOTE: If the action is specific performance OR
damages, look at the amount of damages to
determine jurisdiction. If the action is specific
performance AND damages, the action is
incapable of pecuniary estimation, thus,
jurisdiction is with the RTC (Review Lecture).
Bar Exam Question 2012
9. Preliminary Prohibitive Injunction will
not lie:
a. to enjoin repeated trespass on land.
b. in petitions for certiorari and mandamus.
c. to restrain implementation of national
government infrastructure project.
d. to restrain voting of disputed shares of
stock.
SUGGESTED ANSWER: (c), No court in
the Philippines shall have jurisdiction to
issue any restraining order, preliminary
injunction, or preliminary mandatory
injunction in any case, dispute, or
controversy involving an infrastructure
project, and natural resource
development projects and public utilities
operated by the Government (Section 1,
P.D. 1818).
Bar Exam Question 2012
67. The Court of Appeals cannot issue a
temporary restraining order in the following
cases·, except:
a. bidding and awarding of a project of
the national government.
b. against any freeze order issued by the
AMLC under the antimoney laundering law.
c. against infrastructure projects like the
SLEX extension.
d. against the DAR in the implementation of
the CARL Law.
SUGGESTED ANSWER:
(a), There is no law which prohibits the
Court of Appeals from issuing a
temporary restraining order on the
bidding and awarding of a project of the
national government. On the contrary,
there are laws which expressly prohibit
the Court of Appeals from issuing a
temporary restraining order against any
of the following: (i) freeze order issued by
the AMLC under the anti-money
laundering law, except the Supreme
Court. (R.A. 10167, Sec.10); (ii)
infrastructure projects like the SLEX
extension because only the Supreme
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Court can issue the same. (Sec.10, R.A. No.
10167 and R.A. No. 8975); and (iii) DAR in
the implementation of the CARL Law.
(Sec.55, R.A. No. 6657).
Jurisdiction; Subdivision Homeowner (2006)
What court has jurisdiction over an action for specific
performance filed by a subdivision homeowner against
a subdivision developer? Choose the correct answer.
Explain.
1 The Housing and Land Use Regulatory Board
2 The Securities and Exchange Commission
3 The Regional Trial Court
4 The Commercial Court or the Regional Trial
Court designated by the Supreme Court to hear and
decide "commercial cases."
SUGGESTED ANSWER:
An action for specific performance by a subdivision
homeowner against a subdivision developer is within the
jurisdiction of the Housing and Land Use Regulatory
Board. Sec. 1 of P.D. 1344 provides that the HLURB has
jurisdiction over cases involving specific performance of
contractual and statutory obligations filed by buyers of
subdivision lots and condominium units against the owner,
developer, dealer, broker or salesman (Manila Bankers Life
Insurance Corp. v. Eddy Ng Kok Wei, G.R. No. 139791,
December 12, 2003; Kakilala v. Faraon, G.R. No. 143233,
October 18, 2004; Sec. 1, P.D. 1344).
Actions; Specific Performance (2012)
No.IV.A. A bought a Volvo Sedan from ABC
Cars for P 5.0M. ABC Cars, before delivering to
A, had the car rust proofed and tinted by XYZ
Detailing. When delivered to A, the car's
upholstery was found to be damaged. ABC
Cars and XYZ Detailing both deny any liability.
Who can A sue and on what cause(s) of action?
Explain. (5%) SUGGESTED ANSWER: A can
file an action for specific performance and
damages against ABC Cars since the damage
to the Volvo Sedan‟s upholstery was caused
before the delivery of the same to A, and
therefore prior to the transfer of ownership
to the latter. (Article 1477, New Civil Code).
Under Article 1170 of the New Civil Code,
those who contravene the tenor of the
obligation are liable for damages. Hence, an
action for specific performance against ABC
Corporation to deliver the agreed Volvo
Sedan in the contract, free from any
damage or defects, with corresponding
damages will lie against ABC Cars.
ALTERNATIVE ANSWER: A can sue ABC
Cars for specific performance or rescission
because the former has contractual
relations with the latter.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
3. Must have jurisdiction over the res
(thing or property under litigation).
Jurisdiction over the res applicable only
in actions in rem and quasi-in rem.
 Acquired either by the seizure of the
property under legal process or as a
result of the institution of legal
proceedings, in which the power of
the court is recognized and made
effective.
4. Must have jurisdiction over the issues.
 As raised in the pleadings;
 Or their agreement in the pre-trial
order;
 Or tried with their implied consent
(failure to make timely objection).
JURISDICTION vs. EXERCISE OF
JURISDICTION
The authority to decide the case and not the
decision rendered therein is what makes up
jurisdiction. Where there is jurisdiction, the
decision on all other questions arising in the
case is but an exercise of jurisdiction.
Where there is an exercise of jurisdiction in
the absence of jurisdiction, the court would
be committing an error of jurisdiction.
Where on the other hand, the court acted
with jurisdiction but committed procedural
error or errors in the appreciation of facts or
of law, there would be a mere error of
judgment.
In error of jurisdiction the judgment is void or
at least voidable. Error of judgment does not
make the decision void. The former is
correctible by certiorari. The latter is by
appeal.
Error of Jurisdiction vs. Error of Judgment
(2012) No.III.A. Distinguish error of jurisdiction
from error of judgment. (5%) SUGGESTED
ANSWER: An error of judgment is one which
the court may commit in the exercise of its
jurisdiction. Such an error does not deprive the
court of jurisdiction and is correctible only by
appeal; whereas an error of jurisdiction is one
which the court acts without or in excess of its
jurisdiction. Such an error renders an order or
judgment void or voidable and is correctible by
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the special civil action of certiorari. (Dela Cruz vs. law law
Moir, 36 Phil. 213; Cochingyan vs. Claribel, 76 SCRA Fixed by law May be subject to
361; Fortich vs. Corona, April 24, 1998, 289 SCRA agreement by the
624; Artistica Ceramica, Inc. vs. Ciudad Del Carmen parties
Homeowner‟s Association, Inc., G.R. Nos. 167583- Jurisdiction over the Waivable
84, June 16, 2010). subject matter cannot
be waived
KINDS OF JURISDICTION Establishes the Establishes a relation
relation between the between the plaintiff
court and the subject and the defendant
1. As to cases tried; matter
Court can motu proprio Court may not dismiss
 GENERAL jurisdiction – Exercised dismiss the case for the case on the ground
over all kinds of cases, except lack of jurisdiction of improper venue
those withheld from the plenary Deals with substance Deals with
powers of the court. convenience
 LIMITED jurisdiction - Exercised Limitation on the court Limitation on the
over particular or specified cases. plaintiff

2. As to the nature of the cause: Jurisdiction vs. Venue (2006)

 ORIGINAL- Exercised by the courts in
the first instance.
 APPELATE- Exercised by a superior
court to review and decide cases
previously decided by a lower court now
elevate for review.
3. As to nature of exercise:
 EXCLUSIVE- Confined to a particular
court to the exclusion of other courts.
 CONCURRENT – Pertaining to different
courts over the same subject matter at
the same time and place. When two or
more courts have concurrent jurisdiction
over a case, the court which has first
validly acquired jurisdiction takes it to
the exclusion of the others (aka
confluent or coordinate jurisdiction).
4. As to situs:
 TERRITORIAL – Exercised within the
limits of the place where the court is
located.
 EXTRA-TERRITORIAL – Exercised
beyond the confines of the territory
where the court is located.
 falls within the jurisdiction of Metropolitan Trial
JURISDICTION VENUE
Authority to hear and Geographic location or
decide a case place where the case
is to be heard or tried.
Locality
Matter of substantive Matter of procedural
Distinguish jurisdiction from venue? (2%)
SUGGESTED ANSWER:
JURISDICTION treats of the power of the Court to
decide a case on the merits, while VENUE refers to the
place where the suit may be filed. In criminal actions,
however, venue is jurisdictional. Jurisdiction is a matter
of
substantive law; venue, of procedural law. Jurisdiction
may be not be conferred by consent through waiver
upon
a court, but venue may be waived, except in criminal
cases
(Nocum et al. v. Tan,
G.R. No. 145022, September 23, 2005; Santos III v.
Northwest Airlines, G.R. No. 101538, June 23, 1992).
Jurisdiction (1997)
What courts have jurisdiction over the following
cases filed in Metro Manila? a) An action for specific
performance or, in the alternative, for damages in
the amount of P180,000.00 b) An action for a writ of
injunction. c) An action for replevin of a motorcycle
valued at P150,000.00. d) An action for interpleader
to
determine who between the defendants is entitled to
receive the amount of P190,000.00 from the
plaintiff. e) A petition for the probate of a will
involving an estate valued at P200,000.00.
SUGGESTED ANSWER:
(a) An action for specific performance or, in the
alternative, for damages in the amount of 180,000.00
Courts in Metro Manila. Although an action for specific
performance is not capable of pecuniary estimation,
since the alternative demand for damages is capable of
pecuniary estimation, it is within the jurisdiction of the
Metropolitan Trial Courts in Metro Manila. (Sec. 33 of
BP 129 as amended by RA No. 7691: Cruz us. Tan, 87 Phil.
627].

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 7

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(b) An action for injunction is not capable of pecuniary As held in US vs. Tamparong, 31 Phil 321,
estimation and hence falls within the jurisdiction of the Philippine courts, both of original and appellate,
RTCs. exercises both the legal and equitable
(c) An action for replevin of a motorcycle valued at jurisdictions.
150,000.00 falls within the jurisdiction of the
Metropolitan Trial Courts in Metro Manila (Sec. 33 of BP EQUITY JURISDICTION
129. as amended by RA No. 7691). The inherent power of the SC to waive technical
(d) An action for interpleader to determine who rules in order to be able to rule on important
between the defendants is entitled to receive the substantial issue.
amount of P190,000.00 falls within the jurisdiction of
the Metropolitan Trial Courts in Metro Manila. RESIDUAL JURISDICTION (aka Retained
(Makati Dev Corp. v. Tanjuatco 27 SCRA 401) Jurisdiction)
(e) A petition for the probate of a will involving an Jurisdiction exercised by the trial court after the
estate valued at 200.000.00 falls within the Jurisdiction of perfection of the appeal but before the
the Metropolitan Trial Courts in Metro Manila (Sec. 19[4] transmittal of the original record or records on
of BP 129, as amended). appeal to the appellate court.
ADDITIONAL ANSWER:
(b) An application for a writ of preliminary injunction
may be granted by a Municipal Court in an action of CONSTITUTIONAL STATUTORY
forcible entry and unlawful detainer. (Sec.33 of BP 129; COURT COURTS
Day vs. RTC of Zamboanga, 191 SCRA610.
Created by the Created by law
Jurisdiction; Lack of Jurisdiction; Proper Action of the Constitution
Court (2004) Cannot be abolished May be abolished by
Plaintiff filed a complaint for a sum of money against by congress without congress by a
defendant with the MeTC-Makati, the total amount of amending the repealing law
the demand, exclusive of interest, damages of whatever constitution
kind, attorney's fees, litigation expenses, and costs, being Ex. The Supreme Ex. The Court of Tax
P1,000,000. In due time, defendant filed a motion to Court Appeals
dismiss the complaint on the ground of the MeTC's lack
of jurisdiction over the subject matter. After due hearing,
the MeTC (1) ruled that the court indeed lacked
jurisdiction over the subject matter of the complaint; and Superior Court Inferior Court
(2) ordered that the case therefore should be forwarded Have power of review Lower in rank and
to the proper RTC immediately. Was the court's ruling or supervision over subject to review and
concerning jurisdiction correct? Was the court's order to another lower court supervision of superior
forward the case proper? Explain briefly. (5%) courts
SUGGESTED ANSWER:
Yes. The MeTC did not have jurisdiction over the case
because the total amount of the demand exclusive of Courts of Record
interest, damages of whatever kind, attorney's fees, Proceedings are enrolled and are bound to keep
litigation expenses, and costs, was P1M. Its jurisdictional a written record of all trials and proceedings. R.A
amount at this time should not 6031 mandates all MTCs to be a court of record.
exceed P400.000.00 (Sec. 33 of B.P. Big. 129, as amended by R.A.
No. 7691). DOCTRINE OF JUDICIAL STABILITY or NON-
ALTERNATIVE ANSWER: INTERFERENCE
The court's order to forward the case to the RTC is not No court has the authority to interfere by
proper. It should merely dismiss the complaint. Under injunction with the judgment of another court of
Sec. 3 of Rule 16, the court may dismiss the action or coordinate jurisdiction or pass upon or scrutinize
claim, deny the motion or order the amendment of the and much less declare as unjust a judgment of
pleading but not to forward the case to another court. another tribunal (Industrial Enterprises Inc. vs.
CA184 SCRA 426).
Courts of Law vs. Courts of Equity
A court of law decides the case according to what Bar Exam Question 2011
the promulgated law is while a court of equity (34) What is the doctrine of judicial stability
adjudicates a controversy according to the common or non interference? (A) Once jurisdiction
precepts of what is right and just without inquiring has attached to a court, it can not be
into the terms of the statutes. deprived of it by subsequent happenings or
events.

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 8

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(B) Courts will not hear and decide cases
involving issues that come within the
jurisdiction of administrative tribunals.
(C) No court has the authority to interfere
by injunction with the judgment of another
court of coordinate jurisdiction. (D) A higher
court will not entertain direct resort to it
unless the redress sought cannot be obtained
from the appropriate court.
The doctrine does not apply where the
judgment is a total nullity. A void judgment
is in legal effect a judgment which no
rights are vested, from which no rights
can be obtained, and which neither binds
nor bars anyone. It can be collaterally
attacked (Municipality of Antipolo vs. IAC,
133 SCRA 820).
NOTE: Although the void judgment can be
collaterally attacked, under the Rules, a DIRECT
ATTACK is allowed where the judgment is void for
lack of jurisdiction, a Verified Petition for
Annulment of Judgment can be filed with the RTC
and CA under Rule 47, sec. 1 and 10).
DOCTRINE OF ANCILLARY JURISDICTION
It involves the inherent or implied powers of the
court to determine issues incidental to the exercise
of its primary jurisdiction.
Under its ancillary jurisdiction, a court may
determine all questions relative to the matters
brought before it, regulate the manner in which a
trial is conducted, determine the hours at which the
witnesses and lawyers may be heard, direct the
disposition of money deposited in court in the
course of the proceedings, appoint a receiver, and
grant an injunction, attachment or garnishment.
JUDICIAL HEIRARCHY
This means that the higher court will not entertain
direct resort to it unless the redress desired cannot
be obtained in the appropriate courts.
While it’s true that the SC, CA, and RTC have
concurrent original jurisdiction to issue writs of CPM,
such however does not accord litigants of
unrestrained freedom of choice of court to which the
application for the writ may be directed. The
application should be filed with the court of lower
level unless the importance of the issue involved
deserves action of higher court.
Bar Exam Question 2011
(97) Which of the following NOT TRUE
regarding the doctrine of judicial hierarchy? (A)
It derives from a specific and mandatory
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
provision of substantive law. (B) The
Supreme Court may disregard the doctrine
in cases of national interest and matters of
serious implications. (C) A higher court will
not entertain direct recourse to it if redress
can be obtained in the appropriate courts.
(D) The reason for it is the need for higher
courts to devote more time to matters
within their exclusive jurisdiction.
DOCTRINE OF ADHERENCE TO
JURISDICTION
(Aka Continuity of Jurisdiction)
Once jurisdiction is acquired, the court retains it
until the final termination of the case.
GR: Law enacted during the pendency of a case
which transfers jurisdiction to another court does
not affect cases prior to its enactment.
EXCEPTIONS: (RCRT)
1. When the law expressly provides for a
retroactive application.
2. When change of jurisdiction is curative
in nature.
3. When the law (penalizing law) is
repealed.
4. When the proceeding is already
terminated, abandoned, or avoided.
EXCLUSIONARY RULE
The court first acquiring jurisdiction
excludes all others.
DOCTRINE OF PRIMARY JURISDICTION
Courts will not resolve a controversy involving a
question which is within the jurisdiction of an
administrative tribunal especially where the
question demands the exercise of sound
administrative discretion requiring the special
knowledge and experience of said tribunal in
determining technical and intricate matters of
fact (Villaflor vs. CA 280 SCRA 297).
GR: When the court has jurisdiction over the
action, it cannot refuse to take cognizance of the
case.
REMEDY if the court refuses to take action: A
petition for Mandamus under Rule 65
Exceptions: A court can validly refuse
cognizance of a case, even if it has jurisdiction,
when:
1. If it is an inconvenient forum under
conflict rules (Doctrine of Forum Non-
Convenience);
2. When there is violation of the doctrine of
hierarchy of courts.
9
________________________________________________________________________________________________

Under the 1987 Constitution, Art. VIII, Sec. 5[5]

Promulgate rules concerning the

protection and enforcement of
constitutional rights, pleading,
practice, and procedure in all courts,
the admission to the practice of law,
.
the integrated bar and legal assistance
1997 RULES OF CIVIL to the under-privileged. Such rules
PROCEDURE, AS AMENDED shall provide a simplified and
inexpensive procedure for the speedy
disposition of cases, shall be uniform
(RULES 1-71, RULES OF COURT)
for all courts of the same grade, and
shall not diminish, increase, or modify
EFFECTIVE JULY 1, 1997
substantive rights. Rules of procedure
of special courts and quasi-judicial
bodies shall remain effective unless
disapproved by the Supreme Court.
Per Resolution of the Supreme Court in Bar
Matter No. 803 Adopted in Baguio City on In the interest of just and expeditious
April 8, 1997 proceeding, the SC may suspend the application
of the Rules and except a case from its
RULES OF COURT operation because the rules were precisely
adopted with the primary objective of enhancing
Pursuant to the provisions of section 5 (5) of fair trial and speedy justice (Republic vs. CA L-
31303- 04, May 31 1978).
Article VIII of the Constitution, the Supreme
Court hereby adopts and promulgates the
following rules concerning the protection and Section 2. In what courts applicable. —
enforcement of constitutional rights, These Rules shall apply in all the courts,
pleading, practice and procedure in all courts, except as otherwise provided by the
the admission to the practice of law, the Supreme Court. (n)
Integrated Bar, and legal assistance to the
underprivileged: Section 3. Cases governed. — These
Rules shall govern the procedure to be
RULE 1 observed in actions, civil or criminal and
special proceedings.
General Provisions
ACTION CLAIM
An ordinary suit in a A right possessed by
Section 1. Title of the Rules. — These Rule
court of justice. one against another.
shall be known and cited as the Rules of
One by which a party The moment the claim
Court. (1)
sues another for the is filed in court, such
enforcement or claim is converted into
Effectivity: July 1, 1997 protection of a right, or an action.
the prevention or
System of “CODE PLEADING” redress of a wrong.
Is the system used in the Philippines wherein the
procedural rules are set forth in a codified form like (a) A civil action is one by which a party
the Rules of Court. sues another for the enforcement or
protection of a right, or the prevention or
The Rules of Court are not penal statutes. Hence, redress of a wrong, (1a, R2)
they cannot be given retroactive effect. They can,
however, be made applicable to cases pending at
A civil action may either be ordinary
the time of their passage and therefore retroactive in
that sense. or special. Both are governed by the
rules for ordinary civil actions, subject to

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 10

________________________________________________________________________________________________

the specific rules prescribed for a special civil b) AS TO OBJECT

action. (n)
ACTION IN ACTION IN ACTION
(b) A criminal action is one by which the REM PERSONAM QUASI IN
State prosecutes a person for an act or REM
omission punishable by law. (n) Directed Directed Directed
against the against against
thing itself particular particular
(c) A special proceeding is a remedy by
persons persons
which a party seeks to establish a status, a
Jurisdiction Jurisdiction Jurisdiction
right, or a particular fact. (2a, R2) over the over the over the
person of the defendant is defendant is
Actions; Filing; Civil Actions & Criminal Action (2005) defendant is required not required
While cruising on a highway, a taxicab driven by Mans not required as long as
hit an electric post. As a result thereof, its passenger, there is
Jovy, suffered serious injuries. Mans was subsequently jurisdiction
charged before the Municipal Trial Court with reckless over the res
imprudence resulting in serious physical injuries. A proceeding Action to A proceeding
Thereafter, Jovy filed a civil action against Lourdes, the to determine impose a to subject the
owner of the taxicab, for breach of contract, and Mans the state or responsibility interest of a
for quasi-delict. Lourdes and Mans filed a motion to condition of a or liability named
dismiss the civil action on the ground of litis pendentia, thing upon a person defendant
that is, the pendency of the civil action impliedly directly over a
instituted in the criminal action for reckless imprudence particular
resulting in serious physical injuries. Resolve the motion property to an
with reasons. (4%) obligation or
SUGGESTED ANSWER: lien burdening
The motion to dismiss should be denied. The action it
for breach of contract against the taxicab owner cannot Judgment is Judgment is Binding upon
be barred by the criminal action against the taxicab binding to the binding only to particular
driver, although the taxicab owner can be held whole world persons persons
subsidiarily liable in the criminal case, if the driver is impleaded or
insolvent. On the other hand, the civil action for their
quasidelict against the driver is an independent civil successors in
action under Article 33 of the Civil Code and Sec. 3, interest
Rule 111 of the Rules of Court, which can be filed Ex. Probate of Ex. Specific Ex. Partition,
separately and can proceed independently of the criminal will, cadastral performance; foreclosure of
action and regardless of the result of the latter. (Samson proceeding; damages; real estate
v. Daway,G.R. Nos. 160054-55, July 21, 2004) Annulment Action for mortgage;
Recognition; Partition;
Injunction Accounting

CLASSIFICATION OF ACTIONS NOTE: The distinction is important in determining

whether or not the jurisdiction over the person of the
defendant is required/ or acquired.
a) AS TO NATURE
c) AS TO CAUSE
ORDINARY CIVIL SPECIAL CIVIL
ACTION ACTION
REAL ACTION PERSONAL MIXED
Ordinary rules apply Ordinary rules apply
ACTION ACTION
but subject to specific
Ownership or Personal Both real and
rules prescribed.
possession of property is personal
Rules 62- 71
real property, sought to be properties are
Formal demand of Specific rules not
or any interest recovered or involved
one’s legal rights in a found in other rules
therein is damages for
court of justice in the
involved breach of
manner prescribed by
contact are
the court or by law.
sought

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 11

________________________________________________________________________________________________

Founded on Founded on Founded on a. REAL ACTIONS are actions affecting title to or

privity of real privity of both possession of real property or an interest therein
estate contract (Fortune Motors, Inc. v. CA, G. R. No. 76431, October
Filed in the Filed in the Rules on 16,
1989; Rule 4, Sec. 1).
court where court where venue of real
the property or the plaintiff or action shall b. All other actions are PERSONAL ACTIONS (Rule
any part any of the govern 4, Section I) which include those arising from privity
thereof is defendant ofcontract.
located resides at the
option of the Payment of Docket Fees for Real
plaintiff Actions. Bar Exam Question 2012
Ex. Accion Ex. Action on Ex. Accion 5. In real actions, the docket and filing fees
Reinvidicatoria; torts, sum of Publiciana are based on:
Action for money, with damages a. fair market value of the property.
Quieting of damages or b. assessed value of the property.
Title of recovery of c. BIR zonal value of the property.
personal d. fair market value of the property and
property amount of damages claimed.
SUGGESTED ANSWER: (c), Under Section
NOTE: Distinction is significant in determining venue. 7, Rule 141 of the Rules of Court, in
cases involving property, the fair market
value of the real property in litigation
d) AS TO PLACE OF FILING
stated in the current tax declaration or
current zonal valuation of the bureau of
LOCAL ACTION TRANSITORY internal revenue, whichever is higher, or
ACTION if there is none, the stated value of the
Brought in a particular Dependent on the property in litigation or the value of the
place where the place where the personal property in litigation as alleged
property is located party resides by the claimant shall be basis of the
unless there is an regardless of where docket and filing fees. ( As amended by
agreement to the the cause of action A.M. 04-2-04-SC, August 16, 2004).
contrary arose subject to sec.
4 of Rule 4 ALTERNATIVE ANSWER: (b), In Siapno
Ex. Recovery of real Ex. Recovery of sum vs. Manalo, G.R. No. 132260, August 30,
property of money 2005, the Court disregarded the
title/denomination of the plaintiff
Bar Exam Question 2011 Manalo‟s amended petition as one for
(6) Gary who lived in Taguig borrowed P1 Mandamus with Revocation of Title and
million from Rey who lived in Makati under a
Damages; and adjudged the same to be a
contract of loan that fixed Makati as the venue real action, the filing fees for which
of any action arising from the contract. Gary should have been computed based on the
had already paid the loan but Rey kept on
assessed value of the subject property
sending him letters of demand for some or, if there was none, the estimated
balance. Where is the venue of the action for value thereof.
harassment that Gary wants to file against
Rey? (A) In Makati since the intent of the party
is to make it the venue of any action between
Venue; Real Actions (2012)
them whether based on the contract or not. (B)
No.III.B. A, a resident of Quezon City, wants
In Taguig or Makati at the option of Gary
to file an action against B, a resident of
since it is a personal injury action. (C) In
Pasay, to compel the latter to execute a
Taguig since Rey received the letters of demand
Deed of Sale covering a lot situated in
there. (D) In Makati since it is the venue fixed
Marikina and that transfer of title be issued
in their contract.
to him claiming ownership of the land.
Where should A file the case? Explain. (5%)
SUGGESTED ANSWER: A should file the
Actions; Real Actions & Personal Actions (2006)
case in Marikina, the place where the
What do you mean by a) real actions; and b) personal
real property subject matter of the case
action? (2%)
SUGGESTED ANSWER: is situated. An action for specific

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 12

________________________________________________________________________________________________
performance would still be considered a real
action where it seeks the conveyance or
transfer of real property, or ultimately, the
execution of deeds of conveyance of real
property. (Gochan vs. Gochan, 423 Phil.
491, 501 [2001]; Copioso vs. Copioso, 391
SCRA 325 [2002])
Venue; Real Actions (2008) No.III. (a) Angela,
a resident of Quezon City, sued Antonio, a
resident of Makati City before the RTC of
Quezon City for the reconveyance of two
parcels of land situated in Tarlac and Nueva
Ecija, respectively. May her action prosper?
SUGGESTED ANSWER:
No, the action will not prosper because it
was filed in the wrong venue. Since the
action for reconveyance is a real action, it
should have been filed separately in Tarlac
and Nueva Ecija, where the parcels of land
are located (Section 1, Rule 4; United
Overseas Bank of the Philippines vs.
Rosemoore Mining & Development Corp., et
al., G.R. nos. 159669 & 163521, March 12,
2007). However, an improperly laid venue
may be waived, if not pleaded in a timely
motion to dismiss (Sec. 4, Rule 4). Without
a motion to dismiss on the ground of
improperly laid venue, it would be incorrect
for the Court to dismiss the action for
improper venue.
(b) Assuming that the action was for
foreclosure on the mortgage of the same
parcels of land, what is the proper venue for
the action? SUGGESTED ANSWER: The
action must be filed in any province where
any of the lands involved lies – either in
tarlac or in Nueva Ecija, because the action
is a real action (BPI vs. Green, 57 Phil. 712;
Sec. 1, Rule 4; Bank of America vs.
American Realty Corp., G.R. No. 133876, 29
December 1999). However, an improperly
laid venue may be waived if not pleaded as a
ground for dismissal (Sec. 4, Rule 4).
[Note: The question is the same as 2009
Remedial Law Bar question No.II. See
Jurisdiction: Jurisdiction; RTC, Supra –
JayArhSals]
Section 4. In what case not applicable. —
These Rules shall not apply to election cases,
land registration, cadastral, naturalization
and insolvency proceedings, and other cases
not herein provided for, except by analogy or
in a suppletory character and whenever
practicable and convenient. (R143a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
RC NOT APPLICCABLE IN: (C-L-I-N-E)
1. Election
 An election case cannot be dismissed
for failure to attach a CAFS (Barroso vs.
Ampig, 328 SCRA 530).
 A protestee cannot insist on the right to
present his evidence after his demurrer
to evidence was denied (Gementiza vs.
COMELEC, L-140884, March 6, 2001).
2. Cadastral/land registration
3. Naturalization
 The CA can deny an application for
naturalization on the basis of an
evidence not formally offered in
evidence, although the same is contrary
to sec. 34, Rule 132 (Ong Chia vs.
Republic. 328 SCRA 749).
4. Insolvency
5. Other cases not provided
 Rules of Court Not applicable in court
martial proceedings (Magno vs. Villa,
199 SCRA 663).
 Affidavits, though hearsay, allowed in
administrative bodies like the NLRC
(Bantolino vs. Coca-Cola Bottlers, L-
153660,June 10, 2003).
 Impeachment Proceedings
Except:
a). by analogy or suppletory in character,
b). when practicable and convenient.
Section 5. Commencement of action. —
A civil action is commenced by the filing of
the original complaint in court. If an
additional defendant is impleaded in a
later pleading, the action is commenced
with regard to him on the dated of the
filing of such later pleading, irrespective of
whether the motion for its admission, if
necessary, is denied by the court. (6a)
NOTE: Civil actions are deemed commenced
from the date of filing and docketing of the
complaint, without taking into account the
issuance and service of summons (Cabrera vs.
Tiano 8 SCRA 542)
13
________________________________________________________________________________________________
Pleadings; Amendment of Complaint; By Leave of Court;
Prescriptive Period (2000)
X, an illegitimate child of Y, celebrated her 18th birthday
on May 2, 1996. A month before her birthday, Y died.
The legitimate family of Y refused to recognize X as an
illegitimate child of Y. After countless efforts to
convince them, X filed on April 25, 2000 an action for
recognition against Z, wife of Y. After Z filed her
answer on August 14, 2000, X filed a motion for leave to
file an amended complaint and a motion to admit the
said amended complaint impleading the three (3)
legitimate children of Y. The trial court admitted the
amended complaint on August 22, 2000. What is the
effect of the admission of the amended complaint? Has
the action of X prescribed?
Explain. (5%)
SUGGESTED ANSWER:
No. The action filed on April 25, 2000 is still within the
four-year prescriptive period which started to run on May
2, 1996. The amended complaint impleading the three
legitimate children, though admitted on August 22, 2000
beyond the four-year prescriptive period, retroacts to the
date of filing of the original complaint. Amendments
impleading new defendants retroact to the date of the filing
of the complaint because they do not constitute a new
cause of action. (Verzosa v. Court of Appeals, 299 SCRA 100
[1998]). (Note: The four-year period is based on Article 285 of the Civil
Code)
ALTERNATIVE ANSWER: Under the 1997 Rules of Civil
Procedure, if an additional defendant is impleaded in a
later pleading, the action is commenced with regard to
him on the date of the filing of such later pleading,
irrespective of whether the motion for its admission, if
necessary, is denied by the court. (Sec. 5 of Rule 1).
Consequently, the action of X has prescribed with
respect to the three (3) legitimate children of Y who are
indispensable parties.
ANOTHER ALTERNATIVE ANSWER:
Under Article 175 of the Family Code, the action must
be brought within the lifetime of X if the action is based
on a record of birth or an admission of filiation in a
public document or a private handwritten instrument
signed by Y. In such case, the action of X has not
prescribed. However, if the action is based on the open
and continuous possession of the status of an illegitimate
child, the action should have been brought during the
lifetime of Y. In such case, the action of X has
prescribed.
Civil actions are commenced by: (considered
filed)
a. Filing of the complaint; and
b. Payment of docket fees – Determined not
only by the amount of the claim but also of
the amount of damages.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
NOTE: The amount of damages must be
specified not only in the body of the complaint
but also in the prayer.
The court may allow the payment of deficient
docket fee within a reasonable time but not
beyond the applicable prescriptive period.
As compared to payment of filing fess in the
appeal, the latter requires payment in full of
docket and other lawful fees to perfect the
appeal.
An action can be commenced by filing the
complaint by registered mail. In which case, it is
the date of mailing that is considered the date of
filing and not the date of receipt thereof by the
clerk of court.
NOTE: date of filing is necessary to determine
whether or not the action has prescribed.
EFFECTS OF FILING COMPLAINT:
1. Substantive Aspect – it interrupts the
running of the prescriptive period.
2. Procedural Aspect – jurisdiction over
the person of the plaintiff is acquired.
Section 6. Construction. — These Rules
shall be liberally construed in order to
promote their objective of securing a just,
speedy and inexpensive disposition of
every action and proceeding. (2a)
Liberal Construction; Rules of Court (1998)
How shall the Rules of Court be construed? [2%]
SUGGESTED ANSWER:
The Rules of Court should be liberally construed in
order to promote their objective of securing a just,
speedy and inexpensive disposition of every action
and proceeding. (Sec. 6, Rule 1 1997 Rules of Civil Procedure.)
ADDITIONAL ANSWER:
However, strict observance of the rules is an
imperative necessity when they are considered
indispensable to theprevention of needless delays
and to the orderly and speedy dispatch of Judicial
business. (Alvero vs. Judge dela Rosa, 76 Phil. 428)
GR: Liberal construction.
Exceptions:
 Reglementary periods
 Rule on forum shopping
 Service of summons
Technicalities should be avoided so as not to
defeat a justifiable cause.
14
________________________________________________________________________________________________

EQUITY JURISDICTION Delict or wrongful act Remedial right or right

The inherent power of the SC to waive technical or omission to relief granted by law
rules in order to be able to rule on important to a party to institute
substantial issue. an action against a
person who committed
Note: However, that to justify deviation from the the delict or wrongful
rules, there must be COMPELLING REASONS or act or omission
CONSIDERATIONS. One cannot hark on the rule of Reason for action The remedy
liberal construction for every violation of the rules The formal statement Remedial right granted
(Digital Microwave Corp. vs. CA, 328 SCRA 286 of the operative facts because of the
[2000]), (e.g. case involving transcendental that gives rise to occurrence of alleged
importance where party filing the case has no remedial right facts
standing to sue) A matter of right and Matter of procedure
depends upon and depends upon
substantive law pleadings of parties
Not affected by Affected by such
affirmative defenses defenses
Civil Actions
Cause of action vs. Action (1997)
Distinguish Cause of action from action
Ordinary Civil Actions SUGGESTED ANSWER:
A CAUSE OF ACTION is an act or omission of
one party in violation of the legal right or rights of
the other (Maao Sugar Central vs. Barrios, 79 Phil. 606;
RULE 2 Sec. 2 of new Rule 2), causing damage to another. An
ACTION is an ordinary suit in a court of Justice by
Cause of Action which one party prosecutes another for the
enforcement or protection of a right, or the
prevention or redress of a wrong.(Section 1 of former Rule
Section 1. Ordinary civil actions, basis of. 2).
— Every ordinary civil action must be based
on a cause of action. (n) Actions; Cause of Action vs. Action (1999)
Distinguish action from cause of action. (2%)
Section 2. Cause of action, defined. — A SUGGESTED ANSWER:

cause of action is the act or omission by
which a party violates a right of another. (n)
Requisites
1) Existence of legal right of the plaintiff;
2) Correlative duty on the part of the
defendant to respect the right of the plaintiff;
3) An act or omission of the defendant in
violation of plaintiff’s legal right
4) Damage (optional)
INJURY is the illegal invasion of a legal right.
DAMAGE is the loss, hurt, or harm which results
from the injury.
RIGHT OF ACTION
Requisites:
1) Good Cause
2) Conditions Precedent are complied
3) Proper Party
CAUSE OF ACTION RIGHT OF ACTION
An ACTION is one by which a party sues another
for the enforcement or protection of a right, or the
prevention or redress of a wrong. (Sec. 3(A), Rule )
A CAUSE OF ACTION is the act or omission by
which a party violates a right of another. (Sec. 2, Rule 2
of
the 1997 Rules) An action must be based on a cause
of action. (Sec. 1, Rule 2 of the 1997 Rules)
Actions; Cause of Action (2013)
No.VI. While leisurely walking along the
street near her house in Marikina, Patty
unknowingly stepped on a garden tool left
behind by CCC, a construction company
based in Makati. She lost her balance as a
consequence and fell into an open manhole.
Fortunately, Patty suffered no major
injuries except for contusions, bruises and
scratches that did not require any
hospitalization. However, she lost self-
esteem, suffered embarrassment and
ridicule, and had bouts of anxiety and bad
dreams about the accident. She wants
vindication for her uncalled for experience
and hires you to act as counsel for her and

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 15

________________________________________________________________________________________________

to do whatever is necessary to recover at least MATTER

Php100,000 for what she suffered. What action The redress, The The thing,
or actions may Patty pursue, against whom, protection, procedure or wrongful act,
where (court and venue), and under what legal award or appropriate contract or
basis? (7%) SUGGESTED ANSWER: Patty coercive legal form of property
may avail any of the following remedies: a) measure relief of action which is
She may file a complaint for damages which the which may be directly
arising from fault or negligence under the plaintiff prays availed by the involved in the
Rules on Small Claims against CCC the court to plaintiff as the action,
Company before the MTC of Marikina City render in his means to concerning
where she resides or Makati City where the favor as obtain the which the
defendant corporation is holding office, at consequence desired relief wrong has
her option (A.M. No. 8-8-7-SC in relation to of the delict been done
Section 2, Rule 4, Rules of Court). committed by and with
b) She may also file an action to recover the defendant respect to
moral damages based on quasi-delict under which the
Article 2176 of the New Civil Code. The law controversy
states that, whoever by act or omission has arisen
causes damage to another, there being fault
or negligence is obliged to pay for the Civil Actions vs. Special Proceedings (1998)
damage done. Such fault or negligence, if Distinguish civil actions from special proceedings.
there is no pre-existing contractual relation [3%] SUGGESTED ANSWER:
between the parties, is called a quasi-delict. A CIVIL ACTION is one by which a party sues
Under Article 2217 of the New Civil Code, another for the enforcement or protection of a right,
moral damages include physical suffering, or the prevention or redress of a wrong. (See. 3[a], Rule
mental anguish, fright, serious anxiety, 1, 1997 Rules of Civil Procedure), while a SPECIAL
besmirched reputation, wounded feelings, PROCEEDING is a remedy by which a party seeks
moral shock, social humiliation, and similar to establish a status, a right or a particular fact. (Sec.
injury. Though incapable of pecuniary 3[C]. Rule 1,1997 Rules of Civil Procedure.)
computation, moral damages may be
Actions; Cause of Actions; Motion to Dismiss; bar by
recovered if they are the proximate result of
prior judgment (2002)
the defendant‟s wrongful act or omission. Rolando filed a petition for declaration of the nullity
Since moral damages are incapable of
of
pecuniary estimation, Patty should file the
his marriage to Carmela because of the alleged
action before the Regional Trial Court of
psychological incapacity of the latter.
Marikina City where she resides or Makati
After trial, the court rendered judgment dismissing
City, where the defendant corporation is
the
holding office, at her option (Section 19(1),
petition on the ground that Rolando failed to prove
B.P. 129).
the psychological incapacity of his wife. The
judgment
c) Patty can also file a civil action for
having become final, Rolando filed another petition,
damages against the City of Marikina for
this time on the ground that his marriage to Carmela
maintaining an open manhole where she
had been celebrated without a license. Is the second
unfortunately fell. Under article 2189 of the
action barred by the judgment in the first? Why?
Civil Code, provinces, cities, and
(2%)
municipalities shall be liable for damages SUGGESTED ANSWER:
for the death of, or injuries suffered by, any No, the second action is not barred by the judgment
person by reason of the defective condition in
of roads, streets, bridges, public buildings, the first because they are different causes of action.
and other public works under their control The first is for annulment of marriage on the ground
or supervision. The proper court having of psychological incapacity under Article 36 of the
jurisdiction over the case is at least Php Family Code, while the second is for declaration of
100,000 for as long as the aggregate of the nullity of the marriage in view of the absence of a
claims for damages does not exceed Php basic
400,000. requirement, which is a marriage license. [Arts, 9 &
35(3),
Family Code]. They are different causes of action
RELIEF REMEDY SUBJECT because
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 16
________________________________________________________________________________________________
the evidence required to prove them are not the same.
[Pagsisihan v. Court of Appeals, 95 SCRA 540
(1980) and other cases].
Section 3. One suit for a single cause of
action. — A party may not institute more
than one suit for a single cause of action.
(3a)
Section 4. Splitting a single cause of
action; effect of. — If two or more suits are
instituted on the basis of the same cause of
action, the filing of one or a judgment upon
the merits in any one is available as a ground
for the dismissal of the others. (4a)
SPLITTING THE CAUSE OF ACTION
It is the act of dividing a single or indivisible cause
of action into several parts or claims and bringing
several actions thereon. It is not allowed.
The rule against splitting the cause of action is
equally applicable to counterclaims and cross-
claims, not only to a complaint (Mariscal vs. CA, 311
SCRA 51).
Purpose: To avoid multiple suits, unnecessary
vexation and harassment of defendants, cost of
litigation.
Note; apply also to counterclaims and cross-
claims.
Remedies against splitting a cause of action:
A. Motion to Dismiss on the ground of:
 Litis Pendentia ( Rule 16, sec. 1[e])
 Res Judicata (Rule 16, sec. 6)
B. An Answer alleging the aforementioned
grounds as affirmative defenses.
GR: A contract embraces only one cause of
action even if it contains several stipulations.
Exception: A contract to do several things at
several times is divisible, and judgment for
single breach of a continuing contract is not a
bar to a suit for subsequent breach (eg.
promissory note payable in installments)
Exception to exception:
 There is an acceleration clause in the
contract;
 All the obligations are already mature at
the time of the commencement of the
action; if not included may be barred.
DOCTRINE OF ANTICIPATORY BREACH
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
An UNQUALIFIED and POSITIVE REFUSAL to
perform a contract , though the same is not yet
due, may, if the renunciation goes into the whole
of the contract, be tested as a complete breach
which will entitle the injured party to bring his
action at once (Blossom and Co. vs. Manila Gas
Corp. 55 Phil 226)
Actions; Cause of Action; Splitting (1999)
a) What is the rule against splitting a cause of
action and its effect on the respective rights of the
parties for failure to comply with the same? (2%)
b) A purchased a lot from B for Pl,500,000.00.
He gave a down payment of P500,000, signed a
promissory note payable thirty days after date, and as
a
security for the settlement of the obligation,
mortgaged
the same lot to B. When the note fell due and A
failed
to pay, B commenced suit to recover from A the
balance of P1,000,000.00. After securing a favorable
judgment on his claim, B brought another action
against A before the same court to foreclose the
mortgage. A now files a motion to dismiss the
second
action on the ground of bar by prior judgment. Rule
on
the motion. (2%)
SUGGESTED ANSWER:
a. The rule against splitting a cause of action and its
effect are that if two or more suits are instituted on
the
basis of the same cause of action, the filing of one or
a
judgment upon the merits in any one is available as a
ground for the dismissal of the others. (Sec. 4, Rule
2)
b. The motion to dismiss should be granted. When B
commenced suit to collect on the promissory note,
he
waived his right to foreclose the mortgage. B split his
cause of action.
Actions; Cause of Action; Splitting (2005)
Raphael, a warehouseman, filed a complaint against
V
Corporation, X Corporation and Y Corporation to
compel them to interplead. He alleged therein that
the
three corporations claimed title and right of
possession
over the goods deposited in his warehouse and that
he
was uncertain which of them was entitled to the
goods.
After due proceedings, judgment was rendered by
the
17
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court declaring that X Corporation was entitled to the
goods. The decision became final and executory.
Raphael filed a complaint against X Corporation for the
payment of P100,000.00 for storage charges and other
advances for the goods. X Corporation filed a motion to
dismiss the complaint on the ground of res judicata. X
Corporation alleged that Raphael should have
incorporated in his complaint for interpleader his claim
for storage fees and
advances and that for his failure he was barred from
interposing his claim. Raphael replied that he could not
have
claimed storage fees and other advances in his complaint
for
interpleader because he was not yet certain as to who
was
liable therefor. Resolve the motion with reasons. (4%)
SUGGESTED ANSWER:
The motion to dismiss should be granted. Raphael should
have incorporated in his complaint for interpleader his claim
for storage fees and advances, the amounts of which were
obviously determinable at the time of the filing of the
complaint. They are part of Raphael's cause of action which
he may not be split. Hence, when the warehouseman asks the
court to ascertain who among the defendants are entitled to
the goods, he also has the right to ask who should pay for the
storage fees and other related expenses. The filing of the
interpleader is available as a ground for dismissal of the
second case. (Sec. 4, Rule 2,) It is akin to a compulsory
counterclaim which, if not set up, shall be barred. (Sec. 2, Rule
9, ; Arreza v. Diaz, G.R. No. 133113, August 30, 2001)
Actions; Cause of Action; Joinder & Splitting (1998)
Give the effects of the following:
1 Splitting a single cause of action: and (3%|
2 Non-joinder of a necessary party. [2%]
SUGGESTED ANSWER:
1. The effect of splitting a single cause of action is
found in the rule as follows: If two or more suits are
instituted on the basis of the same cause of action, the
filing of one or a judgment on the merits in any one is
available as a ground for the dismissal of the others.
(Sec. 4 of Rule 2)
2. The effect of the non-joinder of a necessary party
may be stated as follows: The court may order the
inclusion of an omitted necessary party if jurisdiction
over his person may be obtained. The failure to comply
with the order for his inclusion without justifiable cause
to a waiver of the claim against such party. The court
may proceed with the action but the judgment rendered
shall be without prejudice to the rights of each necessary
party. (Sec. 9 of Rule 3)
Section 5. Joinder of causes of action. — A
party may in one pleading assert, in the
alternative or otherwise, as many causes of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
action as he may have against an
opposing party, subject to the following
conditions:
(a) The party joining the causes of
action shall comply with the rules
on joinder of parties;
NOTE: Elements of joinder of parties
(Rule 3, sec. 6)
a) A right to relief in respect to or
arising out of the same
transaction or series of
transactions;
b) Common question of fact and
law.
(b) The joinder shall not include special
civil actions or actions governed by special
rules;
(c) Where the causes of action are
between the same parties but pertain to
different venues or jurisdictions, the
joinder may be allowed in the Regional
Trial Court provided one of the causes of
action falls within the jurisdiction of said
court and the venue lies therein; and
(d) Where the claims in all the causes
action are principally for recovery of
money, the aggregate amount claimed
shall be the test of jurisdiction. (5a) note
: ( Totality Rule)
NOTE: Par. (a)-joinder of causes of action –
does not apply if the situation is “one on one”-
one plaintiff against one defendant. Thus, if the
situation is one on one, the complaint may
include several causes of actions arising from
different transactions.
Bar Exam Question 2012
39. The following are accurate statements
on joinder of causes of action, except:
a. joinder of actions avoids multiplicity of
suits.
b. joinder of actions may include special
civil actions.
c. joinder of causes of action is permissive.
d. the test of jurisdiction in case of money
claims in a joinder of causes of act1on, is
the "totality rule".
SUGGESTED ANSWER: (b), The rule on
joinder of actions under Section 5, Rule
18
________________________________________________________________________________________________
3 of the 1997 Rules of Civil Procedure, as
amended, requires that the joinder shall not
include special civil actions governed by
special rules. (Roman Catholic Archbishop
of San Fernando Pampanga vs. Fernando
Soriano Jr., et al., G.R. No. 153829, August
17, 2011, VIllarama, Jr., J.).
Bar Exam Question 2011
(33) A sued B in the RTC of Quezon City,
joining two causes of action: for partition of
real property and breach of contract with
damages. Both parties reside in Quezon City
but the real property is in Manila. May the
case be dismissed for improper venue? (A) Yes,
since causes of action pertaining to different
venues may not be joined in one action. (B) No,
since causes of action pertaining to
different venues may be joined in the RTC if
one of the causes of action falls within its
jurisdiction. (C) Yes, because special civil
action may not be joined with an ordinary civil
action. (D) No, since plaintiff may unqualifiedly
join in one complaint as many causes of action
as he has against opposing party.
Actions; Cause of Action; Joinder of Action (1999)
a) What is the rule on joinder of causes of
action? (2%)
b) A secured two loans from B, one for P500,000.00 and
the other for P1,000,000.00, payable on different dates.
Both have fallen due. Is B obliged to file only one
complaint against A for the recovery of both loans?
Explain. (2%)
SUGGESTED ANSWER:
a. The rule on JOINDER OF CAUSES OF ACTION is
that a party may in one pleading assert, in the alternative
or otherwise join as many causes of action as he may
have against an opposing party, provided that the rule on
joinder of parties is complied with;
1.] the joinder shall not include special civil actions or
actions governed by special rules, but may include causes
of action pertaining to different venues or jurisdictions
provided one cause of action falls within the jurisdiction
of a RTC and venue lies therein; and
2.] the aggregate amount claimed shall be the test of
jurisdiction where the claims in all the causes of action
are principally for the recovery of money. (Sec. 5, Rule 2 of
the 1997 Rules)
b. No. Joinder is only PERMISSIVE (only encouraged)
since the loans are separate loans which may be
governed by the different terms and conditions. The two
loans give rise to two separate causes of action and may
be the basis of two separate complaints.
TOTALITY UNDER BP 129
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Where there are several claims or causes of
action between the same or different parties,
embodied in the same complaint, the amount of
the demand shall be the totality of the claims in
all causes of action, irrespective of whether the
causes arose from the same or different
transaction.
NOTE: follow the totality rule under BP 129.
Substantive law prevails over procedural laws.
Jurisdiction; RTC; Counterclaim (2008)
No.II. Fe filed a suit for collection of
P387,000 against Ramon in the RTC of
Davao City. Aside from alleging payment as
a defense, Ramon in his answer set up
counterclaims for P100,000 as damages
and 30,000 as attorney’s fees as a result of
the baseless filing of the complaint, as well
as for P250,000 as the balance of the
purchase price of the 30 units of air
conditioners he sold to Fe. (a) Does the RTC
have jurisdiction over Ramon’s
counterclaim, and if so, does he have to pay
docket fees therefor? SUGGESTED
ANSWER:
Yes, applying the totality rule which
sums up the total amount of claims of
the parties, the RTC has jurisdiction
over the counter claims. Unlike in the
case of compulsory counterclaims, a
defendant who raises a permissive
counterclaim must first pay docket fees
before the court can validly acquire
jurisdiction. One compelling test of
compulsoriness is the logical relation
between the claim alleged in the
complaint and the counterclaim (Bayer
Phil, Inc. vs. C.A., G.R. No. 109269, 15
September 2000). Ramon does not have
to pay docket fees for his compulsory
counterclaims. Ramon is liable for
docket fees only on his permissive
counterclaim for the balance of the
purchase price of 30 units of air
conditioners in the sum of P250,000, as
it neither arises out of nor is it
connected with the transaction or
occurrence constituting Fe‟s claim (Sec.
19 [8] and 33 [1], B.P. 129; AO 04-94,
implementing R.A. 7691, approved
March 25, 1994, the jurisdictional;
amount for MTC Davao being P300,000
at this time; Alday vs. FGU Insurance
Corporation, G.R. No. 138822, 23
January 2001).
19
________________________________________________________________________________________________
(b) Suppose Ramon’s counterclaim for the
unpaid balance is P310,000, what will happen
to his counterclaims if the court dismisses the
complaint after holding a preliminary hearing
on Ramon’s affirmative defenses? SUGGESTED
ANSWER:
The dismissal of the complaint shall be
without prejudice to the prosecution in the
same or separate action of a counterclaim
pleaded in the answer (Sec. 3, Rule 17;
Pinga vs. Heirs of German Santiago, G.R.
No. 170354, June 30, 2006).
(c) Under the same premise as paragraph (b)
above, suppose that instead of alleging
payment as a defense in his answer, Ramon
filed a motion to dismiss on that ground, at the
same time setting up his counterclaims, and
the court grants his motion. What will happen
to his counterclaims? SUGGESTED ANSWER:
His counterclaims can continue to be
prosecuted or may be pursued separately at
his option (Sec. 6, Rule 16; Pinga vs. Heirs
of German Santiago, G.R. No. 170354, June
30, 2006).
SPLITTING CAUSE JOINDER OF
OF ACTION CAUSES OF ACTION
There is single cause Contemplates several
of action causes of action
PROHIBITED ENCOURAGED
Causes multiplicity of Minimizes multiplicity
suits and double of suits and
vexation on the part of inconvenience to
the defendant parties
Actions; Cause of Action; Joinder of Action (2005)
Perry is a resident of Manila, while Ricky and Marvin are
residents of Batangas City. They are the coowners of a
parcel of residential land located in Pasay City with an
assessed value of P100,000.00. Perry borrowed
P100,000.00 from Ricky which he promised to pay on or
before December 1, 2004. However, Perry failed to pay
his loan. Perry also rejected Ricky and Marvin's proposal
to partition the property. Ricky filed a complaint against
Perry and Marvin in the RTC of Pasay City for the
partition of the property. He also incorporated in his
complaint his action against Perry for the collection of
the latter's P100,000.00 loan, plus interests and attorney's
fees. State with reasons whether it was proper for Ricky
to join his causes of action in his complaint for partition
against Perry and Marvin in the RTC of Pasay City.
(5%)
SUGGESTED ANSWER:
It was not proper for Ricky to join his causes of action
against Perry in his complaint for partition against Perry
and Marvin. The causes of action may be between the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
same parties, Ricky and Perry, with respect to the
loan but not with respect to the partition which
includes Marvin. The joinder is between a partition
and a sum of money, but PARTITION is a special
civil action under Rule 69, which cannot be joined
with other causes of action. (See. 5[b], Rule 2,) Also, the
causes of action pertain to different venues and
jurisdictions. The case for a sum of money pertains
to the municipal court and cannot be filed in Pasay
City because the plaintiff is from Manila while Ricky
and Marvin are from Batangas City. (Sec. 5, Rule 2,)
Section 6. Misjoinder of causes of
action. — Misjoinder of causes of action is
not a ground for dismissal of an action. A
misjoined cause of action may, on motion
of a party or on the initiative of the court,
be severed and proceeded with
separately. (n)
RULE 3
Parties to Civil Actions
Section 1. Who may be parties;
plaintiff and defendant. — Only natural
or juridical persons, or entities authorized
by law may be parties in a civil action. The
term "plaintiff" may refer to the claiming
party, the counter-claimant, the cross-
claimant, or the third (fourth, etc.) —
party plaintiff. The term "defendant" may
refer to the original defending party, the
defendant in a counter-claim, the cross-
defendant, or the third (fourth, etc.) —
party defendant. (1a)
PARTY TO A CIVIL ACTION MUST BE:
1) A natural person;
2) Juridical person; or
3) An entity authorized by law:
a) Estate of deceased person;
b) Political party
c) Registered labor union ( sec. 243,
PD 442, Labor Code)
20
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LACK OF LEGAL LACK OF consideration of the merits of the case and is not
CAPACITY TO SUE PERSONALITY TO purely a procedural issue
SUE
Refers to the plaintiff’s PLAINTIFF – One having an interest in the
general disability to matter of the action or in obtaining relief
sue as on account of The plaintiff is not a demanded.
minority, insanity, real party in interest
incompetence, lack of DEFENDANT – One claiming an interest in the
juridical personality or controversy or the subject thereof adverse to the
any other general plaintiff. May also include:
disqualification of a 1) An unwilling plaintiff or one who should
party be joined as plaintiff but refuses to give
Ground to motion to Ground to a motion to his consent thereto;
dismiss on the ground dismiss on the ground 2) The original plaintiff becoming a
of lack of capacity to that the complaint, on defendant in the counter claim of the
sue the face thereof, states original defendant; and
 Exception is no cause of action 3) One necessary for the complete
where the determination or settlement of the
case involves controversy.
a matter of
transcendental Section 2. Parties in interest. — A real
importance, party in interest is the party who stands to
the court still be benefited or injured by the judgment in
hears the the suit, or the party entitled to the avails
case. Motion of the suit. Unless otherwise authorized by
to dismiss is law or these Rules, every action must be
denied. prosecuted or defended in the name of the
real party in interest. (2a)

My Notes:
REAL PARTY IN INTEREST
The party who stands to be benefited or injured by REAL PARTY IN PROPER PARTY
the judgment in the suit of the party entitled to the INTEREST
avails of the suit. Emanates from the Emanates from
Rules of Court constitutional law
CAPACITY TO SUE
Deals with a situation where a person who may In Oposa vs. Factoran 224SCRA 793, minors
have a cause of action is disqualified from bringing represented by their parents were real parties in
a suit under applicable law or is incompetent to interest to file an action to annul the timber
bring a suit or is under some legal disability that licenses issued by the forestry under the
would prevent him from maintaining an action following principles:
unless represented by a guardian ad litem. If the a) Inter- generational responsibility;
person is not disqualified from bringing a suit, then b) Inter- generational justice;
he has capacity to sue c) The right of the Filipino people to a
STANDING TO SUE (locus standi) balanced and healthful ecology;
This term is relevant in the realm of public law. In d) Minors represent themselves and the
certain instances, courts have allowed private future generations to come (Rule 2, sec.
parties to institute actions challenging the validity of 5, Rule on Environmental Cases).
governmental action for violation of private rights or
constitutional principles. In these cases, courts
apply the doctrine of legal standing by determining INDESPENSABLE NECESSARY
whether the party has a direct and personal interest PARTIES PARTIES
in the controversy and whether such party has
Must be joined under Should be joined
sustained or in imminent danger of sustaining an any condition, their whenever possible, the
injury as a result of the act complained of, a
presence being a sine action can proceed
standard which is distinct from the concept of real qua non for the even in their absence
party in interest. The application of the doctrine on
exercise of judicial
legal standing necessarily involves a preliminary power

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 21

________________________________________________________________________________________________
The case may be
Non- joinder of an determined in court but
indispensable party the judgment will not
makes the judgment resolve the entire
void controversy if a My Notes:
necessary party is not
joined
CLASSIFICATION OF PARTIES IN INTEREST
1. Indispensable Party
2. Necessary Party
3. Representative Party – acting in fiduciary
capacity such as:
a) Trustees
b) Guardians
c) Executors/Administrators
The beneficiary shall be included in
the title of the case and shall
be deemed to be the real party in
interest.
d) Agent
Agent not real party in interest;
action must be brought of defended
in the name of the principal.
Principal must always be disclosed.
However, agent, with a SPA may
sign pleadings including CAFS.
4. Pro forma party – those who are required to
be joined as co parties suits by or against
another (sec. 4).
5. Quasi Party – those in whose behalf a class
or representative suit is brought.
Section 3. Representatives as parties. —
Where the action is allowed to be prosecuted
and defended by a representative or
someone acting in a fiduciary capacity, the
beneficiary shall be included in the title of the
case and shall be deemed to be the real
property in interest. A representative may be
a trustee of an expert trust, a guardian, an
executor or administrator, or a party
authorized by law or these Rules. An agent
acting in his own name and for the benefit of
an undisclosed principal may sue or be sued
without joining the principal except when the
contract involves things belonging to the
principal. (3a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 4. Spouses as parties. —
Husband and wife shall sue or be sued
jointly, except as provided by law. (4a)
GR: spouses should sue and be sued jointly.
Exception;
1. Suit involves separate property of the
spouses;
2. Legal separation;
3. Liability arising from a criminal offense;
4. Action based on occupation or trade;
5. Quasi- delict.
Section 5. Minor or incompetent
persons. — A minor or a person alleged
to be incompetent, may sue or be sued
with the assistance of his father, mother,
guardian, or if he has none, a guardian ad
litem. (5a)
NOTE: Need not be judicially declared
incompetent, it being sufficient that his
incompetency is alleged in the pleadings.
Section 6. Permissive joinder of
parties. — All persons in whom or against
whom any right to relief in respect to or
arising out of the same transaction or
series of transactions is alleged to exist,
whether jointly, severally, or in the
alternative, may, except as otherwise
provided in these Rules, join as plaintiffs
or be joined as defendants in one
complaint, where any question of law or
fact common to all such plaintiffs or to all
such defendants may arise in the action;
but the court may make such orders as
may be just to prevent any plaintiff or
defendant from being embarrassed or put
to expense in connection with any
proceedings in which he may have no
interest. (6n)
MY NOTES: Permissive Joinder Requisites:
1. Same/Series of transaction;
2. Common question of fact and law;
3. Not prohibited by Rules.
SERIES OF TRANSACTIONS
It pertains to transactions connected with the
same subject matter of the suit.
Section 7. Compulsory joinder of
indispensable parties. — Parties in
interest without whom no final
determination can be had of an action
22
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shall be joined either as plaintiffs or
defendants. (7)
NOTE: Intervention was allowed during execution
stage was allowed when the intervenor was an
indispensable party.
In solidary obligations, complaint filed against one
debtor not defective for non-joinder of indispensable
parties. Other debtors are only necessary parties
(Quisumbing vs. CA, 189 SRA 325).
NOTE: the absence of an indispensable party
renders all actuations of the court null and void for
want of authority to act not only as to the absent but
also to those present.
Ex. Partition of the Estate.
Section 8. Necessary party. — A necessary
party is one who is not indispensable but who
ought to be joined as a party if complete
relief is to be accorded as to those already
parties, or for a complete determination or
settlement of the claim subject of the action.
(8a)
NOTES: He is an indispensable party in an action
against him, but a necessary party in a suit against
his co- debtor.
Ex. A Guarantor.
Section 9. Non-joinder of necessary
parties to be pleaded. — Whenever in any
pleading in which a claim is asserted a
necessary party is not joined, the pleader
shall set forth his name, if known, and shall
state why he is omitted. Should the court find
the reason for the omission unmeritorious, it
may order the inclusion of the omitted
necessary party if jurisdiction over his person
may be obtained.
The failure to comply with the order for his
inclusion, without justifiable cause, shall be
deemed a waiver of the claim against such
party in (10)
NOTE: Here, there is no dismissal for failure to
obey the order of the court but ONLY a waiver of
claim.
Bar Exam Question 2011
(71) Unexplained or unjustified non-joinder in
the Complaint of a necessary party despite
court order results in (A) the dismissal of the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Complaint. (B) suspension of proceedings.
(C) contempt of court.
(D) waiver of plaintiff‟s right against the
unpleaded necessary party.
Section 10. Unwilling co- plaintiff. – if
the consent of any party who should be
joined as plaintiff cannot be obtained, he
may be made a defendant and the reason
therefore shall be stated in the complaint.
Section 11. Misjoinder and non-joinder
of parties. — Neither misjoinder nor non-
joinder of parties is ground for dismissal
of an action. Parties may be dropped or
added by order of the court on motion of
any party or on its own initiative at any
stage the action and on such terms as are
just. Any claim against a misjoined party
may be severed and proceeded with
separately. (11a)
NOTES: Objections to defects in parties should
be made at the earliest opportunity, i.e. the
moment the defect become apparent, by a
MOTION TO STRIKE THE NAMES OF THE
PARTIES impleaded. Objections to misjoinder
cannot be made for the first time on appeal.
The non- joinder of an indispensable or a
necessary party is not in itself ipso pacto a
ground for the dismissal of the action. The court
should order the joinder of such party and non-
compliance of such order would be a ground for
the dismissal of the action. By motion or motu
proprio (Rule 17, sec. 3). But take note that
failure to implead a necessary party is only a
waiver, not a ground for dismissal (par. 2, sec. 9,
Rule 3).
Partition; Non-joinder (2009) No.XV.A. Florencio
sued Guillermo for partition of a property they
owned in common. Guillermo filed a motion to
dismiss the complaint because Florencio failed to
implead Herando and Inocencio, the other co-
owners of the property. As Judge, will you grant the
motion to dimiss? Explain. (3%) SUGGESTED
ANSWER: NO, because the non-joinder of parties is
not a ground for dismissal of action (Rule 3, Sec.
11). The motion to dismiss should be denied.
Section 12. Class suit. — When the
subject matter of the controversy is one of
common or general interest to many
persons so numerous that it is
23
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impracticable to join all as parties, a number
of them which the court finds to be
sufficiently numerous and representative as
to fully protect the interests of all concerned
may sue or defend for the benefit of all. Any
party in interest shall have the right to
intervene to protect his individual interest.
(12a)
Requisites of a class suit (clue words only)
a. Common or General interest in the subject
matter;
Note: There is no class suit when the
individual interests of numerous persons are
identifiable. There is no common or general
interest.
b. Numerous persons making it impractical to
bring together to court;
c. Sufficient number of persons representing
the class;
d. The representative sues or defends for the
benefit of all.
A taxpayer suit or a derivative suit by stockholders
is in the nature of a class suit although they are
subject to other requisites of the laws governing
them specially on the issue of locus standi.
A class suit will not lie when the numerous
occupants of a parcel of land are sued for ejectment
from the land because their interest is not common
to all (Sulo ng Bayan vs. Araneta, 72 SCRA 347).
Actions; Derivative Suit vs. Class Suit (2005)
Distinguish a derivative suit from a class suit.
SUGGESTED ANSWER:
A DERIVATIVE SUIT is a suit in equity that is filed by
a minority shareholder in behalf of a corporation to
redress wrongs committed against it, for which the
directors refuse to sue, the real party in interest being the
corporation itself (Lint v. Lim-Yu, G.IL No. 138343,
February 19, 2001), while a CLASS SUIT is filed regarding
a controversy of common or general interest in behalf of
many persons so numerous that it is impracticable to
join all as parties, a number which the court finds
sufficiently representative who may sue or defend for the
benefit of all. (Sec. 12, Rule 3) It is worth noting that a
derivative suit is a representative suit, just like a class
suit.
GR; Intervention is a matter of discretion.
Except in a class suit any party in interest may
intervene, as a matter of right, to protect his
individual interest.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
PERMISSIVE
CLASS SUIT JOINDER OF
PARTIES
There is one single There are multiple
cause of action causes of action
pertaining to numerous belonging to several
persons persons
Section 13. Alternative defendants. —
Where the plaintiff is uncertain against
who of several persons he is entitled to
relief, he may join any or all of them as
defendants in the alternative, although a
right to relief against one may be
inconsistent with a right of relief against
the other. (13a)
Bar Exam Question 2011
(94) 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? (A) File a tort action
against Cesar. (B) Await a judicial finding
regarding who was at fault. (C) Sue Ben for
breach of contract of carriage. (D) Sue both
Ben and Cesar as alternative defendants.
Section 14. Unknown identity or name
of defendant. — Whenever the identity
or name of a defendant is unknown, he
may be sued as the unknown owner heir
devisee, or by such other designation as
the case may require, when his identity or
true name is discovered, the pleading
must be amended accordingly. (14)
REQUISITES:
1. There is a defendant;
2. HIs identity is unknown;
3. Allegation in the complaint of the fact of
ignorance of the true name of the
defendant;
4. Use of identifying description;
5. Amendment when name is later on
discovered;
6. Defendant is the one principally sued
and not just a mere additional
defendant.
NOTE: Service of summons of an unknown
defendant may be made by publication (sec. 14,
24
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Rule 14). There is no need for conversion to quasi
in rem (Review Lecture).
Section 15. Entity without juridical
personality as defendant. — When two or
more persons not organized as an entity with
juridical personality enter into a transaction,
they may be sued under the name by which
they are generally or commonly known.
In the answer of such defendant, the name
and addresses of the persons composing said
entity must all be revealed. (15a)
REQUISITES
1. Two or more persons not organized as a
juridical entity;
2. Enter into a transaction;
3. Committing a wrong or delict against third
person in the course of such transaction.
Note that they can be sued under the common
name they are known BUT they cannot sue under
that name.
A complaint against a duly registered partnership
may be dismissed on the ground that it does not
state a cause of action where it is filed against the
officers of the partnership instead of the partnership
(Aguila vs. CA, 319 SCRA 345).
Service of summons is governed by Rule 14,
Section 8.
Service upon entity without juridical personality.
— When persons associated in an entity without
juridical personality are sued under the name by
which they are generally or commonly known, service
may be effected upon all the defendants by serving
upon any one of them, or upon the person in charge
of the office or place of business maintained in such
name. But such service shall not bind individually any
person whose connection with the entity has, upon
due notice, been severed before the action was
brought. (9a)
Section 16. Death of party; duty of
counsel. — Whenever a party to a pending
action dies, and the claim is not thereby
extinguished, it shall be the duty of his
counsel to inform the court within thirty (30)
days after such death of the fact thereof, and
to give the name and address of his legal
representative or representatives. Failure of
counsel to comply with his duty shall be a
ground for disciplinary action.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
The heirs of the deceased may be allowed
to be substituted for the deceased,
without requiring the appointment of an
executor or administrator and the court
may appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order said legal
representative or representatives to
appear and be substituted within a period
of thirty (30) days from notice.
If no legal representative is named by the
counsel for the deceased party, or if the
one so named shall fail to appear within
the specified period, the court may order
the opposing party, within a specified time
to procure the appointment of an executor
or administrator for the estate of the
deceased and the latter shall immediately
appear for and on behalf of the deceased.
The court charges in procuring such
appointment, if defrayed by the opposing
party, may be recovered as costs. (16a,
17a)
NOTE: The heirs cannot be compelled to
substitute the deceased. Otherwise, the court
may require the adverse party to procure the
appointment of an administrator of the property.
CLAIMS NOT EXTINGUISHED BY DEATH:
a. Recovery of real or personal property
against the estate of the deceased;
b. Enforcement of liens against such
properties;
c. Recovery for an injury to persons or
property by reason of a tort or delict
committed by the deceased.
The substitute defendant need not be
summoned. The order of the substitution
shall be served upon the parties substituted
to acquire jurisdiction over the substitute
party.
INSTANCES WHERE SUBSTITUTION OF
PARTIES IS PROPER:
1. Section 16. Death of party;
2. Section 17. Death or separation of a
party who is a public officer;
3. Section 18. Incompetency or incapacity;
4. Section 19. Transfer of interest.
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Failure of the court to issue an order of substitution
in spite of death of defendant did not affect the
validity of the proceedings where defendant’s heirs
actively participated in the proceedings after their
predecessor’s death (Fabiana C Vda de Salazar vs.
CA, Nov. 23, 1995).
Parties; Death of a Party; Effect (1998)
A filed a complaint for the recovery of ownership of
land against B who was represented by her counsel X.
In the course of the trial, B died. However, X failed to
notify the court of B's death. The court proceeded to
hear the case and rendered judgment against B. After
the Judgment became final, a writ of execution was
issued against C, who being B's sole heir, acquired the
property. If you were counsel of C, what course of
action would you take? [3%]
SUGGESTED ANSWER:
As counsel of C, I would move to set aside the writ of
execution and the judgment for lack of jurisdiction and
lack of due process in the same court because the judgment
is void. If X had notified the court of B's death, the court
would have ordered the substitution of the deceased by C,
the sole heir of B. (Sec. 16 of Rule 3) The court acquired no
jurisdiction over C upon whom the trial and the judgment
are not binding. (Ferreira us. Ibarra Vda. de Gonzales, 104
Phil. 143; Vda. De la Cruz vs. Court of Appeals, 88 SCRA 695;
Lawas us. Court of Appeals, 146 SCRA 173.) I could also file
an action to annul the judgment for lack of jurisdiction
because C, as the successor of B, was deprived of due
process and should have been heard before judgment.
(Rule 47)
ALTERNATIVE ANSWER:
While there are decisions of the Supreme Court which
hold that if the lawyer failed to notify the court of his
client's death, the court may proceed even without
substitution of heirs and the judgment is valid and
binding on the heirs of the deceased (Florendo vs.
Coloma, 129 SCRA 30.), as counsel of C, I will assail the
judgment and execution for lack of due process.
Parties; Death of a Party; Effect (1999)
What is the effect of the death of a party upon a
pending action? (2%)
SUGGESTED ANSWER:
1. When the claim in a pending action is purely
personal, the death of either of the parties extinguishes
the claim and the action is dismissed.
1 When the claim is not purely personal and is not
thereby extinguished, the party should be substituted by
his heirs or his executor or administrator. (Sec. 16, Rule 3) 2
If the action is for recovery of money arising from
contract, express or implied, and the defendant dies
before entry of final judgment in the court in which the
action was pending at the time of such death, it shall not
be dismissed but shall instead be allowed to continue
until entry of final judgment. A favorable judgment
obtained by the plaintiff shall
be enforced in the manner provided in the rules for
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
prosecuting claims against the estate of a deceased
person. (Sec. 20, Rule 3)
Parties; Death of a Party; Effect (1999)
When A (buyer) failed to pay the remaining balance
of the contract price after it became due and
demandable, B (seller) sued him for collection before
the RTC. After both parties submitted their
respective evidence, A perished in a plane accident.
Consequently, his heirs brought an action for the
settlement of his estate and moved for the dismissal
of the collection suit.
1 Will you grant the motion? Explain. (2%)
2 Will your answer be the same if A died while the
case is already on appeal to the Court of Appeals?
Explain. (2%)
3 In the same case, what is the effect if B died before
the RTC has rendered judgment? (2%)
SUGGESTED ANSWER:
1 No, because the action will not be dismissed but
shall instead be allowed to continue until entry of
final judgment. (Id.)
2 No. If A died while the case was already on appeal
in the Court of Appeals, the case will continue
because there is no entry yet of final judgment. (Id.)
3 The effect is the same. The action will not be
dismissed but will be allowed to continue until entry
of final judgment. (Id.)
Section 17. Death or separation of a
party who is a public officer. — When a
public officer is a party in an action in his
official capacity and during its pendency
dies, resigns, or otherwise ceases to hold
office, the action may be continued and
maintained by or against his successor if,
within thirty (30) days after the successor
takes office or such time as may be
granted by the court, it is satisfactorily
shown to the court by any party that there
is a substantial need for continuing or
maintaining it and that the successor
adopts or continues or threatens to adopt
or continue to adopt or continue the action
of his predecessor. Before a substitution is
made, the party or officer to be affected,
unless expressly assenting thereto, shall
be given reasonable notice of the
application therefore and accorded an
opportunity to be heard. (18a)
REQUISITES:
1. public officer is a party in an action in
his official capacity;
2. during its pendency dies, resigns, or
otherwise ceases to hold office;
26
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3. within thirty (30) days after the successor
takes office or such time as may be granted
by the court, it is satisfactorily shown to the
court by any party that there is a
substantial need for continuing or
maintaining it;
4. that the successor adopts or continues
or threatens to adopt or continue to
adopt or continue the action of his
predecessor;
5. The party or officer to be affected, unless
expressly assenting thereto, shall be given
reasonable notice of the application
therefore and accorded an opportunity to
be heard.
Section 18. Incompetency or incapacity.
— If a party becomes incompetent or
incapacitated, the court, upon motion with
notice, may allow the action to be continued
by or against the incompetent or
incapacitated person assisted by his legal
guardian or guardian ad litem. (19a)
Section 19. Transfer of interest. — In case
of any transfer of interest, the action may be
continued by or against the original party,
unless the court upon motion directs the
person to whom the interest is transferred to
be substituted in the action or joined with the
original party. (20)
 NOTES: The transfer of interest that is referred
to in this section is a transfer that occurs during
the pendency of the case. The transferor would
no longer be a real party in interest if the
transfer is made before the commencement of
the suit.
 The rule does not consider the transferee an
indispensable party. Action may proceed
without the need to implead him. Except: when
the joinder is ordered by the court.
 The case will be dismissed if the interest of the
plaintiff is transferred to the defendant
(MERGER), unless there are several plaintiffs,
in which case, the remaining plaintiffs can
proceed with their own cause of action.
 The transferee pendente lite, although not
joined in the case involving his predecessor in
interest, is bound by the judgment against the
latter. He has no right to intervene in the case
against his predecessor. The remedy is to file a
motion praying that he be substituted as party-
defendant or joined with the predecessor as
parties defendant (Santiago Land Development
Corp. vs. CA, L-106194, Jan. 28, 1997)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 20. Action and contractual
money claims. — When the action is for
recovery of money arising from contract,
express or implied, and the defendant dies
before entry of final judgment in the court
in which the action was pending at the
time of such death, it shall not be
dismissed but shall instead be allowed to
continue until entry of final judgment. A
favorable judgment obtained by the
plaintiff therein shall be enforced in the
manner especially provided in these Rules
for prosecuting claims against the estate
of a deceased person. (21a)
NOTE: The judgment will not or cannot be
enforced by writ of execution but should be filed
as a money claim under Rule 86 of the RC
Section 21. Indigent party. — A party
may be authorized to litigate his action,
claim or defense as an indigent if the
court, upon an ex parte application and
hearing, is satisfied that the party is one
who has no money or property sufficient
and available for food, shelter and basic
necessities for himself and his family.
Such authority shall include an exemption
from payment of docket and other lawful
fees, and of transcripts of stenographic
notes which the court may order to be
furnished him. The amount of the docket
and other lawful fees which the indigent
was exempted from paying shall be a lien
on any judgment rendered in the case
favorable to the indigent, unless the court
otherwise provides.
Any adverse party may contest the grant
of such authority at any time before
judgment is rendered by the trial court. If
the court should determine after hearing
that the party declared as an indigent is in
fact a person with sufficient income or
property, the proper docket and other
lawful fees shall be assessed and collected
by the clerk of court. If payment is not
made within the time fixed by the court,
execution shall issue for the payment
thereof, without prejudice to such other
sanctions as the court may impose. (22a)
Section 22. Notice to the Solicitor
General. — In any action involving the
27
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validity of any treaty, law, ordinance,
executive order, presidential decree, rules or
regulations, the court, in its discretion, may
require the appearance of the Solicitor
General who may be heard in person or a
representative duly designated by him. (23a)
NOTE: Rule 63, Section 3. Notice on Solicitor General. —
In any action which involves the validity of a statute,
executive order or regulation, or any other governmental
regulation, the Solicitor General shall be notified by the
party assailing the same and shall be entitled to be heard
upon such question.
NOTE: Rule 39, sec. 6[p3]:When the writ of execution is
issued in favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond shall not
be required, and in case the sheriff or levying officer is
sued for damages as a result of the levy, he shall be
represented by the Solicitor General and if held liable
therefor, the actual damages adjudged by the court shall
be paid by the National Treasurer out of such funds as
may be appropriated for the purpose. (17a)
Jurisdiction; Office of the Solicitor General (2006)
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 (VRIS) 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 P6 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 P1 billion. He
announced to the public that the VRIS project has been
set aside. Two Commisioners 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 (OSG),
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.
May the OSG represent Chairman Go before the RTC
notwithstanding that his position is contrary to that of
the majority? (5%)
SUGGESTED ANSWER:
Yes, the OSG may represent the COMELEC Chairman
before the RTC notwithstanding that his position is
contrary to that of a majority of the Commission members
in the COMELEC because the OSG is an independent
office; it's hands are not shackled to the cause of its client
agency. The primordial concern of the OSG is to see to it
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
that the best interest of the government is upheld
(COMELEC v. Quyano-Padilla, September 18, 2002).
RULE 4
Venue of Actions
NOTE: VENUE is the place of trial or the
geographic location in which an action or
proceeding should be brought.
Remember that venue is jurisdictional in criminal
cases but NOT in civil cases.
Section 1. Venue of real actions. —
Actions affecting title to or possession of
real property, or interest therein, shall be
commenced and tried in the proper court
which has jurisdiction over the area
wherein the real property involved, or a
portion thereof, is situated.
Forcible entry and detainer actions shall
be commenced and tried in the municipal
trial court of the municipality or city
wherein the real property involved, or a
portion thereof, is situated. (1[a], 2[a]a)
NOTES:
 If property is located at the boundaries of
two places; file it at any of the two places;
 If the case involves two properties located at
two different places:
1. If the properties is subject of the same
transaction, file it in any of the places;
2. If they are subject of two distinct
transactions, separate actions should be
filed unless properly joined.
Section 2. Venue of personal actions.
— All other actions may be commenced
and tried where the plaintiff or any of the
principal plaintiffs resides, or where the
defendant or any of the principal
defendants resides, or in the case of a
non-resident defendant where he may be
found, at the election of the plaintiff.
(2[b]a)
RESIDENCE
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It should be viewed or understood in its popular
sense, meaning the personal, actual, or physical
habitation of the person, actual residence or place
of abode.
Note: where plaintiff owns a sole proprietorship,
venue for personal actions (a collection case) is
residence of either party; place where the business
is immaterial.
Venue may be waived by:
1. Failure to object via motion to dismiss;
2. Seeking affirmative relief in the court where
the case is filed;
3. Voluntary submission to the court where the
case is filed;
4. Laches.
Venue; Improper Venue; Compulsory Counterclaim (1998)
A, a resident of Lingayen, Pangasinan sued X, a resident
of San Fernando La Union in the RTC (RTC) of
Quezon City for the collection of a debt of P1 million. X
did not file a motion to dismiss for improper venue but
filed his answer raising therein improper venue as an
affirmative defense. He also filed a counterclaim for
P80,000 against A for attorney's fees and expenses for
litigation. X moved for a preliminary hearing on said
affirmative defense. For his part, A filed a motion to
dismiss the counterclaim for lack of jurisdiction.
1 Rule on the affirmative defense of improper venue.
[3%]
2 Rule on the motion to dismiss the counterclaim on
the ground of lack of jurisdiction over the subject
matter. [2%]
SUGGESTED ANSWER:
1. There is improper venue. The case for a sum of
money, which was filed in Quezon City, is a personal
action. It must be filed in the residence of either the
plaintiff, which is in Pangasinan, or of the defendant,
which is in San Fernando, La Union. (Sec. 2 of Rule 4) The
fact that it was not raised in a motion to dismiss does
not matter because the rule that if improper venue is not
raised in a motion to dismiss it is deemed waived was
removed from the 1997 Rules of Civil Procedure. The
new Rules provide that if no motion to dismiss has been
filed, any of the grounds for dismissal may be pleaded as
an affirmative defense in the answer. (Sec. 6 of Rule 16.)
2. The motion to dismiss on the ground of lack of
jurisdiction over the subject matter should be denied.
The counterclaim for attorney's fees and expenses of
litigation is a compulsory counterclaim because it
necessarily arose out of and is connected with the
complaint. In an original action before the RTC, the
counterclaim may be considered compulsory regardless
of the amount. (Sec. 7 of Rule 6)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Venue; Personal Actions (1997)
X, a resident of Angeles City, borrowed P300,000.00
from A, a resident of Pasay City. In the loan
agreement,
the parties stipulated that "the parties agree to sue
and be sued in the City of Manila." a) In case of
nonpayment of the loan, can A file his complaint to
collect the loan from X in Angeles City?
b) Suppose the parties did not stipulate in the loan
agreement as to the venue, where can A file his
complaint against X?
c) Suppose the parties stipulated in their loan
agreement that "venue for all suits arising from this
contract shall be the courts in Quezon City," can A
file his complaint against X in Pasay City?
SUGGESTED ANSWER:
(a) Yes, because the stipulation in the loan agreement
that "the parties agree to sue and be sued in the City
of
Manila" does not make Manila the "exclusive venue
thereof." (Sec, 4 of Rule 4, as amended by Circular No. 13 95: Sec.
4 of new Rule 4) Hence, A can file his complaint in
Angeles City where he resides, (Sec, 2 of Rule 4).
(b) If the parties did not stipulate on the venue, A
can file his complaint either in Angeles City where
he resides or in Pasay City where X resides, (Id).
(c) Yes, because the wording of the stipulation does
not
make Quezon City the exclusive venue. (Philbanking
v. Tensuan. 230 SCRA 413; Unimasters Conglomeration,
Inc. v. CA. CR-119657, Feb. 7, 1997)
ALTERNATIVE ANSWER:
(c) No. If the parties stipulated that the venue "shall
be
in the courts in Quezon City", A cannot file his
complaint in Pasay City because the use of the word
"shall" makes Quezon City the exclusive venue
thereof.
(Hoechst Philippines vs. Torres, 83 SCRA 297).
Section 3. Venue of actions against
nonresidents. — If any of the defendants
does not reside and is not found in the
Philippines, and the action affects the
personal status of the plaintiff, or any
property of said defendant located in the
Philippines, the action may be commenced
and tried in the court of the place where
the plaintiff resides, or where the property
or any portion thereof is situated or found.
(2[c]a)
NOTE: [a special rule for non-residents]
Section 4. When Rule not applicable. —
This Rule shall not apply.
29
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(a) In those cases where a specific rule or
law provides otherwise; or
(b) Where the parties have validly agreed in
writing before the filing of the action on the
exclusive venue thereof. (3a, 5a)
Bar Exam Question 2012
64. The mortgage contract between X, who
resides in Manila, and Y, who resides in Naga,
covering land in Quezon provides that any suit
arising from the agreement may be filed
"nowhere else but in a Makati court". Y must
thus sue only in:
a. Makati;
b. Makati and/or Naga;
c. Quezon and/or Makati;
d. Naga.
SUGGESTED ANSWER: (a), The rules on
venue of actions are merely procedural in
character and can be a subject of
stipulation. Where the parties have validly
agreed in writing before the filing of the
action on the exclusive venue of the action,
the suit cannot be filed anywhere other
than the stipulated venue. (Rule 4, Sec. 4,
Rules of Court). Since the stipulation
between X and Y in the mortgage contract
is mandatory and restrictive in character,
the venue of the action is only in Makati
City.
ALTERNATIVE ANSWER:
None of the above. The venue of the action
should only be Quezon City, the place
where the real property is located. The rules
on venue do not apply to actions involving
a mortgage. In Ochoa vs. Chinabank, G.R.
No. 192877, March 23, 2011, the Supreme
Court held that the exclusive venue of
Makati City, as stipulated by the parties
and sanctioned by Section 4, Rule 4 of the
Rules of Court, cannot be made to apply to
the Petition for Extrajudicial Foreclosure
filed by respondent bank because the
provisions of Rule 4 pertain to venue of
actions, which an extrajudicial foreclosure
is not. There is no reason to depart from
the doctrinal pronouncement of the
Supreme Court.
Bar Exam Question 2011
(93) Which of the following stipulations in a
contract will supersede the venue for actions
that the rules of civil procedure fix? (A) In case
of litigation arising from this contract of sale,
the preferred venue shall be in the proper
courts of Makati.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(B) Should the real owner succeed in
recovering his stolen car from buyer X, the
latter shall have recourse under this
contract to seller Y exclusively before the
proper Cebu City court.
(C) Venue in case of dispute between the
parties to this contract shall solely be in
the proper courts of Quezon City. (D) Any
dispute arising from this contract of sale
may be filed in Makati or Quezon City.
The rules on venue does not apply in cases:
1. Specific rule or law applies;
2. Valid agreement between the parties
providing for an exclusive venue.
Requisites:
1) Valid written agreement;
2) Executed prior to the filing of the action;
3) Exclusive nature of venue.
 In the absence of qualifying or restrictive
words, venue stipulation is merely
permissive meaning that the stipulated
venue is merely an addition to the venues
provided by the Rules (Polytrade Corp. vs.
Blanco 30 SCRA 187)
 Examples of qualifying words: only, solely,
exclusively in this court.
 Note, however, that when the stipulation on
venue in a passenger ticket of a vessel
would be contrary to public policy of making
the courts accessible to all who may need of
their service, the stipulation would be void
or, at least, unenforceable.
NOTE: The Supreme Court has the power and
authority to order a change of venue to prevent
miscarriage of justice.
Note that the court may not motu proprio dismiss
the cause on the ground that venue is
improperly laid (Dacoycoy vs. IAC, 195 SCRA
841). The exception is in sec. 4 of The Revised
Rules of Summary Procedure.
RULE 5
Uniform Procedure In Trial Courts
30
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Section 1. Uniform procedure. — The

If plaintiff fails to appear in the
procedure in the Municipal Trial Courts shall Answer to preliminary conference,
be the same as in the Regional Trial Courts, counterclaim and complaint may be dismissed.
except (a) where a particular provision cross-claim w/in 10 Defendant entitled to decision
expressly or impliedly applies only to either days based on his counterclaim. All
of said courts, or (b) in civil cases governed cross-claims dismissed
by the Rule on Summary Procedure. (n)
Preliminary conference
Section 2. Meaning of terms. — The term w/in 30 days after the
"Municipal Trial Courts" as used in these last answer is filed
If sole defendant fails to
Rules shall include Metropolitan Trial Courts, appear, plaintiff is
Municipal Trial Courts in Cities, Municipal Trial entitled to judgment
Courts, and Municipal Circuit Trial Courts. (1a based on complaint and
W/in 5 days after
what is proved therein
conference, court
issues record of
preliminary conference

Within 10 days from

receipt of order,
submission of parties
of affidavits and
position papers

Rendition of judgment
w/in 30 days from last
affidavit or w/in 5days
from last clarificatory
paper

PROHIBITED PLEADINGS/MOTIONS UNDER

THE RULE ON SUMMARY PROCEDURE
RULES OF SUMMARY PROCEDURE IN CIVIL
CASES 1. Motion to dismiss the complaint or to quash
the complaint or information except on lack
Filing of verified Complaint of jurisdiction over the subject matter or
with the MTC failure to comply with prior barangay
conciliation;
2. Motion for Bill of Particulars;
3. Motion for new trial or for reconsideration of
judgment or for re opening of trial;
Court may summon the Court may dismiss the
defendant case outright
Note that MR for interlocutory order is
not prohibited.

W/in 10 days from 4. Petition for relief from judgment;

receipt of summons, If defendant fails to answer in 5. Motion for extension of time to file pleadings,
defendant answers, 10 days, the court, the court or affidavits or any other paper;
incorporating on motion of the plaintiff may 6. Memoranda;
compulsory render judgment based on the 7. Petition for CPM against any interlocutory
counterclaim, or facts alleged in the complaint, order of the court;
cross-claim, and without prejudice to Rule 9 sec. 8. Motion to declare the defendant in default;
serves a copy on 3 (c)
9. Dilatory motion for postponement;
plaintiff
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 31
________________________________________________________________________________________________
10. Reply;
11. Third party complaints;
12. Interventions.
The filing of a prohibited pleading will not toll the
running of the period to file an answer or to appeal.
Bar Exam Question 2011
(100) In a civil action involving three separate
causes of action, the court rendered summary
judgment on the first two causes of action and
tried the third. After the period to appeal from
the summary judgment expired, the court
issued a writ of execution to enforce the same.
Is the writ of execution proper? (A) No, being
partial, the summary judgment is interlocutory
and any appeal from it still has to reckon with
the final judgment. (B) Yes since, assuming the
judgment was not appealable, the defendant
should have questioned it by special civil
action of certiorari. (C) No, since the rules do
not allow a partial summary judgment. (D) No,
since special reason is required for execution
pending rendition of a final decision in the
case.
Prohibited Pleadings (2004)
Charged with the offense of slight physical injuries under
an information duly filed with the MeTC in Manila
which in the meantime had duly issued an order
declaring that the case shall be governed by the Revised
Rule on Summary Procedure, the accused filed with said
court a motion to quash on the sole ground that the
officer who filed the information had no authority to do
so. The MeTC denied the motion on the ground that it
is a prohibited motion under the said Rule. The accused
thereupon filed with the RTC in Manila a petition for
certiorari in sum assailing and seeking the nullification of
the MeTC's denial of his motion to quash. The RTC in
due time issued an order denying due course to the
certiorari petition on the ground that it is not allowed by
the said Rule. The accused forthwith filed with said RTC
a motion for reconsideration of its said order. The RTC
in time denied said motion for reconsideration on the
ground that the same is also a prohibited motion under
the said Rule. Were the RTC's orders denying due course
to the petition as well as denying the motion for
reconsideration correct? Reason. (5%)
SUGGESTED ANSWER:
The RTC's orders denying due course to the petition for
certiorari as well as denying the motion for reconsideration
are both not correct. The petition for certiorari is a
prohibited pleading under Section 19(g) of the Revised Rule
on Summary Procedure and the motion for
reconsideration, while it is not prohibited motion (Lucas v.
Fabros, AM No. MTJ-99-1226, January 31, 2000, citing Joven v.
Court of Appeals, 212 SCRA 700, 707-708 (1992), should be
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
denied because the petition for certiorari is a
prohibited pleading.
NOTE: Although filing a motion to dismiss is a
prohibited pleading, its filing after the answer
had been submitted does not constitute a
pleading prohibited by the summary rules. What
rules proscribe is a motion to dismiss that would
stop the running of the period to file an answer
and cause undue delay (Heirs of Olivas vs. Flor,
161 SCRA 393).
Note: While a motion to declare a defendant in
default is prohibited by the rules on summary
procedure, the plaintiff may nevertheless file a
motion to render judgment as may be warranted
when the defendant fails to answer.
The issuance of the preliminary conference
order is important part of summary procedure
because its receipt by the parties that begins the
10-day period to submit the affidavits and other
evidence.
TRIAL PROCEDURE OF CIVIL CASES (Sum-
Pro)
No testimonial evidence is required nor cross-
examination of witnesses allowed. All that is that
within 10 days from receipt of the pre-trial order,
they shall submit:
1) Affidavits of their witnesses;
2) Other evidence on the factual issues set
forth in the pre-trial order, together with
their position papers, setting forth the
law and the facts relied upon by them.
Judgments of inferior courts in cases
governed by sum-pro are appealable to the
RTC.
The decisions of the RTC, on appeal, in civil
cases are immediately executory.
KATARUNGANG PAMBARANGAY LAW
(KPL)
Title One, Book III, RA 7160
No complaint, petition, action, or proceeding
involving any matter within the authority of
the Lupon shall be filed or instituted directly
in court or any other government office for
adjudication UNLESS:
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1. There has been a CONFRONTATION
BETWEEN THE PARTIES before the
Lupon Chairman or the Pangkat; and
2. That no conciliation or settlement has
been reached OR unless the settlement
has been repudiated the parties thereto.
KPL covers initiatory pleadings, as a rule, like:
a) Complaint
b) Crossclaim
c) Third/fourth, etc. party complaint
d) Intervention
e) Counterclaim
CASES NOT COVERED BY THE KPL
(Substantive exceptions):
1. Where one party is the GOVERNMENT or
any subdivision or instrumentality thereof;
2. Where one party is a PUBLIC OFFICER or
employee, and the dispute relates to the
performance of his official functions;
3. Offenses punishable by imprisonment
exceeding 1 year or a fine exceeding 5,000
pesos;
4. Offenses where there is no private offended
party;
5. Where the dispute involves real properties
located in different cities or municipalities,
UNLESS the parties thereto agree to submit
their differences to amicable settlement
upon an appropriate Lupon;
6. Disputes involving parties who actually
reside in barangays of different cities or
municipalities,
EXCEPT;
a) Where such barangay units adjoin each
other; and
b) The parties thereto agree to submit their
differences to amicable settlement by
an appropriate lupon.
7. Such other classes of disputes which the
PRESIDENT may determine in the interest
of justice;
8. Where one of the parties is a juridical entity.
The court at any time of the trial, motu proprio, refer
the case concerned, to the lupon for amicable
settlement non-criminal cases not falling within the
authority of the latter.
Bar Exam Question 2012
28. X and Y, both residents of Bgy. II,
Sampaloc, Manila entered into a P 100,000
loan agreement. Because Y defaulted, X sued Y
for collection and the complainant prayed for
issuance of preliminary attachment. Y moved
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
to dismiss the complaint because there was
no Barangay conciliation. The court should
therefore:
a. dismiss X's complaint for prematurity.
b. dismiss X's complaint for lack of cause of
action.
c. deny Y's motion because it is exempt
from Barangay conciliation.
d. deny Y's motion because of the amount
of the loan.
SUGGESTED ANSWER: (c), As a general
rule, no complaint, petition, action or
proceeding involving any matter within
the authority of the Lupon shall be filed
or instituted in court or any other
government office for adjudication
unless there has been a confrontation of
the parties before the Lupon Chairman
or the Pangkat and no conciliation or
settlement has been reached as certified
by the Lupon Secretary or the Pangkat
Secretary, attested by the Lupon or
Pangkat Chairman, or unless the
Settlement has been repudiated.
However, the parties may go directly to
court in actions coupled with provisional
remedies such as preliminary injunction,
attachment, delivery of personal
property and support pendent lite.
(Sec.6, P.D. 1508, Katarungang
Pambarangay Law). Since X‟s complaint
against Y involves collection of sum of
money with prayer for issuance of
preliminary attachment, there is no need
for prior barangay conciliation, and
therefore the Court should deny Y‟s
Motion to Dismiss.
Bar Exam Question 2012
35. Under the Katarungan Pambarangay
rules, the execution of an amicable
settlement or arbitration award is started
by filing a motion for execution with the
Punong Barangay, who may issue a notice
of execution in the name of the Lupon
Tagapamayapa. Execution itself, however,
will be done by:
a. a court-appointed sheriff.
b. any Barangay Kagawad.
c. Punong Barangay.
d. any member of the Pangkat ng
Tagapagsundo.
SUGGESTED ANSWER: (c), The Punong
Barangay shall issue a notice of
execution in the name of the Lupong
Taga-pamayapa and that if the execution
be for the payment of money, the party
obliged is allowed a period of five (5)
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days to make a voluntary payment, failing
which, the Punong Barangay shall take
possession of sufficient personal property
located in the barangay. (Sections 5 and 6,
Article VII, Implementing Rules and
Regulations of the Katarungang
Pambarangay Rule).
Katarungang Pambarangay; Parties (2009)
No.XV.B. Mariano, through his attorney-in-
fact, Marcos filed with the RTC of Baguio City a
complaint for annulment of sale against Henry.
Marcos and Henry both reside in Asin Road,
Baguio City, while Mariano resides in Davao
City. Henry filed a motion to dismiss the
complaint on the ground of prematurity for
failure to comply with the mandatory barangay
conciliation. Resolve the motion with reasons.
(3%) SUGGESTED ANSWER: The motion to
dismiss should be denied because the
parties in interest, Mariano and Henry, do
not reside in the same city/municipality, or
is the property subject of the controversy
situated therein. The required
conciliation/mediation before the proper
Barangay as mandated by the Local
Government Code governs only when the
parties to the dispute reside in the same
city or municipality, and if involving real
property, as in this case, the property must
be situated also in the same city or
municipality.
Katarungang Pambarangay; Lupon; Extent of Authority;
(2001) An amicable settlement was signed before a
Lupon Tagapamayapa on January 3, 2001. On July 6,
2001, the prevailing party asked the Lupon to execute
the amicable settlement because of the non-compliance
by the other party of the terms of the agreement. The
Lupon concerned refused to execute the
settlement/agreement.
a) Is the Lupon correct in refusing to execute the
settlement/agreement? (3%)
b) What should be the course of action of the
prevailing party in such a case? (2%)
SUGGESTED ANSWER:
a) Yes, the Lupon is correct in refusing to execute the
settlement/agreement because the execution sought is
already beyond the period of six months from the date
of the settlement within which the Lupon is authorized
to execute. (Sec. 417, Local Government Code of 1991)
b) After the six-month period, the prevailing party
should move to execute the settlement/agreement in
the appropriate city or municipal trial court. (Id.)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
While the dispute is under mediation,
conciliation, or arbitration, the prescriptive
period for offenses and cause of action under
existing laws shall be interrupted upon filing of
the complaint with the Punong Barangay. Such
interruption shall not exceed 60 days from the
time of filing of the complaint with the Punong
Barangay.
Katarungang Pambarangay; Objective (1999)
What is the object of the Katarungang Pambarangay
Law? (2%)
SUGGESTED ANSWER:
The object of the Katarungang Pambarangay Law is
to effect an amicable settlement of disputes among
family and barangay members at the barangay level
without judicial recourse and consequently help
relieve the courts of docket congestion. (Preamble of
P.D. No. 1508, the former and the first Katarungang Pambarangay
Law.)
PARTIES MAY GO DIRECTLY TO COURT IN
THE FOLLOWING INSTANCES
(Procedural Exceptions):
1. Where the accused is under CUSTODY or
DETENTION;
2. Where the person is otherwise deprived of
personal liberty calling for HABEAS
CORPUS proceeding;
3. Where the action is coupled with
PROVISIONAL REMEDIES such as
Preliminary Injunction, attachment, delivery
of personal property (Repliven), and Support
pendente lite;
4. Where the action may otherwise be
BARRED by STATUTE OF LIMITATIONS;
5. LABOR Disputes (Montoya vs. Escayo, 171
SCRA 442);
6. Any class of disputes which the President
may determine in the interest of justice or
upon the recommendation of the Secretary
of Justice;
7. CARL disputes;
8. Disputes involving the TRADITIONS of
indigenous cultural communities;
9. Actions to ANNUL JUDGMENT upon a
compromise (Sanches vs. Tupaz, 158
SCRA 459)
10. KPL does not apply to special
proceedings
The parties may, at any stage of the
proceedings, agree in writing to have the matter
in dispute decided upon by arbitration by either
the Punong Barangay or the Pangkat. In such
case, arbitrational hearings shall follow order of
adjudicative trials.
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The settlement and arbitration agreement may be

set aside on the ground that the consent is vitiated
by fraud, violence, or intimidation. Such repudiation
shall be sufficient basis for the issuance of the
certification for filing a complaint in court or any
government office for adjudication.
Failure to comply with Barangay conciliation is NOT
jurisdictional. It must be raised at the earliest
opportunity. That is in a motion to dismiss or a
motion to quash..

RULES ON VENUE UNDER THE KPL

1. Disputes between residents of the same
barangay shall be brought for settlement
before the Lupon of said barangay;
2. Residents of different barangays within the
same city or municipality- in the barangay
where the respondent resides or any of the
respondents reside, at the election of the
complainant;
3. Disputes involving real property or any
interest therein- where the real property is
located or larger portion thereof is situated;
4. Disputes arising at the workplace where the
contending parties are employed – the
barangay where such workplace is located;
5. Where the contending parties are enrolled
for study in an institution- the barangay
where such institution is located.

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 35

________________________________________________________________________________________________

KATARUNGANG PAMBARANGAY PROCEDURE

Filing of the complaint
with the Punong
Barangay

W/in the next working day At any time during the

proceedings

Issuance of Parties agree to submit

summons to the their dispute to
parties and the arbitration
witnesses

Mediation (hearing) Arbitration proceedings

Failure of Settlement
mediation
efforts
Award to be
Repudiation of
made after the
arbitration
lapse of the
agreement
Execution w/in 6 period to
Constitution of the within 5 days
months from repudiate and
pangkat from date of
date w/in 10 days
agreement
thereafter

Pangkat convenes not Pangkat must arrive at a settlement w/in 15

later than 3 days from its days from the day it convenes.
constitution and Execution w/in 6
summons the parties Cannot be extended except for clearly months from the
meritorious ground for not exceeding 15 date of the
days. award

Conciliation
(HEARING)
Repudiation of
NOTE: Repudiation shall be allowed
settlement
within 10 days only on ground of vitiation of consent,
Settlement from date fraud, violence or intimidation.
thereof

ISSUANCE OF Failure of conciliation at the pangkat

Execution w/in 6 CERTIFICATION FOR FILING level or arbitration hearings shall also
months from OF A COMPLAINT IN lead to the issuance of the certificate
date of COURT to file action.
settlement

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 36

________________________________________________________________________________________________
the Rules
Procedure in Regional Trial Courts
NOTE: HOWEVER, there are motions that
Conciliation Proceedings; Katarungang Pambarangay vs. actually seek judgment like a motion for
Pre-Trial Conference (1999) judgment on the pleadings (Rule 34) and motion
What is the difference, if any, between the conciliation for summary judgment (Rule 35)
proceedings under the Katarungang Pambarangay Law
and the negotiations for an amicable settlement during Pleadings; Motion (2007) No.II. (c) A motion is a
the pre-trial conference under the Rules of Court? (2%) pleading. (2%) SUGGESTED ANSWER: False. A
SUGGESTED ANSWER: motion is not a pleading but a mere application for
The difference between the conciliation proceedings relief other than by a pleading (Rule 15, Sec. 1,
under the Katarungang Pambarangay Law and the Rules of Court).
negotiations for an amicable settlement during the
pretrial
9 Kinds of Pleadings allowed by Rules:
conference under the Rules of Court is that in the
former, lawyers are prohibited from appearing for the
parties. Parties must appear in person only except 1. Complaint;
minors or incompetents who may be assisted by their 2. Counterclaim;
next of kin who are not lawyers. (Formerly Sec. 9, 3. Cross-claim;
P.D. No. 1508; Sec. 415, Local Government Code of 1991, R.A.7160.) 4. Third-party complaint;
No such prohibition exists in the pre-trial negotiations 5. Complaint-in- Intervention;
under the Rules of Court. 6. Answer;
7. Reply;
8. Counter-counterclaim;
9. Counter-cross-claim.

RULE 6 Section 2. Pleadings allowed. — The

claims of a party are asserted in a
Kinds of Pleadings complaint, counterclaim, cross-claim, third
(fourth, etc.)-party complaint, or
Section 1. Pleadings defined. — Pleadings complaint-in-intervention.
are the written statements of the respective
claims and defenses of the parties submitted The defenses of a party are alleged in the
to the court for appropriate judgment. (1a) answer to the pleading, asserting a claim
against him.
NOTE: A motion to dismiss is not a pleading.
An answer may be responded to by a
A facsimile is not a genuine or authentic pleading. It reply. (n)
is at best, an exact copy preserving all the marks of
an original. Without the original, there is no way of
Section 3. Complaint. — The complaint is
determining on its face whether the facsimile
the pleading alleging the plaintiff's cause
pleading is genuine and authentic and was signed
by the parties and his counsel. It may, in fact be or causes of action. The names and
sham pleading (Torres vs. PAGCOR, GR No. residences of the plaintiff and defendant
193531, Dec. 14, 2011). must be stated in the complaint. (3a)

PLEADING MOTION NOTE: It should contain a concise statement of

To submit a claim or
defense for appropriate
judgment
May be initiatory
Always filed before
judgment
Only 9 kinds of
pleadings allowed by
To apply for an order
not included in the
judgment
Cannot be initiatory as
they are always made
in a case already filed
in court
may be filed even after
judgment
Many kinds of motion
are allowed
the ultimate facts constituting the plaintiff’s
cause or causes of actions, not evidentiary facts
or legal conclusion.
ULTIMATE FACTS refers to the essential facts
constituting the plaintiff’s cause of action.
A fact is essential if it cannot be stricken out
without leaving the statement of the cause of
action insufficient.

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 37

________________________________________________________________________________________________
TEST OF SUFFICIENCY OF THE FACTS
ALLEGED IN THE COMPLAINT: Determine
whether upon the averment of facts, a valid
judgment may be properly rendered.
What are not ultimate facts?
1. Evidentiary or immaterial facts;
2. Legal conclusions, conclusions or inferences of
facts from facts not stated, or incorrect
inferences or conclusions from facts stated;
3. The details of probative matter or particular
evidence, statements of law, inferences and
arguments;
Note: An allegation that a contract is valid or void is
a mere conclusion of law.
Section 4. Answer. — An answer is a
pleading in which a defending party sets forth
his defenses. (4a)
NOTE; Answer may include the response to a
counterclaim or a cross-claim.
2 Kinds of Defenses that may be set forth in an
answer:
1. AFFIRMATIVE DEFENSES. It is an allegation
of anew matter which, while hypothetically
admitting the material allegations in the pleading
of the claimant, would nevertheless prevent or
bar recovery by him. Affirmative defenses
include fraud, prescription, release, payment
and other matter by way of confession and
avoidance.
2. NEGATIVE DEFENSES. It refers to specific
denial of the material facts alleged in the
complaint essential to the cause of action.
Insufficient denial or denial amounting to
admission:
a) General denial; and
b) Denial in the form of a negative
pregnant
NEGATIVE PREGNANT is a denial in such form as
to imply or express an admission of the substantial
fact which apparently is controverted. It is a form of
denial, which really admits the important facts
contained in the allegations to which it relates.
While it is a denial in form, its substance actually
has the effect of an admission because of too literal
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
denial of the allegations sought to be denied.
This arises when the pleader merely repeats the
allegations in the negative form.
Section 5. Defenses. — Defenses may
either be negative or affirmative.
(a) 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.
(b) An affirmative defense is an allegation
of a new matter which, while
hypothetically admitting the material
allegations in the pleading of the claimant,
would nevertheless prevent or bar
recovery by him. The affirmative defenses
include fraud, statute of limitations,
release, payment, illegality, statute of
frauds, estoppel, former recovery,
discharge in bankruptcy, and any other
matter by way of confession and
avoidance. (5a)
Section 6. Counterclaim. — A
counterclaim is any claim which a
defending party may have against an
opposing party. (6a)
NATURE OF A COUNTERCLAIM
A Counterclaim is in the nature of a cross-
complaint. Although it may be alleged in the
answer, it is not part of the answer. Upon its
filing, the same proceedings are had as in the
original complaint. For this reason, it must be
answered within 10 days from service.
Pleadings; Counterclaim (2007) No.II. (d) A
counderclain is a pleading. (2%) SUGGESTED
ANSWER: True. A counterclaim is a pleading by
which a defending party makes a claim against an
opposing party (Sec. 6, Rule 6, Rules of Court).
Section 7. Compulsory counterclaim. —
A compulsory counterclaim is one which,
being cognizable by the regular courts of
justice, arises out of or is connected with
the transaction or occurrence constituting
the subject matter of the opposing party's
claim and does not require for its
adjudication the presence of third parties
of whom the court cannot acquire
jurisdiction. Such a counterclaim must be
within the jurisdiction of the court both as
to the amount and the nature thereof,
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except that in an original action before the cannot acquire adjudication over whom
Regional Trial Court, the counter-claim may jurisdiction, for its the court cannot
be considered compulsory regardless of the adjudication acquire jurisdiction
amount. (n) Barred if not set up in Not barred if not set up
the action in the action
Counterclaims may either be: Must be answered,
otherwise , the plaintiff
Need not be answered (now defendant of the
1. Compulsory (principle of recoupment); or
counterclaim) may be
2. Permissive (principle of set-off – subject to
declared in default
the KPL).
NOTE: A plaintiff who fails or chooses not to
JURISDICTION over compulsory counterclaims:
answer a compulsory counterclaim may not be
In RTC, regardless of the amount, in city/town court,
declared in default, principally because the
must be within the jurisdictional amount. But RTC
issues raised in the counterclaim are deemed
does not have jurisdiction on a counterclaim if it
automatically joined by the allegations in the
does not have jurisdiction on the subject matter of
complaint (Goyola vs. Goyola, 35 SCRA 557)
such counterclaim. E.g., forcible entry and unlawful
detainer.
Requisites for compulsory
“COMPELLING TEST OF COMPULSORINESS” counterclaim:(clue words only)
It requires logical relationship between the claim and
the counterclaim. That is, conducting separate trial 1. arise/connected with the subject matter;
of the respective claims of the parties would entail a 2. does not require third parties;
substantial duplication of effort and time by the 3. Within jurisdiction of the court.
parties and the court.
GR: Compulsory Counterclaim not set up in the
By its nature, a counterclaim can only be filed answer is deemed barred.
against an opposing party; a cross-claim against a
co-party. By way of exception, section 12, Rule 6 Exception: Rule 11, sec. 9 - . Counterclaim or
(Bringing new parties): cross-claim arising after answer. — A counterclaim or
a cross-claim which either matured or was acquired
Section 12. Bringing new parties. — When the by a party after serving his pleading may, with the
presence of parties other than those to the original permission of the court, be presented as a
action is required for the granting of complete relief in counterclaim or a cross-claim by supplemental
the determination of a counterclaim or cross-claim, pleading before judgment.
the court shall order them to be brought in as
defendants, if jurisdiction over them can be obtained. NOTE: The filing of a motion to Dismiss and the
setting of a compulsory counterclaim are
NOTES: If the counterclaim is filed in the MTC in incompatible remedies. In the event that a
excess of its jurisdictional amount, the excess is defending party has a ground for the dismissal
considered waived (Agustin vs. Bacalan, 135 SCRA and a compulsory counterclaim, at the same
340) time, he must choose only one remedy. If he
decides to file a motion to dismiss, he will loss
The remedy where a counterclaim is beyond the his counterclaim. But if he opts to set up his
jurisdictional amount of the MTC is to set-off the counterclaim, he may still plead his ground for
claims and file a separate action to collect the the dismissal as an affirmative defense in his
balance (Calo vs. Ajax Int’l. 22 SCRA 996) answer.

GR: The Dismissal of the main action carries

COMPULSORY
COUNTERCLAIM
Arises out of or is
necessarily connected
with the transaction or
occurrence that is the
subject matter of the
opposing party’s claim
Does not require the
presence of third
parties, whom the court
PERMISSIVE
with it the dismissal of the compulsory
CONTERCLAIM
counterclaims.
Does not arise out of
nor is it necessarily Exceptions: Rule 17, section 2 and 3
connected with the
subject matter of the Section 2. Dismissal upon motion of plaintiff. —
opposing party’s claim Except as provided in the preceding section, a
complaint shall not be dismissed at the plaintiff's
It may require the instance save upon approval of the court and
presence of third upon such terms and conditions as the court
parties for its deems proper. If a counterclaim has been

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 39

________________________________________________________________________________________________
pleaded by a defendant prior to the service upon him
of the plaintiffs motion for dismissal, the dismissal
shall be limited to the complaint. The dismissal shall
be without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action
unless within fifteen (15) days from notice of the
motion he manifests his preference to have his
counterclaim resolved in the same action. Unless
otherwise specified in the order, a dismissal under
this paragraph shall be without prejudice. A class suit
shall not be dismissed or compromised without the
approval of the court. (2a)
Section 3. Dismissal due to fault of plaintiff. — If, for In this case, the defendant’s counterclaim is a
no justifiable cause, the plaintiff fails to appear on the compulsory counterclaim which arises out or is
date of the presentation of his evidence in chief on
the complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these
Rules or any order of the court, the complaint may be
dismissed upon motion of the defendant or upon the
court's own motion, without prejudice to the right of
the defendant to prosecute his counterclaim in the
same or in a separate action. This dismissal shall
have the effect of an adjudication upon the merits,
unless otherwise declared by the court.
NOTE: Compulsory counterclaim is not an
initiatory pleading, hence no filing fee is
required.
NOTE: Permissive counter claim, although not
initiatory, requires payment of filing fees. The Rules
does not distinguish (Dean Reano –Review
Lecture).
Bar Exam Question 2011
(47) Defendant Dante said in his answer: "1.
Plaintiff Perla claims that defendant Dante
owes her P4,000 on the mobile phone that she
sold him; 2. But Perla owes Dante P6,000 for
the dent on his car that she borrowed." How
should the court treat the second statement?
(A) A cross claim (B) A compulsory
counterclaim (C) A third party complaint (D) A
permissive counterclaim
Actions; Counterclaim (2002)
The plaintiff sued the defendant in the RTC for
damages allegedly caused by the latter’s encroachment
on the plaintiff’s lot. In his answer, the defendant denied
the plaintiff’s claim and alleged that it was the plaintiff
who in fact had encroached on his (defendant’s) land.
Accordingly, the defendant counterclaimed against the
plaintiff for damages resulting from the alleged
encroachment on his lot. The plaintiff filed an ex parte
motion for extension of time to answer the defendant’s
counterclaim, but the court denied the motion on the
ground that it should have been set for hearing. On the
defendant’s motion, therefore, the court declared the
plaintiff in default on the counterclaim. Was the plaintiff
validly declared in default? Why? (5%)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
SUGGESTED ANSWER:
No, the plaintiff was not validly declared in default.
A motion for extension of time to file an answer
may be filed ex parte and need not be set for
hearing. [Amante vs. Sunga, 64 SCRA 192 (1975)].
ALTERNATIVE ANSWER:
The general rule is that a counterclaim must be
answered within ten (10) days from service. (Rule 11,
sec.4). However, a counterclaim that raises issues
which are deemed automatically joined by the
allegations of the Complaint need not be answered.
[Gojo v. Goyala, 35 SCRA 557 (1970)].
connected with the transaction and occurrence
constituting the subject matter of the plaintiff’s
claim. It raises the same issue of who encroached on
whose land. Hence, there was no need to answer the
counterclaim.
Actions; Counterclaim vs. Crossclaim (1999)
a) What is a counterclaim? (2%) b) Distinguish a
counterclaim from a crossclaim. (2%)
c) A, who is engaged in tile installation business,
was sued by EE Industries for breach of contract for
installing different marble tiles in its offices as
provided in their contract. Without filing any motion
to dismiss, A filed its Answer with Counterclaim
theorizing that EE Industries has no legal capacity to
sue because it is not a duly registered corporation. By
way of counterclaim, A asked for moral and actual
damages as her business depleted as a result of the
withdrawal and cancellation by her clients of their
contracts due to the filing of the case. The case was
dismissed after the trial court found that EE
Industries is not a registered corporation and
therefore has no legal capacity to sue. However, it
set a date for the reception of evidence on A's
counterclaim. EE Industries opposed on the ground
that the counterclaim could no longer be prosecuted
in view of the dismissal of the main case. Is the
stand of EE Industries sustainable? Explain. [2%]
SUGGESTED ANSWER:
a) A COUNTERCLAIM is any claim which a
defending party may have against an opposing party.
(Sec. 6, Rule 6)
b) A counterclaim is distinguished from a
CROSSCLAIM in that a cross-claim is any claim by
one party against a co-party arising out of the
transaction or occurrence that is the subject matter
either of the original action or of a counterclaim
therein. A counterclaim is against an opposing party
while a cross-claim is against a co-party. (Sec. 8, Rule 6)
c) No, because if no motion to dismiss has been
filed, any of the grounds for dismissal provided in
the Rules may be pleaded as an affirmative defense
in the answer which may include a counterclaim.
This is what A did by filing an Answer alleging the
lack of legal capacity of EE Industries to sue because
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it is not a duly registered corporation with a 1. A claim by a party against a co-party;
counterclaim for damages. The dismissal of the 2. Arising out of the subject matter of the
complaint on this ground is without prejudice to the complaint or of a counterclaim; and
prosecution of the counterclaim in the same action 3. The cross-claimant is prejudiced by the
because it is a compulsory counterclaim. (Sec. 6 of Rule 16.) claim against him by the opposing party.
If it is not set up in the action, it is barred,
Pleadings; Counterclaim against the Counsel of the
Plaintiff (2004) Except:
PX filed a suit for damages against DY. In his answer, a) When it is outside the jurisdiction of
DY incorporated a counterclaim for damages against PX the court; or
and AC, counsel for plaintiff in said suit, alleging in said b) If the court cannot acquire
counterclaim, inter alia, that AC, as such counsel, jurisdiction over the third parties
maliciously induced PX to bring the suit against DY whose presence is necessary for
despite AC's knowledge of its utter lack of factual and the adjudication of the cross-claim.
legal basis. In due time, AC filed a motion to dismiss the
counterclaim as against him on the ground that he is not In which case, the cross-claim is
a proper party to the case, he being merely plaintiffs considered permissive.
counsel. Is the counterclaim of DY compulsory or not?
Should AC's motion to dismiss the counterclaim be The dismissal of the complaint carries with it the
granted or not? Reason. (5%) dismissal of a cross-claim which is purely
SUGGESTED ANSWER: defensive, but not those seeking for affirmative
Yes. The counterclaim of DY is compulsory because it relief.
is one which arises out of or is connected with the
transaction or occurrence constituting the subject matter
of the opposing party's claim and does not require for its CROSSCLAIM COUNTERCLAIM 3RD PARTY
adjudication the presence of third parties of whom the COMPLAINT
court cannot acquire jurisdiction.(Sec. 7 of Rule 6). The Against a
motion to dismiss of plaintiffs counsel should not be Against a co- Against an person not
granted because bringing in plaintiffs counsel as a party opposing party party to the
defendant in the counterclaim is authorized by the Rules. action
Where it is required for the grant of complete relief in May arise out of
the determination of the counterclaim, the court shall or be necessarily
order the defendant's counsel to be brought in since Must arise out connected with Must be in
jurisdiction over him can be obtained. (Sec. 12 of Rule 6; of the the transaction or respect of the
Aurelio v. Court of Appeals, 196 SCRA 674 [1994]). transaction the subject matter opponent’s
Here, the counterclaim was against both the plaintiff and that is the of the opposing claim (Plaintiff)
his lawyer who allegedly maliciously induced the plaintiff subject matter party’s claim, in
to file the suit. of the original which case it is
ALTERNATIVE ANSWER: action or of a called compulsory
The counterclaim should be dismissed because it is not counterclaim counterclaim or it
a compulsory counterclaim. When a lawyer files a case therein. may not, in which
for a client, he should not be sued on a counterclaim in case it is called
the very same case he has filed as counsel. It should be permissive
filed in a separate and distinct civil action. (Chavez v. counterclaim
Sandiganbayan, 193 SCRA 282 [1991])
NOTE: Cross-claim is also available to the
Section 8. Cross-claim. — A cross-claim is plaintiffs when there is a counterclaim from the
any claim by one party against a co-party defendant.
arising out of the transaction or occurrence
that is the subject matter either of the Q. What are the available remedies of the
original action or of a counterclaim therein. defendant if, after filing his answer, he acquired
Such cross-claim may include a claim that the a counterclaim (“after-acquired counterclaim”)
party against whom it is asserted is or may which is in the nature of a compulsory
be liable to the cross-claimant for all or part counterclaim?
of a claim asserted in the action against the
Ans. The defendant may avail of EITHER of the
cross-claimant. (7)
following ALTERNATIVE remedies:
REQUISITES FOR A CROSS-CLAIM:

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 41

________________________________________________________________________________________________
a. With leave of court, file a supplemental answer
so that he could allege therein his “after-acquired
counterclaim”; or
b. File a complaint against the plaintiff with his after-
acquired counterclaim as the subject thereof.
Although an after-acquired counterclaim is in the
nature of a compulsory counterclaim, the rule under
Sec. 2 of Rule 9 that a compulsory counterclaim not
set up in the answer shall be barred does not apply.
Said rule applies only to a counterclaim which was
already EXISTING at the time of the filing of the
answer. (Sec. 8, Rule 11). An after-acquired
counterclaim is merely PERMISSIVE and not
compulsory. Hence, the defendant may file a
complaint against the plaintiff, this time the parties
will be changing sides, the original defendant is now
the plaintiff and the original plaintiff is now the
defendant. (Banco de Oro Universal Bank vs. CA,
et al., 468 SCRA 166; Namarco vs. Federation of
Namarco Distributors, Inc. 49 SCRA 238).
Section 9. Counter-counterclaims and
counter-crossclaims. — A counter-claim
may be asserted against an original counter-
claimant.
A cross-claim may also be filed against an
original cross-claimant. (n)
Section 10. Reply. — A reply is a pleading,
the office or function of which is to deny, or
allege facts in denial or avoidance of new
matters alleged by way of defense in the
answer and thereby join or make issue as to
such new matters. If a party does not file
such reply, all the new matters alleged in the
answer are deemed controverted.
If the plaintiff wishes to interpose any claims
arising out of the new matters so alleged,
such claims shall be set forth in an amended
or supplemental complaint. (11)
GR: Filing of a Reply is merely optional. New facts
that were alleged in the answer are deemed
controverted should a party fails to file a reply.
Exceptions;
1. Where answer is based on ACTIONABLE
DOCUMENT (Rule 8, sec. 8);
2. Where the answer alleges the defense of
USURY (Rule 8, sec. 11)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 11. Third, (fourth, etc.)—party
complaint. — A third (fourth, etc.) —
party complaint is a claim that a
defending party may, with leave of court,
file against a person not a party to the
action, called the third (fourth, etc.) —
party defendant for contribution,
indemnity, subrogation or any other relief,
in respect of his opponent's claim. (12a)
Bar Exam Question 2012
59. Leave of court is always necessary in:
a. a demurrer to evidence in a civil case.
b. a demurrer to evidence in a criminal
case.
c. motion to amend a complaint.
d. third party complaint.
SUGGESTED ANSWER:
(d), A third party complaint is a claim
that a defending party may, with leave of
court, file against a person not a party to
the action, called the third party
defendant, for contribution, indemnity,
subrogation or any other relief, in
respect of his opponent‟s claim. (Rule 6,
Sec. 11, Rules of Court). in a third party
complaint, leave of court is always
necessary.
THIRD-PARTY COMPLAINT IN
COMPLAINT INTERVENTION
Brings into the action a
third person who is not Same
originally a party
Initiative is with the Initiative is with the
person already party third party who seeks
to the action to join the action
TESTS to determine whether the third-party
complaint is in respect of the plaintiff’s
claim:
1. Whether it arises out of the same
transaction on which the plaintiff’s claim is
based, or although arising out of another
different transaction, is connected with the
plaintiff’s claim;
2. Whether the third-party defendant would be
liable to the plaintiff or to the defendant for
all or part of the plaintiff’s claim against the
original defendant; and
3. Whether the third-party defendant may
assert any defenses which the third-party
plaintiff has or may have to the plaintiff’s
claim.
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Summons must be served on the third (fourth, etc-
party) defendant to obtain jurisdiction over his
person, since he is not an original party.
NOTE: Where the court has jurisdiction over the
main case, it also has jurisdiction over third party
complaint, regardless of the amount involved as a
third-party complaint is merely an auxiliary to and is
a continuation of the main action (Republic vs.
Central Surety & Insurance Co. 26 SCRA 741).
Third party defendant may be held liable to the
plaintiff before defendant is held liable to the
plaintiff.
Note that a third-party complaint is not proper in an
action for Declaratory Relief.
Actions; Cross-Claims; Third Party Claims (1997)
B and C borrowed P400,000.00 from A. The
promissory note was executed by B and C in a Joint and
several capacity. B, who received the money from A,
gave C P200,000.00. C, in turn, loaned P100,000.00 out
of the P200,000.00 he received to D.
a) In an actionfiled by A against B and C with the RTC
of Quezon City, can B file a cross-claim against C for the
amount of P200,000.00?
b) Can C file a thirdparty complaint against D for the
amount of P 100,000.00?
SUGGESTED ANSWER:
(a) Yes. B can file a cross-claim against C for the
amount of 200,000.00 given to C. A cross-claim is a
claim filed by one party against a co-party arising out
of the transaction or occurrence that is the subject
matter of the original action or a counterclaim therein
and 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 against the crossclaimant. (Sec.
8 Rule 6)
(b) No, C cannot file a third-party complaint against
D because the loan of P100,000 has no connection
with the opponent's claim. C could have loaned the
money out of other funds in his possession.
ALTERNATIVE ANSWER:
Yes, C can file a third-party complaint against D
because the loan of 100,000.00 was taken out of the
P200,000 received from B and hence the loan seeks
contribution in respect to his opponent's claim. (Sec. 11 of
Rule 6)
Section 12. Bringing new parties. — When
the presence of parties other than those to
the original action is required for the granting
of complete relief in the determination of a
counterclaim or cross-claim, the court shall
order them to be brought in as defendants, if
jurisdiction over them can be obtained. (14)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Distinguished from a third party complaint.
A 3rd party complaint is proper when not one of
the third-party defendants therein is party to the
main action. If one or more of the defendants in
a counterclaim or cross-claim is already party to
the action, then the other necessary parties may
be brought in under this section.
Section 13. Answer to third (fourth,
etc.)—party complaint. — A third
(fourth, etc.) — party defendant may
allege in his answer his defenses,
counterclaims or cross-claims, including
such defenses that the third (fourth, etc.)
— party plaintiff may have against the
original plaintiff's claim. In proper cases,
he may also assert a counterclaim against
the original plaintiff in respect of the
latter's claim against the third-party
plaintiff. (n)
RULE 7
Parts of a Pleading
Section 1. Caption. — The caption sets
forth the name of the court, the title of
the action, and the docket number if
assigned.
The title of the action indicates the names
of the parties. They shall all be named in
the original complaint or petition; but in
subsequent pleadings, it shall be sufficient
if the name of the first party on each side
be stated with an appropriate indication
when there are other parties.
Their respective participation in the case
shall be indicated. (1a, 2a)
PARTS OF A PLEADING;
Caption contains:
1. Name of court;
2. Title of action;
3. Docket number if assigned.
Body contains:
1. Designation;
2. Allegation of party’s claims and
defenses;
3. Reliefs prayed for;
4. Date of the pleading.
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Section 2. The body. — The body of the
pleading sets fourth its designation, the
allegations of the party's claims or defenses,
the relief prayed for, and the date of the
pleading. (n)
(a) Paragraphs. — The allegations in the body
of a pleading shall be divided into paragraphs
so numbered to be readily identified, each of
which shall contain a statement of a single
set of circumstances so far as that can be
done with convenience. A paragraph may be
referred to by its number in all succeeding
pleadings. (3a)
(b) Headings. — When two or more causes of
action are joined the statement of the first
shall be prefaced by the words "first cause of
action,'' of the second by "second cause of
action", and so on for the others.
When one or more paragraphs in the answer
are addressed to one of several causes of
action in the complaint, they shall be
prefaced by the words "answer to the first
cause of action" or "answer to the second
cause of action" and so on; and when one or
more paragraphs of the answer are
addressed to several causes of action, they
shall be prefaced by words to that effect. (4)
(c) Relief. — The pleading shall specify the
relief sought, but it may add a general prayer
for such further or other relief as may be
deemed just or equitable. (3a, R6)
(d) Date. — Every pleading shall be dated.
(n)
Section 3. Signature and address. — Every
pleading must be signed by the party or
counsel representing him, stating in either
case his address which should not be a post
office box.
The signature of counsel constitutes a
certificate by him that he has read the
pleading; that to the best of his knowledge,
information, and belief there is good ground
to support it; and that it is not interposed for
delay.
An unsigned pleading produces no legal
effect. However, the court may, in its
discretion, allow such deficiency to be
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
remedied if it shall appear that the same
was due to mere inadvertence and not
intended for delay. Counsel who
deliberately files an unsigned pleading, or
signs a pleading in violation of this Rule,
or alleges scandalous or indecent matter
therein, or fails promptly report to the
court a change of his address, shall be
subject to appropriate disciplinary action.
(5a)
Bar Exam Question 2013
VII. The signature of counsel in the
pleading constitutes a certification that
__________. (1%) (A) both client and counsel
have read the pleading, that to the best of
their knowledge, information and belief
there are good grounds to support it, and
that it is not interposed for delay (B) the
client has read the pleading, that to the
best of the client’s knowledge, information
and belief, there are good grounds to
support it, and that it is not interposed for
delay (C) the counsel has read the pleading,
that to the best of the client’s knowledge,
information and belief, there are good
grounds to support it, and that it is not
interposed for delay (D) the counsel has
read the pleading, that based on his
personal information, there are good
grounds to support it, and that it is not
interposed for delay (E) The above choices
are not totally accurate. SUGGESTED
ANSWER: (E), Section 3 of Rule 7
provides that the signature of counsel
constitutes a certificate by him that he
has read the pleadings; that to the best
of his knowledge, information, and belief
there is good ground to support it; and
that it is not interposed for delay.
Section 4. Verification. — Except when
otherwise specifically required by law or
rule, pleadings need not be under oath,
verified or accompanied by affidavit. (5a)
A pleading is verified by an affidavit that the
affiant has read the pleading and that the
allegations therein are true and correct of his
knowledge and belief.
A pleading required to be verified which
contains a verification based on
"information and belief", or upon
"knowledge, information and belief", or
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lacks a proper verification, shall be treated as
an unsigned pleading. (6a)
NOTE: Verification is an oath stating that the
pleading is based on the personal knowledge of the
affiant or based on authentic records/documents.
Verification is required in:
1. Petitions for CPM (Rule 65);
2. Pleadings under Summary Procedure;
3. Others specifically required by law or rules.
Section 5. Certification against forum
shopping. — The plaintiff or principal party
shall certify under oath in the complaint or
other initiatory pleading asserting a claim for
relief, or in a sworn certification annexed
thereto and simultaneously filed therewith:
(a) that he has not theretofore commenced
any action or filed any claim involving the
same issues in any court, tribunal or quasi-
judicial agency and, to the best of his
knowledge, no such other action or claim is
pending therein; (b) if there is such other
pending action or claim, a complete
statement of the present status thereof; and
(c) if he should thereafter learn that the
same or similar action or claim has been filed
or is pending, he shall report that fact within
five (5) days therefrom to the court wherein
his aforesaid complaint or initiatory pleading
has been filed.
Failure to comply with the foregoing
requirements shall not be curable by mere
amendment of the complaint or other
initiatory pleading but shall be cause for the
dismissal of the case without prejudice,
unless otherwise provided, upon motion and
after hearing. The submission of a false
certification or non-compliance with any of
the undertakings therein shall constitute
indirect contempt of court, without prejudice
to the corresponding administrative and
criminal actions. If the acts of the party or his
counsel clearly constitute willful and
deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice
and shall constitute direct contempt, as well
as a cause for administrative sanctions. (n)
Bar Exam Question 2012
26. When a party or counsel willfully or
deliberately commits forum shopping, the
initiatory pleading may:
a. be cured by amendment of the complaint.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
b. upon motion, be dismissed with
prejudice.
c. be summarily dismissed with
prejudice as it may constitute direct
contempt.
d. be stricken from the record.
SUGGESTED ANSWER: (c), If the acts of
the party or his counsel clearly
constitute wilful and deliberate forum
shopping, the same shall be ground for
summary dismissal with prejudice and
shall constitute direct contempt, as well
as a cause for administrative sanctions
(Rule 7, Sec.5, Rules of Court).
Bar Exam Question 2011
(56) A complaint without the required
"verification" (A) shall be treated as
unsigned. (B) lacks a jurisdictional
requirement. (C) is a sham pleading. (D) is
considered not filed and should be
expunged.
FORUM SHOPPING
It consists of filing multiple suits in different
courts, either simultaneously or successively,
involving the same parties, to ask the courts to
rule on the same or related causes and/or to
grant same or substantially the same relief.
3 COMMON FORMS OF FORUM SHOPPING:
a. In the form constituting litis pendentia
b. In the form constituting res judicata
c. Splitting causes of action
Test to determine the presence of forum
shopping: whether in the two or more cases
pending, there is identity in terms of the
following:
a. Parties;
b. Rights or causes of actions;
c. Relief sought.
Note that the certificate is to be executed by
petitioner and not by counsel.
Except: When petitioner is a corporation. The
lawyer must be specifically authorized and
who has personal knowledge of the facts
required to be disclosed in such document. It
should be understood that the authority is in the
form of a board resolution. Corporation acts only
through its board.
Note that generally the CAFS is signed by any of
its authorized officers (Digital Microwave Corp.
vs. CA, supra).
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Forum Shopping; Definition (2006)
What is forum shopping? (2.5%)
SUGGESTED ANSWER:
Forum shopping is the act of a party which consists of
filing multiple suits, simultaneously or successively, for
the purpose of obtaining a favorable judgment (Leyson v.
Office of the Ombudsman, G.R. No. 134990, April 27, 2000;
Yulienco v. CA, G.R. No. 131692, June 10,1999; Chemphil
Export & Import Corp. v. CA, G.R. Nos.112438-39,
December 12, 1995).
Forum Shopping; Effects; Lack of Certification (2006)
Honey filed with the Regional Trial Court, Taal,
Batangas a complaint for specific performance against
Bernie. For lack of certification against forum shopping,
the judge dismissed the complaint. Honey's lawyer filed a
motion for reconsideration, attaching thereto an
amended complaint with the certification against forum
shopping. If you were the judge, how will you resolve
the motion? (5%)
SUGGESTED ANSWER:
If I were the judge, the motion should be denied after hearing
because, as expressly provided in the Rules, failure to comply
with the requirement of forum shopping is not curable by
mere amendment of the complaint or other initiatory pleading,
but shall be cause for the dismissal of the case, without
prejudice, unless otherwise provided (Sec. 5, Rule 7, 1997 Rules of
Civil Procedure). However, the trial court in the exercise of its
sound discretion, may choose to be liberal and consider the
amendment as substantial compliance (Great Southern
Maritime Services Corp. v. Acuna, G.R. No. 140189, February
28,2005; Chan v. RTC of Zamboanga del Norte, G.R. No.
149253, April 15, 2004; Uy v. Land Bank, G.R. 136100, July 24,
2000).
Pleadings; Certification Against Forum Shopping (2000)
As counsel for A, B, C and D, Atty. XY prepared a
complaint for recovery of possession of a parcel of land
against Z. Before filling the complaint, XY discovered
that his clients were not available to sign the certification
of non-forum shopping. To avoid further delays in the
filing of the complaint, XY signed the certification and
immediately filed the complaint in court. Is XY justified
in signing the certification? Why? (5%)
SUGGESTED ANSWER:
NO, counsel cannot sign the anti-forum shopping
certification because it must be executed by the “plaintiff
or principal party” himself (Sec. 5, Rule 7; Excorpizo v.
University of Baguio, 306 SCRA 497, [1999]),
since the rule requires personal knowledge by the party
executing the certification, UNLESS counsel gives a
good reason why he is not able to secure his clients’
signatures and shows that his clients will be deprived of
substantial justice (Ortiz v. Court of Appeals, 299 SCRA
708, [1998]) or unless he is authorized to sign it by his
clients through a special power of attorney.
CAFS is required only for complaint or other
initiatory pleadings such as permissive
counterclaim, cross-claim, etc.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Absence of CAFS is not a ground for the court
to dismiss the case motu proprio.
CAFS not required in a compulsory counterclaim
(UST Hosp. vs. Suria 294 SCRA 382).
Foreclosure; Certification Against Non
Forum Shopping (2007)
No.X. (a) RC filed a complaint for
annulment of the foreclosure sale against
Bank V. In its answer, Bank V set up a
counterclaim for actual damages and
litigation expenses. RC filed a motion to
dismiss the counterclaim on the ground
that Bank V’s Answer with Counterclaim
was not accompanied by a certification
against forum shopping. Rule. (5%)
SUGGESTED ANSWER: A certification
against forum shopping is required only
in initiatory pleadings. In this case, the
counterclaim pleaded in the defendant’s
Answer appears to have arisen from the
plaintiff’s complaint or compulsory in
nature and thus, may not be regarded as
an initiatory pleading. The absence
thereof in the Bank’s Answer is not a
fatal defect. Therefore, the motion to
dismiss on the ground raised lacks merit
and should be denied (UST v. Suria, 294
SCRA 382 [1998]).
On the other hand, if the counterclaim
raised by the defendant Bank’s Answer
was not predicated on the plaintiff’s
claim or cause of action, it is considered
a permissive counterclaim. In which
case, it would partake an initiatory
pleading which requires a certification
against forum shopping.
Correspondingly, the motion to dismiss
based on lack of the required certificate
against forum shopping should be
granted.
Failure to file CAFS not excused by proof that
the party concerned (Plaintiff) was not guilty of
forum shopping. On the other hand, party who
filed two or more related cases is not relieved
from legal effect of forum shopping by admitting
such fact in his CAFS (Sps. Ong vs. CA, L-
144581, July 5, 2002).
GR: A CAFS should be signed by all petitioners
because a lone signatory cannot be presumed
to have personal knowledge of facts required to
be stated in the attestation.
EXCEPTION (requisites):
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1. There was reasonable cause for failure of some
of them to sign the CAFS; and
2. The outright dismissal of the petition would
defeat the administration of justice.
Forum Shopping; Certification (2009) No.III.
Amorsolo, a Filipino citizen permanently
residing in New York City, filed with the RTC of
Lipa City a complaint for Rescission of
Contract of Sale of Land against Brigido, a
resident of Barangay San Miguel, Sto. Tomas,
Batangas. The subject property, located in
Barangay Talisay, Lipa City, has an assessed
value of 19,700. Appended to the complaint is
Amorsolo’s verification and certification of non-
forum shopping executed in New York City,
duly notarized by Mr. Joseph Brown, Esq., a
notary public in the State of New York. Brigod
filed a motion to dismiss the complaint on the
following grounds:
(c) The verification and certification of non-
forum shopping are fatally defective because
there is no accompanying certification issued
by the Philippine Consulate in New York,
authenticating that Mr. Brown is duly
authorized to notarize the document. (3%) Rule
on the foregoing grounds with reasons.
SUGGESTED ANSWER: The third ground
raised questioning the validity of the
verification and certification of non-forum
shopping for lack of certification from the
Philippine Consulate in New York,
authenticating that Mr. Brown is duly
authorized to notarize the document, is
likewise without merit. The required
certification alluded to, pertains to official
acts, or records of official bodies, tribunals,
and public officers, whether of the
Philippines or of a foreign country: the
requirement in Sec. 24, Rule 132 of the
1997 Rules refers only to paragraph (a) of
Sec. 29 which does not cover notarial
documents. It is enough that the notary
public who notarized the verification and
certification of non-forum shopping is
clothed with authority to administer oath in
that State or foreign country.
RULE 8
Manner of Making Allegations in
Pleadings
Section 1. In general. — Every pleading
shall contain in a methodical and logical form,
a plain, concise and direct statement of the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
ultimate facts on which the party pleading
relies for his claim or defense, as the case
may be, omitting the statement of mere
evidentiary facts. (1)
If a defense relied on is based on law, the
pertinent provisions thereof and their
applicability to him shall be clearly and
concisely stated. (n)
ULTIMATE FACTS (Pactum Probandum) refers
to those directly form the bases of the right
sought to be enforced or the defense relied
upon. If the ultimate facts are not alleged, the
cause of action would be insufficient.
EVIDENTIARY FACTS (Pactum Probans) refer
to those which are necessary to prove the
ultimate facts or which furnish evidence of the
existence of some other facts.
TEST TO DISTINGUISH CONCLUSION OF
LAW FROM STATEMENT OF FACTS
If from the facts in evidence, the result can be
reached by the process of natural reasoning
adopted in the investigation of the truth, it
becomes an ultimate fact to be found as such.
If, on the other hand, resort must be had to
artificial processes of law in order to reach a
final determination, the result is a conclusion of
law.
ULTIMATE FACTS (Cause of Action)
1. Right;
2. Obligation to respect the right;
3. Violation;
4. Damage.
FACTS THAT NEED NOT BE ALLEGED:
1. Facts presumed by law;
2. Conclusion of law or fact;
3. Facts within domain of judicial notice.
Section 2. Alternative causes of action
or defenses. — A party may set forth two
or more statements of a claim or defense
alternatively or hypothetically, either in
one cause of action or defense or in
separate causes of action or defenses.
When two or more statements are made
in the alternative and one of them if made
independently would be sufficient, the
pleading is not made insufficient by the
insufficiency of one or more of the
alternative statements. (2)
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NOTE: A party may state as many claims or
defenses as he has regardless of the consistency
but each must be consistent in itself.
Section 3. Conditions precedent. — In any
pleading a general averment of the
performance or occurrence of all conditions
precedent shall be sufficient. (3)
Examples:
1. Barangay conciliation;
2. Exhaustion of administrative remedies;
3. Earnest efforts towards a compromise in
suits between relatives.
Section 4. Capacity. — Facts showing the
capacity of a party to sue or be sued or the
authority of a party to sue or be sued in a
representative capacity or the legal existence
of an organized association of person that is
made a party must be averred. A party
desiring to raise an issue as to the legal
existence of any party or the capacity of any
party to sue or be sued in a representative
capacity, shall do so by specific denial, which
shall include such supporting particulars as
are peculiarly within the pleader's knowledge.
(4)
Section 5. Fraud, mistake, condition of
the mind. — In all averments of fraud or
mistake the circumstances constituting fraud
or mistake must be stated with particularity.
Malice, intent, knowledge, or other condition
of the mind of a person may be averred
generally.(5a)
Section 6. Judgment. — In pleading a
judgment or decision of a domestic or foreign
court, judicial or quasi-judicial tribunal, or of
a board or officer, it is sufficient to aver the
judgment or decision without setting forth
matter showing jurisdiction to render it. (6)
FACTS THAT MAY BE AVERRED GENERALLY
1. Condition precedent (BUT there must still be an
allegation that a particular condition precedent
has been complied with, otherwise it will be
dismissed for failure to state a cause of action);
2. Capacity to sue and be sued;
3. Capacity to sue and be sued in a representative
capacity;
4. Legal existence of an organization;
NOTE: A party desiring to raise an issue as to
the legal existence or capacity of any party to
sue or be sued in a representative capacity shall
do so by SPECIFIC DENIAL which shall include
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
supporting particulars within the pleader’s
knowledge.
5. Malice, intent, knowledge, or other condition
of the mind;
6. Judgment of domestic or foreign courts,
tribunals, board, or officers (no need to show
jurisdiction);
7. Official document or act.
FACTS THAT MUST BE ALLEGED WITH
PARTICULARITY:
1. Fraud;
2. Mistake.
Section 7. Action or defense based on
document. — Whenever an action or
defense is based upon a written
instrument or document, the substance of
such instrument or document shall be set
forth in the pleading, and the original or a
copy thereof shall be attached to the
pleading as an exhibit, which shall be
deemed to be a part of the pleading, or
said copy may with like effect be set forth
in the pleading. (7)
TWO PERMISSIBLE WAYS OF PLEADING AN
ACTIONABLE DOCUMENT:
1. By setting forth the substance of such
document in the pleading and attaching said
document thereto as an exhibit. NOTE that
the contents of the document is controlling in
case there is variance in the substance of
the document set forth in the pleading and
the document attached;
2. By setting forth said document verbatim in
the pleading.
Section 8. How to contest such
documents. — When an action or
defense is founded upon a written
instrument, copied in or attached to the
corresponding pleading as provided in the
preceding section, the genuineness and
due execution of the instrument shall be
deemed admitted unless the adverse
party, under oath specifically denies them,
and sets forth what he claims to be the
facts, but the requirement of an oath does
not apply when the adverse party does
not appear to be a party to the instrument
or when compliance with an order for an
inspection of the original instrument is
refused. (8a)
HOW TO CONTEST AN ACTIONABLE
DOCUMENT:
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1. By specific denial under oath; and
2. By setting forth what is claimed to be the
facts.
Where the actionable document is properly alleged,
the failure to specifically deny under oath the same
results in:
a) Admission to the genuineness and due
execution of said document, EXCEPT that
oath is not required:
a) When the adverse party is not party
to the instrument;
b) When compliance with an order for
its inspection was refused.
b) The document need not be formally offered
in evidence.
GENUINENESS
It means nothing more than that the instrument is
not spurious, counterfeit, or of different import on its
face from one executed by the party whose
signature it bears has signed it and that at the time it
was signed, it was In words or figures exactly as set
out in the pleadings.
DUE EXECUTION
It means that the document is signed voluntarily and
knowingly by the party whose signature appears
thereon, that if signed by somebody else, such
representative was authorized to do so, that it was
duly delivered, and that the formalities were
complied with (Hibberd vs. Rhode, 32 Phil 476)
Bar Exam Question 2011
(12) Bearing in mind the distinction between
private and public document, which of the
following is admissible in evidence without
further proof of due execution or genuineness?
(A) Baptismal certificates. (B) Official record
of the Philippine Embassy in Singapore
certified by the Vice- Consul with official
seal. (C) Documents acknowledged before a
Notary Public in Hong Kong. (D) Unblemished
receipt dated December 20, 1985 signed by the
promisee, showing payment of a loan, found
among the well-kept file of the promissor.
Pleadings; Reply; Effect of Non-Filing of Reply (2000)
X files a complaint in the RTC for the recovery of a sum
of money with damages against Y. Y files his answer
denying liability under the contract of sale and praying
for the dismissal of the complaint on the
ground of lack of cause of action because the contract of
sale was superseded by a contract of lease, executed and
signed by X and Y two weeks after the contract of sale
was executed. The contract of lease was attached to the
answer. X does not file a reply. What is the effect of the
non-filing of a reply? Explain. (3%)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
SUGGESTED ANSWER:
A reply is generally optional. If it is not filed, the
new matters alleged in the answer are deemed
controverted. (Sec. 10 of Rule 6). However, since the
contract of lease attached to the answer is the basis
of the defense, by not filing a reply denying under
oath the genuineness and due execution of said
contract, the plaintiff is deemed to have admitted the
genuineness and due execution thereof. (Secs. 7 and
8 Rule 8; Toribio v. Bidin, 132 SCRA 162 [1985]).
Defenses NOT WAIVED despite failure to
specifically deny under oath:
1. Payment;
2. Want or illegality of consideration;
3. Fraud;
4. Mistake;
5. Compromise;
6. Statute of Limitations;
7. Estoppels;
8. Duress;
9. Minority or imbecility.
10. Simulated sale
Ratio: the following defenses are not
inconsistent with the genuineness and due
execution of the document.
BUT the following defenses are waived:
1. Forgery in signature;
2. Unauthorized signature, as in the
case of an agent signing for his
principal;
3. The corporation was not authorized
under its charter to signed the
instrument;
4. Want of delivery; or
5. At the time the document was
signed, it was not in words as set
out in the pleading.
NOTE: Failure to specifically deny under oath
the genuineness and due execution of an
actionable document generally implies an
admission of the same by the other party.
However, such implied admission is DEEMED
WAIVED if the party asserting the same has
allowed the adverse party to present evidence
contrary to the contents of the document without
any objection (Central Surety vs. Hodges, 38
SCRA 159)
Section 9. Official document or act. —
In pleading an official document or official
act, it is sufficient to aver that the
document was issued or the act done in
compliance with law. (9)
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Section 10. Specific denial. — A defendant
must specify each material allegation of fact
the truth of which he does not admit and,
whenever practicable, shall set forth the
substance of the matters upon which he
relies to support his denial. Where a
defendant desires to deny only a part of an
averment, he shall specify so much of it as is
true and material and shall deny only the
remainder. Where a defendant is without
knowledge or information sufficient to form a
belief as to the truth of a material averment
made to the complaint, he shall so state, and
this shall have the effect of a denial. (10a)
Bar Exam Question 2011
(98) Plaintiff Manny said in his complaint: "3.
On March 1, 2001 defendant Letty borrowed
P1 million from plaintiff Manny and made a
promise to pay the loan within six months." In
her answer, Letty alleged: "Defendant Letty
specifically denies the allegations in paragraph
3 of the complaint that she borrowed P1
million from plaintiff Manny on March 1, 2001
and made a promise to pay the loan within six
months." Is Letty’s denial sufficient? (A) Yes,
since it constitutes specific denial of the loan.
(B) Yes, since it constitutes positive denial of
the existence of the loan. (C) No, since it fails
to set forth the matters defendant relied
upon in support of her denial. (D) No, since
she fails to set out in par. 2 of her answer her
special and affirmative defenses.
3 WAYS OF MAKING A SPECIFIC DENIAL
1. SPECIFIC ABSOLUTE DENIAL- by specifically
denying the averment and, whenever
practicable, setting forth the substance of the
matters relied upon for such denial;
2. PARTIAL SPECIFIC DENIAL- part admission
and part denial;
3. DISAVOWAL OF KNOWLEDGE- by an
allegation of lack of knowledge or information
sufficient to form a belief as to the truth of the
averment in the opposing party’s pleading.
Pleadings; Answer; Defense; Specific Denial (2004)
In his complaint for foreclosure of mortgage to which
was duly attached a copy of the mortgage deed, plaintiff
PP alleged inter alia as follows: (1) that
defendant DD duly executed the mortgage deed, copy of
which is Annex "A" of the complaint and made an
integral part thereof; and (2) that to prosecute his
complaint, plaintiff contracted a lawyer, CC, for a fee of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
P50.000. In his answer, defendant alleged, inter alia,
that he had no knowledge of the mortgage deed, and
he also denied any liability for plaintiffs contracting
with a lawyer for a fee. Does defendant's answer as
to plaintiff’s allegation no. 1 as well as no. 2
sufficiently raise an issue of fact? Reason briefly.
(5%)
SUGGESTED ANSWER:
As to plaintiffs allegation no. 1, defendant does not
sufficiently raise an issue of fact, because he cannot
allege lack of knowledge of the mortgage deed since
he should have personal knowledge as to whether he
signed it or not and because he did not deny under
oath the genuineness and due execution of the
mortgage deed, which is an actionable document. As
to plaintiff’s allegation no. 2, defendant did not
properly deny liability as to plaintiffs contracting
with a lawyer for a fee. He did not even deny for
lack of knowledge. (Sec. 10 of Rule 8).
Section 11. Allegations not specifically
denied deemed admitted. — Material
averment in the complaint, other than
those as to the amount of unliquidated
damages, shall be deemed admitted when
not specifically denied. Allegations of
usury in a complaint to recover usurious
interest are deemed admitted if not
denied under oath. (1a, R9)
GR: Allegations NOT specifically denied are
deemed admitted.
Exceptions:
1. Amount of unliquidated damages;
2. Allegations immaterial to the cause of
action;
3. Conclusion of law.
Section 12. Striking out of pleading or
matter contained therein. — Upon
motion made by a party before
responding to a pleading or, if no
responsive pleading is permitted by these
Rules, upon motion made by a party
within twenty (20) days after the service
of the pleading upon him, or upon the
court's own initiative at any time, the
court may order any pleading to be
stricken out or that any sham or false,
redundant, immaterial, impertinent, or
scandalous matter be stricken out
therefrom. (5, R9)
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NOTE: Allegations of merely evidentiary or
immaterial facts may be expunge from the pleading
or may be stricken out on motion.
RULE 9
Effect of Failure to Plead
Section 1. Defenses and objections not
pleaded. — Defenses and objections not
pleaded either in a motion to dismiss or in
the answer are deemed waived. However,
when it appears from the pleadings or the
evidence on record that the court has no
jurisdiction over the subject matter, that
there is another action pending between the
same parties for the same cause, or that the
action is barred by a prior judgment or by
statute of limitations, the court shall dismiss
the claim. (2a)
Bar Exam Question 2012
73. A court can motu proprio dismiss a case on
the following grounds, except :
a. failure to prosecute;
b. lack of jurisdiction over the parties;
c. litis pendentia;
d. prescription.
SUGGESTED ANSWER:
(b), A court cannot motu propio dismiss a
case on the ground of lack of jurisdiction
over the parties because the objection on
the said ground can be waived by the failure
of the defendant to raise the same in his
motion to dismiss or in his answer as
affirmative defense. (Rule 9, Sec.1, Rules of
Court).
[GICANO DOCTRINE]
GR: Defenses and objections not raised in a
MOTION TO DISMISS or in the ANSWER are
deemed waived.
Exceptions:
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia;
3. Res judicata;
4. Prescription.
5. Rules on Summary Procedure
6. Small Claims Rules
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
These defenses may be raised at any stage of
the proceedings, even for the first time on
appeal.
NOTE: However, the right to question
jurisdiction over the subject matter may be
barred by laches (Tijam vs. Sibonghanoy 23
SCRA 29).
NOTE: The rule is different in Summary
Procedure – all defenses not pleaded are
waived except lack of jurisdiction (sec. 5, RSP).
See also Rule 70, sec. 6.
Section 2. Compulsory counterclaim, or
cross-claim, not set up barred. — A
compulsory counterclaim, or a cross-
claim, not set up shall be barred. (4a)
Section 3. Default; declaration of. — If
the defending party fails to answer within
the time allowed therefor, the court shall,
upon motion of the claiming party with
notice to the defending party, and proof of
such failure, declare the defending party
in default. Thereupon, the court shall
proceed to render judgment granting the
claimant such relief as his pleading may
warrant, unless the court in its discretion
requires the claimant to submit evidence.
Such reception of evidence may be
delegated to the clerk of court. (1a, R18)
(a) Effect of order of default. — A
party in default shall be entitled to
notice of subsequent proceedings but
not to take part in the trial. (2a, R18)
(b) Relief from order of default. — A
party declared in default may at any
time after notice thereof and before
judgment file a motion under oath to set
aside the order of default upon proper
showing that his failure to answer was
due to fraud, accident, mistake or
excusable negligence and that he has a
meritorious defense. In such case, the
order of default may be set aside on
such terms and conditions as the judge
may impose in the interest of justice.
(3a, R18)
(c) Effect of partial default. — When a
pleading asserting a claim states a
common cause of action against several
defending parties, some of whom
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answer and the others fail to do so, the
court shall try the case against all upon the
answers thus filed and render judgment
upon the evidence presented.
(d) Extent of relief to be awarded. — A
judgment rendered against a party in
default shall not exceed the amount or be
different in kind from that prayed for nor
award unliquidated damages.
(e) Where no defaults allowed. — If the
defending party in an action for annulment
or declaration of nullity of marriage or for
legal separation fails to answer, the court
shall order the prosecuting attorney to
investigate whether or not a collusion
between the parties exists, and if there is
no collusion, to intervene for the State in
order to see to it that the evidence
submitted is not fabricated.
ORDER OF DEFAULT JUDGMENT BY
DEFAULT
Issued by the court on Rendered by the court
plaintiff’s motion for following the order of
failure of the defendant default or after it
to file his responsive received, ex parte,
pleading seasonably plaintiff’s evidence
Interlocutory- not Final- appealable
appealable
ELEMENTS OF A VALID DECLARATION OF
DEFAULT:
1. The court must have acquired jurisdiction over
the person of the defendant;
2. Defendant fails to answer within the time
allowed;
3. There must be a motion to declare the
defendant in default;
4. There must be notice to the defendant
5. There must be proof or such failure to answer.
NO DEFAULT IN THE FOLLOWING:
1. Annulment of marriage;
2. Declaration of Nullity of Marriage;
3. Legal separation;
Ratio: (constitutional mandate of protection of
marriage as the basic social institution)
4. Special civil actions of CPM (no answer is
required but instead order to comment);
5. Under Summary Procedure.
RELIEFS FROM ORDER OF DEFAULT:
1. A motion to set aside the order of default;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
2. If denied, and denial is tainted with GRAVE
ABUSE OF DISCRETION, petition for
certiorari under Rule 65.
3. Wait for the judgment by default and then
Appeal the judgment
RIGHTS OF PARTY DECLARED IN DEFAULT
Entitled to notice of:
a) Motion to declare him in default
b) Order declaring him in default;
c) Subsequent proceedings;
d) Service of final orders or judgments
Bar Exam Question 2012
77. A defendant declared in default may,
after judgment but before finality, file a:
a. Petition for Relief from Judgment;
b. Petition for Certiorari;
c. Motion for Reconsideration;
d. Motion to Set Aside Order of Default.
SUGGESTED ANSWER:
(c), A defendant declared in default may
after judgment but before finality file a
Motion for Reconsideration in order to
give the Court an opportunity to rectify
its mistakes and set aside the previous
judgment by default before it attains
finality.
ALTERNATIVE ANSWER:
A defendant declared in default may,
after judgment but before finality, file a
Motion for New Trial. It is well-settled
that a defendant who has been declared
in default has the following remedies, to
wit: (1) he may, at any time after
discovery of the default but before
judgment, file a motion, under oath, to
set aside the order of default on the
ground that his failure to answer was
due to fraud, accident, mistake or
excusable neglect, and that he has a
meritorious defense; (2) if judgment has
already been rendered when he
discovered the default, but before the
same has become final and executor, he
may file a motion for new trial under
Section 1(a) of Rule 37; (3) if he
discovered the default after the
judgment has become final and executor,
he may file a petition for relief under
Section 2 of Rule 38; and (4) he may also
appeal from the judgment rendered
against him as contrary to the evidence
or to the law, even if no petition to set
aside the order of default has been
presented by him. (B.D. long Span
Builders vs. R.S. Ampeloquio Realty
Development, Inc., G.R. No. 169919,
September 11, 2009).
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Bar Exam Question 2011
(19) 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 driver’s fault. Someone had stolen the
manhole cover and the road gave no warning of
the danger it posed. On Gerry’s motion and
over the objection of XYZ Bus Co., the court
declared Rico, the bus driver, in default and
rendered judgment ordering him to pay
P50,000 in damages to Gerry. Did the court act
correctly? (A) No, since the court should
have tried the case against both defendants
upon the bus company‟s answer. (B) No, the
court should have dropped Rico as defendant
since the moneyed defendant is the bus
company. (C) Yes, the court can, under the
rules, render judgment against the defendant
declared in default. (D) Yes, since, in failing to
answer, Rico may be deemed to have admitted
the allegations in the complaint.
NOTE: A defendant declared in default cannot take
part in the trial, but he cannot be disqualified from
testifying as a witness in favor of non-defaulting
defendants (Cavili vs. Florendo, 154 SCRA 610)
If the defendant was declared in default upon an
original complaint, the filing of the amended
complaint resulted in the withdrawal of the original
complaint. Hence, the defendant is entitled to file
answer to the amended complaint as to which he
was not in default.
Bar Exam Question 2012
14. Being declared in default does not
constitute a waiver of all rights.
However, the following right is considered
waived:
a. be cited and called to testify as a witness
b. file a motion for new trial
c. participate in deposition taking of witnesses
of adverse party
d. file a petition for certiorari
SUGGESTED ANSWER: (b), A party declared
in default cannot take part in the trial but
is nonetheless entitled to notices of
subsequent proceedings. Thus, a party
declared in default is deemed to have
waived his right to file a motion for new
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
trial since he had no right to an old trial
on the first place.
ALTERNATIVE ANSWER: NO CORRECT
ANSWER. The Committee may
recommend that the examinee be given
full credit for any answer because the
question is very tricky. A party declared
in default is not deemed to have waived
any of the above-mentioned rights.
A party declared in default loses his
standing in Court. He cannot take part
in the trial but he is entitled to notices
of subsequent proceedings. (Section 3(a),
Rule 9, Rules of Court). When a
defendant is declared in default, he does
not waive any of the above-mentioned
rights. A defendant may still be cited
and called to testify as a witness since
he will participate in the trial, not as a
party but merely as a witness. In fact, it
is not a right but rather an obligation of
a defendant cited and called to testify as
a witness to so appear in court. He may
also participate in the deposition taking
of witnesses of the adverse party
because the same is at the instance of
the said adverse party and may not yet
be considered as part of the trial. The
defendant cannot also be said to have
waived his right to file a motion for new
trial since this is a remedy available
before finality of a judgment declaring a
party in default (BD Long Span Builders
vs. R.S. Ampeloquio Realty
Development, Inc., G.R. No.169919,
September 11, 2009).
Moreover, a petition for certiorari under
Rule 65 is not considered waived
because it is still an available remedy, if
the declaration of default was tainted
with grave abuse of discretion.
In Martinez vs. Republic, G.R. No.
160895, October 30, 2006, 506 SCRA
134, the Supreme Court has clearly
discussed the remedies of a party
declared in default in light of the 1964
and 1997 Rules of Court and a number of
jurisprudence applying and interpreting
said rules. Citing Lina vs. Court of
Appeals, No. L-63397, April 9, 1985, 135
SCRA 637, the High Court enumerated
the following remedies, to wit: (a) The
defendant in default may, at any time
after discovery thereof and before
judgment, file a motion, under oath, to
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set aside the order of default on the ground
that his failure to answer was due to fraud,
accident, mistake, or excusable neglect, and
that he has meritorious defenses; (Sec.3,
Rule 18, Rules of Court); (b) If the judgment If plaintiff If plaintiff fails
proves his to prove his
has already been rendered when the allegations allegations,
defendant discovered the default, but before judgment by case is
the same has become final and executor, he Case set for pre-trial default is dismissed
may file a motion for new trial under rendered
Section 1(a) of Rule 37, Rules of Court; (c) If
the defendant discovered the default after
the judgment has become final and PARTIAL DEFAULT
executor, he may file a petition for relief
under Section 2 of Rule 38, Rules of Court; A. The pleading asserting a claim
and (d) He may also appeal from the states a common cause of action
judgment rendered against him as contrary against several defending parties;
to the evidence or to the law, even if no B. Some of the defending parties
petition to set aside the order of default has answers and others fail to do so;
been presented by him. (Rule 41, Sec.2, C. The answer interposes a common
Rules of Court) (Rebecca T. Arquero vs. defense.
Court of Appeals, G.R. No. 168053, Sept.
21, 2011, Peralta, J.). Effect of partial default
The court will try the case against all the
defendants upon the answer of some EXCEPT
where the defense is personal to the one who
DEFAULT answered, in which case, it will not benefit those
who did not answer.
After the lapse of
Motion denied,
time to file an defendant
answer the allowed to file
plaintiff may answer
move to declare REMEDIES FROM THE JUDGMENT BY
the defendant in DEFAULT (FLOW CHART)
default

Defendant
answers
Judgment by default

Motion granted:
Court issues order of Motion for New trial/Reconsideration at any time after
default and renders service of judgment by default and within 15 (30) days
judgment or require therefrom
the plaintiff to
submit evidence ex
parte

Failure to file motion for new trial/ denial of said

motion

Before judgment by default Court maintains

is rendered. Defendant may: order of default
a) Move to set aside Perfect appeal from said judgment by default within
the order of the balance of 15 (30) day period
default ( FAME +
Meritorious
defense);
b) Rule 65 when
proper Failure to appeal without defendant’s fault

Petition for relief from judgment within 60 days

Court sets aside
JANNYCER
order of default and
defendant is allowed
to file his answer
from notice of the judgment but within 6
Presentation of
months from entry thereof
plaintiff’s evidence
ex parte
M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 54
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Annulment of judgment under Rule 47
Extent of relief to be awarded in a judgment by
default
Shall not exceed the amount or be different in kind
from that prayed for or award unliquidated damages.
OTHER INSTANCES WHEREIN DEFENDANT
MAY BE DECLARED IN DEFAULT:
1. Failure to furnish plaintiff with a copy of his
answer despite its due filing in court (Banres
vs. Flordeliza, 51 Phil. 786);
2. Non-compliance with the order of the court
to file a bill of particulars or in case of
insufficient compliance therewith (sec. 4,
Rule 12);
3. Refusal to comply with the modes of
discovery (sec. 3[c], Rule 29).
Default (2000)
Defendant was declared in default by the RTC (RTC).
Plaintiff was allowed to present evidence in support of
his complaint. Photocopies of official receipts and
original copies of affidavits were presented in court,
identified by plaintiff on the witness stand and marked as
exhibits. Said documents were offered by plaintiff and
admitted in evidence by the court on the basis of which
the RTC rendered judgment in favor of the plaintiff,
pursuant to the relief prayed for. Upon receipt of the
judgment, defendant appeals to the Court of Appeals
claiming that the judgment is not valid because the RTC
based its judgment on mere photocopies and affidavits
of persons not presented in court. Is the
claim of defendant valid? Explain. (3%)
SUGGESTED ANSWER:
The claim of defendant is not valid because under the
1997 Rules, reception of evidence is not required. After a
defendant is declared in default, the court shall proceed
to render judgment granting the claimant such relief as
his pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence,
which may be delegated to the clerk of court. (Sec. 3, Rule
9)
ALTERNATIVE ANSWER:
The claim of defendant is valid, because the court
received evidence which it can order in its own
discretion, in which case the evidence of the plaintiff
must pass the basic requirements of admissibility.
Evidence; Admissibility; Photocopies (2000)
If the photocopies of official receipts and photocopies
of affidavits were attached to the position paper
submitted by plaintiff in an action for unlawful detainer
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
filed with Municipal Trial Court on which basis the
court rendered judgment in favor of plaintiff?
Explain.
(2%)
SUGGESTED ANSWER:
The claim of defendant is valid, because although
summary procedure requires merely the submission
of position papers, the evidence submitted with the
position paper must be admissible in evidence. (Sec. 9
of the Revised Rule on Summary Procedure). Photocopies of
official receipts and affidavits are not admissible
without proof of loss of the originals. (Sec. 3 of Rule
130)
Default (2001)
Mario was declared in default but before judgment
was
rendered, he decided to file a motion to set aside the
order of default. a) What should Mario state in his
motion in order to justify the setting aside of the
order of default?(3%)
b) In what form should such motion be filed? (2%)
SUGGESTED ANSWER:
a) In order to justify the setting aside of the order of
default, Mario should state in his motion that his
failure to answer was due to fraud, accident, mistake
or excusable negligence and that he has a
meritorious defense. [Sec. 3(b) of Rule 9,].
b) The motion should be under oath. (Id.)
Default; Order of Default; Effects (1999)
1 When may a party be declared in default? (2%)
2 What is the effect of an Order of Default? (2%)
3 For failure to seasonably file his Answer despite
due notice, A was declared in default in a case
instituted against him by B. The following day, A's
mistress who is working as a clerk in the sala of the
Judge before whom his case is pending, informed
him of the declaration of default. On the same day,
A presented a motion under oath to set aside the
order of default on the ground that his failure to
answer was due to fraud and he has a meritorious
defense. Thereafter, he went abroad. After his return
a week later, with the case still undecided, he
received the order declaring him in default. The
motion to set aside default was opposed by B on the
ground that it was filed before A received notice of
his having been declared in default, citing the rule
that the motion to set aside may be made at anytime
after notice but before judgment. Resolve the
Motion. (2%)
SUGGESTED ANSWER:
1. A party may be declared in default when he fails
to answer within the time allowed therefor, and
upon motion of the claiming party with notice to the
defending party, and proof of such failure. (Sec. 3, Rule
9)
2. The effect of an Order of Default is that the court
may proceed to render judgment granting the
claimant such relief as his pleading may warrant
55
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unless the court in its discretion requires the claimant to
submit evidence (Id.) The party in default cannot take
part in the trial but shall be entitled to notice of
subsequent proceedings. (Sec. 3[A])
3. Assuming that the motion to set aside complies with
the other requirements of the rule, it should be granted.
Although such a motion may be made after notice but
before judgment (Sec. 3[B] of Rule 9), with more reason may
it be filed after discovery even before receipt of the
order of default.
Default; Remedies; Party Declared in Default (1998)
What are the available remedies of a party declared In
default:
1 Before the rendition of judgment; [1%]
2 After judgment but before its finality; and [2%1
3 After finality of judgment? [2%]
SUGGESTED ANSWER:
The available remedies of a party declared in default
are as follows:
1. BEFORE THE RENDITION OF JUDGMENT
(a) he may file a motion under oath to set aside the order
of default on the grounds of fraud, accident, mistake or
excusable negligence and that he has a meritorious
defense (Sec. 3[b], Rule 9); and if it is denied, he may move
to reconsider, and if reconsideration is denied, he may
file the special civil action of certiorari for grave abuse of
discretion tantamount to lack or excess of the lower
court's jurisdiction. (Sec. 1, Rule 65) or
(b) he may file a petition for certiorari if he has been
illegally declared in default, e.g. during the pendency of
his motion to dismiss or before the expiration of the
time to answer.
(Matute vs. Court of Appeals, 26 SCRA 768; Acosta-Ofalia vs.
Sundiam, 85 SCRA 412.)
2. AFTER JUDGMENT BUT BEFORE ITS FINALITY, he
may file a motion for new trial on the grounds of fraud,
accident, mistake, excusable negligence, or a motion for
reconsideration on the ground of excessive damages,
insufficient evidence or the decision or final order being
contrary to law (Sec. 2, Rule 37): and thereafter. If the
motion is denied, appeal to available under Rules 40 or
41, whichever to applicable.
3. AFTER FINALITY OF THE JUDGMENT, there are
three ways to assail the judgment, which are:
a) a petition for relief under Rule 38 on the grounds of
fraud, accident, mistake or excusable negligence;
b) annulment of judgment under Rule 47 for extrinsic
fraud or lack of jurisdiction; or c) certiorari if the
judgment to void on its face or by the judicial record.
(Balangcad vs. Justices of the Court of Appeals, G.R. No.
83888. February 12, 1992, 206 8CRA 171).
Default; Remedies; Party Declared in Default (2006)
Jojie filed with the Regional Trial Court of Laguna a
complaint for damages against Joe. During the pretrial,
Jojie (sic) and her (sic) counsel failed to appear despite
notice to both of them. Upon oral motion of Jojie, Joe
was declared as in default and Jojie was allowed to
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
present her evidence ex parte. Thereafter, the court
rendered its Decision in favor of Jojie. Joe hired Jose
as his counsel. What are the remedies available to
him? Explain. (5%)
SUGGESTED ANSWER:
The remedies available to a party against whom a
default decision is rendered are as follows:
1. BEFORE the judgment in default becomes final
and executory: Motion for Reconsideration under
Rule 37;Motion for New Trial under Rule 37; And
2. AF T ER the judgment in default becomes final
and executory: Petition for Relief under Rule 38;
Annulment of Judgment under Rule 47; and
c. Certiorari under Rule 65. (See Talsan Enterprises,
Inc. v. Baliwag Transit, Inc., G.R. No. 126258, July 8,
1999)
Default; Remedies; Substantial Compliance (2000)
For failure of K.J. to file an answer within the
reglementary period, the Court, upon motion of LM,
declared KJ in default. In due time, KJ filed an
unverified motion to lift the order of default without
an affidavit of merit attached to it. KJ however
attached to the motion his answer under oath,
stating in said answer his reasons for his failure to
file an answer on time, as well as his defenses. Will
the motion to lift the order of default prosper?
Explain. (3%)
SUGGESTED ANSWER:
Yes, there is substantial compliance with the rule.
Although the motion is unverified, the answer
attached to the motion is verified. The answer
contains what the motion to lift the order of default
and the affidavit of merit should contain, which are
the reasons of movant’s failure to answer as well as
his defenses. (Sec. 3 [b] of Rule 9, 1997 Rules of
Civil Procedure; Cf. Citibank, N.A. v. Court of
Appeals, 304 SCRA 679, [1999]; Consul v.
Consul, 17 SCRA 667, 671
[1966]; Tolentino v. Carlos, 66 Phil, 1450, 143-144
[1938], Nasser v. Court of Appeals, 191 SCRA 783
[1992]).
Bar Exam Question 2013
I. In a complaint filed by the plaintiff, what
is the effect of the defendant’s failure to file
an answer within the reglementary period?
(1%) (A) The court is allowed to render
judgment motu proprio in favor of the
plaintiff. (B) The court motu proprio may
declare the defendant in default, but only
after due notice to the defendant. (C) The
court may declare the defendant in default
but only upon motion of the plaintiff and
with notice to the defendant.
(D) The court may declare the defendant
in default but only upon motion of the
plaintiff, with notice to the defendant,
56
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and upon presentation of proof of the
defendant‟s failure to answer.
(E) The above choices are all inaccurate.
SUGGESTED ANSWERS: (D), Under Section
3 of Rule 9, if the defending party fails to
answer within the time allowed, the court
shall, upon motion of the claiming party
with notice to the defending party, and
proof of such failure, declare the defending
party in default (Narciso vs. Garcia, G.R. No.
196877, November 21, 2012, Abad J.).
(E), D may not be the correct answer
because the Rule provides that if the
defending party fails to answer within the
time allowed therefor, the court shall, upon
motion of the claiming party with notice to
the defending party, and proof of such
failure, declare the defending party in
default. Notably, the Rule uses the word
“shall and not may.”
RULE 10
Amended and Supplemental Pleadings
Section 1. Amendments in general. —
Pleadings may be amended by adding or
striking out an allegation or the name of any
party, or by correcting a mistake in the name
of a party or a mistaken or inadequate
allegation or description in any other respect,
so that the actual merits of the controversy
may speedily be determined, without regard
to technicalities, and in the most expeditious
and inexpensive manner. (1)
Section 2. Amendments as a matter of
right. — A party may amend his pleading
once as a matter of right at any time before a
responsive pleading is served or, in the case
of a reply, at any time within ten (10) days
after it is served. (2a)
NOTES:
 A motion to dismiss is not a responsive
pleading. As such, an amendment after the
denial of the motion to dismiss is still considered
as a matter of right. Hence, it may be done
without leave of court.
 Subsequent amendments should only be made
with leave of court.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
 Amendment of the complaint may be
admitted even though it changes the nature
of the action or movant’s theory of the case.
Pleadings; Amendment of Complaint; Matter of Right
(2005)
On May 12, 2005, the plaintiff filed a complaint in
the RTC of Quezon City for the collection of
P250,000.00. The defendant filed a motion to
dismiss the complaint on the ground that the court
had no jurisdiction over the action since the claimed
amount of P250,000.00 is within the exclusive
jurisdiction of the Metropolitan Trial Court, of
Quezon City. Before the court could resolve the
motion, the plaintiff, without leave of court,
amended his complaint to allege a new cause of
action consisting in the inclusion of an additional
amount of P200,000.00, thereby increasing his total
claim to P450,000.000. The plaintiff thereafter filed
his opposition to the motion to dismiss, claiming
that the RTC had jurisdiction, over his action. Rule
on the motion of the defendant with reasons. (4%)
SUGGESTED ANSWER:
The motion to dismiss should be denied. Basic is the
rule
that a motion to dismiss is not a responsive pleading.
Under the Rules, a pleader may amend his pleading
as a matter of right before the other party has served
his responsive pleading. (Sec. 2, Rule 10, Rules of Court)
The court, in allowing the amendment, would not be
acting without jurisdiction because allowing an
amendment as a matter of right does not require the
exercise of discretion. The court therefore would not
be "acting" and thus, could not have acted without
jurisdiction. It would have been different had the
amendments been made after a responsive pleading
had been served. The court then would have been
exercising its discretion in allowing or disallowing
the amendment. It cannot do so however, because it
would be then acting on an amendment of a
complaint over which it has no jurisdiction. (Soledad v.
Mamangun, G.R. No. L-17983, May 30, 1963; Gumabay v.
Baralin, G.R. No. L-30683, May 31, 1977; Prudence
Realty v. CA, G.R. No. 110274, March 21, 1994)
ALTERNATIVE ANSWER:
The motion to dismiss should be granted.
Jurisdiction must be conferred by the contents of the
original complaint. Amendments are not proper and
should be denied where the court has no jurisdiction
over the original complaint and the purpose of the
amendment is to confer jurisdiction on the court.
(Rosario v. Carandang, G.R. No. L-7076, April 28, 1955)
While a plaintiff is entitled to amend the complaint
before a responsive pleading is served (Sec. 2, Rule 10,
1997 Rules of Civil Procedure; Remington Industrial Sales
Corporation v. Court of Appeals, G.R. No. 133657, May
29, 2002), still, a complaint cannot be amended to
confer
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jurisdiction on a court where there was none to begin
with.
Pleadings; Amendment of Complaint (2008)
No.XI. Arturo lent P1M to his friend Robert on
the condition that Rober execute a promissory
note for the loan and a real estate mortgage
over his property located in Tagaytay City.
Rober complied. In his promissory note dated
September 20, 2006, Robert undertook to pay
the loan within a year from its date at 12% per
annum interest. In June 2007, Arturo
requested Robert to pay ahead of time but the
latter refused and insisted on the agreement.
Arturo issued a demand letter and when
Robert did not comply, Arturo filed an action to
foreclose the mortgage. Robert moved to
dismiss the complatint for lack of cause of
action as the debt was not yet due. The
resolution of the motion to dismiss was delayed
because of the retirement of the Judge. (a) On
October 1, 2007, pending resolution of the
motion to dismiss, Arturo filed an amended
complaint alleging Robert’s debt had in the
meantime become due but that Robert still
refused to pay. Should the amended complaint
be allowed considering that no answer has
been filed? SUGGESTED ANSWER:
No, the complaint may not be amended
under the circumstances. A complaint may
be amended as of right before answer (Sec.
2, Rule 10; See Ong Peng vs. Custodio, G.R.
No. 14911, 12 March 1961; Toyota Motors
[Phils} vs. C.A., G.R. No. 102881, 07
December 1992; RCPI vs. C.A., G.R. No.
121397, 17 April 1997, citing Prudence
Realty & Dev‟t. Corp. vs. C.A., G.R. No.
110274, 21 March 1994; Soledad vs.
Mamangun, 8 SCRA 110), but the
amendment should refer to facts which
occurred prior to the filing of the original
complaint. It thus follows that a complaint
whose cause of action has not yet accrued
cannot be cured or remedied by an amended
or supplemental pleading alleging the
existence or accrual of a cause of action
while the case is pending (Swagman Hotels
& Travel, Inc. vs. C.A., G.R. No. 161135, 08
April 2005).
(b) Would your answer be different had Arturo
filed instead a supplemental complaint stating
that the debt became due after the filing of the
original complaint? SUGGESTED ANSWER: A
supplemental complaint may be filed with
leave of court to allege an event that arose
after the filing of the original complaint
that should have already contained a cause
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
of action (Sec. 6, Rule 10). However, if
no cause of action is alleged in the
original complaint, it cannot be cured by
the filing of a supplement or amendment
to allege the subsequent acquisition of a
cause of action (Swagman Hotels &
Travel, Inc. vs. C.A., G.R. No. 161135, 08
April 2005).
Section 3. Amendments by leave of
court. — Except as provided in the next
preceding section, substantial
amendments may be made only upon
leave of court. But such leave may be
refused if it appears to the court that the
motion was made with intent to delay.
Orders of the court upon the matters
provided in this section shall be made
upon motion filed in court, and after
notice to the adverse party, and an
opportunity to be heard. (3a)
NOTE: The prevailing theory now is that
amendment, even if it changes the nature of the
cause of action or the movant’s theory of the
case (Shaffer vs. Palma, 22 SCRA 934). The
1997 Rules deleted the other ground, under the
old Rules, for the denial of amendment, if such
amendment would substantially alter the cause
of action or defense.
Instances when amendments with leave of
court may not be allowed:
1. Amendment is to confer jurisdiction to
the court
2. Amendment to cure a pre-mature or
non-existing cause of action;
3. Amendment for purposes of delay.
Q: Can amendment cure lack of jurisdiction?
A: Yes if filed before a responsive pleading is
served. If otherwise, it cannot cure lack of
jurisdiction.
Evidence on a matter not alleged in the pleading
(complaint) may be allowed without amendment
thereof over the objections of the adverse party.
In this case, the defendant failed to satisfy the
court that the admission of the evidence would
prejudice him in the maintaining his defense
upon the merits (Sps. Ong vs. CA, L-144581,
July 5, 2002). This is an EXCEPTIONAL case.
The plaintiff was allowed to present evidence
that indeed earnest efforts towards an amicable
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settlement was had, which was, however, not
alleged in the complaint.
Pleadings; Amendment of Complaint; By Leave of Court
(2003)
After an answer has been filed, can the plaintiff amend
his complaint, with leave of court, by changing entirely
the nature of the action? 4%
SUGGESTED ANSWER:
Yes, the present rules allow amendments substantially
altering the nature of the cause of action. (Sec. 3, Rule 10,
1977 Rules of Civil Procedure; Heirs of Marcelino Pagobo v. Court
of Appeals, 280 SCRA 870 [1997]). This should only be true,
however, when the substantial
change or alteration in the cause of action or defense hall
serve the higher interests of substantial justice and
revent delay and equally promote the laudable objective
of the rules which is to secure a just, speedyand
inexpensive disposition of every action and proceeding.
(Valenzuela v. Court of Appeals, 363 SCRA 779 [2001]).
Section 4. Formal amendments. — A defect
in the designation of the parties and other
clearly clerical or typographical errors may be
summarily corrected by the court at any
stage of the action, at its initiative or on
motion, provided no prejudice is caused
thereby to the adverse party. (4a)
SUBSTANTIAL AMENDMENTS- there is a change
the cause of action or the line of defense.
FORMAL AMENDMENTS- there is NO change in
the cause of action or line of defense.
Section 5. Amendment to conform to or
authorize presentation of evidence. —
When issues not raised by the pleadings are
tried with the express or implied consent of
the parties they shall be treated in all
respects as if they had been raised in the
pleadings. Such amendment of the pleadings
as may be necessary to cause them to
conform to the evidence and to raise these
issues may be made upon motion of any
party at any time, even after judgment; but
failure to amend does not affect the result of
the trial of these issues. If evidence is
objected to at the trial on the ground that it
is not within the issues made by the
pleadings, the court may allow the pleadings
to be amended and shall do so with liberality
if the presentation of the merits of the action
and the ends of substantial justice will be
subserved thereby. The court may grant a
continuance to enable the amendment to be
made. (5a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Q: May issues not raised in the pleadings be
raised on trial?
A: generally no because of Rule 9, sec. 1. The
exception is under Rule 10, sec. 5.
Bar Exam Question 2012
78. With leave of court, a party may amend
his pleading if:
a. there is yet no responsive pleading
served.
b. the amendment is unsubstantial.
c. the amendment involves clerical errors of
defect in the designation of a party.
d. the amendment is to conform to the
evidence.
SUGGESTED ANSWER: (d), When issues
not raised by the pleadings are tried with
the express or implied consent of the
parties, they shall be treated in all
respects as if they had been raised in the
pleadings. Such amendment of the
pleadings as may be necessary to cause
them to conform to the evidence and to
raise these issues may be made upon
motion of any party at any time, even
after judgment; but failure to amend
does not affect the result of the trial of
these issues. (Rule 10, Sec. 5, Rules of
Court).
Bar Exam Question 2013
XIX. Danny filed a complaint for damages
against Peter. In the course of the trial,
Peter introduced evidence on a matter not
raised in the pleadings. Danny promptly
objected on the ground that the evidence
relates to a matter not in issue. How should
the court rule on the objection? (1%) (A)
The court must sustain the objection. (B)
The court must overrule the objection.
(C) The court, in its discretion, may
allow amendment of the pleading if
doing so would serve the ends of
substantial justice. (D) The court, in its
discretion, may order that the allegation in
the pleadings which do not conform to the
evidence presented be stricken out. (E) The
matter is subject to the complete discretion
of the court.
SUGGESTED ANSWER: (C), (B), or (A),
Under Section 5 of Rule 10 of the Rules
of Civil Procedure, when issues not
raised by the pleadings are tried with the
express or implied consent of the parties
they shall be treated in all respects as if
59
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they had been raised in the pleadings. Such
amendment of the pleadings as may be
necessary to cause them to conform to the
evidence and to raise these issues may be
made upon motion of any party at any time,
even after judgment; but failure to amend
does not effect the result of the trial of
these issues. If evidence is objected to at
the trial on the ground that it is not within
the issues made by the pleadings, the court
may allow the pleadings to be amended and
shall do so with liberality if the
presentation of the merits of the action and
the ends of substantial justice will be served
thereby. The court may grant a continuance
to enable the amendment to be made. The
Court may sustain the objection because
the evidence introduced by Danny is
immaterial, being a matter which was not
raised as an issue in the pleading. On the
other hand, the Court also overrule the
objection and allow an amendment of the
pleading if doing so would serve the ends of
justice.
Pleadings; Amendment of Complaint; To Conform w/
Evidence (2004)
During trial, plaintiff was able to present, without
objection on the part of defendant in an ejectment case,
evidence showing that plaintiff served on defendant a
written demand to vacate the subject property before the
commencement of the suit, a matter not alleged or
otherwise set forth in the pleadings on file. May the
corresponding pleading still be amended to conform to
the evidence? Explain. (5%)
SUGGESTED ANSWER:
Yes. The corresponding pleading may still be amended
to conform to the evidence, because the written demand
to vacate, made prior to the commencement of the
ejectment suit, was presented by the plaintiff in evidence
without objection on the part of the defendant. Even if
the demand to vacate was jurisdictional, still, the
amendment proposed was to conform to the evidence
that was already in the record and not to confer
jurisdiction on the court, which is not allowed. Failure to
amend, however, does not affect the result of the trial on
these issues. (Sec. 5 of Rule 10).
ALTERNATIVE ANSWER: It depends. In forcible
entry, the motion may be allowed at the discretion of
the court, the demand having been presented at the
trial without objection on the part of the defendant. In
unlawful detainer, however, the demand to vacate is
jurisdictional and since the court did not acquire
jurisdiction from the very beginning, the motion to
conform to the evidence cannot be entertained. The
amendment cannot be allowed because it will in effect
confer jurisdiction when there is otherwise no
jurisdiction.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Admissibility; Document; Not raised in the Pleading
(2004)
In a complaint for a sum of money filed before the
MM RTC, plaintiff did not mention or even just hint
at any demand for payment made on defendant
before commencing suit. During the trial, plaintiff
duly offered Exh. "A" in evidence for the stated
purpose of proving the making of extrajudicial
demand on defendant to pay P500.000, the subject
of the suit. Exh. "A" was a letter of demand for
defendant to pay said sum of money within 10 days
from receipt, addressed to and served on defendant
some two months before suit was begun. Without
objection from defendant, the court admitted Exh.
"A" in evidence. Was the court's admission of Exh.
"A" in evidence erroneous or not? Reason. (5%)
SUGGESTED ANSWER:
The court's admission of Exh. "A" in evidence is not
erroneous. It was admitted in evidence without
objection on the part of the defendant. It should be
treated as if it had been raised in the pleadings. The
complaint may be amended to conform to the
evidence, but if it is not so amended, it does not
affect the result of the trial on this issue. (Sec. 5 of Rule
10).
Section 6. Supplemental pleadings. —
Upon motion of a party the court may,
upon reasonable notice and upon such
terms as are just, permit him to serve a
supplemental pleading setting forth
transactions, occurrences or events which
have happened since the date of the
pleading sought to be supplemented. The
adverse party may plead thereto within
ten (10) days from notice of the order
admitting the supplemental pleading. (6a)
An AMENDED ANSWER is proper if the
counterclaim or cross-claim already existed at
the time the original answer was filed, but due to
oversight, inadvertence, or excusable
negligence, it was not set up.
A SUPLEMENTAL ANSWER is proper if the
counterclaim or cross-claim matures or is
acquired after the answer is filed.
NOTE: The cause of action stated in the
supplemental complaint must be the same as
that stated in the original complaint. Otherwise,
the court should not admit the supplemental
complaint (Asset Privatization Trust vs. CA, 229
SCRA 627)
AMENDED SUPLEMENTAL
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PLEADING PLEADING When to File Responsive Pleadings
Refers to facts existing Refers to facts arising
at the time of the after the original Section 1. Answer to the complaint. —
commencement of the pleading has bee filed The defendant shall file his answer to the
action complaint within fifteen (15) days after
Takes the place of the Taken together with service of summons, unless a different
original pleading the original pleading period is fixed by the court. (la)
Can be made as a
matter of right when no Always with leave of
responsive pleading court Section 2. Answer of a defendant
has been filed foreign private juridical entity. —
When an amended Supplemental pleading Where the defendant is a foreign private
pleading is filed, a new does not require the juridical entity and service of summons is
copy of the entire filing of a new copy of made on the government official
pleading must be filed the entire pleading designated by law to receive the same,
the answer shall be filed within thirty (30)
Section 7. Filing of amended pleadings. — days after receipt of summons by such
When any pleading is amended, a new copy entity. (2a)
of the entire pleading, incorporating the
amendments, which shall be indicated by NOTE: In case of foreign private juridical
appropriate marks, shall be filed. (7a) entity:

1) If it has a resident agent- Within 15 days

An amendment which merely supplements
and amplifies facts originally alleged in the
complaint relates back to the date of the
commencement of the action and is not
barred by the Statute of Limitations which
expired after the service of the original
complaint
Section 8. Effect of amended pleadings. —
An amended pleading supersedes the
pleading that it amends. However,
admissions in superseded pleadings may be
received in evidence against the pleader, and
claims or defenses alleged therein not
incorporated in the amended pleading shall
be deemed waived. (n)
NOTE: Admission in a superseded pleading is an
EXTRA-JUDICIAL ADMISSION and may be proved
by the party relying thereon by formal offer in
evidence.
Some authors, however, are of the opinion that
admissions in a superseded pleadings need not be
offered in evidence pursuant to: Rule 129, sec. 4.
Judicial admissions. — An admission, verbal or written,
made by the party in the course of the proceedings in the
same case, does not require proof. The admission may be
contradicted only by showing that it was made through
palpable mistake or that no such admission was made.
RULE 11
after service of summons to him;
2) If it has no resident agent, but it has an
agent or officer in the Philippines- within 15
days after service of summons to such
agent or officer;
3) If it has no resident agent nor agent nor
officer- In which case service of summons is
to be made on the proper government office
which will then send a copy by registered
mail to home office of the foreign
corporation- within 30 days after receipt of
summons by the home office of the foreign
private entity.
In case of service of summons by publication-
within the time specified in the order granting
leave to serve summons by publication, which
shall not be les than 60 days after notice (Rule
14, sec. 15)
In case of a non-resident defendant on whom
extraterritorial service of summons is made, the
period to answer should be at least 60 days.
The court may extend the time to file the
pleadings BUT may NOT SHORTEN them.
Section 3. Answer to amended
complaint. — When the plaintiff files an
amended complaint as a matter of right,
the defendant shall answer the same
within fifteen (15) days after being served
with a copy thereof.

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 61

________________________________________________________________________________________________
Where its filing is not a matter of right, the
defendant shall answer the amended
complaint within ten (l0) days from notice of
the order admitting the same. An answer
earlier filed may serve as the answer to the
amended complaint if no new answer is filed.
This Rule shall apply to the answer to an
amended counterclaim, amended cross-claim,
amended third (fourth, etc.)—party
complaint, and amended complaint-in-
intervention. (3a)
If no answer is filed, answer to the original
pleading shall be deemed to be the answer to
the amended pleading.
Section 4. Answer to counterclaim or
cross-claim. — A counterclaim or cross-
claim must be answered within ten (10) days
from service. (4)
Section 5. Answer to third (fourth, etc.)-
party complaint. — The time to answer a
third (fourth, etc.)—party complaint shall be
governed by the same rule as the answer to
the complaint. (5a)
Section 6. Reply. — A reply may be filed
within ten (10) days from service of the
pleading responded to. (6)
Section 7. Answer to supplemental
complaint. — A supplemental complaint may
be answered within ten (10) days from notice
of the order admitting the same, unless a
different period is fixed by the court. The
answer to the complaint shall serve as the
answer to the supplemental complaint if no
new or supplemental answer is filed. (n)
NOTE: As in the case of filing of an amended
pleading with leave of court, the filing of
supplemental complaint requires leave of court.
However, unlike the former, the court may fix a
different period for answering the supplemental
complaint, in lieu of the 10-day reglementary period.
Section 8. Existing counterclaim or cross-
claim. — A compulsory counterclaim or a
cross-claim that a defending party has at the
time he files his answer shall be contained
therein. (8a, R6)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 9. Counterclaim or cross-claim
arising after answer. — A counterclaim
or a cross-claim which either matured or
was acquired by a party after serving his
pleading may, with the permission of the
court, be presented as a counterclaim or a
cross-claim by supplemental pleading
before judgment. (9, R6)
Section 10. Omitted counterclaim or
cross-claim. — When a pleader fails to
set up a counterclaim or a cross-claim
through oversight, inadvertence, or
excusable neglect, or when justice
requires, he may, by leave of court, set up
the counterclaim or cross-claim by
amendment before judgment. (3, R9)
Section 11. Extension of time to plead.
— Upon motion and on such terms as may
be just, the court may extend the time to
plead provided in these Rules.
The court may also, upon like terms, allow
an answer or other pleading to be filed
after the time fixed by these Rules. (7)
REQUISITES:
1) There must be a motion;
2) With service of such motion to other
party; and
3) On such terms as may be just.
RULE 12
Bill of Particulars
Section 1. When applied for; purpose.
— Before responding to a pleading, a
party may move for a definite statement
or for a bill of particulars of any matter
which is not averted with sufficient
definiteness or particularity to enable him
properly to prepare his responsive
pleading. If the pleading is a reply, the
motion must be filed within ten (10) days
from service thereof. Such motion shall
point out the defects complained of, the
paragraphs wherein they are contained,
and the details desired. (1a)
Pleadings; Motions; Bill of Particulars (2003)
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1 When can a bill of particulars be availed of?
2 What is the effect of non-compliance with the order of
a bill of particulars? 4%
SUGGESTED ANSWER:
1 Before responding to a pleading, a party may move for
a bill or particulars of any matter which is not averred
with sufficient definiteness or particularity to
enable him properly to prepare his responsive pleading.
If the pleading is a reply, the motion must be filed within
ten (10) days from service thereof. (Sec. 1 of Rule 12)
2 If the order is not complied with, the court may order
the striking out of the pleading or the portions thereof to
which the order was directed or make such other order
as it deems just. (Sec. 4 of Rule 12)
NOTE: An action cannot be dismissed on the
ground that the complaint is vague or indefinite. The
remedy of the defendant is to move for a bill of
particulars or avail of the proper modes of discovery
(Galeon vs. Galeon, 60 SCRA 234)
When filed; within the period to file a responsive
pleading.
The motion shall point out:
1. The defects complained of;
2. The paragraphs wherein they are contained;
3. The details desired.
Section 2. Action by the court. — Upon the
filing of the motion, the clerk of court must
immediately bring it to the attention of the
court which may either deny or grant it
outright, or allow the parties the opportunity
to be heard. (n)
Pleadings; Motions; Bill of Particulars (2008)
No.V. Within the period for filing a responsive
pleading, the defendant filed a motion for bill of
particulars that he set for hearing on a certain
date. However, the defendant was surprised to
find on the date set for hearing that the trial
court had already denied the motion on the
day of its filing, stating that the allegations of
the complaint were sufficiently made. (a) Did
the judge gravely abuse his discretion in acting
on the motion without waiting for the hearing
set for the motion? SUGGESTED ANSWER:
There is no need to set the motion for
hearing. The duty of the clerk of court is to
bring the motion immediately to the
attention of the judge, who may act on it at
once (Sec. 2, Rule 12). (b) If the judge grants
the motion and orders the plaintiff to file and
serve the bill of particulars, can the trial judge
dismiss the case if the plaintiff does not comply
with the order? SUGGESTED ANSWER: Yes,
the judge may dismiss the case for failure of
the plaintiff to comply with its order (Sec.
3, Rule 17) or order the striking out of the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
pleading and may issue any other order
at its discretion (Sec. 4, Rule 12).
Bar Exam Question 2012
6. X filed a motion for Bill of Particulars,
after being served with
summons and a copy of the complaint
However, X's motion did not contain a
notice of hearing. The court may therefore:
a. require the clerk of court to calendar the
motion.
b. motu proprio dismiss the motion for
not complying with Rule 15.
c. allow the parties the opportunity to be
heard.
d. return the motion to X's counsel for
amendment.
SUGGESTED ANSWER: (b), A motion for
bill of particulars which does not contain
a notice of hearing is considered pro
forma. As such, the motion is a useless
piece of paper without force and effect
which must not be taken cognizance by
the Court. (Preysler, Jr. Vs. Manila
Southcoast Development Corporation,
G.R. No. 171872, June 28, 2010).
ALTERNATIVE ANSWER: (c), Under
Section 2, Rule 12 of the Rules of Court,
upon filing of a Motion for Bill of
particulars, the Clerk of Court must
immediately bring it to the attention of
the court which may either deny or
grant it outright, or allow the parties the
opportunity to be heard.
Section 3. Compliance with order. — If
the motion is granted, either in whole or
in part, the compliance therewith must be
effected within ten (10) days from notice
of the order, unless a different period is
fixed by the court. The bill of particulars
or a more definite statement ordered by
the court may be filed either in a separate
or in an amended pleading, serving a copy
thereof on the adverse party. (n)
EFFECTS OF MOTION:
1. If motion is granted, in whole or in part, the
movant can wait until the bill of particulars is
served on him by the opposing party and
then he will have the balance of the
reglementary period within which to file his
responsive pleading;
2. If the motion is denied, he will still have such
balance of the reglementary period to file his
responsive pleading counted from service of
the order denying his motion.
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In either case, he shall have not less than 5 days to
file his responsive pleading.
The bill of particulars may be filed in either in a
separate or an amended pleading, serving a copy
thereof on the adverse party. It becomes part of the
pleading it sought to be clarified.
Section 4. Effect of non-compliance. — If
the order is not obeyed, or in case of
insufficient compliance therewith, the court
may order the striking out of the pleading or
the portions thereof to which the order was
directed or make such other order as it
deems just. (1[c]a)
EFFECTS OF NON-COMPLIANCE:
1. — If the order is not obeyed, or in case of
insufficient compliance therewith, the court may
order:
A. Order the striking out of the pleading or
the portion thereof to which the order is
directed;
B. Make such order as it may deem just.
2. If the plaintiff fails to obey, his complaint may be
dismissed with prejudice unless otherwise
ordered by the court (Rule 12, sec. 4 in relation
to Rule 17, sec. 3);
3. If defendant fails to obey, his answer will be
stricken off and his counterclaim dismissed, and
he will be declared in default upon motion of the
plaintiff(Rule 12, sec. 4 in relation to Rule 17,
sec. 4 and Rule 9, sec. 3).
Section 5. Stay of period to file
responsive pleading. — After service of the
bill of particulars or of a more definite
pleading, or after notice of denial of his
motion, the moving party may file his
responsive pleading within the period to
which he was entitled at the time of filing his
motion, which shall not be less than five (5)
days in any event. (1[b]a)
Section 6. Bill a part of pleading. — A bill
of particulars becomes part of the pleading
for which it is intended. (1[a]a)
RULE 13
Filing and Service of Pleadings,
Judgments and Other Papers
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 1. Coverage. — This Rule shall
govern the filing of all pleadings and other
papers, as well as the service thereof,
except those for which a different mode of
service is prescribed. (n)
Section 2. Filing and service, defined.
— Filing is the act of presenting the
pleading or other paper to the clerk of
court.
Service is the act of providing a party
with a copy of the pleading or paper
concerned. If any party has appeared by
counsel, service upon him shall be made
upon his counsel or one of them, unless
service upon the party himself is ordered
by the court. Where one counsel appears
for several parties, he shall only be
entitled to one copy of any paper served
upon him by the opposite side. (2a)
NOTE: Notice given to a party who is duly
represented by counsel is a nullity, unless
service thereof on the party himself was ordered
by the court or the technical defect was waived.
Bar Exam Question 2012
48. Atty. A drafts a pleading for his client 8
wherein B admits certain facts prejudicial
to his case. The pleading was never filed
but was signed by Atty. A. Opposing
counsel got hold of the pleading and
presents the same in court. Which
statement is the most accurate?
a. The prejudicial statements are not
admissible because the unfiled document
is not considered a pleading.
b. The prejudicial statements are not
admissible because the client did not sign
the pleading.
c. The prejudicial statements are not
admissible because these were not made by
the client in open court.
d. The prejudicial statements are not
admissible because these were made
outside the proceedings.
SUGGESTED ANSWER:
(a), Pleadings are defined as written
statements of the respective claims and
defenses of the parties submitted to the
court for appropriate judgment. (Rule 6,
Sec.1, Rules of Court). Filing is the act of
presenting the pleading or other paper to
the clerk of court. (Rule 13, Sec.2, Rules
of Court). Since Atty. A and his client B
did not file the pleading, and it was
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merely the opposing counsel which
presented the same in court, it should not
be considered to have been filed at all, and
shall not prejudice Atty. A and his client B.
After all, no person may be prejudiced by
the acts of unauthorized strangers.
ALTERNATIVE ANSWER: (d), The Committee
considers this as an alternative answer for a
more liberal view.
Section 3. Manner of filing. — The filing of
pleadings, appearances, motions, notices,
orders, judgments and all other papers shall
be made by presenting the original copies
thereof, plainly indicated as such, personally
to the clerk of court or by sending them by
registered mail. In the first case, the clerk of
court shall endorse on the pleading the date
and hour of filing. In the second case, the
date of the mailing of motions, pleadings, or
any other papers 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 their filing,
payment, or deposit in court. The envelope
shall be attached to the record of the case.
(1a)
Manner of Filing:
1. Personal filing;
2. By Registered mail.
Filing by mail should be trough the registry service
which is made by the deposit of the pleading in the
post office, and not trough any other means of
transmission.
If registry service is not available in the locality of
either sender or addressee, service (filing) may be
done by ordinary mail.
If a Private Carrier is availed by the party, the date
of actual receipt by the court of such pleading, and
not the delivery to the carrier, is deemed the date of
filing of that pleading (Benguet Electric Cooperative
Inc. vs. NLRC, 209 SCRA 55).
Bar Exam Question 2012
87. X filed a complaint with the RTC through
ABC, a private letter forwarding agency. The
date of filing of the complaint shall be:
a. the date stamped by ABC on the envelope
containing the complaint.
b. the date of receipt by the Clerk of Court.
c. the date indicated by the receiving clerk of
ABC.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
d. the date when the case is officially
raffled.
SUGGESTED ANSWER: (b), Under the
Rules, the manner of filing of pleadings,
appearances, motions, notices,
judgments and all other papers shall
only be made by presenting the original
copies thereof, plainly indicated as such,
personally to the clerk of court or by
sending them by registered mail. (Rule
13, Sec.3). Nonetheless, if the complaint
was filed with the court through a
private letter-forwarding agency, the
established rule is that the date of
delivery of pleadings to a private letter-
forwarding agency is not to be
considered as the date of filing in court,
but rather the date of actual receipt by
the court, is deemed to be the date of
filing of the pleading. (Benguet Electric
Cooperative, Inc. vs. National Labor
Relations Commission, G.R. No. 89070,
May 18, 1992). Hence, the date of the
actual receipt by the court is considered
as the date of filing of the complaint.
Section 4. Papers required to be filed
and served. — Every judgment,
resolution, order, pleading subsequent to
the complaint, written motion, notice,
appearance, demand, offer of judgment or
similar papers shall be filed with the court,
and served upon the parties affected. (2a)
Section 5. Modes of service. — Service
of pleadings motions, notices, orders,
judgments and other papers shall be
made either personally or by mail. (3a)
MODES OF SERVICE:
1. Section 6. Personal service;
2. Section 7. Service by mail;
3. Section 8. Substituted service
Section 6. Personal service. — Service
of the papers may be made by delivering
personally a copy to the party or his
counsel, or by leaving it in his office with
his clerk or with a person having charge
thereof. If no person is found in his office,
or his office is not known, or he has no
office, then by leaving the copy, between
the hours of eight in the morning and six
in the evening, at the party's or counsel's
residence, if known, with a person of
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sufficient age and discretion then residing SUBSTITUTED SUBSTITUTED
therein. (4a) SERVICE OF SERVICE OF
PLEADINGS and SUMMONS (sec. 7,
Note: Compare with Rule 14, sec. 6 other papers (sec. 8, Rule 14)
Rule 13)
Allowed only if Applicable only where
Section 7. Service by mail. — Service by
personal service and the defendant is a
registered mail shall be made by depositing service by mail cannot resident of the
the copy in the post office in a sealed be made Philippines, but service
envelope, plainly addressed to the party or in person upon him
his counsel at his office, if known, otherwise cannot be done within
at his residence, if known, with postage fully a reasonable time
prepaid, and with instructions to the Office and place of Place of residence or
postmaster to return the mail to the sender residence of the party office or regular place
after ten (10) days if undelivered. If no or his counsel being of business is known
registry service is available in the locality of unknown
either the senders or the addressee, service Effected by (a) leaving
may be done by ordinary mail. (5a; Bar copies of summons at
Matter No. 803, 17 February 1998) Service is made by defendant’s residence
delivering the copy to with some person of
Section 8. Substituted service. — If service the clerk of court, with suitable age and
proof of failure of both discretion then
of pleadings, motions, notices, resolutions,
personal and service residing therein; or (b)
orders and other papers cannot be made
by mail leaving copies at
under the two preceding sections, the office
defendant’s office or
and place of residence of the party or his regular place of
counsel being unknown, service may be business with some
made by delivering the copy to the clerk of competent person in
court, with proof of failure of both personal charge thereof.
service and service by mail. The service is
complete at the time of such delivery. (6a)
Section 9. Service of judgments, final
Bar Exam Question 2012 orders, or resolutions. — Judgments,
31. Atty. X fails to serve personally a copy of final orders or resolutions shall be served
his motion to Atty. Y because the office and either personally or by registered mail.
residence of Atty. Y and the latter's client When a party summoned by publication
changed and no forwarding addresses were has failed to appear in the action,
given. Atty. X's remedy is to:
judgments, final orders or resolutions
a. Serve by registered mail;
against him shall be served upon him also
b. Serve by publication; by publication at the expense of the
prevailing party. (7a)
c. Deliver copy of the motion to the clerk of
court with proof of failure to serve;
Section 10. Completeness of service. —
d. Certify in the motion that personal service Personal service is complete upon actual
and through mail was impossible. delivery. Service by ordinary mail is
SUGGESTED ANSWER: complete upon the expiration of ten (10)
(c), Since the office and place of residence days after mailing, unless the court
of the Atty. X and the latter‟s clinet otherwise provides. Service by registered
changed and no forwarding address were mail is complete upon actual receipt by
given, Atty. X can deliver a copy of the the addressee, or after five (5) days from
motion by way of substituted service, to the the date he received the first notice of the
clerk of court with proof of failure to serve postmaster, whichever date is earlier. (8a)
the motion, both by way of personal service
or service by mail. (Rule 13, Sec. 8, Rules of
Court). Section 11. Priorities in modes of
service and filing. — Whenever
practicable, the service and filing of
pleadings and other papers shall be done

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 66

________________________________________________________________________________________________
personally. Except with respect to papers
emanating from the court, a resort to other
modes must be accompanied by a written
explanation why the service or filing was not
done personally. A violation of this Rule may
be cause to consider the paper as not filed.
(n)
Section 12. Proof of filing. — The filing of a
pleading or paper shall be proved by its
existence in the record of the case. If it is not
in the record, but is claimed to have been
filed personally, the filing shall be proved by
the written or stamped acknowledgment of
its filing by the clerk of court on a copy of the
same; if filed by registered mail, by the
registry receipt and by the affidavit of the
person who did the mailing, containing a full
statement of the date and place of depositing
the mail in the post office in a sealed
envelope addressed to the court, with
postage fully prepaid, and with instructions to
the postmaster to return the mail to the
sender after ten (10) days if not delivered.
(n)
NOTE: Filing is proved by its existence in the record
of the case.
If it is not in the record:
1. If filed personally- proved by the written or
stamped acknowledgment of its filing by the
clerk of court on a copy of the same; or
2. If filed by registered mail- proved by the
registry receipt and the affidavit of the person
who did the mailing, with full statement of:
a) The date and place of depositing the mail in
the post office in a sealed envelope
addressed to the court;
b) With postage fully paid; and
c) With instructions to the postmaster to return
the mail to the sender after 10 days if not
delivered.
Section 13. Proof of Service. — Proof of
personal service shall consist of a written
admission of the party served, or the official
return of the server, or the affidavit of the
party serving, containing a full statement of
the date, place and manner of service. If the
service is by ordinary mail, proof thereof shall
consist of an affidavit of the person mailing of
facts showing compliance with section 7 of
this Rule. If service is made by registered
mail, proof shall be made by such affidavit
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
and the registry receipt issued by the
mailing office. The registry return card
shall be filed immediately upon its receipt
by the sender or in lieu thereof the
unclaimed letter together with the
certified or sworn copy of the notice given
by the postmaster to the addressee. (10a)
Proof of personal service:
1. Written admission;
2. Official return ;
3. Affidavit of party serving.
Proof of service by ordinary mail: Affidavit of
the person mailing showing compliance with
sec. 7, Rule 13.
Proof of service by registered mail:
1. Affidavit of mailer complying sec. 7,
Rule 13;
2. Registry receipt.
Bar Exam Question 2011
(24) Which of the following is NOT
REGARDED as a sufficient proof of
personal service of pleadings?
(A) Official return of the server. (B)
Registered mail receipt.
(C) Written admission of the party served.
(D) Affidavit of the server with a statement
of the date, place and manner of service.
Section 14. Notice of lis pendens. — In
an action affecting the title or the right of
possession of real property, the plaintiff
and the defendant, when affirmative relief
is claimed in his answer, may record in
the office of the registry of deeds of the
province in which the property is situated
notice of the pendency of the action. Said
notice shall contain the names of the
parties and the object of the action or
defense, and a description of the property
in that province affected thereby. Only
from the time of filing such notice for
record shall a purchaser, or encumbrancer
of the property affected thereby, be
deemed to have constructive notice of the
pendency of the action, and only of its
pendency against the parties designated
by their real names.
The notice of lis pendens hereinabove
mentioned may be cancelled only upon
order of the court, after proper showing
that the notice is for the purpose of
molesting the adverse party, or that it is
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not necessary to protect the rights of the
rights of the party who caused it to be
recorded. (24a, R-14)
REQUISITES FOR A NOTICE OF LIS PENDENS:
1. Action affects the title or the right of possession
over real property;
2. Affirmative relief is claimed;
3. Notice shall contain the name of the parties and
the object of the action or the defense and a
description of the property affected; and
4. The action is in rem (AFP Mutual Benefit
Association, Inc. vs. CA, 327 SCRA 203).
This SERVES as a WARNING to all persons,
prospective purchasers or encumbrancers of the
property in litigation to keep their hands off the
property in litigation unless they are prepared to
gamble on the result of the proceedings.
The defendant may also record a notice of lis
pendens when he claims an affirmative relief in his
answer.
Note that the notice of lis pendens cannot be
cancelled on an ex parte motion or by filing a
bond
RULE 14
Summons
Jurisdiction over the person of the defendant is
acquired either by his voluntary appearance or by
service of summons (Minucher vs. CA, 214 SCRA
242).
SUMMON- It is the writ by which the defendant is
notified of the action brought against him.
PURPOSES OF SUMMONS:
1. To acquire jurisdiction over the defendant;
2. To give notice to defendant (Right to Due
Process of Law)
EFFECT OF NON-SERVICE
Unless the defendant voluntarily submits to the
jurisdiction of the court, non-service or the irregular
service of summons renders null and void all the
subsequent proceedings and issuances in the action
from the order of default up to and including the
judgment by default and the order of execution.
Judgment rendered without jurisdiction over the
person of the defendant s void for “lack of due
process”.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
NOTE: Where the defendant has already been
served with summons on the original complaint,
no further summons is required if the amended
complaint does not introduces new causes of
action (Ong Peng vs. Custodio, 1 SCRA 780).
HOWEVER, although it is well-settled that an
amended complaint supersedes the original one,
new summons to the defendant (meaning he
has been previously served with summons
under the original complaint) shall be served
upon him ONLY if he has not yet appeared in
court in connection with the original complaint,
like filing a motion to dismiss or an answer. Rule
still applies even if amended complaint alleges
new causes of action (Pan-Asiatic Travel Corp.
vs. CA, 164 SCRA 623 [1988]).
But where the defendant was declared in default
on the original complaint and the plaintiff
subsequently filed an amended complaint, new
summons must be served on the defendant on
the amended complaint , as the original
complaint was deemed withdrawn upon such
amendment (Atkins vs. Domingo, 44 Phil 680)
GR: When additional defendant is joined,
summons must be served upon him.
EXCEPTIONS:
1. When the administrator of a deceased
party defendant substitutes the
deceased;
2. Where upon the death of the original
defendant, his infant heirs are made
parties;
3. In cases of substitution of deceased
under Rule 3, sec. 16
Section 1. Clerk to issue summons. —
Upon the filing of the complaint and the
payment of the requisite legal fees, the
clerk of court shall forthwith issue the
corresponding summons to the
defendants. (1a)
Section 2. Contents. — The summons
shall be directed to the defendant, signed
by the clerk of court under seal and
contain
(a) the name of the court and the names
of the parties to the action;
(b) a direction that the defendant answer
within the time fixed by these Rules;
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(c) a notice that unless the defendant so
answers plaintiff will take judgment by
default and may be granted the relief applied
for.
A copy of the complaint and order for
appointment of guardian ad litem if any, shall
be attached to the original and each copy of
the summons. (3a)
Section 3. By whom served. — The
summons may be served by the sheriff, his
deputy, or other proper court officer, or for
justifiable reasons by any suitable person
authorized by the court issuing the summons.
(5a)
NOTE: the enumeration is EXCLUSIVE.
Bar Exam Question 2012
40. W, a legal researcher in the RTC of Makati,
served summons on an amended complaint on
Z at the latter's house on a Sunday. The
service is invalid because:
a. it was served on a Sunday.
b. the legal researcher is not a "proper court
officer".
c. (a) and (b) above
d. there is no need to serve summons on an
amended complaint.
SUGGESTED ANSWERS: (b), The Rules do
not allow a legal researcher to serve
summons on amended complaint. He is not
the proper court officer who is duly
authorized to serve the summons to the
defendants. The question is about validity
and not superfluity. (d), Where the
defendants have already appeared before
the trial court by virtue of a summons on
the original complaint, the amended
complaint may be served upon them
without need of another summons, even if
new causes of action are alleged. (Vlason
Enterprises Corporation vs. Court of
Appeals, G.R. Nos. 121662-64, July 6,
1999).
Section 4. Return. — When the service has
been completed, the server shall, within five
(5) days therefrom, serve a copy of the
return, personally or by registered mail, to
the plaintiff's counsel, and shall return the
summons to the clerk, who issued it,
accompanied by proof of service. (6a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 5. Issuance of alias summons.
— If a summons is returned without being
served on any or all of the defendants, the
server shall also serve a copy of the
return on the plaintiff's counsel, stating
the reasons for the failure of service,
within five (5) days therefrom. In such a
case, or if the summons has been lost, the
clerk, on demand of the plaintiff, may
issue an alias summons. (4a)
ALIAS SUMMONS
It is the one issued when the original has not
produced its effect because of a defect in form
or in the manner of service. When issued, it
supersedes the fist writ.
NOTE: Motion to Dismiss on the ground of lack
of jurisdiction over the person of the defendant
may be rendered moot and academic if, instead
of hearing the motion, the court issues alias
summons (Teh vs. CA, L-147038, April 24,
2003).
MODES OF SERVICE OF SUMMONS
1. Service in person on defendant (sec. 6);
2. Substituted service (sec. 7);
3. Publication (sec. 14).
Section 6. Service in person on
defendant. — Whenever practicable, the
summons shall be served by handling a
copy thereof to the defendant in person,
or, if he refuses to receive and sign for it,
by tendering it to him. (7a)
Note: Connect with Rule 13, sec. 6.
Section 7. Substituted service. — If, for
justifiable causes, the defendant cannot
be served within a reasonable time as
provided in the preceding section, service
may be effected (a) by leaving copies of
the summons at the defendant's residence
with some person of suitable age and
discretion then residing therein, or (b) by
leaving the copies at defendant's office or
regular place of business with some
competent person in charge thereof. (8a)
For substituted service to be valid, it is
necessary to establish the following;
1. The impossibility of personal service of
summons within a reasonable time;
2. The efforts exerted to locate the person to
be served; and
3. Service upon a person of sufficient age and
discretion residing in the same place as
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defendant or some competent person in charge
of the office or regular place of business.
In substituted service, the sheriff’s return must show
that an effort or attempt was exerted to personally
serve the summons on the defendant and that the
same had failed (Venturanza vs. CA, 156 SCRA
305)
Summons; Valid Service (2013) No.I. Alfie
Bravo filed with the Regional Trial Court of
Caloocan, a complaint for a sum of money
against Charlie Delta. The claim is for
Php1.5Million. The complaint alleges that
Charlie borrowed the amount from Alfie and
duly executed a promissory note as evidence of
the loan. Charlie’s office secretary, Esther,
received the summons at Charlie’s office.
Charlie failed to file an answer within the
required period, and Alfie moved to declare
Charlie in default and to be allowed to present
evidence ex parte. Ten days later, Charlie filed
his verified answer, raising the defense of full
payment with interest. (A) Was there proper
and valid service of summons on Charlie? (3%)
SUGGESTED ANSWER: No. There is no
showing that earnest efforts were exerted to
personally serve the summons on the
defendant before substituted service was
resorted to: hence, the service of summons
was improper. In an action strictly in
personam like a complaint for a sum of
money, personal service on the defendant is
the preferred mode of service, that is, by
handing a copy of the summons to the
defendant in person. If defendant, for
excusable reasons, cannot be served with
the summons within a reasonable period,
then substituted service can be resorted to
(Manotoc vs. Court of Appeals, G.R. No.
130974, August 16, 2006, Velasco, J.).
Otherwise stated, it is only when the
defendant cannot be served personally
within a reasonable time that a substituted
service may be made. Impossibility of
prompt service should be shown by stating
the efforts made tofind the defendant
personally and the fact that such efforts
failed. This statement should be made in
the proof of service (Galura vs. Math-Agro
Corporation, G.R. No. 167230, August 14,
2009, 1st Division, Carpio, J.).
ALTERNATIVE ANSWER: Yes. If earnest
efforts were exerted to serve the summons
in persons but the same proved futile, then
substituted service through defendant‟s
secretary is valid. In Gentle Supreme
Philippines, Inc. vs. Ricardo Consulta, G.R.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
No. 183182, September 1, 2010, the
Supreme Court held that it is not
necessary that the person in charge of
the defendant‟s regular place of business
be specifically authorized to receive the
summons. It is enough that he appears
to be in charge. Consequently, the
substituted service of summons to the
defendant‟s secretary in the office is
valid.
(B) If declared in default, what can Charlie
do to obtain relief? (4%) SUGGESTED
ANSWER: If Charlie is declared in
default, he has the following remedies to
wit: 1) he may, at any time after
discovery of the default but before
judgment, file a motion, under oath, to
set aside the order of default on the
ground that his failure to answer was
due to fraud, accident, mistake, or
excusable neglect, and that he has a
meritorious defense; 2) if judgment has
already been rendered when he
discovered the default, but before the
same has become final and executor, he
may file a motion for new trial under
Section 1(a) of Rule 37: 3) if he
discovered the default after the
judgment has become final and executor,
he may file a petition for relief under
Section 2 of Rule 38; and 4) he may also
appeal from the judgment rendered
against him as contrary to the evidence
or to the law, even if no petition to set
aside the order of default has been
presented by him. (B.D. Longspan
Builders, Inc. vs. R.S. Ampeloquio Realty
Development, G.R. No. 169919,
September 11, 2009). [Note: there are
additional remedies to address
judgments by default: Motion for
Reconsideration (Rule 37), Annulment of
Judgment (Rule 47) and Petition for
Certiorari (Rule 65).
ALTERNATIVE ANSWER: The court
committed grave abuse of discretion
when it declared the defending party in
default despite the latter‟s filing of an
Answer. Thus, a petition for certiorari
under Rule 65 is the proper remedy. In
San Pedro Cineplex Properties vs. Heirs
of Manuel Humada Enano, G.R. No.
190754, November 17, 2010, the
Supreme Court held that where the
answer is filed beyond the reglementary
period but before the defendant is
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declared in default and there is no showing
that defendant intends to delay the case,
the answer should be admitted. Thus, it was
error to declare the defending party in
default after the Answer was filed (See
Sablas vs. Sablas, G.R. No. 144568, July 3,
2007). After all, the defect in the service of
summons was cured by Charlie‟s filing of a
verified answer raising only the defense of
full payment. The belated filing of verified
Answer amounts to voluntary submission to
the jurisdiction of the court and waiver of
any defect in the service of summons.
Summons; Substituted Service (2004)
Summons was issued by the MM RTC and actually
received on time by defendant from his wife at their
residence. The sheriff earlier that day had delivered the
summons to her at said residence because defendant
was not home at the time. The sheriffs return or proof
of service filed with the court in sum states that the
summons, with attached copy of the complaint, was
served on defendant at his residence thru his wife, a
person of suitable age and discretion then residing
therein. Defendant moved to dismiss on the ground that
the court had no jurisdiction over his person as there
was no valid service of summons on him because the
sheriffs return or proof of service does not show that the
sheriff first made a genuine attempt to serve the
summons on defendant personally before serving it thru
his wife. Is the motion to dismiss meritorious? What is
the purpose of summons and by whom may it be
served? Explain. (5%)
SUGGESTED ANSWER:
The motion to dismiss is not meritorious because the
defendant actually received the summons on time from
his wife. Service on the wife was sufficient. (Boticano v.
Chu, 148 SCRA 541 [1987]). It is the duty of the court to
look into the sufficiency of the service. The sheriffs
negligence in not stating in his return that he first made
a genuine effort to serve the summons on the defendant,
should not prejudice the plaintiff. (Mapa v. Court of
Appeals, 214 SCRA 417/1992). The purpose of the
summons is to inform the defendant of the complaint
filed against him and to enable the court to acquire
jurisdiction over his person. It may be served by the
sheriff or his deputy or any person authorized by the
court.
ALTERNATIVE ANSWER:
Yes. The motion to dismiss is meritorious. Substituted
service cannot be effected unless the sheriffs return
shows that he made a genuine attempt to effect personal
service on the husband.
(Note that the service of summon is strictly construed
against the government and liberally in favor to the
accused/defendant).
Summons; Validity of Service; Effects (2006)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Tina Guerrero filed with filed the Regional Trial
Court of Binan, Laguna, a complaint for sum of
money amounting to P1 Million against Carlos
Corro. The complaint alleges, among others, that
Carlos borrowed from Tina the said amount as
evidenced by a promissory note signed by Carlos and
his wife, jointly and severally. Carlos was served with
summons which was received by Linda, his
secretary.
However, Carlos failed to file an answer to the
complaint within the 15-day reglementary period.
Hence, Tina filed with the court a motion to declare
Carlos in default and to allow her to present
evidence ex parte. Five days thereafter, Carlos filed
his verified answer to the complaint, denying under
oath the genuineness and due execution of the
promissory note and contending that he has fully
paid his loan with interest at 12% per annum.
1. Was the summons validly served on Carlos?
(2.5%)
ALTERNATIVE ANSWER:
The summons was not validly served on Carlos
because it was served on his secretary and the
requirements for substituted service have not been
followed, such as a showing that efforts have been
exerted to serve the same on Carlos and such
attempt has failed despite due diligence (Manotoc
v. CA, G.R. No. 130974, August 16, 2006; An Ping v.
CA, G.R. No. 126947, July 15, 1999).
ALTERNATIVE ANSWER:
Service of Summons on Carlos was validly served
upon him if the Return will show that it was done
through Substituted Service because the defendant
can not be served personally within a reasonable
time despite diligent efforts made to serve the
summons personally.
Linda, the secretary of defendant Carlos, must
likewise be shown to be a competent person in
charge of defendant's office where summons was
served (Sec. 7, Rule 14).
2. If you were the judge, will you grant Tina's
motion to declare Carlos in default? (2.5%)
ALTERNATIVE ANSWER:
If I were the judge, I will not grant Tina's motion to
declare Carlos in default because summons was not
properly served and anyway, a verified answer to the
complaint had already been filed. Moreover, it is
better to decide a case on the merits rather than on
technicality.
ALTERNATIVE ANSWER:
Yes. If it was shown that summons was validly
served,
and that the motion to declare Carlos in default was
duly furnished on Carlos, and after conducting a
hearing on the same motion.
NOTE: Summons is validly served if it is left with
some person of suitable age and discretion then
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residing in the defendant’s residence, even if the
defendant was abroad at that time. The fact that the
defendant did not actually receive the summons did
not invalidate the service of such summons
(Montalban vs. Maximo 22 SCRA 1070).
Dwelling house or RESIDENCE refers to the place
where the person named in the summons is living at
the time when the service is made, even though
he may be temporarily out of the country at the time.
Service on a person at the place where he was a
visitor – not considered to have been left at the
residence or place or abode, where he has another
place at which he ordinarily stays and he intends to
return. (Dumagas vs Jensen, L-158407, Jan. 17,
2005, 448 SCRA 663, 2nd Div.)
Invalid service of summons. This issue shall be
raised at the very start.
Note: Presumption of regularity of performance
of official duty does not apply in substituted
service of summons. The duty to be performed
has the direct bearing on the acquisition of
jurisdiction over the person of the defendant.
Section 8. Service upon entity without
juridical personality. — When persons
associated in an entity without juridical
personality are sued under the name by
which they are generally or commonly
known, service may be effected upon all the
defendants by serving upon any one of them,
or upon the person in charge of the office or
place of business maintained in such name.
But such service shall not bind individually
any person whose connection with the entity
has, upon due notice, been severed before
the action was brought. (9a)
Bar Exam Question 2011
(68) Summons was served on "MCM Theater," a
business entity with no juridical personality,
through its office manager at its place of
business. Did the court acquire jurisdiction
over MCM Theater’s owners? (A) Yes, an
unregistered entity like MCM Theater may
be served with summons through its office
manager. (B) No, because MCM has no
juridical personality and cannot be sued. (C)
No, since the real parties in interest, the
owners of MCM Theater, have not been served
with summons. (D) Yes since MCM, as
business entity, is a de facto partnership with
juridical personality.
Section 9. Service upon prisoners. — When
the defendant is a prisoner confined in a jail
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
or institution, service shall be effected
upon him by the officer having the
management of such jail or institution
who is deemed deputized as a special
sheriff for said purpose. (12a)
Section 10. Service upon minors and
incompetents. — When the defendant is
a minor, insane or otherwise an
incompetent, service shall be made upon
him personally and on his legal guardian
if he has one, or if none his guardian ad
litem whose appointment shall be applied
for by the plaintiff. In the case of a minor,
service may also be made on his father or
mother. (l0a, 11a)
Section 11. Service upon domestic
private juridical entity. — When the
defendant is a corporation, partnership or
association organized under the laws of
the Philippines with a juridical personality,
service may be made on the president,
managing partner, general manager,
corporate secretary, treasurer, or in-
house counsel. (13a)
Note: The list is exclusive.
Section 12. Service upon foreign
private juridical entities. — When the
defendant is a foreign private juridical
entity which has transacted business in
the Philippines, service may be made on
its resident agent designated in
accordance with law for that purpose, or,
if there be no such agent, on the
government official designated by law to
that effect, or on any of its officers or
agents within the Philippines. (14a)
Section 13. Service upon public
corporations. — When the defendant is
the Republic of the Philippines, service
may be effected on the Solicitor General;
in case of a province, city or municipality,
or like public corporations, service may be
effected on its executive head, or on such
other officer or officers as the law or the
court may direct. (15)
Section 14. Service upon defendant
whose identity or whereabouts are
unknown. — In any action where the
defendant is designated as an unknown
owner, or the like, or whenever his
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whereabouts are unknown and cannot be
ascertained by diligent inquiry, service may,
by leave of court, be effected upon him by
publication in a newspaper of general
circulation and in such places and for such
time as the court may order. (16a)
[Constructive Service of Summons]
NOTE: In actions in personam where the defendant
cannot be served with summons personally or by
substituted service, the case must first be converted
to an action in rem or quasi in rem by attaching the
property of the defendant found in the Philippines
before summons can be served by publication.
If no property can be found, the action shall be
archived but not be dismissed (Citizens Surety vs.
Melencio-Herrera, 38 SCRA 369)
Section 15. Extraterritorial service. —
When the defendant does not reside and is
not found in the Philippines, and the action
affects the personal status of the plaintiff or
relates to, or the subject of which is, property
within the Philippines, in which the defendant
has or claims a lien or interest, actual or
contingent, or in which the relief demanded
consists, wholly or in part, in excluding the
defendant from any interest therein, or the
property of the defendant has been attached
within the Philippines, service may, by leave
of court, be effected out of the Philippines by
1
personal service as under section 6; or by
2
publication in a newspaper of general
circulation in such places and for such time as
the court may order, in which case a copy of
the summons and order of the court shall be
sent by registered mail to the last known
address of the defendant, or in 3any other
manner the court may deem sufficient. Any
order granting such leave shall specify a
reasonable time, which shall not be less than
sixty (60) days after notice, within which
the defendant must answer. (17a)
Note: The purpose is not to acquire jurisdiction but
of due process requirement. This section does not
apply to purely personal actions.
Bar Exam Question 2013
XVI. Extra-territorial service of summons is
proper in the following instances, except
__________. (1%)
(A) when the non-resident defendant is to be
excluded from any interest on a property
located in the Philippines
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(B) when the action against the non-
resident defendant affects the personal
status of the plaintiff and the defendant is
temporarily outside the Philippines (C)
when the action is against a non-resident
defendant who is formerly a Philippine
resident and the action affects the personal
status of the plaintiff (D) when the action
against the non-resident defendant relates
to property within the Philippines in which
the defendant has a claim or lien (E) All of
the above. SUGGESTED ANSWER:
There is no correct answer. Under
Section 15 of Rule 14 of the Rules of
Court, extraterritorial service of
summons is applicable, when the
defendant does not reside and is not
found in the Philippines, and the action
affects the personal status of the
plaintiff or relates to, or the subject of
which is, property within the
Philippines, in which the defendant has
or claims a lien or interest, actual or
contingent, or in which the relief
demanded consists, wholly or in part, in
excluding the defendant from any
interest therein, or the property of the
defendant has been in the Philippines. In
Spouses Domingo M. Belen vs. Hon.
Pablo R. Chavez, G.R. No.175334, march
26, 2008, the Supreme Court held that if
the resident defendant is temporarily
out of the country, any of the following
modes of service may be resorted to: (1)
Substituted service set forth in Section
8; (2) personal service outside the
country, with leave of court; (3) service
by publication, also with leave of court;
or (4) any other manner the court may
deem sufficient. Hence, extra-territorial
service of summons is applicable to all
choices given above. ALTERNATIVE
ANSWER:
(B), Under Section 16, Rule 14 of the
Rules of Civil Procedure, when any
action is commenced against a
defendant who ordinarily resides within
the Philippines, but who is temporarily
out of it, service may, by leave of court,
be also effected out of Philippines, as
under the preceding section (Section 15,
Rule 14). Clearly, a non-resident
defendant cannot be considered
temporarily outside the Philip[pines
because Section 14, Rule 14 refers to a
resident defendant who is only
temporarily outside the Philippines.
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Summons; By Publication (2008)
No.I. Lani filed an action for partition and
accounting in the Regional Trial Court (RTC) of
Manila against her sister Mary Rose, who is a
resident of Singapore and is not found in the
Philippines. Upon motion, the court ordered
the Publication of the summons for three
weeks in a local tabloid, Bulgar. Linda, an
OFW vacationing in the Philippines, saw the
summons in Bulgar and brought a copy of the
tabloid when she returned to Singapore. Linda
showed the tabloid and the page containing the
summons to Mary Rose, who said, “Yes I know,
my kumare Anita scanned and e-mailed that
page of Bulgar to me!” Did the court acquire
jurisdiction over Mary Rose? SUGGESTED
ANSWER: Partition is an action quasi in
rem. Summons by publication is proper
when the defendant does not reside and is
not found in the Philippines, provided that
a copy of the summons and order of the
court are sent by registered mail to the last
known address of the defendant (Sec. 15,
Rule 14). Publication of the notice in
Bulgar, a newspaper of general circulation,
satisfies the requirements of summons by
publication (Perez vs. Perez, G.R. No
145368, 28 March 2005).
Summons; Served by Email (2009)
No.I.E. Summons may be served by mail.
SUGGESTED ANSWER: FALSE. Rule 14 of
the Rules of Court, on Summons, provide
only for serving Summons (a) to the
defendant in person; or (b) if this is not
possible within a reasonable time, then by
substituted service in accordance with Sec.
7 thereof; or (c) if any of the foregoing two
ways is not possible, then with leave of
court, by publication in accordance with the
same Rule. ALTERNATIVE ANSWER: TRUE,
but only in extraterritorial service under
Sec. 15 of the Rule on Summons where
service may be effected “in any other
manner the court may deem sufficient.”
Section 16. Residents temporarily out of
the Philippines. — When any action is
commenced against a defendant who
ordinarily resides within the Philippines, but
who is temporarily out of it, service may, by
leave of court, be also effected out of the
Philippines, as under the preceding section.
(18a)
Section 17. Leave of court. — Any
application to the court under this Rule for
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
leave to effect service in any manner for
which leave of court is necessary shall be
made by motion in writing, supported by
affidavit of the plaintiff or some person on
his behalf, setting forth the grounds for
the application. (19)
Section 18. Proof of service. — The
proof of service of a summons shall be
made in writing by the server and shall
set forth the manner, place, and date of
service; shall specify any papers which
have been served with the process and
the name of the person who received the
same; and shall be sworn to when made
by a person other than a sheriff or his
deputy. (20)
Bar Exam Question 2012
54. Proof of service of summons shall be
through the following, except :
a. written return of the sheriff;
b. affidavit of the person serving summons;
c. affidavit of the printer of the publication;
d. written admission of the party served.
SUGGESTED ANSWER: (d), Proof of
service of summons shall be made in
writing by the server and shall be sworn
to when made by a person other than a
sheriff or his deputy. (Rule 14, Sec. 18,
Rules of Court). If the service has been
made by publication, it may be proved by
the affidavit of the printer to which a
copy of the publication shall be
attached, and directed to the defendant
by registered mail to his last known
address. (Rule 14, Sec. 19, Rules of
Court).
Section 19. Proof of service by
publication. — If the service has been
made by publication, service may be
proved by the affidavit of the printer, his
foreman or principal clerk, or of the
editor, business or advertising manager,
to which affidavit a copy of the publication
shall be attached and by an affidavit
showing the deposit of a copy of the
summons and order for publication in the
post office, postage prepaid, directed to
the defendant by registered mail to his
last known address. (21)
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Section 20. Voluntary appearance. — The (Sec. 11, Rule 14) They have been removed from those
defendant's voluntary appearance in the who can be served with summons for a domestic
action shall be equivalent to service of corporation. Cashier was substituted by treasurer.
summons. The inclusion in a motion to (Id.)
dismiss of other grounds aside from lack of Note: Under the present rules, security guards
jurisdiction over the person of the defendant of corporation, when it is a usual practice and is
shall not be deemed a voluntary appearance. allowed by the BOD, to receive any letter for the
(23a) Corporation, is a valid service of
summon.(Citation omitted)
NOTE: Any form of appearance in court, by the
defendant, by his agent authorized to do so, or by
attorney, is equivalent to service of summons except RULE 15
where such appearance is precisely to object to the
jurisdiction of the court over the person of the Motions
defendant. Example; filing a bill of particulars, or a
motion for extension of time to file answer. KINDS OF MOTIONS

The Inclusion in a motion to dismiss of other 1. Motion EX PARTE

grounds, aside from lack of jurisdiction over the
person of the defendant, SHALL NOT BE DEEMED
VOLUNTARY APPEARANCE.
Reason: Omnibus Motion Rule
It is made without the presence or
notification to the other party because the
question, generally, presented is not
debatable (i.e. motion for extension of time
to file pleadings)

Summons (1999) 2. Motion OF COURSE

a) What is the effect of absence of summons on the It is where the movant is entitled to the relief
judgment rendered in the case? (2%) or remedy sought as a matter of discretion
b) When additional defendant is impleaded in the action, on the part of the court.
is it necessary that summons be served upon him?
Explain. (2%) 3. LITIGATED motion
c) Is summons required to be served upon a defendant It is the one made with notice to the adverse
who was substituted for the deceased? party to give an opportunity to oppose
Explain. (2%) (Motion to dismiss)
d) A sued XX Corporation (XXC), a corporation
organized under Philippine laws, for specific 4. SPECIAL motion
performance when the latter failed to deliver T-shirts to It is a motion addressed to the discretion of
the former as stipulated in their contract of sale. the court.
Summons was served on the corporation's cashier and
director. Would you consider service of summons on GR; A motion cannot pray for judgment.
either officer sufficient? Explain. (2%) EXCEPTIONS:
SUGGESTED ANSWER: 1. Motion for judgment on the pleadings;
a) The effect of the absence of summons on a judgment 2. Motion for summary judgment;
would make the judgment null and void because the 3. Motion for judgment on demurrer to
court would not have jurisdiction over the person of the evidence.
defendant, but if the defendant voluntarily appeared
before the court, his appearance is equivalent to the Section 1. Motion defined. — A motion is
service of summons. (Sec. 20, Rule 14) an application for relief other than by a
b) Yes. Summons must be served on an additional pleading. (1a)
defendant impleaded in the action so that the court can
acquire jurisdiction over him, unless he makes a Section 2. Motions must be in writing.
voluntary appearance. — All motions shall be in writing except
c) No. A defendant who was substituted for the those made in open court or in the course
deceased need not be served with summons because it of a hearing or trial. (2a)
is the court which orders him as the legal representative
of the deceased to appear and substitute the deceased. Section 3. Contents. — A motion shall
(Sec. 16 of Rule 3.)
state the relief sought to be obtained and
d) Summons on a domestic corporation through its
cashier and director are not valid under the present rules. the grounds upon which it is based, and if
required by these Rules or necessary to

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 75

________________________________________________________________________________________________
prove facts alleged therein, shall be
accompanied by supporting affidavits and
other papers. (3a)
REQUISITES OF A MOTION (not made in open
court or in the course of the proceedings):
1. In writing;
2. Hearing of motion set by the applicant;
3. Notice of hearing (specific time and date of
hearing which is not later than 10 days form
filing);
4. Service of motion and notice of hearing to other
party at least 3 days before date of hearing;
5. Proof of service.
PURPOSE OF 3 DAY NOTICE RULE
a. To avoid surprise;
b. To enable the adverse party to prepare for his
defense.
EXCEPTIONS TO THE THREE DAY NOTICE
RULE:
1. Ex parte motions;
2. Urgent motions;
3. Motions agreed upon by the parties to be heard
on shorter notice;
4. Motions jointly submitted by the parties;
5. Motion for summary judgment- served at least
10 days before its hearing.
Section 4. Hearing of motion. — Except for
motions which the court may act upon
without prejudicing the rights of the adverse
party, every written motion shall be set for
hearing by the applicant.
Every written motion required to be heard
and the notice of the hearing thereof shall be
served in such a manner as to ensure its
receipt by the other party at least three (3)
days before the date of hearing, unless the
court for good cause sets the hearing on
shorter notice. (4a)
Reglementary Period; Supplemental Pleadings (2000)
The RTC rendered judgment against ST, copy of which
was received by his counsel on February 28, 2000. On
March 10, 2000, ST, through counsel, filed a motion for
reconsideration of the decision with notice to the Clerk
of Court submitting the motion for the consideration of
the court. On March 15, 2000, realizing that the Motion
lacked a notice of hearing, ST’s counsel filed a
supplemental pleading. Was the motionfor
Reconsideration filed within the reglementary period?
Explain. (5%)
SUGGESTED ANSWER:
Yes, because the last day of filing a motion for
reconsideration was March 15 if February had 28 days or
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
March 16 if February had 29 days. Although the
original motion for reconsideration was defective
because it lacked a notice of hearing, the defect was
cured on time by its filing on March 15 of a
supplemental pleading, provided that motion was set
for hearing and served on the adverse party at least
three (3) days before the date of hearing.(Sec. 4, Rule
15).
ALTERNATIVE ANSWER:
Since the supplemental pleading was not set for
hearing, it did not cure the defect of the original
motion.
Section 5. Notice of hearing. — The
notice of hearing shall be addressed to all
parties concerned, and shall specify the
time and date of the hearing which must
not be later than ten (10) days after the
filing of the motion. (5a)
Section 6. Proof of service necessary.
— No written motion set for hearing shall
be acted upon by the court without proof
of service thereof. (6a)
NOTE: A motion that does not comply with
sections 4, 5, and 6 is a MERE SCRAP of
PAPER.
It will not toll the running of the period to file the
appropriate pleading.
Section 7. Motion day. — Except for
motions requiring immediate action, all
motions shall be scheduled for hearing on
Friday afternoons, or if Friday is a non-
working day, in the afternoon of the next
working day. (7a)
NOTE: In actual practice, motion day is
sometime held in the morning or some other
time when no one objects thereto (Atty. Ucat)
Section 8. Omnibus motion. — Subject
to the provisions of section 1 of Rule 9, a
motion attacking a pleading, order,
judgment, or proceeding shall include all
objections then available, and all
objections not so included shall be
deemed waived. (8a)
NOTE: This is the OMNIBUS MOTION RULE
Non-waivable defenses under Rule 9, sec. 1:
1. Lack of jurisdiction over subject matter;
2. Litis pendentia;
3. Res judicata;
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4. Prescription.
NOTE: The omnibus motion rule does not apply if
the defendant, instead of filing a motion to dismiss,
pleaded the grounds for a motion to dismiss as
affirmative defenses in his answer (Ucat).
Bar Exam Question 2011
(65) The defendant in an action for sum of
money filed a motion to dismiss the complaint
on the ground of improper venue. After
hearing, the court denied the motion. In his
answer, the defendant claimed prescription of
action as affirmative defense, citing the date
alleged in the complaint when the cause of
action accrued. May the court, after hearing,
dismiss the action on ground of prescription?
(A) Yes, because prescription is an exception
to the rule on Omnibus Motion. (B) No,
because affirmative defenses are barred by the
earlier motion to dismiss. (C) Yes, because the
defense of prescription of action can be raised
at anytime before the finality of judgment. (D)
No, because of the rule on Omnibus Motion.
Pleadings; Motions; Omnibus Motion Rule
(2010)
No.V. Charisse, alleging that she was a
resident of Lapu-Lapu City, filed a complaint
for damages against Atlanta Bank before the
RTC of Lapu-Lapu City, following the dishonor
of a check she drew in favor of Shirley against
her current account which she maintained in
the bank’s local branch.
The bank filed a Motion to Dismiss the
complaint on the ground that it failed to state a
cause of action, but it was denied. It thus filed
an Answer.
(a) In the course of the trial, Charisse admitted
that she was a US citizen residing in Los
Angeles, California and that she was
temporarily billeted at the Pescado Hotel in
Lapu-Lapu City, drawing the bank to file
another motion to dismiss, this time on the
ground of improper venue, since Charisse is
not a resident of Lapu-Lapu City. Charisse
opposed the motion citing the "omnibus motion
rule." Rule on the motion. (3%) SUGGESTED
ANSWER: The bank‟s second motion to
dismiss which is grounded on improper
venue, should be denied. The improper
venue of an action is deemed waived by the
bank‟s filing an earlier motion to dismiss
without raising improper venue as an issue,
and more so when the bank filed an Answer
without raising improper venue as an issue
after its first motion to dismiss was denied.
Under the “omnibus motion rule” (Rule 15,
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Sec. 8, Rules of Court) which governs the
bank‟s motion to dismiss, such motion
should include all objections then
available; otherwise, all objections not so
included shall be deemed waived.
Although the improper venue became
known only in the course of the trial, the
same should not be allowed to obstruct
or disturb the proceedings since venue
of civil actions is defined for the
convenience of the parties, nay
jurisdictional.
ALTERNATIVE ANSWER: The “omnibus
motion rule” should not apply, because
the improper venue became known and
thus available only to the movant bank
after the motions to dismiss were filed
and resolved by the court, and in the
course of the trial of the case. In fairness
to the defendant bank, it should not be
precluded by the “omnibus motion rule”
from raising objection to the improper
venue only when said ground for
objection became known to it. The court
may not resolve the second motion to
dismiss precisely because of the
“omnibus motion rule”, since the bank
filed an earlier motion to dismiss but did
not raise the ground of improper venue,
and subsequently filed an Answer
wherein the improper venue has not
again been raised. Hence, the question of
improper venue has become moot and
academic.
The only grounds not barred by the
“omnibus motion rule” are (a) lack of
jurisdiction over the subject matter; (b)
litis pendencia; and (c) bar by prior
judgment or by statute of limitations.
(b) Suppose Charisse did not raise the
"omnibus motion rule," can the judge
proceed to resolve the motion to dismiss?
Explain. (3%) SUGGESTED ANSWER: Yes,
the judge can proceed to resolve the
motion to dismiss, because the ground
raised therefor became known to the
movant only during the trial, such that
it was only then that the objection
became available to him.
(c) Suppose the judge correctly denied the
second motion to dismiss and rendered
judgment in favor of Charisse, ordering the
bank to pay her P100,000 in damages plus
legal interest. The judgment became final
and executory in 2008. To date, Charisse
has not moved to execute the judgment.
The bank is concerned that its liability will
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increase with the delay because of the interest
on the judgment award. As counsel of the
bank, what move should you take? (3%)
SUGGESTED ANSWER:
As counsel of the bank, I shall recommend to the bank
as judgment obligor, to make a tender of payment to
the judgment oblige and thereafter make a
consignation of the amount due by filing an application
therefor placing the same at the disposal of the court
which rendered the judgment (Arts. 1256 and 1258,
Civil Code).
Section 9. Motion for leave. — A motion for
leave to file a pleading or motion shall be
accompanied by the pleading or motion
sought to be admitted. (n)
Section 10. Form. — The Rules applicable to
pleadings shall apply to written motions so
far as concerns caption, designation,
signature, and other matters of form. (9a)
RULE 16
Motion to Dismiss
NOTE: A motion to dismiss is not a responsive
pleading. It is not a pleading at all. It is subject to the
omnibus motion rule since it is a motion that attacks
a pleading. Hence, it must raise all the objections
available at the time of the filing thereof.
GENERAL RULE: A court may not motu proprio
dismiss a case unless a motion to that effect is filed
by a party thereto.
EXCEPTIONS:
1. Cases falling under Rule 9, sec. 1;
2. Failure to prosecute (Rule 17, sec. 3);
3. Section 4 of the Rules on Summary Procedure.
TYPES OF DISMISSAL OF ACTION:
1. Motion to dismiss before answer under Rule 16;
2. Motion to dismiss under Rule 17;
a) Upon notice by plaintiff;
b) Upon motion by plaintiff;
c) Due to fault of plaintiff.
3. Motion to dismiss called a demurrer to evidence
after plaintiff has rested his case under Rule 33;
4. Dismissal of an appeal.
SOME CAUSES FOR DISMISSAL OF ACTIONS:
1. Motion to dismiss under Rule 16;
2. Dismissal under Rule 17, sec. 1;
3. Failure to prosecute under Rule 17, sec. 3;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
4. Failure to appear on the pre-trial under Rule
18, sec. 5;
5. Failure to file pre-trial brief under Rule
18,sec. 6;
6. Insufficiency of evidence (demurrer to
evidence)
Section 1. Grounds. — Within the time
for but before filing the answer to the
complaint or pleading asserting a claim, a
motion to dismiss may be made on any of
the following grounds:
(a) That the court has no jurisdiction over
the person of the defending party;
(b) That the court has no jurisdiction over
the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity
to sue;
(e) That there is another action pending
between the same parties for the same
cause;
(f) That the cause of action is barred by a
prior judgment or by the statute of
limitations;
(g) That the pleading asserting the claim
states no cause of action;
(h) That the claim or demand set forth in
the plaintiff's pleading has been paid,
waived, abandoned, or otherwise
extinguished;
(i) That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds; and
(j) That a condition precedent for filing the
claim has not been complied with. (1a)
GROUNDS:
1. No jurisdiction over the person of the
defendant;
2. No jurisdiction over the subject matter of the
claim;
3. Improper venue;
4. No legal capacity to sue;
5. Litis pendentia;
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6. Res judicata A. If denied, defendant A. If denied, defendant,
7. Prescription; must answer, otherwise may present evidence.
8. Failure to state a cause of action he may be declared in
9. Claim or demand has been paid, waived, default. B. if granted, plaintiff
abandoned, or otherwise extinguished; may appeal and if the
10. Claim is unenforceable under Statute of Frauds; B. if granted, plaintiff order of dismissal is
11. Non-compliance of a condition precedent. may appeal or re-file reversed, defendant
the case whenever loses his right to
NOTES proper. present evidence.

A. Jurisdiction over the person of the

defendant (Refer to discussions on jurisdiction
over the parties) NOTE: A motion to dismiss generally partakes
the nature of a demurrer. It hypothetically admits
B. Jurisdiction over subject matter (Refer to the allegations stated in the complaint. However,
discussions on jurisdiction over the subject only relevant and material allegations are
matter) deemed admitted.
C. Improper venue (Refer to discussions on
venue of actions under Rule 4. E. Litis pendentia
Rule 65 on Prohibition may be availed of before
proceeding to trial or make an answer. REQUISITES:
1. Identity of parties or at least such
D. No legal capacity to sue: parties representing the same
 Plaintiff does not possess the necessary interests in both actions;
qualification to appear on trial 2. There is substantial identity in the
 Plaintiff does not have the character or cause of action and relief sought;
representation claimed to be possessed. 3. Causes of action are founded on the
same facts; and
LEGAL CAPACITY TO LEGAL 4. The identity of the two cases should
SUE PERSONALITY TO be such that any judgment that may
SUE be rendered in one, regardless of
Disability of plaintiff to Plaintiff not real party in who is successful, would amount to
file action interest res judicata in the other case.
Ground to dismiss; Ground to dismiss;
Lack of legal capacity to Complaint states no Example of litis pendentia: Action for the
sue cause of action recovery of a parcel of land and Quieting of Title.

A motion to dismiss may be filed in either suit

MOTION TO DISMISS MOTION TO DISMISS
UNDER RULE 16 UNDER RULE 33
(Demurrer to
evidence)
Grounded on Based on insufficiency
preliminary objections of evidence
May be filed by any Maybe filed only by the
defending party against defendant against the
whom a claim is complaint of the plaintiff
asserted in the action
Should be filed within Maybe filed only after
the time to answer, but plaintiff has completed
prior to the filing of an (rested his case) the
answer presentation of his
evidence
not necessarily in the one instituted first.
Note: PRIORITY IN TIME RULE
When there are two pending action constituting
litis pendentia, the first action filed should prevail
over the second filed later.
EXCEPTIONS:
 If the first case was used to pre-empt
the second case. The second case
prevails.
 When the court deems proper under its
power of discretion.
F. Res judicata

RES JUDICATA- A matter adjudged.

It is a rule that a final judgment rendered by a
court of competent jurisdiction on the merits is
conclusive as to the rights of the parties and

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 79

________________________________________________________________________________________________
their privies, and as to them constitutes an absolute
bar to a subsequent action involving the same claim,
demand or cause of action.
REQUISITES:
1. Previous final judgment;
2. By a court having jurisdiction over the subject
matter and of the parties;
3. Judgment upon the merits; and
4. There must be identity of parties, of subject
matter, and of cause of action between the first
and the second actions.
There is identity of cause of action when the two
actions are based on the same delict or wrong
committed by the defendant even if the remedies
are different.
There is identity of parties even if the defendant in
the first case becomes the plaintiff in the
subsequent case, and vice-versa (HSBC vs.
Aldecoa & Co. GR No. 8437, March 23, 1915)
NOTE: No Res Judicata in:
1. Revival of Judgment
 Cause of action is for the revival of dormant
judgment.
2. Annulment of Judgment
 Cause of action is extrinsic fraud or lack of
jurisdiction.
 Subject matter is the judgment itself.
Note: action to annul judgment barred by
judgment in action for specific performance
on ground of res judicata (Immaculata vs.
Navarro, 146 SCRA 5)
Civil aspect of the case based on criminal
case which is dismissed, either by the
prosecutor after preliminary investigation for
lack of probable cause, or by the court for
failure to prosecute is not barred by res
judicata.
Under the doctrine of res judicata, no matter how
erroneous a judgment may be, once it becomes
final, it cannot be corrected. Erroneous judgment is
different from VOID judgment.
NOTE: There could be res judicata without trial,
such as judgment on the pleadings (Rule 34); a
summary judgment (Rule 35) or a dismissal under
Rule 17, sec. 3.
Bar Exam Question 2012
25. A judicial compromise has the effect of
_______ and is immediately executory and is
not appealable.
a. Estoppel;
b. Conclusiveness of judgment;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
c. Res Judicata;
d. Stare decisis.
SUGGESTED ANSWER:
(c), A compromise agreement that has
been made and duly approved by the
court attains the effect and authority of
res judicata, although no execution may
be issued unless the agreement receives
the approval of the court where the
litigation is pending and compliance
with the terms of agreement is decreed.”
(Ranola vs. Ranola, G.R. No. 185095,
July 31, 2009).
Dismissal; Motion to Dismiss; Res Judicata (2000)
AB, as mother and in her capacity as legal guardian
of her legitimate minor son, CD, brought action for
support against EF, as father of CD and AB’s
lawfully wedded husband. EF filed his answer
denying his paternity with counterclaim for damages.
Subsequently, AB filed a manifestation in court that
in view of the denial made by EF, it would be futile
to pursue the case
against EF. AB agreed to move for the dismissal of
the
complaint, subject to the condition that EF will
withdraw his counter claim for damages. AB and EF
filed a joint motion to dismiss. The court dismissed
the
case with prejudice. Later on, minor son CD,
represented by AB, filed another complaint for
support against EF. EF filed a motion to dismiss on
the ground of res judicata. a) Is res judicata a valid
ground for dismissal of the second complaint?
Explain your answer (3%)
b) What are the essential requisite of res judicata?
(2%)
SUGGESTED ANSWER:
(a) No, res judicata is not a defense in an action for
support even if the first case was dismissed with
prejudice on a joint motion to dismiss. The
plaintiff’s mother agreed to the dismissal of the
complaint for support in view of the defendant’s
answer denying his paternity with a counterclaim for
damages. This was in the nature of a compromise of
the right of support which is prohibited by law. (Art,
2035, Civil Code; De Asis v. Court of Appeals, 303 SCRA
176 [1999]).
(b) The Essential Requisites of Res Judicata are:
1 the judgment or order rendered must be
final;
2 the court rendering the same must have
jurisdiction of the subject matter and of the parties;
3 it must be a judgment or order on the merits; and
4. there must be between the two cases identity of
parties, identity of subject matter, and identity of
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causes of action. (San Diego v. Cardona, 70 Phil, 281 [1940]) NOTE: The doctrine of laches is NOT to be
strictly applied between blood relatives because
Bar by Prior Judgment vs. Conclusiveness of Judgment of their confidential relations.
(1997) Distinguish Bar by prior judgment from
conclusiveness of judgment H. COMPLAINT FAILS TO STATE A
SUGGESTED ANSWER: CAUSE OF ACTION
Bar by prior-judgment is the doctrine of res judicata, When the ground for the dismissal is
which bars a second action when there is identity of that the complaint states no cause of
parties, subject matter and cause of action. (Sec. 49[b] of action, such fact can be determined only
former Rule 39; Sec, 47 [b] of new Rule 39). from the facts alleged in the complaint.
Conclusiveness of judgment precludes the relitigation of
a particular issue in another action between the same NOTE: The proper ground for a motion to
parties on a different cause of action. (Sec. 49 [c] of former dismiss is FAILURE TO STATE A CAUSE OF
Rule 39; sec. 47 [c] of new Rule 39). ACTION and not LACK OR ABSENCE OF A
CAUSE OF ACTION.
Bar Exam Question 2011
(80) Distinguish between conclusiveness of
judgment and bar by prior judgment. (A) Failure to State a Lack of Cause of
Conclusiveness of judgment bars another Cause of Action Action
action based on the same cause; bar by prior The former means that The latter means that
judgment precludes another action based on there is an there is insufficiency in
the same issue. (B) Conclusiveness of insufficiency in the the factual basis of the
judgment bars only the defendant from allegations in the action.
questioning it; bar by prior judgment bars both complaint.
plaintiff and defendant. (C) Conclusiveness of May be raised as a This is an affirmative
judgment bars all matters directly adjudged; motion to dismiss defense but not a
bar by prior judgment precludes all matters under Rule 16, sec ground for motion to
that might have been adjudged. (D) 1[g] or as an dismiss, which may be
Conclusiveness of judgment precludes the affirmative defense in raised any time after
filing of an action to annul such judgment; bar the answer in Rule 16, questions of fact have
by prior judgment allows the filing of such an sec. 6 been resolved on the
action. basis of stipulations,
admissions or
evidence presented;
G. Prescription may also be used as
A motion to dismiss on the ground of the basis of a
prescription will be given due course only if judgment upon a
the complaint shows on its face that the demurrer to evidence
action has already prescribed. or for dismissing the
case rendered after a
Gicano Doctrine: The SC allowed the full trial on the merits.
dismissal of an action on the ground of
prescription even after judgment on the
merits, or even if the defense was not raised GR: Motion to dismiss based on the ground that
at all as long as the relevant dates are clear the complaint fails to state a cause of action
on the record (Gicano vs. Gegato, 157 hypothetically admits the truth of the facts
SCRA 140). alleged in the complaint.

EXCEPTIONS:
PRESCRIPTION LACHES 1. The allegations which the court will take
Concerned with the fact Concerned with the judicial notice are not true;
of delay effect of delay 2. Legally impossible facts;
It is a matter of time It is a matter of equity 3. Facts inadmissible in evidence;
Statutory Non-statutory 4. Facts which appear by record or document
Applies at law Applies in equity to be unfounded (Moran).
Based on a fixed time Not based on fixed time
Where complaint does not state a cause of
action, defendant may file a motion to dismiss or
raise the same as an affirmative defense in his

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 81

________________________________________________________________________________________________
answer. Failure of the defendant to take the proper
action, may cause the plaintiff to cure the defect by
presenting evidence, if he has otherwise, a cause of
action.
I. NON-COMPLIANCE OF A CONDITION
PRECEDENT
EXAMPLES:
 Barangay Conciliation Proceedings;
 Earnest efforts toward a compromise
(art.151 of Family Code);
 Prior resort to administrative bodies;
 Exhaustion of administrative remedies
EFFECTS OF ACTION
ON MOTION TO REMEDY
DISMISS
Order granting motion
to dismiss is a final Re-file the complaint
order (without
prejudice)
Order granting motion Appeal
to dismiss (with
prejudice)
Order denying the Rule 65 if there is grave
motion to dismiss is abuse of discretion
interlocutory amounting to lack or
excess of jurisdiction
GR: An order denying a motion to dismiss is
interlocutory. The ordinary procedure is for the
defendant to file his answer and go to trial and if the
decision is adverse, he can appeal from the
judgment and assign as error the denial of the
motion to dismiss.
Exception: If the court acts with grave abuse of
discretion amounting to lack or excess of jurisdiction
in denying the motion, certiorari or prohibition lies.
Evidence presented in the motion to dismiss
automatically forms part of the evidence.
Defendant is allowed to present evidence to
prove the basis of his motion.
Exception: If the ground appears on the face of
the allegation (complaint) e.g. lack of jurisdiction
over subject matter; prescription of action.
Section 2. Hearing of motion. — At the
hearing of the motion, the parties shall
submit their arguments on the questions of
law and their evidence on the questions of
fact involved except those not available at
that time. Should the case go to trial, the
evidence presented during the hearing shall
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
automatically be part of the evidence of
the party presenting the same. (n)
Section 3. Resolution of Motion. — After
the hearing, the court may dismiss the
action or claim, deny the motion, or order
the amendment of the pleading.
The court shall not defer the resolution of
the motion for the reason that the ground
relied upon is not indubitable.
In every case, the resolution shall state
clearly and distinctly the reasons therefor.
(3a)
Bar Exam Question 2012
62. After a hearing on a Motion to Dismiss,
the court may either dismiss the case or
deny the same or:
a. defer resolution because the ground
relied upon 1s not indubitable.
b. order amendment of the pleading
c. conduct a preliminary hearing
d. None of the above.
SUGGESTED ANSWER:
(b), After the hearing of a motion to
dismiss, the court may dismiss the
action or claim, deny the motion, or
order the amendment of the pleading.
The court shall not defer the resolution
of the motion for the reason that the
ground relied upon is not indubitable.
(Rule 16, Sec.3, Rules of Court).
Section 4. Time to plead. — If the
motion is denied, the movant shall file his
answer within the balance of the period
prescribed by Rule 11 to which he was
entitled at the time of serving his motion,
but not less than five (5) days in any
event, computed from his receipt of the
notice of the denial. If the pleading is
ordered to be amended, he shall file his
answer within the period prescribed by
Rule 11 counted from service of the
amended pleading, unless the court
provides a longer period. (4a)
Section 5. Effect of dismissal. — Subject
to the right of appeal, an order granting a
motion to dismiss based on paragraphs
(f), (h) and (i) of section 1 hereof shall
bar the re-filing of the same action or
claim. (n)
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NOTE: Action or claim cannot be re-filed if it was
dismissed on the following grounds:
1. Bar by prior judgment;
2. Prescription;
3. The claim was already extinguished;
4. Claim is Unenforceable.
The remedy is to appeal the judgment/order.
Bar Exam Question 2012
38. A complaint may be refiled if dismissed on
which of the following grounds?
a. unenforceable under the Statute of Frauds;
b. Res Judicata;
c. Litis Pendencia;
d. Lack of jurisdiction.
SUGGESTED ANSWERS:
(c) and (d), An order granting a motion to
dismiss shall bar the refilling of the same
action or claim based on the following
grounds, namely: res judicata, prescription,
claim or demand is paid, waived, abandoned
or otherwise extinguished, and the claim on
which the action is founded is
unenforceable under the statute of frauds.
(Rule 16, Sec.5, (f), (h), and (i), Rules of
Court). The Rules do not include litis
pendentia and lack of jurisdiction.
Bar Exam Question 2011
(15) Which of the following grounds for
dismissal invoked by the court will NOT
PRECLUDE the plaintiff from refiling his
action? (A) Res judicata. (B) Lack of
jurisdiction over the subject matter. (C)
Unenforceability under the Statutes of Fraud.
(D) Prescription.
Section 6. Pleading grounds as
affirmative defenses. — 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. (5a)
The dismissal of the complaint under this
section shall be without prejudice to the
prosecution in the same or separate action of
a counterclaim pleaded in the answer. (n)
Grounds for motion to dismiss, including
IMPROPER VENUE, may be pleaded as affirmative
defenses in the answer.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
NOTE: If the defendant would want to file a
counterclaim, he should not file a motion to
dismiss but file an answer alleging as affirmative
defenses the grounds for a motion to dismiss.
IBP-OCA Memo on Policy Guidelines
March 12, 2002
Defendant is restrained from filing a motion to
dismiss. But the grounds for motion to dismiss
should be raised as affirmative or special
defenses in the answer. --- Atty. Ucat
RULE 17
Dismissal of Actions
Section 1. Dismissal upon notice by
plaintiff. — A complaint may be
dismissed by the plaintiff by filing a notice
of dismissal at any time before service of
the answer or of a motion for summary
judgment. Upon such notice being filed,
the court shall issue an order confirming
the dismissal. Unless otherwise stated in
the notice, the dismissal is without
prejudice, except that a notice operates as
an adjudication upon the merits when filed
by a plaintiff who has once dismissed in a
competent court an action based on or
including the same claim. (1a)
Bar Exam Question 2012
33. A complaint may be dismissed by the
plaintiff by filing a notice of dismissal:
a. At anytime after service of the answer.
b. At anytime before a motion of
summary judgment is filed.
c. At the pre-trial.
d. Before the complaint is amended.
SUGGESTED ANSWER: (b), A complaint
may be dismissed by the plaintiff by
filing a notice of dismissal at any time
before service of the answer or of a
motion for summary judgment. Upon
such notice being filed, the court shall
issue an order confirming the dismissal.
(Rule 17, Sec.1, Rules of Court).
NOTES: Dismissal is effected by mere notice
and not by motion which is a matter of right
before service of:
1. answer ;or
2. a motion for a summary judgment.
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The rule requires a court order confirming the
dismissal.
Such dismissal is WITHOUT PREJUDICE;
Exceptions:
1. where notice of dismissal otherwise
provides;
2. where the plaintiff has previously dismissed
the same case in a court of competent
jurisdiction (TWO DISMISSAL RULE)
The dismissal is still with prejudice even if the notice
of dismissal does not so provide, where the notice of
dismissal is predicated on the fact of payment by the
defendant of the claim involved (Serrano vs.
Cabrera, 93 Phil 774)
Bar Exam Question 2011
(87) Which of the following is appealable? (A)
An order of default against the defendant. (B)
The denial of a motion to dismiss based on
improper venue. (C) The dismissal of an
action with prejudice. (D) The disallowance of
an appeal.
Section 2. Dismissal upon motion of
plaintiff. — Except as provided in the
preceding section, a complaint shall not be
dismissed at the plaintiff's instance save upon
approval of the court and upon such terms
and conditions as the court deems proper. If
a counterclaim has been pleaded by a
defendant prior to the service upon him of
the plaintiff’s motion for dismissal, the
dismissal shall be limited to the complaint.
The dismissal shall be without prejudice to
the right of the defendant to prosecute his
counterclaim in a separate action unless
within fifteen (15) days from notice of the
motion he manifests his preference to have
his counterclaim resolved in the same action.
Unless otherwise specified in the order, a
dismissal under this paragraph shall be
without prejudice. A class suit shall not be
dismissed or compromised without the
approval of the court. (2a)
NOTE: Under this section, the dismissal of the case
is subject to the SOUND DISCRETION of the court
upon such terms as maybe just.
If a counterclaim has been pleaded by the
defendant PRIOR TO THE SERVICE upon him of
the plaintiff’s motion to dismiss, the dismissal shall
be limited to the complaint, without prejudice to the
right of the defendant to;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
1. Prosecute his counterclaim in a separate
action;
2. To have the same resolve in the same
action, if he manifest as such to the court
within 15 days from notice of the motion to
dismiss.
NOTE that these alternative remedies of the
defendant are available to him REGARDLESS
OF WHETHER THE COUNTERCLAIM IS
COMPULSORY OR PERMISSIVE.
Dismissal is without prejudice, EXCEPT:
1. When otherwise stated in the motion;
2. When stated to be with prejudice in the
order of the court.
Pleadings; Counterclaim (2010) No.VI.
Antique dealer Mercedes borrowed
P1,000,000 from antique collector
Benjamin. Mercedes issued a postdated
check in the same amount to Benjamin to
cover the debt. On the due date of the
check, Benjamin deposited it but it was
dishonored. As despite demands, Mercedes
failed to make good the check, Benjamin
filed in January 2009 a complaint for
collection of sum of money before the RTC
of Davao. Mercedes filed in February 2009
her Answer with Counterclaim, alleging
that before the filing of the case, she and
Benjamin had entered into a dacion en
pagoagreement in which her vintage
P1,000,000 Rolex watch which was taken
by Benjamin for sale on commission was
applied to settle her indebtedness; and that
she incurred expenses in defending what
she termed a "frivolous lawsuit." She
accordingly prayed for P50,000 damages.
(a) Benjamin soon after moved for the
dismissal of the case. The trial court
accordingly dismissed the complaint. And it
also dismissed the Counterclaim. Mercedes
moved for a reconsideration of the dismissal
of the Counterclaim. Pass upon Mercedes’
motion. (3%)
SUGGESTED ANSWER:
Mercedes‟ Motion for Reconsideration is
impressed with merit: the trial courts
should not have dismissed her counter-
claim despite the dismissal of the
Complaint. Since it was the plaintiff
(Benjamin) who moved for the dismissal
of his Complaint, and at a time when the
defendant (Mercedes) had already filed
her Answer thereto and with
counterclaim, the dismissal of the
counterclaim without conformity of the
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defendant-counterclaimant. The Revised CAUSES FOR DISMISSAL UNDER THIS
Rules of Court now provides in Rule 17, SECTION:
Sec. 2 thereof that “If a counterclaim has 1. Failure to appear on the date of the
been pleaded by a defendant prior to the presentation of the plaintiff’s evidence in
service upon him of the plaintiff‟s motion chief without justifiable cause;
for dismissal, the dismissal shall be limited 2. Failure to prosecute for unreasonable
to the complaint. The dismissal shall be length of time (NOLLE PROSEQUI);
without prejudice to the right of the 3. Non-compliance with the Rules or any
defendant to prosecute his counterclaim x x (lawful/valid) order of the court.
x x.”
(b) Suppose there was no Counterclaim and Dismissal; Failure to Prosecute (2003)
Benjamin’s complaint was not dismissed, and When a criminal case is dismissed on nolle prosequi,
judgment was rendered against Mercedes for can it later be refilled? (4%)
SUGGESTED ANSWER:
P1,000,000. The judgment became final and
As a general rule, when a criminal case is dismissed on
executory and a writ of execution was
nolle prosequi before the accused is placed on trial and
correspondingly issued.
before he is called on to plead, this is not equivalent to
Since Mercedes did not have cash to settle the an acquittal and does not bar a subsequent prosecution
judgment debt, she offered her Toyota Camry for the same offense. (Galvez v. Court of Appeals, 237
model 2008 valued at P1.2 million. The Sheriff, SCRA 685 [1994]).
however, on request of Benjamin, seized
Mercedes’ 17th century ivory image of the La NOTE: The plaintiff’s failure to appear at the trial
Sagrada Familia estimated to be worth over after he has presented his evidence DOES NOT
P1,000,000. Was the Sheriff’s action in order? WARRANT the dismissal of the case on the
(3%) SUGGESTED ANSWER: No, the Sheriff‟s ground of failure to prosecute. It is merely a
action was not in order. He should not have waiver of his right to cross-examine and to
listened to Benjamin, the judgment oblige/ object to the admissibility of the evidence of the
creditor, in levying on the properties of defendant presented on that day. It is not,
Mercedes, the judgment obligor/debtor. The however, a waiver of his right to be present
option to immediately choose which during the subsequent stages of the
property or part thereof may be levied proceedings (Jalover vs. Ytoriaga, 80 SCRA
upon, sufficient to satisfy the judgment, is 100)
vested by law (Rule 39, Sec. 9 (b) upon the
judgment obligor, Mercedes, not upon the SECTION 2 SECTION 3
judgment obligee, Benjamin, in this case. dismissal is not
Only if the judgment obligor does not Dismissal is at the procured by the
exercise the option, is the Sheriff instance of the plaintiff plaintiff though
authorized to levy on personal properties if justified by causes
any, and then on the real properties if the imputable to him
personal properties are insufficient to Dismissal is a matter of Dismissal is a
answer for the judgment. procedure, without matter of evidence,
prejudice unless an adjudication
otherwise stated in the upon the merits
order of the court or on
Section 3. Dismissal due to fault of plaintiff’s motion to
plaintiff. — If, for no justifiable cause, the dismiss his own
plaintiff fails to appear on the date of the complaint
presentation of his evidence in chief on the Dismissal is without Dismissal is without
complaint, or to prosecute his action for an prejudice to the right of prejudice to the
unreasonable length of time, or to comply the defendant to right of the
with these Rules or any order of the court, prosecute his defendant to
the complaint may be dismissed upon motion counterclaim in a prosecute his
of the defendant or upon the court's own separate action, unless counterclaim in the
motion, without prejudice to the right of the within the period of 15 same action or in a
defendant to prosecute his counterclaim in days from notice of the separate action
the same or in a separate action. This motion he manifests to
dismissal shall have the effect of an the court that he intends
adjudication upon the merits, unless that the same be
otherwise declared by the court. (3a) resolved in the same
action.

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Bar Exam Question 2012
96. X, the designated executor of a will, files a
petition for probate of the same. X and his
counsel failed to appear without justifiable
cause at the hearing on the presentation of
evidence and the court therefore dismissed,
motu proprio, his petition for failure to
prosecute. The effect of the dismissal is:
a. not an adjudication upon the merits.
b. the will can no longer be probated.
c. it is a dismissal with prejudice.
d. a bar to a subsequent action on the same
cause.
SUGGESTED ANSWER: (c), The dismissal of
a case for failure to prosecute has the effect
of adjudication on the merits, and is
necessarily understood to be with prejudice
to the filing of another action, unless
otherwise provided in the order of
dismissal. Stated differently, the general
rule is that dismissal of a case for failure to
prosecute is to be regarded as an
adjudication on the merits and with
prejudice to the filing of another action,
and the only exception is when the order of
dismissal expressly contains a qualification
that the dismissal is without prejudice. (See
Rule 17, Sec. 3, Rules of Court; Gomez vs.
Alcantara, G.R. No. 179556, February 13,
2009).
Section 4. Dismissal of counterclaim,
cross-claim, or third-party complaint. —
The provisions of this Rule shall apply to the
dismissal of any counterclaim, cross-claim, or
third-party complaint. A voluntary dismissal
by the claimant by notice as in section 1 of
this Rule, shall be made before a responsive
pleading or a motion for summary judgment
is served or, if there is none, before the
introduction of evidence at the trial or
hearing. (4a)
RULE 18
Pre-Trial
PRE-TRIAL
It is a mandatory conference and personal
confrontation before the judge between the parties
and their respective counsels.
PRELIMINARY CONFERENCE
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
It is the presence of parties and their counsels
before the clerk of court.
Note that there may be a preliminary conference
prior to the actual pre-trial.
Section 1. When conducted. — After the
last pleading has been served and filed, it
shall be the duty of the plaintiff to
promptly move ex parte that the case be
set for pre-trial (5a, R20)
NOTE: The last pleading need not be literally
construed as the actual filing of the last
pleading. For purposes of the pre-trial, the
expiration of the period for filing the last pleading
is sufficient (Sarmiento vs. Juan, 120 SCRA
403)
Bar Exam Question 2012
42. The following motions require a notice
of hearing served on the opposite party,
except:
a. Motion to Set Case for Pre-trial;
b. Motion to take deposition;
c. Motion to correct TSN;
d. Motion to postpone hearing.
SUGGESTED ANSWER: (a), After the last
pleading has been served and filed, it
shall be the duty of the plaintiff to
promptly move ex parte that the case be
set for pre-trial. (Rule 18, Sec.1, Rules of
Court).
Pre-Trial; Requirements (2001)
Lilio filed a complaint in the Municipal Trial Court
of Lanuza for the recovery of a sum against Juan.
The latter filed his answer to the complaint serving a
copy thereof on Lilio. After the filing of the answer
of Juan, whose duty is it to have the case set for pre-
trial? Why? (5%)
SUGGESTED ANSWER:
After the filing of the answer of Juan, the
PLAINTIFF has the duty to promptly move ex
parte that the case be set for pre-trial. (Sec. 1, Rule18).
The reason is that it is the plaintiff who knows when
the last pleading has been
filed and it is the plaintiff who has the duty to
prosecute.
ALTERNATIVE ANSWER:
In the event the plaintiff files a reply, his duty to
move that the case be set for pre-trial arises after the
reply has been served and filed.
NOTE that failure to move promptly that the
case be set for pre-trial may cause the dismissal
of the case under rule 17, sec.3.
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My notes: there is a Supreme Court Circular NOTE: The process of obtaining or securing
ordering the branch clerk of court to call the parties admissions, whether of facts or evidence is
for a pre-trial if the plaintiff fails to move for the pre- essentially voluntary. When parties are unable to
trial of the case. arrive at a stipulation of agreed facts, the court
must close the Pre-trial and proceed with the
Pre-trial is MANDATORY, but NOT trial of the case (Filoil Marketing Corp. vs. Dy
JURISDICTIONAL. Absence of pre-trial is not a Pac and Co., 160 SCRA 133)
ground to set the judgment aside as long as the
parties are afforded with a (fair) trial. Section 3. Notice of pre-trial. — The
notice of pre-trial shall be served on
PRE-TRIAL IN CIVIL PRE-TRIAL IN counsel, or on the party who has no
CASES CRIMINAL CASES counsel. The counsel served with such
Possible (amicable) Not necessarily notice is charged with the duty of
settlement
notifying the party represented by him.
Compromise available Compromise not
(n)
available
There is a pre-trial brief No pre-trial brief
Note: Notice of “hearing” embraces the term
When during the pre-trial conference the defendant “pre-trial”. As known in law, hearing embraces
manifested that he has no interest in any amicable the several stages of a litigation (Sps. Bembo
settlement, the court cannot set the case for 2nd pre- vs. CA, Nov. 29, 1995, citing Trocio vs. Labayo,
trial (Pioneer Services vs. Hontanosas, 78 SCRA 53 SCRA 97).
448).
Section 4. Appearance of parties. — It
Section 2. Nature and purpose. — The pre- shall be the duty of the parties and their
trial is mandatory. The court shall consider: counsel to appear at the pre-trial. The
non-appearance of a party may be
excused only if a valid cause is shown
(a) The possibility of an amicable settlement
therefore or if a representative shall
or of a submission to alternative modes of
appear in his behalf fully authorized in
dispute resolution;
writing to enter into an amicable
settlement, to submit to alternative
(b) The simplification of the issues; modes of dispute resolution, and to enter
into stipulations or admissions of facts and
(c) The necessity or desirability of of documents. (n)
amendments to the pleadings;
Section 5. Effect of failure to appear. —
(d) The possibility of obtaining stipulations or The failure of the plaintiff to appear when
admissions of facts and of documents to so required pursuant to the next
avoid unnecessary proof; preceding section shall be cause for
dismissal of the action. The dismissal shall
(e) The limitation of the number of be with prejudice, unless other-wise
witnesses; ordered by the court. A similar failure on
the part of the defendant shall be cause to
(f) The advisability of a preliminary reference allow the plaintiff to present his evidence
of issues to a commissioner; ex parte and the court to render judgment
on the basis thereof. (2a, R20)
(g) The propriety of rendering judgment on
the pleadings, or summary judgment, or of EFFECT OF NON APPEARNCE OF
dismissing the action should a valid ground DEFENDANT as distinguished from FAILURE
therefore be found to exist; TO ANSWER under Rule 9, sec. 3:

Under this Rule, the plaintiff is allowed to

(h) The advisability or necessity of
present evidence ex parte. Hence judgment
suspending the proceedings; and maybe based thereon, and not necessarily those
alleged in the complaint.
(i) Such other matters as may aid in the
prompt disposition of the action. (1a, R20)

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While under Rule 9, sec. 3, the judgment may be
based only on what are alleged in the complaint,
unless the court, in its DISCRETION, requires the
presentation of evidence. But the judgment shall not
exceed the amount prayed or of different nature of
those alleged in the complaint.
Section 6. Pre-trial brief. — The parties
shall file with the court and serve on the
adverse party, in such manner as shall
ensure their receipt thereof at least three (3)
days before the date of the pre-trial, their
respective pre-trial briefs which shall contain,
among others:
(a) A statement of their willingness to enter
into amicable settlement or alternative modes
of dispute resolution, indicating the desired
terms thereof;
(b) A summary of admitted facts and
proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be
presented stating the purpose thereof;
(e) A manifestation of their having availed or
their intention to avail themselves of
discovery procedures or referral to
commissioners; and
(f) The number and names of the witnesses,
and the substance of their respective
testimonies.
Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-
trial. (n)
NOTE: Failure of party to file pre-trial brief is not
excused by the fact that the party was, by his own
choosing, not represented by counsel. There is
nothing in the constitution which mandates that a
party in a non-criminal proceeding be represented
by counsel and that the absence of such
representation amount to denial of due process.
Principles involved in a compromise agreements
The authority to compromise a litigation is not
mandatorily required to be in writing. The vital thing
is that it was made expressly. The authority to
compromise may be established by evidence.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Compromise agreement entered into without
authority is not void, but unenforceable and
maybe ratified (Lim Pin vs. Liao Tan, 115 SCRA
290).
NOTE that article 1878, of the New Civil Code
provides:
Special powers of attorney are necessary in the
following cases:
(3) To compromise, to submit question
to arbitration, to renounce the right to
appeal from judgment, to wave
objections to the venue of an action or
to abandon a prescription already
acquired;
Section 7. Record of pre-trial. — The
proceedings in the pre-trial shall be
recorded. Upon the termination thereof,
the court shall issue an order which shall
recite in detail the matters taken up in the
conference, the action taken thereon, the
amendments allowed to the pleadings,
and the agreements or admissions made
by the parties as to any of the matters
considered. Should the action proceed to
trial, the order shall, explicitly define and
limit the issues to be tried. The contents
of the order shall control the subsequent
course of the action, unless modified
before trial to prevent manifest injustice.
(5a, R20)
NOTE: Motion to modify the pre-trial order must
be filed before the trial (presentation of evidence
commenced) Atty. Ucat.
Contents of the pre-trial order:
1. Statement of the nature of the case;
2. Stipulations or admissions of the parties,
including testimonial and documentary
evidence;
3. Issues involved (a) factual and (b) legal;
4. Number of witnesses;
5. Date of trial.
 A party is deemed to have waived the
delimitations of the pre-trial order if he
failed to object to the introduction of
evidence on an issue outside of the pre-
trial order, as well as by cross
examining the witness in regard to said
evidence.
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GR: even if a motion for reconsideration by the
defendant, who failed to appear during the pre- trial,
is granted, the case will not go back to the pre-trial Note on Arbitration Law
stage. GR; Arbitration award needs confirmation by the
court.
Exception: if The parties voluntarily agreed that the Exception: Arbitration award in construction
case be set for new pre-trial (Young vs. CA, 204 industry.[Construction Industry Arbitration
SCRA 584 [1991]). Commission]

Pleadings; Amendment of Complaint

(2009) No.X. Upon termination of the pre-
trial, the judge dictated the pre-trial order
in the presence of the parties and their
counsel, reciting what had transpired and
defining three (3) issues to be tried. (a) If,
immediately upon receipt of his copy of the
pre-trial order, plaintiff’s counsel should
move for its amendment to include a fourth
(4th) triable issue which he allegedly
inadvertently failed to mention when the
judge dictated the order. Should the motion
to amend be granted? Reasons. (2%)
SUGGESTED ANSWER: Depending on the
merit of the issue sought to be brought
in by the amendment, the motion to
amend may be granted upon due
hearing. It is a policy of the Rules that
parties should be afforded reasonable
opportunity to bring about a complete
determination of the controversy
between them, consistent with
substantial justice. With this end in
view, the amendment before trial may be
PRE-TRIAL granted to prevent manifest injustice.
The matter is addressed to the sound
and judicious discretion of the trial
No settlement Amicable Failure to appear court.
settlement
(b) Suppose trial had already commenced
and after the plaintiff’s second witness had
testified, the defendant’s counsel moves for
Plaintiff absent, Defendant absent;
when required; court may hear the amendment of the pre-trial order to
the court may plaintiff’s evidence include a fifth (5th) triable issue vital to his
dismiss the case ex parte client’s defense. Should the motion be
granted over the objection of plaintiff’s
counsel? Reasons. (3%) SUGGESTED
If evidence is insufficient ANSWER: The motion may be denied
Trial to prove plaintiff’s claim since trial had already commenced and
or defendant’s two witnesses for the plaintiff had
counterclaim, the court already testified. Courts are required to
rules in favor of either
one or dismisses the
issue pre-trial Order after the pre-trial
case conference has been terminated and
Court renders before trial begins, precisely because the
decision reason for such Order is to define the
course of the action during the trial.
Agreements; Where trial had already commenced,
amendments; more so the adverse party had already
etc. schedule of presented witnesses, to allow an
trial amendment would be unfair to the party

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who had already presented his witnesses.
The amendment would simply render
nugatory the reason for or purpose of the
pre-trial Order. Sec.7 of Rule 18 on pre-trial
in civil actions is explicit in allowing a
modification of the pre-trial Order “before”
trial begins to prevent manifest injustice.
RULE 19
Intervention
INTERVENTION
It is a legal proceeding by which a third person is
permitted by the court to become party by
intervening in a pending action after meeting the
conditions and requirements set by the Rules.
NOTE: The general rule is that intervention is never
an independent proceeding but is ancillary to an
existing litigation. Hence, the dismissal of the
principal action results into dismissal of said
ancillary action.
Exception: The case of Metropolitan Bank vs. CA,
where the third person was already allowed to
intervene and has already presented his case
(evidence) and the third person was not given an
opportunity to protect his interest.
Complaint in intervention is an initiatory pleading;
hence there is a need to pay filing fees and the
certification against forum shopping.
Section 1. Who may intervene. — A person
who has a legal interest in the matter in
litigation, or in the success of either of the
parties, or an interest against both, or is so
situated as to be adversely affected by a
distribution or other disposition of property in
the custody of the court or of an officer
thereof may, with leave of court, be allowed
to intervene in the action. The court shall
consider whether or not the intervention will
unduly delay or prejudice the adjudication of
the rights of the original parties, and whether
or not the intervenor's rights may be fully
protected in a separate proceeding. (2[a],
[b]a, R12)
Actions; Intervention; Requisites (2000)
What are the requisites for an intervention by a nonparty
in an action pending in court? (5%)
SUGGESTED ANSWER:
The requisites for intervention are:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
1 Legal interest in the matter in a controversy; or
2 Legal interest in the success of either of the parties;
or
1 Legal interest against both; or
2 So situated as to be adversely affected by a
distribution or other disposition or property in the
custody of the court or of an officer thereof.
3 Intervention will not unduly delay or prejudice
the adjudication of the rights or original parties;
4 Intervenor’s rights may not be fully protected
in a separate proceedings.
(Acenas II v. Court of Appeals, 247 SCRA 773 [1995];
Sec.1, Rule 19, 1997 Rules of Civil Procedure.)
WHO MAY INTERVENE: (clue words only)
1. Legal interest in the matter;
2. Legal interest in the success of either;
3. Interest against both parties;
4. One so situated as to be adversely
affected.
The interest that entitles a person to intervene in
a suit must be of the matter in litigation and of
such direct and immediate character that the
intervenor will either lose or gain by the direct
legal operation and effect of the judgment.
INTEREST IN THE SUBJECT means a direct
interest in the cause of action as pleaded and
which would put the intervenor in a legal position
to litigate a fact alleged in the complaint, without
the establishment of which plaintiff could not
recover (Magsaysay-Labrador vs. CA, GR No.
58168, Dec. 9, 1989).
An illegitimate child who is not recognized by the
putative father cannot intervene in partition case
involving the estate of putative father who died
during the pendency of action to compel
recognition. His interest over the estate of
putative father is at most a mere expectancy,
which does not qualify a person to intervene
under the Rules (Lim vs. Perello, CA-GR. SP
46532, Aug. 31, 2000).
Junior lien-holders cannot intervene in collection
case filed by superior lien-holders. In this case,
they oppose the claim of the superior lien-
holders, for the obvious reason that the higher
the claim recovered by the superior lien-holders,
from the attached vessel (property), the lesser
would be the remainder for the junior lien-
holders (Nordic Asia vs. vs. CA, L-111159, June
10, 2003).
INTERVENTION INTERPLEADER
Ancillary action Original action
Presupposes that the
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Proper in cases plaintiff:
mentioned in sec. 1 1. has no interest in
the subject
matter of the
action; or
2. has interest
therein , in whole
or in part, which
is not disputed by
the other parties
Defendants are Defendants are being
original parties to sued precisely to implead
the pending suit them
GR: Intervention is not a matter of right.
Exceptions:
1. Person seeking to intervene is
indispensable party;
2. Intervention in a class suit.
“Intervention pro interesse suo”
A mode of intervention in equity whose purpose is to
enable a person (a stranger to the case) whose
property gets into the clutches of the court, in a
controversy between others, to go into court and
procure it or its proceeds to be surrendered to him,
without becoming a formal plaintiff or defendant
(Juaquin vs. Herrera, 37 Phil. 723).
Bar Exam Question 2011
(14) The right to intervene is not absolute. In
general, it CANNOT be allowed where (A) the
intervenor has a common interest with any of
the parties. (B) it would enlarge the issues
and expand the scope of the remedies. (C)
the intervenor fails to put up a bond for the
protection of the other parties. (D) the
intervenor has a stake in the property subject
of the suit.
Bar Exam Question 2011
(51) Ranger Motors filed a replevin suit against
Bart to recover possession of a car that he
mortgaged to it. Bart disputed the claim.
Meantime, the court allowed, with no
opposition from the parties, Midway Repair
Shop to intervene with its claim against Bart
for unpaid repair bills. On subsequent motion
of Ranger Motors and Bart, the court
dismissed the complaint as well as Midway
Repair Shop’s intervention. Did the court act
correctly? (A) No, since the dismissal of the
intervention bars the right of Bart to file a
separate action.
(B) Yes, intervention is merely collateral to the
principal action and not an independent
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
proceeding. (C) Yes, the right of the
intervenor is merely in aid of the right of
the original party, which in this case had
ceased to exist. (D) No, since having been
allowed to intervene, the intervenor
became a party to the action, entitled to
have the issue it raised tried and
decided.
Section 2. Time to intervene. — The
motion to intervene may be filed at any
time before rendition of judgment by the
trial court. A copy of the pleading-in-
intervention shall be attached to the
motion and served on the original parties.
an
GR: Intervention is filed before rendition of
judgment by the trial court.
Exceptions:
1. Intervention of an indispensable party
even on appeal;
Intervention allowed even at the
execution stage when intervenors are
indispensable parties (Mago vs. CA, 303
SCRA 600).
2. When the ends of justice would be
served.
Requisites:
1. That intervenors are indispensable
parties (Oliva vs. CA, 166 SCRA 632);
2. Show, at least prima facie, that claim
is meritorious; and
3. Grave injustice would be caused to
the intervenors, if intervention is not
allowed.
4. Intervention was allowed even after
entry of judgment in the case of
Navarro vs. Executive Secretary, GR
No. 180050, April 12, 20011, En Banc.
REMEDY IF INTERVENTION IS DENIED:
1. Petition for CPM under Rule 65, not
appeal;
[Appeal is not proper because he is not
a party to the case in the trial court
which rendered the decision]
Denial of intervention is an interlocutory
order for it does not finally dispose a
case. Hence, appeal is not proper.
2. Filing a separate action.
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Section 3. Pleadings-in-intervention. — SUBPOENA SUMMONS
The intervenor shall file a complaint-in- An order to testify, or And order to answer
intervention if he asserts a claim against to bring books and complaint
either or all of the original parties or an other documents
answer-in-intervention if he unites with the Maybe served to a Served on the
defending party in resisting a claim against non-party defendant
the latter. (2[c]a, R12) Needs tender of Does not need tender
kilometrage, of kilometrage and
attendance fee and other fees
Section 4. Answer to complaint-in-
reasonable cost of
intervention. — The answer to the production fee
complaint-in-intervention shall be filed within
fifteen (15) days from notice of the order
admitting the same, unless a different period Section 1. Subpoena and subpoena
is fixed by the court. (2[d]a, R12) duces tecum. — Subpoena is a process
directed to a person requiring him to
attend and to testify at the hearing or the
trial of an action, or at any investigation
conducted by competent authority, or for
RULE 20 the taking of his deposition. It may also
require him to bring with him any books,
Calendar of Cases documents, or other things under his
control, in which case it is called a
Section 1. Calendar of cases. — The clerk subpoena duces tecum. (1a, R23)
of court, under the direct supervision of the
judge, shall keep a calendar of cases for pre- Section 2. By whom issued. — The
trial, for trial, those whose trials were subpoena may be issued by —
adjourned or postponed, and those with
motions to set for hearing. Preference shall (a) the court before whom the witness is
be given to habeas corpus cases, election required to attend;
cases, special civil actions, and those so
required by law. (1a, R22)
(b) the court of the place where the
deposition is to be taken;
Preference shall be given to:
1. A. Habeas Corpus cases;
B. Habeas Data cases; (c) the officer or body authorized by law
C. Amparo cases. to do so in connection with investigations
D. Writ of Kalikasan cases conducted by said officer or body; or

2. Election cases; (d) any Justice of the Supreme Court or of

3. Special Civil actions; the Court of Appeals in any case or
4. Those required by law. investigation pending within the
Philippines.

Section 2. Assignment of cases. — The When application for a subpoena to a

assignment of cases to the different branches
of a court shall be done exclusively by raffle.
The assignment shall be done in open session
of which adequate notice shall be given so as
to afford interested parties the opportunity to
be present. (7a, R22)
RULE 21
Subpoena
prisoner is made, the judge or officer shall
examine and study carefully such
application to determine whether the
same is made for a valid purpose.
No prisoner sentenced to death, reclusion
perpetua or life imprisonment and who is
confined in any penal institution shall be
brought outside the said penal institution
for appearance or attendance in any court
unless authorized by the Supreme Court
(2a, R23)

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Section 3. Form and contents. — A
subpoena shall state the name of the court
and the title of the action or investigation,
shall be directed to the person whose
attendance is required, and in the case of a
subpoena duces tecum, it shall also contain a
reasonable description of the books,
documents or things demanded which must
appear to the court prima facie relevant. (3a,
R23)
Section 4. Quashing a subpoena. — The
court may quash a subpoena duces tecum
upon motion promptly made and, in any
event, at or before the time specified therein
if it is unreasonable and oppressive, or the
relevancy of the books, documents or things
does not appear, or if the person in whose
behalf the subpoena is issued fails to advance
the reasonable cost of the production thereof.
The court may quash a subpoena ad
testificandum on the ground that the witness
is not bound thereby. In either case, the
subpoena may be quashed on the ground
that the witness fees and kilometrage allowed
by these Rules were not tendered when the
subpoena was served. (4a, R23)
Section 5. Subpoena for depositions. —
Proof of service of a notice to take a
deposition, as provided in sections 15 and 25
of Rule 23, shall constitute sufficient
authorization for the issuance of subpoenas
for the persons named in said notice by the
clerk of the court of the place in which the
deposition is to be taken. The clerk shall not,
however, issue a subpoena duces tecum to
any such person without an order of the
court. (5a, R23)
Section 6. Service. — Service of a subpoena
shall be made in the same manner as
personal or substituted service of summons.
The original shall be exhibited and a copy
thereof delivered to the person on whom it is
served, tendering to him the fees for one
day's attendance and the kilometrage allowed
by these Rules, except that, when a
subpoena is issued by or on behalf of the
Republic of the Philippines or an officer or
agency thereof, the tender need not be
made. The service must be made so as to
allow the witness a reasonable time for
preparation and travel to the place of
attendance. If the subpoena is duces tecum,
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the reasonable cost of producing the
books, documents or things demanded
shall also be tendered. (6a, R23)
Section 7. Personal appearance in
court. — A person present in court before
a judicial officer may be required to testify
as if he were in attendance upon a
subpoena issued by such court or officer.
(10, R23)
Section 8. Compelling attendance. — In
case of failure of a witness to attend, the
court or judge issuing the subpoena, upon
proof of the service thereof and of the
failure of the witness, may issue a warrant
to the sheriff of the province, or his
deputy, to arrest the witness and bring
him before the court or officer where his
attendance is required, and the cost of
such warrant and seizure of such witness
shall be paid by the witness if the court
issuing it shall determine that his failure
to answer the subpoena was willful and
without just excuse. (11, R23)
Section 9. Contempt. — Failure by any
person without adequate cause to obey a
subpoena served upon him shall be
deemed a contempt of the court from
which the subpoena is issued. If the
subpoena was not issued by a court, the
disobedience thereto shall be punished in
accordance with the applicable law or
Rule. (12a R23)
Section 10. Exceptions. — The provisions
of sections 8 and 9 of this Rule shall not
apply to a witness who resides more than
one hundred (100) kilometers from his
residence to the place where he is to
testify by the ordinary course of travel, or
to a detention prisoner if no permission of
the court in which his case is pending was
obtained. (9a, R23)
VIATORY RIGHT
Witness resides more than 100 kilometers from
his residence to the place where he is to testify
by the ordinary course of travel. In this case, he
cannot be compelled to attend the proceeding.
REMEDY: Taking of DEPOSITIONS.
NOTE: Viatory right is not applicable in criminal
cases.
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Subpoena; Viatory Right of Witness (2009) No.XI.B. The
viatory right of a witness served with a subpoena ad
testificandum refers to his right not to comply with the
subpoena. SUGGESTED ANSWER: FALSE. The viatory
right of a witness, embodied in Sec. 10, Rule 21 of the
Rules of Civil Procedure, refers to his right not to be
compelled to attend upon a subpoena, by reason of the
distance from the residence of the witness to the place
where he is to testify. It is available only in civil cases
(People vs. Montejo, 21 SCRA 722 [1965]).
Discovery; Modes; Subpoena Duces Tecum (1997)
In an admiralty case filed by A against Y Shipping
Lines (whose principal offices are in Manila) in the
RTC, Davao City, the court issued a subpoena duces
tecum directing Y, the president of the shipping
company, to appear and testify at the trial and to bring
with him several documents.
(a) On what valid ground can Y refuse to comply with
the subpoena duces tecum?
(b) How can A take the testimony of Y and present the
documents as exhibits other than through the
subpoena from the RTC?
SUGGESTED ANSWER:
(a) Y can refuse to comply with the subpoena duces
tecum on the ground that he resides more than 50
(now 100) kilometers from the place where he is to
testify, (Sec. 9 of former Rule 23; Sec. 10 of new Rule 21).
(b) A can take the testimony of Y and present the
documents as exhibits by taking his deposition through
oral examination or written interrogatories. (Rule 24; new
Rule 23) He may also file a motion for the production or
inspection of documents. (Rule 27).
ALTERNATIVE ANSWER:
(a) The witness can also refuse to comply with the
subpoena duces tecum on the ground that the
documents are not relevant and there was no tender of
fees for one day's attendance and the kilometrage
allowed by the rules.
RULE 22
Computation of Time
Section 1. How to compute time. — In
computing any period of time prescribed or
allowed by these Rules, or by order of the
court, or by any applicable statute, the day of
the act or event from which the designated
period of time begins to run is to be excluded
and the date of performance included. If the
last day of the period, as thus computed, falls
on a Saturday a Sunday, or a legal holiday in
the place where the court sits, the time shall
not run until the next working day. (a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 2. Effect of interruption. —
Should an act be done which effectively
interrupts the running of the period, the
allowable period after such interruption
shall start to run on the day after notice of
the cessation of the cause thereof.
The day of the act that caused the
interruption shall be excluded in the
computation of the period. (n)
RULES OF DISCOVERY
DISCOVERY is the disclosure of the facts
resting in the knowledge of the defendant, or is
the production of deeds, writings or things in his
possession or power, in order to maintain the
right or title of the party asking it, in a suit or
proceeding (Insular Life vs. CA, 238 SCRA 88)
PURPOSE: To enable the parties to obtain the
fullest possible knowledge of the issues and
evidence long before the trial to prevent such
trial from being carried on the dark.
MODES OF DISCOVERY UNDER THE RULES
OF COURT;
1. Depositions pending action;(Rule 23)
2. Depositions before action or pending
appeal;(Rule 24)
3. Interrogatories to parties;(Rule 25)
4. Admission by adverse party;(Rule 26)
5. Production or inspection of documents,
or things;(Rule 27)
6. Physical and mental examination of
persons.(Rule 28)
Modes of discovery are intended to be
CUMULATIVE, and not alternative nor mutually
exclusive (Fortune Corp. vs. CA, 299 SCRA
376).
NOTE: Modes of discovery are not mandatory,
but failure to avail carries sanctions in Rule 25
and 26.
Discovery; Modes of Discovery (2000)
Describe briefly at least five (5) modes of discovery
under the Rules of Court. (5%)
SUGGESTED ANSWER:
Five modes of discovery under the Rules of Court
are:
1 DEPOSITION. By leave of court after jurisdiction
has been obtained over any defendant or over
property which is the subject of the action, or
without such leave after an answer has been served,
the testimony of any person, whether a party or not,
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may be taken, at the instance of any party, by deposition
pon oral examination or written interrogatories. (Sec. 1,
Rule 23, 1997 Rules of Civil Procedure.)
2 INTERROGATORIES TO PARTIES. Under the same
conditions specified in section 1 of Rule 23, any party
shall file and serve upon any adverse party written
interrogatories regarding material and relevant facts to be
answered by the party served. (Sec. 1, Rule 25, 1997 Rules of
Civil Procedure.)
3 ADMISSION BY ADVERSE PARTY. At any time after
issues have been joined, a party may file and serve upon
any other party a written request for the admission by
the latter of the genuineness of any material and relevant
document or of the truth of any material and relevant
matter of fact. (Sec. 1, Rule 26, 1997 Rules of Civil Procedure.)
4. PRODUCTION OR INSPECTION OF DOCUMENTS
OR THINGS. Upon motion of any party showing good
cause therefore, a court may order any party to produce
and permit the inspection and copying or photographing
of any designated documents, etc. or order any party to
permit entry upon designated land or property for
inspecting, measuring, surveying, or photographing the
property or any designated relevant object or operation
thereon. (Sec. 1, Rule 27, 1997 Rule 27 Rules of Civil Procedure.)
Discovery; Modes of Discovery; Refusal to Comply
(2010) No.II. On August 13, 2008, A, as shipper and
consignee, loaded on the M/V Atlantis in Legaspi City
100,000 pieces of century eggs. The shipment arrived in
Manila totally damaged on August 14, 2008. A filed
before the Metropolitan Trial Court (MeTC) of Manila a
complaint against B Super Lines, Inc. (B Lines), owner of
the M/V Atlantis, for recovery of damages amounting to
P167,899. He attached to the complaint the Bill of
Lading. (c) On July 21, 2009, B Lines served on A a
"Notice to Take Deposition," setting the deposition on
July 29, 2009 at 8:30 a.m. at the office of its counsel in
Makati. A failed to appear at the deposition-taking,
despite notice. As counsel for B Lines, how would you
proceed? (3%) SUGGESTED ANSWER: As counsel for B
lines (which gave notice to take the deposition), I shall
proceed as follows: (a) Find out why A failed to appear
at the deposition taking, despite notice; (b) If failure
was for valid reason, then set another date for taking
the deposition. (c) If failure to appear at deposition
taking was without valid reason, then I would file a
motion/application in the court where the action is
pending, for and order to show cause for his refusal to
submit to the discovery; and (d) For the court to issue
appropriate Order provided under Rule 29 of the Rules,
for noncompliance with the show-cause order, aside
from contempt of court.
RULE 23
Depositions Pending Action
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
DEPOSITION
It 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.
Depositions are different from affidavits since
the latter are ex parte statements without formal
interrogation and an opportunity for cross
examination, affidavits are NOT ADMISSIBLE IN
EVIDENCE EXCEPT in cases governed by the
Rule on Summary Procedure.
Depositions are intended as a means to compel
disclosure of facts resting in the knowledge of a
party or other persons, which are relevant in a
suit or proceeding.
NOTE: Depositions are not allowed in criminal
cases.
Ratio: the RIGHT OF CONFRONTATION.
CLASSIFICATON OF DEPOSITIONS
1. Depositions on ORAL EXAMINATION
and depositions upon WRITTEN
INTERROGATORIES;
2. Depositions DE BENE ESSE- Those
taken for purposes of a pending action
(rule 23); and
3. Depositions IN PERPETUAM REI
MEMORIAM (Rule 24)
Discovery; Modes; Subpoena Duces Tecum (1997)
In an admiralty case filed by A against Y Shipping
Lines (whose principal offices are in Manila) in the
RTC, Davao City, the court issued a subpoena duces
tecum directing Y, the president of the shipping
company, to appear and testify at the trial and to
bring
with him several documents.
(a) On what valid ground can Y refuse to comply
with
the subpoena duces tecum?
(b) How can A take the testimony of Y and present
the
documents as exhibits other than through the
subpoena from the RTC?
SUGGESTED ANSWER:
(a) Y can refuse to comply with the subpoena duces
tecum on the ground that he resides more than 50
(now 100) kilometers from the place where he is to
testify, (Sec. 9 of former Rule 23; Sec. 10 of new Rule 21).
(b) A can take the testimony of Y and present the
documents as exhibits by taking his deposition
through
oral examination or written interrogatories. (Rule 24;
new
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Rule 23) He may also file a motion for the production or 3. Not restricted by a protective order.
inspection of documents. (Rule 27).
ALTERNATIVE ANSWER:
(a) The witness can also refuse to comply with the
subpoena duces tecum on the ground that the
documents are not relevant and there was no tender of
fees for one day's attendance and the kilometrage
allowed by the rules.
Section 1. Depositions pending action,
when may be taken. — By leave of court
after jurisdiction has been obtained over any
defendant or over property which is the
subject of the action, or without such leave
after an answer has been served, the
testimony of any person, whether a party or
not, may be taken, at the instance of any
party, by deposition upon oral examination or
written interrogatories. The attendance of
witnesses may be compelled by the use of a
subpoena as provided in Rule 21. Depositions
shall be taken only in accordance with these
Rules. The deposition of a person confined in
prison may be taken only by leave of court on
such terms as the court prescribes. (1a, R24)
WHEN TAKEN
A. WITH LEAVE OF COURT:
1. After jurisdiction has been obtained over
any defendant or over the property which is
the subject matter of the action but
BEFORE an answer has been filed; and
2. Deposition of person confined in prison.
B. WITHOUT LEAVE OF COURT:
1. After answer has been filed;
2. Deponent not confined in prison.
Section 2. Scope of examination. — Unless
otherwise ordered by the court as provided
by section 16 or 18 of this Rule, the deponent
may be examined regarding any matter, not
privileged, which is relevant to the subject of
the pending action, whether relating to the
claim or defense of any other party, including
the existence, description, nature, custody,
condition, and location of any books,
documents, or other tangible things and the
identity and location of persons having
knowledge of relevant facts. (2, R24)
SCOPE OF EXAMINATION
1. Relevant;
2. Not privileged;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(sec.16 and 18)
Section 3. Examination and cross-
examination. — Examination and cross-
examination of deponents may proceed as
permitted at the trial under sections 3 to
18 of Rule 132. (3a, R24)
Section 4. Use of depositions. — At the
trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of
a deposition, so far as admissible under
the rules of evidence, may be used
against any party who was present or
represented at the taking of the
deposition or who had due notice thereof,
in accordance with any one of the
following provisions;
(a) Any deposition may be used by any
party for the purpose of contradicting or
impeaching the testimony of deponent as
a witness;
(b) The deposition of a party or of any one
who at the time of taking the deposition
was an officer, director, or managing
agent of a public or private corporation,
partnership, or association which is a
party may be used by an adverse party
for any purpose;
(c) The deposition of a witness, whether
or not a party, may be used by any party
for any purpose if the court finds: (1) that
the witness is dead, or (2) that the
witness resides at a distance more than
one hundred (100) kilometers from the
place of trial or hearing, or is out of the
Philippines, unless it appears that his
absence was procured by the party
offering the deposition, or (3) that the
witness is unable to attend or testify
because of age, sickness, infirmity, or
imprisonment, or (4) that the party
offering the deposition has been unable to
procure the attendance of the witness by
subpoena; or (5) upon application and
notice, that such exceptional
circumstances exist as to make it
desirable, in the interest of justice and
with due regard to the importance of
presenting the testimony of witnesses
orally in open court, to allow the
deposition to be used; and
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(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. (4a, R24)
. died, survived by his son, C. No
Certiorari will not lie against an order
admitting or rejecting a deposition in
evidence. The remedy being an appeal from
the final judgment.
Bar Exam Question 2012
89. The deposition of a witness, whether or not
a party, may be used for any purpose if the
Court finds the following circumstances are
attendant, EXCEPT:
a. when the witness is dead.
b. when the witness is incarcerated.
c. when the witness is outside the
Philippines and absence is procured by the
party offering deposition.
d. when the witness is 89 years old and bed-
ridden.
SUGGESTED ANSWER:
(c), The deposition of a witness, whether or
not a party, may be used by any party for
any purpose if the court finds: (1) that the
witness is dead; (2) that the witness resides
at a distance more than one hundred (100)
kilometres from the place of trial or
hearing, or is out of the Philippines, unless
it appears that his absence was procured by
the party offering the deposition; (3) that
the witness is unable to attend or testify
because of age, sickness, infirmity, or
imprisonment; (4) that the party offering
the deposition has been unable to procure
the attendance of the witness by subpoena;
or (5) upon application and notice, that
such exceptional circumstances exist to
make it desirable, in the interest of justice
and with due regard to the importance of
presenting the testimony of the witnesses
orally in open court, to allow the deposition
to be used. (Rule 23, Sec. 4 (c), Rules of
Court).
Section 5. Effect of substitution of
parties. — Substitution of parties does not
affect the right to use depositions previously
taken; and, when an action has been
dismissed and another action involving the
same subject is afterward brought between
the same parties or their representatives or
successors in interest, all depositions lawfully
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
taken and duly filed in the former action
may be used in the latter as if originally
taken therefor. (5, R24)
Bar Exam Question 2011
(25) A sued B for ejectment. Pending trial, B
substitution of party defendant was made.
Upon finality of the judgment against B,
may the same be enforced against C? (A)
Yes, because the case survived B‟s death
and the effect of final judgment in an
ejectment case binds his successors in-
interest. (B) No, because C was denied due
process. (C) Yes, because the negligence of
B’s counsel in failing to ask for
substitution, should not prejudice A. (D)
No, because the action did not survive B’s
death.
Section 6. Objections to admissibility.
— Subject to the provisions of section 29
of this Rule, objection may be made at the
trial or hearing, to receiving in evidence
any deposition or part thereof for any
reason which would require the exclusion
of the evidence if the witness were then
present and testifying (6, R24)
Section 7. Effect of taking depositions.
— A party shall not be deemed to make a
person his own witness for any purpose by
taking his deposition. (7, R24)
Reason: The taking of depositions is for
purposes of discovery and not for use as
evidence.
Section 8. Effect of using depositions.
— The introduction in evidence of the
deposition or any part thereof for any
purpose other than that of contradicting or
impeaching the deponent makes the
deponent the witness of the party
introducing the deposition, but this shall
not apply to the use by an adverse party
of a deposition as described in paragraph
(b) of section 4 of this Rule. (8, R24)
Section 9. Rebutting deposition. — At
the trial or hearing any party may rebut
any relevant evidence contained in a
deposition whether introduced by him or
by any other party. (9, R24)
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Section 10. Persons before whom
depositions may be taken within the
Philippines. — Within the Philippines
depositions may be taken before any judge,
notary public, or the person referred to in
section 14 hereof. (10a, R24)
Within the Philippines:
1. Judge;
2. Notary public;
3. Any person authorized to administer oaths,
as stipulated by the parties (sec. 14)
Section 11. Persons before whom
depositions may be taken in foreign
countries. — In a foreign state or country,
depositions may be taken (a) on notice
before a secretary of embassy or legation,
consul general, consul, vice-consul, or
consular agent of the Republic of the
Philippines, (b) before such person or officer
as may be appointed by commission or under
letters rogatory; or (c) the person referred to
in section 14 hereof. (11a, R24)
Note that it is only a sort of a request to the
foreign court. It is coursed through the DFA.
The foreign court has the power to compel the
taking of depositions.
Section 13. Disqualification by interest.
— No deposition shall be taken before a
person who is a relative within the sixth
degree of consanguinity or affinity, or
employee or counsel of any of the parties,
or who is a relative within the same
degree, or employee of such counsel; or
who is financially interested in the action.
(13a, R24)
Section 14. Stipulations regarding
taking of depositions. — If the parties
so stipulate in writing, depositions may be
taken before any person authorized to
administer oaths, at any time or place, in
accordance with these Rules and when so
taken may be used like other depositions.
(14a, R24)

Section 12. Commission or letters Section 15. Deposition upon oral

rogatory. — A commission or letters examination; notice; time and place.
rogatory shall be issued only when necessary — A party desiring to take the deposition
or convenient, on application and notice, and of any person upon oral examination shall
on such terms, and with such direction as are give reasonable notice in writing, to every
just and appropriate. Officers may be other party to the action. The notice shall
designated in notices or commissions either state the time and place for taking the
by name or descriptive title and letters deposition and the name and address of
rogatory may be addressed to the each person to be examined, if known,
appropriate judicial authority in the foreign and if the name is not known, a general
country. (12a, R24) description sufficient to identify him or the
particular class or group to which he
COMMISSION LETTERS ROGATORY belongs. On motion of any party upon
Issued to a non-judicial Issued to the whom the notice is served, the court may
foreign officer who will appropriate judicial for cause shown enlarge or shorten the
directly take the officer of the foreign time. (15, R24)
testimony country who will direct
somebody in said Section 16. Orders for the protection of
foreign country to take parties and deponents. — After notice
testimony is served for taking a deposition by oral
Applicable rules of Applicable rules of examination, upon motion seasonably
procedure are those of procedure are those of
made by any party or by the person to be
the requesting court the foreign court
examined and for good cause shown, the
requested to act
court in which the action is pending may
Resorted to if the Resorted to if the
permission of the execution of the make an order that the deposition shall
foreign country is given commission is refused not be taken, or that it may be taken only
in the foreign country at some designated place other than that
Leave of court is not Leave of court stated in the notice, or that it may be
necessary necessary taken only on written interrogatories, or
that certain matters shall not be inquired
into, or that the scope of the examination

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shall be held with no one present except the only upon the order of the court in which
parties to the action and their officers or the action is pending. Upon demand of the
counsel, or that after being sealed the objecting party or deponent, the taking of
deposition shall be opened only by order of the deposition shall be suspended for the
the court, or that secret processes, time necessary to make a notice for an
developments, or research need not be order. In granting or refusing such order,
disclosed, or that the parties shall the court may impose upon either party or
simultaneously file specified documents or upon the witness the requirement to pay
information enclosed in sealed envelopes to such costs or expenses as the court may
be opened as directed by the court or the deem reasonable. (18a, R24)
court may make any other order which
justice requires to protect the party or Motion to terminate or limit examination
witness from annoyance, embarrassment, or maybe filed:
oppression. (16a, R24) 1. At any time during the taking of the
deposition;
Section 17. Record of examination, oath; 2. On motion or petition of any party or of the
objections. — The officer before whom the deponent;
deposition is to be taken shall put the witness 3. Upon showing that it is conducted in:
a. Bad faith;
on oath and shall personally, or by some one
b. In such a manner as unreasonably
acting under his direction and in his
to annoy, embarrass or oppress the
presence, record the testimony of the deponent or party.
witness. The testimony shall be taken
stenographically unless the parties agree PROTECTION MOTION TO
otherwise. All objections made at the time of ORDER (section 16) TERMINATE OR
the examination to the qualifications of the LIMIT EXAMINATION
officer taking the deposition, or to the Provides protection to Provides such
manner of taking it, or to the evidence the party or witness protection during the
presented, or to the conduct of any party, before the taking of the taking of the
and any other objection to the proceedings, deposition deposition
shall be noted by the officer upon the Motion is filed with the Motion or petition is
deposition. Evidence objected to shall be court where the case filed in court in which
taken subject to the objections. In lieu of is pending he action is pending
participating in the oral examination, parties OR the RTC of the
served with notice of taking a deposition may place where the
transmit written interrogatories to the deposition is being
officers, who shall propound them to the taken
witness and record the answers verbatim.
(17, R24)
Section 19. Submission to witness;
Section 18. Motion to terminate or limit changes; signing. — When the
examination. — At any time during the testimony is fully transcribed, the
taking of the deposition, on motion or petition deposition shall be submitted to the
of any party or of the deponent, and upon a witness for examination and shall be read
showing that the examination is being to or by him, unless such examination and
conducted in bad faith or in such manner as reading are waived by the witness and by
unreasonably to annoy, embarrass, or the parties. Any changes in form or
oppress the deponent or party, the court in substance which the witness desires to
which the action is pending or the Regional make shall be entered upon the deposition
Trial Court of the place where the deposition by the officer with a statement of the
is being taken may order the officer reasons given by the witness for making
conducting the examination to cease them. The deposition shall then be signed
forthwith from taking the deposition, or may by the witness, unless the parties by
limit the scope and manner of the taking of stipulation waive the signing or the
the deposition, as provided in section 16 of witness is ill or cannot be found or refuses
this Rule. If the order made terminates the to sign. If the deposition is not signed by
examination, it shall be resumed thereafter the witness, the officer shall sign it and

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state on the record the fact of the waiver or
of the illness or absence of the witness or the
fact of the refusal to sign together with the
reason be given therefor, if any, and the
deposition may then be used as fully as
though signed, unless on a motion to
suppress under section 29 (f) of this Rule, the
court holds that the reasons given for the
refusal to sign require rejection of the
deposition in whole or in part. (19a, R24)
Section 20. Certification, and filing by
officer. — The officer shall certify on the
deposition that the witness was duly sworn to
by him and that the deposition is a true
record of the testimony given by the witness.
He shall then securely seal the deposition in
an envelope indorsed with the title of the
action and marked "Deposition of (here insert
the name of witness)" and shall promptly file
it with the court in which the action is
pending or send it by registered mail to the
clerk thereof for filing. (20, R24)
Section 21. Notice of filing. — The officer
taking the deposition shall give prompt notice
of its filing to all the parties. (21, R24)
Section 22. Furnishing copies. — Upon
payment of reasonable charges therefor, the
officer shall furnish a copy of the deposition
to any party or to the deponent. (22, R24)
Section 23. Failure to attend of party
giving notice. — If the party giving the
notice of the taking of a deposition fails to
attend and proceed therewith and another
attends in person or by counsel pursuant to
the notice, the court may order the party
giving the notice to pay such other party the
amount of the reasonable expenses incurred
by him and his counsel in so attending,
including reasonable attorney's fees. (23a,
R24)
Section 24. Failure of party giving notice
to serve subpoena. — If the party giving
the notice of the taking of a deposition of a
witness fails to serve a subpoena upon him
and the witness because of such failure does
not attend, and if another party attends in
person or by counsel because he expects the
deposition of that witness to be taken, the
court may order the party giving the notice to
pay to such other party the amount of the
reasonable expenses incurred by him and his
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
counsel in so attending, including
reasonable attorney's fees. (24a, R24)
Section 25. Deposition upon written
interrogatories; service of notice and
of interrogatories. — A party desiring to
take the deposition of any person upon
written interrogatories shall serve them
upon every other party with a notice
stating the name and address of the
person who is to answer them and the
name or descriptive title and address of
the officer before whom the deposition is
to be taken. Within ten (10) days
thereafter, a party so served may serve
cross-interrogatories upon the party
proposing to take the deposition. Within
five (5) days thereafter, the latter may
serve re-direct interrogatories upon a
party who has served cross-
interrogatories. Within three (3) days
after being served with re-direct
interrogatories, a party may serve
recross-interrogatories upon the party
proposing to take the deposition. (25,
R24)
Section 26. Officers to take responses
and prepare record. — A copy of the
notice and copies of all interrogatories
served shall be delivered by the party
taking the deposition to the officer
designated in the notice, who shall
proceed promptly, in the manner provided
by sections 17, 19 and 20 of this Rule, to
take the testimony of the witness in
response to the interrogatories and to
prepare, certify, and file or mail the
deposition, attaching thereto the copy of
the notice and the interrogatories received
by him. (26, R24)
Section 27. Notice of filing and
furnishing copies. — When a deposition
upon interrogatories is filed, the officer
taking it shall promptly give notice thereof
to all the parties, and may furnish copies
to them or to the deponent upon payment
of reasonable charges therefor. (27, R24)
Section 28. Order for the protection of
parties and deponents. — After the
service of the interrogatories and prior to
the taking of the testimony of the
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deponent, the court in which the action is
pending, on motion promptly made by a
party or a deponent, and for good cause
shown, may make any order specified in
sections 15, 16 and 18 of this Rule which is
appropriate and just or an order that the
deposition shall not be taken before the
officer designated in the notice or that it shall
not be taken except upon oral examination.
(28a, R24)
Section 29. Effect of errors and
irregularities in depositions. —
(a) As to notice. — All errors and
irregularities in the notice for taking a
deposition are waived unless written
objection is promptly served upon the party
giving the notice.
(b) As to disqualification of officer. —
Objection to taking a deposition because of
disqualification of the officer before whom it
is to be taken is waived unless made before
the taking of the deposition begins or as soon
thereafter as the disqualification becomes
known or could be discovered with
reasonable diligence.
(c) As to competency or relevancy of
evidence. — Objections to the competency of
witness or the competency, relevancy, or
materiality of testimony are not waived by
failure to make them before or during the
taking of the deposition, unless the ground,
of the objection is one which might have
been obviated or removed if presented at
that time.
(d) As to oral examination and other
particulars. — Errors and irregularities
occurring at the oral examination in the
manner of taking the deposition in the form
of the questions or answers, in the oath or
affirmation, or in the conduct of the parties
and errors of any kind which might be
obviated, removed, or cured if promptly
prosecuted, are waived unless reasonable
objection thereto is made at the taking of the
deposition.
(e) As to form of written interrogatories. —
Objections to the form of written
interrogatories submitted under sections 25
and 26 of this Rule are waived unless served
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
in writing upon the party propounding
them within the time allowed for serving
succeeding cross or other interrogatories
and within three (3) days after service of
the last interrogatories authorized.
(f) As to manner of preparation. — Errors
and irregularities in the manner in which
the testimony is transcribed or the
deposition is prepared, signed, certified,
sealed, indorsed, transmitted, filed, or
otherwise dealt with by the officer under
sections 17, 19, 20 and 26 of this Rule are
waived unless a motion to suppress the
deposition or some part thereof is made
with reasonable promptness after such
defect is, or with due diligence might have
been, ascertained. (29a, R24)
RULE 24
Depositions Before Action or Pending
Appeal
NOTE: A deposition before action and a
deposition pending appeal are referred to as
perpetuation of testimony or perpetuam rei
memoriam because their objective is to
perpetuate the testimony of a witness for future
use.
Depositions under this Rule are also taken
conditionally, to be used at the trial only in case
the deponent is not available.
Depositions under this Rule do not prove the
existence of any right and the testimony
perpetuated is not in itself conclusive proof,
either of the existence of any right nor even of
facts to which they relate, as it can be
controverted at the trial in the same manner as
though no perpetuation of testimony was ever
made.
However, in the absence of any objection to its
taking, and even if the deponent did not testify at
the hearing, the perpetuated testimony
constitutes prima facie proof of the facts referred
to in the deposition.
Section 1. Depositions before action;
petition. — A person who desires to
perpetuate his own testimony or that of
another person regarding any matter that
may be cognizable in any court of the
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Philippines may file a verified petition in the
court of the place of the residence of any
expected adverse party. (1a R134)
NOTE: This may be availed of only in civil cases
and not in criminal cases.
Section 2. Contents of petition. — The
petition shall be entitled in the name of the
petitioner and shall show:
(a) that the petitioner expects to be a party
to an action in a court of the Philippines but is
presently unable to bring it or cause it to be
brought;
(b) the subject matter of the expected action
and his interest therein;
(c) the facts which he desires to establish by
the proposed testimony and his reasons for
desiring to perpetuate it;
(d) the names or a description of the persons
he expects will be adverse parties and their
addresses so far as known; and
(e) the names and addresses of the persons
to be examined and the substance of the
testimony which he expects to elicit from
each, and shall ask for an order authorizing
the petitioner to take the depositions of the
persons to be examined named in the petition
for the purpose of perpetuating their
testimony. (2, R134)
Section 3. Notice and service. — The
petitioner shall serve a notice upon each
person named in the petition as an expected
adverse party, together with a copy of the
petition, stating that the petitioner will apply
to the court, at a time and place named
therein, for the order described in the
petition. At least twenty (20) days before the
date of the hearing, the court shall cause
notice thereof to be served on the parties and
prospective deponents in the manner
provided for service of summons. (3a, R134)
Section 4. Order and examination. — If the
court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of
justice, it shall make an order designating or
describing the persons whose deposition may
be taken and specifying the subject matter of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the examination and whether the
depositions shall be taken upon oral
examination or written interrogatories.
The depositions may be taken in
accordance with Rule 23 before the
hearing. (4a, R134)
Section 5. Reference to court. — For the
purpose of applying Rule 23 to depositions
for perpetuating testimony, each
reference therein to the court in which the
action is pending shall be deemed to refer
to the court in which the petition for such
deposition was filed. (5a, R134)
Section 6. Use of deposition. — If a
deposition to perpetuate testimony is
taken under this Rule, or if, although not
so taken, it would be admissible in
evidence, it may be used in any action
involving the same subject matter
subsequently brought in accordance with
the provisions of sections 4 and 5 of Rule
23. (6a, R134)
Section 7. Depositions pending appeal.
— If an appeal has been taken from a
judgment of a court, including the Court
of Appeals in proper cases, or before the
taking of an appeal if the time therefor
has not expired, the court in which the
judgment was rendered may allow the
taking of depositions of witnesses to
perpetuate their testimony for in the
event of further proceedings in the said
court. In such case the party who desires
to perpetuate the testimony may make a
motion in the said court for leave to take
the depositions, upon the same notice and
service thereof as if the action was
pending therein.
The motion shall state:
(a) the names and addresses of the
persons to be examined and the
substance of the testimony which he
expects to elicit from each, and
(b) the reason for perpetuating their
testimony.
If the court finds that the perpetuation of
the testimony is proper to avoid a failure
or delay of justice, it may make an order
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allowing the deposition to be taken, and
thereupon the depositions may be taken and
used in the same manner and under the
same conditions as are prescribed in these
Rules for depositions taken in pending
actions. (7a, R134)
Note: Depositions are taken pending appeal with
the view to their being used in the event of further
proceedings in the COURT OF ORIGIN or
APPELATE COURT.
For example, any party may perpetuate the
testimony of a witness which was objected by the
adverse party and ruled out by the court. If the
appellate should reverse the decision/order of the
lower court, it could admit deposition as additional
evidence or remand the case back to the lower
court for such admission in accordance with
sections 4 and 5 of Rule 23.
RULE 25
Interrogatories to Parties
PURPOSE: To elicit facts from an adverse party
(answers may also be used as admissions of the
adverse party).
Written interrogatories and the answers thereto
must be FILED and SERVED. Hence, the answers
may constitute JUDICIAL ADMISSIONS (sec. 4,
Rule 129)
Interrogatories Bill of Particulars
A party may properly A party may properly
seek disclosure of seek disclosure only of
matters of proof which matters which define
later be made a part of the issues and become
the records as evidence part of the pleadings
Section 1. Interrogatories to parties;
service thereof. — Under the same
conditions specified in section 1 of Rule 23,
any party desiring to elicit material and
relevant facts from any adverse parties shall
file and serve upon the latter written
interrogatories to be answered by the party
served or, if the party served is a public or
private corporation or a partnership or
association, by any officer thereof competent
to testify in its behalf. (1a)
A party may serve written interrogatories:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
1. WITHOUT LEAVE OF COURT. After
answer has been served, for the first set of
interrogatories.
2. WITH LEAVE OF COURT. Before answer
has been served.
REASON: At the time, the issues are not yet
joined and the disputed facts are not yet
clear, when more than one set of
interrogatories is to be served.
NOTE: Written interrogatories are addressed to
the party and not to the lawyer. But answer can,
however, be made by the counsel.
Section 2. Answer to interrogatories.
— The interrogatories shall be answered
fully in writing and shall be signed and
sworn to by the person making them. The
party upon whom the interrogatories have
been served shall file and serve a copy of
the answers on the party submitting the
interrogatories within fifteen (15) days
after service thereof unless the court on
motion and for good cause shown,
extends or shortens the time. (2a)
Note: A judgment by default may be rendered
against a party who fails to answer written
interrogatories.
Section 3. Objections to
interrogatories. — Objections to any
interrogatories may be presented to the
court within ten (10) days after service
thereof, with notice as in case of a
motion; and answers shall be deferred
until the objections are resolved, which
shall be at as early a time as is
practicable. (3a)
Bar Exam Question 2012
88. An objection to any interrogatories may
be presented within_ days after service
thereof:
a. 15;
b. 10;
c. 5;
d. 20.
SUGGESTED ANSWER: (b), Objections to
any interrogatories may be presented to
the court within ten (10) days after
service thereof, with notice as in case of
motion. Upon filing of the
aforementioned objections, the answer
to such written interrogatories shall be
deferred until the objections are
resolved, which shall be at as early a
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time as is practicable. (Rule 25, Sec.3, Rules Admission by Adverse Party
of Court).
PURPOSE: To expedite trial and relieve the
Section 4. Number of interrogatories. — parties of the costs of proving facts which will
No party may, without leave of court, serve not be disputed on trial and the truth of which
more than one set of interrogatories to be can be ascertained with reasonable inquiry.
answered by the same party. (4)
Section 1. Request for admission. — At
Section 5. Scope and use of any time after issues have been joined, a
interrogatories. — Interrogatories may party may file and serve upon any other
relate to any matters that can be inquired party a written request for the admission
into under section 2 of Rule 23, and the by the latter of the genuineness of any
answers may be used for the same purposes material and relevant document described
provided in section 4 of the same Rule. (5a) in and exhibited with the request or of the
truth of any material and relevant matter
Section 6. Effect of failure to serve of fact set forth in the request. Copies of
written interrogatories. — Unless the documents shall be delivered with the
thereafter allowed by the court for good request unless copies have already been
cause shown and to prevent a failure of furnished. (1a)
justice, a party not served with written
interrogatories may not be compelled by the Bar Exam Question 2012
adverse party to give testimony in open 55. As a mode of discovery, the best way to
court, or to give a deposition pending appeal. obtain an admission from any party
(n) regarding the genuineness of any material
and relevant document is through a:
a. motion for production of documents.
Note: The sanction adopted by the Rules is not one
b. written interrogatories.
of compulsion in the sense that the party is being
compelled to avail of the discovery mechanics, but c. request for admission under Rule 26.
one of negation by depriving him of evidentiary d. request for subpoena duces tecum.
sources which would otherwise have been SUGGESTED ANSWER:
accessible to him. (c), At any time after issues have been
joined, a party may file and serve upon
any other party a written request for the
Deposition Upon Interrogatories to admission by the latter of the
Written Parties (Rule 25) genuineness of any material and relevant
Interrogatories to document described in and exhibited
Parties (Rule 23, sec. with the request or of the truth of any
25) material and relevant matter of fact set
As to deponent: party or As to deponent: party forth in the request. (Rule 26, Sec.1,
ordinary witness only Rules of Court). A request for admission
As to procedure; with As to procedure: no is not intended to merely reproduce or
intervention of the intervention. Written reiterate the allegations of the
officer authorized to interrogatories are evidentiary matters of fact described in
take deposition directed to the party the request, whose purpose is to
himself establish said party‟s cause of action or
As to scope: direct, As to scope: only one defense. Unless it serves that purpose, it
cross, redirect, re-cross set of interrogatories is pointless, useless, and a mere
No fixed time 15 days to answer redundancy. (Limos vs. Spouses Odones,
unless extended or G.R. No. 186979, August 11, 2010).
reduced by the court

What request may include:

1. Admission of the genuineness of any
material and relevant document
described in and exhibited with the
RULE 26 request;

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2. Admission of the truth of any material and
relevant matter of fact set forth in the
request;
3. Under this rule, a matter of fact not related
to any documents may be presented to the
other party for admission or denial.
REQUEST FOR ADMISSION VS. ACTIONABLE
DOCUMENT
A request for admission is proper when the
genuineness of an evidentiary document is sought
to be admitted. If not denied under oath, its
genuineness is deemed impliedly admitted.
An actionable document or a copy thereof must be
attached to the complaint or copied therein. Its
genuineness and due execution are deemed
impliedly admitted unless specifically denied under
oath by the adverse party.
Section 2. Implied admission. — Each of
the matters of which an admission is
requested shall be deemed admitted unless,
within a period designated in the request,
which shall not be less than fifteen (15) days
after service thereof, or within such further
time as the court may allow on motion, the
party to whom the request is directed files
and serves upon the party requesting the
admission a sworn statement either denying
specifically the matters of which an admission
is requested or setting forth in detail the
reasons why he cannot truthfully either admit
or deny those matters.
Objections to any request for admission shall
be submitted to the court by the party
requested within the period for and prior to
the filing of his sworn statement as
contemplated in the preceding paragraph and
his compliance therewith shall be deferred
until such objections are resolved, which
resolution shall be made as early as
practicable. (2a)
Note: The effect of failure to make a reply to a
request for admission is that each of the matters of
which an admission is requested is deemed
admitted.
The REMEDY of the party, in this case, is to file a
motion to be relieved of the consequences of
the implied admission. The amendment of the
complaint per se cannot set aside the legal effects
of the request for admission since its materiality has
not been affected by the amendment.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 3. Effect of admission. — Any
admission made by a party pursuant to
such request is for the purpose of the
pending action only and shall not
constitute an admission by him for any
other purpose nor may the same be used
against him in any other proceeding. (3)
Note: admission by plaintiff upon written request
for admission by defendant is still binding upon
the plaintiff despite filing of amended complaint
after admission (Bay View Hotel vs. Ker & Co,
Ltd, 116 SCRA 327).
Section 4. Withdrawal. — The court may
allow the party making an admission
under the Rule, whether express or
implied, to withdraw or amend it upon
such terms as may be just. (4)
Section 5. Effect of failure to file and
serve request for admission. — Unless
otherwise allowed by the court for good
cause shown and to prevent a failure of
justice a party who fails to file and serve a
request for admission on the adverse
party of material and relevant facts at
issue which are, or ought to be, within the
personal knowledge of the latter, shall not
be permitted to present evidence on such
facts. (n)
Note: Material averments in the complaint which
are already specifically denied in the answer
cannot be the proper subjects of a request for
admission. Defendant need not act on such
request (Duque vs. CA, L-125383, July 2, 2002).
RULE 27
Production or Inspection of
Documents or Things
Note: This Rule applies only to a pending action
and the documents or the things subject of the
motion must be only those within the
possession, control or custody of a party.
Section 1. Motion for production or
inspection; order. — Upon motion of any
party showing good cause therefor, the
court in which an action is pending may
(a) order any party to produce and permit
the inspection and copying or
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photographing, by or on behalf of the moving information sought by BTC. Resolve BTC’s
party, of any designated documents, papers, motion with reasons. (3%) SUGGESTED
books, accounts, letters, photographs, ANSWER:
objects or tangible things, not privileged, I will deny the motion. The ingredients
which constitute or contain evidence material and chemical components of CCC‟s
to any matter involved in the action and products are trade secrets within the
which are in his possession, custody or contemplation of the law. Trade secrets
control, or (b) order any party to permit may not be the subject of compulsory
entry upon designated land or other property disclosure by reason of their confidential
in his possession or control for the purpose of and privileged character. Otherwise, CCC
inspecting, measuring, surveying, or would eventually be exposed to
unwarranted business competition with
photographing the property or any
others who may imitate and market the
designated relevant object or operation
same kinds of products in violation of
thereon. The order shall specify the time,
CCC‟s proprietary rights. Being
place and manner of making the inspection
privileged, the detailed list of
and taking copies and photographs, and may ingredients and chemical components
prescribe such terms and conditions as are may not be the subject of mode of
just. (1a) discovery under Rule 27, Section 1
which expressly makes privileged
Production of documents affords more opportunity information an exception from its
of discovery than a subpoena duces tecum. coverage (Air Philippines Corporation vs.
However, the rule is not intended as a dragnet or Pennswell, Inc., 540 SCRA 215 [2007]).
any fishing expedition.

In a petition for the production of papers and PRODUCTION OR

documents, they must be sufficiently described and INSPECTION OF
identified. Otherwise, the petition cannot prosper. DOCUMENTS OR SUBOENA DUCES
THINGS TECUM
This mode of discovery does not authorize the
opposing party, the clerk of court or any other Essentially a mode of A means of
functionaries of the court to distraint the articles discovery compelling the
or deprive the person who produce the same of production of
their possession, even temporarily (Tanda vs. evidence
Aldaya, 81 Phil. 497).
The Rules is limited to It may be directed to
The documents to be produced:
the parties of the a person whether a
1. Should not be privileged;
action party or not
2. Should constitute or contain evidence
material to any matter involved in the
action, and which are in the possession, Order issued only It may be issued ex
control or custody of the person ordered. upon motion with parte
notice to the adverse
Discovery; Production and Inspection party
(2009) No.XIII.A. Continental Chemical
Corporation (CCC) filed a complaint for a sum
of money against Barstow Trading Corporation
(BTC) for the latter’s failure to pay for its Discovery; Modes of Discovery (2000)
purchases of industrial chemicals. In its Describe briefly at least five (5) modes of discovery
answer, BTC contended that it refused to pay under the Rules of Court. (5%)
SUGGESTED ANSWER:
because CCC misrepresented that the products Five modes of discovery under the Rules of Court
it sold belonged to a new line, when in fact are:
they were identical with CCC’s existing
1 DEPOSITION. By leave of court after
products. To substantiate its defense, BTC filed
jurisdiction has been obtained over any defendant or
a motion to compel CCC to give a detailed list
over property which is the subject of the action, or
of the products’ ingredients and chemical
without such leave after an answer has been served,
components, relying on the right to avail of the
the testimony of any person, whether a party or not,
modes of discovery allowed under Rule 27.
may be taken, at the instance of any party, by
CCC objected, invoking confidentiality of the

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________________________________________________________________________________________________
deposition upon oral examination or written
interrogatories. (Sec. 1, Rule 23, 1997 Rules of Civil Procedure.)
2 INTERROGATORIES TO PARTIES. Under the
same conditions specified in section 1 of Rule 23, any
party shall file and serve upon any adverse party written
interrogatories regarding material and relevant facts to be
answered by the party served. (Sec. 1, Rule 25, 1997 Rules of
Civil Procedure.)
3 ADMISSION BY ADVERSE PARTY. At any time
after issues have been joined, a party may file and serve
upon any other party a written request for the
admission by the latter of the genuineness of any
material and relevant document or of the truth of any
material and relevant matter of fact.
(Sec. 1, Rule 26, 1997 Rules of Civil Procedure.)
4. PRODUCTION OR INSPECTION OF DOCUMENTS
OR THINGS. Upon motion of any party showing good
cause therefore, a court may order any party to produce
and permit the inspection and copying or photographing
of any designated documents, etc. or order any party to
permit entry upon designated land or property for
inspecting, measuring, surveying, or photographing the
property or any designated relevant object or operation
thereon. (Sec. 1, Rule 27, 1997 Rule 27 Rules of Civil Procedure.)
Discovery; Production and Inspection of Documents
(2002)
The plaintiff sued the defendant in the RTC to collect
on a promissory note, the terms of which were stated in
the complaint and a photocopy attached to the
complaint as an annex. Before answering, the defendant
filed a motion for an order directing the plaintiff to
produce the original of the note so that the defendant
could inspect it and verify his signature and the
handwritten entries of the dates and amounts.
1 Should the judge grant the defendant’s motion for
production and inspection of the original of the
promissory
note? Why? (2%)
2 Assuming that an order for production and
inspection was issued but the plaintiff failed to comply
with it, how should the defendant plead to the alleged
execution of the note? (3%)
SUGGESTED ANSWER:
(1) Yes, because upon motion of any party showing
good cause, the court in which the action is pending
may order any party to produce and permit the
inspection of designated documents. (Rule 27). The
defendant has the right to inspect and verify the
original of the promissory note so that he could
intelligently prepare his answer.
(2) The defendant is not required to deny under oath
the genuineness and due execution of the promissory
note, because of the non-compliance by the plaintiff
with the order for production and inspection of the
original thereof. (Rule 8, sec. 8).
ALTERNATIVE ANSWER:
(2) The defendant may file a motion to dismiss the
complaint because of the refusal of the plaintiff to
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
obey the order of the court for the production and
inspection of the promissory note. [Rule 29 Sec.(c)].
RULE 28
Physical and Mental Examination of
Persons
Section 1. When examination may be
ordered. — In an action in which the
mental or physical condition of a party is
in controversy, the court in which the
action is pending may in its discretion
order him to submit to a physical or
mental examination by a physician. (1)
 The mental condition of a party is in
controversy in proceedings for
GUARDIANSHIP over an imbecile or insane
person, while physical condition of the party
is generally involved in physical injuries
cases.
Since the results of the examination is intended
to be made public, the same are not covered by
the physician-patient privilege (sec. 24[b],
Rule 130)
Rights of the Accused; Validity; HIV Test (2005)
Under Republic Act No. 8353, one may be charged with
andfound guilty of qualified rape if he knew on or before
thecommission of the crime that he is afflicted with
Human Immuno-Deficiency Virus (HIV)/Acquired
ImmuneDeficiency Syndrome (AIDS) or any other
sexuallytransmissible disease and the virus or disease is
transmitted tothe victim. Under Section 17(a) of Republic
Act No. 8504 the court may compel the accused to submit
himself to a blood test where blood samples would be
extracted from his veins todetermine whether he has HIV.
(8%)
a) Are the rights of the accused to be presumed
innocent of the crime charged, to privacy, and
against self-incrimination violated by such
compulsory testing?
Explain.
SUGGESTED ANSWER:
No. The court may compel the accused to submit
himself to a blood test to determine whether he has
HIV under Sec. 17(a) of R.A. No, 8054. His rights to
be presumed innocent of the crime charged, to
privacy and against self-incrimination are not
violated by such compulsory testing. In an action in
which the physical condition of a party is in
controversy, the court may order the accused to
submit to a physical examination. (Sec. 1, Rule 28, 1997
Rules of Civil Procedure)(Look for citation of latest case, in 2004)
b) If the result of such test shows that he is HIV
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positive, and the prosecution offers such result in
evidence to prove the qualifying circumstance under the
Information for qualified rape, should the court reject
such result on the ground that it is the fruit of a
poisonous tree? Explain.
SUGGESTED ANSWER:
Since the rights of the accused are not violated because
the compulsory testing is authorized by the
law, the result of the testing cannot be considered to be the
fruit of a poisonous tree and can be offered in evidence to
prove the qualifying circumstance under the information for
qualified rape under R.A. No. 8353. The fruit, of the
poisonous tree doctrine refers to that rule of evidence that
excludes any evidence which may have been derived or
acquired from a tainted or polluted source. Such evidence is
inadmissible for having emanated from spurious origins. The
doctrine, however, does not apply to the results obtained
pursuant to Sec. 1, Rule 28, 1997 Rules of Civil Procedure, as
it does not contemplate a search within the moaning of the
law. (People v. Montilla, G.R. No. 123872, January 30,1998)
Section 2. Order for examination. — The
order for examination may be made only on
motion for good cause shown and upon notice
to the party to be examined and to all other
parties, and shall specify the time, place,
manner, conditions and scope of the
examination and the person or persons by
whom it is to be made. (2)
REQUISITES: (clue words)
1. Motion;
2. Good cause
3. Notice;
4. Specify time and place.
Section 3. Report of findings. — If
requested by the party examined, the party
causing the examination to be made shall
deliver to him a copy of a detailed written
report of the examining physician setting out
his findings and conclusions. After such
request and delivery, the party causing the
examination to be made shall be entitled,
upon request, to receive from the party
examined a like report of any examination,
previously or thereafter made, of the same
mental or physical condition. If the party
examined refuses to deliver such report, the
court on motion and notice may make an
order requiring delivery on such terms as are
just, and if a physician fails or refuses to
make such a report the court may exclude his
testimony if offered at the trial. (3a)
Section 4. Waiver of privilege. — By
requesting and obtaining a report of the
examination so ordered or by taking the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
deposition of the examiner, the party
examined waives any privilege he may
have in that action or any other involving
the same controversy, regarding the
testimony of every other person who has
examined or may thereafter examine him
in respect of the same mental or physical
examination. (4)
Where the party examined requests and obtains
a report on the results of the examination, the
consequences are:
1. He has to furnish the other party a copy
of the report of any previous or
subsequent examination of the same
physical and mental condition; and
2. He waives any privilege he may have in
that action or any other involving the
same controversy, regarding the
testimony of every other person who
has examined or may thereafter
examine him in respect of the same
mental or physical examination.
RULE 29
Refusal to Comply with Modes of
Discovery
Section 1. Refusal to answer. — If a
party or other deponent refuses to answer
any question upon oral examination, the
examination may be completed on other
matters or adjourned as the proponent of
the question may prefer. The proponent
may thereafter apply to the proper court
of the place where the deposition is being
taken, for an order to compel an answer.
The same procedure may be availed of
when a party or a witness refuses to
answer any interrogatory submitted under
Rules 23 or 25.
If the application is granted, the court
shall require the refusing party or
deponent to answer the question or
interrogatory and if it also finds that the
refusal to answer was without substantial
justification, it may require the refusing
party or deponent or the counsel advising
the refusal, or both of them, to pay the
proponent the amount of the reasonable
expenses incurred in obtaining the order,
including attorney's fees.
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If the application is denied and the court finds
that it was filed without substantial
justification, the court may require the
proponent or the counsel advising the filing of
the application, or both of them, to pay to the
refusing party or deponent the amount of the
reasonable expenses incurred in opposing the
application, including attorney's fees. (1a)
Section 2. Contempt of court. — If a party
or other witness refuses to be sworn or
refuses to answer any question after being
directed to do so by the court of the place in
which the deposition is being taken, the
refusal may be considered a contempt of that
court. (2a)
Section 3. Other consequences. — If any
party or an officer or managing agent of a
party refuses to obey an order made under
section 1 of this Rule requiring him to answer
designated questions, or an order under Rule
27 to produce any document or other thing
for inspection, copying, or photographing or
to permit it to be done, or to permit entry
upon land or other property or an order made
under Rule 28 requiring him to submit to a
physical or mental examination, the court
may make such orders in regard to the
refusal as are just, and among others the
following:
(a) An order that the matters regarding which
the questions were asked, or the character or
description of the thing or land, or the
contents of the paper, or the physical or
mental condition of the party, or any other
designated facts shall be taken to be
established for the purposes of the action in
accordance with the claim of the party
obtaining the order;
(b) An order refusing to allow the disobedient
party to support or oppose designated claims
or defenses or prohibiting him from
introducing in evidence designated
documents or things or items of testimony, or
from introducing evidence of physical or
mental condition;
(c) An order striking out pleadings or parts
thereof, or staying further proceedings until
the order is obeyed, or dismissing the action
or proceeding or any part thereof, or
rendering a judgment by default against the
disobedient party; and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(d) In lieu of any of the foregoing orders
or in addition thereto, an order directing
the arrest of any party or agent of a party
for disobeying any of such orders except
an order to submit to a physical or mental
examination. (3a)
Section 4. Expenses on refusal to
admit. — If a party after being served
with a request under Rule 26 to admit the
genuineness of any document or the truth
of any matter of fact serves a sworn
denial thereof and if the party requesting
the admissions thereafter proves the
genuineness of such document or the
truth of any such matter of fact, he may
apply to the court for an order requiring
the other party to pay him the reasonable
expenses incurred in making such proof,
including attorney's fees. Unless the court
finds that there were good reasons for the
denial or that admissions sought were of
no substantial importance, such order
shall be issued. (4a)
Section 5. Failure of party to attend or
serve answers. — If a party or an officer
or managing agent of a party willfully fails
to appear before the officer who is to take
his deposition, after being served with a
proper notice, or fails to serve answers to
interrogatories submitted under Rule 25
after proper service of such
interrogatories, the court on motion and
notice, may strike out all or any part of
any pleading of that party, or dismiss the
action or proceeding or any part thereof,
or enter a judgment by default against
that party, and in its discretion, order him
to pay reasonable expenses incurred by
the other, including attorney's fees. (5)
Bar Exam Question 2012
69. A judgment by default can be issued
despite an Answer being filed in:
a. annulment of marriage.
b. legal separation.
c. cases where a party willfully fails to
appear before the officer who is to take
his deposition.
d. declaration of nullity of marriage.
SUGGESTED ANSWER:
(c), If a party or an officer or managing
agent of a party wilfully fails to appear
before the officer who is to take his
deposition, after being served with a
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proper notice, or fails to serve answers to
interrogatories submitted under Rule 25
after proper service of such interrogatories,
the court on motion and notice, may strike
out all or any part of any pleading of the
party, or dismiss the action or proceeding
or any part thereof, or enter a judgment by
default against the party, and in its
discretion, order him to pay reasonable
expenses incurred by the other, including
attorney‟s fees. (Rule 29, Sec.5, Rules of
Court). hence, even if an Answer was filed
by a defendant, a judgment by default can
still be issued where a party wilfully fails to
appear before the officer who is to take his
deposition. In Arellano vs. Court of First
Instance of Sorsogon, Branch I, 65 SCRA
46, the Supreme Court sustained the order
of dismissal for failure of respondent to
serve any answer to petitioner Arellano‟s
Interrogatories. The dismissal was based on
Section 5 of Rule 29 which provides that if
a party fails to serve answers to
interrogatories submitted under Rule 25,
after proper service of such interrogatories,
the Court on motion and notice may
dismiss the action or render judgment by
default even without prior order to serve
answer.
Section 6. Expenses against the Republic
of the Philippines. — Expenses and
attorney's fees are not to be imposed upon
the Republic of the Philippines under this
Rule. (6)
SANCTIONS FOR NON-COMPLIANCE WITH THE
MODES OF DISCOVERY:
1. Compel deponent to ANSWER questions;
2. Require the disobedient deponent or his
advising counsel or both, to PAY the proponent
the amount of reasonable expenses incurred by
the proponent, including attorney’s fees;
3. Cite the disobedient deponent in CONTEMPT
of court;
4. REFUSE to allow the disobedient party to
support or oppose claims or defenses;
5. PROHIBIT the disobedient party to introduce
evidence of physical or mental condition;
6. STRIKE OUT all or any part of the pleading of
the disobedient party;
7. STAY further proceedings until order is obeyed;
8. DISMISS action or proceeding;
9. Render JUDGMENT BY DEFAULT;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
10. ARREST the disobedient party, or his agent,
except the disobedience of an order to
submit to physical or mental examination.
Instances when party can be declared (“as
if”) in default despite the fact that an answer
has been filed:
1. Failure to appear during pre-trial;
2. Failure to file pre-trial brief;
3. Failure to cooperate in the modes of
discovery.
4. When the answer was stricken out for
failure to comply with a request for a bill
of particulars.
Note that above, in reality there is no declaration
of default but the other party is allowed to
present evidence ex parte. The effect, thus, is
somehow, similar.
RULE 30
Trial
TRIAL
It is the judicial process of investigating and
determining the legal controversies, starting with
the production of evidence by the plaintiff and
ending with his closing arguments.
GR: When an issue exists, trial is necessary.
Decision should not be made without a trial.
Exceptions:
1. Judgment on the pleadings (Rule 34);
2. Summary judgment (Rule 35);
3. Judgment on compromise;
4. Judgment by confession (only when
proper);
5. Dismissal with prejudice (Rule 17);
6. Judgment under Summary Procedure;
7. Stipulation of facts.
Section 1. Notice of Trial. — Upon entry
of a case in the trial calendar, the clerk
shall notify the parties of the date of its
trial in such manner as shall ensure his
receipt of that notice at least five (5) days
before such date. (2a, R22)
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Section 2. Adjournments and
postponements. — A court may adjourn a
trial from day to day, and to any stated time,
as the expeditious and convenient transaction
of business may require, but shall have no
power to adjourn a trial for a longer period
than one month for each adjournment nor
more than three months in all, except when
authorized in writing by the Court
Administrator, Supreme Court. (3a, R22)
Section 3. Requisites of motion to
postpone trial for absence of evidence. —
A motion to postpone a trial on the ground of
absence of evidence can be granted only
upon affidavit showing the materiality or
relevancy of such evidence, and that due
diligence has been used to procure it. But if
the adverse party admits the facts to be
given in evidence, even if he objects or
reserves the right to object to their
admissibility, the trial shall not be postponed.
(4a, R22; Bar Matter No. 803, 21 July 1998)
Requisites:
1. Motion for postponement stating grounds relied
upon;
2. Affidavit showing (a) materiality and relevancy of
the evidence; (b) that due diligence has been
used to procure it.
Note: This section does not apply to criminal cases
as the rule on postponements in criminal cases is
governed by sec. 2, rule 119.
Section 4. Requisites of motion to
postpone trial for illness of party or
counsel. — A motion to postpone a trial on
the ground of illness of a party or counsel
may be granted if it appears upon affidavit or
sworn certification that the presence of such
party or counsel at the trial is indispensable
and that the character of his illness is such as
to render his non-attendance excusable. (5a,
R22)
Section 5. Order of trial. — Subject to the
provisions of section 2 of Rule 31, and unless
the court for special reasons otherwise
directs, the trial shall be limited to the issues
stated in the pre-trial order and shall proceed
as follows:
Third party defendant
presents evidence, if
any
JANNYCER M. AUZA & GENESIS
(a) The plaintiff shall adduce evidence in
support of his complaint;
(b) The defendant shall then adduce
evidence in support of his defense,
counterclaim, cross-claim and third-party
complaints;
(c) The third-party defendant if any, shall
adduce evidence of his defense,
counterclaim, cross-claim and fourth-party
complaint;
(d) The fourth-party, and so forth, if any,
shall adduce evidence of the material facts
pleaded by them;
(e) The parties against whom any
counterclaim or cross-claim has been
pleaded, shall adduce evidence in support
of their defense, in the order to be
prescribed by the court;
(f) The parties may then respectively
adduce rebutting evidence only, unless
the court, for good reasons and in the
furtherance of justice, permits them to
adduce evidence upon their original case;
and
(g) Upon admission of the evidence, the
case shall be deemed submitted for
decision, unless the court directs the
parties to argue or to submit their
respective memoranda or any further
pleadings.
If several defendants or third-party
defendants, and so forth, having separate
defenses appear by different counsel, the
court shall determine the relative order of
presentation of their evidence. (1a, R30)
Plaintiff presents evidence
Defendant presents Defendant files demurrer
evidence in support of to evidence
his
defense/Counterclaim/
Cross-claim/ Third
party complaint
If court grants If court denies
motion; Renders motion; continues
dismissal with trial
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1. When it was omitted by inadvertence, or
excusable negligence;
2. Evidence is material and not merely
cumulative;
Parties against whom a 3. New evidence.
counterclaim or cross-
claim is pleaded
presents evidence in GR: After the parties had closed their
their defense presentation of evidence, they are allowed to
offer rebutting evidence only.
After presentation of
evidence:
1. Oral Arguments Exceptions: For good reasons and in
2. Submission of furtherance of justice, allowed when-
Rebuttal evidence of
parties Memoranda 1. There is a newly discovered evidence;
2. Evidence is omitted through inadvertence;
3. To correct evidence previously offered
(Lopez vs. Liboro);
DECISION
4. When the testimony is material, except
when it is kept back to trick the adverse
party (Director of Lands vs. Roman
Archbishop of Manila).
NOTE: Unless the court for special reasons,
otherwise directs, the trial shall be limited to the Section 6. Agreed statement of facts.
issues stated in the pre-trial order. — The parties to any action may agree, in
writing, upon the facts involved in the
Note also that what is not alleged in the complaint litigation, and submit the case for
may not be proved on trial, unless the adverse judgment on the facts agreed upon,
party fails to make a timely objection against its without the introduction of evidence.
consideration on trial (amendment to pleadings to
conform to evidence. [Rule 10, sec. 5]
If the parties agree only on some of the
facts in issue, the trial shall be held as to
REVERSE ORDER OF TRIAL- a situation wherein
the disputed facts in such order as the
the defendant presents evidence ahead of the
plaintiff. This is proper if the defendant relies upon court shall prescribe. (2a, R30)
affirmative defenses.
This is known as STIPULATION OF FACTS and
TRIAL FLOW is among the purposes of a pre-trial. Under the
Rules, it must be in writing. But it may also be
Plaintiff presents evidence; made verbally in open court.
 Presentation of witness (Direct Examination)
 Cross Examination NOTE: If NO EVIDENCE IS PRESENTED and
 Redirect the case is submitted for decision on an
 Re-cross agreement of the parties, the court should
Defendant presents evidence; render judgment in accordance with the said
 Presentation of witness agreement. The court cannot impose upon the
 Cross Examination parties a judgment different from their
 Redirect compromise agreement.
 Re-cross However, the compromise must not be contrary
to law, morals, good customs, public order and
Limits of rebuttal evidence pubic policy.
GR: Cannot present evidence other than presented
in evidence in chief of defendant. Stipulation of facts are NOT ALLOWED in
Exception: Courts directs otherwise for special actions for ANNULMENT OF MARRIAGE and
reasons. LEGAL SEPARATION

Rebuttal must be limited to the defendant’s Art. 2035, NCC. No compromise upon the
presented evidence. following questions shall be valid:

When allowed: (1) The civil status of persons;

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 112

________________________________________________________________________________________________
(2) The validity of a marriage or a legal
separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime. (1814a)
Section 7. Statement of judge. — During
the hearing or trial of a case any statement
made by the judge with reference to the
case, or to any of the parties, witnesses or
counsel, shall be made of record in the
stenographic notes. (3a, R30)
Section 8. Suspension of actions. — The
suspension of actions shall be governed by
the provisions of the Civil Code. (n)
Art. 2030, NCC. Every civil action or proceeding
shall be suspended:
(1) If willingness to discuss a possible
compromise is expressed by one or both
parties; or
(2) If it appears that one of the parties, before
the commencement of the action or
proceeding, offered to discuss a possible
compromise but the other party refused the
offer.
Section 9. Judge to receive evidence;
delegation to clerk of court. — The judge
of the court where the case is pending shall
personally receive the evidence to be
adduced by the parties. However, in default
or ex parte hearings, and in any case where
the parties agree in writing, the court may
delegate the reception of evidence to its clerk
of court who is a member of the bar. The
clerk of court shall have no power to rule on
objections to any question or to the
admission of exhibits, which objections shall
be resolved by the court upon submission of
his report and the transcripts within ten (10)
days from termination of the hearing. (n)
Bar Exam Question 2012
98. When directed by the judge, a clerk of
court can receive evidence addressed by the
parties in:
a. case where the judge is on leave.
b. small claims proceedings.
c. cases where the parties agree in writing.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
d. land registration proceedings.
SUGGESTED ANSWER:
(c), The Rules provide that the judge of
the court where the case is pending shall
personally receive the evidence to be
adduced by the parties. However, in
default or exparte hearings, and in any
case where the parties agree in writing,
the court may delegate the reception of
evidence to its clerk of court who is a
member of the bar. (Rule 30, Sec. 9,
Rules of Court).
Bar Exam Question 2011
(10) As a rule, the judge shall receive the
evidence personally. In which of the
following circumstances may the court
delegate the reception of evidence to the
clerk of court? (A) When a question of fact
arises upon a motion. (B) When the trial of
an issue of fact requires the examination of
a long account. (C) In default or ex-parte
hearings. (D) Upon motion of a party on
reasonable grounds.
NOTE: Clerk of court can receive evidence in –
1. Default proceedings;
2. Ex parte hearings; or
3. Cases where the parties agree
RULE 31
Consolidation or Severance
CONSOLIDATION
It involves several actions having a common
question of fact or law which may be jointly tried.
SEVERANCE
It contemplates a single cause of action having a
number of claims, counterclaims, cross-claims,
third party complaints or issues which may be
separately tried.
Section 1. Consolidation. — When
actions involving a common question of
law or fact are pending before the court, it
may order a joint hearing or trial of any or
all the matters in issue in the actions; it
may order all the actions consolidated,
and it may make such orders concerning
proceedings therein as may tend to avoid
unnecessary costs or delay. (1)
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GR: Consolidation is discretionary upon the court.
Exceptions: Consolidation becomes a matter of
duty when:
1. If the cases are pending before the same
judge; or
2. If filed with different branches of the same
RTC and one of such cases has NOT been
partially tried.
REQUISITES FOR CONSOLIDATION
1. Actions involves a common question of facts or
law; and
2. The question is pending before the same court.
If filed with different courts, an authorization
from the Supreme Court is necessary.
3 WAYS OF CONSOLIDATING CASES:
1. By RECASTING the cases already instituted.
Reshaping the cases by amending the pleading
and dismissing some cases and retaining only
one case. There must be joinder of causes of
action and of parties;
2. By CONSOLIDATING the existing cases. Joint
trial with joint decision, the cases retaining their
original docket numbers;
3. By HEARING ONLY THE PRINCIPAL CASE
and suspending the hearing on other until
judgment has been rendered in the principal
case (TEST- CASE METHOD)
Consolidation of cases on appeal and assigned to
different divisions of the SC and CA is also
authorized.
Section 2. Separate trials. — The court, in
furtherance of convenience or to avoid
prejudice, may order a separate trial of any
claim, cross-claim, counterclaim, or third-
party complaint, or of any separate issue or
of any number of claims, cross-claims,
counterclaims, third-party complaints or
issues. (2a)
RULE 32
Trial by Commissioner
COMMISSIONER
He is a person to whom a case pending in court is
referred, for him to take testimony, hear the parties
and report to the court, and upon whose report, if
confirmed, judgment is rendered.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 1. Reference by consent. — By
written consent of both parties, the court
may order any or all of the issues in a
case to be referred to a commissioner to
be agreed upon by the parties or to be
appointed by the court. As used in these
Rules, the word "commissioner" includes a
referee, an auditor and an examiner. (1a,
R33)
DELEGATION TO TRIAL BY
CLERK OF COURT COMMISSIONER
(sec. 9, Rule 30)
Clerk of court must be Commissioner need
a lawyer not be a lawyer
Clerk of court cannot Commissioner can rule
rule on objections or on objections or on the
on the admissibility of admissibility of
evidence evidence
Delegation is made Commissioner can be
during trial appointed even after
the case has become
final and executory
NOTE: An irregularity in the appointment of a
commissioner must be seasonably raised in the
trial court where the defect could still be
remedied. It can be waived by consent, express
or implied.
Take note that under this Rule, the reference to
commissioners is merely discretionary while
mandatory in case of expropriation proceedings.
Section 2. Reference ordered on
motion. — When the parties do not
consent, the court may, upon the
application of either or of its own motion,
direct a reference to a commissioner in
the following cases:
(a) When the trial of an issue of fact
requires the examination of a long
account on either side, in which case the
commissioner may be directed to hear and
report upon the whole issue or any
specific question involved therein;
(b) When the taking of an account is
necessary for the information of the court
before judgment, or for carrying a
judgment or order into effect.
(c) When a question of fact, other than
upon the pleadings, arises upon motion or
otherwise, in any stage of a case, or for
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carrying a judgment or order into effect. (2a,
R33)
Reference via motion in:
1. Examination of long account;
2. Taking of an account is necessary;
3. Question of facts arises not from the pleadings
4. Carrying a judgment or order into effect.(e.g.
appointment of a surveyor).
Note: Rule 86, sec. 12
Section 12. Trial of contested claim. — Upon the
filing of an answer to a claim, or upon the expiration of the
time for such filing, the clerk of court shall set the claim for
trial with notice to both parties. The court may refer the
claim to a commissioner.
Section 3. Order of reference; powers of
the commissioner. — When a reference is
made, the clerk shall forthwith furnish the
commissioner with a copy of the order of
reference. The order may specify or limit the
powers of the commissioner, and may direct
him to report only upon particular issues, or
to do or perform particular acts, or to receive
and report evidence only and may fix the
date for beginning and closing the hearings
and for the filing of his report. Subject to
other specifications and limitations stated in
the order, the commissioner has and shall
exercise the power to regulate the
proceedings in every hearing before him and
to do all acts and take all measures
necessary or proper for the efficient
performance of his duties under the order. He
may issue subpoenas and subpoenas duces
tecum, swear witnesses, and unless
otherwise provided in the order of reference,
he may rule upon the admissibility of
evidence. The trial or hearing before him
shall proceed in all respects as it would if held
before the court. (3a, R33)
Subject to other specifications and limitations
stated in the order, the commissioner has:
1. The power to regulate the proceedings;
2. To do all acts and take all measures
necessary or proper for the efficient
performance of his duties;
3. Issue subpoenas and subpoenas duces
tecum;
4. Swear witnesses;
5. Unless otherwise provided, rule upon the
admissibility of evidence.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 4. Oath of commissioner. —
Before entering upon his duties the
commissioner shall be sworn to a faithful
and honest performance thereof. (14,
R33)
Section 5. Proceedings before
commissioner. — Upon receipt of the
order of reference and unless otherwise
provided therein, the commissioner shall
forthwith set a time and place for the first
meeting of the parties or their counsel to
be held within ten (10) days after the date
of the order of reference and shall notify
the parties or their counsel. (5a, R33)
Section 6. Failure of parties to appear
before commissioner. — If a party fails
to appear at the time and place appointed,
the commissioner may proceed ex parte
or, in his discretion, adjourn the
proceedings to a future day, giving notice
to the absent party or his counsel of the
adjournment. (6a, R33)
Section 7. Refusal of witness. — The
refusal of a witness to obey a subpoena
issued by the commissioner or to give
evidence before him, shall be deemed a
contempt of the court which appointed the
commissioner. (7a R33)
Section 8. Commissioner shall avoid
delays. — It is the duty of the
commissioner to proceed with all
reasonable diligence. Either party, on
notice to the parties and commissioner,
may apply to the court for an order
requiring the commissioner to expedite
the proceedings and to make his report.
(8a, R33)
Section 9. Report of commissioner. —
Upon the completion of the trial or hearing
or proceeding before the commissioner,
he shall file with the court his report in
writing upon the matters submitted to him
by the order of reference. When his
powers are not specified or limited, he
shall set forth his findings of fact and
conclusions of law in his report. He shall
attach thereto all exhibits, affidavits,
depositions, papers and the transcript, if
any, of the testimonial evidence presented
before him. (9a, R33)
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Section 10. Notice to parties of the filing
of report. — Upon the filing of the report,
the parties shall be notified by the clerk, and
they shall be allowed ten (10) days within
which to signify grounds of objections to the
findings of the report, if they so desire.
Objections to the report based upon grounds
which were available to the parties during the
proceedings before the commissioner, other
than objections to the findings and
conclusions therein, set forth, shall not be
considered by the court unless they were
made before the commissioner. (10, R33)
Section 11. Hearing upon report. — Upon
the expiration of the period of ten (10) days
referred to in the preceding section, the
report shall be set for hearing, after which
the court shall issue an order adopting,
modifying, or rejecting the report in whole or
in part, or recommitting it with instructions,
or requiring the parties to present further
evidence before the commissioner or the
court. (11a, R33)
Section 12. Stipulations as to findings. —
When the parties stipulate that a the
commissioner's findings of fact shall be final,
only questions of law shall thereafter be
considered. (12a, R33)
Section 13. Compensation of
commissioner. — The court shall allow the
commissioner such reasonable compensation
as the circumstances of the case warrant, to
be taxed as costs against the defeated party,
or apportioned, as justice requires. (13, R33)
RULE 33
Demurrer to Evidence
JUDGMENT ON DEMURRER TO EVIDENCE
It is a judgment rendered by the court dismissing a
case upon motion of the defendant, made after
plaintiff has rested his case, on the ground that upon
the facts presented by the plaintiff and the law on
the matter, plaintiff has not shown any right to relief.
Section 1. Demurrer to evidence. — After
the plaintiff has completed the presentation
of his evidence, the defendant may move for
dismissal on the ground that upon the facts
and the law the plaintiff has shown no right
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
to relief. If his motion is denied he shall
have the right to present evidence. If the
motion is granted but on appeal the order
of dismissal is reversed he shall be
deemed to have waived the right to
present evidence. (1a, R35)
When the demurrer to evidence is granted by
the trial court is reversed on appeal, the
reviewing court cannot remand the case for
further proceedings. It should render judgment
based on the evidence proffered by the plaintiff
(Radiowealth Finance Co. vs. Sps. Del Rosario,
L- 138739, July 20, 2000).
Demurrer to Evidence (2001)
Carlos filed a complaint against Pedro in the RTC of
Ozamis City 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
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 Pedro’s motion to
present his evidence? Why? (5%)
SUGGESTED ANSWER:
No. Pedro’s motion should be denied. He can no
longer present evidence. The Rules provide that if
the motion for dismissal is granted by the trial court
but on appeal the order of dismissal is reversed, he
shall be deemed to have waived the right to present
evidence. (Sec. 1 of Rule 33, Rules of Civil rocedure)
ALTERNATIVE ANSWER:
No, because when the appellate court reversed the
order of the trial court it should have rendered
judgment in favor of Carlos. (Quebral v. Court of Appeals,
252 SCRA 353, 1996)
ALTERNATIVE ANSWER by Genesis:
When the demurrer to evidence is granted by
the trial court is reversed on appeal, the
reviewing court cannot remand the case for
further proceedings. It should render judgment
based on the evidence proffered by the plaintiff
(Radiowealth Finance Co. vs. Sps. Del Rosario,
L- 138739, July 20, 2000).
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CIVIL CASES CRIMINAL CASES
Maybe filed with or with
out leave of court.
Defendant need not Leave of court is
ask for leave of court necessary so that the
accused could present
his evidence if
demurrer is denied
If the court finds
plaintiff’s evidence
insufficient, it will If the court finds the
grant the demurrer by prosecution’s evidence
dismissing the case. insufficient, it will grant
The judgment of the demurrer by
dismissal is rendering judgment
appealable. If plaintiff acquitting the accused.
appeals and judgment Judgment of acquittal is
is reversed by the not appealable. Double
appellate court, it will jeopardy sets-in
decide the case on
the basis of the
plaintiff’s evidence
with the
consequences that
the defendant already
loses his right to
present evidence.
There is no res
judicata in dismissal
due to demurrer
The plaintiff files a The court may deny
motion to deny motion the motion
to demurrer evidence
If court denies the
demurrer:
If court denies the
demurrer, defendant 1. Demurrer was
will present his WITH LEAVE,
evidence accused may
present his
evidence;
2. WITHOUT
LEAVE,
accused could
no longer
present his
evidence and
submits the
case for
decision based
on the
prosecution’s
evidence
Only by motion of Court may motu proprio
defendant dismiss/acquit
Upon motion of the a. Upon motion of the
defendant accused, with or
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
without leave of court;
or b. motu proprio by
the court
Ground – upon the Ground – insufficiency
acts and the law, the of evidence
plaintiff is not entitled
to relief
Demurrer to
Evidence; Civil Case vs. Criminal Case (2003)
Compare the effects of a denial of demurrer to
evidence in a civil case with those of a denial of
demurrer to evidence in a criminal case. 4%
SUGGESTED ANSWER:
In a civil case, the defendant has the right to file a
demurrer to evidence without leave of court. If his
demurrer is denied, he has the right to present
evidence. If his demurrer is granted and on appeal by
the plaintiff, the appellate court reverses the order
and
renders judgment for the plaintiff, the defendant
loses
his right to present evidence. (Rule 33).
In a criminal case, the accused has to obtain leave of
court to file a demurrer to evidence. If he obtains
leave
of court and his demurrer to evidence is denied, he
has
the right to present evidence in his defense. If his
demurrer to evidence is granted, he is acquitted and
the prosecution cannot appeal.
If the accused does not obtain leave of court and his
demurrer to evidence is denied, he waives his right
to
present evidence and the case is decided on the basis
of the evidence for the prosecution.
The court may also dismiss the action on the ground
of insufficiency of the evidence on its own initiative
after giving the prosecution the opportunity to be
heard. (Sec. 23 of Rule 119)
RULE 34
Judgment on the Pleadings
Section 1. Judgment on the pleadings. —
Where an answer fails to tender an issue,
or otherwise admits the material
allegations of the adverse party's
pleading, the court may; on motion of
that party, direct judgment on such
pleading. However, in actions for
declaration of nullity or annulment of
marriage or for legal separation, the
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material facts alleged in the complaint shall
always be proved. (1a, R19)
Bar Exam Question 2012
90. One of the exemptions to the general rule
that evidence not formally offered shall not be
considered is:
a. in judgment on the pleadings.
b. evidence in land registration proceedings.
c. evidence lost/destroyed due to force majeure
after being marked, identified and described in
the record.
d. documentary evidence proving a foreign
judgment.
SUGGESTED ANSWER:
(a), Where an answer fails to tender an
issue, or otherwise admits the material
allegations of the adverse party‟s pleading,
the court may, on motion of that party,
direct judgment on such pleading. (Rule 34,
Sec. 1, Rules of Court). Judgment on the
pleadings is, therefore, based exclusively
upon the allegations appearing in the
pleadings of the parties and the annexes, if
any, without consideration of any evidence
aliunde. (Philippine National Bank vs.
Merelo B. Aznar, et. al, G.R. No. 171805,
May 30, 2011, Leonardo-De Castro, J.). The
court therefore may be allowed to render
judgment based merely on the pleadings
without need of trial and formal offer of
evidence. ALTERNATIVE ANSWER:
(b), The Rules of Court shall not apply to
election cases, land registration, cadastral,
naturalization and insolvency proceedings,
and other cases not herein provided for,
except by analogy or in suppletory
character and whenever practicable and
convenient (Rule 1, Sec. 4, Rules of Court).
(Government Insurance System (GSIS) vs.
Dinnah Villaviza et. al., G.R. No. 180291,
July 27, 2010, Mendoza, J.). In one case,
the Supreme Court sustained the Court of
Appeals when it denied an application for
naturalization in the basis of documents
not formally offered in evidence during the
trial. The High Court noted that the
procedure in Sec.34 of Rule 132 providing
that the Court shall consider no evidence
which has not been formally offered, does
not apply to naturalization proceeding
conformably to Section 4, Rule 1 of the
Rules of Court. (Ong Chia vs. Republic, 328
SCRA 9 (2001). Applying the same principle,
we should not also apply the said rule on
evidence in land registration proceedings.
After all, in one case, the Supreme Court
already made it clear that the liberal
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
construction principle does not apply in
land registration cases because it is not
governed by the Rules of Court.
(Bienvenido Castillo vs. Republic of the
Philippines, G.R. No., 182980, June 22,
2011, Carpio, J.).
NOTE: A judgment on the pleadings must be on
motion of the claimant. HOWEVER, if at the pre-
trial the court finds that a judgment on the
pleadings is proper, it may render such
judgment motu proprio (Rule 18, sec. 2[g])
Atty. Ucat Notes: There must still be a
motion for judgment on the pleadings. Under
sec. 2 (g), Rule 18, the court merely
considers the propriety of such action. If
proper, a motion for the judgment on the
pleadings or summary judgment must be
filed and heard according with the rules
(Feria, citing Auan vs. Estenzo, 69 SCRA
524).
One who prays for a judgment on the pleadings
without offering proof as to the truth of his own
allegations and without giving the opposing party
an opportunity to introduce evidence, must be
understood to ADMIT ALL MATERIAL
ALLEGATIONS of the opposing party and to rest
his motion for judgment on those allegations
taken together with such of his own as are
admitted in the pleadings (Falcasantos vs. How
Suy Ching, 91 Phil 456).
GROUNDS FOR JUDGMENT ON THE
PLEADINGS:
1. The answer fails to tender an issue
because of:
a. General denial of material allegations of
the complaint;
b. Insufficient denial of the material
allegations of the complaint; or
2. The answer admits material allegations of
the adverse party’s pleading.
NOTE: By moving for judgment on the
pleadings, plaintiff waives his claim for
unliquidated damages. Claim for such damages
must be alleged and proved.
Judgment; Judgment on the Pleadings
(1999)
a) What are the grounds for judgment on the
pleadings? (2%)
b) A's Answer admits the material allegations of
B's Complaint. May the court motu proprio
render judgment on the pleadings? Explain.
(2%)
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c) A brought an action against her husband B for
annulment of their marriage on the ground of
psychological incapacity, B filed his Answer to the
Complaint admitting all the allegations therein
contained. May A move for judgment on the
pleadings? Explain. (2%)
SUGGESTED ANSWER:
a) The grounds for judgment on the pleadings are
where an answer fails to tender an issue, or
otherwise admits the material allegations of the
adverse party's pleading. (Sec. 1, Rule 34).
b) No, a motion must be filed by the adverse party.
(Sec. 1, Rule 34) The court cannot motu proprio
render judgment on the pleadings.
c) No, because even if B's answer to A's complaint
for annulment of their marriage admits all the
allegations therein contained, the material facts
alleged in the complaint must always be proved.
(Sec. 1 of Rule 34.)
ANOTHER ANSWER:
c. No. The court shall order the prosecutor to
investigate whether or not a collusion between the
parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the
evidence submitted is not fabricated. (Sec. 3[E],
Rule 9) Evidence must have to be presented in
accordance with the requirements set down by the
Supreme Court in
Republic vs. Court of Appeals and Molina (268
SCRA 198.)
Judgment; Judgment on the Pleadings (2005)
In a complaint for recovery of real property, the plaintiff
averred, among others, that he is the owner of the said
property by virtue of a deed of sale executed by the
defendant in his favor. Copy of the deed of sale was
appended to the complaint as Annex "A" thereof. In his
unverified answer, the defendant denied the allegation
concerning the sale of the property in question, as well
as the appended deed of sale, for lack of knowledge or
information sufficient to form a belief as to the truth
thereof. Is it proper for the court to render judgment
without trial? Explain. (4%)
SUGGESTED ANSWER:
Defendant cannot deny the sale of the property for lack of
knowledge or information sufficient to form a belief as to
the truth thereof. The answer amounts to an admission.
The defendant must aver or state positively how it is that he
is ignorant of the facts alleged. (Phil, Advertising Counselors,
Inc. v. Revilla, G.R. No. L-31869, August 8, 1973; Sec. 10, Rule
8) Moreover, the genuineness and due execution of the
deed of sale can only be denied by the defendant under
oath and failure to do so is also an admission of the
deed. (Sec. 8, Rule 8) Hence, a judgment on the pleadings
can be rendered by the court without need of a trial.
Judgment; Judgment on the Pleadings
(2012)
No.VII.B. Plaintiff files a request for admission
and serves the same on Defendant who fails,
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
within the time prescribed by the rules, to
answer the request. Suppose the request
for admission asked for the admission of
the entire material allegations stated in the
complaint, what should plaintiff do? (5%)
SUGGESTED ANSWER: The Plaintiff
should file a Motion for Judgment on the
Pleadings because the failure of the
defendant to answer a request for
admission results to an implied
admission of all the matters which an
admission is requested. Hence, a motion
for judgment on the pleadings is the
appropriate remedy where the defendant
is deemed to have admitted the matters
contained in the Request for admission
by the plaintiff. (Rule 34 in connection
with Sec.2, Rule 26, Rules of Court).
Judgment; Judgment on the Pleadings
(2009)
No.IX. Modesto sued Ernesto for a sum of
money, claiming that the latter owed him
P1M, evidenced by a promissory note,
quoted and attached to the complaint. In
his answer with counterclaim, Ernesto
alleged that Modesto coerced him into
signing the promissory note, but that it is
Modesto who really owes him P1.5M.
Modesto filed an answer to Ernesto’s
counterclaim admitting that he owed
Ernesto, but only in the amount of P0.5M.
at the pre-trial, Modesto marked and
identified Ernesto’s promissory note. He
also marked and identified receipts covering
payments he made to Ernesto, to the extent
of P0.5M, which Ernesto did not dispute.
After pre-trial, Modesto filed a motion for
judgment on the pleadings, while Ernesto
filed a motion for summary judgment on his
counterclaim. Resolve the two motions with
reasons.
SUGGESTED ANSWER: Modesto‟s
motion for judgment on the pleadings
should be denied. While it is true that
under the actionable document rule,
Ernesto‟s failure to deny under oath the
promissory note in his answer amounted
to an implied admission of its
genuineness and due execution, his
allegation in his answer that he was
coerced into signing the promissory note
tendered an issue which should be tried.
The issue of coercion is not inconsistent
with the due execution and genuineness
of the instrument. Thus, Ernesto‟s
failure to deny the genuineness of the
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promissory note cannot be considered a
waiver to raise the issue that he was
coerced in signing the same. Said claim of
coercion may also be proved as an
exception to the Parol Evidence Rule.
On the other hand, Ernesto‟s motion for
summary judgment may be granted.
Modesto‟s answer to Ernesto‟s
counterclaim – that he owed the latter a
sum less than what was claimed – amounted
to an admission of a material fact and if the
amount thereof could summarily be proved
by affidavits, deposition, etc., without the
need of going to trial, then no genuine issue
of fact exists.
ALTERNATIVE ANSWER: Modesto‟s motion
for judgment on the pleadings should be
denied because there is an issue of fact.
While Ernesto did not specifically deny
under oath the promissory note attached to
Modesto‟s complaint as an actionable
document, such non-denial will not bar
Ernesto‟s evidence that Modesto coerced
him into signing the promissory note. Lack
of consideration, as a defense, does not
relate to the genuineness and due execution
of the promissory note. Likewise, Ernesto‟s
motion for summary judgment should be
denied because there is an issue of fact –
the alleged coercion – raised by Ernesto
which he has yet to prove in a trial on its
merits. It is axiomatic that summary
judgment is not proper or valid whent there
is an issue of fact remaining which requires
a hearing. And this is so with respect to the
coercion alleged by Ernesto as his defense,
since coercion is not capable of being
established by documentary evidence.
MOTION FOR
MOTION TO DISMISS JUDGMENT ON THE
PLEADINGS
Filed by a defendant to Filed by plaintiff if
a complaint, answer fails to tender
counterclaim, cross- an issue
claim or 3rd party
complaint
Note: If complaint states no cause of action, a
motion to dismiss should be filed and not a
motion for a judgment on the pleadings.
RULE 35
Summary Judgments
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
SUMMARY JUDGMENT (aka Accelerated
Judgment)
It is the one granted by the court for the prompt
disposition of civil actions wherein it clearly
appears that there exists NO GENUINE ISSUE
OR CONTROVERSY as to any material fact,
except the amount of damages.
GENUINE ISSUE
It is an issue of fact which calls for the
presentation of evidence as distinguished from
an issue which is sham, fictitious, contrived and
patently unsubstantial so as to constitute a
genuine issue for trial.
Section 1. Summary judgment for
claimant. — A party seeking to recover
upon a claim, counterclaim, or cross-claim
or to obtain a declaratory relief may, at
any time after the pleading in answer
thereto has been served, move with
supporting affidavits, depositions or
admissions for a summary judgment in his
favor upon all or any part thereof. (1a,
R34)
Section 2. Summary judgment for
defending party. — A party against
whom a claim, counterclaim, or cross-
claim is asserted or a declaratory relief is
sought may, at any time, move with
supporting affidavits, depositions or
admissions for a summary judgment in his
favor as to all or any part thereof. (2a,
R34)
Section 3. Motion and proceedings
thereon. — The motion shall be served at
least ten (10) days before the time
specified for the hearing. The adverse
party may serve opposing affidavits,
depositions, or admissions at least three
(3) days before the hearing. After the
hearing, the judgment sought shall be
rendered forthwith if the pleadings,
supporting affidavits, depositions, and
admissions on file, show that, except as to
the amount of damages, there is no
genuine issue as to any material fact and
that the moving party is entitled to a
judgment as a matter of law. (3a, R34)
Section 4. Case not fully adjudicated
on motion. — If on motion under this
Rule, judgment is not rendered upon the
whole case or for all the reliefs sought and
a trial is necessary, the court at the
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hearing of the motion, by examining the fictitious, contrived, set up in bad faith, and
pleadings and the evidence before it and by patently unsubstantial (Vergara vs. Suelto, 156
interrogating counsel shall ascertain what SCRA 753)
material facts exist without substantial
controversy and what are actually and in SUMMARY JUDGMENT JUDGMENT
good faith controverted. It shall thereupon JUDGMENT ON THE BY DEFAULT
make an order specifying the facts that PLEADINGS
appear without substantial controversy, Based on the Based on the
pleadings, Based solely complaint and
including the extent to which the amount of
depositions, on the evidence, if
damages or other relief is not in controversy,
admissions pleadings presentation
and directing such further proceedings in the
and affidavits is required
action as are just. The facts so specified shall Generally
be deemed established, and the trial shall be available only
conducted on the controverted facts Available to to the plaintiff, Available to
accordingly. (4a, R34) both plaintiff unless plaintiff
and defendant defendant
Section 5. Form of affidavits and presents a
supporting papers. — Supporting and counterclaim
opposing affidavits shall be made on personal There is no The answer No issues as
knowledge, shall set forth such facts as would genuine issue fails to tender there is no
be admissible in evidence, and shall show between the an issue or answer filed
affirmatively that the affiant is competent to parties ( there there is an by defendant
testify to the matters stated therein. Certified may be issues admission of
true copies of all papers or parts thereof but are , the material
referred to in the affidavit shall be attached however, allegations
irrelevant)
thereto or served therewith. (5a, R34)
10-day notice 3-day notice 3-day notice
required required rule applies
Section 6. Affidavits in bad faith. — Should Maybe
it appear to its satisfaction at any time that interlocutory On the merits On the merits
any of the affidavits presented pursuant to or on the
this Rule are presented in bad faith, or solely merits
for the purpose of delay, the court shall Available only
forthwith order the offending party or counsel in actions to Available in Available in
to pay to the other party the amount of the recover a any action any action
reasonable expenses which the filing of the debt; or for a except in except
affidavits caused him to incur including liquidated sum annulment of annulment of
attorney's fees, it may, after hearing further of money or marriage, or marriage or
adjudge the offending party or counsel guilty for declaratory legal legal
of contempt. (6a, R34) relief separation separation

BASES OF SUMMARY JUDGMENT

1. Affidavits made on personal knowledge;
2. Depositions of adverse party or 3rd party under RULE 36
Rule 23:
3. Admissions of adverse party under Rule 26; Judgments, Final Orders and Entry
4. Answers to interrogatories under Rule 25. All
Thereof
intended to show that:
a. There is no genuine issue as to any material
fact, except damages which must always be JUDGMENT
proved; and It is the final consideration and determination of
b. The movant is entitled to judgment as a a court of competent jurisdiction, upon matters
matter of law. submitted to in an action or proceeding.

Even if the answer does tender an issue, and JUDGMENT UPON THE MERITS
therefore a judgment on the pleadings is NOT A judgment is upon the merits when it amounts
proper, a summary judgment may still be rendered if to a declaration to the respective rights and
the issues tendered are not genuine, are sham, duties of the parties, based upon the ultimate

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________________________________________________________________________________________________
fact or state of facts disclosed by the pleadings and by him, and filed with the clerk of the
evidence, and upon which the right or recovery court. (1a)
depends, irrespective of formal technical or dilatory
objectives or contention (Allied Banking Corp. vs.
CA, 229 SCRA 252). 2 SENSES IN WHICH “FINAL ORDER” IS
UNDERSTOOD
PARTS OF A JUDGMENT
A. Final and Appealable--- For purposes of
1. The opinion of the court- contains the appeal, an order is final if it disposes of the
findings of facts and conclusions of law; action as distinguished from an interlocutory
2. The disposition of the case- the final and order which leave something to be done in the
actual disposition of the rights litigated trial court with respect to the merits of the case.
(dispositive part);
3. Signature of the judge. B. Final and Executory--- For purposes of
execution, an order is final or executory after the
Essential parts of a good decision: (Velarde vs. lapse of the period to appeal and no appeal has
Social Justice, 428 SCRA 283) – been perfected (Montilla vs. CA, L-47968, May
9, 1988).
a. Statement of the case,
b. Statement of the facts,
c. Issues or assignment of errors, DECISION JUDGMENT
d. Court ruling, in which each issue is, as a rule, Refers to the entire Refers to the
separately considered and resolved, and record of the case dispositive portion
e. Dispositive portion. (Dicretal portion, Falio)
GR: In case of conflict between judgment and
In addition to the above, the following are optional
the decision, the judgment shall prevail.
parts:
Judgment contains the final order of the court.
Exception: Inevitable and undeniable fact that
a. Introduction or prologue, and
the conclusion should been otherwise. Body of
b. Epilogue, especially where the case is
decision prevails.
controversial or novel issues are involved.
TYPES OF JUDGMENT
Judgment vs. Opinion of the Court (2006)
What is the difference between a judgment and an
1. Sin perjuicio judgment- judgment
opinion of the court? (2.5%) without statement of the facts and the
SUGGESTED ANSWER:
The judgment or fallo is the final disposition of the Court law involved [INVALID];
which is reflected in the dispositive portion of the
decision. A decision is directly prepared by a judge and 2. Conditional judgment- judgment
signed by him, containing clearly and distinctly a subject to a condition [INVALID];
statement of the facts proved and the law upon which the
judgment is based (Etoya v. Abraham 3. Incomplete judgment- there are
Singson, Adm. Matter No. RTJ-91-758, September 26, 1994). matters to be settled on a subsequent
An opinion of the court is the informal expression of proceeding [INVALID];
the views of the court and cannot prevail against its E.g. awarding moral damages without
final order. The opinion of the court is contained in the stating the amount.
body of the decision that serves as a guide or
enlightenment to determine the ratio decidendi of the 4. Judgment non pro tunc- judgment for
decision. The opinion forms no part of the judgment now then [ALLOWED];
even if combined in one instrument, but may be
referred to for the purpose of construing the judgment 5. Judgment by compromise;
(Contreras v. Felix, G.R. No. L-477, June 30,1947). Judgment on compromise is
immediately executory.

Section 1. Rendition of judgments and 6. Judgment upon confession (judgment

cognovit)
final orders. — A judgment or final order
determining the merits of the case shall be in
writing personally and directly prepared by
the judge, stating clearly and distinctly the
facts and the law on which it is based, signed
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________________________________________________________________________________________________
Court renders decision
Losing party Filing appeal within
15/30 days from notice
of judgment
Accepts decision
without further Within 15/30 days
from notice of
contest
judgment: Motion for
Reconsideration or
motion for New Trial
b. clarifies an ambiguous judgment or a
judgment which is difficult to comply with.
c. one intended to enter into the record
the acts which already have been done,
but which do not appear in the records.
d. is a memorandum decision.
SUGGESTED ANSWER:
(c), A nunc pro tunc entry in practice is
an entry made now of something which
was actually previously done, to have
effect as the court, but to supply an
omission in the record of action really
had, but omitted through inadvertence
or mistake. (Wilmerding vs. Corbin
Banking Co., 28 South., 640, 641; 126
Ala., 268). (Perkins vs. Haywood, 31 N.
E., 670, 672 cited in Aliviado vs. Proctor
and Gamble, G.R. No. 160506, June 6,
2011).

Court maintains
decision
Court grants motion:
Modifies decision; or
Grants new trial
If no appeal is
taken or did not
avail of the Doctrine of FINALITY of Doctrine of
remedies, judgment IMMUTABILITY
judgment Losing party may of judgment
becomes final appeal within the
and executory remaining period
Once a judgment becomes Except for
final and executory (i. e., correction of
the 15-day period after clerical errors,
NOTE: promulgation thereof had final and
The power to amend a judgment is inherent to the already elapsed and no executory
court before judgment becomes final and executory. appeal is perfected, or if it is judgments can
perfected, the same had neither be
already been wholly amended nor
DOCTRINE OF IMMUTABILITY OF FINAL disposed of), execution of altered. (Swire
JUDGMENTS the judgment (issuance of Agri’l. Products,
the writ of execution) is a Inc. vs. Hyundai
GR: After judgment has become final and ministerial duty of the court Corp., 460 SCRA
executory, the court cannot amend the same. compellable by a writ of 77, First Div.).
mandamus. The prevailing
Exceptions: party should not be denied
1. Corrections of clerical errors, not substantial of the fruits of his victory by
amendments, as by an amendment non pro some subterfuge or device
tunc; pursued by the losing party.
2. To clarify ambiguity which is borne out by and
justifiable in the context of the decision; or
3. Judgment for support (with respect to the WRONG JUDGMENT VOID JUDGMENT
amount) which can be amended from time to Can become final and Can never become
time. executory if no appeal final and executory
is taken by the
Bar Exam Question 2012 aggrieved party.
56. A judgment "non pro tunc" is one which: The proper remedy The remedy is
a. dismisses a case without prejudice to it could have been an annulment of judgment
being re-filed. appeal. (direct attack) or a

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________________________________________________________________________________________________
collateral attack like
opposition during the
execution stage.
Remedies; Void Decision; Proper Remedy (2004)
After plaintiff in an ordinary civil action before the RTC;
ZZ has completed presentation of his evidence,
defendant without prior leave of court moved for
dismissal of plaintiffs complaint for insufficiency of
plaintiff’s evidence. After due hearing of the motion and
the opposition thereto, the court issued an order, reading
as follows: The Court hereby grants defendant's motion
to dismiss and accordingly orders the dismissal of
plaintiff’s complaint, with the costs taxed against him. It
is so ordered." Is the order of dismissal valid?
May plaintiff properly take an appeal? Reason. (5%)
SUGGESTED ANSWER:
The order or decision is void because it does not state
findings of fact and of law, as required by Sec. 14, Article
VIII of the Constitution and Sec. 1, Rule 36. Being void,
appeal is not available. The proper remedy is certiorari
under Rule 65.
ANOTHER ANSWER:
Either certiorari or ordinary appeal may be resorted to
on the ground that the judgment is void. Appeal, in fact,
may be the more expedient remedy.
ALTERNATIVE ANSWER:
Yes. The order of dismissal for insufficiency of the
plaintiffs evidence is valid upon defendant's motion to
dismiss even without prior leave of court. (Sec. 1 of Rule 33).
Yes, plaintiff may properly take an appeal because the
dismissal of the complaint is a final and appealable order.
However, if the order of dismissal is reversed on appeal,
the plaintiff is deemed to have waived his right to
present evidence. (Id.)
Section 2. Entry of judgments and final
orders. — If no appeal or motion for new
trial or reconsideration is filed within the time
provided in these Rules, the judgment or final
order shall forthwith be entered by the clerk
in the book of entries of judgments. The date
of finality of the judgment or final order shall
be deemed to be the date of its entry. The
record shall contain the dispositive part of the
judgment or final order and shall be signed
by the clerk, with a certificate that such
judgment or final order has become final and
executory. (2a, 10, R51)
IMPORTANCE OF ENTRY OF JUDGMENT
It is the starting point of the following:
1. Six months period to file petition for relief
(sec. 3, Rule 38);
2. Five years period to file a motion for
execution of judgment or final order (sec. 6,
Rule 39);
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
3. Ten years period of prescription of
judgments (Sec. 6, Rule 39);
4. Not less than 90 days nor more than
120 days (exact period to be specified
by the court) within which the mortgagor
debtor may pay the mortgage debt,
failing which, the court shall issue an
order directing the sale of the property
subject of the REM.
Section 3. Judgment for or against one
or more of several parties. — Judgment
may be given for or against one or more
of several plaintiffs and for or against one
or more of several defendants. When
justice so demands, the court may require
the parties on each side to file adversary
pleadings as between themselves and
determine their ultimate rights and
obligations. (3)
Section 4. Several judgments. — In an
action against several defendants, the
court may, when a several judgment is
proper, render judgment against one or
more of them, leaving the action to
proceed against the others. (4)
SEVERAL JUDGMENT
It is one rendered by a court against one or
more defendants and not against all of them
leaving the action to proceed against the others.
Several judgment is proper where the liability of
each party is clearly separable and distinct from
his co-parties such that the claims against each
of them could have been subject of separate
suits, and the judgment for or against one of
them will not necessarily affect the other.
Several judgment is NOT PROPER in actions
against SOLIDARY DEBTORS.
Section 5. Separate judgments. —
When more than one claim for relief is
presented in an action, the court, at any
stage, upon a determination of the issues
material to a particular claim and all
counterclaims arising out of the
transaction or occurrence which is the
subject matter of the claim, may render a
separate judgment disposing of such
claim. The judgment shall terminate the
action with respect to the claim so
disposed of and the action shall proceed
as to the remaining claims. In case a
separate judgment is rendered the court
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by order may stay its enforcement until the
rendition of a subsequent judgment or REMEDY AGAINST AN AMBIGOUS (NOT
judgments and may prescribe such conditions CLEAR) JUDGMENT:
as may be necessary to secure the benefit File a Motion for Clarificatory Judgment
thereof to the party in whose favor the (motion to clarify judgment) within 15 days from
judgment is rendered. (5a) notice of judgment.

Note: This is the one rendered disposing a claim

REMEDIES AGAINST FINAL
among several others presented in a case after a JUDGMENTS/ORDERS
determination of the issues material to a particular A. Before it becomes final and
claim and all counterclaims arising out of the executory –
transaction or occurrence, which is the subject
1. Motion for Reconsideration
matter of said claim. (MR)
2. Motion for New Trial (MNT)
This is proper when more than one claim for relief is 3. Appeal
presented in an action and a determination as to
issues material to the claim has been made. The B. After it becomes final and executory
action shall proceed as to the remaining claims.
–
1. Petition for Relief from
Judgment
AMENDED OR SUPLEMENTAL 2. Annulment of Judgment
CLARIFIED DECISION 3. Petition for certiorari
JUDGMENT 4. Collateral attack when
It is an entirely new Does not take the place judgment/order is patently null
decision and of or extinguish the and void.
supersedes the original original judgment
judgment
Petition for Relief (2007) No.II. (b) A defendant who
Court makes a Serves as to add or
thorough study of the bolster the original has been declared in default can avail of a petition
original judgment and judgment for relief from the judgment subsequently rendered
renders the amended in the case. (3%) SUGGESTED ANSWER: False. The
and clarified judgment remedy of petition for relief from judgment is
only after considering available only when the judgment or order in
all factual and legal question is already final and executor, i.e., no
issues longer appealable. As an extraordinary remedy, a
petition for relief from judgment may be availed
only in exceptional cases where no other remedy is
Section 6. Judgment against entity available.
without juridical personality. — When
judgment is rendered against two or more Petition for Relief; Injunction (2009)
persons sued as an entity without juridical No.XVII. Having obtained favorable
personality, the judgment shall set out their judgment in his suit for a sum of money
individual or proper names, if known. (6a) against Patricio, Orencio sought the
issuance of a writ of execution. When the
REMEDIES AGAINST JUDGMENTS OR FINAL writ was issued, the sheriff levied upon a
ORDERS parcel of land that Patricio owns, and a
date was set for the execution sale. (a) How
1. BEFORE finality of judgment or final order: may Patricio prevent the sale of the
property on execution? SUGGESTED
1. A motion for reconsideration; ANSWER: Patricio may file a Petition for
2. A motion for new trial; Relief with preliminary injunction (Rule
3. An appeal. 38), posting a bond equivalent to the
value of the property levied upon; or
2. AFTER finality of the judgment or final order: assail the levy as invalid if ground exists.
Patricio may also simply pay the amount
1. Relief from judgment or final order; required by the writ and the costs
2. An annulment of judgment; incurred therewith.
3. A petition for certiorari (only when proper)

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________________________________________________________________________________________________
(b) If Orencio is the purchaser of the property
at the execution sale, how much does he have
to pay? SUGGESTED ANSWER: Orencio, the
judgment creditor should pay only the
excess amount of the bid over the amount
of the judgment.
(c) If the property is sold to a third party at the
execution sale, what can Patricio do to recover
the property? SUGGESTED ANSWER: Patricio
can exercise his right of legal redemption
within 1 year from date of registration of
the certificate of sale by paying the amount
of the purchase price with interests of 1%
monthly, plus assessment and taxes paid by
the purchaser, with interest thereon, at the
same rate.
RULE 37
New Trial or Reconsiderations
An order denying motion for new trial
2nd motion for new trial based on ground not
existing or available when the 1st motion was filed
Appeal from the judgment or final order and
assign as one of the errors the denial of the
motion for new trial
NEW TRIAL
It is the rehearing of a case already decided by the
court but before judgment rendered thereon
becomes final and executory ,whereby errors of law
or irregularities are expunge from the record, or new
evidence is introduced, or both steps are taken.
An order denying a motion for new trial is not
appealable. The aggrieved party has a fresh period
of 15 days within which to file his appeal. This
applies to Rule 40, 41, 42, 43 and 45 (Neypes vs.
CA, GR. No. 141524, Sept. 14, 2005).
Section 1. Grounds of and period for filing
motion for new trial or reconsideration.
— Within the period for taking an appeal, the
aggrieved party may move the trial court to
set aside the judgment or final order and
grant a new trial for one or more of the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
following causes materially affecting the
substantial rights of said party:
(a) Fraud, accident, mistake or excusable
negligence which ordinary prudence could
not have guarded against and by reason
of which such aggrieved party has
probably been impaired in his rights; or
(b) Newly discovered evidence, which he
could not, with reasonable diligence, have
discovered and produced at the trial, and
which if presented would probably alter
the result.
Within the same period, the aggrieved
party may also move for reconsideration
upon the grounds that the damages
awarded are excessive, that the evidence
is insufficient to justify the decision or
final order, or that the decision or final
order is contrary to law. (1a)
MOTION FOR NEW TRIAL
When to file: Within the period of taking an
appeal.
Habaluyas Doctrine: Prohibits the filing of a
motion for extension of time to file a motion
for new trial or reconsideration in all courts,
EXCEPT the SC (Habaluyas Inc. vs.
Japson, 142 SCRA 208).
Where to file: with the trial court which rendered
the questioned judgment
MOTION FOR RECONSIDERATION
When to file: Within the period of taking an
appeal.
Where to file: With the trial court which
rendered the judgment or order sought to be
reconsidered.
MOTION FOR NEW MOTION FOR
TRIAL RECONSIDERATION
Grounds are: Grounds are:
a) 1. FAME; and a) Damages are
b) 2. NEWLY excessive;
DISCOVERE b) Evidence
insufficient;
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________________________________________________________________________________________________
D EVIDENCE c) Decision or 2. It could not have been discovered and
order is produced at the trial even with the
contrary to law exercise of reasonable diligence; and
3. The evidence is of such weight that if
2nd motion for new trial No 2nd motion for admitted, would probably alter the result
may be allowed reconsideration of the action.
If new trial is granted, If the court finds that  Newly discovered evidence need not be
the original judgment excessive damages newly created evidence.
is vacated. The case have been awarded, or
stands trial de novo that the judgment is Newly discovered evidence may and does
and will be tried anew. contrary to evidence or commonly refer to evidence already in existence
law, it may amend such prior or during trial but which could not have
judgment or final order been secured and presented during trial despite
accordingly reasonable diligence on the part of the litigant
Available even on Available against the (Tumang vs. CA, 172 SCRA 328)
appeal but only on the judgments or final
ground of newly order of both the trial Section 2. Contents of motion for new
discovered evidence and appellate courts trial or reconsideration and notice
thereof. — The motion shall be made in
FRAUD as a ground for new trial must be Extrinsic writing stating the ground or grounds
(not intrinsic). therefor, a written notice of which shall be
served by the movant on the adverse
EXTRINSIC FRAUD party.
It connotes any fraudulent scheme executed by the
prevailing party outside of the trial against the losing A motion for new trial shall be proved in
party who because of such fraud is prevented from the manner provided for proof of motion.
presenting his side of the case. A motion for the cause mentioned in
paragraph (a) of the preceding section
Bar Exam Question 2011 shall be supported by affidavits of merits
(69) Fraud as a ground for new trial must be which may be rebutted by affidavits. A
extrinsic as distinguished from intrinsic. motion for the cause mentioned in
Which of the following constitutes extrinsic paragraph (b) shall be supported by
fraud? (A) Collusive suppression by affidavits of the witnesses by whom such
plaintiff‟s counsel of a material evidence evidence is expected to be given, or by
vital to his cause of action. (B) Use of
duly authenticated documents which are
perjured testimony at the trial. (C) The
proposed to be introduced in evidence.
defendant’s fraudulent representation that
caused damage to the plaintiff.
(D) Use of falsified documents during the trial. A motion for reconsideration shall point
out a specifically the findings or
conclusions of the judgment or final order
INTRINSIC FRAUD which are not supported by the evidence
It refers to acts of a party during the trial which does or which are contrary to law making
not affect the presentation of the case. express reference to the testimonial or
documentary evidence or to the provisions
ACCIDENT is an event that takes place without of law alleged to be contrary to such
one’s foresight or expectation. findings or conclusions.

MISTAKE generally refers to mistakes of fact or law

A pro forma motion for new trial or
where, in good faith, was misled in a case (i.e. a
reconsideration shall not toll the
party relying upon a compromise, failed to answer
reglementary period of appeal. (2a)
and was declared in default).

EXCUSABLE NEGLIGENCE depends upon the A motion for new trial, based on FAME must
circumstances of each case. include an affidavit of merit, which states:
1. Nature or character of FAME;
REQUISITES FOR NEWLY DISCOVERED 2. The facts constituting the movant’s good
EVIDENCE: and substantial defense or valid cause
1. It must have been discovered after the trial; of action;

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________________________________________________________________________________________________
3. The evidence which he intends to present if
his motion is granted.
Motion for new trial on ground of FAME, to be
supported by two (kinds of) affidavits; first, the one
setting forth the circumstances alleged to constitute
such FAME; and second, affidavit showing that the
movant has meritorious cause of action or defense
(Phil. Commercial and Industrial Bank vs. Ortiz, 150
SCRA 380).
Bar Exam Question 2011
(77) A motion for reconsideration of a decision
is pro forma when (A) it does not specify the
defects in the judgment.
(B) it is a second motion for reconsideration
with an alternative prayer for new trial.
(C) it reiterates the issues already passed upon
but invites a second look at the evidence and
the arguments. (D) its arguments in support of
the alleged errors are grossly erroneous.
PRO-FORMA MOTION
It is one where the movant fails to make reference to
testimonial and documentary evidence on record or
the provisions of law alleged to be contrary to the
trial court’s conclusion as well as reasons thereof, or
if there is no affidavit of merit.
INDICATIONS OF PRO-FORMA MOTION:
1. It is based on the same ground as that raised in
a denied motion under Rule 37;
2. It contains the same arguments in the
opposition to a granted motion to dismiss;
3. The new ground alleged in the second motion
for new trial already existed, was available and
could have been alleged in the first motion for
new trial which was denied;
4. It is based on the ground of insufficiency of
evidence or that the judgment is contrary to law
but does not specify the supposed defects in the
judgment;
5. It is based on FAME but does not specify the
facts constituting these grounds or is not
accompanied by affidavit of merit; and
6. Non-compliance of Rule 15
Section 3. Action upon motion for new
trial or reconsideration. — The trial court
may set aside the judgment or final order and
grant a new trial, upon such terms as may be
just, or may deny the motion. If the court
finds that excessive damages have been
awarded or that the judgment or final order is
contrary to the evidence or law, it may
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
amend such judgment or final order
accordingly. (3a)
Section 4. Resolution of motion. — A
motion for new trial or reconsideration
shall be resolved within thirty (30) days
from the time it is submitted for
resolution. (n)
Section 5. Second motion for new trial.
— A motion for new trial shall include all
grounds then available and those not so
included shall be deemed waived. A
second motion for new trial, based on a
ground not existing nor available when
the first motion was made, may be filed
within the time herein provided excluding
the time during which the first motion had
been pending.
No party shall be allowed a second motion
for reconsideration of a judgment or final
order (4a, 4, IRG)
NOTE: The prohibition applies only to MR for
final order or judgment. it is NOT directed
against an interlocutory order
Section 6. Effect of granting of motion
for new trial. — If a new trial is granted
in accordance with the provisions of this
Rules the original judgment or final order
shall be vacated, and the action shall
stand for trial de novo; but the recorded
evidence taken upon the former trial,
insofar as the same is material and
competent to establish the issues, shall be
used at the new trial without retaking the
same. (5a)
Section 7. Partial new trial or
reconsideration. — If the grounds for a
motion under this Rule appear to the court
to affect the issues as to only a part, or
less than an of the matter in controversy,
or only one, or less than all, of the parties
to it, the court may order a new trial or
grant reconsideration as to such issues if
severable without interfering with the
judgment or final order upon the rest.
(6a)
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Section 8. Effect of order for partial new Section 1. Petition for relief from
trial. — When less than all of the issues are judgment, order, or other
ordered retried, the court may either enter a proceedings. — When a judgment or
judgment or final order as to the rest, or stay final order is entered, or any other
the enforcement of such judgment or final proceeding is thereafter taken against a
order until after the new trial. (7a) party in any court through fraud,
accident, mistake, or excusable
Section 9. Remedy against order denying negligence, he may file a petition in such
a motion for new trial or court and in the same case praying that
reconsideration. — An order denying a the judgment, order or proceeding be set
motion for new trial or reconsideration is not aside. (2a)
appealed, the remedy being an appeal from
the judgment or final order. (n) Note: “any court” means trial courts, not the CA
or the SC.
Note that certiorari may be availed-of when there is
grave abuse of discretion. NOTE: Where petition for relief is denied or
granted, petition for certiorari is the proper
remedy.
MOTION FOR MOTION FOR RE-OPENING
NEW TRIAL OF THE TRIAL
Note: Appellate court cannot reverse the
Not mentioned in the Rules judgment subject of the petition for relief which is
but is nevertheless a denied, because the judgment from which relief
recognized procedural is sought is already final and executory. The
Specifically recourse deriving validity and appellate will just reverse the denial or
mentioned in the acceptance from long dismissal, and SET ASIDE the judgment in the
Rules established usage. This is main case and REMAND the case to the lower
however, mentioned in Rules court for new trial.
of Criminal Procedure (Rule
119, sec.24)
May be properly presented Section 2. Petition for relief from
Proper only after only after either or both denial of appeal. — When a judgment or
promulgation of parties have formally offered final order is rendered by any court in a
judgment and closed their evidence case, and a party thereto, by fraud,
before judgment accident, mistake, or excusable
Controlled by no other rule negligence, has been prevented from
Based on specific than the paramount interest of taking an appeal, he may file a petition in
grounds set forth justice, resting entirely on the such court and in the same case praying
under Rule 37 sound discretion or the court, that the appeal be given due course. (1a)
and Rule 121 in the exercise of which will not
Criminal cases be reviewed on appeal
UNLESS clear abuse thereof RULE 37 RULE 38
is shown Available before Available after the
judgment become final judgment has become
Rule 119, Section 24. Reopening. — At any time and executory final and executory
before finality of the judgment of conviction, the judge
Applies to judgments,
may, motu proprio or upon motion, with hearing in either
case, reopen the proceedings to avoid a miscarriage of Applies to judgments final orders, and other
justice. The proceedings shall be terminated within thirty or final orders only proceedings: Land
(30) days from the order granting it. Registration; Special
Proceedings; Order of
Execution
Grounds: FAME and
NEWLY Ground: FAME
RULE 38 DISCOVERED
EVIDENCE
Relief from Judgments, Orders, or Other Availed within 60 days
Proceedings Availed within the time from knowledge of
to appeal judgment and within 6
NOTE: A mere continuation of the main action. Not months from entry of
an independent action. judgment

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Denial is not Denial is not
appealable. The appealable. The
remedy is to appeal remedy is appropriate
from the judgment special civil action
under rule 65
Legal remedy Equitable remedy
Motion need not be Petition must be
verified verified
The two periods fixed by Rule 38 for filing of the
petition are never interrupted and not extendible.
NOTE: a party who has filed a timely motion for new
trial/or reconsideration cannot file a petition for relief
after his motion has been denied. These remedies
are exclusive of each other. It is only in appropriate
cases where a party aggrieved by the judgment has
not been able to file a motion for new trial/or
reconsideration that a petition for relief can be filed
(Francisco vs. Puno, 108 SCRA 427).
Section 3. Time for filing petition;
contents and verification. — A petition
provided for in either of the preceding
sections of this Rule must be verified, filed
within sixty (60) days after the petitioner
learns of the judgment, final order, or other
proceeding to be set aside, and not more
than six (6) months after such judgment or
final order was entered, or such proceeding
was taken, and must be accompanied with
affidavits showing the fraud, accident,
mistake, or excusable negligence relied upon,
and the facts constituting the petitioner's
good and substantial cause of action or
defense, as the case may be. (3)
Q. When is service of a copy of the judgment, final
order or other proceeding deemed complete for the
purpose of determining the 60-day period?
Ans. If the addressee fails to claim his mail from the
Post Office within five (5) days from the date of the
first notice, service becomes effective upon the
expiration of five days therefrom (Sec. 10, Rule 13).
The 60-day period for filing a petition for relief must
be reckoned from such date as this was the day
when the actual receipt by petitioner may be
presumed. Failure to claim registered mail of which
notice has been duly given by the Postmaster, not
an excusable negligence. (Quelnan vs VHF Phil., L-
138500, Sept. 16, 2005, 470 SCRA 73, 3rd Div.).
NOTE: Even if filed during the pendency of the
period to appeal, the petition for relief from judgment
may be treated as a Motion for New Trial. The
grounds are the same (FAME).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Petition for Relief & Action for Annulment (2002)
May an order denying the probate of a will still be
overturned after the period to appeal therefrom has
lapsed? Why? (3%)
SUGGESTED ANSWER:
Yes, an order denying the probate of a will may be
overturned after the period to appeal therefrom has
lapsed. A PETITION FOR RELIEF may be filed
on the grounds of fraud, accident, mistake or
excusable negligence within a period of sixty (60)
days after the petitioner learns of the judgment or
final order and not more than six (6) months after
such judgment or final order was entered [Rule 38,
secs. 1 & 3; Soriano v. Asi, 100 Phil. 785 (1957)].
An ACTION FOR ANNULMENT may also be
filed
on the ground of extrinsic fraud within four (4) years
from its discovery, and if based on lack of
jurisdiction,
before it is barred by laches or estoppel. (Rule 47, secs. 2
& 3)
FORM AND CONTENTS OF THE PETITION:
1. Petition must be verified;
2. Petition is accompanied by affidavit
showing FAME relied upon;
3. Must also show the facts constituting the
petitioner’s good and substantial cause
of action or defense, as the case may
be.
An affidavit of merit serves as the jurisdictional
basis of the court to entertain a petition for.
However, it is not a fatal defect to warrant denial
of the petition so long as the facts required to be
set out also appear in the verified petition.
Instances when affidavit of merits is not
necessary:
1. Where no jurisdiction over the
defendant;
2. Where no jurisdiction over the subject
matter;
3. Where judgment was taken by default;
4. Other similar cases.
Section 4. Order to file an answer. — If
the petition is sufficient in form and
substance to justify relief, the court in
which it is filed, shall issue an order
requiring the adverse parties to answer
the same within fifteen (15) days from the
receipt thereof. The order shall be served
in such manner as the court may direct,
together with copies of the petition and
the accompanying affidavits. (4a)
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Section 5. Preliminary injunction pending
proceedings. — The court in which the
petition is filed may grant such preliminary
injunction as may be necessary for the
preservation of the rights of the parties, upon
the filing by the petitioner of a bond in favor
of the adverse party, conditioned that if the
petition is dismissed or the petitioner fails on
the trial of the case upon its merits, he will
pay the adverse party all damages and costs
that may be awarded to him by reason of the
issuance of such injunction or the other
proceedings following the petition, but such
injunction shall not operate to discharge or
extinguish any lien which the adverse party
may have acquired upon, the property, of the
petitioner. (5a)
Section 6. Proceedings after answer is
filed. — After the filing of the answer or the
expiration of the period therefor, the court
shall hear the petition and if after such
hearing, it finds that the allegations thereof
are not true, the petition shall be dismissed;
but if it finds said allegations to be true, it
shall set aside the judgment or final order or
other proceeding complained of upon such
terms as may be just. Thereafter the case
shall stand as if such judgment, final order or
other proceeding had never been rendered,
issued or taken. The court shall then proceed
to hear and determine the case as if a timely
motion for a new trial or reconsideration had
been granted by it. (6a)
Note that there are two hearings in this section:
a. Hearing to determine whether the judgment
should be set aside;
b. If petition is meritorious, hearing on the
merits of the case.
Section 7. Procedure where the denial of
an appeal is set aside. — Where the denial
of an appeal is set aside, the lower court shall
be required to give due course to the appeal
and to elevate the record of the appealed
case as if a timely and proper appeal had
been made. (7a)
NOTE: Rule 37 and 38 not applicable in Summary
Procedure.
Rule 38 not applicable in the Supreme Court (not a
trier of facts)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
RULE 39
Execution, Satisfaction and Effect of
Judgments
EXECUTION is the remedy provided by law for
the enforcement of a final judgment.
AGAINST WHOM ISSUED: Execution can only
issue against a party and not against one who
has not had his day in court.
WRIT OR EXECUTION is the judicial writ issued
to an officer authorizing him to execute the
judgment of the court.
Court cannot motu proprio issue writ of
execution. There must be a motion
(Review Lecture).
ESSENTIAL REQUISITE OF A WRIT OF
EXECUTION:
A writ of execution to be valid must conform
strictly to the decision or judgment which gives it
life.
It cannot VARY the terms of the judgment it
seeks to enforce.
NOTE: Where the judgment of the SC which
did not provide for the payment of interest is
already final, no interest may be awarded by
the RTC for purposes of execution (Cariaga
vs. Laguna Tayabas Bus Co., 114 Phil.
1219).
 What the prevailing party should
have done is to file a motion for
modification of judgment with the
SC.
BUT, appellate court may award interest and
attorney’s fees, although none was awarded
by lower (trial) court and even if no appeal is
taken by the prevailing party (Enecilla vs.
Magsaysay, 17 SCRA 125; Cabral vs. CA,
178 CRA 90).
BUT where the prevailing party did not appeal;
appellate court cannot increase the amount
awarded by the trial court even if increased
amount is supported by evidence.
The rule is different in a criminal case. Even if
the offended party did not appeal, appellate
court can increase award in civil indemnity if
supported by evidence.
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FINAL JUDGMENT OR ORDER
It is the one which disposes of the whole subject
matter or terminates the particular proceedings or
action, leaving nothing to be done by the court but to
enforce by execution what has been determined.
TEST TO DETERMINE WHETHER A JUDGMENT
OR ORDER IS FINAL OR INTERLOCUTORY:
If the judgment or order leaves nothing more for the
court to do with respect to the merits of the case, it
is a final order. Otherwise, it is an interlocutory
order.
SPECIAL JUDGMENT is one that requires the
performance of an act other than:
1. The payment of money;
2. Sale of real or personal property.
Section 1. Execution upon judgments or
final orders. — Execution shall issue as a
matter of right, or motion, upon a judgment
or order that disposes of the action or
proceeding upon the expiration of the period
to appeal therefrom if no appeal has been
duly perfected. (1a)
If the appeal has been duly perfected and
finally resolved, the execution may forthwith
be applied for in the court of origin, on
motion of the judgment obligee, submitting
therewith certified true copies of the
judgment or judgments or final order or
orders sought to be enforced and of the entry
thereof, with notice to the adverse party.
The appellate court may, on motion in the
same case, when the interest of justice so
requires, direct the court of origin to issue
the writ of execution. (n)
GR: Court cannot refuse execution:
Exceptions:
1. Execution is unjust;
2. Execution is impossible;
3. Change of situation of the parties making
execution inequitable;
Doctrine of Supervening Events: when certain
circumstances transpired after the judgment
became final and executory which would render
execution of the judgment unjust (Cabrias vs.
Adil, 135 SCRA 354).
4. Judgment is novated by the parties;
5. Execution is injoined;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
6. Judgment has become dormant;
7. Where judgment turns out to be incomplete
or conditional.
NOTE: A petition under Rule 38 will not stop the
execution of judgment that had already become
final and executory. But a TRO may be obtained
in proper cases.
Bar Exam Question 2011
(31) The city prosecutor charged Ben with
serious physical injuries for stabbing
Terence. He was tried and convicted as
charged. A few days later, Terence died due
to severe infection of his stab wounds. Can
the prosecution file another information
against Ben for homicide? (A) Yes, since
Terence’s death shows irregularity in the
filing of the earlier charge against him. (B)
No, double jeopardy is present since Ben
had already been convicted of the first
offense.
(C) No, there is double jeopardy since
serious physical injuries is necessarily
included in the charge of homicide. (D) Yes,
since supervening event altered the kind
of crime the accused committed
Judgment; Interlocutory Order; Partial Summary
Judgments (2004)
After defendant has served and filed his answer to
plaintiffs complaint for damages 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. (5%)
SUGGESTED ANSWER:
No, plaintiff may not properly take an appeal from
said order because it is an interlocutory order, not a
final and appealable order (Sec. 4 of Rule 35). It does not
dispose of the action or proceeding (Sec. 1 of Rule 39).
PARTIAL SUMMARY JUDGMENTS are
interlocutory. There is still something to be done,
which is the trial for the adjudication of damages
(Province of Pangasinan v. Court of Appeals, 220 SCRA
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726 [1993J; Guevarra v. Court of Appeals, 209 Phil. 241
[1983]), but the defendant may properly challenge said
order thru a special civil action for certiorari. (Sec. 1 [c] may be filed in the appellate court.
and last par. of Rule 41)
QUASHAL OF WRIT OF EXECUTION proper
when:
1. Improvidently issued;
2. Defective in substance;
3. Issued against the wrong party;
4. Judgment was already satisfied;
5. Issued without authority;
6. There is a change of circumstances between
the parties making execution inequitable;
7. The controversy was never submitted to the
court.
Note: GR: The dispositive portion of the decision is
the part that becomes the subject of execution.
EXCEPTIONS:
1. Where there is ambiguity, the body of the
opinion may be referred to for purposes of
construing the judgment because the dispositive
part of a decision must find support from the
decision’s ratio decidendi (Mutual Security Ins.
Corp. vs. CA153 SCRA 678);
2. Where the extensive and explicit discussion and
settlement of the issue is in the body of the
decision (Wilson Ong Kian Chung vs. Chinese
national Cereals Oil and Foodstuffs Import and
Export Corp. GR NO. 131502, June 8, 2000.
When writ of execution varies the terms of the
dispositive portion, the defeated party CAN FILE:
1. Motion to quash writ of execution; if denied,
2. File petition for certiorari under Rule 65 with
prayer for TRO.
Section 2. Discretionary execution. —
(a) Execution of a judgment or final order
pending appeal. — On motion of the
prevailing party with notice to the adverse
party filed in the trial court while it has
jurisdiction over the case and is in possession
of either the original record or the record on
appeal, as the case may be, at the time of
the filing of such motion, said court may, in
its discretion, order execution of a judgment
or final order even before the expiration of
the period to appeal.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
After the trial court has lost jurisdiction
the motion for execution pending appeal
Discretionary execution may only issue
upon good reasons to be stated in a
special order after due hearing.
(b) Execution of several, separate or
partial judgments. — A several,
separate or partial judgment may
be executed under the same terms
and conditions as execution of a
judgment or final order pending
appeal. (2a)
EXECUTION AS A DISCRETIONARY
MATTER OF RIGHT EXECUTION
Period to appeal has May issue even before
already lapsed and no the lapse of period to
appeal perfected appeal, and even
during appeal
Ministerial duty of the Discretionary upon the
court, UNLESS there court, upon inquiry on
are supervening whether there is good
events reason for execution
EXECUTION PENDING APPEAL
GROUNDS:
1. Insolvency of the judgment debtor;
2. Wastage of asset by judgment debtor.
The court may, in its discretion, order an
execution before the expiration of the time within
which to appeal PROVIDED:
1. There is a motion for execution filed by
the winning party;
2. There is notice of such motion to the
adverse party;
3. There are good reasons stated in a
special order after hearing;
4. Bond (when required by the court).
Insolvency of a defendant not good reason for
discretionary execution if co-defendant is solvent
and their liability under the judgment is either
subsidiary (e. g., principal debtor and guarantor)
or solidary. (Flexo Maftg. Corp. vs Columbus
Foods, Inc., L-164857, April 11, 2005, 455
SCRA 272, First Div.).
Comment: It is implied from Flexo Maftg. Corp.
that where there is only one defendant, his
insolvency is a good reason to support an order
granting discretionary execution.
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Note: Judgment awarding moral and exemplary
damages cannot be a subject of execution pending
appeal. Award for moral and exemplary damages is
dependent on the outcome of the main case
(International School Inc. vs. CA, L-131109, June
29, 1999).
Judgment; Execution pending Appeal (2002)
The trial court rendered judgment ordering the
defendant to pay the plaintiff moral and exemplary
damages. The judgment was served on the plaintiff on
October 1, 2001 and on the defendant on October 5,
2001. On October 8, 2001, the defendant filed a notice
of appeal from the judgment, but the following day,
October 9, 2001, the plaintiff moved for the execution
of the judgment pending appeal. The trial court granted
the motion upon the posting by the plaintiff of a bond
to indemnify the defendant for damages it may suffer as
a result of the execution. The court gave as a special
reason for its order the imminent insolvency of the
defendant. Is the order of execution pending appeal
correct? Why? (5%)
SUGGESTED ANSWER:
No, because awards for moral and exemplary damages
cannot be the subject of execution pending appeal. The
execution of any award for moral and exemplary damages is
dependent on the outcome of the main case. Liabilities
for moral and exemplary damages, as well as the exact
amounts remain uncertain and indefinite pending resolution
by the Court of Appeals or Supreme Court. [RCPI v. Lantin,
134 SCRA 395 (1985); International School Inc. v. Court of
Appeals, 309 SCRA 474 (1999)].
ALTERNATIVE ANSWER:
Yes, because only moral and exemplary damages are
awarded in the judgment and they are not dependent
on other types of damages. Moreover, the motion for
execution was filed while the court had jurisdiction over
the case and was in possession of the oiginal record.
It is based on good reason which is the imminent
insolvency of the defendant. (Rule 39, sec. 2)
Section 3. Stay of discretionary
execution. — Discretionary execution issued
under the preceding section may be stayed
upon approval by the proper court of a
sufficient supersedeas bond filed by the party
against whom it is directed, conditioned upon
the performance of the judgment or order
allowed to be executed in case it shall be
finally sustained in whole or in part. The bond
thus given may be proceeded against on
motion with notice to the surety. (3a )
 Supersedeas bond guarantees the
performance of judgment in case of
affirmance on appeal, not other things like
damage to property pending appeal.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
GR: An order of execution is not appealable.
Otherwise there would be no end of litigation
(Rule 41, sec. 1[f].
Exceptions:
1. When terms of judgment is not very
clear;
2. When the order of execution varies the
tenor of the judgment.
Judgment; Execution; Stay (2009)
No.XII. Mike was renting an apartment unit
in the building owned by Jonathan. When
Mike failed to pay six months’ rent,
Jonathan filed an ejectment suit. The
Municipal Trial Court (MTC) rendered
judgement in favor of Jonathan, who then
filed a motion for the issuance of a writ of
execution. The MTC issued the writ. (a) How
can mike stay the execution of the MTC
judgment? (2%) SUGGESTED ANSWER:
Execution shall issue immediately upon
motion, unless Mike (a) perfects his
appeal to the RTC, (b) files a sufficient
supersedeas bond to pay the rents,
damages and costs accruing up to the
time of the judgment appealed from, and
(c) deposits monthly with the RTC
during the pendency of the appeal the
amount of rent due from time to time
(Rule 70, Sec. 19). (b) Mike appealed to the
Regional Trial Court, which affirmed the
MTC decision. Mike then filed a petition for
review with the Court of Appeals. The CA
dismissed the petition on the ground that
the sheriff had already executed the MTC
decision and had ejected Mike from the
premises, thus rendering the appeal moot
and academic. Is the CA correct? (3%)
Reasons. SUGGESTED ANSWER:
NO. The Court of Appeals is not correct.
The dismissal of the appeal is wrong,
because the execution of the RTC
judgment is only in respect of the
eviction of the defendant from the
leased premises. Such execution pending
appeal has no effect on the merits of the
ejectment suit which still has to be
resolved in the pending appeal. Rule 70,
Sec. 21 of the Rules provides that the
RTC judgment against the defendant
shall be immediately executor, “without
prejudice to a further appeal” that may
be taken therefrom (Uy vs. Santiago, 336
SCRA 680 [2000]).
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Section 4. Judgments not stayed by
appeal. — Judgments in actions for
injunction, receivership, accounting and
support, and such other judgments as are
now or may hereafter be declared to be
immediately executory, shall be enforceable
after their rendition and shall not, be stayed
by an appeal taken therefrom, unless
otherwise ordered by the trial court. On
appeal therefrom, the appellate court in its
discretion may make an order suspending,
modifying, restoring or granting the
injunction, receivership, accounting, or award
of support.
The stay of execution shall be upon such
terms as to bond or otherwise as may be
considered proper for the security or
protection of the rights of the adverse party.
(4a)
Judgments not stayed by appeal:
1. Injunction;
2. Receivership
3. Accounting;
4. Support;
5. Other judgment declared to be immediately
executory, unless otherwise decreed by the
court.
(Judgment in Forcible Entry and Unlawful
Detainer is immediately executory – Rule 70,
sec. 19).
Support is immediately executory because it is
needed and its delay may unduly prejudice the
one in need of it.
Section 5. Effect of reversal of executed
judgment. — Where the executed judgment
is reversed totally or partially, or annulled, on
appeal or otherwise, the trial court may, on
motion, issue such orders of restitution or
reparation of damages as equity and justice
may warrant under the circumstances. (5a)
Section 6. Execution by motion or by
independent action. — A final and
executory judgment or order may be
executed on motion within five (5) years
from the date of its entry. After the lapse of
such time, and before it is barred by the
statute of limitations, a judgment may be
enforced by action. The revived judgment
may also be enforced by motion within five
(5) years from the date of its entry and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
thereafter by action before it is barred by
the statute of limitations. (6a)
Judgment; Enforcement; 5yr Period
(2007) No.X. (b) A files a case against B.
While awaiting decision on the case, A goes
to the United States to work. Upon her
return to the Philippines, seven years later,
A discovers that a decision was rendered by
the court in here favor a few months after
she had left. Can A file a motion for
execution of the judgment? Reason briefly.
(5%) SUGGESTED ANSWER: On the
assumption that the judgment had been
final and executory for more than five (5)
years as of A‟s return to the Philippines
seven (7) years later, a motion for
execution of the judgment is no longer
availing because the execution of
judgment by mere motion is allowed by
the Rules only within five (5) years from
entry of judgment; thereafter, and within
ten (10) years from entry of judgment,
an action to enforce the judgment is
required.
NOTE: Judgment for support does not become
dormant, thus it can always be executed by
motion.
The 5-year period may be extended by the
conduct or acts imputable to the judgment
debtor.
If delay in execution is occasioned by
losing party, motion for alias writ of
execution filed by prevailing party,
constitutes petition for revival of
judgment (David vs. Ejercito, 71 SCRA
484).
Action to Revive Judgment is an action
incapable of pecuniary estimation. Thus,
jurisdiction is with the RTC (Review Lecture).
A revived judgment is a new judgment thus
another 5/10 rear period to execute and revive is
given the party. That 2nd revived judgment can
again be enforced under sec. 6.
NOTE: However, the revive judgment cannot
modify the original judgment (Francisco vs.
Bautista, 192 SCRA 388).
Judgment; Enforcement; 5-year period (1997)
A, a resident of Dagupan City, secured a favorable
judgment in an ejectment case against X, a resident
of
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Quezon City, from the MTCof Manila. The judgment,
entered on 15 June 1991, had not as yet been executed.
a) In July 1996, A decided to enforce the judgment
of the MTCof Manila. What is the procedure to be
followed by A in enforcing the judgment? b) With what
court should A institute the proceedings?
SUGGESTED ANSWER:
(a) A can enforce the judgment by another action
reviving the Judgment because it can no longer be
enforced by motion as the five-year period within
which a judgment may be enforced by motion has
already expired. (Sec. 6 of former and new Rule 39).
(b) A may institute the proceedings in the RTC in
accordance with the rules of venue because the
enforcement of the Judgment is a personal action
incapable of pecuniary estimation.
ALTERNATIVE ANSWER:
(b) A may institute the proceeding in a MTCwhich has
jurisdiction over the area where the real property
involved is situated. (Sec. 1 of Rule 4).
Section 7. Execution in case of death of
party. — In case of the death of a party,
execution may issue or be enforced in the
following manner:
(a) In case of the death of the judgment
obligee, upon the application of his executor
or administrator, or successor in interest;
(b) In case of the death of the judgment
obligor, against his executor or administrator
or successor in interest, if the judgment be
for the recovery of real or personal property,
or the enforcement of a lien thereon;
(c) In case of the death of the judgment
obligor, after execution is actually levied
upon any of his property, the same may be
sold for the satisfaction of the judgment
obligation, and the officer making the sale
shall account to the corresponding executor
or administrator for any surplus in his hands.
(7a)
A. In case of death of judgment obligee
Execution will issue in any case.
B [1]. In case of death of judgment obligor
before levy
Execution will issue if the action is for
recovery of real or personal property or any
interest thereon.
Execution will NOT issue if the action is for
the recovery of sum of money. In this
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
situation, judgment oblige should file a
claim against the estate of the judgment
obligor under Rule 86.
Judgment; Execution; Judgment
Obligor‟s Death (2009)
No.VII. Cresencio sued Dioscoro for
colletion of a sum of money. During the
trial, but after the presentation of plaintiff’s
evidence, Dioscoro died. Atty. Cruz,
Dioscoro’s counsel, then filed a motion to
dismiss the action on the ground of his
client’s death. The court denied the motion
to dismiss and, instead, directed counsel to
furnish the court with the names and
addresses of Dioscoro’s heirs and ordered
that the designated administrator of
Dioscoro’s estate be substituted as
representative party. After trial, the court
rendered judgment in favor of Cresencio.
When the decision had become final and
executory, Cresencio moved for the
issuance of a writ of execution against
Dioscoro’s estate to enforce his judgment
claim. The court issued the writ of
execution. Was the court’s issuance of the
writ of execution proper? Explain.
SUGGESTED ANSWER: No, the issuance
of a writ of execution by the court is not
proper and is in excess of jurisdiction,
since the judgment obligor is already
dead when the writ was issued. The
judgment for money may only be
enforced against the estate of the
deceased defendant in the probate
proceedings, by way of a claim filed with
the probate court. Cresencio should
enforce that judgment in his favor in the
settlement proceedings of the estate of
Dioscoro as a money claim in accordance
with the Rule 86 or Rule 88 as the case
may be.
Bar Exam Question 2012
36. If the judgment debtor dies after entry
of judgment, execution of a money
judgment may be done by:
a. presenting the judgment as a claim for
payment against the estate in a special
proceeding.
b. filing a claim for the money judgment
with the special administrator of the estate
of the debtor.
c. filing a claim for the money judgment
with the debtor's successor in interest.
d. move for substitution of the heirs of the
debtor and secure a writ of execution.
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SUGGESTED ANSWER:
(a), If death occurs after judgment has
already been entered, the final judgment
shall be enforced as money claim against
the estate of the deceased defendant
without the necessity of proving the same.
(Paredes vs. Moya, 61 SCRA 526, 1970).
Actions; Survives Death of the Defendant (2000)
PJ engaged the services of Atty. ST to represent him in a
civil case filed by OP against him which was docketed as
Civil Case No. 123. A retainership agreement was
executed between PJ and Atty. ST whereby PJ promised
to pay Atty. ST a retainer sum of P24,000.00 a year and
to transfer the ownership of a parcel of land to Atty. ST
after presentation of PJ’s evidence. PJ did not comply
with his undertaking. Atty. ST filed a case against PJ
which was docketed as Civil Case No. 456. During the
trial of Civil Case No. 456, PJ died. 1 Is the death of PJ a
valid ground to dismiss the money claim of Atty. ST in
Civil Case No. 456? Explain. (2%)
2 Will your answer be the same with respect to the real
property being claimed by Atty. ST in Civil Case No.
456? Explain (2%)
SUGGESTED ANSWER:
1 No. Under Sec. 20, Rule 3, 1997 Rules of Civil
Procedure, when the action is for recovery of money
arising from contract, express or implied, and the
defendant dies before entry of final judgment in the
court in which the action is pending at the time of such
death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A
favorable judgment obtained by the plaintiff shall be
enforced in the manner especially provided in the Rules
for prosecuting claims against the estate of a deceased
person.
2 Yes, my answer is the same. An action to recover real
property in any event survives the death of the
defendant. (Sec. 1, Rule 87, Rules of Court). However, a
favorable judgment may be enforced in accordance with
Sec. 7(b) Rule 39 (1997 Rules of Civil Procedure) against
the executor or administrator or successor in interest of
the deceased.
B [2]. In case of death of judgment obligor after
levy.
Execution will issue in any case.
REASON: After a valid levy, the property is already
separated from the estate of the deceased and is
deemed in custodial legis.
Section 8. Issuance, form and contents of
a writ of execution. — The writ of execution
shall: (1) issue in the name of the Republic of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the Philippines from the court which
granted the motion; (2) state the name of
the court, the case number and title, the
dispositive part of the subject judgment or
order; and (3) require the sheriff or other
proper officer to whom it is directed to
enforce the writ according to its terms, in
the manner hereinafter provided:
(a) If the execution be against the
property of the judgment obligor, to
satisfy the judgment, with interest, out of
the real or personal property of such
judgment obligor;
(b) If it be against real or personal
property in the hands of personal
representatives, heirs, devisees, legatees,
tenants, or trustees of the judgment
obligor, to satisfy the judgment, with
interest, out of such property;
(c) If it be for the sale of real or personal
property to sell such property describing
it, and apply the proceeds in conformity
with the judgment, the material parts of
which shall be recited in the writ of
execution;
(d) If it be for the delivery of the
possession of real or personal property, to
deliver the possession of the same,
describing it, to the party entitled thereto,
and to satisfy any costs, damages, rents,
or profits covered by the judgment out of
the personal property of the person
against whom it was rendered, and if
sufficient personal property cannot be
found, then out of the real property; and
(e) In all cases, the writ of execution shall
specifically state the amount of the
interest, costs, damages, rents, or profits
due as of the date of the issuance of the
writ, aside from the principal obligation
under the judgment. For this purpose, the
motion for execution shall specify the
amounts of the foregoing reliefs sought by
the movant.(8a)
Section 9. Execution of judgments for
money, how enforced. —
(a) Immediate payment on demand. —
The officer shall enforce an execution of a
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judgment for money by demanding from the
judgment obligor the immediate payment of
the full amount stated in the writ of execution
and all lawful fees. The judgment obligor shall
pay in cash, certified bank check payable to
the judgment obligee, or any other form of
payment acceptable to the latter, the amount
of the judgment debt under proper receipt
directly to the judgment obligee or his
authorized representative if present at the
time of payment. The lawful fees shall be
handed under proper receipt to the executing
sheriff who shall turn over the said amount
within the same day to the clerk of court of
the court that issued the writ.
If the judgment obligee or his authorized
representative is not present to receive
payment, the judgment obligor shall deliver
the aforesaid payment to the executing
sheriff. The latter shall turn over all the
amounts coming into his possession within
the same day to the clerk of court of the
court that issued the writ, or if the same is
not practicable, deposit said amounts to a
fiduciary account in the nearest government
depository bank of the Regional Trial Court of
the locality.
The clerk of said court shall thereafter
arrange for the remittance of the deposit to
the account of the court that issued the writ
whose clerk of court shall then deliver said
payment to the judgment obligee in
satisfaction of the judgment. The excess, if
any, shall be delivered to the judgment
obligor while the lawful fees shall be retained
by the clerk of court for disposition as
provided by law. In no case shall the
executing sheriff demand that any payment
by check be made payable to him.
(b) Satisfaction by levy. — If the judgment
obligor cannot pay all or part of the obligation
in cash, certified bank check or other mode of
payment acceptable to the judgment obligee,
the officer shall levy upon the properties of
the judgment obligor of every kind and
nature whatsoever which may be disposed, of
for value and not otherwise exempt from
execution giving the latter the option to
immediately choose which property or part
thereof may be levied upon, sufficient to
satisfy the judgment. If the judgment obligor
does not exercise the option, the officer shall
first levy on the personal properties, if any,
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
and then on the real properties if the
personal properties are insufficient to
answer for the judgment.
The sheriff shall sell only a sufficient
portion of the personal or real property of
the judgment obligor which has been
levied upon.
When there is more property of the
judgment obligor than is sufficient to
satisfy the judgment and lawful fees, he
must sell only so much of the personal or
real property as is sufficient to satisfy the
judgment and lawful fees.
Real property, stocks, shares, debts,
credits, and other personal property, or
any interest in either real or personal
property, may be levied upon in like
manner and with like effect as under a
writ of attachment.
(c) Garnishment of debts and credits.
— The officer may levy on debts due the
judgment obligor and other credits,
including bank deposits, financial
interests, royalties, commissions and
other personal property not capable of
manual delivery in the possession or
control of third parties. Levy shall be
made by serving notice upon the person
owing such debts or having in his
possession or control such credits to which
the judgment obligor is entitled. The
garnishment shall cover only such amount
as will satisfy the judgment and all lawful
fees.
The garnishee shall make a written report
to the court within five (5) days from
service of the notice of garnishment
stating whether or not the judgment
obligor has sufficient funds or credits to
satisfy the amount of the judgment. If
not, the report shall state how much funds
or credits the garnishee holds for the
judgment obligor. The garnished amount
in cash, or certified bank check issued in
the name of the judgment obligee, shall
be delivered directly to the judgment
obligee within ten (10) working days from
service of notice on said garnishee
requiring such delivery, except the lawful
fees which shall be paid directly to the
court.
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In the event there are two or more
garnishees holding deposits or credits
sufficient to satisfy the judgment, the
judgment obligor, if available, shall have the
right to indicate the garnishee or garnishees
who shall be required to deliver the amount
due, otherwise, the choice shall be made by
the judgment obligee.
The executing sheriff shall observe the same
procedure under paragraph (a) with respect
to delivery of payment to the judgment
obligee. (8a, 15a)
Money judgments enforced by:
1. Immediate payment on demand;
2. Satisfaction by levy;
3. Garnishment of debts and credits.
ATTACHMENT GARNISHMENT
It refers to money,
stocks, credits and
It refers to corporeal other incorporeal
property in the property which belong
possession of the to the judgment debtor
judgment debtor but is in the possession
or control of a 3rd
person
LEVY is an act by which an officer sets apart or
appropriates a part or whole property of the
judgment debtor for purposes of execution sale.
The sheriff can validly levy any properties of the
judgment obligor, not exempt from execution, which
may be disposed of for value. The judgment obligor
has the option to choose which property to levy
upon.
If he does not exercise the option, the officer shall
first levy on the personal properties, if any, and then
on the real properties if personal properties are
insufficient to answer for the judgment.
GARNISHMENT is an act of appropriation by the
court when the property of the debtor is in the hands
of a third person.
A specie of attachment for reaching any property or
credits pertaining or payable to a judgment debtor.
The sheriff may levy on debts due the judgment
obligor and other credits, including bank deposits,
financial interests, royalties, commissions and other
personal property not capable of manual delivery in
the possession or control of a third person.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
The garnishee or the third person who is in
possession of the property of the judgment
debtor is deemed a forced intervenor.
Writ of Capias Ad Satisfaciendum
By means of this writ, a debtor could be seized
and imprisoned at the instance of the creditor
until he makes the satisfaction awarded. A
practice at COMMON LAW during the early part
of 19th century in various states of the American
Union (Luzano vs. Martinez, 146 SCRA 324).
NOTE: This is not practiced in the Philippines
because it is prohibited by the constitution on
“non-imprisonment for debt”.
GR: Writ of execution cannot be enforced
against person not a party to the case;
exception, e.g., buyer in bad faith treated in the
same manner as transferee pendente lite. The
writ of execution may be enforced against the
purchaser of the party, who knew of the
existence of the pending case involving the
property, even though the notice of lis pendens
has been erroneously cancelled prematurely. He
is a buyer in bad faith (Lising vs. Plan, 133
SCRA 194).
Section 10. Execution of judgments for
specific act. —
(a) Conveyance, delivery of deeds, or
other specific acts; vesting title. — If a
judgment directs a party to execute a
conveyance of land or personal property,
or to deliver deeds or other documents, or
to perform, any other specific act in
connection therewith, and the party fails
to comply within the time specified, the
court may direct the act to be done at the
cost of the disobedient party by some
other person appointed by the court and
the act when so done shall have like effect
as if done by the party. If real or personal
property is situated within the Philippines,
the court in lieu of directing a conveyance
thereof may by an order divest the title of
any party and vest it in others, which shall
have the force and effect of a conveyance
executed in due form of law. (10a)
(b) Sale of real or personal property.
— If the judgment be for the sale of real
or personal property, to sell such
property, describing it, and apply the
proceeds in conformity with the judgment.
(8[c]a)
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(c) Delivery or restitution of real
property. — The officer shall demand of the
person against whom the judgment for the
delivery or restitution of real property is
rendered and all persons claiming rights
under him to peaceably vacate the property
within three (3) working days, and restore
possession thereof to the judgment obligee,
otherwise, the officer shall oust all such
persons therefrom with the assistance, if
necessary, of appropriate peace officers, and
employing such means as may be reasonably
necessary to retake possession, and place the
judgment obligee in possession of such
property. Any costs, damages, rents or
profits awarded by the judgment shall be
satisfied in the same manner as a judgment
for money. (13a)
(d) Removal of improvements on
property subject of execution. — When
the property subject of the execution
contains improvements constructed or
planted by the judgment obligor or his agent,
the officer shall not destroy, demolish or
remove said improvements except upon
special order of the court, issued upon
motion of the judgment obligee after the
hearing and after the former has failed to
remove the same within a reasonable time
fixed by the court. (14a)
(e) Delivery of personal property. — In
judgment for the delivery of personal
property, the officer shall take possession of
the same and forthwith deliver it to the party
entitled thereto and satisfy any judgment for
money as therein provided. (8a)
Execution of judgments of specific act:
1. Conveyance, delivery of deeds, or other
specific acts vesting title;
2. Sale of personal or real property;
3. Delivery or restitution of real property;
4. Removal of improvements on property
subject of execution;
5. Delivery of personal property.
A. IF THE PARTY REFUSES TO VACATE
THE PROPERTY:
The remedy is NOT CONTEMPT. The
sheriff must oust the party. But if demolition
is involved, there must be a SPECIAL
ORDER.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
The party cannot be cited in contempt
because the order is directed to the
sheriff. But indirect contempt is
committed under Rule 71, sec. 3[b] –
(b) Disobedience of or resistance to a
lawful writ, process, order, or judgment of a
court, including the act of a person who, after
being dispossessed or ejected from any real
property by the judgment or process of any
court of competent jurisdiction, enters or
attempts or induces another to enter into or
upon such real property, for the purpose of
executing acts of ownership or possession,
or in any manner disturbs the possession
given to the person adjudged to be entitled
thereto
Bar Exam Question 2011
(48) How will the court sheriff enforce the
demolition of improvements? (A) He will give
a 5-day notice to the judgment obligor and,
if the latter does not comply, the sheriff will
have the improvements forcibly demolished.
(B) He will report to the court the judgment
obligor’s refusal to comply and have the
latter cited in contempt of court. (C) He will
demolish the improvements on special
order of the court, obtained at the
judgment obligee‟s motion. (D) He will
inform the court of the judgment obligor’s
noncompliance and proceed to demolish the
improvements.
B. IF PARTY REFUSES TO DELIVER:
The sheriff will take possession and
then deliver it to the winning party.
C. WHEN THE PARTY REFUSES TO
COMPLY:
The court can appoint some other
person at the expense of the
disobedient party and the act done shall
have the same effect as if the required
party performed it, the disobedient party
incurs no liability for contempt.
Section 11. Execution of special
judgments. — When a judgment requires
the performance of any act other than
those mentioned in the two preceding
sections, a certified copy of the judgment
shall be attached to the writ of execution
and shall be served by the officer upon
the party against whom the same is
rendered, or upon any other person
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required thereby, or by law, to obey the
same, and such party or person may be
punished for contempt if he disobeys such
judgment. (9a)
SPECIAL JUDGMENT
It is one which can only be complied with by the
judgment obligor because of his personal
qualifications or circumstances (E.g. A contract to
pose in a particular magazine if the personal
qualification is the main consideration of the
contract, or to sing on a particular concert).
Bar Exam Question 2012
94. An example of a special judgment is one
which orders:
a. the defendant to deliver and reconvey
personal property to the plaintiff.
b. defendant to execute a Deed of Sale in favor
of plaintiff.
c. defendant to paint a mural for the
plaintiff.
d. Defendant to vacate the leased premises.
SUGGESTED ANSWER:
(c), A special judgment is one which
requires the performance of any act other
than the payment of money, or the sale or
delivery of a real or personal property. A
disobedience to such judgment is an
indirect contempt, and the judgment is
executed by contempt proceeding. (Sura vs.
Martin, 26, SCRA 286; Barrete vs. Amila,
230 SCRA 219; Magallanes vs. Sarita, 18
SCRA 575; Moslem vs. Soriano, 124 SCRA
190; People vs. Pascual, 12326-CR,
February 14, 1974). A judgment ordering
the defendant to paint a mural for the
plaintiff is considered a special judgment.
Section 12. Effect of levy on execution as
to third person. — The levy on execution
shall create a lien in favor of the judgment
obligee over the right, title and interest of the
judgment obligor in such property at the time
of the levy, subject to liens and
encumbrances then existing. (16a)
Section 13. Property exempt from
execution. — Except as otherwise expressly
provided by law, the following property, and
no other, shall be exempt from execution:
(a) The judgment obligor's family home as
provided by law, or the homestead in which
he resides, and land necessarily used in
connection therewith;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(b) Ordinary tools and implements
personally used by him in his trade,
employment, or livelihood;
(c) Three horses, or three cows, or three
carabaos, or other beasts of burden, such
as the judgment obligor may select
necessarily used by him in his ordinary
occupation;
(d) His necessary clothing and articles for
ordinary personal use, excluding jewelry;
(e) Household furniture and utensils
necessary for housekeeping, and used for
that purpose by the judgment obligor and
his family, such as the judgment obligor
may select, of a value not exceeding one
hundred thousand pesos;
(f) Provisions for individual or family use
sufficient for four months;
(g) The professional libraries and
equipment of judges, lawyers, physicians,
pharmacists, dentists, engineers,
surveyors, clergymen, teachers, and other
professionals, not exceeding three
hundred thousand pesos in value;
(h) One fishing boat and accessories not
exceeding the total value of one hundred
thousand pesos owned by a fisherman and
by the lawful use of which he earns his
livelihood;
(i) So much of the salaries, wages, or
earnings of the judgment obligor for his
personal services within the four months
preceding the levy as are necessary for
the support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or
annuities accruing or in any manner
growing out of any life insurance;
(l) The right to receive legal support, or
money or property obtained as such
support, or any pension or gratuity from
the Government;
(m) Properties specially exempted by law.
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But no article or species of property
mentioned in this section shall be exempt
from execution issued upon a judgment
recovered for its price or upon a judgment of
foreclosure of a mortgage thereon. (12a)
NOTES: RA 4917 provides that retirement benefits
of employees in private firms shall be except from
attachment, levy, or execution or any tax
whatsoever. Except for:
1. Debt due to such private benefit plan;
2. Debt arising from criminal acts.
Section 14. Return of writ of execution. —
The writ of execution shall be returnable to
the court issuing it immediately after the
judgment has been satisfied in part or in full.
If the judgment cannot be satisfied in full
within thirty (30) days after his receipt of the
writ, the officer shall report to the court and
state the reason therefor. Such writ shall
continue in effect during the period within
which the judgment may be enforced by
motion. The officer shall make a report to the
court every thirty (30) days on the
proceedings taken thereon until the judgment
is satisfied in full, or its effectivity expires.
The returns or periodic reports shall set forth
the whole of the proceedings taken, and shall
be filed with the court and copies thereof
promptly furnished the parties. (11a)
Section 15. Notice of sale of property on
execution. — Before the sale of property on
execution, notice thereof must be given as
follows:
(a) In case of perishable property, by posting
written notice of the time and place of the
sale in three (3) public places, preferably in
conspicuous areas of the municipal or city
hall, post office and public market in the
municipality or city where the sale is to take
place, for such time as may be reasonable,
considering the character and condition of the
property;
(b) In case of other personal property, by
posting a similar notice in the three (3) public
places above-mentioned for not less than five
(5) days;
(c) In case of real property, by posting for
twenty (20) days in the three (3) public
places abovementioned a similar notice
particularly describing the property and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
stating where the property is to be sold,
and if the assessed value of the property
exceeds fifty thousand (P50,000.00)
pesos, by publishing a copy of the notice
once a week for two (2) consecutive
weeks in one newspaper selected by
raffle, whether in English, Filipino, or any
major regional language published, edited
and circulated or, in the absence thereof,
having general circulation in the province
or city;
(d) In all cases, written notice of the sale
shall be given to the judgment obligor, at
least three (3) days before the sale,
except as provided in paragraph (a)
hereof where notice shall be given the
same manner as personal service of
pleadings and other papers as provided by
section 6 of Rule 13.
The notice shall specify the place, date
and exact time of the sale which should
not be earlier than nine o'clock in the
morning and not later than two o'clock in
the afternoon. The place of the sale may
be agreed upon by the parties. In the
absence of such agreement, the sale of
the property or personal property not
capable of manual delivery shall be held in
the office of the clerk of court of the
Regional Trial Court or the Municipal Trial
Court which issued the writ of or which
was designated by the appellate court. In
the case of personal property capable of
manual delivery, the sale shall be held in
the place where the property is located.
(18a)
Section 16. Proceedings where
property claimed by third person. — If
the property levied on is claimed by any
person other than the judgment obligor or
his agent, and such person makes an
affidavit of his title thereto or right to the
possession thereof, stating the grounds of
such right or title, and serves the same
upon the officer making the levy and copy
thereof, stating the grounds of such right
or title, and a serves the same upon the
officer making the levy and a copy thereof
upon the judgment obligee, the officer
shall not be bound to keep the property,
unless such judgment obligee, on demand
of the officer, files a bond approved by the
court to indemnity the third-party
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claimant in a sum not less than the value of
the property levied on. In case of
disagreement as to such value, the same
shall be determined by the court issuing the
writ of execution. No claim for damages for
the taking or keeping of the property may be
enforced against the bond unless the action
therefor is filed within one hundred twenty
(120) days from the date of the filing of the
bond.
The officer shall not be liable for damages for
the taking or keeping of the property, to any
third-party claimant if such bond is filed.
Nothing herein contained shall prevent such
claimant or any third person from vindicating
his claim to the property in a separate action,
or prevent the judgment obligee from
claiming damages in the same or a separate
action against a third-party claimant who
filed a frivolous or plainly spurious claim.
When the writ of execution is issued in favor
of the Republic of the Philippines, or any
officer duly representing it, the filing of such
bond shall not be required, and in case the
sheriff or levying officer is sued for damages
as a result of the levy, he shall be
represented by the Solicitor General and if
held liable therefor, the actual damages
adjudged by the court shall be paid by the
National Treasurer out of such funds as may
be appropriated for the purpose. (17a)
REMEDIES OF A THIRD PARTY CLAIMANT:
1. Summary hearing before the court which
authorized the execution;
2. TERCERIA or a third party claim filed with
the sheriff;
3. Action for damages on the bond filed by the
judgment creditor; or
4. Independent reivindicatory action.
The remedies are cumulative and may be resorted
to by the third party claimant independently or
separately.
If the winning party files a bond, it is only then that
the sheriff can take the property in his possession. If
here is no bond, the sale cannot proceed.
Bar Exam Question 2011
(23) What should the court sheriff do if a third
party serves on him an affidavit of claim
covering the property he had levied? (A) Ask
the judgment obligee to file a court-
approved indemnity bond in favor of the
third-party claimant or the sheriff will
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
release the levied property. (B) Ask the
judgment obligee to file a court-approved
bond for the sheriff’s protection in case he
proceeds with the execution. (C)
Immediately lift the levy and release the
levied property. (D) Ask the third-party
claimant to support his claim with an
indemnity bond in favor of the judgment
obligee and release the levied property if
such bond is filed.
3rd PARTY TERCERIA
COMPLAINT
An affidavit claiming
Is a pleading ownership of a
property under the
possession of the
sheriff
Filed with the court Filed with the sheriff
Applies during the Available in the
pendency of the case execution stage
Section 17. Penalty for selling without
notice, or removing or defacing
notice. — An officer selling without the
notice prescribed by section 15 of this
Rule shall be liable to pay punitive
damages in the amount of five thousand
(P5,000.00) pesos to any person injured
thereby, in addition to his actual
damages, both to be recovered by motion
in the same action; and a person willfully
removing or defacing the notice posted, if
done before the sale, or before the
satisfaction of the judgment if it be
satisfied before the sale, shall be liable to
pay five thousand (P5,000.00) pesos to
any person injured by reason thereof, in
addition to his actual damages, to be
recovered by motion in the same action.
(19a)
Section 18. No sale if judgment and
costs paid. — At any time before the sale
of property on execution, the judgment
obligor may prevent the sale by paying
the amount required by the execution and
the costs that have been incurred therein.
(20a)
Section 19. How property sold on
execution; who may direct manner
and order of sale. — All sales of
property under execution must be made
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at public auction, to the highest bidder, to
start at the exact time fixed in the notice.
After sufficient property has been sold to
satisfy the execution, no more shall be sold
and any excess property or proceeds of the
sale shall be promptly delivered to the
judgment obligor or his authorized
representative, unless otherwise directed by
the judgment or order of the court. When the
sale is of real property, consisting of several
known lots, they must be sold separately; or,
when a portion of such real property is
claimed by a third person, he may require it
to be sold separately. When the sale is of
personal property capable of manual delivery,
it must be sold within view of those attending
the same and in such parcels as are likely to
bring the highest price. The judgment obligor,
if present at the sale, may direct the order in
which property, real or personal shall be sold,
when such property consists of several known
lots or parcels which can be sold to
advantage separately. Neither the officer
conducting the execution sale, nor his
deputies, can become a purchaser, nor be
interested directly or indirectly in any
purchase at such sale. (21a)
Section 20. Refusal of purchaser to pay. —
If a purchaser refuses to pay the amount bid
by him for property struck off to him at a sale
under execution, the officer may again sell
the property to the highest bidder and shall
not be responsible for any loss occasioned
thereby; but the court may order the refusing
purchaser to pay into the court the amount of
such loss, with costs, and may punish him for
contempt if he disobeys the order. The
amount of such payment shall be for the
benefit of the person entitled to the proceeds
of the execution, unless the execution has
been fully satisfied, in which event such
proceeds shall be for the benefit of the
judgment obligor. The officer may thereafter
reject any subsequent bid of such purchaser
who refuses to pay. (22a)
Section 21. Judgment obligee as
purchaser. — When the purchaser is the
judgment obligee, and no third-party claim
has been filed, he need not pay the amount
of the bid if it does not exceed the amount of
his judgment. If it does, he shall pay only the
excess. (23a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 22. Adjournment of sale. — By
written consent of the judgment obligor
and obligee, or their duly authorized
representatives, the officer may adjourn
the sale to any date and time agreed upon
by them. Without such agreement, he
may adjourn the sale from day to day if it
becomes necessary to do so for lack of
time to complete the sale on the day fixed
in the notice or the day to which it was
adjourned. (24a)
Section 23. Conveyance to purchaser
of personal property capable of
manual delivery. — When the purchaser
of any personal property, capable of
manual delivery, pays the purchase price,
the officer making the sale must deliver
the property to the purchaser and, if
desired, execute and deliver to him a
certificate of sale. The sale conveys to the
purchaser all the rights which the
judgment obligor had in such property as
of the date of the levy on execution or
preliminary attachment. (25a)
Note: note here that the judgment debtor
transmits only rights over the property he
actually has at the time of the levy. Hence, if he
no longer owns the property at the time of the
levy, he transmits nothing to the buyer in the
execution sale.
Section 24. Conveyance to purchaser
of personal property not capable of
manual delivery. — When the purchaser
of any personal property, not capable of
manual delivery, pays the purchase price,
the officer making the sale must execute
and deliver to the purchaser a certificate
of sale. Such certificate conveys to the
purchaser all the rights which the
judgment obligor had in such property as
of the date of the levy on execution or
preliminary attachment. (26a)
Section 25. Conveyance of real
property; certificate thereof given to
purchaser and filed with registry of
deeds. — Upon a sale of real property,
the officer must give to the purchaser a
certificate of sale containing:
(a) A particular description of the real
property sold;
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(b) The price paid for each distinct lot or
parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption
expires one (1) year from the date of the
registration of the certificate of sale.
Such certificate must be registered in the
registry of deeds of the place where the
property is situated. (27 a)
Section 26. Certificate of sale where
property claimed by third person. —
When a property sold by virtue of a writ of
execution has been claimed by a third
person, the certificate of sale to be issued by
the sheriff pursuant to sections 23, 24 and 25
of this Rule shall make express mention of
the existence of such third-party claim. (28a)
Section 27. Who may redeem real
property so sold. — Real property sold as
provided in the last preceding section, or any
part thereof sold separately, may be
redeemed in the manner hereinafter
provided, by the following persons:
(a) The judgment obligor; or his successor in
interest in the whole or any part of the
property;
(b) A creditor having a lien by virtue of an
attachment, judgment or mortgage on the
property sold, or on some part thereof,
subsequent to the lien under which the
property was sold. Such redeeming creditor is
termed a redemptioner. (29a)
Section 28. Time and manner of, and
amounts payable on, successive
redemptions; notice to be given and
filed. — The judgment obligor, or
redemptioner, may redeem the property from
the purchaser, at any time within one (1)
year from the date of the registration of the
certificate of sale, by paying the purchaser
the amount of his purchase, with the per
centum per month interest thereon in
addition, up to the time of redemption,
together with the amount of any assessments
or taxes which the purchaser may have paid
thereon after purchase, and interest on such
last named amount at the same rate; and if
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the purchaser be also a creditor having a
prior lien to that of the redemptioner,
other than the judgment under which such
purchase was made, the amount of such
other lien, with interest.
Property so redeemed may again be
redeemed within sixty (60) days after the
last redemption upon payment of the sum
paid on the last redemption, with two per
centum thereon in addition and the
amount of any assessments or taxes
which the last redemptioner may have
paid thereon after redemption by him,
with interest on such last named amount,
and in addition, the amount of any liens
held by said last redemptioner prior to his
own, with interest. The property may be
again, and as often as a redemptioner is
so disposed, redeemed from any previous
redemptioner within sixty (60) days after
the last redemption, on paying the sum
paid on the last previous redemption, with
two per centum thereon in addition, and
the amounts of any assessments or taxes
which the last previous redemptioner paid
after the redemption thereon, with
interest thereon, and the amount of any
liens held by the last redemptioner prior
to his own, with interest.
Written notice of any redemption must be
given to the officer who made the sale
and a duplicate filed with the registry of
deeds of the place, and if any
assessments or taxes are paid by the
redemptioner or if he has or acquires any
lien other than that upon which the
redemption was made, notice thereof
must in like manner be given to the officer
and filed with the registry of deeds; if
such notice be not filed, the property may
be redeemed without paying such
assessments, taxes, or liens. (30a)
REDEMPTION
Right of Redemption:
1. Personal Property- NONE
2. Real Property- REDEMPTION exists
Who may Redeem:
1. Judgment Obligor, or his successors
in interest; or
2. Redemptioner who is a creditor
having a lien by virtue of an attachment,
judgment or mortgage on the property
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sold, subsequent to the lien under which the
property was sold.
When made:
1. By the judgment obligor
Within one (1) year from the
registration of the certificate of sale.
2. By the redemptioner
Within one (1) year from the date of
registration of the certificate of sale
or within 60 days from the last
redemption by another
redemptioner.
BUT IN ALL CASES the judgment obligor shall have
the entire period of one year to redeem the property.
If the judgment obligor redeems the property, no
further redemption is allowed and he is restored to
his estate.
NOTE: The period of redemption is not suspended
by an action to annul the foreclosure sale.
Q: Can redemption be paid in other forms than
cash?
A: Yes. The rule is construed liberally in allowing
redemption (to aid rather than to defeat the right)
and it has allowed in the form of a cashier’s check,
certified bank checks and even checks. Note,
however, that the payee must be the judgment
creditor.
The offer to redeem must be accompanied with a
bona fide tender or delivery of the redemption price.
HOWEVER, a formal offer to redeem with a tender
is not necessary where the right to redeem is
exercised through the filing of a complaint to redeem
in the courts, within the period to redeem.
Section 29. Effect of redemption by
judgment obligor, and a certificate to be
delivered and recorded thereupon; to
whom payments on redemption made. —
If the judgment obligor redeems he must
make the same payments as are required to
effect a redemption by a redemptioner,
whereupon, no further redemption shall be
allowed and he is restored to his estate. The
person to whom the redemption payment is
made must execute and deliver to him a
certificate of redemption acknowledged
before a notary public or other officer
authorized to take acknowledgments of
conveyances of real property. Such certificate
must be filed and recorded in the registry of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
deeds of the place in which the property is
situated and the registrar of deeds must
note the record thereof on the margin of
the record of the certificate of sale. The
payments mentioned in this and the last
preceding sections may be made to the
purchaser or redemptioner, or for him to
the officer who made the sale. (31a)
Section 30. Proof required of
redemptioner. — A redemptioner must
produce to the officer, or person from
whom he seeks to redeem, and serve with
his notice to the officer a copy of the
judgment or final order under which he
claims the right to redeem, certified by
the clerk of the court wherein the
judgment or final order is entered, or, if
he redeems upon a mortgage or other
lien, a memorandum of the record
thereof, certified by the registrar of deeds,
or an original or certified copy of any
assignment necessary to establish his
claim; and an affidavit executed by him or
his agent, showing the amount then
actually due on the lien. (32a)
Section 31. Manner of using premises
pending redemption; waste
restrained. — Until the expiration of the
time allowed for redemption, the court
may, as in other proper cases, restrain the
commission of waste on the property by
injunction, on the application of the
purchaser or the judgment obligee, with
or without notice; but it is not waste for a
person in possession of the property at
the time of the sale, or entitled to
possession afterwards, during the period
allowed for redemption, to continue to use
it in the same manner in which it was
previously used, or to use it in the
ordinary course of husbandry; or to make
the necessary repairs to buildings thereon
while he occupies the property. (33a)
Section 32. Rents, earnings and
income of property pending
redemption. — The purchaser or a
redemptioner shall not be entitled to
receive the rents, earnings and income of
the property sold on execution, or the
value of the use and occupation thereof
when such property is in the possession of
a tenant. All rents, earnings and income
derived from the property pending
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redemption shall belong to the judgment
obligor until the expiration of his period of
redemption. (34a)
RIGHTS OF THE JUDGMENT DEBTOR:
1. Remain in the possession of the property;
2. Cannot be ejected;
3. Use the property in the same manner as it
was previously used;
4. Make necessary repairs to buildings thereon
while he occupies the property;
5. Use it in the ordinary course of husbandry
6. Collect rents, earnings and income derived
from the property until the expiration of the
period of redemption.
Section 33. Deed and possession to be
given at expiration of redemption period;
by whom executed or given. — If no
redemption be made within one (1) year from
the date of the registration of the certificate
of sale, the purchaser is entitled to a
conveyance and possession of the property;
or, if so redeemed whenever sixty (60) days
have elapsed and no other redemption has
been made, and notice thereof given, and the
time for redemption has expired, the last
redemptioner is entitled to the conveyance
and possession; but in all cases the judgment
obligor shall have the entire period of one (1)
year from the date of the registration of the
sale to redeem the property. The deed shall
be executed by the officer making the sale or
by his successor in office, and in the latter
case shall have the same validity as though
the officer making the sale had continued in
office and executed it.
Upon the expiration of the right of
redemption, the purchaser or redemptioner
shall be substituted to and acquire all the
rights, title, interest and claim of the
judgment obligor to the property as of the
time of the levy. The possession of the
property shall be given to the purchaser or
last redemptioner by the same officer unless
a third party adversely to the judgment
obligor. (35a)
 The Deed of Conveyance is what operates to
transfer to the purchaser whatever rights the
judgment debtor had in the property. The
certificate of sale merely is a memorial of the
fact of sale and does not operate as a
conveyance.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
 The purchaser acquires no better right that
what the judgment debtor has in the
property levied upon. Thus, if the judgment
debtor had already transferred the property
executed prior to the levy and no longer had
an interest in the property, the execution
purchaser acquires no right.
WHEN 3RD PERSON IS IN POSSESSION: The
procedure is for the court to order a hearing and
determine the nature of such adverse
possession.
Section 34. Recovery of price if sale
not effective; revival of judgment. —
If the purchaser of real property sold on
execution, or his successor in interest,
fails to recover the possession thereof, or
is evicted therefrom, in consequence of
irregularities in the proceedings
concerning the sale, or because the
judgment has been reversed or set aside,
or because the property sold was exempt
from execution, or because a third person
has vindicated his claim to the property,
he may on motion in the same action or in
a separate action recover from the
judgment obligee the price paid, with
interest, or so much thereof as has not
been delivered to the judgment obligor, or
he may, on motion, have the original
judgment revived in his name for the
whole price with interest, or so much
thereof as has been delivered to the
judgment obligor. The judgment so
revived shall have the same force and
effect as an original judgment would have
as of the date of the revival and no more.
(36a)
Section 35. Right to contribution or
reimbursement. — When property liable
to an execution against several persons is
sold thereon, and more than a due
proportion of the judgment is satisfied out
of the proceeds of the sale of the property
of one of them, or one of them pays,
without a sale, more than his proportion,
he may compel a contribution from the
others; and when a judgment is upon an
obligation of one of them, as security for
another, and the surety pays the amount,
or any part thereof, either by sale of his
property or before sale, he may compel
repayment from the principal. (37a)
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REMEDIES OF THE JUDGMENT CREDITOR IN defendant to appear before it and to be examined
AID OF EXECUTION: regarding his property and income. How should the
1. Section 36. Examination of judgment obligor court resolve the motion? (2%)
when judgment unsatisfied;
2. Section 37. Examination of obligor of
judgment obligor;
3. Section 38. Enforcement of attendance and
conduct of examination;
4. Section 40. Order for application of property
and income to satisfaction of judgment;
5. Section 41. Appointment of receiver;
6. Section 42. Sale of ascertainable interest of
judgment obligor in real estate;
7. Section 43. Proceedings when
indebtedness denied or another person
claims the property.
Section 36. Examination of judgment
obligor when judgment unsatisfied. —
When the return of a writ of execution issued
against property of a judgment obligor, or
any one of several obligors in the same
judgment, shows that the judgment remains
unsatisfied, in whole or in part, the judgment
obligee, at any time after such return is
made, shall be entitled to an order from the
court which rendered the said judgment,
requiring such judgment obligor to appear
and be examined concerning his property and
income before such court or before a
commissioner appointed by it at a specified
time and place; and proceedings may
thereupon be had for the application of the
property and income of the judgment obligor
towards the satisfaction of the judgment. But
no judgment obligor shall be so required to
appear before a court or commissioner
outside the province or city in which such
obligor resides or is found. (38a)
Judgments; Enforcement; Examination of Defendant
(2002)
The plaintiff, a Manila resident, sued the defendant, a
resident of Malolos Bulacan, in the RTC-Manila for a
sum of money. When the sheriff tried to serve the
summons with a copy of the complaint on the defendant
at his Bulacan residence, the sheriff was told that the
defendant had gone to Manila for business and would not
be back until the evening of that day. So, the sheriff
served the summons, together with a copy of the
complaint, on the defendant’s 18year-old daughter, who
was a college student. For the defendant’s failure to
answer the complaint within the reglementary period, the
trial court, on motion of the plaintiff, declared the
defendant in default. A month later, the trial court
rendered judgment holding the defendant liable for the
entire amount prayed for in the complaint. A. After the
judgment had become final, a writ of execution was
issued by the court. As the writ was returned unsatisfied,
the plaintiff filed a motion for an order requiring the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
SUGGESTED ANSWER: When the return of a writ of
execution issued against property of a judgment
obligor, or any one of several obligors in the same
judgment, shows that the judgment remains
unsatisfied, in whole or in part, the judgment obligee,
at any time after such return is made, shall be entitled
to an order from the court which rendered the said
judgment, requiring such judgment obligor to appear
and be examined concerning his property and income
before such court or before a commissioner appointed
by it at a specified time and place; and proceedings
may thereupon be had for the application of the
property and income of the judgment obligor towards
the satisfaction of the judgment. But no judgment
obligor shall be so required to appear before a court
or commissioner outside the province or city in which
such obligor resides or is found.
Summons
Seven years after the entry of judgment, the plaintiff
filed an action for its revival. Can the defendant
successfully oppose the revival of the judgment by
contending that it is null and void because the
RTCManila did not acquire jurisdiction over his
person? Why? (3%)
SUGGESTED ANSWER:
The RTC-Manila should deny the motion because it
is in violation of the rule that no judgment obligor
shall be required to appear before a court, for the
purpose of examination concerning his property and
income, outside the province or city in which such
obligor resides. In this case the judgment obligor
resides in Bulacan. (Rule 39, sec.36).
Section 37. Examination of obligor of
judgment obligor. — When the return of
a writ of execution against the property of
a judgment obligor shows that the
judgment remain unsatisfied, in whole or
in part, and upon proof to the satisfaction
of the court which issued the writ, that a
person, corporation, or other juridical
entity has property of such judgment
obligor or is indebted to him, the court
may, by an order, require such person,
corporation, or other juridical entity, or
any officer, or member thereof, to appear
before the court or a commissioner
appointed by it, at a time and place within
the province or city where such debtor
resides or is found, and be examined
concerning the same. The service of the
order shall bind all credits due the
judgment obligor and all money and
property of the judgment obligor in the
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possession or in the control of such person
corporation, or juridical entity from the time
of service; and the court may also require
notice of such proceedings to be given to any
party to the action in such manner as it may
deem proper. (39a)
Section 38. Enforcement of attendance
and conduct of examination. — A party or
other person may be compelled, by an order
or subpoena, to attend before the court or
commissioner to testify as provided in the
two preceding sections, and upon failure to
obey such order or subpoena or to be sworn,
or to answer as a witness or to subscribe his
deposition, may be punished for contempt as
in other cases. Examinations shall not be
unduly prolonged, but the proceedings may
be adjourned from time to time, until they
are completed. If the examination is before a
commissioner, he must take it in writing and
certify it to the court. All examinations and
answers before a court commissioner must
be under oath, and when a corporation or
other juridical entity answers, it must be on
the oath of an authorized officer or agent
thereof. (40a)
Section 39. Obligor may pay execution
against obligee. — After a writ of execution
against property has been issued, a person
indebted to the judgment obligor may pay to
the sheriff holding the writ of execution the
amount of his debt or so much thereof as
may be necessary to satisfy the judgment, in
the manner prescribed in section 9 of this
Rule, and the sheriff's receipt shall be a
sufficient discharge for the amount so paid or
directed to be credited by the judgment
obligee on the execution. (41a)
Section 40. Order for application of
property and income to satisfaction of
judgment. — The court may order any
property of the judgment obligor, or money
due him, not exempt from execution, in the
hands of either himself or another person, or
of a corporation or other juridical entity, to be
applied to the satisfaction of the judgment,
subject to any prior rights over such
property.
If, upon investigation of his current income
and expenses, it appears that the earnings of
the judgment obligor for his personal services
are more than necessary for the support of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
his family, the court may order that he
pay the judgment in fixed monthly
installments, and upon his failure to pay
any such installment when due without
good excuse, may punish him for indirect
contempt. (42a)
Section 41. Appointment of receiver. —
The court may appoint a receiver of the
property of the judgment obligor; and it
may also forbid a transfer or other
disposition of, or any interference with,
the property of the judgment obligor not
exempt from execution. (43a)
Section 42. Sale of ascertainable
interest of judgment obligor in real
estate. — If it appears that the judgment
obligor has an interest in real estate in the
place in which proceedings are had, as
mortgagor or mortgagee or other- wise,
and his interest therein can be ascertained
without controversy the receiver may be
ordered to sell and convey such real
estate or the interest of the obligor
therein; and such sale shall be conducted
in all respects in the same manner as is
provided for the sale of real state upon
execution, and the proceedings thereon
shall be approved by the court before the
execution of the deed. (34a)
Section 43. Proceedings when
indebtedness denied or another
person claims the property. — If it
appears that a person or corporation,
alleged to have property of the judgment
obligor or to be indebted to him, claims an
interest in the property adverse to him or
denied the debt, the court may authorize,
by an order made to that effect, the
judgment obligee to institute an action
against such person or corporation for the
recovery of such interest or debt, forbid a
transfer or other disposition of such
interest or debt within one hundred
twenty (120) days from notice of the
order, and may punish disobedience of
such order as for contempt. Such order
may be modified or vacated at any time
by the court which issued it, or by the
court in which the action is brought, upon
such terms as may be just. (45a)
Section 44. Entry of satisfaction of
judgment by clerk of court. —
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Satisfaction of a judgment shall be entered
by the clerk of court in the court docket, and
in the execution book, upon the return of a
writ of execution showing the full satisfaction
of the judgment, or upon the filing of an
admission to the satisfaction of the judgment
executed and acknowledged in the same
manner as a conveyance of real property by
the judgment obligee or by his counsel unless
a revocation of his authority is filed, or upon
the endorsement of such admission by the
judgment obligee or his counsel, on the face
of the record of the judgment. (46a)
evidence of the death of the testator or
intestate;
(b) In other cases, the judgment or final
order is, with respect to the matter
directly adjudged or as to any other
matter that could have been missed in
relation thereto, conclusive between the
parties and their successors in interest, by
title subsequent to the commencement of
the action or special proceeding, litigating
for the same thing and under the same
title and in the same capacity; and

Section 45. Entry of satisfaction with or
without admission. — Whenever a same parties or their successors in
judgment is satisfied in fact, or otherwise
than upon an execution on demand of the
judgment obligor, the judgment obligee or his
counsel must execute and acknowledge, or
indorse an admission of the satisfaction as
provided in the last preceding section, and
after notice and upon motion the court may
order either the judgment obligee or his
counsel to do so, or may order the entry of
satisfaction to be made without such
admission. (47a)
Section 46. When principal bound by
judgment against surety. — When a
judgment is rendered against a party who
stands as surety for another, the latter is also
bound from the time that he has notice of the
action or proceeding, and an opportunity at
the surety's request to join in the defense.
(48a)
(c) In any other litigation between the
interest, that only is deemed to have been
adjudged in a former judgment or final
order which appears upon its face to have
been so adjudged, or which was actually
and necessarily included therein or
necessary thereto. (49a)
This refers to judgments which are considered
as conclusive and may be rebutted directly by
means of Relief from Judgment or Annulment of
Judgment or indirectly by offering them in
evidence under Parole Evidence Rule.
PARAGRAPH (A)
This refers to rule on RES JUDICATA in
judgments IN REM.

Section 47. Effect of judgments or final JUDGMENT or FINAL EFFECT:

orders. — The effect of a judgment or final ORDER CONCLUSIVE AS TO
order rendered by a court of the Philippines, Against a specific thing Title to the thing
having jurisdiction to pronounce the Probate of a will or Will or administration.
judgment or final order, may be as follows: administration of the However only a prima
estate of a deceased facie evidence of the
(a) In case of a judgment or final order person death of the testator or
against a specific thing, or in respect to the intestate
probate of a will, or the administration of the In respect to the Condition, status or
estate of a deceased person, or in respect to personal, political, or relationship of the
legal condition or person
the personal, political, or legal condition or
status of a particular
status of a particular person or his
person
relationship to another, the judgment or final
order is conclusive upon the title to the thing,
the will or administration or the condition,
status or relationship of the person, however, PARAGRAPH (B)
the probate of a will or granting of letters of
administration shall only be prima facie This refers to RES JUDICATA in judgment in
PERSONAM

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 150

________________________________________________________________________________________________
NOTE; for more discussion, refer to Rule 16. Judgment; Execution; Successors in
Interest (2008) No.XV. Half-brothers
Roscoe and Salvio inherited from their
PARGRAPH (C) father a vast tract of unregistered land.
Roscoe succeeded in gaining possession of
This is known as “Conclusiveness of Judgment” the parcel of land in its entirety and
or “Preclusion of Issues” or the “Rule of Auter transferring the tax declaration thereon in
Action Pendant” his name. Roscoe sold the northern half to
Bono, Salvio’s cousin. Upon learning of the
CONCLUSIVENESS OF JUDGMENT sale, Salvio asked Roscoe to convey the
The issues actually and directly resolved in a former southern half to him. Roscoe refused as he
suit cannot again be raised in any future case even sold one-third of the southern half
between the same parties involving a different along the West to Carlo. Thereupon, Salvio
cause of action. filed an action for reconveyance of the
southern half against Roscoe only. Carlo
 It has the effect of preclusion only of issues. was not impleaded. After filing his answer,
 The parties in both actions may be the Roscoe sold the middle third of the
same but the causes of action are different. southern half to Nina. Salvio did not amend
the complaint to implead Nina.
After trial, the court rendered judgment
BAR BY FORMER CONCLUSIVENESS ordering Roscoe to reconvey the entire
JUDGMENT (RES OF JUDGMENT southern half to Salvio. The judgment
JUDICATA) became final and executory. A writ of
There is identity of There is only identity of execution having been issued, the sheriff
parties, subject matter parties and subject required Roscoe, Carlo and Nina to vacate
and causes of action matter the southern half and yield possession
The first judgment The first judgment is thereof to Salvio as the prevailing party.
constitutes as an conclusive only as to Carlo and Nina refused, contending that
ABSOLUTE BAR to all matters directly they are not bound by the judgment as they
matters directly adjudged and actually are not parties to the case. Is the
adjudged and those litigated in the first contention tenable? Explain fully. (4%)
might have been action. Second action SUGGESTED ANSWER: As a general rule,
adjudged can be prosecuted. no stranger should be bound to a
judgment where he is not included as a
Bar by Prior Judgment vs. Conclusiveness of Judgment party. The rule on transfer of interest
(1997) pending litigation is found in Sec. 19,
Distinguish Bar by prior judgment from conclusiveness
Rule 3, 1997 Rules of Civil Procedure.
of judgment
SUGGESTED ANSWER:
The action may continue unless the
Bar by prior-judgment is the doctrine of res judicata, court, upon motion directs a person to
which bars a second action when there is identity of be substituted in the action or joined
parties, subject matter and cause of action. (Sec. 49[b] of with the original party. Carlo is not
former Rule 39; Sec, 47 [b] of new Rule 39). bound by the judgment. He became a co-
Conclusiveness of judgment precludes the relitigation of owner before the case was filed
a particular issue in another action between the same (Matuguina Integrated Wood Products,
parties on a different cause of action. (Sec. 49 [c] of former Inc. vs. C.A., G.R. No. 98310, 24 October
Rule 39; sec. 47 [c] of new Rule 39). 1996; Polaris vs. Plan, 69 SCRA 93; See
also Asset Privatization Trust vs. C.A.,
LAW OF THE CASE G.R. No. 121171, 29 December 1998).
It refers to the legal conclusions announced on a However, Nina is a privy or a successor
first appeal, whether on the general law or the law in interest and is bound by the judgment
as applied to the concrete facts, not only prescribe even if she is not a party to the case
the duty and limit the power of the trial court to strict (Sec. 19, Rule 3, 1997 Rules of Civil
obedience and conformity thereto, but they become Procedure; Cabresos vs. Tiro, 166 SCRA
and remain the law of the case in all other steps, 400 [1998]). A judgment is conclusive
whether in the lower court or in appellate court on between the parties and their
subsequent appeal (Zarate vs. Director of Lands, 39 successors-in-interest by title
Phil. 747) subsequent to the case (Sec. 47, Rule 39,
1997 Rules of Civil Procedure).

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 151

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Section 48. Effect of foreign judgments or
final orders. — The effect of a judgment or
final order of a tribunal of a foreign country,
having jurisdiction to render the judgment or
final order is as follows:
(a) In case of a judgment or final order
upon a specific thing, the judgment or
final order, is conclusive upon the title to
the thing, and
(b) In case of a judgment or final order
against a person, the judgment or final
order is presumptive evidence of a right
as between the parties and their
successors in interest by a subsequent
title.
In either case, the judgment or final order
may be repelled by evidence of a want of
jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or
fact. (50a)
Bar Exam Question 2011
(36) What defenses may be raised in a suit to
enforce a foreign judgment?
(A) That the judgment is contrary to Philippine
procedural rules. (B) None, the judgment being
entitled to full faith and credit as a matter of
general comity among nations. (C) That the
foreign court erred in the appreciation of the
evidence. (D) That extrinsic fraud afflicted
the judgment.
Judgment; Foreign Judgments; Foreign
Arbitral Award (2007)
No.I. (a) What are the rules on the recognition
and enforcement of foreign judgments in our
courts? (6%) SUGGESTED ANSWER:
Judgments of foreign courts are given
recognition in our courts thus: In case of
judgment upon a specific thing, the
judgment is conclusive upon the title to the
thing, unless otherwise repelled by evidence
of lack of jurisdiction, want of due notice to
the party, collusion, fraud, or clear mistake
of law or fact (Rule 39, Sec. 48 [a], Rules of
Court); and In case of judgment against a
person, the judgment is presumptive
evidence of a right as between the parties
and their successors in interest by
subsequent title, unless otherwise repelled
by evidence on grounds above stated (Rule
39, Sec. 48 [b], Rules of Court). However,
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
judgments of foreign courts may only be
enforced in the Philippines through an
action validly heard in the Regional Trial
Court. Thus, it is actually the judgment
of the Philippine court enforcing the
foreign judgment that shall be executed.
(b) Can a foreign arbitral award be
enforced in the Philippines under those
rules? Explain briefly. (2%) SUGGESTED
ANSWER: No, a foreign arbitral award
cannot be enforced in the Philippines
under the rules on recognition and
enforcement of foreign judgments above-
stated. A foreign arbitral award is not a
foreign judgment, and pursuant to the
Alternative Dispute Resolution Act of
2004 (R.A. No. 9285), in relation to 1958
New York Convention on the
Recognition and Enforcement of Foreign
Arbitral Awards, the recognition and
enforcement of the foreign arbitral
awards shall be in accordance with the
rules of procedure to be promulgated by
the Supreme Court. At present, the
Supreme Court is yet to promulgate
rules of procedure on the subject matter.
(c) How about a global injunction issued by
a foreign court to prevent dissipation of
funds against a defendant therein who has
assets in the Philippines? Explain briefly.
(2%) SUGGESTED ANSWER: Yes, a global
injunction issued by a foreign court to
prevent dissipation of funds against a
defendant who has assets in the
Philippines may be enforced in our
jurisdiction, subject to our procedural
laws. As a general rule, no sovereign is
bound to give effect within its dominion
to a judgment or order of a tribunal of
another country. However, under the
rules of comity, utility and convenience,
nations have established a usage among
civilized states by which final judgments
of foreign courts of competent
jurisdiction are reciprocally respected
and rendered efficacious under certain
conditions that may vary in different
countries (St. Aviation Services Co., Pte.,
Ltd. v. Grand International Airways, Inc.,
505 SCRA 30[2006]; Asiavest Merchant
Bankers [M] Berhad v. Court of Appeals,
361 SCRA 489 [2001]).
Judgment; Enforcement; Foreign Judgment (2005)
152
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Under Article 1144 of the New Civil Code, an action warrant a reversal or modification of the
upon a judgment must be brought within 10 years from decision or judgment sought to be reviewed.
the time the right of action accrues. Is this provision
applicable to an action filed in the Philippines to enforce
ORDINARY APPEAL
a foreign judgment? Explain. (10%)
ALTERNATIVE ANSWER:
It is an appeal by notice of appeal, from a
Article 1144 of the Civil Code which requires that an judgment or final order of a lower court on
action upon a judgment (though without distinction) questions of fact and law.
must be brought within 10 years from the time the right
The right to appeal is not a natural right
of action accrues, does not apply to an action filed in the
or a part of due process. It is merely a
Philippines to enforce a foreign judgment. While we can
statutory privilege and may be exercised
say that where the law does not distinguish, we should
only in the manner and in accordance
not distinguish, still the law does not evidently
with the provisions of the law (Producers
contemplate the inclusion of oreign judgments. A local Bank of the Philippines vs.CA, GR No.
judgment may be enforced by motion within five years 126620, April 17, 2002)
and by action within the next five years. (Rule 39) That is
not the case with respect to foreign judgments which
cannot be enforced by mere motion.
ALTERNATIVE ANSWER: Appeal decision of MTC by filing notice of
appeal and pay appellate court docket fee in
Article 1144 of the Civil Code requires that an action
the same MTC within 15 days from receipt of
upon a judgment (though without distinction) must be judgment
brought within 10 years from the time the right of
action accrues. There seems no cogent reason to exclude
foreign judgments from the operation of this
rule, subject to the requirements of Rule 39, Sec. 48 of 15 days from perfection of appeal, MTC
the Rules of Court which establishes certain requisites clerk transmits record to RTC
for proving the foreign judgment. Pursuant to these
provisions, an action for the enforcement of the foreign
judgment may be brought at any time within 10 years
from the time the right of action accrues. Notice to parties that an appeal is being
taken from the decision of MTC

Appeals
Within 15 days from notice of appeal:
 Appellant submits
RULE 40 memorandum to the RTC
 Appellee files his own
Appeal From Municipal Trial Courts to memorandum 15 days from
receipt of appellants
the Regional Trial Courts memorandum

BP 129, Section 22. Appellate jurisdiction. —

Regional Trial Courts shall exercise appellate
jurisdiction over all cases decided by Metropolitan
If uncontested: Any party may
Trial Courts, Municipal Trial Courts, and Municipal Judgment is appeal by filing a
Circuit Trial Courts in their respective territorial entered in the petition for
book of entries review with the
jurisdictions. Such cases shall be decided on the
CA
basis of the entire record of the proceedings had in
the court of origin and such memoranda and/or
briefs as may be submitted by the parties or
required by the Regional Trial Courts. The decision
of the Regional Trial Courts in such cases shall be Section 1. Where to appeal. — An
appeal from a judgment or final order of a
appealable by petition for review to the Court of
Municipal Trial Court may be taken to the
Appeals which may give it due course only when Regional Trial Court exercising jurisdiction
the petition shows prima facie that the lower court over the area to which the former
has committed an error of fact or law that will pertains. The title of the case shall remain

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as it was in the court of origin, but the party
appealing the case shall be further referred to
as the appellant and the adverse party as the
appellee. (a)
APPEAL TO THE RTC
Mode of Appeal— Notice of Appeal within 15 days
from receipt of decision.
After an appeal to the RTC has been perfected,
MTC loses its jurisdiction over the case and any
motion for execution of judgment should be filed
with the RTC.
The summary rules no longer apply when the case
is on appeal.
IMPORTANT: Appeals from decisions of the MTCs
raising only PURE QUESTIONS OF LAW, is
appealable to the RTC via ordinary notice of appeal.
NOTE: However, decisions of the MTCs under the
delegated jurisdiction in cadastral and land
registration cases are appealable in the same way
as decisions of the RTCs. Thus, decision may be
appealed directly to the SC via Rule 45, raising only
pure questions of law (Review Lecture – Riano).
Section 34. Delegated jurisdiction in cadastral and
land registration cases. – Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial
Courts may be assigned by the Supreme Court to
hear and determine cadastral or land registration
cases covering lots where there is no controversy or
opposition, or contested lots where the value of
which does not exceed One hundred thousand pesos
(P100,000.00), such value to be ascertained by the
affidavit of the claimant or by agreement of the
respective claimants if there are more than one, or
from the corresponding tax declaration of the real
property. Their decisions in these cases shall be
appealable in the same manner as decisions of the
Regional Trial Courts. (as amended by R.A. No.
7691)
Section 2. When to appeal. — An appeal
may be taken within fifteen (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 thirty (30) days after notice of the
judgment or final order.
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration.
No motion for extension of time to file a
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
motion for new trial or reconsideration
shall be allowed. (n)
NOTE: Under the “FRESH PERIOD RULE”, a
party litigant may either file his notice of appeal
within 15 days from receipt of the decision of the
RTC, or file it within 15 days from receipt of the
order denying his motion for new trial or
reconsideration (Neypes vs. CA, GR No.
141524, Sept. 14, 2005)
Appeals; Period of Appeal; Fresh Period Rule (2003)
Defendant X received an adverse Decision of the
RTC in an ordinary civil case on 02 January 2003. He
filed a Notice of Appeal on 10 January 2003. On the
other hand, plaintiff A received the same Decision
on 06 January 2003 and, on 19 January 2003, filed a
Motion for Reconsideration of the Decision. On 13
January 2003, defendant X filed a Motion
withdrawing his notice of appeal in order to file a
Motion for New Trial which he attached. On 20
January 2003, the court denied A’s Motion for
Reconsideration and X’s Motion to Withdraw
Notice of Appeal. Plaintiff A received the Order
denying his Motion for Reconsideration on 03
February 2003 and filed his Notice of Appeal on 05
February 2003. The court denied due course to A’s
Notice of Appeal on the ground that he period to
appeal had already lapsed. 6%
(a) Is the court’s denial of X’s Motion to Withdraw
Notice of Appeal proper?
(b) Is the court’s denial of due course to A’s appeal
correct?
SUGGESTED ANSWER:
(a) No, the court’s denial of X’s Motion to Withdraw
Notice of Appeal is not proper, because the period
of appeal of X has not yet expired. From January 2,
2003 when X received a copy of the adverse decision
up to January 13, 2003 when he filed his withdrawal
of appeal and Motion for New Trial, only ten (10)
days had elapsed and he had fifteen (15) days to do
so.
(b) No, the court’s denial of due course to A’s appeal
is not correct because the appeal was taken on time.
From January 6, 2003 when A received a copy of the
decision up to January 19, 2003 when he filed a
Motion for Reconsideration, only twelve (12) days
had elapsed. Consequently, he had three (3) days
from receipt on February 3, 2003 of the Order
denying his Motion for Reconsideration within
which to appeal. He filed is notice of appeal on
February 5, 2003, or only two (2) days later.
ALTERNATIVE ANSWER:
Since A’s Motion for Reconsideration was filed on
January 19, 2003 and it was denied on January 20,
2003, it was clearly not set for hearing with at least
three days’ notice. Therefore, the motion was pro
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forma and did not interrupt the period of appeal which
expired on January 21, 2003 or fifteen (15) days after
notice of the decision on January 6, 2003.
NOTE: To standardize the appeal periods provided in
the Rules and to afford litigants fair opportunity to
appeal their cases, the Court deems it practical to allow a
FRESHPERIOD of 15 days within which to file the
notice of appeal in the RTC, counted from receipt of the
order dismissing a motion for a new trial or motion for
reconsideration. [Neypes et. al. vs.
CA, G.R. No. 141524, September 14, 2005]
Section 3. How to appeal. — The appeal is
taken by filing a notice of appeal with the
court that rendered the judgment or final
order appealed from. The notice of appeal
shall indicate the parties to the appeal, the
judgment or final order or part thereof
appealed from, and state the material dates
showing the timeliness of the appeal.
A record on appeal shall be required only in
special proceedings and in other cases of
multiple or separate appeals.
The form and contents of the record on
appeal shall be as provided in section 6, Rule
41.
Copies of the notice of appeal and the record
on appeal where required, shall be served on
the adverse party. (n)
ORDINARY APPEAL PETITION FOR
REVIEW
Matter of right Discretionary
All records are elevated No records are elevated
from the court of origin unless the court
decrees it
Notice or record on Filed with CA
appeal is filed with the
court of origin
Section 4. Perfection of appeal; effect
thereof. — The perfection of the appeal and
the effect thereof shall be governed by the
provisions of section 9, Rule 41. (n)
Appeal is deemed perfected
1. By notice of appeal: As to him, upon the filing of
the notice of appeal in due time;
2. By record on appeal: As to him, upon the
approval of the record on appeal filed in due
time.
EFFECT OF PERFECTED APPEAL
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of
the appeal filed in due time.
In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof
upon approval of the records on appeal in due
time.
RESIDUAL POWER (JURISDICTION) of the
court prior to the transmittal of the original record
or record on appeal to:
1. To issue orders for the preservation of the
rights of the parties which do not involve
matters litigated on appeal;
2. To approve compromise prior to the
transmittal of the record;
3. To permit appeal by an indigent;
4. To order execution pending appeal under
Rule 39, sec. 2 (Motion for Execution filed
before the expiration of the period to
appeal);
5. To allow withdrawal of appeal (sec. 4, in
relation to sec. 9 of Rule 41).
NOTE: The trial court has no jurisdiction to hear
a party’s application for damages against the
adverse party’s bond after the perfection of the
appeal. Not considered as part of residual
powers since it is neither an act of protection nor
preservation but an act of vindication and
punitive in nature (Fortune Life Ins. vs. CA, 224
SCRA 829).
Section 5. Appellate court docket and
other lawful fees. — Within the period
for taking an appeal, the appellant shall
pay to the clerk of the court which
rendered the judgment or final order
appealed from the full amount of the
appellate court docket and other lawful
fees. Proof of payment thereof shall be
transmitted to the appellate court
together with the original record or the
record on appeal, as the case may be. (n)
Note here that (appeals from MTC- RTC) non-
payment of docket fees will not ipso pacto cause
the dismissal of the appeal but the trial court
may refuse to transmit the records of the case to
the appellate court.
Docket fee is not a requisite for the perfection of
the appeal.
Note, HOWEVER, the result of failure to pay
docket and other lawful fees under Rule 50
(appeals from RTC- CA):
155
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Section 1. Grounds for dismissal of appeal. — An
appeal may be dismissed by the Court of Appeals,
on its own motion or on that of the appellee, on the
following grounds:
(c) Failure of the appellant to pay the docket
and other lawful fees as provided in section
5, Rule 40 and section 4 of Rule 41; (Bar
Matter No. 803, 17 February 1998).
case of affirmance and the ground of
dismissal is lack of jurisdiction over the
subject matter, the Regional Trial Court, if
it has jurisdiction thereover, shall try the
case on the merits as if the case was
originally filed with it. In case of reversal,
the case shall be remanded for further
proceedings.

If the case was tried on the merits by the

lower court without jurisdiction over the
Section 6. Duty of the clerk of court. —
subject matter, the Regional Trial Court
Within fifteen (15) days from the perfection
on appeal shall not dismiss the case if it
of the appeal, the clerk of court or the branch
has original jurisdiction thereof, but shall
clerk of court of the lower court shall transmit
decide the case in accordance with the
the original record or the record on appeal,
preceding section, without prejudice to the
together with the transcripts and exhibits,
admission of amended pleadings and
which he shall certify as complete, to the
additional evidence in the interest of
proper Regional Trial Court. A copy of his
justice. (n)
letter of transmittal of the records to the
appellate court shall be furnished the parties.
(n) Section 9. Applicability of Rule 41. —
The other provisions of Rule 41 shall apply
to appeals provided for herein insofar as
Section 7. Procedure in the Regional Trial
they are not inconsistent with or may
Court. —
serve to supplement the provisions of this
Rule. (n)
(a) Upon receipt of the complete record or
the record on appeal, the clerk of court of the
Regional Trial Court shall notify the parties of
such fact.
RULE 41
(b) Within fifteen (15) days from such notice,
it shall be the duty of the appellant to submit Appeal From The Regional Trial
a memorandum which shall briefly discuss Courts
the errors imputed to the lower court, a copy
of which shall be furnished by him to the IMPORTANT: This Rule 41 should be taken
adverse party. Within fifteen (15) days from together with Rule 44.
receipt of the appellant's memorandum, the
appellee may file his memorandum. Failure of Section 1. Subject of appeal. — An
the appellant to file a memorandum shall be appeal may be taken from a judgment or
a ground for dismissal of the appeal. final order that completely disposes of the
case or of a particular matter therein
when declared by these Rules to be
(c) Upon the filing of the memorandum of the
appealable.
appellee, or the expiration of the period to do
so, the case shall be considered submitted for
decision. The Regional Trial Court shall decide No appeal may be taken from:
the case on the basis of the entire record of
the proceedings had in the court of original (a) An order denying a petition for relief
and such memoranda as are filed. (n) or any similar motion seeking relief from
judgment;
Section 8. Appeal from orders dismissing
case without trial; lack of jurisdiction. — (b) An interlocutory order;
If an appeal is taken from an order of the
lower court dismissing the case without a trial (c) An order disallowing or dismissing an
on the merits, the Regional Trial Court may appeal;
affirm or reverse it, as the case may be. In

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________________________________________________________________________________________________
Remedy is Relief from Judgment (R.38). the Regional Trial Court to the Court of Appeals
raising only questions of law shall be dismissed,
(d) An order denying a motion to set aside a issues purely of law not being reviewable by said
judgment by consent, confession or court. Similarly, an appeal by notice of appeal
compromise on the ground of fraud, mistake instead of by petition for review from the
or duress, or any other ground vitiating appellate judgment of a Regional Trial Court
consent; shall be dismissed.

Remedy is Annulment of Judgment (R.47) Section 2. Modes of appeal. —

(e) An order of execution; (a) Ordinary appeal. — The appeal to

the Court of Appeals in cases decided by
(f) A judgment or final order for or against the Regional Trial Court in the exercise of
one or more of several parties or in separate its original jurisdiction shall be taken by
claims, counterclaims, cross-claims and third- filing a notice of appeal with the court
party complaints, while the main case is which rendered the judgment or final
pending, unless the court allows an appeal order appealed from and serving a copy
therefrom; and thereof upon the adverse party. No record
on appeal shall be required except in
(g) An order dismissing an action without special proceedings and other cases of
prejudice. multiple or separate appeals where law on
these Rules so require. In such cases, the
Remedy is to re-file the case. record on appeal shall be filed and served
in like manner.
In all the above instances where the
(b) Petition for review. — The appeal to
judgment or final order is not appealable, the
the Court of Appeals in cases decided by
aggrieved party may file an appropriate
the Regional Trial Court in the exercise of
special civil action under Rule 65. (n)
its appellate jurisdiction shall be by
petition for review in accordance with Rule
INTERLOCUTORY ORDER
42.
This refers to an order which does not dispose of
the case but leave something else to be done by the
trial court on the merits of the case. (c) Appeal by certiorari. — In all cases
where only questions of law are raised or
A judgment based on compromise is not appealable involved, the appeal shall be to the
and is immediately executory. Supreme Court by petition for review on
certiorari in accordance with the Rule 45.
This rule refers to appeals from the RTC exercising (n)
original jurisdiction. An appeal on pure question of
law CANNOT be taken to the CA and such improper
appeal will be dismissed pursuant to sec. 2 of Rule PETITION
50. FOR REVIEW
ORDINARY PETITION
APPEAL FOR ON
Interlocutory Order (2006) CERTIORARI
(appeal by REVIEW
What is an interlocutory order? (2%) aka APPEAL
SUGGESTED ANSWER: writ of error) (Rule 42)
BY
An interlocutory order refers to an order issued
CERTIORARI
between the commencement and the end of the suit
(Rule 45)
which is not a final decision of the whole controversy
Case is Case is
and leaves something more to be done on its merits
(Gallardo et al. v. People, G.R. No. 142030, April 21, 2005;
decided by the decided by
Investments Inc. v. Court of Appeals, G.R. No. 60036, RTC in its the RTC in The case
January 27, 1987 cited in Denso Phils, v. /AC, G.R. No. original the exercise raises only a
75000, Feb. 27, 1987). jurisdiction. of its question of
Appealed to appellate law. To the
Section 2. Dismissal of improper appeal to the Court the CA jurisdiction. SC
of Appeals. — An appeal under Rule 41 taken from Petition for

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 157

________________________________________________________________________________________________
review with petition for review on certiorari under
the CA Rule 45 of the Rules of Court. the period
File a notice of File a verified File a verified of appeal shall be five (5) working days
appeal or petition for petition for from the date of notice of the adverse
record on review with review on judgment, and the appeal may raise
appeal with the the CA. pay certiorari with questions of fact or law or both. (sec. 19,
court of origin docket fees. SC. Pay Rule on Writ of Amparo, A.M. No. 07-9-
and give a Furnish RTC docket fees. 12-SC, 25 September 2007).
copy to the and adverse Proof of
adverse party party with service to the (3) Judgment of MTC on a land registration
copy of such lower court case based on its delegated jurisdiction.
petition and adverse (1%) SUGGESTED ANSWER: The appeal
party should be filed with the Court of Appeals
Within 15 days by filing a Notice of Appeal within 15
from notice of days from notice of judgment or final
the judgment Within 15 Within 15 order appealed from. (Sec. 34, Batas
for notice of days from days from Pambansa Blg. 129, or the Judiciary
appeal and notice of the notice of the Reorganization Act of 1980, as amended
within 30 days decision to judgment or by Republic Act No. 7691, March 25,
for record on be reviewed order or denial 1994).
appeal. The or from the of MNT or MR
period for filing denial of (4) A decision of the Court of Tax Appeal's
is interrupted MNT or MR First Division. (1%) SUGGESTED ANSWER:
by a timely The decision of the Court of Tax Appeals
motion for Division may be appealed to the CTA en
reconsideration banc. The decisions of the Court of Tax
or new trial. Appeals are no longer appealable to the
Court of Appeals. Under the modified
appeal procedure, the decision of a
Appeal is the proper mode of review of a
division of the CTA may be appealed to
decision of the RTC in a special civil action
the CTA en banc. The decision of the
under Rule 65 (CPM).
CTA en banc may in turn be directly
A. By Notice of Appeal; or
appealed to the Supreme Court by way of
B. Petition for Review on Certiorari (Rule 45), if
a petition for review on certiorari under
only questions of law are raised.
Rule 45 on questions of law. (Section 11,
R.A. 9282, March 30, 2004).
This is so, because the decision of the RTC is in the
exercise of its ORIGINAL jurisdiction (San Pedro vs.
Leachon, CA-GR SP 60697, July 19, 2002). Appeals; Modes of Appeal (2009) No.VIII.
On July 15, 2009, Atty. Manananggol was
Appeals; Modes of Appeal (2012) served copies of numerous unfavorable
No.X.A. Where and how will you appeal the judgments and orders. On July 29, 2009,
following: (1) An order of execution issued by he filed motions for reconsideration which
the RTC. (1%) SUGGESTED ANSWER: A were denied. He received the notices of
petition for certiorari under Rule 65 before denial of the motions for reconsideration on
the Court of Appeals. ALTERNATIVE October 2, 2009, a Friday. He immediately
ANSWER: The mode of elevation may be informed his clients who, in turn, uniformly
either by appeal (writ of error or certiorari), instructed him to appeal. How, when and
or by a special civil action of certiorari, where should he pursue the appropriate
prohibition, or mandamus. (Banaga vs. remedy for each of the following:
Majaducon cited in General Milling (a) Judgment of a Municipal Trial Court
Corporation-Independent Labor Union vs. (MTC) pursuant to its delegated jurisdiction
General Milling Corporation, G.R. No. dismissing his client’s application for land
183122, June 15, 2011, Perez, J.). registration? SUGGESTED ANSWER: By
notice of appeal, within 15 days from
(2) Judgment of RTC denying a petition for Writ notice of judgment or final order
of Amparo. (1%) SUGGESTED ANSWER: Any appealed from, to the Court of Appeals;
party may appeal from the final judgment or
order to the Supreme Court by way of a

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(b) Judgment of the Regional Trial Court (RTC)
denying his client’s petition for a writ of habeas
data? SUGGESTED ANSWER:
By verified petition for review on certiorari
under Rule 45, with the modification that
appellant may raise questions of fact or law
or both, within 5 work days from date of
notice of the judgment or final order to the
Supreme Court (Sec. 19, A.M. No. 08-1-16-
SC).
(c) Order of a family court denying his client’s
petition for habeas corpus in relation to
custody of a minor child? SUGGESTED
ANSWER: By notice of appeal, within 48
hours from notice of judgment or final order
to the Court of appeals (Sec. 14, R.A. No.
8369 in relation to Sec. 3, Rule 41, Rules of
Court).
(d) Order of the RTC denying his client’s
petition for certiorari questioning the
Metropolitan Trial Court’s denial of a motion to
suspend criminal proceedings? SUGGESTED
ANSWER: By notice of appeal, within 15
days from notice of the final order, to the
Court of appeals (Majestrado vs. People, 527
SCRA 125 [2007]).
(e) Judgment of the First Division of the Court
of Tax Appeals affirming the RTC decision
convicting his client for violation of the
National Internal Revenue Code? SUGGESTED
ANSWER: By petition for review filed with
the court of Tax Appeals (CTA) en banc,
within 30 days from receipt of the decision
or ruling in question (Sec. 9 [b], Rule 9, Rev.
Rules of CTA). Appeals; Modes of Appeal;
RTC, CA (2009) No. XIX.A. Distinguish the
two modes of appeal from the judgment of the
Regional Trial Court to the Court of Appeals.
SUGGESTED ANSWER:
In cases decided by the Regional Trial
Courts in the exercise of their original
jurisdiction, appeals to the Court of Appeals
shall be ordinary appeal by filing written
notice of appeal indicating the parties to
the appeal; specifying the judgment/final
order or part thereof appealed from;
specifying the court to which the appeal is
being taken; and stating the material dates
showing the timeliness of the appeal. The
notice of appeal shall be filed with the RTC
which rendered the judgment appealed from
and copy thereof shall be served upon the
adverse party within 15 days from notice of
judgment or final order appealed from. But
if the case admits of multiple appeals or is a
special proceeding, a record on appeal is
required aside from the written notice of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
appeal to perfect the appeal, in which
case the period for appeal and notice
upon the adverse party is not only 15
days but 30 days from notice of
judgment or final order appealed from.
The full amount of the appellate court
docket fee and other lawful fees required
must also be paid within the period for
taking an appeal, to the clerk of the
court which rendered the judgment or
final order appealed from (Secs. 4 and 5,
Rule 41, Rules of Court). The periods of
15 or 30 days above-stated are non-
extendible. In cases decided by the
Regional Trial Court in the exercise of
its appellate jurisdiction, appeal to the
Court of Appeals shall be by filing a
verified petition for review with the
Court of Appeals and furnishing the RTC
and the adverse party with copy thereof,
within 15 days from notice of judgment
or final order appealed from. Within the
same period for appeal, the docket fee
and other lawful fees required with the
deposit for cost should be paid. The 15-
day period may be extended for 15 days
and another 15 days for compelling
reasons.
Section 3. Period of ordinary appeal. —
The appeal shall be taken within fifteen
(15) days from notice 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 thirty (30) days from notice
of the judgment or final order.
The period of appeal shall be interrupted
by a timely motion for new trial or
reconsideration. No motion for extension
of time to file a motion for new trial or
reconsideration shall be allowed. (n)
NOTE: In Habeas Corpus cases, the period to
appeal is only 48 hours from notice of judgment
or final order.
Section 4. Appellate court docket and
other lawful fees. — Within the period
for taking an appeal, the appellant shall
pay to the clerk of the court which
rendered the judgment or final order
appealed from, the full amount of the
appellate court docket and other lawful
fees. Proof of payment of said fees shall
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be transmitted to the appellate court together
with the original record or the record on
appeal. (n)
NOTE: Read together with Rule 40, sec. 5, Rule 42,
sec. 3, Rule 44, sec. 4 and Rule 50, sec. 1[c]
Section 5. Notice of appeal. — The notice of
appeal shall indicate the parties to the
appeal, specify the judgment or final order or
part thereof appealed from, specify the court
to which the appeal is being taken, and state
the material dates showing the timeliness of
the appeal. (4a)
 Error in designating the appellate court is not
fatal to appeal, provided that correction is made
within the 15-day period to appeal. In this case,
the notice of appeal was directed to the CA. The
appellant filed a motion to withdraw the appeal
and filing in its stead a notice of appeal to the
Sandiganbayan, on the 14th day (Moll vs.
Buban, L-136974, Aug. 27, 2002).
Appeals; Second Notice of Appeal (2008) No.XII. After
receiving the adverse decision rendered against his
client, the defendant, Atty. Sikat duly filed a notice of
appeal. For his part, the plaintiff timely filed a motion for
partial new trial to seek an increase in the monetary
damages awarded. The RTC instead rendered an
amended decision further reducing the monetary
awards. Is it necessary for Atty. Sikat to file a second
notice of appeal after receiving the amended decision?
SUGGESTED ANSWER: Yes, it is necessary for Atty. Sikat
to file a second notice of appeal after receiving the
amended decision. In Magdalena Estate vs. Caluag (11
SCRA 333 [1964]), the Court ruled that a party must re-
take an appeal within fifteen [15) days from receipt of
the amended ruling or decision, which stands in place
of the old decision. It is in effect, a new decision.
Section 6. Record on appeal; form and
contents thereof. — The full names of all
the parties to the proceedings shall be stated
in the caption of the record on appeal and it
shall include the judgment or final order from
which the appeal is taken and, in
chronological order, copies of only such
pleadings, petitions, motions and all
interlocutory orders as are related to the
appealed judgment or final order for the
proper understanding of the issue involved,
together with such data as will show that the
appeal was perfected on time. If an issue of
fact is to be raised on appeal, the record on
appeal shall include by reference all the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
evidence, testimonial and documentary,
taken upon the issue involved. The
reference shall specify the documentary
evidence by the exhibit numbers or letters
by which it was identified when admitted
or offered at the hearing, and the
testimonial evidence by the names of the
corresponding witnesses. If the whole
testimonial and documentary evidence in
the case is to be included, a statement to
that effect will be sufficient without
mentioning the names of the witnesses or
the numbers or letters of exhibits. Every
record on appeal exceeding twenty (20)
pages must contain a subject index. (6a)
Section 7. Approval of record on
appeal. — Upon the filing of the record on
appeal for approval and if no objection is
filed by the appellee within five (5) days
from receipt of a copy thereof, the trial
court may approve it as presented or
upon its own motion or at the instance of
the appellee, may direct its amendment
by the inclusion of any omitted matters
which are deemed essential to the
determination of the issue of law or fact
involved in the appeal. If the trial court
orders the amendment of the record, the
appellant, within the time limited in the
order, or such extension thereof as may
be granted, or if no time is fixed by the
order within ten (10) days from receipt
thereof, shall redraft the record by
including therein, in their proper
chronological sequence, such additional
matters as the court may have directed
him to incorporate, and shall thereupon
submit the redrafted record for approval,
upon notice to the appellee, in like
manner as the original draft. (7a)
Section 8. Joint record on appeal. —
Where both parties are appellants, they
may file a joint record on appeal within
the time fixed by section 3 of this Rule, or
that fixed by the court. (8a)
Section 9. Perfection of appeal; effect
thereof. — A party's appeal by notice of
appeal is deemed perfected as to him
upon the filing of the notice of appeal in
due time.
A party's appeal by record on appeal is
deemed perfected as to him with respect
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to the subject matter thereof upon the
approval of the record on appeal filed in due
time.
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.
In appeals by record on appeal, the court
loses jurisdiction only over the subject matter
thereof upon the approval of the records on
appeal filed in due time and the expiration of
the appeal of the other parties.
In either case, prior to the transmittal of
the original record or the record on appeal,
the court may issue orders for the protection
and preservation of the rights of the parties
which do not involve any matter litigated by
the appeal, approve compromises, permit
appeals of indigent litigants, order execution
pending appeal in accordance with 2 of Rule
39, and allow withdrawal of the appeal. (9a)
 See discussions on Rule 40, sec. 4
Remedies; Appeal; RTC to CA (1999)
When is an appeal from the RTC to the Court of
Appeals deemed perfected? (2%} XXX received a copy
of the RTC decision on June 9, 1999; YYY received it on
the next day, June 10, 1999. XXX filed a Notice of
Appeal on June 15, 1999. The parties entered into a
compromise on June 16, 1999. On June 13, 1999, YYY,
who did not appeal, filed with the RTC a motion for
approval of the Compromise Agreement. XXX changed
his mind and opposed the motion on the ground that the
RTC has no more jurisdiction. Rule on the motion
assuming that the records have not yet been forwarded
to the CA. (2%)
SUGGESTED ANSWER:
An appeal from the RTC to the Court of Appeals is
deemed perfected as to the appellant upon the filing of a
notice of appeal in the RTC in due time or within the
reglementary period of appeal. An appeal by record on
appeal is deemed perfected as to the appellant with
respect to the subject matter thereof upon the approval
of the record on appeal filed in due time. (Sec. 9, Rule 41)
The contention of XXX that the RTC has no more
jurisdiction over the case is not correct because at the
time that the motion to approve the compromise had
been filed, the period of appeal of YYY had not yet
expired. Besides,even if that period had already expired,
the records of the case had not yet been forwarded to
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the Court of Appeals. The rules provide that 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.
(Sec. 9, third par., Rule 41)
The rules also provide that prior to the transmittal of
the record, the court may, among others, approve
compromises. (Sec. 9, fifth par., Rule 41) (Note: June 13,
the date of the filing of the motion for approval of
the Compromise Agreement, appears to be a clerical
error)
Section 10. Duty of clerk of court of
the lower court upon perfection of
appeal. — Within thirty (30) days after
perfection of all the appeals in accordance
with the preceding section, it shall be the
duty of the clerk of court of the lower
court:
(a) To verify the correctness of the
original record or the record on appeal,
as the case may be aid to make
certification of its correctness;
(b) To verify the completeness of the
records that will be, transmitted to the
appellate court;
(c) If found to be incomplete, to take
such measures as may be required to
complete the records, availing of the
authority that he or the court may
exercise for this purpose; and
(d) To transmit the records to the
appellate court.
If the efforts to complete the records fail,
he shall indicate in his letter of transmittal
the exhibits or transcripts not included in
the records being transmitted to the
appellate court, the reasons for their non-
transmittal, and the steps taken or that
could be taken to have them available.
The clerk of court shall furnish the parties
with copies of his letter of transmittal of
the records to the appellate court. (10a)
Section 11. Transcript. — Upon the
perfection of the appeal, the clerk shall
immediately direct the stenographers
concerned to attach to the record of the
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case five (5) copies of the transcripts of the
testimonial evidence referred to in the record
on appeal. The stenographers concerned shall
transcribe such testimonial evidence and shall
prepare and affix to their transcripts an index
containing the names of the witnesses and
the pages wherein their testimonies are
found, and a list of the exhibits and the pages
wherein each of them appears to have been
offered and admitted or rejected by the trial
court. The transcripts shall be transmitted to
the clerk of the trial court who shall
thereupon arrange the same in the order in
which the witnesses testified at the trial, and
shall cause the pages to be numbered
consecutively. (12a)
Section 12. Transmittal. — The clerk of the
trial court shall transmit to the appellate
court the original record or the approved
record on appeal within thirty (30) days from
the perfection of the appeal, together with
the proof of payment of the appellate court
docket and other lawful fees, a certified true
copy of the minutes of the proceedings, the
order of approval, the certificate of
correctness, the original documentary
evidence referred to therein, and the original
and three (3) copies of the transcripts. Copies
of the transcripts and certified true copies of
the documentary evidence shall remain in the
lower court for the examination of the
parties. (11a)
Section 13. Dismissal of appeal. — Prior to
the transmittal of the original record or the
record on appeal to the appellate court, the
trial court may motu proprio or on motion
dismiss the appeal for having been taken out
of time. (14a)
Appeal may be dismissed, on motion or motu
proprio for:
1. Having filed out of time;
2. Non-payment of docket and other lawful
fees within the reglementary period.
The requirement regarding the perfection of the
appeal within the reglementary period is not only
mandatory but jurisdictional.
RULE 42
Petition for Review From the Regional
Trial Courts to the Court of Appeals
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 1. How appeal taken; time for
filing. — A party desiring to appeal from
a decision of the Regional Trial Court
rendered in the exercise of its appellate
jurisdiction may file a verified petition
for review with the Court of Appeals,
paying at the same time to the clerk of
said court the corresponding docket and
other lawful fees, depositing the amount
of P500.00 for costs, and furnishing the
Regional Trial Court and the adverse party
with a copy of the petition. The petition
shall be filed and served within fifteen
(15) days from notice of the decision
sought to be reviewed or of the denial of
petitioner's motion for new trial or
reconsideration filed in due time after
judgment. Upon proper motion and the
payment of the full amount of the docket
and other lawful fees and the deposit for
costs before the expiration of the
reglementary period, the Court of Appeals
may grant an additional period of fifteen
(15) days only within which to file the
petition for review. No further extension
shall be granted except for the most
compelling reason and in no case to
exceed fifteen (15) days. (n)
IMPORTANT NOTE: There is NO mode of
DIRECT APPEAL from the judgment rendered
by the RTC in the exercise of its appellate
jurisdiction to the SC even if only questions of
law are involved.
HOW TAKEN:
1. Filing a verified petition for review with
the CA;
Within 15 days from notice of decision;
Within 15 days from receipt of notice of
order denying MNT or MR.
2. Payment of docket and other lawful
fees.
3. Furnish the RTC and the adverse party
with a copy of the petition.
NOTE: Appeals to the CA from RTC under Rule
42 and 43 may be made on pure questions of
law.
Section 2. Form and contents. — The
petition shall be filed in seven (7) legible
copies, with the original copy intended for
the court being indicated as such by the
petitioner, and shall
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(a) state the full names of the parties to the
case, without impleading the lower courts or
judges thereof either as petitioners or
respondents;
(b) indicate the specific material dates
showing that it was filed on time;
(c) set forth concisely a statement of the
matters involved, the issues raised, the
specification of errors of fact or law, or both,
allegedly committed by the Regional Trial
Court, and the reasons or arguments relied
upon for the allowance of the appeal;
(d) be accompanied by clearly legible
duplicate originals or true copies of the
judgments or final orders of both lower
courts, certified correct by the clerk of court
of the Regional Trial Court, the requisite
number of plain copies thereof and of the
pleadings and other material portions of the
record as would support the allegations of the
petition.
The petitioner shall also submit together with
the petition a certification under oath that he
has not theretofore commenced any other
action involving the same issues in the
Supreme Court, the Court of Appeals or
different divisions thereof, or any other
tribunal or agency; if there is such other
action or proceeding, he must state the
status of the same; and if he should
thereafter learn that a similar action or
proceeding has been filed or is pending
before the Supreme Court, the Court of
Appeals, or different divisions thereof, or any
other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and
other tribunal or agency thereof within five
(5) days therefrom. (n)
Section 3. Effect of failure to comply with
requirements. — The failure of the
petitioner to comply with any of the foregoing
requirements regarding the payment of the
docket and other lawful fees, the deposit for
costs, proof of service of the petition, and the
contents of and the documents which should
accompany the petition shall be sufficient
ground for the dismissal thereof. (n)
Section 4. Action on the petition. — The
Court of Appeals may require the respondent
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
to file a comment on the petition, not a
motion to dismiss, within ten (10) days
from notice, or dismiss the petition if it
finds the same to be patently without
merit, prosecuted manifestly for delay, or
that the questions raised therein are too
insubstantial to require consideration. (n)
Section 5. Contents of comment. — The
comment of the respondent shall be filed
in seven (7) legible copies, accompanied
by certified true copies of such material
portions of the record referred to therein
together with other supporting papers and
shall
(a) state whether or not he accepts the
statement of matters involved in the
petition;
(b) point out such insufficiencies or
inaccuracies as he believes exist in
petitioner's statement of matters involved
but without repetition; and
(c) state the reasons why the petition
should not be given due course. A copy
thereof shall be served on the petitioner.
(a)
Section 6. Due course. — If upon the
filing of the comment or such other
pleadings as the court may allow or
require, or after the expiration of the
period for the filing thereof without such
comment or pleading having been
submitted, the Court of Appeals finds
prima facie that the lower court has
committed an error of fact or law that will
warrant a reversal or modification of the
appealed decision, it may accordingly give
due course to the petition. (n)
 Note that petition for review is not a
matter of right but is discretionary on
the CA.
Section 7. Elevation of record. —
Whenever the Court of Appeals deems it
necessary, it may order the clerk of court
of the Regional Trial Court to elevate the
original record of the case including the
oral and documentary evidence within
fifteen (15) days from notice. (n)
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Section 8. Perfection of appeal; effect
thereof. — (a) Upon the timely filing of a
petition for review and the payment of the
corresponding docket and other lawful fees,
the appeal is deemed perfected as to the
petitioner.
The Regional Trial 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.
However, before the Court of Appeals gives
due course to the petition, the Regional Trial
Court may issue orders for the protection and
preservation of the rights of the parties which
do not involve any matter litigated by the
appeal, approve compromises, permit
appeals of indigent litigants, order execution
pending appeal in accordance with section 2
of Rule 39, and allow withdrawal of the
appeal. (9a, R41)
(b) Except in civil cases decided under the
Rule on Summary Procedure, the appeal shall
stay the judgment or final order unless the
Court of Appeals, the law, or these Rules
shall provide otherwise. (a)
 NOTE: There is still residual power in
this Rule before CA gives due course
to the petition.
Section 9. Submission for decision. — If
the petition is given due course, the Court of
Appeals may set the case for oral argument
or require the parties to submit
memoranda within a period of fifteen (15)
days from notice. The case shall be deemed
submitted for decision upon the filing of the
last pleading or memorandum required by
these Rules or by the court itself. (n)
RULE 43
Appeals From the Court of Tax Appeals
and Quasi-Judicial Agencies to the Court
of Appeals
Section 1. Scope. — This Rule shall apply to
appeals from judgments or final orders of the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Court of Tax Appeals and from awards,
judgments, final orders or resolutions of
or authorized by any quasi-judicial agency
in the exercise of its quasi-judicial
functions. Among these agencies are the
Civil Service Commission, Central Board of
Assessment Appeals, Securities and
Exchange Commission, Office of the
President, Land Registration Authority,
Social Security Commission, Civil
Aeronautics Board, Bureau of Patents,
Trademarks and Technology Transfer,
National Electrification Administration,
Energy Regulatory Board, National
Telecommunications Commission,
Department of Agrarian Reform under
Republic Act No. 6657, Government
Service Insurance System, Employees
Compensation Commission, Agricultural
Invention Board, Insurance Commission,
Philippine Atomic Energy Commission,
Board of Investments, Construction
Industry Arbitration Commission, and
voluntary arbitrators authorized by law.
(n)
AGENCIES INCLUDED:
1. Civil Service Commission (CSC)
2. Securities and Exchange Commission
(SEC)
3. Office of the President (OP);
4. Land Registration Authority (LRA)
5. Social Security Commission (SSC);
6. Civil Aeronautics Board (CAB);
7. Bureau of Patents (BP);
8. Trademarks and Technology Transfer;
9. National Electrification Administration
(NEA);
10. Energy Regulatory Board (ERB);
11. National Telecommunications Commission
(NTC);
12. Department of Agrarian Reform (DAR);
13. GSIS;
14. Employees Compensation Commission
(ECC);
15. Agricultural Inventions Board (AIB);
16. Insurance Commissions (IC);
17. Philippine Atomic Energy Commission
(PAEC);
18. Board of Investments (BOI);
19. Construction Industry Arbitration
Commission (CIAC);
20. Voluntary Arbitrators authorized by law – art.
262, LC (VA)
NOTE: The Court of Tax Appeals is now co-
equal with the CA. A party adversely affected by
a decision or ruling of the CTA en banc may file
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with the Supreme Court a verified petition for review
on certiorari pursuant to Rule 45 (sec. 12,
RA 9282).
Certiorari; Mode of Certiorari (2006)
Explain each mode of certiorari:
1. As a mode of appeal from the Regional Trial Court
or the Court of Appeals to the Supreme Court. (2.5%)
SUGGESTED ANSWER:
Certiorari as a mode of appeal is governed by Rule 45 of
the Rules of Court which allows appeal from judgment,
final order of resolution of the Court of Appeals,
Sandiganbayan, the RTC or other courts whenever
authorized by law to the Supreme Court by verified
petition for review raising only questions of law
distinctly set forth.
2. As a special civil action from the Regional
Trial Court or the Court of Appeals to the Supreme
Court. (2.5%)
SUGGESTED ANSWER:
Certiorari as a Special Civil Action is governed by Rule
65 of the Rules of Court when an aggrieved party may
file a verified petition against a decision, final order or
resolution of a tribunal, body or board that has acted
without or in excess of its jurisdiction or grave abuse of
discretion amounting to lack or excess of jurisdiction,
when there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law.
3. As a mode of review of the decisions of the
National Labor Relations Commission and the
Constitutional Commissions. (2.5%)
SUGGESTED ANSWER:
Certiorari as a mode of review of the decision of the
NLRC is elevated to the Court of Appeals under Rule
65, as held in the case of St. Martin's Funeral Home v.
NLRC, G.R. No. 130866, September 16, 1998. Certiorari as
a mode of review from the Commission on Audit
(COA) and COMELEC is elevated to the Supreme
Court within 30 days from notice of the judgment,
decision or final order or resolution sought to be
reviewed, as provided for under the Rule 64 of the
1997 Rules of Civil Procedure. In the case of the Civil
Service Commission (CSC), review of its judgments is
through petitions for review under Sec. 5 of Rule 43 of
the 1997 Rules of Civil Procedure.
Decisions of the Central Board of Assessment and
Appeals is appealable with the CTA en banc.
Note: However, decisions of the CSC shall be
appealable by certiorari to the Court of Appeals
within 15 days from receipt of copy thereof. The
party adversely affected shall file a petition for
review on certiorari under Rule 45 of the Rules of
Court (SC Revised Administrative Circular 1-95,
June 1, 1995).
COMMENT: This is in effect modified by Rule
43, because the decision of the CSC is
appealable by way of petition for review under
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Rule 42 to the CA. nevertheless, the
decision of the CA may be appealed via
Petition for Review on Certiorari under Rule
45 to the SC raising only pure questions of
law.
Section 2. Cases not covered. — This
Rule shall not apply to judgments or final
orders issued under the Labor Code of the
Philippines. (n)
NOTE: Judgments and final orders of the NLRC
are reviewable by the Court of Appeals in an
original action for certiorari under Rule 65 (St.
Martin Funeral Homes vs. NLRC, Sept. 16,
1998).
Administrative orders, directives, or
decisions of Ombudsman.
Decision is immediately executory only if penalty
is public censure, reprimand, suspension of not
more than one month, or a fine not equivalent
(less than) one month of salary. If higher
penalties are imposed, decision is appealable to
the CA under Rule 43 by Petition for Review
(Fabian vs. Desierto).
Resolutions or final orders of the Ombudsman in
criminal cases cannot be appealed. Remedy of
the aggrieved party in connection with the said
resolutions or final orders is a petition for
certiorari direct with the SC. Doctrine of
hierarchy of courts does not apply because the
CA has no authority to issue the writ (Maturan
vs. P.,L-150353. July 27, 2004).
Jurisdiction; Ombudsman Case Decisions (2006)
Does the Court of Appeals have jurisdiction to
review
the Decisions in criminal and administrative cases of
the Ombudsman? (2.5%)
SUGGESTED ANSWER:
The Supreme Court has exclusive appellate jurisdiction
over decisions of the Ombudsman in criminal cases (Sec.
14,
R.A. 6770). In administrative and disciplinary cases,
appeals
from the Ombudsman must be taken to the Court of
Appeals under Rule 43
(Lanting v. Ombudsman, G.R. No. 141426, May 6, 2005;
Fabian v. Desierto, G.R. No. 129742, September 16, 1998;
Sec. 14, RA. 6770).
Section 3. Where to appeal. — An
appeal under this Rule may be taken to
the Court of Appeals within the period and
in the manner herein provided, whether
the appeal involves questions of fact, of
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law, or mixed questions of fact and law. (n)
Section 4. Period of appeal. — The appeal
shall be taken within fifteen (15) days from
notice of the award, judgment, final order or
resolution, or from the date of its last
publication, if publication is required by law
for its effectivity, or of the denial of
petitioner's motion for new trial or
reconsideration duly filed in accordance with
the governing law of the court or agency a
quo. Only one (1) motion for reconsideration
shall be allowed. Upon proper motion and the
payment of the full amount of the docket fee
before the expiration of the reglementary
period, the Court of Appeals may grant an
additional period of fifteen (15) days only
within which to file the petition for review. No
further extension shall be granted except for
the most compelling reason and in no case to
exceed fifteen (15) days. (n)
APPEAL PERIOD
15 days from:
1. Notice of award, judgment, final order or
resolution;
2. Date of publication, if publication is required
for its effectivity;
3. Denial of MNT or MR.
Section 5. How appeal taken. — Appeal
shall be taken by filing a verified petition
for review in seven (7) legible copies with
the Court of Appeals, with proof of service
of a copy thereof on the adverse party and
on the court or agency a quo. The original
copy of the petition intended for the Court of
Appeals shall be indicated as such by the
petitioner.
Upon the filing of the petition, the petitioner
shall pay to the clerk of court of the Court
of Appeals the docketing and other lawful
fees and deposit the sum of P500.00 for
costs. Exemption from payment of docketing
and other lawful fees and the deposit for
costs may be granted by the Court of Appeals
upon a verified motion setting forth valid
grounds therefor. If the Court of Appeals
denies the motion, the petitioner shall pay
the docketing and other lawful fees and
deposit for costs within fifteen (15) days from
notice of the denial. (n)
Section 6. Contents of the petition. — The
petition for review shall
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(a) state the full names of the parties to
the case, without impleading the court
or agencies either as petitioners or
respondents;
(b) contain a concise statement of the
facts and issues involved and the
grounds relied upon for the review;
(c) be accompanied by a clearly legible
duplicate original or a certified true copy
of the award, judgment, final order or
resolution appealed from, together with
certified true copies of such material
portions of the record referred to therein
and other supporting papers; and
(d) contain a sworn certification against
forum shopping as provided in the last
paragraph of section 2, Rule 42.
The petition shall state the specific
material dates showing that it was filed
within the period fixed herein. (2a)
CONTENTS OF PETITION: (clue words only)
1. Full names of parties;
2. Concise statement of facts and
issues/grounds relied upon;
3. Clearly legible duplicate originals/certified
true copy of judgment;
4. CAFS;
5. Material dates showing timeliness.
Section 7. Effect of failure to comply
with requirements. — The failure of the
petitioner to comply with any of the
foregoing requirements regarding the
payment of the docket and other lawful
fees, the deposit for costs, proof of service
of the petition, and the contents of and
the documents which should accompany
the petition shall be sufficient ground for
the dismissal thereof. (n)
Note: Under sec. 16, PD 946, an agricultural
tenant is entitled to the rights of a pauper and/or
an indigent litigant and to continue to enjoy such
status in the appellate courts until the case is
terminated. Dismissal of appeal on the sole
ground of non-payment of docket fees is NOT
ALLOWED. He is not even required to pay
docket fee (De Guzman vs. IAC, 169 SCRA
288).
Section 8. Action on the petition. — The
Court of Appeals may require the
respondent to file a comment on the
petition not a motion to dismiss, within
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ten (10) days from notice, or dismiss the
petition if it finds the same to be patently
without merit, prosecuted manifestly for
delay, or that the questions raised therein are
too unsubstantial to require consideration.
(6a)
Section 9. Contents of comment. — The
comment shall be filed within ten (10) days
from notice in seven (7) legible copies and
accompanied by clearly legible certified true
copies of such material portions of the record
referred to therein together with other
supporting papers. The comment shall:
(a) point out insufficiencies or
inaccuracies in petitioner's statement of
facts and issues; and
(b) state the reasons why the petition
should be denied or dismissed. A copy
thereof shall be served on the petitioner,
and proof of such service shall be filed
with the Court of Appeals. (9a)
Section 10. Due course. — If upon the filing
of the comment or such other pleadings or
documents as may be required or allowed by
the Court of Appeals or upon the expiration of
the period for the filing thereof, and on the
records the Court of Appeals finds prima facie
that the court or agency concerned has
committed errors of fact or law that would
warrant reversal or modification of the award,
judgment, final order or resolution sought to
be reviewed, it may give due course to the
petition; otherwise, it shall dismiss the same.
The findings of fact of the court or agency
concerned, when supported by substantial
evidence, shall be binding on the Court of
Appeals. (n)
 Note: The underlined portion is also known
as “substantial evidence rule”
Section 11. Transmittal of record. — Within
fifteen (15) days from notice that the petition
has been given due course, the Court of
Appeals may require the court or agency
concerned to transmit the original or a legible
certified true copy of the entire record of the
proceeding under review. The record to be
transmitted may be abridged by agreement
of all parties to the proceeding. The Court of
Appeals may require or permit subsequent
correction of or addition to the record. (8a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 12. Effect of appeal. — The
appeal shall not stay the award,
judgment, final order or resolution sought
to be reviewed unless the Court of
Appeals shall direct otherwise upon such
terms as it may deem just. (10a)
NOTE: As compared to Rule 42 (Petition for
Review from RTC- CA), sec. 8 [b] which
provides:
(b) Except in civil cases decided under the
Rule on Summary Procedure, the appeal shall
stay the judgment or final order unless the
Court of Appeals, the law, or these Rules shall
provide otherwise.
Bar Exam Question 2012
18. The Energy Regulatory Commission
(ERC) promulgates a decision increasing
electricity rates by 3%. KMU appeals the
decision by way of petition for review. The
appeal will therefore:
a. stay the execution of ERC decision.
b. shall not stay the ERC decision unless
the Court of Appeals directs otherwise.
c. stay the execution of the ERC decision
conditioned on KMU posting a bond.
d. shall not stay the ERC decision.
SUGGESTED ANSWER:
(b), KMU‟s appeal of the decision of the
Energy Regulations Commission shall
not stay the decision increasing the
electricity rates by 3%, unless the Court
of Appeals shall direct otherwise upon
such terms as it may deem just. (Rule
43, Sec. 12, Rules of Court).
Section 13. Submission for decision. — If
the petition is given due course, the Court
of Appeals may set the case for oral
argument or require the parties to submit
memoranda within a period of fifteen (15)
days from notice. The case shall be
deemed submitted for decision upon the
filing of the last pleading or memorandum
required by these Rules or by the court of
Appeals. (n)
Procedure in the Court of Appeals
RULE 44
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Ordinary Appealed Cases
IMPORTANT: This Rule 44 should be taken
together with Rule 41.
Section 1. Title of cases. — In all cases
appealed to the Court of Appeals under Rule
41, the title of the case shall remain as it was
in the court of origin, but the party appealing
the case shall be further referred to as the
appellant and the adverse party as the
appellee. (1a, R46)
Section 2. Counsel and guardians. — The
counsel and guardians ad litem of the parties
in the court of origin shall be respectively
considered as their counsel and guardians ad
litem in the Court of Appeals. When others
appear or are appointed, notice thereof shall
be served immediately on the adverse party
and filed with the court. (2a, R46)
Section 3. Order of transmittal of record.
— If the original record or the record on
appeal is not transmitted to the Court of
Appeals within thirty (30) days after the
perfection of the appeal, either party may file
a motion with the trial court, with notice to
the other, for the transmittal of such record
or record on appeal. (3a, R46)
Section 4. Docketing of case. — Upon
receiving the original record or the record on
appeal and the accompanying documents and
exhibits transmitted by the lower court, as
well as the proof of payment of the docket
and other lawful fees, the clerk of court of the
Court of Appeals shall docket the case and
notify the parties thereof. (4a, R46)
Within ten (10) days from receipt of said
notice, the appellant, in appeals by record on
appeal, shall file with the clerk of court seven
(7) clearly legible copies of the approved
record on appeal, together with the proof of
service of two (2) copies thereof upon the
appellee.
Any unauthorized alteration, omission or
addition in the approved record on appeal
shall be a ground for dismissal of the appeal.
(n)
 Note: Connect to Rule 50, sec. 1[d].
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 5. Completion of record. —
Where the record of the docketed case is
incomplete, the clerk of court of the Court
of Appeals shall so inform said court and
recommend to it measures necessary to
complete the record. It shall be the duty
of said court to take appropriate action
towards the completion of the record
within the shortest possible time. (n)
 Note: Connect this section to sec.1[g] of
Rule 50.
Section 6. Dispensing with complete
record. — Where the completion of the
record could not be accomplished within a
sufficient period allotted for said purpose
due to insuperable or extremely difficult
causes, the court, on its own motion or on
motion of any of the parties, may declare
that the record and its accompanying
transcripts and exhibits so far available
are sufficient to decide the issues raised in
the appeal, and shall issue an order
explaining the reasons for such
declaration. (n)
Section 7. Appellant's brief. — It shall
be the duty of the appellant to file with
the court, within forty-five (45) days
from receipt of the notice of the clerk that
all the evidence, oral and documentary,
are attached to the record, seven (7)
copies of his legibly typewritten,
mimeographed or printed brief, with
proof of service of two (2) copies
thereof upon the appellee. (10a, R46)
Failure to file appellant’s brief on time is
a ground for the dismissal of the appeal
(Rule 50, sec. 1[e]).
If a motion to dismiss an appeal is filed, it
suspends the running of the period for filing the
appellant’s brief, as the same would not be
necessary should the motion be granted.
The failure of the appellant to make
specific assignment of errors in his brief
or page references to the record as
required in this section is a ground for
the dismissal of his appeal (Rule 50,
sec. 1[f]).
Section 8. Appellee's brief. — Within
forty-five (45) days from receipt of the
appellant's brief, the appellee shall file
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with the court seven (7) copies of his legibly
typewritten, mimeographed or printed brief,
with proof of service of two (2) copies
thereof upon the appellant. (11a, R46)
Section 9. Appellant's reply brief. — Within
twenty (20) days from receipt of the
appellee's brief, the appellant may file a reply
brief answering points in the appellee's brief
not covered in his main brief. (12a, R46)
Section 10. Time of filing memoranda in
special cases. — In certiorari, prohibition,
mandamus, quo warranto and habeas corpus
cases, the parties shall file in lieu of briefs,
their respective memoranda within a non-
extendible period of thirty (30) days from
receipt of the notice issued by the clerk that
all the evidence, oral and documentary, is
already attached to the record. (13a, R46)
The failure of the appellant to file his
memorandum within the period therefor may
be a ground for dismissal of the appeal. (n)
 See also Rule 50, sec. 1[e].
Section 11. Several appellants or
appellees or several counsel for each
party. — Where there are several appellants
or appellees, each counsel representing one
or more but not all of them shall be served
with only one copy of the briefs. When
several counsel represent one appellant or
appellee, copies of the brief may be served
upon any of them. (14a, R46)
Section 12. Extension of time for filing
briefs. — Extension of time for the filing of
briefs will not be allowed, except for good
and sufficient cause, and only if the motion
for extension is filed before the expiration of
the time sought to be extended. (15, R46)
Section 13. Contents of appellant's brief.
— The appellant's brief shall contain, in the
order herein indicated, the following:
(a) A subject index of the matter in the brief
with a digest of the arguments and page
references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the pages
where they are cited;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(b) An assignment of errors intended to
be urged, which errors shall be separately,
distinctly and concisely stated without
repetition and numbered consecutively;
(c) Under the heading "Statement of the
Case," a clear and concise statement of
the nature of the action, a summary of the
proceedings, the appealed rulings and
orders of the court, the nature of the
judgment and any other matters
necessary to an understanding of the
nature of the controversy with page
references to the record;
(d) Under the heading "Statement of
Facts," a clear and concise statement in a
narrative form of the facts admitted by
both parties and of those in controversy,
together with the substance of the proof
relating thereto in sufficient detail to make
it clearly intelligible, with page references
to the record;
(e) A clear and concise statement of the
issues of fact or law to be submitted, to
the court for its judgment;
(f) Under the heading "Argument," the
appellant's arguments on each assignment
of error with page references to the
record. The authorities relied upon shall
be cited by the page of the report at which
the case begins and the page of the report
on which the citation is found;
(g) Under the heading "Relief," a
specification of the order or judgment
which the appellant seeks; and
(h) In cases not brought up by record on
appeal, the appellant's brief shall contain,
as an appendix, a copy of the judgment or
final order appealed from. (16a, R46)
Section 14. Contents of appellee's
brief. — The appellee's brief shall contain,
in the order herein indicated the following:
(a) A subject index of the matter in the
brief with a digest of the arguments and
page references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the pages
where they are cited;
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(b) Under the heading "Statement of Facts,"
the appellee shall state that he accepts the
statement of facts in the appellant's brief, or
under the heading "Counter-Statement of
Facts," he shall point out such insufficiencies
or inaccuracies as he believes exist in the
appellant's statement of facts with references
to the pages of the record in support thereof,
but without repetition of matters in the
appellant's statement of facts; and
(c) Under the heading "Argument," the
appellee shall set forth his arguments in the
case on each assignment of error with page
references to the record. The authorities
relied on shall be cited by the page of the
report at which the case begins and the page
of the report on which the citation is found.
(17a, R46)
BRIEF MEMORANDUM
Ordinary Certiorari, prohibition,
appeals mandamus, quo warranto
and habeas corpus cases
Filed within 45 Within 30 days
days
Shorter, briefer, only one
issue involved, no subject
Contents index or assignment of
specified by the errors, just facts and law
Rules applicable
Section 15. Questions that may be raised
on appeal. — Whether or not the appellant
has filed a motion for new trial in the court
below he may include in his assignment of
errors any question of law or fact that has
been raised in the court below and which is
within the issues framed by the parties. (18,
R46)
RULE 45
Appeal by Certiorari to the Supreme
Court
COMMENT: This Rule 45 should have been
provided in a separate Rule number. Starting from
Rule 41 up to Rule 44, and again from Rule 46 up to
Rule 55, the Rules are generally devoted to the
actions and procedures of cases in the Court of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Appeals. Procedures in the Supreme Court are
found in Rule 56.
NOTE: on some occasions, Petitions for Review
on Certiorari , are treated as Petition for
Certiorari when it substantially recited the
requirements of Rule 65 (Pahila-Garido vs.
Tortogo, GR No. 156358, Aug. 17, 2011).
RTC, Sandiganbayan, CTA en
banc, or CA renders decision
Any party files a petition for
review on certiorari within 15
days from notice of final
judgment or order of the lower
court or notice of denial of MNT
or MR
Appellant serves copies of
petition on adverse parties and
to the lower court and pay the
corresponding docket fees
SC may dismiss the petition or
require the appellee to
comment
If given due course, parties may
submit memoranda
SC may affirm, reverse, or
modify the judgment of the
lower court
Section 1. Filing of petition with
Supreme Court. — A party desiring to
appeal by certiorari from a judgment or
final order or resolution of the Court of
Appeals, the Sandiganbayan, the Regional
Trial Court or other courts whenever
authorized by law, may file with the
Supreme Court a verified petition for
review on certiorari. The petition shall
raise only questions of law which must be
distinctly set forth. (1a, 2a)
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GR: The findings of fact of the CA are final and Gen. Principles; Questions of Law vs. Questions of
conclusive and cannot be reviewed on appeal to the Fact (2004)
SC. Distinguish Questions of law from Questions of
fact.
EXCEPTIONS: SUGGESTED ANSWER:
1. When the finding is grounded entirely on A QUESTION OF LAW is when the doubt or
speculations, surmise or conjecture; difference arises as to what the law is on a certain set
2. When inference is manifestly absurd, mistaken, of facts, while a QUESTION OF FACT is when the
or impossible; doubt or difference arises as to the truth or
3. When judgment is based on misrepresentation falsehood of alleged facts. (Ramos v. Pepsi-Cola
of facts; Bottling Co., 19 SCRA 289, [19670]).
4. When there is grave abuse of discretion in the
appreciation of facts’ Witness; Competency of the Witness vs. Credibility of
5. When findings of facts are conflicting; the Witness (2004)
6. When the CA in making its findings went Distinguish Competency of the witness and redibility
beyond the issues of the case and the same is of the witness.
contrary to both the admissions of the SUGGESTED ANSWER:
appellants and appellees; Competency of the witness refers to a witness who
7. When the findings of facts of the CA are at can perceive, and perceiving, can make known his
variance with those of the trial court, the SC has perception to others (Sec. 20 of Rule 130), while
to review the evidence in order to arrive at the credibility of the witness refers to a witness whose
correct findings based on the record; testimony is believable.
8. When the findings of fact are conclusions
without citation of specific evidence on which Mixed Questions of Law and Facts [Brandeis
they are based; Doctrine of Assimilation of Facts]:
9. When the facts set forth in the petition as well Where what purports to be a finding upon a
as in the petitioner’s main and reply briefs are question of fact is so involved with and
not disputed by the respondents; dependent upon a question of law as to be in
10. The findings of fact of the CA is premised on the substance and effect a decision of the latter, the
supposed evidence and is contradicted by Court will, in order to decide the legal question,
evidence on record; examine the entire record including the evidence
11. When certain material facts and circumstances if necessary.
have been overlooked by the trial court which, if
taken into account, would alter the result of the Certiorari; Mode of Certiorari (2006)
case in that they would entitle the accused to Explain each mode of certiorari:
acquittal. 1. As a mode of appeal from the Regional Trial
Court or the Court of Appeals to the Supreme
Questions of Law Questions of Fact Court. (2.5%)
SUGGESTED ANSWER:
Doubt or difference as
Certiorari as a mode of appeal is governed by Rule
Doubt as to what the to the truth or falsehood
law is on certain facts of facts, or as to
45 of the Rules of Court which allows appeal from
probative value of judgment, final order of resolution of the Court of
evidence presented Appeals, Sandiganbayan, the RTC or other courts
No need to evaluate the Needs evaluation of whenever authorized by law to the Supreme Court
evidence evidence by verified petition for review raising only questions
The query involves the of law distinctly set forth.
calibration of the whole 2. As a special civil action from the Regional
Can involve questions evidence considering Trial Court or the Court of Appeals to the Supreme
Court. (2.5%)
of interpretation of the mainly the credibility of SUGGESTED ANSWER:
law with respect to witnesses, existence Certiorari as a Special Civil Action is governed by
certain set of facts and relevancy of Rule 65 of the Rules of Court when an aggrieved
specific surrounding party may file a verified petition against a decision,
circumstances and
final order or resolution of a tribunal, body or board
relation to each other
that has acted without or in excess of its jurisdiction
and the whole
or grave abuse of discretion amounting to lack or
probabilities of the
excess of jurisdiction, when there is no appeal or any
situation
other plain, speedy and adequate remedy in the
ordinary course of law.
3. As a mode of review of the decisions of the

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________________________________________________________________________________________________
National Labor Relations Commission and the a TRO is issued
Constitutional Commissions. (2.5%) The petitioner and the The parties are the
SUGGESTED ANSWER: respondent are the aggrieved party, the
Certiorari as a mode of review of the decision of the original parties to the lower court or quasi-
NLRC is elevated to the Court of Appeals under Rule action, and the lower judicial agency and the
65, as held in the case of St. Martin's Funeral Home v. court or quasi-judicial prevailing party
NLRC, G.R. No. 130866, September 16, 1998. Certiorari as agency is not
a mode of review from the Commission on Audit impleaded
(COA) and COMELEC is elevated to the Supreme Motion for
Court within 30 days from notice of the judgment, reconsideration or for
decision or final order or resolution sought to be new trial is required. If
reviewed, as provided for under the Rule 64 of the Motion for MR or MNT is filed, the
1997 Rules of Civil Procedure. In the case of the Civil reconsideration is not period shall not only be
Service Commission (CSC), review of its judgments is required – Neypes Rule interrupted but another
through petitions for review under Sec. 5 of Rule 43 of applies 60 days shall be given
the 1997 Rules of Civil Procedure. to the petitioner (SC
Administrative Matter
02-03)
Section 2. Time for filing; extension. — The court is in the Court exercises original
The petition shall be filed within fifteen (15) exercise of its appellate jurisdiction
days from notice of the judgment or final jurisdiction and power
order or resolution appealed from, or of the of review
denial of the petitioner's motion for new trial Filed in SC only Filed in the RTC, CA,
SC
or reconsideration filed in due time after
notice of the judgment. On motion duly filed
and served, with full payment of the docket
Remedies; Appeal; Rule 45 vs. Rule 65 (1999)
and other lawful fees and the deposit for a) Distinguish a petition for certiorari as a mode of
costs before the expiration of the appeal from a special civil action for certiorari. (2%)
reglementary period, the Supreme Court may b) May a party resort to certiorari when appeal is still
for justifiable reasons grant an extension of available? Explain. (2%)
thirty (30) days only within which to file the SUGGESTED ANSWER:
petition. (1a, 5a) a. A PETITION FOR REVIEW ON
CERTIORARI as a mode of appeal may be
CERTIORARI UNDER CERTIORARI UNDER distinguished from a special civil action for certiorari
RULE 45 RULE 65 in that the petition for certiorari as a mode of appeal
Petition raises the issue is governed by Rule 45 and is filed from a judgment
as to whether the lower or final order of the RTC, the Sandiganbayan or the
Petition based on court acted without Court of Appeals, within fifteen (15) days from
questions of law jurisdiction or in excess notice of the judgment appealed from or of the
of jurisdiction or with denial of the motion for new trial or reconsideration
grave abuse of filed in due time on questions of law only (Secs. 1 and
discretion 2); SPECIAL CIVIL ACTION FOR CERTIORARI
Mode of appeal An original action is governed by Rule 65 and is filed to annul or
Directed against an modify judgments, orders or resolutions rendered or
Involves the review of interlocutory order of issued without or in excess of jurisdiction or with
the judgment or final the court or where there grave abuse of discretion tantamount to lack or
order on the merits is no appeal or any excess of jurisdiction, when there is no appeal nor
other plain, speedy or any plain, speedy and adequate remedy in the
adequate remedy ordinary course of law, to be filed within sixty (60)
Filed within the Filed not later than 60 days from notice of the judgment, order or
reglementary period (15 days from notice of resolution subject of the petition. (Secs. 1 and 4.)
days) judgment, order or ADDITIONAL ANSWER:
resolution appealed 1) In appeal by certiorari under Rule 45, the
from petitioner and respondent are the original parties to
Does not stay the the action and the lower court is not impleaded. In
Stays the judgment challenged proceeding certiorari, under Rule 65, the lower court is
appealed from unless a writ of impleaded.
preliminary injunction or 2) In appeal by certiorari, the filing of a motion for

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________________________________________________________________________________________________
reconsideration is not required, while in the special
civil action of certiorari, such a motion is generally
required.
SUGGESTED ANSWER:
b. NO, because as a general rule, certiorari is proper if
there is no appeal (Sec. 1 of Rule 65.) However, if appeal is
not a speedy and adequate remedy, certiorari may be
resorted to. (Echaus v. Court of Appeals, 199 SCRA 381.)
Certiorari is sanctioned, even if appeal is available, on the
basis of a patent, capricious and whimsical exercise of
discretion by a trial judge as when an appeal will not
promptly relieve petitioner from the injurious effects of
the disputed order (Vasquez vs. Robilla-Alenio, 271 SCRA
67)
Certiorari; Rule 45 vs. Rule 65 (2008)
No.XXI.A. Compare the certiorari jurisdiction of
the Supreme Court under the Constitution
with that under Rule 65 of the Rules of Civil
Procedure? SUGGESTED ANSWER:
The certiorari jurisdiction of the Supreme
Court under the Constitution is the mode
by which the Court exercises its expanded
jurisdiction, allowing it to take corrective
action through the exercise of its judicial
power. Constitutional certiorari jurisdiction
applies even if the decision was not
rendered by a judicial or quasi-judicial body,
hence, it is broader than the writ of
certiorari under Rule 65, which is limited to
cases involving a grave abuse of discretion
amounting to lack or excess of jurisdiction
on the part of any branch or
instrumentality of the government and
there is no other claim speedy remedy
available to a party in the ordinary course
of law.
Certiorari; Rule 45 vs. Rule 65 (1998)
Differentiate certiorari as an original action from
certiorari as a mode of appeal. |3%]
SUGGESTED ANSWER:
Certiorari as an original action and certiorari as a mode
of appeal may be distinguished as follows:
1. The first is a special civil action under Rule
65 of the Rules of Court, while the second is an appeal
to the Supreme Court from the Court of Appeals,
Sandiganbayan and the RTC under Rule 45.
1 The first can be filed only on the grounds of lack or
excess of jurisdiction or grave abuse of discretion
tantamount
to lack or excess of jurisdiction, while the second is
based on
the errors of law of the lower court.
2 The first should be filed within sixty (60) days from
notice of the judgment, order or resolution sought to be
assailed (Sec. 4. Rule 65), while the second should be filed
within fifteen (15) days from notice of the judgment or
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
final order or resolution appealed from, or of the
denial of the petitioner's motion for new trial or
reconsideration filed in due time after notice of the
judgment. (Sec. 2, Rule 45)
3 The first cannot generally be availed of as a
substitute
for a lost appeal under Rules 40, 41, 42, 43 and 45.
4 Under the first, the lower court is impleaded as a
party
respondent (Sec. 5 of Rule 65), while under the second,
the lower court is not imp leaded. (Sec. 4 of Rule of 45)
Certiorari; Rule 45 vs. Rule 65 (2005)
May the aggrieved party file a petition for certiorari
in
the Supreme Court under Rule 65 of the 1997 Rules
of
Civil Procedure, instead of filing a petition for
review
on certiorari under Rule 45 thereof for the
nullification
of a decision of the Court of Appeals in the exercise
either of its original or appellate jurisdiction?
Explain.
SUGGESTED ANSWER:
To NULLIFY A DECISION of the Court of
Appeals
the aggrieved party should file a PETITION FOR
REVIEW ON CERTIORARI in the Supreme Court
under Rule 45 of the Rules of Court instead of filing
a
petition for certiorari under Rule 65 except under
very
exceptional circumstances. A long line of decisions
of
the Supreme Court, too numerous to mention, holds
that certiorari is not a substitute for a lost appeal. It
should be noted, however, when the Court of
Appeals
imposes the death penalty, or a lesser penalty for
offenses committed on such occasion, appeal by
petition for review or ordinary appeal. In cases when
the Court of Appeals imposes reclusion perpetua,
life
imprisonment or a lesser penalty, appeal is by notice
of
appeal filed with the Court of Appeals.
IMPORTANT: The general rule is that Rule 45
covers only pure questions of law.
The exceptions however are:
1. Sec. 19 of The Rule on The Writ of Amparo;
2. Sec. 19 of The Rule on The Writ of Habeas
Data;
3. Sec. 16, Rule 7, Rules of Procedure in
Environmental Cases.
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On the cited sections, the appeal may raise
questions of fact or law or both. The
period to appeal is only within 5 working
days from date of notice of adverse
judgment except no. 3 which is 15 days.
4. When there are contradictory findings of the
RTC and the CA (Asia Brewery, Inc. vs. CA, L-
103543, July 5, 1993; Mcdonald’s Corp vs. L.C.
Big Mak Burger, L-143993, Aug. 18, 2004).
Section 3. Docket and other lawful fees;
proof of service of petition. — Unless he
has theretofore done so, the petitioner shall
pay the corresponding docket and other
lawful fees to the clerk of court of the
Supreme Court and deposit the amount of
P500.00 for costs at the time of the filing of
the petition. Proof of service of a copy,
thereof on the lower court concerned and on
the adverse party shall be submitted together
with the petition. (1a)
Section 4. Contents of petition. — The
petition shall be filed in eighteen (18) copies,
with the original copy intended for the court
being indicated as such by the petitioner and
shall:
(a) state the full name of the appealing
party as the petitioner and the adverse party
as respondent, without impleading the lower
courts or judges thereof either as petitioners
or respondents;
(b) indicate the material dates showing
when notice of the judgment or final order or
resolution subject thereof was received, when
a motion for new trial or reconsideration, if
any, was filed and when notice of the denial
thereof was received;
(c) set forth concisely a statement of the
matters involved, and the reasons or
arguments relied on for the allowance of the
petition;
(d) be accompanied by a clearly legible
duplicate original, or a certified true copy
of the judgment or final order or resolution
certified by the clerk of court of the court a
quo and the requisite number of plain copies
thereof, and such material portions of the
record as would support the petition; and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(e) contain a sworn certification against
forum shopping as provided in the last
paragraph of section 2, Rule 42. (2a)
Section 5. Dismissal or denial of
petition. — The failure of the petitioner to
comply with any of the foregoing
requirements regarding the payment of
the docket and other lawful fees, deposit
for costs, proof of service of the petition,
and the contents of and the documents
which should accompany the petition shall
be sufficient ground for the dismissal
thereof.
The Supreme Court may on its own
initiative deny the petition on the ground
that the appeal is without merit, or is
prosecuted manifestly for delay, or that
the questions raised therein are too
unsubstantial to require consideration.
(3a)
GROUNDS FOR DISMISSAL OR DENIAL:
1. Failure to pay docket and other lawful fees
and deposit for costs;
2. Absence of Proof of service;
3. Failure to comply with the form and contents
of petition;
4. Appeal is without merit;
5. Prosecuted merely for delay;
6. Questions raised are too unsubstantial to
merit consideration.
Section 6. Review discretionary. — A
review is not a matter of right, but of
sound judicial discretion, and will be
granted only when there are special and
important reasons thereof. The following,
while neither controlling nor fully
measuring the court's discretion, indicate
the character of the reasons which will be
considered:
(a) When the court a quo has decided a
question of substance, not theretofore
determined by the Supreme Court, or has
decided it in a way probably not in accord
with law or with the applicable decisions of
the Supreme Court; or
(b) When the court a quo has so far
departed from the accepted and usual
course of judicial proceedings, or so far
sanctioned such departure by a lower
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court, as to call for an exercise of the power
of supervision. (4a)
Section 7. Pleadings and documents that
may be required; sanctions. — For
purposes of determining whether the petition
should be dismissed or denied pursuant to
section 5 of this Rule, or where the petition is
given due course under section 8 hereof, the
Supreme Court may require or allow the filing
of such pleadings, briefs, memoranda or
documents as it may deem necessary within
such periods and under such conditions as it
may consider appropriate, and impose the
corresponding sanctions in case of non-filing
or unauthorized filing of such pleadings and
documents or non-compliance with the
conditions therefor. (n)
Section 8. Due course; elevation of
records. — If the petition is given due
course, the Supreme Court may require the
elevation of the complete record of the case
or specified parts thereof within fifteen (15)
days from notice. (2a)
Section 9. Rule applicable to both civil
and criminal cases. — The mode of appeal
prescribed in this Rule shall be applicable to
both civil and criminal cases, except in
criminal cases where the penalty imposed is
death, reclusion perpetua or life
imprisonment. (n)
As connected to Rule 122, sec. 3[e]:
“Except as provided in the last paragraph of
section 13, Rule 124, all other appeals to the
Supreme Court shall be by petition for review on
certiorari under Rules 45”.
Rule 124, sec. 13[last par.].
Whenever the Court of Appeals finds that the penalty of
death, reclusion perpetua, or life imprisonment should be
imposed in a case, the court, after discussion of the
evidence and the law involved, shall render judgment
imposing the penalty of death, reclusion perpetua, or life
imprisonment as the circumstances warrant. However, it
shall refrain from entering the judgment and forthwith
certify the case and elevate the entire record thereof to
the Supreme Court for review.
RULE 46
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Original Cases
Note: Original Cases in the Court of Appeals.
Section 1. Title of cases. — In all cases
originally filed in the Court of Appeals, the
party instituting the action shall be called
the petitioner and the opposing party the
respondent. (1a)
Section 2. To what actions applicable.
— This Rule shall apply to original actions
for certiorari, prohibition, mandamus and
quo warranto.
Except as otherwise provided, the actions
for annulment of judgment shall be
governed by Rule 47, for certiorari,
prohibition and mandamus by Rule 65,
and for quo warranto by Rule 66. (n)
NOTE: Habeas corpus is excluded, being
governed by the Rules on Special
Proceedings.
Section 3. Contents and filing of
petition; effect of noncompliance with
requirements. — The petition shall
contain the full names and actual
addresses of all the petitioners and
respondents, a concise statement of the
matters involved, the factual background
of the case, and the grounds relied upon
for the relief prayed for.
In actions filed under Rule 65, the petition
shall further indicate the material dates
showing when notice of the judgment or
final order or resolution subject thereof
was received, when a motion for new trial
or reconsideration, if any, was filed and
when notice of the denial thereof was
received.
It shall be filed in seven (7) clearly legible
copies together with proof of service
thereof on the respondent with the
original copy intended for the court
indicated as such by the petitioner, and
shall be accompanied by a clearly legible
duplicate original or certified true copy of
the judgment, order, resolution, or ruling
subject thereof, such material portions of
the record as are referred to therein, and
other documents relevant or pertinent
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thereto. The certification shall be
accomplished by the proper clerk of court or
by his duly authorized representative, or by
the proper officer of the court, tribunal,
agency or office involved or by his duly
authorized representative. The other requisite
number of copies of the petition shall be
accompanied by clearly legible plain copies of
all documents attached to the original.
The petitioner shall also submit together with
the petition a sworn certification that he has
not theretofore commenced any other action
involving the same issues in the Supreme
Court, the Court of Appeals or different
divisions thereof, or any other tribunal or
agency; if there is such other action or
proceeding, he must state the status of the
same; and if he should thereafter learn that a
similar action or proceeding has been filed or
is pending before the Supreme Court, the
Court of Appeals, or different divisions
thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof
within five (5) days therefrom.
The petitioner shall pay the corresponding
docket and other lawful fees to the clerk of
court and deposit the amount of P500.00 for
costs at the time of the filing of the petition.
The failure of the petitioner to comply any of
the requirements shall be sufficient ground
for the dismissal of the petition. (n; Bar
Matter No. 803, 21 July 1998)
CONTENTS OF PETITION: (clue words)
1. Full names and actual addresses of parties;
2. Concise statement of matters involved;
3. Factual background of case;
4. Grounds relied/reliefs prayed;
5. If under Rule 65, material dates when notice of
judgment was received;
6. Seven legible copies, with proof of service;
7. Accompanied by legible duplicate
original/certified true copy of judgment
/order/resolution;
8. CAFS;
9. Payment of docket/other lawful fees;
10. Deposit for costs.
Section 4. Jurisdiction over person of
respondent, how acquired. — The court
shall acquire jurisdiction over the person of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the respondent by the service on him of
its order or resolution indicating its initial
action on the petition or by his voluntary
submission to such jurisdiction. (n)
Bar Exam Question 2013
XV. In an original action for certiorari,
prohibition, mandamus, or quo warranto ,
when does the Court of Appeals acquire
jurisdiction over the person of the
respondent? (1%)
(A) Upon the service on the respondent of
the petition for certiorari, prohibition,
mandamus or quo warranto, and his
voluntary submission to the jurisdiction of
the Court of Appeals. (B) Upon service on
the respondent of the summons from the
Court of Appeals. (C) Upon the service on
the respondent of the order or resolution
of the Court of Appeals indicating its
initial action on the petition. (D) By
respondent‟s voluntary submission to
the jurisdiction of the Court of Appeals.
(E) Under any of the above modes.
SUGGESTED ANSWER: (C) and (D), Under
Section 4, Rule 46 of the Revised Rules
of Civil Procedure, the court shall
acquire jurisdiction over the person of
the respondent by the service on him of
its order or resolution indicating its
initial action on the petition or by his
voluntary submission to such
jurisdiction. (n)
JURISDICTION IS ACQUIRED
 Over the Petitioner—by filing the petition.
 Over the Respondent:
1. Service of the order or resolution
indicating court’s initial action on
petition; or
2. Voluntary submission
Section 5. Action by the court. — The
court may dismiss the petition outright
with specific reasons for such dismissal or
require the respondent to file a comment
on the same within ten (10) days from
notice. Only pleadings required by the
court shall be allowed. All other pleadings
and papers, may be filed only with leave
of court. (n)
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PROCEDURAL OUTLINE (Original cases in Court
of Appeals)
1. Filing of the petition;
2. Order to acquire jurisdiction over respondents or
outright dismissal for failure to comply with
requirements as to form and payment of
docket/other lawful fees;
3. Require respondents to file Comment within 10
days from notice;
4. Court may require the filing of a Reply or such
other pleadings as it may deem necessary;
5. Determination of the factual issues. The court
itself may conduct hearings or delegate the
reception of evidence on such issues to any
members or to an appropriate court, agency or
office.
Section 6. Determination of factual
issues. — Whenever necessary to resolve
factual issues, the court itself may conduct
hearings thereon or delegate the reception of
the evidence on such issue to any of its
members or to an appropriate court, agency
or office. (n)
Section 7. Effect of failure to file
comment. — When no comment is filed by
any of the respondents, the case may be
decided on the basis of the record, without
prejudice to any disciplinary action which the
court may take against the disobedient party.
(n)
RULE 47
Annulment of Judgments of Final Orders
and Resolutions
Section 1. Coverage. — This Rule shall
govern the annulment by the Court of
Appeals of judgments or final orders and
resolutions in civil actions of Regional Trial
Courts for which the ordinary remedies of
new trial, appeal, petition for relief or other
appropriate remedies are no longer available
through no fault of the petitioner. (n)
Notes: Annulment of judgment is a remedy in law
independent of the case where the judgment sought
to be annulled was rendered and may be availed of
though the judgment has been executed. It is an
EXTRA-ORDINARY remedy and may be considered
as a LAST RESORT.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Annulment of Judgment is available only in
civil cases.
Court of Appeals has no authority to annul
judgments of quasi-judicial bodies (Heirs of
Santiago Andres vs. Office of the President,
CA-G.R. SP 44327, June 25, 1998).
IMPORTANT CONDITION FOR THE
AVAILMENT OF THE REMEDY
The petitioner failed to move for MNT in, or
appeal from, or file a petition for relief against or
take other appropriate remedies assailing the
questioned judgment or final order or resolution
though NO FAULT attributable to him.
If he failed to avail of said remedies without
sufficient justification, he cannot resort to
annulment provided in this rule, otherwise, he
would benefit from his own inaction or
negligence.
Note: Appropriate remedy for fraudulent titling of
lands is action for reversion, not annulment of
judgment (Republic vs. CA, 258 SCRA 223).
Section 2. Grounds for annulment. —
The annulment may be based only on the
grounds of extrinsic fraud and lack of
jurisdiction.
Extrinsic fraud shall not be a valid ground
if it was availed of, or could have been
availed of, in a motion for new trial or
petition for relief. (n)
NOTE: A person NOT A PARTY to the judgment
may sue for its annulment if he can prove that
the same was obtained through extrinsic fraud
or collusion and that he would be adversely
affected thereby (Islamic Da Wah Council of the
Phil. Vs. CA, 178 SCRA 178).
EXTRINSIC OR COLLATERAL FRAUD
This refers to any fraudulent act of the prevailing
party in litigation which is committed outside of
the trial of the case, whereby the defeated party
has been prevented from exhibiting fully and
fairly from presenting his side of the case.
Judgment; Annulment of Judgment; Grounds (1998)
What are the grounds for the annulment of a
judgment of the RTC (RTC)? [2%]
SUGGESTED ANSWER:
The grounds for annulment of judgment of the RTC
are Extrinsic Fraud and Lack of Jurisdiction. (Sec, 2,
Rule 47, 1997 Rules of Civil Procedure.)
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Section 3. Period for filing action. — If
based on extrinsic fraud, the action must be
filed within four (4) years from its
discovery; and if based on lack of
jurisdiction, before it is barred by laches
or estoppel. (n)
Note: This is an express recognition of the
Rule enunciated in the landmark case of Tijam
vs. Sibonghanoy (1968).
Section 4. Filing and contents of petition.
— The action shall be commenced by filing a
verified petition alleging therein with
particularity the facts and the law relied upon
for annulment, as well as those supporting
the petitioner's good and substantial cause of
action or defense, as the case may be.
The petition shall be filed in seven (7) clearly
legible copies, together with sufficient copies
corresponding to the number of respondents.
A certified true copy of the judgment or final
order or resolution shall be attached to the
original copy of the petition intended for the
court and indicated as such by the petitioner.
The petitioner shall also submit together with
the petition affidavits of witnesses or
documents supporting the cause of action or
defense and a sworn certification that he has
not theretofore commenced any other action
involving the same issues in the Supreme
Court, the Court of Appeals or different
divisions thereof, or any other tribunal or
agency if there is such other action or
proceeding, he must state the status of the
same, and if he should thereafter learn that a
similar action or proceeding has been filed or
is pending before the Supreme Court, the
Court of Appeals, or different divisions
thereof, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof
within five (5) days therefrom. (n)
The action is commenced by filing:
1. Verified petition alleging:
a. Particularly the facts and the law
relied upon;
b. Petitioner’s good and substantial
cause of action or defense.
2. Filed in 7 legible copies;
3. Certified true copy of the judgment or final
order or resolution; and
4. CAFS.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
5. Optional—prayer for the issuance of writ
of preliminary injunction if the judgment
is not yet executed.
Section 5. Action by the court. —
Should the court find no substantial merit
in the petition, the same may be
dismissed outright with specific reasons
for such dismissal.
Should prima facie merit be found in the
petition, the same shall be given due
course and summons shall be served on
the respondent. (n)
TWO STAGES:
1. A preliminary evaluation of the petition
to determine prima facie merit therein;
and
2. The issuance of summons as in ordinary
civil cases and such appropriate
proceedings thereafter as contemplated
in sec. 6.
The Rule allows the CA to dismiss the petition
outright as in special civil actions.
Note: There is difference as regards Annulment
of Judgment in RTC for decisions of inferior
courts. See section 10 of this Rule.
REMEDY if petition for annulment is
dismissed by the CA:
Petition for Review on certiorari with the SC,
under Rule 45, NOT Rule 65 (Linzag, et al. vs.
CA, L-122181, June26, 1988).
Section 6. Procedure. — The procedure
in ordinary civil cases shall be observed.
Should trial be necessary, the reception of
the evidence may be referred to a
member of the court or a judge of a
Regional Trial Court. (n)
Section 7. Effect of judgment. — A
judgment of annulment shall set aside the
questioned judgment or final order or
resolution and render the same null and
void, without prejudice to the original
action being re-filed in the proper court.
However, where the judgment or final
order or resolution is set aside on the
ground of extrinsic fraud, the court may
on motion order the trial court to try the
case as if a timely motion for new trial
had been granted therein. (n)
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Section 8. Suspension prescriptive period.
— The prescriptive period for the re-filing of
the aforesaid original action shall be deemed
suspended from the filing of such original
action until the finality of the judgment of
annulment. However, the prescriptive period
shall not be suspended where the extrinsic-
fraud is attributable to the plaintiff in the
original action. (n)
Section 9. Relief available. — The judgment
of annulment may include the award of
damages, attorney's fees and other
relief.
If the questioned judgment or final order or
resolution had already been executed the
court may issue such orders of restitution
or other relief as justice and equity may
warrant under the circumstances. (n)
Note: Annulment of judgment is still available
even if the judgment is fully executed; the court
may issue orders of restitution.
Section 10. Annulment of judgments or
final orders of Municipal Trial Courts. —
An action to annul a judgment or final order
of a Municipal Trial Court shall be filed in the
Regional Trial Court having jurisdiction over
the former. It shall be treated as an ordinary
civil action and sections 2, 3, 4, 7, 8 and 9 of
this Rule shall be applicable thereto. (n)
Note: The basis of sec. 10 is sec. 19 (6), BP 129, by
implication.
RTC cannot dismiss the case outright for
section 5, allowing CA to dismiss the petition
outright, is not included in under this section.
RULE 48
Preliminary Conference
Section 1. Preliminary conference. — At
any time during the pendency of a case, the
court may call the parties and their counsel
to a preliminary conference.
(a) To consider the possibility of an
amicable settlement, except when the case
is not allowed by law to be compromised
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(b) To define, simplify and clarify the
issues for determination;
(c) To formulate stipulations of facts
and admissions of documentary exhibits,
limit the number of witnesses to be
presented in cases falling within the
original jurisdiction of the court, or those
within its appellate jurisdiction where a
motion for new trial is granted on the
ground of newly discovered evidence; and
(d) To take up such other matters which
may aid the court in the prompt
disposition of the case. (Rule 7, CA
Internal Rules) (n)
Section 2. Record of the conference. —
The proceedings at such conference shall
be recorded and, upon the conclusion
thereof, a resolution shall be issued
embodying all the actions taken therein,
the stipulations and admissions made and
the issues defined. (n)
Section 3. Binding effect of the results
of the conference. — Subject to such
modifications which may be made to
prevent manifest injustice, the resolution
in the preceding section shall control the
subsequent proceedings in the case
unless, within five (5) days from notice
thereof, any party shall satisfactorily show
valid cause why the same should not be
followed. (n)
 NOTE: In the CA, this procedural device
may be availed of not only in original actions
but also in cases on appeal wherein a new
trial was granted on the ground of newly
discovered evidence.
 The CA can act as a trier of facts. Hence,
the preliminary conference authorized is a
convenient adjunct to such power and
function.
RULE 49
Oral Argument
Section 1. When allowed. — At its own
instance or upon motion of a party, the
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court may hear the parties in oral argument
on the merits of a case, or on any material
incident in connection therewith. (n)
The oral argument shall be limited to such
matters as the court may specify in its order
or resolution. (1a, R48)
Section 2. Conduct of oral argument. —
Unless authorized by the court, only one
counsel may argue for a party. The duration
allowed for each party, the sequence of the
argumentation, and all other related matters
shall be as directed by the court. (n)
Section 3. No hearing or oral argument
for motions. — Motions shall not be set for
hearing and, unless the court otherwise
directs, no hearing or oral argument shall be
allowed in support thereof. The adverse party
may file objections to the motion within five
(5) days from service, upon the expiration of
which such motion shall be deemed
submitted for resolution. (29, R49)
Note: Motions in the SC and CA do not contain
notice of hearing as no oral arguments will be
heard in support thereof, and if the appellate
court desires to hold a hearing thereon, it will
itself set the date with notice to the parties.
RULE 50
Dismissal of Appeal
Section 1. Grounds for dismissal of
appeal. — An appeal may be dismissed by
the Court of Appeals, on its own motion or on
that of the appellee, on the following
grounds:
(a) Failure of the record on appeal to show on
its face that the appeal was taken within the
period fixed by these Rules;
(b) Failure to file the notice of appeal or the
record on appeal within the period prescribed
by these Rules;
(c) Failure of the appellant to pay the docket
and other lawful fees as provided in section
5, Rule 40 and section 4 of Rule 41; (Bar
Matter No. 803, 17 February 1998)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(d) Unauthorized alterations, omissions or
additions in the approved record on
appeal as provided in section 4 of Rule 44;
(e) Failure of the appellant to serve and
file the required number of copies of his
brief or memorandum within the time
provided by these Rules;
(f) Absence of specific assignment of
errors in the appellant's brief, or of page
references to the record as required in
section 13, paragraphs (a), (c), (d) and
(f) of Rule 44;
(g) Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
(h) Failure of the appellant to appear at
the preliminary conference under Rule 48
or to comply with orders, circulars, or
directives of the court without justifiable
cause; and
(i) The fact that the order or judgment
appealed from is not appealable. (1a)
NOTE: With the exception of section 1 (b),
dismissal of an appeal is DIRECTORY and
not mandatory.
GR: The issues to be resolved by the appellate
court are only those are assigned as errors
and are included in the pre-trial order of the trial
court.
EXCEPTIONS:
1. If the matter not assigned as error is
closely related to those assigned as
errors;
2. If they were assigned in the lower court
(Catholic Bishop of Balanga vs. CA, 264
SCRA 181).
The CA can decide a case on appeal on
grounds other than those raised in the
assignment of errors:
1. Ground not raised as error but affects the
jurisdiction over the subject matter (sec. 7,
Rule 51);
2. Matters not assigned as errors on appeal
but are evidently plain or clerical errors
within the contemplation of law;
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3. Matters not assigned as errors but consideration
of which is necessary in arriving at a just
determination and complete resolution of the
case (Korean Airlines vs. CA, 234 SCRA 717);
4. Matters not specifically assigned as errors on
appeal but raised in the trial court and are
matters of record having some bearing on the
issue submitted which the parties failed to raise
or which the lower court ignored (Baquiran vs.
CA, 2 SCRA 873);
5. When the determination of the assigned error is
dependent upon a matter not raised as an error.
OTHER GROUNDS FOR DISMISSAL OF
APPEAL:
1. By agreement of the parties, as where the case
was amicably settled by them;
2. Where the appealed case has become moot
and academic;
3. Where the appeal is frivolous or dilatory.
Section 2. Dismissal of improper appeal
to the Court of Appeals. — An appeal
under Rule 41 taken from the Regional Trial
Court to the Court of Appeals raising only
questions of law shall be dismissed, issues
purely of law not being reviewable by said
court. Similarly, an appeal by notice of appeal
instead of by petition for review from the
appellate judgment of a Regional Trial Court
shall be dismissed. (n)
An appeal erroneously taken to the Court of
Appeals shall not be transferred to the
appropriate court but shall be dismissed
outright. (3a)
NOTE: If the issue is PURELY QUESTION OF
LAW, the proper mode is Petition for Review on
Certiorari under Rule 45.
 No transfer of appeals erroneously taken to it or
to the Court of Appeals, whichever of these
tribunals has appropriate appellate jurisdiction,
will be allowed. Also, elevating such appeal by
the wrong mode of appeal shall be a ground for
dismissal.
 Designation of a wrong court does not
necessarily affect the validity of the notice of
appeal. However, the designation of the
correct/proper court must be made within 15-
day period to appeal.
 A resolution of the Court of Appeals dismissing
the appeal and remanding the case to the trial
court for further proceeding is merely
interlocutory. Hence, a motion for its
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
reconsideration filed a year later may be
entertained and granted.
 The CA can dismiss the case outright even
without a motion. The remedy if dismissed
for improper appeal is to re-file it in the
proper forum but also within the prescribed
period.
Section 3. Withdrawal of appeal. — An
appeal may be withdrawn as of right at
any time before the filing of the
appellee's brief. Thereafter, the
withdrawal may be allowed in the
discretion of the court. (4a)
RULE 51
Judgment
NOTE: Judgment referred into here is the
judgment of the Court of Appeals.
Section 1. When case deemed
submitted for judgment. — A case shall
be deemed submitted for judgment:
A. In ordinary appeals. —
1) Where no hearing on the merits of
the main case is held, upon the filing of
the last pleading, brief, or memorandum
required by the Rules or by the court
itself, or the expiration of the period for
its filing.
2) Where such a hearing is held, upon
its termination or upon the filing of the
last pleading or memorandum as may
be required or permitted to be filed by
the court, or the expiration of the period
for its filing.
B. In original actions and petitions for
review. —
1) Where no comment is filed, upon the
expiration of the period to comment.
2) Where no hearing is held, upon the
filing of the last pleading required or
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permitted to be filed by the court, or the
expiration of the period for its filing.
3) Where a hearing on the merits of the
main case is held, upon its termination or
upon the filing of the last pleading or
memorandum as may be required or
permitted to be filed by the court, or the
expiration of the period for its filing. (n)
LAW OF THE CASE
It is the opinion on a former appeal. It means that
whatever is once irrevocably established, as the
controlling legal rule or decision between the same
parties in the same case, continuous to be the law
of the case, whether correct on general principles or
not, so long as the facts on which such decision was
predicated continue to be the facts before the court.
NOTE: This rule DOES NOT APPLY to resolutions
rendered in connection with the case wherein no
rationale has been expounded on the merits of that
action.
Section 2. By whom rendered. — The
judgment shall be rendered by the members
of the court who participated in the
deliberation on the merits of the case before
its assignment to a member for the writing of
the decision. (n)
Section 3. Quorum and voting in the
court. — The participation of all three
Justices of a division shall be necessary at the
deliberation and the unanimous vote of the
three Justices shall be required for the
pronouncement of a judgment or final
resolution. If the three justices do not reach a
unanimous vote, the clerk shall enter the
votes of the dissenting Justices in the record.
Thereafter, the Chairman of the division shall
refer the case, together with the minutes of
the deliberation, to the Presiding Justice who
shall designate two Justices chosen by raffle
from among all the other members of the
court to sit temporarily with them, forming a
special division of five Justices. The
participation of all the five members of the
special division shall be necessary for the
deliberation required in section 2 of this Rule
and the concurrence of a majority of such
division shall be required for the
pronouncement of a judgment or final
resolution. (2a)
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Section 4. Disposition of a case. — The
Court of Appeals, in the exercise of its
appellate jurisdiction, may affirm,
reverse, or modify the judgment or
final order appealed from, and may
direct a new trial or further
proceedings to be had. (3a)
Section 5. Form of decision. — Every
decision or final resolution of the court in
appealed cases shall clearly and
distinctly state the findings of fact
and the conclusions of law on which it
is based, which may be contained in the
decision or final resolution itself, or
adopted from those set forth in the
decision, order, or resolution appealed
from. (Sec. 40, BP Blg. 129) (n)
 The requirement for the statement of facts
and law refers to a decision or for that
matter a final resolution. The same are not
required in minute resolutions since these
usually dispose of the case not on the merits
but on procedural or technical grounds.
 With respect to petitions for review and
motions for reconsideration, the Constitution
merely requires a statement of the legal
basis for the denial thereof or refusal to give
due course thereto. The court may opt, but it
is not required to issue an extended
resolution thereon.
 Decisions and resolutions of a court in
appealed cases shall clearly and distinctly
state the findings of fact and the conclusions
of law on which they are based, which may
be contained in the decision or final
resolution itself, or adopted from those set
forth in the decision, order, or resolution
appealed from (sec. 40, BP 129)
MEMORANDUM DECISION
It is one rendered by an appellate court which
incorporates by reference the findings of facts
and conclusions of law contained in the decision
of the lower court.
Bar Exam Question 2012
19. RTC decides an appeal from the MTC
involving a simple collection case. The
decision consists of only one page because
it adopted by direct reference the findings of
fact and conclusions of law set forth in the
MTC decision. Which statement is most
accurate?
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a. The RTC decision is valid because it was
issued by a court of competent jurisdiction.
b. The RTC decision is valid because it
expedited the resolution of the appeal.
c. The RTC decision is valid because it is a
memorandum decision recognized by law.
d. The RTC decision is valid because it is
practical and convenient to the judge and the
parties.
SUGGESTED ANSWER:
(c), A Memorandum decision can be
welcomed as an acceptable method of
dealing expeditiously with the case load of
the courts of justice. The phrase
Memorandum Decision appears to have
been introduced in this jurisdiction not by
that law but by Section 24 of the Interim
Rules and Guidelines of BP Blg. 129, reading
as follows: Section 24. Memorandum
decisions – The judgment or final resolution
of a court in appealed cases may adopt by
reference the findings of fact and
conclusions of law contained in the decision
or final order appealed from. (Francisco vs.
Perm Skul, G.R. No. 81006, May 12, 1989.)
Section 6. Harmless error. — No error in
either the admission or the exclusion of
evidence and no error or defect in any ruling
or order or in anything done or omitted by
the trial court or by any of the parties is
ground for granting a new trial or for setting
aside, modifying, or otherwise disturbing a
judgment or order, unless refusal to take
such action appears to the court inconsistent
with substantial justice. The court at every
stage of the proceeding must disregard
any error or defect which does not affect
the substantial rights of the parties. (5a)
Section 7. Judgment where there are
several parties. — In all actions or
proceedings, an appealed judgment may be
affirmed as to some of the appellants, and
reversed as to others, and the case shall
thereafter be proceeded with, so far as
necessary, as if separate actions had been
begun and prosecuted, and execution of the
judgment of affirmance may be had
accordingly, and costs may be adjudged in
such cases, as the court shall deem proper.
(6)
Section 8. Questions that may be decided.
— No error which does not affect the
jurisdiction over the subject matter or the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
validity of the judgment appealed from or
the proceedings therein will be considered
unless stated in the assignment of errors,
or closely related to or dependent on an
assigned error and properly argued in the
brief, save as the court may pass upon
plain errors and clerical errors. (7a)
GR: Unless assigned or closely related to or
dependent on an assigned error, no error shall
be considered.
Exceptions:
1. Error of jurisdiction over the subject
matter;
2. Validity of the judgment appealed from
or the proceedings therein.
Section 9. Promulgation and notice of
judgment. — After the judgment or final
resolution and dissenting or separate
opinions, if any, are signed by the Justices
taking part, they shall be delivered for
filing to the clerk who shall indicate
thereon the date of promulgation and
cause true copies thereof to be served
upon the parties or their counsel. (n)
NOTE: In justifiable situations or by
agreement in the division, the filing of
dissenting or separate opinions may be
reserved or the majority opinion may be
promulgated without prejudice to the
subsequent issuance of a more extended
opinion, provided the requisite votes for
promulgation of judgment have been obtained
and recorded.
Section 10. Entry of judgments and
final resolutions. — If no appeal or
motion for new trial or reconsideration is
filed within the time provided in these
Rules, the judgment or final resolution
shall forthwith be entered by the clerk in
the book of entries of judgments. The
date when the judgment or final
resolution becomes executory shall
be deemed as the date of its entry.
The record shall contain the dispositive
part of the judgment or final resolution
and shall be signed by the clerk, with a
certificate that such judgment or final
resolution has become final and
executory. (2a, R36)
Section 11. Execution of judgment. —
Except where the judgment or final order
or resolution, or a portion thereof, is
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ordered to be immediately executory, the
motion for its execution may only be filed in
the proper court after its entry.
In original actions in the Court of Appeals, its
writ of execution shall be accompanied by a
certified true copy of the entry of judgment
or final resolution and addressed to any
appropriate officer for its enforcement.
In appealed cases, where the motion for
execution pending appeal is filed in the Court
of Appeals at a time that it is in possession of
the original record or the record on appeal,
the resolution granting such motion shall be
transmitted to the lower court from which the
case originated, together with a certified true
copy of the judgment or final order to be
executed, with a directive for such court of
origin to issue the proper writ for its
enforcement. (n)
NOTE: The writ of execution, as provided in the
1st paragraph shall be filed only in the trial court. If
the trial court delays (refuses) in issuing the writ,
the interested party may file a motion asking the
appellate court to issue an order directing the
trial court to issue the corresponding writ of
execution, or a petition for mandamus under
Rule 65 whenever proper.
RULE 52
Motion for Reconsideration
NOTE: MR under this Rule refers to MRs in the CA.
Section 1. Period for filing. — A party may
file a motion for reconsideration of a
judgment or final resolution within fifteen
(15) days from notice thereof, with proof of
service on the adverse party. (n)
Section 2. Second motion for
reconsideration. — No second motion for
reconsideration of a judgment or final
resolution by the same party shall be
entertained. (n)
Bar Exam Question 2012
63. Under Rule 52, a Second Motion for
Reconsideration is a prohibited pleading.
However,· where may such Motion be allowed?
a. the Sandiganbayan;
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b. the Office of the President;
c. the Supreme Court;
d. None of the above.
SUGGESTED ANSWER:
(c), Under Rule 52, a second Motion for
Reconsideration is a prohibited pleading.
However, the Supreme Court en banc
may entertain the same in the higher
interest of justice upon a vote of at least
two-thirds of its actual membership.
There is reconsideration “in the highest
interest of justice” when the assailed
decision is not only legally erroneous but
is likewise patently unjust and
potentially capable of causing
unwarranted and irremediable injury or
damage to the parties. A second motion
for reconsideration can only be
entertained before the ruling sought to
be reconsidered becomes final by
operation of law or by the Court‟s
declaration. (Sec.3, Rule 15, Internal
Rules of the Supreme Court). In the
Division, a vote of three Members shall
be required to elevate to a second
motion for reconsideration to the Court
En Banc. (Aliviado vs. Proctor and
Gamble Phils., Inc., et al, G.R. No.
160506, June 6, 2011, Del Castillo, J.).
Section 3. Resolution of motion. — In
the Court of Appeals, a motion for
reconsideration shall be resolved
within ninety (90) days from the date
when the court declares it submitted for
resolution. (n)
Section 4. Stay of execution. — The
pendency of a motion for reconsideration
filed on time and by the proper party shall
stay the execution of the judgment or
final resolution sought to be reconsidered
unless the court, for good reasons, shall
otherwise direct. (n)
RULE 53
New Trial
Trial; Court of Appeals as Trial Court
(2008) No.XXI.B. Give at least three
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instances where the Court of Appeals may act
as a trial court?
SUGGESTED ANSWER: The Court of Appeals
may act as a trial court in the following
instances:
(1) In annulment of judgments (Sec. 5 & 6,
Rule 47)
(2) When a motion for new trial is granted
by the Court of Appeals (Sec. 4, Rule 53)
(3) A petition for Habeas Corpus shall be set
for hearing 9Sec. 12, Rule 102)
(4) To resolve factual issues in cases within
its original and appellate jurisdiction (Sec.
12, Rule 124)
(5) In cases of new trial based on newly
discovered evidence (Sec. 14, Rule 124 of
the Rules on Criminal Procedure).
(6) In Cases involving claims for damages
arising from provisional remedies
(7) In Amparo proceedings (A.M. No. 07-9-
12-SC)
NOTE: This pertains to NEW TRIAL in the CA.
Section 1. Period for filing; ground. — At
any time after the appeal from the lower
court has been perfected and before the
Court of Appeals loses jurisdiction over the
case, a party may file a motion for a new trial
on the ground of newly discovered
evidence which could not have been
discovered prior to the trial in the court below
by the exercise of due diligence and which is
of such a character as would probably change
the result. The motion shall be accompanied
by affidavits showing the facts constituting
the grounds therefor and the newly
discovered evidence. (1a)
NOTE: A second motion for new trial in the CA
would not be possible, unlike in Rule 37, sec. 5.
Section 2. Hearing and order. — The Court
of Appeals shall consider the new evidence
together with that adduced at the trial below,
and may grant or refuse a new trial, or may
make such order, with notice to both parties,
as to the taking of further testimony, either
orally in court, or by depositions, or render
such other judgment as ought to be rendered
upon such terms as it may deem just. (2a)
Section 3. Resolution of motion. — In the
Court of Appeals, a motion for new trial
shall be resolved within ninety (90) days
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from the date when the court declares it
submitted for resolution. (n)
Section 4. Procedure in new trial. —
Unless the court otherwise directs, the
procedure in the new trial shall be the
same as that granted by a Regional Trial
Court. (3a)
RULE 54
Internal Business
Section 1. Distribution of cases among
divisions. — All the cases of the Court of
Appeals shall be allotted among the
different divisions thereof for hearing and
decision. The Court of Appeals, sitting en
banc, shall make proper orders or rules to
govern the allotment of cases among the
different divisions, the constitution of such
divisions, the regular rotation of Justices
among them, the filing of vacancies
occurring therein, and other matters
relating to the business of the court; and
such rules shall continue in force until
repealed or altered by the Supreme Court.
(1a)
The Court of Appeals, sitting en banc, shall:
1. shall make proper orders or rules to govern
the allotment of cases among the different
divisions;
2. the constitution of such divisions;
3. the regular rotation of Justices among them;
4. the filing of vacancies occurring therein; and
5. other matters relating to the business of the
court
Section 2. Quorum of the court. — A
majority of the actual members of the
court shall constitute a quorum for its
sessions en banc. Three members shall
constitute a quorum for the sessions of a
division. The affirmative votes of the
majority of the members present shall be
necessary to pass a resolution of the court
en banc. The affirmative votes of three
members of a division shall be necessary
for the pronouncement of a judgment or
final resolution, which shall be reached in
consultation before the writing of the
opinion by any member of the division.
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(Sec. 11, first par. of BP Blg. 129, as
amended by Sec. 6 of EO 33). (3a)
RULE 55
Publications of Judgments and Final
Resolutions
Section 1. Publication. — The judgments
and final resolutions of the court shall be
published in the Official Gazette and in the
Reports officially authorized by the court in
the language in which they have been
originally written, together with the syllabi
therefor prepared by the reporter in
consultation with the writers thereof.
Memoranda of all other judgments and final
resolutions not so published shall be made by
the reporter and published in the Official
Gazette and the authorized reports. (1a)
Section 2. Preparation of opinions for
publication. — The reporter shall prepare
and publish with each reported judgment and
final resolution a concise synopsis of the facts
necessary for a clear understanding of the
case, the names of counsel, the material and
controverted points involved, the authorities
cited therein, and a syllabus which shall be
confined to points of law. (Sec. 22a, R.A. No.
296) (n)
Section 3. General make-up of volumes.
— The published decisions and final
resolutions of the Supreme Court shall be
called "Philippine Reports," while those of
the Court of Appeals shall be known as the
"Court of Appeals Reports." Each volume
thereof shall contain a table of the cases
reported and the cases cited in the opinions,
with a complete alphabetical index of the
subject matters of the volume. It shall consist
of not less than seven hundred pages printed
upon good paper, well bound and numbered
consecutively in the order of the volumes
published. (Sec. 23a, R.A. No. 296) (n)
Procedure In The Supreme Court
RULE 56
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A. Original Cases
Section 1. Original cases cognizable. —
Only petitions for certiorari, prohibition,
mandamus, quo warranto, habeas corpus,
disciplinary proceedings against members
of the judiciary and attorneys, and cases
affecting ambassadors, other public
ministers and consuls may be filed
originally in the Supreme Court. (n)
Note: The underlined portion is also concurrent
with the RTC (sec. 21, BP 129).
Section 2. Rules applicable. — The
procedure in original cases for certiorari,
prohibition, mandamus, quo warranto and
habeas corpus shall be in accordance with
the applicable provisions of the
Constitution, laws, and Rules 46, 48, 49,
51, 52 and this Rule, subject to the
following provisions:
a) All references in said Rules to the Court
of Appeals shall be understood to also
apply to the Supreme Court;
b) The portions of said Rules dealing
strictly with and specifically intended for
appealed cases in the Court of Appeals
shall not be applicable; and
c) Eighteen (18) clearly legible copies of
the petition shall be filed, together with
proof of service on all adverse parties.
The proceedings for disciplinary action
against members of the judiciary shall be
governed by the laws and Rules
prescribed therefor, and those against
attorneys by Rules 139-B, as amended.
(n)
B. Appealed Cases
Section 3. Mode of appeal. — An appeal
to the Supreme Court may be taken only
by a petition for review on certiorari,
except in criminal cases where the penalty
imposed is death, reclusion perpetua or
life imprisonment. (n)
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NOTE: The proper mode of appeal mentioned
here is Rule 45.
IN CRIMINAL CASES, however, where the
penalty is death, reclusion perpetua or life
imprisonment, appeal is either by automatic
review in case of death or by ordinary appeal by
notice of appeal in the latter two.
Note, however that the automatic review was
later on held to be cognizable with the CA, BUT
with the passage of RA 9346, prohibiting the
imposition of DEATH PENALTY, the automatic
review was now rendered inoperative (People
vs. Mateo)
Section 4. Procedure. — The appeal shall be
governed by and disposed of in accordance
with the applicable provisions of the
Constitution, laws, Rules 45, 48, sections 1,
2, and 5 to 11 of Rule 51, 52 and this Rule.
(n)
NOTE: Rule 53 on new Trial is not included. The SC
is not a tier of facts.
Section 5. Grounds for dismissal of
appeal. — The appeal may be dismissed
motu proprio or on motion of the respondent
on the following grounds:
(a) Failure to take the appeal within the
reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee
and other lawful fees or to make a deposit for
costs;
(d) Failure to comply with the requirements
regarding proof of service and contents of
and the documents which should
accompany the petition;
(e) Failure to comply with any circular,
directive or order of the Supreme Court
without justifiable cause;
(f) Error in the choice or mode of appeal;
and
(g) The fact that the case is not appealable
to the Supreme Court. (n)
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Section 6. Disposition of improper
appeal. — Except as provided in section
3, Rule 122 regarding appeals in criminal
cases where the penalty imposed is death,
reclusion perpetua or life imprisonment,
an appeal taken to the Supreme Court by
notice of appeal shall be dismissed.
An appeal by certiorari taken to the
Supreme Court from the Regional Trial
Court submitting issues of fact may be
referred to the Court of Appeals for
decision or appropriate action. The
determination of the Supreme Court on
whether or not issues of fact are involved
shall be final. (n)
IMPROPER APPEAL
It means the choice or mode of appeal is correct
but the appellant raises issues which the court
could not resolve (example: where mode of
appeal Rule 45, but appeal raises factual issues)
In this instance, the appeal may be referred
to CA, although the SC can dismiss the
case.
ERRONEOUS APPEAL
It means error in the choice or mode of appeal
(example: where appeal is taken to the SC by
notice of appeal instead of petition for review on
certiorari)
In this instance, the appeal shall be
dismissed outright.
Section 7. Procedure if opinion is
equally divided. — Where the court en
banc is equally divided in opinion, or the
necessary majority cannot be had, the
case shall again be deliberated on, and if
after such deliberation no decision is
reached, the original action commenced in
the court shall be dismissed, in appealed
cases, the judgment or order appealed
from shall stand affirmed; and on all
incidental matters, the petition or motion
shall be denied.
Bar Exam Question 2012
93. If the Supreme Court en bane is equally
divided in opinion covering an original
action, the case shall be:
a. re-raffled to a division.
b. original action shall be dismissed.
c. The judgment appealed from shall be
official.
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d. again deliberated upon.
SUGGESTED ANSWER: (b) Where the Court
en banc is equally divided in opinion, or the
necessary majority cannot be had, the case
shall again be deliberated on, and if after
such deliberation no decision is reached,
the original action commenced in the court
shall be dismissed; in appealed cases, the
judgment or order appealed from shall stand
affirmed; and on all incidental matters, the
petition or motion shall be denied. (Rule 56,
Sec. 7, Rules of Court).
Provisional Remedies
Also known as ancillary or auxiliary
remedies.
They are writs and processes available during the
pendency of the action which may be resorted to by
a litigant to preserve and protect certain rights and
interests therein pending rendition, and for purposes
ultimate effects, of a final judgment in the case.
Provisional Remedies (1999)
What are the provisional remedies under the rules? (2%)
SUGGESTED ANSWER:
The provisional remedies under the rules are preliminary
attachment, preliminary injunction, receivership,
replevin, and support pendente lite. (Rules 57 to 61, Rules of
Court).
THE FOLLOWING ARE THE PROVISIONAL
REMEDIES PROVIDED BY THE RULES:
1. Preliminary Attachment;
2. Preliminary Injunction;
3. Receivership;
4. Repliven;
5. Support pendent lite.
Provisional Remedies; Attachment vs. Garnishment (1999)
Distinguish attachment from garnishment. (2%)
SUGGESTED ANSWER:
Attachment and garnishment are distinguished from
each other as follows: ATTACHMENT is a provisional
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
remedy that effects a levy on property of a party as
security for the satisfaction of any judgment that
may be
recovered, while GARNISHMENT is a levy on
debts due the judgment obligor or defendant and
other credits, including bank deposits, royalties and
other personal property not capable of manual
delivery under a writ of execution or a writ of
attachment.
NOTE: This provisional remedies are also
available in criminal cases (Rule 127)
 Inferior courts are also granted authority to
grant all appropriate provisional remedy as
long as the main case falls within it’s
jurisdiction (sec. 33[1], BP 129)
 Dismissal of the main case carries with it the
dismissal of the provisional remedies.
 As a rule, provisional remedies are
interlocutory, hence, NOT appealable. The
remedy is Rule 65.
OTHER (equivalent) PROVISIONAL
ORDERS/REMEDIES UNDER OTHER
LAWS/RULES
1. Interim reliefs under the Rule on the Writ of
Amparo
2. Writ of Habeas Data
3. TEPO, EPO and Attachment under the
Rules of Procedure on Environmental Cases
4. Provisional Orders under Rules on Custody
of Minors
5. Provisional Orders under the Rules on the
Declaration of Nullity, Annulment of
Marriage, and Legal Separation.
Attachment; Preliminary Attachment
(2012) No.VIII.A. (a) A sues B for collection
of a sum of money. Alleging fraud in the
contracting of the loan, A applies for
preliminary attachment with the court. The
Court issues the preliminary attachment
after A files a bond. While summons on B
was yet unserved, the sheriff attached B's
properties. Afterwards, summons was duly
served on B. 8 moves to lift the attachment.
Rule on this. (5%) SUGGESTED ANSWER: I
will grant the motion since no levy on
attachment pursuant to the writ shall be
enforced unless it is preceded or
contemporaneously accompanied by
service of summons. There must be prior
or contemporaneous service of summons
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with the writ of attachment. (Rule 57,
Sec.5, Rules of Court).
Injunction; Preliminary Injunction (2009)
No.I.C. A suit for injunction is an action in
rem. SUGGESTED ANSWER: FALSE. A suit
for injunction is an action in personam. In
the early case of Auyong Hian vs. Court of
Tax Appeals [59 SCRA 110 [1974]), it was
held that a restraining order like an
injunction, operates upon a person. It is
granted in the exercise of equity of
jurisdiction and has no in rem effect to
invalidate an act done in contempt of an
order of the court except where by statutory
authorization, the decree is so framed as to
act in rem on property. (Air Materiel Wing
Savings and Loan Association, Inc. vs.
manay, 535 SCRA 356 [2007]).
Attachment; Kinds of Attachment (2012)
No.IX.B. Briefly discuss/differentiate the
following kinds of Attachment: preliminary
attachment, garnishment, levy on execution,
warrant of seizure and warrant of distraint and
levy. (5%) SUGGESTED ANSWER:
PRELIMINARY ATTACHMENT- is
provisional remedy under Rule 57 of the
Rules of Court. It may be sought at the
commencement of an action or at any time
before entry judgment where property of an
adverse party may be attached as security
for the satisfaction of any judgment, where
this adverse party is about to depart from
the Philippines, where he has intent to
defraud or has committed fraud, or is not
found in the Philippines. An affidavit and a
bond is required before the preliminary
attachment issues. It is discharged upon
the payment of a counterbond.
GARNISHMENT- is a manner of satisfying or
executing judgment where the sheriff may
levy debts, credits, royalties, commissions,
bank deposits, and other personal property
not capable of manual delivery that are in
the control or possession of third persons
and are due the judgment obligor. Notice
shall be served on third parties. The third
party garnishee must make a written report
on whether or not the judgment obligor has
sufficient funds or credits to satisfy the
amount of the judgment. If not, the report
shall state how much fund or credits the
garnishee holds for the judgment obligor.
Such garnish amounts shall be delivered to
the judgment oblige-creditor (Rule 39, Sec.9
[c]).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
LEVY ON EXECUTION- is a manner of
satisfying or executing judgment where
the sheriff may sell property of the
judgment obligor if he is unable to pay
all or part of the obligation in cash,
certified bank check or any other
manner acceptable to the oblige. If the
obligor does not chose which among his
property may be sold, the sheriff shall
sell personal property first and then real
property second. He must sell only so
much of the personal and real property
as is sufficient to satisfy judgment and
other lawful fees. (Rule 39, Sec.9 [b]).
WARRANT OF SEIZURE- is normally
applied for, with a search warrant, in
criminal cases. The warrant of seizure
must particularly describe the things to
be seized. While it is true that the
property to be seized under a warrant
must be particularly described therein
and no other property can be taken
thereunder, yet the description is
required to be specific only insofar as
a the circumstances will ordinarily allow.
An application for search and seizure
warrant shall be filed with the following:
(a) Any court within whose territorial
jurisdiction a crime was committed. (b)
For compelling reasons stated in the
application, any court within the judicial
region where the crime was committed if
the place of the commission of the crime
is known, or any court within the
judicial region where the warrant shall
be enforced. However, if the criminal
action has already been filed, the
application shall only be made in the
court where the criminal action is
pending.
WARRANT OF DISTRAINT AND LEVY- is
remedy available to local governments
and the BIR in tax cases to satisfy
deficiencies or delinquencies in
inheritance and estate taxes, and real
estate taxes. Distraint is the seizure of
personal property to be sold in an
authorized auction sale. Levy is the
issuance of a certification by the proper
officer showing the name of the taxpayer
and the tax, fee, charge, or penalty due
him. Levy is made by writing upon said
certificate the description of the
property upon which levy is made.
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RULE 57
Preliminary Attachment
Section 1. Grounds upon which
attachment may issue. — At the
commencement of the action or at any time
before entry of judgment, a plaintiff or any
proper party may have the property of the
adverse party attached as security for the
satisfaction of any judgment that may be
recovered in the following cases:
(a) In an action for the recovery of a
specified amount of money or damages,
other than moral and exemplary, on a cause
of action arising from law, contract, quasi-
contract, delict or quasi-delict against a party
who is about to depart from the Philippines
with intent to defraud his creditors;
(b) In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public officer,
or an officer of a corporation, or an attorney,
factor, broker, agent, or clerk, in the course
of his employment as such, or by any other
person in a fiduciary capacity, or for a willful
violation of duty;
(c) In an action to recover the possession
of property unjustly or fraudulently
taken, detained or converted, when the
property, or any part thereof, has been
concealed, removed, or disposed of to
prevent its being found or taken by the
applicant or an authorized person;
(d) In an action against a party who has
been guilty of a fraud in contracting the
debt or incurring the obligation upon which
the action is brought, or in the performance
thereof;
(e) In an action against a party who has
removed or disposed of his property, or
is about to do so, with intent to defraud
his creditors; or
(f) In an action against a party who does not
reside and is not found in the
Philippines, or on whom summons may be
served by publication. (1a)
Bar Exam Question 2011
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(40) 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 (a) Arthur is a foreigner; (b) he
departed from the Philippines; and (c) he
was guilty of fraud in contracting with
Bren. Is the writ of preliminary attachment
proper? (A) No, Arthur is a foreigner living
abroad; he is outside the court’s
jurisdiction. (B) Yes, Arthur committed
fraud in changing the sound system and
its components before delivering the car
bought from him. (C) Yes the timing of his
departure is presumptive evidence of intent
to defraud. (D) No, since it was not shown
that Arthur left the country with intent to
defraud Bren.
NOTE: The grounds are exclusive.
PURPOSES:
1. To seize the property of the debtor in
advance of final judgment and to hold it
for purposes of satisfying the said
judgment;
2. To enable the court to acquire
jurisdiction over the action by the
actual or constructive seizure of the
property in those instances where
personal service of summons on the
part of the creditor cannot be effected.
Proceeding in attachment is in rem where the
defendant does not appear, and in personam
where he appears in the action (Regalado,
Remedial Law Compendium)
3 STAGES in the grant of preliminary
attachment:
1. The court issues order granting the
application;
2. The writ of attachment issues pursuant
to the order granting the writ;
3. The writ is implemented.
Note: For the initial two stages, it is not
necessary that jurisdiction over the person of the
defendant be first obtained.
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However, once implementation of the writ
commences, the court must have acquired
jurisdiction over the defendant for without such
jurisdiction, the court has no power or authority to
act an any manner against the defendant (Mangila
vs. CA,387 SCRA 162).
Preliminary attachment connected to
Katarungang Pambarangay Law (KPL):
Application for preliminary attachment filed after
motion to dismiss for non-compliance of
precondition of prior referral to Lupon, an
afterthought and an attempt to circumvent the law.
Case may still be dismissed for non-compliance of a
condition precedent. Recall that under the KPL, a
party may directly go to court if the action is coupled
with a provisional remedy.
Section 2. Issuance and contents of
order. — An order of attachment may be
issued either ex parte or upon motion with
notice and hearing by the court in which the
action is pending, or by the Court of Appeals
or the Supreme Court, and must require the
sheriff of the court to attach so much of the
property in the Philippines of the party
against whom it is issued, not exempt from
execution, as may be sufficient to satisfy the
applicant's demand, unless such party makes
deposit or gives a bond as hereinafter
provided in an amount equal to that fixed in
the order, which may be the amount
sufficient to satisfy the applicant's demand or
the value of the property to be attached as
stated by the applicant, exclusive of costs.
Several writs may be issued at the same time
to the sheriffs of the courts of different
judicial regions. (2a)
NOTE: There may be separate attachments of the
same property.
Provisional Remedies; Attachment (2001)
May a writ of preliminary attachment be issued exparte?
Briefly state the reason(s) for your answer. (3%)
SUGGESTED ANSWER:
Yes, an order of attachment may be issued ex-parte or
upon motion with notice and hearing. (Sec. 2 of Rule 57) The
reason why the order may be issued ex parte is: that
requiring notice to the adverse party and a hearing would
defeat the purpose of the provisional remedy and enable
the adverse party to abscond or dispose of his property
before a writ of attachment issues. (Mindanao Savings and
Loan Association, Inc. v. Court of Appeals, 172 SCRA 480).
Section 3. Affidavit and bond required. —
An order of attachment shall be granted only
when it appears by the affidavit of the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
applicant, or of some other person who
personally knows the facts, that a
sufficient cause of action exists, that the
case is one of those mentioned in section
1 hereof, that there is no other sufficient
security for the claim sought to be
enforced by the action, and that the
amount due to the applicant, or the value
of the property the possession of which he
is entitled to recover, is as much as the
sum for which the order is granted above
all legal counterclaims. The affidavit, and
the bond required by the next succeeding
section, must be duly filed with the court
before the order issues. (3a)
NOTE: The requisites for the issuance of the
WPA are the affidavit and the bond of the
applicant.
REASON: No notice to the adverse party or
hearing of the application is required, as the time
which the hearing will entail could be enough to
enable the defendant to abscond or dispose of
his property before writ issues.
CONTENTS OF THE AFFIDAVIT:
1. A sufficient cause of action exists;
2. Case is one of those mentioned in sec. 1;
3. No other sufficient security for the claim
sought to be enforced;
4. Amount due to the applicant or possession
of which is entitled to recover is as such as
the sum for which the order is granted above
all legal counterclaims.
Section 4. Condition of applicant's
bond. — The party applying for the order
must thereafter give a bond executed to
the adverse party in the amount fixed by
the court in its order granting the issuance
of the writ, conditioned that the latter will
pay all the costs which may be adjudged
to the adverse party and all damages
which he may sustain by reason of the
attachment, if the court shall finally
adjudge that the applicant was not
entitled thereto. (4a)
Section 5. Manner of attaching
property. — The sheriff enforcing the writ
shall without delay and with all reasonable
diligence attach, to await judgment and
execution in the action, only so much of
the property in the Philippines of the party
against whom the writ is issued, not
exempt from execution, as may be
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sufficient to satisfy the applicant's demand,
unless the former makes a deposit with the
court from which the writ is issued, or gives a
counter-bond executed to the applicant, in
an amount equal to the bond fixed by the
court in the order of attachment or to the
value of the property to be attached,
exclusive of costs. No levy on attachment
pursuant to the writ issued under section 2
hereof shall be enforced unless it is preceded,
or contemporaneously accompanied, by
service of summons, together with a copy of
the complaint, the application for attachment
the applicant's affidavit and bond, and the
order and writ of attachment, on the
defendant within the Philippines.
The requirement of prior or
contemporaneous service of summons shall
not apply where the summons could not be
served personally or by substituted service
despite diligent efforts, or the defendant is a
resident of the Philippines temporarily absent
therefrom, or the defendant is a non-resident
of the Philippines, or the action is one in rem
or quasi in rem. (5a)
his person. It makes the writ, unenforceable. (Sec. 5,
Rule. 57) However, all that is
needed to be done is to re-serve the writ. (Onate v.
Abrogar, GM. No. 197393, February 23, 1985)
(2) The writ was improperly implemented. Serving a
notice of garnishment, particularly before summons
is served, is not proper. It should be a copy of the
writ of attachment that should be served on the
defendant, and a notice that the bank deposits are
attached pursuant to the writ. (Sec. 7[d], Rule 57)
(3) The writ was improvidently issued if indeed it can
be shown that the obligation was already fully paid.
The writ is only ancillary to the main action. (Sec. 13,
Rule 57) The alleged payment of the account cannot,
serve as a ground for resolving the improvident
issuance of the writ, because this matter delves into
the merits of the case, and requires full-blown trial.
Payment, however, serves as a ground for a motion
to dismiss.
NO LEVY unless preceded or
contemporaneously accompanied by:
1. Service of summons;
2. A copy of the complaint;
3. Application for attachment;
4. Affidavit and bond of applicant;
5. Order and writ of attachment.

Provisional Remedies; Attachment (2005) BUT prior or contemporaneous service of

Katy filed an action against Tyrone for collection of the
sum of P1 Million in the RTC, with an ex-parte
application for a writ of preliminary attachment. Upon
posting of an attachment bond, the court granted the
application and issued a writ of preliminary attachment.
Apprehensive that Tyrone might withdraw his savings
deposit with the bank, the sheriff immediately served a
notice of garnishment on the bank to implement the writ
of preliminary attachment. The following day, the sheriff
proceeded to Tyrone's house and served him the
summons, with copies of the complaint containing the
application for writ of preliminary attachment, Katy's
affidavit, order of attachment, writ of preliminary
attachment and attachment bond.
Within fifteen (15) days from service of the summons,
Tyrone filed a motion to dismiss and to
dissolve the writ of preliminary attachment on the
following grounds: (i) the court did not acquire
jurisdiction over his person because the writ was served
ahead of the summons; (ii) the writ was improperly
implemented; and (iii) said writ was improvidently issued
because the obligation in question was already fully paid.
Resolve the motion with reasons. (4%)
SUGGESTED ANSWER:
The motion to dismiss and to dissolve the writ of
preliminary attachment should be denied. (1) The fact
that the writ of attachment was served ahead of the
summons did not affect the jurisdiction of the court over
summons SHALL NOT APPLY when:
1. Summons could not be served
personally or by substituted service;
2. Defendant is a resident but is
temporarily absent therefrom;
3. Defendant is a non-resident;
4. The action is one in rem or quasi in rem.
Section 6. Sheriff's return. — After
enforcing the writ, the sheriff must
likewise without delay make a return
thereon to the court from which the writ
issued, with a full statement of his
proceedings under the writ and a
complete inventory of the property
attached, together with any counter-bond
given by the party against whom
attachment is issued, and serve copies
thereof on the applicant. (6a)
Section 7. Attachment of real and
personal property; recording thereof.
— Real and personal property shall be
attached by the sheriff executing the writ
in the following manner:

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 192

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(a) Real property, or growing crops thereon,
or any interest therein, standing upon the
record of the registry of deeds of the province
in the name of the party against whom
attachment is issued, or not appearing at all
upon such records, or belonging to the party
against whom attachment is issued and held
by any other person, or standing on the
records of the registry of deeds in the name
of any other person, by filing with the
registry of deeds a copy of the order,
together with a description of the property
attached, and a notice that it is attached, or
that such real property and any interest
therein held by or standing in the name of
such other person are attached, and by
leaving a copy of such order, description, and
notice with the occupant of the property, if
any, or with such other person or his agent if
found within the province. Where the
property has been brought under the
operation of either the Land Registration Act
or the Property Registration Decree, the
notice shall contain a reference to the
number of the certificate of title, the volume
and page in the registration book where the
certificate is registered, and the registered
owner or owners thereof.
The registrar of deeds must index
attachments filed under this section in the
names of the applicant, the adverse party, or
the person by whom the property is held or in
whose name it stands in the records. If the
attachment is not claimed on the entire area
of the land covered by the certificate of title,
a description sufficiently accurate for the
identification of the land or interest to be
affected shall be included in the registration
of such attachment;
(b) Personal property capable of manual
delivery, by taking and safely keeping it in his
custody, after issuing the corresponding
receipt therefor.
(c) Stocks or shares, or an interest in stocks
or shares, of any corporation or company, by
leaving with the president or managing agent
thereof, a copy of the writ, and a notice
stating that the stock or interest of the party
against whom the attachment is issued is
attached in pursuance of such writ;
(d) Debts and credits, including bank
deposits, financial interest, royalties,
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
commissions and other personal property
not capable of manual delivery, by leaving
with the person owing such debts, or
having in his possession or under his
control, such credits or other personal
property, or with his agent, a copy of the
writ, and notice that the debts owing by
him to the party against whom
attachment is issued, and the credits and
other personal property in his possession,
or under his control, belonging to said
party, are attached in pursuance of such
writ;
(e) The interest of the party against whom
attachment is issued in property belonging
to the estate of the decedent, whether as
heir, legatee, or devisee, by serving the
executor or administrator or other
personal representative of the decedent
with a copy of the writ and notice that
said interest is attached. A copy of said
writ of attachment and of said notice shall
also be filed in the office of the clerk of
the court in which said estate is being
settled and served upon the heir, legatee
or devisee concerned.
If the property sought to be attached is in
custodia legis, a copy of the writ of
attachment shall be filed with the proper
court or quasi-judicial agency, and notice
of the attachment served upon the
custodian of such property. (7a)
Provisional Remedies; Attachment (1999)
In a case, the property of an incompetent under
guardianship was in custodia legis. Can it be
attached? Explain. (2%)
SUGGESTED ANSWER:
Although the property of an incompetent under
guardianship is in custodia legis, it may be attached
as in fact it is provided that in such case, a copy of
the writ of attachment shall be filed with the proper
court and notice of the attachment served upon the
custodian of such property. (Sec. 7, last par., Rule 57)
Note: Property legally attached is property In
custodia legis, and cannot be interfered with
without the permission of the proper court, but
this is confined to cases where the property
belongs to the defendant or one in which the
defendant has proprietary interest.
The property attached must be owned
by the defendant.
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Section 8. Effect of attachment of debts,
credits and all other similar personal
property. — All persons having in their
possession or under their control any credits
or other similar personal property belonging
to the party against whom attachment is
issued, or owing any debts to him, at the
time of service upon them of the copy of the
writ of attachment and notice as provided in
the last preceding section, shall be liable to
the applicant for the amount of such credits,
debts or other similar personal property, until
the attachment is discharged, or any
judgment recovered by him is satisfied,
unless such property is delivered or
transferred, or such debts are paid, to the
clerk, sheriff, or other proper officer of the
court issuing the attachment. (8a)
Note: service of summons upon the garnishee is
not necessary in order to acquire jurisdiction. All
that is necessary is the service to him of the writ of
garnishment.
Section 9. Effect of attachment of
interests in property belonging to the
estate of a decedent. — The attachment of
the interest of an heir, legatee, or devisee in
the property belonging to the estate of a
decedent shall not impair the powers of the
executor, administrator, or other personal
representative of the decedent over such
property for the purpose of administration.
Such personal representative, however, shall
report the attachment to the court when any
petition for distribution is filed, and in the
order made upon such petition, distribution
may be awarded to such heir, legatee or
devisee, but the property attached shall be
ordered delivered to the sheriff making the
levy, subject to the claim of such heir,
legatee, or devisee, or any person claiming
under him. (9a)
Attachment; Garnishment (2008) No.VII. (a)
The writ of execution was returned unsatisfied.
The judgment obligee subsequently received
information that a bank holds a substantial
deposit belonging to the judgment obligor. If
you are the counsel of the judgment oblige,
what steps would you take to reach the deposit
to satisfy the judgment? SUGGESTED
ANSWER:
I will ask for a writ of garnishment against
the deposit in the bank (Sec. 9[c], Rule 57).
ALTERNATIVE ANSWER: I shall move the
court to apply to the satisfaction of the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
judgment the property of the judgment
obligor or the money due him in the
hands of another person or corporation
under Sec. 40, Rule 39.
(b) If the bank denies holding the deposit in
the name of the judgment obligor but your
client’s informant is certain that the deposit
belongs to the judgment obligor under an
assumed name, what is your remedy to
reach the deposit? SUGGESTED ANSWER:
I will move for the examination under
oath of the bank as a debtor of the
judgment debtor (Sec. 37, Rule 39). I will
ask the court to issue an Order requiring
the judgment obligor, or the person who
has property of such judgment obligor,
to appear before the court and be
examined in accordance with Secs. 36
and 37 of the Rules of Court for the
complete satisfaction of the judgment
award (Co vs. Sillador, A.M. No. P-07-
2342, 31 August 2007). ALTERNATIVE
ANSWER: The judgment oblige may
invoke the exception under Sec. 2 of the
Secrecy of Bank Deposits Act. Bank
Deposits may be examined upon order of
a competent court in cases if the money
deposited is the subject matter of the
litigation (R.A. 1405).
Section 10. Examination of party
whose property is attached and
persons indebted to him or controlling
his property; delivery of property to
sheriff. — Any person owing debts to the
party whose property is attached or
having in his possession or under his
control any credit or other personal
property belonging to such party, may be
required to attend before the court in
which the action is pending, or before a
commissioner appointed by the court, and
be examined on oath respecting the same.
The party whose property is attached may
also be required to attend for the purpose
of giving information respecting his
property, and may be examined on oath.
The court may, after such examination,
order personal property capable of manual
delivery belonging to him, in the
possession of the person so required to
attend before the court, to be delivered to
the clerk of the court or sheriff on such
terms as may be just, having reference to
any lien thereon or claim against the
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same, to await the judgment in the action.
(10a)
Note: there is also an examination under Rule 39.
Rule 39 is proper only when the writ of execution
is returned unsatisfied.
Examination under this section is not subject to a
preliminary condition but is ANTICIPATORY in
nature and may be resorted to even if the writ of
attachment was not returned because no property
could be found to be levied upon thereunder.
Section 11. When attached property may
be sold after levy on attachment and
before entry of judgment. — Whenever it
shall be made to appear to the court in which
the action is pending, upon hearing with
notice to both parties, that the property
attached is perishable, or that the interests
of all the parties to the action will be
subserved by the sale thereof, the court
may order such property to be sold at public
auction in such manner as it may direct, and
the proceeds of such sale to be deposited in
court to abide the judgment in the action.
(11a)
Section 12. Discharge of attachment upon
giving counter-bond. — After a writ of
attachment has been enforced, the party
whose property has been attached, or the
person appearing on his behalf, may move
for the discharge of the attachment wholly or
in part on the security given. The court shall,
after due notice and hearing, order the
discharge of the attachment if the movant
makes a cash deposit, or files a counter-
bond executed to the attaching party with
the clerk of the court where the application is
made, in an amount equal to that fixed by
the court in the order of attachment,
exclusive of costs. But if the attachment is
sought to be discharged with respect to a
particular property, the counter-bond shall be
equal to the value of that property as
determined by the court. In either case, the
cash deposit or the counter-bond shall secure
the payment of any judgment that the
attaching party may recover in the action. A
notice of the deposit shall forthwith be served
on the attaching party. Upon the discharge of
an attachment in accordance with the
provisions of this section, the property
attached, or the proceeds of any sale thereof,
shall be delivered to the party making the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
deposit or giving the counter-bond, or to
the person appearing on his behalf, the
deposit or counter-bond aforesaid
standing in place of the property so
released. Should such counter-bond for
any reason be found to be or become
insufficient, and the party furnishing the
same fail to file an additional counter-
bond, the attaching party may apply for a
new order of attachment. (12a)
Section 13. Discharge of attachment
on other grounds. — The party whose
property has been ordered attached may
file a motion with the court in which he
action is pending, before or after levy or
even after the release of the attached
property, for an order to set aside or
discharge the attachment on the ground
that the same was improperly or
irregularly issued or enforced, or that the
bond is insufficient. If the attachment is
excessive, the discharge shall be limited
to the excess. If the motion be made on
affidavits on the part of the movant but
not otherwise, the attaching party may
oppose the motion by counter-affidavits or
other evidence in addition to that on
which the attachment was made. After
due notice and hearing, the court shall
order the setting aside or the
corresponding discharge of the
attachment if it appears that it was
improperly or irregularly issued or
enforced, or that the bond is insufficient,
or that the attachment is excessive, and
the defect is not cured forthwith. (13a)
GROUNDS FOR DISCHARED OF PA: (are
Cumulative)
1. Debtor has posted a counter-bond or has
made the necessary cash deposit;
2. Attachment was improperly or irregularly
issued (sec. 13) as where this is no ground
for attachment, or affidavit and /or bond filed
therefore are defective (sec. 3);
3. Attachment is excessive, but discharge is
limited to the excess;
4. Property attached is exempt from execution;
5. Judgment is entered against the attaching
creditor.
Section 14. Proceedings where
property claimed by third person. — If
the property attached is claimed by any
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person other than the party against whom
attachment had been issued or his agent, and
such person makes an affidavit of his title
thereto, or right to the possession thereof,
stating the grounds of such right or title, and
serves such affidavit upon the sheriff while
the latter has possession of the attached
property, and a copy thereof upon the
attaching party, the sheriff shall not be bound
to keep the property under attachment,
unless the attaching party or his agent, on
demand of the sheriff, shall file 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. In case of
disagreement as to such value, the same
shall be decided by the court issuing the writ
of attachment. No claim for damages for the
taking or keeping of the property may be
enforced against the bond unless the action
therefor is filed within one hundred twenty
(120) days from the date of the filing of the
bond.
The sheriff shall not be liable for damages for
the taking or keeping of such property to any
such third-party claimant, if such bond shall
be filed. Nothing herein contained shall
prevent such claimant or any third person
from vindicating his claim to the property, or
prevent the attaching party from claiming
damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in
the same or a separate action.
When the writ of attachment is issued in
favor of the Republic of the Philippines, or
any officer duly representing it, the filing of
such bond shall not be required, and in case
the sheriff is sued for damages as a result of
the attachment, he shall be represented by
the Solicitor General, and if held liable
therefor, the actual damages adjudged by the
court shall be paid by the National Treasurer
out of the funds to be appropriated for the
purpose. (14a)
NOTE: Proceeding is substantially identical to
sec. 16, Rule 39
Parties; Third Party Claim (2000)
JK’s real property is being attached by the sheriff in a
civil action for damages against LM. JK claims that he is
not a party to the case; that his property is not involved
in said case; and that he is the sole registered owner of
said property. Under the Rules of Court, what must JK
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
do to prevent the Sheriff from attaching his
property? (5%)
SUGGESTED ANSER:
If the real property has been attached, the remedy is
to file a third-party claim. The third-party claimant
should make an affidavit of his title to the property
attached, stating the grounds of his title thereto, and
serve such affidavit upon the sheriff while the latter
has possession of the attached property, and a copy
thereof upon the attaching party. (Sec.14, Rule 57) The
third-party claimant may also intervene or file a
separate action to vindicate his claim to the property
involved and secure the necessary reliefs, such as
preliminary injunction, which will not be considered
as interference with a court of coordinate
jurisdiction. (Ong v. Tating, 149 SCRA 265, [1987])
Parties; Third-Party Claim (2005)
A obtained a money judgment against B. After the
finality of the decision, the court issued a writ of
execution for the enforcement thereof. Conformably
with the said writ, the sheriff levied upon certain
properties under B's name. C filed a third-party claim
over said properties claiming that B had already
transferred the same to him. A moved to deny the
third-party claim and to hold B and C jointly and
severally liable to him for the money judgment
alleging that B had transferred said properties to C
to defraud him (A). After due hearing, the court
denied the third-party claim and rendered an
amended decision declaring B and C jointly and
severally liable to A for the money judgment. Is the
ruling of the court correct? Explain.
(4%)
SUGGESTED ANSWER:
NO. C has not been properly impleaded as a party
defendant. He cannot be held liable for the judgment
against A without a trial. In fact, since no bond was
filed by B, the sheriff is liable to C for damages. C
can file a separate action to enforce his third-party
claim. It is in that suit that B can raise the ground of
fraud against C. However, the execution may
proceed where there is a finding that the claim is
fraudulent. (Tanongan v. Samson, G.R. No. 140889,
May 9, 2002)
Section 15. Satisfaction of judgment
out of property attached, return of
sheriff. — If judgment be recovered by
the attaching party and execution issue
thereon, the sheriff may cause the
judgment to be satisfied out of the
property attached, if it be sufficient for
that purpose in the following manner:
(a) By paying to the judgment obligee the
proceeds of all sales of perishable or other
property sold in pursuance of the order of
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the court, or so much as shall be necessary
to satisfy the judgment;
(b) If any balance remains due, by selling so
much of the property, real or personal, as
may be necessary to satisfy the balance, if
enough for that purpose remain in the
sheriff's hands, or in those the clerk of the
court;
(c) By collecting from all persons having in
their possession credits belonging to the
judgment obligor, or owing debts to the latter
at the time of the attachment of such credits
or debts, the amount of such credits and
debts as determined by the court in the
action, and stated in the judgment, and
paying the proceeds of such collection over to
the judgment obligee.
The sheriff shall forthwith make a return in
writing to the court of his proceedings under
this section and furnish the parties with
copies thereof. (15a)
Section 16. Balance due collected upon an
execution; excess delivered to judgment
obligor. — If after realizing upon all the
property attached, including the proceeds of
any debts or credits collected, and applying
the proceeds to the satisfaction of the
judgment less the expenses of proceedings
upon the judgment any balance shall remain
due, the sheriff must proceed to collect such
balance as upon ordinary execution.
Whenever the judgment shall have been
paid, the sheriff, upon reasonable demand,
must return to the judgment obligor the
attached property remaining in his hands,
and any proceeds of the sale of the property
attached not applied to the judgment. (16a)
Section 17. Recovery upon the counter-
bond. — When the judgment has become
executory, the surety or sureties on any
counter-bond given pursuant to the
provisions of this Rule to secure the payment
of the judgment shall become charged on
such counter-bond and bound to pay the
judgment obligee upon demand the amount
due under the judgment, which amount may
be recovered from such surety or sureties
after notice and summary hearing in the
same action. (17a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 18. Disposition of money
deposited. — Where the party against
whom attachment had been issued has
deposited money instead of giving
counter-bond, it shall be applied under the
direction of the court to the satisfaction of
any judgment rendered in favor of the
attaching party, and after satisfying the
judgment the balance shall be refunded to
the depositor or his assignee. If the
judgment is in favor of the party against
whom attachment was issued, the whole
sum deposited must be refunded to him or
his assignee. (18a)
Section 19. Disposition of attached
property where judgment is for party
against whom attachment was issued.
— If judgment be rendered against the
attaching party, all the proceeds of sales
and money collected or received by the
sheriff, under the order of attachment,
and all property attached remaining in any
such officer's hands, shall be delivered to
the party against whom attachment was
issued, and the order of attachment
discharged. (19a)
Section 20. Claim for damages on
account of improper, irregular or
excessive attachment. — An application
for damages on account of improper,
irregular or excessive attachment must be
filed before the trial or before appeal is
perfected or before the judgment becomes
executory, with due notice to the
attaching party and his surety or sureties
setting forth the facts showing his right to
damages and the amount thereof. Such
damages may be awarded only after
proper hearing and shall be included in
the judgment on the main case.
If the judgment of the appellate court be
favorable to the party against whom the
attachment was issued he must claim
damages sustained during the pendency
of the appeal by filing an application in the
appellate court, with notice to the party in
whose favor the attachment was issued or
his surety or sureties, before the
judgment of the appellate court becomes
executory. The appellate court may allow
the application to be heard and decided by
the trial court.
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Nothing herein contained shall prevent the
party against whom the attachment was
issued from recovering in the same action the
damages awarded to him from any property
of the attaching party not exempt from
execution should the bond or deposit given
by the latter be insufficient or fail to fully
satisfy the award. (20a)
Attachment; Bond (2008) No.VI. After his
properties were attached, defendant Porfirio
filed a sufficient counterbond. The trial court
discharged the attachment. Nonetheless,
Porfirio suffered substantial prejudice due to
the unwarranted attachment. In the end, the
trial court rendered a judgment in Porfirio’s
favor by ordering the plaintiff to pay damages
because the plaintiff was not entitled to the
attachment. Porfirio moved to charge the
plaintiff’s attachment bond. The plaintiff and
his sureties opposed the motion, claiming that
the filing of the counterbond had relieved the
plaintiff’s attachment bond from all liability for
the damages. Rule on Porfirio’s motion.
SUGGESTED ANSWER:
Porfirio’s motion to charge the plaintiff’s
attachment bond is proper. The filing of the
counterbond by the defendant does not
mean that he has waived his right to
proceed against the attachment bond for
damages. Under the law (Sec. 20, Rule 57),
an application for damages on account of
improper, irregular, or excessive
attachment is allowed. Such damages may
be awarded only after proper hearing and
shall be included in the judgment on the
main case. Moreover, nothing shall prevent
the party against whom the attachment was
issued from recovering in the same action
the damages awarded to him from any
property of the attaching party not exempt
from execution should the bond or deposit
given by the latter be insufficient or fail to
fully satisfy the award. (D.M. Wenceslao &
Associates, Inc. vs. Readycon Trading &
Construction Corp., G.R. No. 154106, 29
June 2004).
Judgment; Soundness; Attachment (2002)
The plaintiff obtained a writ of preliminary attachment
upon a bond of P1 million. The writ was levied on the
defendant’s property, but it was discharged upon the
posting by the defendant of a counterbond in the same
amount of P1 million. After trial, the court rendered
judgment finding that the plaintiff had no cause of
action against the defendant and that he had sued out
the writ of attachment maliciously. Accordingly, the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
court dismissed the complaint and ordered the
plaintiff and its surety to pay jointly to the defendant
P1.5 million as actual damages, P0.5 million as moral
damages and P0.5 million as exemplary damages.
Evaluate the soundness of the judgment from the
point of view of procedure. (5%)
SUGGESTED ANSWER:
The judgment against the surety is not sound if due
notice was not given to him of the applicant for
damages. (Rule 57, sec. 20) Moreover, the judgment
against the surety cannot exceed the amount of its
counterbond of P1 million.
Provisional Remedies; Attachment (1999)
May damages be claimed by a party prejudiced by a
wrongful attachment even if the judgment is adverse
to him? Explain. (2%)
SUGGESTED ANSWER:
Yes, damages may be claimed by a party prejudiced
by a wrongful attachment even if the judgment is
adverse to him. This is authorized by the Rules. A
claim, for damages may be made on account of
improper, irregular or excessive attachment, which
shall be heard with notice to the adverse party and
his surety or sureties. (Sec. 20, Rule 57; Javellana v. D.
O. Plaza Enterprises Inc., 32 SCRA 281.)
NOTE: Procedure for claiming damages
outlined in sec. 20 is EXCLUSIVE. Hence,
such claims for damages cannot be a subject
of an independent action.
Exceptions:
1. Where the principal case was dismissed
for lack of jurisdiction by the trial court
without giving an opportunity to the party
whose property was attached to apply
for and prove his claim;
2. Where damages by reason of the
attachment was sustained by a third
person who was not a party to the action
wherein such writ was issued.
RULE 58
Preliminary Injunction
Section 1. Preliminary injunction defined;
classes. — A preliminary injunction is
an order granted at any stage of an action
or proceeding prior to the judgment or
final order, requiring a party or a court,
agency or a person to refrain from a
particular act or acts. It may also require
the performance of a particular act or
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acts, in which case it shall be known as a immediately executory under sec. 4 ,
preliminary mandatory injunction. (1a) Rule 39.

 NOTE: PD 1818 prohibits the issuance of
injunctive writs not only against government
entities but also against persons or entities
involved in the execution, implementation, and
operation of government infrastructure projects.
GR: It will not issue against acts already
consummated.
Exception: If the acts complained of are
continuing in nature and were in derogation of
the plaintiff’s right at the outset.

 Injunction is also, generally not allowed on labor INJUNCTION PROHIBITION

disputes (art. 254, Labor Code) Directed against a court,
Directed against a tribunal or a person
 Section 10, Rule 2, RPEC. Prohibition party in the action exercising judicial or
against temporary restraining order (TRO) quasi-judicial or
and preliminary injunction. - Except the ministerial function
Supreme Court, no court can issue a TRO or Based on the ground that
writ of preliminary injunction against lawful Does not involve the court against whom
actions of government agencies that enforce jurisdiction of the the writ is issued had
environmental laws or prevent violations court acted without or in excess
thereof. of jurisdiction
It my be a main action
PRELIMINARY INJUNCTION or just a provisional Always the main action
Purpose: To preserve the status quo. remedy

Provisional Remedies; Injunction (2003) Provisional Remedies; Injunctions; Ancillary Remedy

Can a suit for injunction be aptly filed with the Supreme
Court to stop the President of the Philippines from
entering into a peace agreement with the National
Democratic Front? (4%)
SUGGESTED ANSWER:
No, a suit for injunction cannot aptly be filed with the
Supreme Court to stop the President of the Philippines
from entering into a peace agreement with the National
Democratic Front, which is a purely political question.
(Madarang v. Santamaria, 37 Phil. 304 [1917]). The President of
the Philippines is immune from suit.
PRELIMINARY MANDATORY INJUNCTION
Purpose: To restore status quo (last actual existing
status)
REQUISITES:
1. Invasion of the right is material and substantial;
2. Right of the complainant is clear and
unmistakable; and
Preliminary injunction will be granted only to
protect actual and existing substantial
rights. It is not intended to protect
contingent rights (cited in Pahila-Garido vs.
Tortogo, GR No. 156358, Aug. 17, 2011).
3. Urgent and paramount necessity of the writ to
prevent serious damage.
Injunction may be an action in itself, brought
specifically to restrain or command the
performance of an act. As an action it is
vs. Main Action (2006)
Distinguish between injunction as an ancillary
remedy and injunction as a main action. (2.5%)
SUGGESTED ANSWER:
Injunction as an ancillary remedy refers to the
preliminary injunction which requires the existence
of a pending principal case; while injunction as a
main action refers to the principal case itself that
prays for
the remedy of permanently restraining the adverse
party from doing or not doing the act complained
of.
Section 2. Who may grant preliminary
injunction. — A preliminary injunction
may be granted by the court where the
action or proceeding is pending. If the
action or proceeding is pending in the
Court of Appeals or in the Supreme
Court, it may be issued by said court or
any member thereof. (2a)
Section 3. Grounds for issuance of
preliminary injunction. — A preliminary
injunction may be granted when it is
established:
(a) That the applicant is entitled to the
relief demanded, and the whole or part of
such relief consists in restraining the
commission or continuance of the act or
acts complained of, or in requiring the

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________________________________________________________________________________________________
performance of an act or acts either for a
limited period or perpetually;
(b) That the commission, continuance or non-
performance of the act or acts complained of
during the litigation would probably work
injustice to the applicant; or
(c) That a party, court, agency or a person is
doing, threatening, or is attempting to do, or
is procuring or suffering to be done some act
or acts probably in violation of the rights of
the applicant respecting the subject of the
action or proceeding, and tending to render
the judgment ineffectual. (3a)
Bar Exam Question 2011
(82) The RTC of Malolos, Branch 1, issued a
writ of execution against Rene for P20 million.
The sheriff levied on a school building that
appeared to be owned by Rene. Marie,
however, filed a third party claim with the
sheriff, despite which, the latter scheduled the
execution sale. Marie then filed a separate
action before the RTC of Malolos, Branch 2,
which issued a writ of preliminary injunction
enjoining the sheriff from taking possession
and proceeding with the sale of the levied
property. Did Branch 2 correctly act in issuing
the injunction? (A) Yes, since the rules allow
the filing of the independent suit to check
the sheriff‟s wrongful act in levying on a
third party‟s property. (B) Yes, since Branch
2, like Branch 1, is part of the RTC of Malolos.
(C) No, because the proper remedy is to seek
relief from the same court which rendered the
judgment. (D) No, since it constitutes
interference with the judgment of a co-equal
court with concurrent jurisdiction.
Section 4. Verified application and bond
for preliminary injunction or temporary
restraining order. — A preliminary
injunction or temporary restraining order may
be granted only when:
(a) The application in the action or
proceeding is verified, and shows facts
entitling the applicant to the relief demanded;
and
(b) Unless exempted by the court the
applicant files with the court where the action
or proceeding is pending, a bond executed to
the party or person enjoined, in an amount to
be fixed by the court, to the effect that the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
applicant will pay to such party or person
all damages which he may sustain by
reason of the injunction or temporary
restraining order if the court should finally
decide that the applicant was not entitled
thereto. Upon approval of the requisite
bond, a writ of preliminary injunction shall
be issued. (4a)
(c) When an application for a writ of
preliminary injunction or a temporary
restraining order is included in a complaint
or any initiatory pleading, the case, if filed
in a multiple-sala court, shall be raffled
only after notice to and in the presence of
the adverse party or the person to be
enjoined. In any event, such notice shall
be preceded, or contemporaneously
accompanied, by service of summons,
together with a copy of the complaint or
initiatory pleading and the applicant's
affidavit and bond, upon the adverse party
in the Philippines.
However, where the summons could not
be served personally or by substituted
service despite diligent efforts, or the
adverse party is a resident of the
Philippines temporarily absent therefrom
or is a nonresident thereof, the
requirement of prior or contemporaneous
service of summons shall not apply.
(d) The application for a temporary
restraining order shall thereafter be acted
upon only after all parties are heard in a
summary hearing which shall be
conducted within twenty-four (24) hours
after the sheriff's return of service and/or
the records are received by the branch
selected by raffle and to which the records
shall be transmitted immediately.
Provisional Remedies; Injunctions; Issuance w/out
Bond (2006)
May a Regional Trial Court issue injunction without
bond? (2%)
SUGGESTED ANSWER:
Yes, if the injunction that is issued is a final
injunction. Generally, however, preliminary
injunction cannot issue
without bond unless exempted by the trial court (Sec.
4[b] of Rule 58).
Provisional Remedies; Injunctions; Requisites (2006)
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What are the requisites for the issuance of (a) a writ of
preliminary injunction; and (b) a final writ of
injunction? Requisites for the issuance of a:
SUGGESTED ANSWER:
a. Writ of Preliminary Injunction (Sec. 4, Rule 58 1997 Rules of
Civil Procedure) are —
(1) A verified complaint showing;
(2) The existence of a right in esse;
(3) Violation or threat of violation of such right;
(4) Damages or injuries sustained or that will be
sustained by reason of such violation;
(5) Notice to all parties of raffle and of hearing;
(6) Hearing on the application;
(7) Filing of an appropriate bond and service thereof.
SUGGESTED ANSWER:
b. While a final writ of injunction may be rendered by
judgment after trial, showing applicant to be entitled to
the writ (Sec. 9, Rule 58 1997 Rules of Civil Procedure).
Provisional Remedies; TRO (2006)
Define a temporary restraining order (TRO). (2%)
SUGGESTED ANSWER:
A temporary restraining order is an order issued to
restrain the opposite party and to maintain the status
quo until a hearing for determining the propriety of
granting a preliminary injunction (Sec. 4[c] and [d], Rule
58,1997 Rules of Civil Procedure).
Note: verification is needed if the complaint is
prepared by a lawyer. However, when it was
prepared and filed personally by the complainant,
verification was held not necessary.
Section 5. Preliminary injunction not
granted without notice; exception. — No
preliminary injunction shall be granted
without hearing and prior notice to the party
or person sought to be enjoined. If it shall
appear from facts shown by affidavits or by
the verified application that great or
irreparable injury would result to the
applicant before the matter can be heard on
notice, the court to which the application for
preliminary injunction was made, may issue a
temporary restraining order to be
effective only for a period of twenty (20) days
from service on the party or person sought to
be enjoined, except as herein provided.
Within the said twenty-day period, the court
must order said party or person to show
cause, at a specified time and place, why the
injunction should not be granted, determine
within the same period whether or not the
preliminary injunction shall be granted, and
accordingly issue the corresponding order.
(Bar Matter No. 803, 17 February 1998)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
However, and subject to the provisions of
the preceding sections, if the matter is of
extreme urgency and the applicant
will suffer grave injustice and
irreparable injury, the executive judge
of a multiple-sala court or the presiding
judge of a single sala court may issue ex
parte a temporary restraining order
effective for only seventy-two (72)
hours from issuance but he shall
immediately comply with the provisions of
the next preceding section as to service of
summons and the documents to be served
therewith. Thereafter, within the aforesaid
seventy-two (72) hours, the judge before
whom the case is pending shall conduct a
summary hearing to determine whether
the temporary restraining order shall be
extended until the application for
preliminary injunction can be heard. In no
case shall the total period of effectivity of
the temporary restraining order exceed
twenty (20) days, including the original
seventy-two hours provided herein.
In the event that the application for
preliminary injunction is denied or not
resolved within the said period, the
temporary restraining order is deemed,
automatically vacated. The effectivity of a
temporary restraining order is not
extendible without need of any judicial
declaration to that effect and no court
shall have authority to extend or renew
the same on the same ground for which it
was issued.
However, if issued by the Court of
Appeals or a member thereof, the
temporary restraining order shall be
effective for sixty (60) days from service
on the party or person sought to be
enjoined. A restraining, order issued by
the Supreme Court or a member thereof
shall be effective until further orders. (5a)
Bar Exam Question 2012
91. In Petition for Certiorari, the Court of
Appeals issues a Writ of Preliminary
Injunction against the RTC restraining the
latter from trying a crucial case. The Court
of Appeals should therefore:
a. decide the main case within 60 days.
b. decide the certiorari petition within 6
months.
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c. decide the main case or the petition within
60 days.
d. decide the main case or the petition
within 6
months from issue of the preliminary
injunction.
SUGGESTED ANSWER: (d), The trial court,
the Court of Appeals, the Sandiganbayan or
the Court of Tax appeals that issued a writ
of preliminary injunction against a lower
court, board, officer, or quasi-judicial
agency shall decide the main case or
petition within six (6) months from the
issuance of the writ. (Rule 58, Sec. 5, as
amended by A>M. No. 07-7-12-SC).
Provisional Remedies; TRO; CA Justice Dept. (2006)
May a justice of a Division of the Court of Appeals issue
a TRO? (2%)
SUGGESTED ANSWER:
Yes, a justice of a division of the Court of Appeals may
issue a TRO, as authorized under Rule 58 and by Section
5, Rule IV of the IRCA which additionally requires that
the action shall be submitted on the next working day to
the absent members of the division for the ratification,
modification or recall (Heirs of the late Justice Jose B.L.
Reyes v. Court of Appeals, G.R. Nos. 135425-26, November
14, 2000).
Provisional Remedies; TRO; Duration (2006)
What is the duration of a TRO issued by the Executive
Judge of a Regional Trial Court? (2%)
SUGGESTED ANSWER:
In cases of extreme urgency, when the applicant will
suffer grave injustice and irreparable injury, the duration
of a TRO issued ex parte by an Executive
Judge of a Regional Trial Court is 72 hours (2nd par. of
Sec.5, Rule 58 1997 Rules of Civil Procedure). In the exercise of his
regular functions over cases assigned to his sala, an
Executive Judge may issue a TRO for a duration not
exceeding a total of 20 days.
INJUCTION TRO
Does not exceed 20
May exceed 20 days days in trial courts; 60
days in CA; indefinite
in the SC, until further
order.
Restrains or requires
the performance of Maintains status quo
particular acts
STATUS QUO ORDER
It is resorted to when the projected proceedings in
the case made the conservation of the status quo
desirable or essential, but affected party neither
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
sought such relief nor did the allegations in his
pleadings sufficiently make out a case for a
TRO.
TRO STATUS QUO
ORDER
Summary hearing Issued motu proprio
Prevents the doing of Does not direct the
an act doing or undoing of
particular act
Requires the posting Does not require
of a bond posting of bond
Provisional Remedies; TRO vs. Status Quo Order
(2006)
Differentiate a TRO from a status quo order. (2%)
SUGGESTED ANSWER:
A status quo order (SQO) is more in the nature of a
cease and desist order, since it does not direct the
doing or undoing of acts, as in the case of
prohibitory or mandatory injunctive relief. A TRO is
only good for 20 days if issued by the RTC; 60 days
if issued by the CA; until further notice if issued by
the SC. The SQO is without any prescriptive period
and may be issued without a bond. A TRO dies a
natural death after the allowable period; the SQO
does not. A TRO is provisional. SQO lasts until
revoked. A TRO is not extendible, but the SQO may
be subject to agreement of the parties.
NOTE: If the application is denied or not
resolved within said period, the TRO is
automatically vacated.
Petition for Relief; Injunction (2002)
A default judgment was rendered by the RTC
ordering D to pay P a sum of money. The judgment
became final, but D filed a petition for relief and
obtained a writ of preliminary injunction staying the
enforcement of the judgment. After hearing, the
RTC dismissed D’s petition, whereupon P
immediately moved for the execution of the
judgment in his favor. Should P’s motion be
granted? Why? (3%)
SUGGESTED ANSWER:
P’s immediate motion for execution of the judgment
in his favor should be granted because the dismissal
of D’s petition for relief also dissolves the writ of
preliminary injunction staying the enforcement of
the judgment, even if the dismissal is not yet final.
[Golez v. Leonidas, 107 SCRA 187 (1981)].
The effectivity of the TRO is not extendible.
There is no need for a judicial declaration to that
effect.
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INJURY is considered IRREPARABLE if it is of such
constant and frequent recurrence that no fair or
reasonable redress can be had therefore in court of
law or where there is no standard by which their
amount can be measured with reasonable accuracy.
Provisional Remedies; Injunction (2001)
May a writ of preliminary injunction be issued exparte?
Why? (3%)
SUGGESTED ANSWER:
No, a writ of preliminary injunction may not be issued
ex parte. As provided in the Rules, no preliminary
injunction shall be granted without hearing and prior
notice to the party or person sought to be enjoined. (Sec.
5 of Rule 58) The reason is that a preliminary injunction
may cause grave and irreparable injury to the party
enjoined.
Provisional Remedies; TRO (2001)
An application for a writ of preliminary injunction with a
prayer for a temporary restraining order is included in a
complaint and filed in a multi-sala RTC consisting of
Branches 1,2,3 and 4. Being urgent in nature, the
Executive Judge, who was sitting in Branch 1, upon the
filing of the aforesaid application immediately raffled the
case in the presence of the judges of Branches 2,3 and 4.
The case was raffled to Branch 4 and judge thereof
immediately issued a temporary restraining order. Is the
temporary restraining order valid? Why? (5%)
SUGGESTED ANSWER:
No. It is only the Executive Judge who can issue
immediately a temporary restraining order effective only
for seventy-two (72) hours from issuance. No other
Judge has the right or power to issue a temporary
restraining order ex parte. The Judge to whom the case
is assigned will then conduct a summary hearing to
determine whether the temporary restraining order shall
be extended, but in no case beyond 20 days, including
the original 72hour period. (Sec. 5 of Rule 58)
ALTERNATIVE ANSWER:
The temporary restraining order is not valid because the
question does not state that the matter is of extreme
urgency and the applicant will suffer grave injustice and
irreparable injury. (Sec. 5 of Rule 58)
Section 6. Grounds for objection to, or for
motion of dissolution of, injunction or
restraining order. — The application for
injunction or restraining order may be
denied, upon a showing of its insufficiency.
The injunction or restraining order may also
be denied, or, if granted, may be dissolved,
on other grounds upon affidavits of the party
or person enjoined, which may be opposed by
the applicant also by affidavits. It may further
be denied, or if granted, may be dissolved, if
it appears after hearing that although the
applicant is entitled to the injunction or
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
restraining order, the issuance or
continuance thereof, as the case may be,
would cause irreparable damage to the
party or person enjoined while the
applicant can be fully compensated for
such damages as he may suffer, and the
former files a bond in an amount fixed by
the court conditioned that he will pay all
damages which the applicant may suffer
by the denial or the dissolution of the
injunction or restraining order. If it
appears that the extent of the preliminary
injunction or restraining order granted is
too great, it may be modified. (6a)
Section 7. Service of copies of bonds;
effect of disapproval of same. — The
party filing a bond in accordance with the
provisions of this Rule shall forthwith
serve a copy of such bond on the other
party, who may object to the sufficiency
of the bond, or of the surety or sureties
thereon. If the applicant's bond is found to
be insufficient in amount, or if the surety
or sureties thereon fail to justify, and a
bond sufficient in amount with sufficient
sureties approved after justification is not
filed forthwith the injunction shall be
dissolved. If the bond of the adverse party
is found to be insufficient in amount, or
the surety or sureties thereon fail to
justify a bond sufficient in amount with
sufficient sureties approved after
justification is not filed forthwith, the
injunction shall be granted or restored, as
the case may be. (8a)
Section 8. Judgment to include
damages against party and sureties.
— At the trial, the amount of damages to
be awarded to either party, upon the bond
of the adverse party, shall be claimed,
ascertained, and awarded under the same
procedure prescribed in section 20 of Rule
57. (9a)
Section 9. When final injunction
granted. — If after the trial of the action
it appears that the applicant is entitled to
have the act or acts complained of
permanently enjoined the court shall grant
a final injunction perpetually
restraining the party or person enjoined
from the commission or continuance of
the act or acts of confirming the
preliminary mandatory injunction. (10a)
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RULE 59
Receivership
RECEIVER
He is the person appointed by the court in behalf of
all the parties to an action for the purpose of
preserving the property involved in the suit and to
protect the rights of all the parties under direction of
the court.
Receiver is NOT an AGENT of the plaintiff or the
defendant. He is an officer of the court.
Receivership is a harsh remedy, granted only in
extreme situations (making vs. Marfori, GR No.
152239, Aug. 17, 2011).
Judgment in receivership is immediately
executory (Rule 39, sec. 4).
Section 1. Appointment of receiver. —
Upon a verified application, one or more
receivers of the property subject of the action
or proceeding may be appointed by the court
where the action is pending or by the Court
of Appeals or by the Supreme Court, or a
member thereof, in the following cases:
(a) When it appears from the verified
application, and such other proof as the court
may require, that the party applying for the
appointment of a receiver has an interest in
the property or fund which is the subject of
the action or proceeding, and that such
property or fund is in danger of being lost,
removed, or materially injured unless a
receiver be appointed to administer and
preserve it;
(b) When it appears in an action by the
mortgagee for the foreclosure of a mortgage
that the property is in danger of being
wasted or dissipated or materially injured,
and that its value is probably insufficient to
discharge the mortgage debt, or that the
parties have so stipulated in the contract of
mortgage;
(c) After judgment, to preserve the
property during the pendency of an
appeal, or to dispose of it according to the
judgment, or to aid execution when the
execution has been returned unsatisfied or
the judgment obligor refuses to apply his
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
property in satisfaction of the judgment,
or otherwise to carry the judgment into
effect;
(d) Whenever in other cases it appears
that the appointment of a receiver is the
most convenient and feasible means of
preserving, administering, or disposing of
the property in litigation.
During the pendency of an appeal, the
appellate court may allow an application
for the appointment of a receiver to be
filed in and decided by the court of origin
and the receiver appointed to be subject
to the control of said court. (1a)
Bar Exam Question 2011
(7) Which of the following is NOT within the
power of a judicial receiver to perform? (A)
Bring an action in his name. (B)
Compromise a claim. (C) Divide the residual
money in his hands among the persons
legally entitled to the same. (D) Invest the
funds in his hands without court
approval.
Provisional Remedies; Receivership (2001)
Joaquin filed a complaint against Jose for the
foreclosure of a mortgage of a furniture factory with
a large number of machinery and equipment. During
the pendency of the foreclosure suit, Joaquin learned
from reliable sources that Jose was quietly and
gradually disposing of some of his machinery and
equipment to a businessman friend who was also
engaged in furniture manufacturing such that from
confirmed reports Joaquin gathered, the machinery
and equipment left with Jose were no longer
sufficient to answer for the latter’s mortgage
indebtedness. In the meantime judgment was
rendered by the court in favor of Joaquin but the
same is not yet final. Knowing what Jose has been
doing. If you were
Joaquin’s lawyer, what action would you take to
preserve
whatever remaining machinery and equipment are
left
with Jose? Why? (5%)
SUGGESTED ANSWER:
To preserve whatever remaining machinery and
equipment are left with Jose, Joaquin’s lawyer should
file a verified application for the appointment by the
court of one or more receivers. The Rules provide
that receivership is proper in an action by the
mortgagee for the foreclosure of a mortgage when it
appears that the property is in danger of being
wasted or dissipated or materially injured and that its
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value is probably insufficient to discharge the mortgage
debt. (Sec. 1 of Rule 59).
Section 2. Bond on appointment of
receiver. — Before issuing the order
appointing a receiver the court shall require
the applicant to file a bond executed to the
party against whom the application is
presented, in an amount to be fixed by the
court, to the effect that the applicant will pay
such party all damages he may sustain by
reason of the appointment of such receiver in
case the applicant shall have procured such
appointment without sufficient cause; and the
court may, in its discretion, at any time after
the appointment, require an additional bond
as further security for such damages. (3a)
Section 3. Denial of application or
discharge of receiver. — The application
may be denied, or the receiver discharged,
when the adverse party files a bond executed
to the applicant, in an amount to be fixed by
the court, to the effect that such party will
pay the applicant all damages he may suffer
by reason of the acts, omissions, or other
matters specified in the application as ground
for such appointment. The receiver may also
be discharged if it is shown that his
appointment was obtained without sufficient
cause. (4a)
RECEIVERSHIP may be denied or lifted if:
1. Appointment is without sufficient cause;
2. Adverse party files a sufficient bond;
3. Bond of applicant is insufficient;
4. Bond of receiver is insufficient.
Section 4. Oath and bond of receiver. —
Before entering upon his duties, the receiver
shall be sworn to perform them faithfully, and
shall file a bond, executed to such person and
in such sum as the court may direct, to the
effect that he will faithfully discharge his
duties in the action or proceeding and obey
the orders of the court. (5a)
Note: actions of the receiver without authority
from the court are personal acts of the receiver.
Section 5. Service of copies of bonds;
effect of disapproval of same. — The
person filing a bond in accordance with the
provisions of this Rule shall forthwith serve a
copy thereof on each interested party, who
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
may object to its sufficiency or of the
surety or sureties thereon. If either the
applicant’s or the receiver’s bond is found
to be insufficient in amount, or if the
surety or sureties thereon fail to justify,
and a bond sufficient in amount with
sufficient sureties approved after
justification is not filed forthwith, the
application shall be denied or the receiver
discharged, as the case may be. If the
bond of the adverse party is found to be
insufficient in amount or the surety or
sureties thereon fail to justify, and a bond
sufficient in amount with sufficient
sureties approved after justification is not
filed forthwith, the receiver shall be
appointed or re-appointed, as the case
may be. (6a)
Section 6. General powers of receiver.
— Subject to the control of the court in
which the action or proceeding is pending
a receiver shall:
1. have the power to bring and defend, in
such capacity, actions in his own
name;
2. to take and keep possession of the
property in controversy;
3. to receive rents; to collect debts due
to himself as receiver or to the fund,
property, estate, person, or
corporation of which he is the receiver;
4. to compound for and compromise the
same;
5. to make transfers;
6. to pay outstanding debts;
7. to divide the money and other
property that shall remain among the
persons legally entitled to receive the
same; and generally to do such acts
respecting the property as the court
may authorize. However, funds in the
hands of a receiver may be invested
only by order of the court upon the
written consent of all the parties to the
action. (7a)
No action may be filed by or against a
receiver without leave of the court which
appointed him. (n)
Section 7. Liability for refusal or
neglect to deliver property to
receiver. — A person who refuses or
neglects, upon reasonable demand, to
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deliver to the receiver all the property,
money, books, deeds, notes, bills, documents
and papers within his power or control,
subject of or involved in the action or
proceeding, or in case of disagreement, as
determined and ordered by the court, may be
punished for contempt and shall be liable
to the receiver for the money or the value of
the property and other things so refused or
neglected to be surrendered, together with all
damages that may have been sustained by
the party or parties entitled thereto as a
consequence of such refusal or neglect. (n)
Bar Exam Question 2011
(11) Which of the following is in accord with
the applicable rules on receivership? (A) The
court may appoint the plaintiff as receiver of
the property in litigation over the defendant’s
objection. (B) A receiver may be appointed
after judgment if the judgment obligor
refuses to apply his property to satisfy the
judgment. (C) The trial court cannot appoint a
receiver when the case is on appeal. (D) The
filing of bond on appointment of a receiver is
mainly optional.
Note: Property in custody of the law is not subject
to receivership.
Section 8. Termination of receivership;
compensation of receiver. — Whenever
the court, motu proprio or on motion of either
party, shall determine that the necessity for a
receiver no longer exists, it shall, after due
notice to all interested parties and hearing,
settle the accounts of the receiver, direct the
delivery of the funds and other property in
his possession to the person adjudged to be
entitled to receive them and order the
discharge of the receiver from further duty as
such. The court shall allow the receiver such
reasonable compensation as the
circumstances of the case warrant, to be
taxed as costs against the defeated party, or
apportioned, as justice requires. (8a)
Section 9. Judgment to include recovery
against sureties. — The amount, if any, to
be awarded to any party upon any bond filed
in accordance with the provisions of this Rule,
shall be claimed, ascertained, and granted
under the same procedure prescribed in
section 20 of Rule 57. (9a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
RULE 60
Replevin
NOTE: Repliven may be a provisional remedy or
a main suit at the same time. If it is the main
action, jurisdiction depends upon the amount of
the personal property as alleged in the
complaint.
Upon dismissal of the case, without prejudice,
for failure to prosecute, the writ of seizure which
is merely auxiliary in nature becomes functus
oficio and should be lifted. Property must be
returned (Advent Capital vs. Young, GR No.
183018, Aug 3, 2011).
Provisional Remedies; Replevin (1999)
What is Replevin? (2%)
SUGGESTED ANSWER:
Replevin or delivery of personal property consists in
the delivery, by order of the court, of personal
property by the defendant to the plaintiff, upon the
filing of a bond. (Calo v. Roldan, 76 Phil. 445 [1946])
Section 1. Application. — A party praying
for the recovery of possession of
personal property may, at the
commencement of the action or at any
time before answer, apply for an order
for the delivery of such property to him, in
the manner hereinafter provided. (1a)
NOTE: RTC has no jurisdiction to issue writ of
repliven against DENR official who seized
lumber/timber for violation of PD 705; Remedy
is with the Secretary of DENR.
Section 2. Affidavit and bond. — The
applicant must show by his own affidavit
or that of some other person who
personally knows the facts:
(a) That the applicant is the owner of the
property claimed, particularly describing
it, or is entitled to the possession thereof;
(b) That the property is wrongfully
detained by the adverse party, alleging
the cause of detention thereof according
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to the best of his knowledge, information, NOTE: There can be no repliven and preliminary
and belief ; attachment in the same case because their
purposes are different. Rule 57 is for security,
(c) That the property has not been distrained while Rule 60 is for recovery of possession.
or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of Bar Exam Question 2011
execution or preliminary attachment, or (20) Which of the following has NO PLACE
otherwise placed under custodia legis, or if so in an application for a replevin order? A
seized, that it is exempt from such seizure or statement (A) that the property is
wrongfully detained by the adverse party.
custody; and
(B) that the property has not been
distrained for a tax assessment or placed
(d) The actual market value of the property. under custodia legis.
(C) of the assessed value of the property.
The applicant must also give a bond, (D) that the applicant owns or has a right to
executed to the adverse party in double the the possession of the property.
value of the property as stated in the
affidavit aforementioned, for the return of the
property to the adverse party if such return
be adjudged, and for the payment to the Bar Exam Question 2011
adverse party of such sum as he may recover (18) Which of the following conforms to the
from the applicant in the action. (2a) applicable rule on replevin? (A) The
applicant must file a bond executed to the
Bar Exam Question 2011 adverse party in an amount equal to the
(74) When is the defendant entitled to the value of the property as determined by the
return of the property taken under a writ of court. (B) The property has been
replevin? (A) When the plaintiff‟s bond is wrongfully detained by the adverse
found insufficient or defective and is not party. (C) The applicant has a contingent
replaced. (B) When the defendant posts a claim over the property object of the writ.
redelivery bond equal to the value of the (D) The plaintiff may apply for the writ at
property seized. (C) When the plaintiff takes any time before judgment.
the property and disposes of it without the
sheriff’s approval. (D) When a third party Section 3. Order. — Upon the filing of
claims the property taken yet the applicant such affidavit and approval of the bond,
does not file a bond in favor of the sheriff. the court shall issue an order and the
corresponding writ of replevin, describing
the personal property alleged to be
wrongfully detained and requiring the
REPLEVIN ATTACHMENT sheriff forthwith to take such property into
May be sought only Available even if his custody. (3a)
when the principal recovery of personal
action is recovery of property is only Section 4. Duty of the sheriff. — Upon
personal property incidental to the relief
receiving such order, the sheriff must
sought
serve a copy thereof on the adverse party,
Can be sought only May be resorted to
together with a copy of the application,
when defendant is in even if the property is in
actual possession of possession of a third affidavit and bond, and must forthwith
the property person take the property, if it be in the
Cannot be availed Can be availed of even possession of the adverse party, or his
when the property is in if property is in custodia agent, and retain it in his custody. If the
custodia legis legis property or any part thereof be concealed
Available before Available from in a building or enclosure, the sheriff must
defendant answer. commencement but demand its delivery, and if it be not
Thus, available only in before entry of delivered, he must cause the building or
the trial courts. judgment enclosure to be broken open and take the
Bond is double the Bond is fixed by the property into his possession. After the
value of the property court sheriff has take possession of the property
as herein provided, he must keep it in a

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secure place and shall be responsible for its
delivery to the party entitled thereto upon
receiving his fees and necessary expenses for
taking and keeping the same. (4a)
Section 5. Return of property. — If the
adverse party objects to the sufficiency of the
applicant's bond, or of the surety or sureties
thereon, he cannot immediately require the
return of the property, but if he does not so
object, he may, at any time before the
delivery of the property to the applicant,
require the return thereof, by filing with the
court where the action is pending a bond
executed to the applicant, in double the value
of the property as stated in the applicant's
affidavit for the delivery thereof to the
applicant, if such delivery be adjudged, and
for the payment of such sum, to him as may
be recovered against the adverse party, and
by serving a copy of such bond on the
applicant. (5a)
Section 6. Disposition of property by
sheriff. — If within five (5) days after the
taking of the property by the sheriff, the
adverse party does not object to the
sufficiency of the bond, or of the surety or
sureties thereon; or if the adverse party so
objects and the court affirms its approval of
the applicant's bond or approves a new bond,
or if the adverse party requires the return of
the property but his bond is objected to and
found insufficient and he does not forthwith
file an approved bond, the property shall be
delivered to the applicant. If for any reason
the property is not delivered to the applicant,
the sheriff must return it to the adverse
party. (6a)
Note: The underlined portion refers to the Re-
delivery bond filed by the defendant.
Section 7. Proceedings where property
claimed by third person. — If the property
taken is claimed by any person other than
the party against whom the writ of replevin
had been issued or his agent, and such
person makes an affidavit of his title thereto,
or right to the possession thereof, stating the
grounds therefor, and serves such affidavit
upon the sheriff while the latter has
possession of the property and a copy
thereof upon the applicant, the sheriff shall
not be bound to keep the property under
replevin or deliver it to the applicant unless
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the applicant or his agent, on demand of
said sheriff, shall file a bond approved by
the court to indemnify the third-party
claimant in a sum not less than the value
of the property under replevin as provided
in section 2 hereof. In case of
disagreement as to such value, the court
shall determine the same. No claim for
damages for the taking or keeping, of the
property may be enforced against the
bond unless the action therefor is filed
within one hundred twenty (120) days
from the date of the filing of the bond.
The sheriff shall not be liable for damages,
for the taking or keeping of such property,
to any such third-party claimant if such
bond shall be filed. Nothing herein
contained shall prevent such claimant or
any third person from vindicating his claim
to the property, or prevent the applicant
from claiming damages against a third-
party claimant who filed a frivolous or
plainly spurious claim, in the same or a
separate action.
When the writ of replevin is issued in
favor of the Republic of the Philippines, or
any officer duly representing it, the filing
of such bond shall not be required, and in
case the sheriff is sued for damages as a
result of the replevin, he shall be
represented by the Solicitor General, and
if held liable therefor, the actual damages
adjudged by the court shall be paid by the
National Treasurer out of the funds to be
appropriated for the purpose. (7a)
Note: In section 14 of Rule 57, the affidavit is
served upon the sheriff while he has
possession of the attached property. In section
7 of Rule 60, the affidavit is served within the 5
days the sheriff has possession, in connection
with section 6.
Section 8. Return of papers. — The
sheriff must file the order, with his
proceedings indorsed, thereon, with the
court within ten (10) days after taking the
property mentioned therein. (8a)
Section 9. Judgment. — After trial of the
issues the court shall determine who has
the right of possession to and the value of
the property and shall render judgment in
the alternative for the delivery thereof to
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the party entitled to the same, or for its value
in case delivery cannot be made, and also for
such damages as either party may prove,
with costs. (9a)
Section 10. Judgment to include recovery
against sureties. — The amount, if any, to
be awarded to any party upon any bond filed
in accordance with the provisions of this Rule,
shall be claimed, ascertained, and granted
under the same procedure as prescribed in
section 20 of Rule 57. (10a)
RULE 61
Support Pendente Lite
Note: Support is immediately executory under Rule
39, sec.4.
The judgment for support, with respect to the
amount thereof, is subject to amendment from
time to time depending upon the needs of the
recipient and the financial capacity of the person
obliged to give support.
Section 1. Application. — At the
commencement of the proper action or
proceeding, or at any time prior to the
judgment or final order, a verified
application for support pendente lite may be
filed by any party stating the grounds for the
claim and the financial conditions of both
parties, and accompanied by affidavits,
depositions or other authentic documents in
support thereof. (1a)
Section 2. Comment. — A copy of the
application and all supporting documents
shall be served upon the adverse party, who
shall have five (5) days to comment thereon
unless a different period is fixed by the court
upon his motion. The comment shall be
verified and shall be accompanied by
affidavits, depositions or other authentic
documents in support thereof. (2a, 3a)
Section 3. Hearing. — After the comment is
filed, or after the expiration of the period for
its filing, the application shall be set for
hearing not more than three (3) days
thereafter. The facts in issue shall be proved
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
in the same manner as is provided for
evidence on motions. (4a)
Section 4. Order. — The court shall
determine provisionally the pertinent
facts, and shall render such orders as
justice and equity may require, having the
regard to the probable outcome of the
case and such other circumstances as may
aid in the proper resolution of the
question involved. If the application is
granted, the court shall fix the amount of
money to be provisionally paid or such
other forms of support as should be
provided, taking into account the
necessities of the applicant and the
resources or means of the adverse party,
and the terms of payment or mode for
providing the support. If the application is
denied, the principal case shall be tried
and decided as early as possible. (5a)
Section 5. Enforcement of order. — If
the adverse party fails to comply with an
order granting support pendente lite, the
court shall, motu proprio or upon motion;
issue an order of execution against him,
without prejudice to his liability for
contempt. (6a)
When the person ordered to give support
pendente lite refuses or fails to do so, any
third person who furnished that support to
the applicant may, after due notice and
hearing in the same case obtain a writ of
execution to enforce his right of
reimbursement against the person
ordered to provide such support. (h)
Provisional Remedies; Support Pendente Lite (1999)
Before the RTC, A was charged with rape of his
16year old daughter. During the pendency of the
case, the daughter gave birth to a child allegedly as a
consequence of the rape. Thereafter, she asked the
accused to support the child, and when he refused,
the
former filed a petition for support pendente lite. The
accused, however, insists that he cannot be made to
give such support arguing that there is as yet no
finding as to his guilt. Would you agree with the trial
court if it denied the application for support
pendente lite? Explain. (2%)
SUGGESTED ANSWER:
No. The provisional remedy of support pendente lite
may be granted by the RTC in the criminal action for
rape. In criminal actions where the civil liability
includes support for the offspring as a consequence
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of the crime and the civil aspect thereof has not been
waived, reserved or instituted prior to its filing, the
accused may be ordered to provide support pendente lite
to the child born to the offended party allegedly because
of the crime. (Sec. 6 of Rule 61.)
Section 6. Support in criminal cases. — In
criminal actions where the civil liability
includes support for the offspring as a
consequence of the crime and the civil aspect
thereof has not been waived, reserved and
instituted prior to its filing, the accused may
be ordered to provide support pendente lite
to the child born to the offended party
allegedly because of the crime. The
application therefor may be filed successively
by the offended party, her parents,
grandparents or guardian and the State in
the corresponding criminal case during its
pendency, in accordance with the procedure
established under this Rule. (n)
Provisional Remedies; Support Pendente Lite (2001)
Modesto was accused of seduction by Virginia, a poor,
unemployed young girl, who has a child by Modesto.
Virginia was in dire need of pecuniary assistance to keep
her child, not to say of herself, alive. The criminal case is
still pending in court and although the civil liability
aspect of the crime has not been waived or reserved for
a separate civil action, the trial for the case was foreseen
to take two long years because of the heavily clogged
court calendar before the judgment may be rendered. If
you were the lawyer of Virginia, what action should you
take to help Virginia in the meantime especially with the
problem of feeding the child? (5%)
SUGGESTED ANSWER:
To help Virginia in the meantime, her lawyer should
apply for Support Pendente Lite as provided in the Rules. In
criminal actions where the civil liability included support
for the offspring as a consequence of the crime and the
civil aspect thereof has not been waived or reserved for a
separate civil action, the accused may be ordered to
provide support pendent elite to the
child born to the offended party. (Sec. 6 of Rule 61)
Art. 345, RPC. Civil liability of persons guilty of
crimes against chastity. — Person guilty of rape,
seduction or abduction shall also be sentenced:
(3). In every case to support the offspring.
Section 7. Restitution. — When the
judgment or final order of the court finds that
the person who has been providing support
pendente lite is not liable therefor, it shall
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
order the recipient thereof to return to
the former the amounts already paid
with legal interest from the dates of actual
payment, without prejudice to the right of
the recipient to obtain reimbursement
in a separate action from the person
legally obliged to give the support. Should
the recipient fail to reimburse said
amounts, the person who provided the
same may likewise seek reimbursement
thereof in a separate action from the
person legally obliged to give such
support. (n)
NOTE: Pertinent provisions of the Family
Code:
Art. 194. Support comprises everything
indispensable for sustenance, dwelling,
clothing, medical attendance, education and
transportation, in keeping with the financial
capacity of the family.
The education of the person entitled to be
supported referred to in the preceding
paragraph shall include his schooling or
training for some profession, trade or
vocation, even beyond the age of majority.
Transportation shall include expenses in going
to and from school, or to and from place of
work. (290a)
Art. 195. Subject to the provisions of the
succeeding articles, the following are obliged to
support each other to the whole extent set
forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and
descendants;
(3) Parents and their legitimate children
and the legitimate and illegitimate
children of the latter;
(4) Parents and their illegitimate children
and the legitimate and illegitimate
children of the latter; and
(5) Legitimate brothers and sisters,
whether of full or half-blood.
Art. 201. The amount of support, in the cases
referred to in Articles 195 and 196, shall be in
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proportion to the resources or means of the giver
and to the necessities of the recipient

Art. 202. Support in the cases referred to in the

preceding article shall be reduced or increased
proportionately, according to the reduction or
increase of the necessities of the recipient and
the resources or means of the person obliged to
furnish the same.

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PROVISIONAL REMEDIES

PRELIMINARY PRELIMINARY RECEIVERSHIP REPLEVIN SUPPORT PENDENTE

ATTACHMENT INJUNCTION/MANDATORY LITE
INJUNCTION

PURPOSE 1. To have the property To require a party (a court, To place the property To recover possession To compel adverse party
of adverse party agency) or a person to subject of an action or of personal property to give support while the
attached as security for refrain from doing a proceeding under the action is pending
the satisfaction of particular act or require the control of a third party for
judgment that may be performance of particular act its preservation and
recovered in cases or acts administration pending
falling under sec. 1; litigation.

2. to enable the court to

acquire jurisdiction over
the action by actual or
constructive seizure of
the property in those
instances where
personal service of
summons on the
creditor cannot be had

WHEN
APPLIED/GRANTED At the commencement At any stage prior to the At any time prior to the At the commencement At the commencement of
of action or at any time judgment or final order satisfaction of judgment of action but before action or at any time prior
before entry of answer is filed to judgment or final order
judgment

HOW APPLIED FOR File affidavits and File verified application and
applicant’s bond applicant’s bond; if
application is included in the
initiatory pleading, the
adverse party should be
served with summons
together with a copy of the
initiatory pleading and the
applicants bond
File verified application File affidavits and File verified application.
and applicant’s bond. applicant’s bond No bond required
Application may also be
included in initiatory
pleading in actions for
foreclosure of mortgage

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Court where the action Only the court where the Court where the action is
is pending, the CA or action is pending; lower pending, CA or SC even if
WHO MAY GRANT SC even if the action is court, CA or SC provided the the action is pending in Only the court where Court of origin and
still pending with the action is pending within the the lower court. Appellate the action is pending appellate court (Ramos
lower court same court which issues the court may allow vs. CA)
injunction application for
receivership to be
decided by the court of
origin

1. Sufficient 1. Applicant is entitled 1. Property or fund 1. Applicant is 1. Affidavits;

cause of to the relief is in danger of the owner of 2. Depositions;
REQUISITES action; demanded; being lost or the property 3. Other
2. Case covered 2. Acts complained of removed or claimed or is documents
by section 1; would work injustice materially entitled to the showing at least
3. No other to the applicant if injured; possession of provisionally that
sufficient not injoined; 2. Appointment of a the same; applicant is
security for the 3. Acts sought to be receiver is the 2. Property is entitled t receive
claim exists; injoined probably most convenient wrongfully support
4. Amount due to violates applicant’s and feasible detained by
the applicant rights respecting means of the adverse
or value of the subject of the preserving, party;
property he is action or administering or 3. Property is not
entitled to proceeding disposing of the distrained or
recover is property in taken for a tax
equal to the litigation assessment or
sum which the a fine pursuant
order of to law
attachment is
granted

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When 3rd party claimant When 3RD party

makes an affidavit of claimant makes an
WHEN PROPERTY IS his title to the property affidavit of his title to
CLAIMED BY A 3RD or his right to the the property or his right
PERSON possession thereof, and to possession thereof,
serves such affidavit to and serves such
the sheriff and a copy affidavit to the sheriff,
thereof to the attaching and a copy thereof to
party, the sheriff shall the party asking for
not be bound to keep repliven, the sheriff
the property unless the shall not be bound to
attaching party files a keep the property under
bond approved by the repliven, unless the
court to indemnify the applicant files a bond
3rd party claimant in approved by the court
sum not less than the to indemnify the 3rd
value of the property party claimant in sum
levied upon. Claim for not less than the value
damages for the taking of the property. Claims
or keeping the property for damages for the
must be filed within 120 keeping of the property
days from filing of bond must be filed within 120
days from filing of the
bond

BOND Bond executed to the adverse party in the amount fixed by the court to cover costs Bond executed to the Bond not required
REQUIREMENT which may be adjudged to the adverse and all damages that he may sustain by adverse party is double
reason of granting the provisional remedy prayed for, if the court shall finally adjudge the value of the
that applicant was not entitled thereto. property

DISCHARGE OF By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge of the Not applicable
REMEDY provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the court to the value of
the property if with respect to a particular property to secure the payment of any judgment that the adverse
party may recover in the action

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Cash deposit may be Filing of counter-bond made 2 bond requirement: Amount of counter-bond
made in lieu of the only upon showing that the should also be double
counter-bond issuance or continuance 1. Bond filed by the the value of the property
thereof would cause applicant;
irreparable damage to the 2. Bond filed by the
party or person enjoined receiver
while applicant can be fully
compensated for such
damages as he may suffer;
counter-bond alone will not
suffice to discharge an
injunction
Other grounds: Insufficiency of the Appointment without
improper or irregular application sufficient cause
issuance or
enforcement or
insufficiency of bond

Damages in case  Owner of the property attached must file before the trial or before perfection of appeal or When the judgment or final order
applicant for any of before judgment becomes executory an application for damages. finds the person who has been
the provisional  Party who availed of provisional remedy and his surety/ies must be notified, showing right providing for support is not liable
remedies is not to damages and amount thereof. therefor:
entitled thereto or for  Damages awarded only after hearing; included in the judgment of the main case
any irregularity in the  Court shall order the
procurement thereof
. recipient to return the
amounts already received
with interest from the dates
If judgment of the appellate court is favorable to the party against whom provisional remedy
of actual payment.
was effected:
 Recipient may obtain
 Application must be filed with the appellate court before judgment of the appellate court reimbursement from the
becomes executory. person legally obliged to
 Appellate court may allow that the application be heard and decided by the trial court. give support (separate
 If bond or deposit given by the party availing of the provisional remedy be insufficient or fail action must be filed for that
to satisfy the award. purpose).
 Adverse party may recover damages in the same action.

 If recipient fails to reimburse

the amount, the person who
provided the same may
seek reimbursement from
person legally obliged to
give support (also needs
separate action)

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Special Civil Actions a. in an action where defendants'

respective claims are separate and
distinct from each other.
SPECIAL CIVIL ACTIONS (SCA) UNDER THE
b. in an action by a bank where the
RULES OF COURT
purchaser of a cashier's check claims it was
lost and another person has presented it for
SCA INITIATED BY SCA INITIATED BY payment.
COMPLAINT PETITION c. in an action by a lessee who does not
1. Interpleader 1. Declaratory know where to pay rentals due to
2. Expropriation Relief conflicting claims on the property.
3. Foreclosure of 2. Review of the d. in an action by a sheriff against
Real Estate Adjudication of claimants who have conflicting claims to a
Mortgage the property seized by the sheriff in foreclosure
4. Partition COMELEC/CO of a chattel mortgage.
5. Forcible Entry A
SUGGESTED ANSWER:
and Unlawful 3. Certiorari
(a), Under the Rules, whenever
Detainer 4. Prohibition
conflicting claims upon the same subject
5. Mandamus
matter are or may be made against a
6. Quo Warranto
person who claims no interest whatever
7. contempt
in the subject matter, or an interest
which in whole or in part is not disputed
by the claimants, he may bring an action
against the conflicting claimants to
VENUE compel them to interplead and litigate
The venue of SCA is governed by the general rules their several claims among themselves.
on venue, except as otherwise indicated in the (Rule 62, Sec.1, Rules of Court).
particular rule for said SCA (Ex. Quo Warranto
Undoubtedly, if the defendants‟
under sec. 7, Rule 66)
respective claims are separate and
distinct from each other, an action for
SPAs are governed by the rules on ordinary civil
interpleader is not proper.
actions, subject to specific rules prescribed for a
particular SCA (sec.3[a], Rule 1).

By virtue of sec.3 of Rule 1, the provisions of

Rule 16 on motion to dismiss are applicable in
SCAs (National Power Corp. vs. Valera, L-
15295, Nov. 30, 1961).
RULE 62
Interpleader
Section 1. When interpleader proper. —
Whenever conflicting claims upon the same
subject matter are or may be made against a
person who claims no interest whatever in
the subject matter, or an interest which in
whole or in part is not disputed by the
claimants, he may bring an action against the
conflicting claimants to compel them to
interplead and litigate their several claims
among themselves. (1a, R63)
INTERPLEADER
It is a special remedy whereby a party 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 vs. Commonwealth, 65 Phil. 302).
Note: Interpleader can be raised in the
complaint or a counterclaim.
Prior Barangay conciliation also is required.
Jurisdiction is dependent on jurisdictional
amount – the amount of the property subject
of the litigation.

Requisites:
Bar Exam Question 2012 1. Plaintiff claims no interest in the
50. In which of the following is Interpleader subject matter or his claim thereto is
improper? not disputed;

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2. There must be at least two or more
conflicting claimants;
3. The parties to be impleaded must make
effective claims;
4. The subject matter must be one and the
same.
The peculiar characteristic of an interpleader is that
there is no cause of action on the part of the plaintiff
but only a threat of cause of action.
Example: A warehouseman where two or more
persons claim the deposited goods.
NOTE: Warehouse receipt is not conclusive proof of
ownership. It proves only possession. Possession is
one thing. Ownership is another thing.
PURPOSE OF REMEDY: To protect a person not
against double liability but against double vexation
in respect to one liability (Wack Wack Golf vs. Won,
70 SCRA 165)
An action in interpleader should be filed within a
reasonable time after 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.
Notes: after the receipt of the summons, complaint
for interpleader cannot anymore be filed.
HOWEVER, the answer could allege the
interpleader as a counterclaim [compulsory](Wack
Wack vs. Won, supra). There is no need for filing
fees. A 3rd party complaint may also apply. But note
that this is more expensive because there is a need
for payment of filing fees.
If there are no conflicting claims among the
defendants, the complaint for interpleader may be
dismissed for lack of cause of action.
Section 2. Order. — Upon the filing of the
complaint, the court shall issue an order
requiring the conflicting claimants to
interplead with one another. If the interests
of justice so require, the court may direct in
such order that the subject matter be paid or
delivered to the court. (2a, R63)
Section 3. Summons. — Summons shall be
served upon the conflicting claimants,
together with a copy of the complaint and
order. (3, R63)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 4. Motion to dismiss. — Within
the time for filing an answer, each
claimant may file a motion to dismiss on
the ground of impropriety of the
interpleader action or on other
appropriate grounds specified in Rule
16. The period to file the answer shall be
tolled and if the motion is denied, the
movant may file his answer within the
remaining period, but which shall not be
less than five (5) days in any event,
reckoned from notice of denial. (n)
Section 5. Answer and other pleadings.
— Each claimant shall file his answer
setting forth his claim within fifteen (15)
days from service of the summons upon
him, serving a copy thereof upon each of
the other conflicting claimants who may
file their reply thereto as provided by
these Rules. If any claimant fails to plead
within the time herein fixed, the court
may, on motion, declare him in default
and thereafter render judgment barring
him from any claim in respect to the
subject matter.
The parties in an interpleader action may
file counterclaims, cross-claims, third-
party complaints and responsive pleadings
thereto, as provided by these Rules. (4a,
R63)
Note; The conflicting claimants, who are co-
defendants in the action, must serve copies of
their answers not only to the plaintiff but also
upon their co-defendants since the
controversy actually exists among the co-
defendants.
NOTE: Compare to Rule 9 on the effects of
failure to plead.
Section 6. Determination. — After the
pleadings of the conflicting claimants have
been filed, and pre-trial has been
conducted in accordance with the Rules,
the court shall proceed to determine their
respective rights and adjudicate their
several claims. (5a, R63)
Note: The court, in a complaint for
interpleader shall determine the rights and
obligations of the parties and adjudicate their
several claims. Such rights, obligations and
claims could only be adjudicated if put forward
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by the aggrieved party in assertion of his rights

(Arreza vs. Diaz, Jr., 364 SCRA 88).

Section 7. Docket and other lawful fees, RULE 63

costs and litigation expenses as liens. —
The docket and other lawful fees paid by the Declaratory Relief (DR) and Similar
party who filed a complaint under this Rule, Remedies
as well as the costs and litigation expenses,
shall constitute a lien or charge upon the ORDINARY ACTION DR
subject matter of the action, unless the court Writ of execution is No writ of execution
shall order otherwise. (6a, R63) available
There is breach or No breach or violation
The costs, expenses, and attorney’s fees incurred violation of right
by the plaintiff in the action shall constitute a lien Additional grounds for
upon the subject matter and/or is recoverable Motion to dismiss— motion to dismiss—
from the defendant who loses in the action and is Rules 16 and 17 Rule 63, sec. 5;
found by the court to have caused the 1. may refuse to
unnecessary litigation (Menzi and Co. vs. Bastida, exercise the
63 Phil. 16) power to
declare rights
NOTE: Interpleader cannot be availed of to and to
resolve the issue of breach of undertakings made construe
by defendants which issues should be resolved in instruments in
an ordinary civil action for specific performance or any case
other relief (Beltran vs. PHHC, L-25138, Aug. 28, where a
1969). decision would
not terminate
ALWAYS remember that the court determines the uncertainty
only the issue of WHO HAS A BETTER RIGHT or controversy
among the conflicting claimants. which gave
rise to the
INTERPLEADER INTERVENTION action;
An original action An ancillary action 2. or in any case
Proper in any of these where the
Presupposes that situations: A person declaration or
plaintiff has no interest having construction is
in the subject matter of a. Legal interest in not necessary
the action or has the matter in and proper
interest, in whole or in litigation; under the
part, which is not b. Success of circumstances
disputed by other either of the
parties parties; Based on case law, an action for declaratory
c. An interest relief proper only if adequate remedy is not
against both; available through other existing forms of actions
d. Is so situated or proceedings, e., g., administrative remedies.
as to be
adversely
affected by a The rule of quia timet.
distribution or Remedy of declaratory relief not designed to
other supplant existing remedies. Remedy purely
disposition of statutory in nature and origin. It is an extension
property in of the ancient rule of quia timet. A declaratory
custody of the judgment does not create or change substantial
court or an rights or modify a relationship or alter the
officer thereof. character of controversies. (Mejia vs Gabayan,
Defendants are being Defendants are original L-149765, April 12, 2005, 455 SCRA 499, 2nd
sued precisely to parties to the pending Div.).
interplead them suit

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 218

________________________________________________________________________________________________

Section 1. Who may file petition. — Any character, since they are res judicata and
person interested under a deed, will, contract binding upon the parties and those in privity with
or other written instrument, or whose rights them, and from decisions ABSTRACT and
are affected by a statute, executive order or MOOT QUESTIONS, since they must involve a
regulation, ordinance, or any other real controversy.
governmental regulation may, before breach
JUSTICIABILITY
or violation thereof bring an action in the
The court must be satisfied that an actual
appropriate Regional Trial Court to
controversy or the ripening seeds of one, exists
determine any question of construction or
between the parties, all of whom are sui juris
validity arising, and for a declaration of his and before the court, and the declaration sought
rights or duties, thereunder. (Bar Matter No. will be practical help in ending the controversy.
803, 17 February 1998)
To be ripe for judicial determination, it must
An action for the reformation of an appear, that under the facts of the case, there is
instrument, to quiet title to real property or a threatened litigation in the immediate future,
remove clouds therefrom, or to consolidate which litigation is imminent and inevitable unless
ownership under Article 1607 of the Civil prevented by declaratory relief sought (Tolentino
Code, may be brought under this Rule. (1a, vs. Board of Accountancy, 90 Phil. 83)
R64)
ACTIONS SIMILAR TO DECLARATORY
RELIEF (DR); and may be brought under Rule
WHERE TO FILE:
63:
The petition for DR must be filed with the RTC.
1. Reformation of Instruments;
However, if the petition has far-reaching implications
2. Quieting of Title to a Real Property or to
and it raises questions that should be resolved, it
Remove Clouds thereon;
may be treated as one of prohibition or for
Note: in an action for Quieting of
mandamus, which the SC or CA may take
Title and Reconveyance, the
cognizance (Regalado, p. 777)
jurisdiction is dependent upon the
assessed value of the property.
REQUISITES FOR DR:
3. Consolidation of Ownership.
1. The SUBJECT MATTER of the controversy
These 3 remedies are considered similar to DR
must be a deed, will, contract or other
because they also result in the adjudication of
written instrument, statute, executive order
legal rights of the litigants, often without the
or regulation or ordinance;
need of execution to carry the judgment into
Does not include judgments/orders
effect.
of a court.
2. The terms of said documents and the
NOTE: A procedural distinction between the 2
validity thereof are doubtful and require
remedies is that in the actions falling under the
judicial construction;
2nd paragraph, the court is bound to render
3. There must be NO BREACH on the
judgment, whereas in actions falling under the
document in question;
1st paragraph, the court may refuse to exercise
4. There must be an actual justiciable
the power to declare rights and construe
controversy or the “RIPENING SEEDS” of
instruments.
one between persons whose interests are
adverse;
Actions falling under 1st par. of sec. 1 do not
5. The issue must be RIPE FOR JUDICIAL
require prior recourse to Barangay conciliation
DETERMINATION (administrative remedies
while actions under the 2nd par. may require
have been exhausted);
barangay conciliation (Review Lecture).
6. ADEQUATE RELIEF is not available
through other means or other forms of
action or proceeding. Section 2. Parties. — All persons who
have or claim any interest which would be
PURPOSE OF DR: To relieve the litigants of affected by the declaration shall be made
common law rule that no declaration of rights may parties; and no declaration shall, except
be judicially adjudged unless a right has been as otherwise provided in these Rules,
violated and for the violation of which relief may be prejudice the rights of persons not parties
granted. Declaratory judgments are to be to the action. (2a, R64)
distinguished from those which are ADVISORY in
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 219
________________________________________________________________________________________________
PARTIES:
1. Person (a) who is interested under a deed,
will, contract, or other written instruments,
OR (b) whose rights will be affected by a
statute, executive order or regulation,
ordinance or other government regulation;
2. All persons who have or claim interest
which would be affected by the declaration.
Non-joinder of necessary parties is not jurisdictional
defect but may be a ground for dismissal under
section 5.
Notary public who is not a party to the contract is
not entitled to file DR (Tadeo vs. Provincial Fiscal of
Pangasinan, 114 Phil. 177)
Section 3. Notice on Solicitor General. —
In any action which involves the validity of a
statute, executive order or regulation, or any
other governmental regulation, the Solicitor
General shall be notified by the party
assailing the same and shall be entitled to be
heard upon such question. (3a, R64)
Note: see also Rule 3, sec. 22.
Section 4. Local government ordinances.
— In any action involving the validity of a
local government ordinance, the
corresponding prosecutor or attorney of the
local governmental unit involved shall be
similarly notified and entitled to be heard. If
such ordinance is alleged to be
unconstitutional, the Solicitor General shall
also be notified and entitled to be heard. (4a,
R64)
Section 5. Court action discretionary. —
Except in actions falling under the second
paragraph of section 1 of this Rule, the court,
motu proprio or upon motion, may refuse to
exercise the power to declare rights and to
construe instruments in any case where a
decision would not terminate the uncertainty
or controversy which gave rise to the action,
or in any case where the declaration or
construction is not necessary and proper
under the circumstances. (5a, R64)
Bar Exam Question 2012
21. In a declaratory relief action, the court may
refuse to exercise its power to declare rights
and construe instruments in what instance/s?
a. When a decision would not terminate the
controversy which gave rise to the action.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
b. In an action to consolidate ownership
under Art. 1607 of the Civil Code.
c. To establish legitimate filiation and
determine hereditary rights.
d. (a) and (c) above
SUGGESTED ANSWER: (a), The court,
may motu propio or upon motion, refuse
to exercise the power to declare rights
and to construe instruments in any case
where a decision would not terminate
the uncertainty or controversy which
gave rise to the action, or in any case
where the declaration or construction is
not necessary and proper under the
circumstances (Rule 63, Sec.5, Rules of
Court).
Section 6. Conversion into ordinary
action. — If before the final termination
of the case, a breach or violation of an
instrument or a statute, executive order
or regulation, ordinance, or any other
governmental regulation should take
place, the action may thereupon be
converted into an ordinary action, and the
parties shall be allowed to file such
pleadings as may be necessary or proper.
(6a, R64)
NOTES:
If there has been a breach of statute before the
filing of the action, the remedy of DR cannot be
availed of.
The law does not require that there be an actual
case pending. It is sufficient that there is breach
of the law, an actionable violation to bar
complaint for DR (Borja vs. Villadolid, 85 Phil.
36)
WHEN AN ACTION FOR DELARATORY
RELIEF WILL NOT LIE:
1. Actions to obtain judicial declaration of
citizenship;
2. Action to establish illegitimate filiation
and actions to determine hereditary
rights;
3. The subject of the action is a court
decision;
4. Action to resolve a political question or
issue
5. Those determinative of the issues rather
than a construction of definite status,
rights and relations;
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6. Where the terms of the assailed ordinance
are not vague or of doubtful meaning;
7. Where the contract or statute on which the
action is based has been breached;
8. Action is merely to seek advisory opinion
from the court on moot question;
9. When the petition is based on the
happening of a contingent event;
10. Where the petitioner is not a real party in
interest;
11. Where administrative remedies have not
been exhausted.
A third party complaint is supposed to seek
contribution, indemnity, subrogation or other relief
from the third party defendant in respect to the claim
of the plaintiff against him, and hence it is improper
if the main case is for DR which purpose is mere
interpretation or construction (Commissioner of
Customs vs. Cloribel, 77SCRA 459).
However, when the complaint for DR alleges other
matters, the court may grant such affirmative reliefs
as the evidence may warrant (Adlawan vs. IAC, 170
SCRA 165).
Compulsory counterclaim based on or arising from
the same transaction, deed, or contract on which
petition is based may be filed and entertained in DR
proceedings because there is nothing in the nature
of DR that proscribes the filing of counterclaim and
the Rules on Ordinary Civil action apply to Special
Civil Action suppletorily (Visayan Packing Corp. vs.
Reparations Commission, 155 SCRA 542)
RULE 64
Review of Judgments and Final Orders or
Resolutions of the Commission on
Elections and the Commission on Audit
Section 1. Scope. — This Rule shall govern
the review of judgments and final orders or
resolutions of the Commission on Elections
and the Commission on Audit. (n)
Notes: the judgment, final order or resolution
referred to herein is one rendered by the
COMELEC en banc.
Congress enacted RA 7902 amending section 9
of BP 129, effective March 18, 1995, eliminating
such recourse to the SC and transferring the
revising power to the CA over all adjudications of
the Civil Service Commission.
This Rule applies only when the COMELEC and
COA are acting as quasi-judicial bodies.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 2. Mode of review. — A
judgment or final order or resolution of
the Commission on Elections and the
Commission on Audit may be brought by
the aggrieved party to the Supreme
Court on certiorari under Rule 65, except
as hereinafter provided. (n; Bar Matter
No. 803, 17 February 1998)
Bar Exam Question 2011
(26) What is the proper remedy to secure
relief from the final resolutions of the
Commission On Audit?
(A) Petition for review on certiorari with the
Supreme Court.
(B) Special civil action of certiorari with the
Court of Appeals. (C) Special civil action
of certiorari with the Supreme Court. (D)
Appeal to the Court of Appeals.
Bar Exam Question 2011
(57) The decisions of the Commission on
Elections or the Commission on Audit may
be challenged by (A) petition for review on
certiorari filed with the Supreme Court
under Rule 45. (B) petition for review on
certiorari filed with the Court of Appeals
under Rule 42. (C) appeal to the Supreme
Court under Rule 54. (D) special civil
action of certiorari under Rule 65 filed
with the Supreme Court.
Section 3. Time to file petition. — The
petition shall be filed within thirty (30)
days from notice of the judgment or final
order or resolution sought to be reviewed.
The filing of a motion for new trial or
reconsideration of said judgment or final
order or resolution, if allowed under the
procedural rules of the Commission
concerned, shall interrupt the period
herein fixed. If the motion is denied, the
aggrieved party may file the petition
within the remaining period, but which
shall not be less than five (5) days in any
event, reckoned from notice of denial. (n)
Section 4. Docket and other lawful
fees. — Upon the filing of the petition, the
petitioner shall pay to the clerk of court
the docket and other lawful fees and
deposit the amount of P500.00 for costs.
(n)
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Section 5. Form and contents of petition.
— The petition shall be verified and filed in
eighteen (18) legible copies. The petition
shall name the aggrieved party as petitioner
and shall join as respondents the Commission
concerned and the person or persons
interested in sustaining the judgment, final
order or resolution a quo. The petition shall
state the facts with certainty, present clearly
the issues involved, set forth the grounds
and brief arguments relied upon for review,
and pray for judgment annulling or
modifying the questioned judgment, final
order or resolution. Findings of fact of the
Commission supported by substantial
evidence shall be final and non-reviewable.
The petition shall be accompanied by a
clearly legible duplicate original or certified
true copy of the judgment, final order or
resolution subject thereof, together with
certified true copies of such material portions
of the record as are referred to therein and
other documents relevant and pertinent
thereto. The requisite number of copies of the
petition shall contain plain copies of all
documents attached to the original copy of
said petition.
The petition shall state the specific material
dates showing that it was filed within the
period fixed herein, and shall contain a sworn
certification against forum shopping as
provided in the third paragraph of section 3,
Rule 46.
The petition shall further be accompanied by
proof of service of a copy thereof on the
Commission concerned and on the adverse
party, and of the timely payment of docket
and other lawful fees.
The failure of petitioner to comply with any of
the foregoing requirements shall be sufficient
ground for the dismissal of the petition. (n)
Section 6. Order to comment. — If the
Supreme Court finds the petition sufficient in
form and substance, it shall order the
respondents to file their comments on the
petition within ten (10) days from notice
thereof; otherwise, the Court may dismiss
the petition outright. The Court may also
dismiss the petition if it was filed manifestly
for delay or the questions raised are too
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
unsubstantial to warrant further
proceedings. (n)
Section 7. Comments of respondents.
— The comments of the respondents shall
be filed in eighteen (18) legible copies.
The original shall be accompanied by
certified true copies of such material
portions of the record as are referred to
therein together with other supporting
papers. The requisite number of copies of
the comments shall contain plain copies of
all documents attached to the original and
a copy thereof shall be served on the
petitioner.
No other pleading may be filed by any
party unless required or allowed by the
Court. (n)
Section 8. Effect of filing. — The filing of
a petition for certiorari shall not stay the
execution of the judgment or final order
or resolution sought to be reviewed,
unless the Supreme Court shall direct
otherwise upon such terms as it may
deem just. (n)
Under this Rule, the petitioner may apply
for a restraining order or a preliminary
injunction from the SC to stay the
execution of judgment or final order or
resolution sought to be reviewed.
Section 9. Submission for decision. —
Unless the Court sets the case for oral
argument, or requires the parties to
submit memoranda, the case shall be
deemed submitted for decision upon the
filing of the comments on the petition, or
of such other pleadings or papers as may
be required or allowed, or the expiration
of the period to do so. (n)
RULE 64 RULE 65
Must be filed within 30 Must be filed within 60
days from notice of the days from notice of
judgment or resolution judgment or resolution
If MR is denied, If MR is denied, the
aggrieved party may aggrieved party will
file the petition within have another 60 days
the remaining period counted from the
but which shall not be notice of the denial
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________________________________________________________________________________________________
less than 5 days within which to file his
petition
RULE 65
Certiorari, Prohibition and Mandamus
 Note: Prior Barangay conciliation is not
required. Public officer/s is/are impleaded and
the act/s in question is in relation to the exercise
of their function/s.
 There is no declaration of default, the court
does not issue summons but instead an order to
file comment on the petition.
 The remedy for the denial of a petition for CPM
is appeal, either via notice of appeal or petition
for review on certiorari under Rule 45.
Section 1. Petition for certiorari. — When
any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted
without or in excess its or his jurisdiction, or
with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no
appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law, a
person aggrieved thereby may file a verified
petition in the proper court, alleging the facts
with certainty and praying that judgment be
rendered annulling or modifying the
proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law
and justice may require.
The petition shall be accompanied by a
certified true copy of the judgment, order or
resolution subject thereof, copies of all
pleadings and documents relevant and
pertinent thereto, and a sworn certification of
non-forum shopping as provided in the third
paragraph of section 3, Rule 46. (1a)
REQUISITES OF CERTIORARI
1. There must be a CONTROVERSY;
2. Respondent is exercising JUDICIAL or
QUASI-JUDICIAL functions;
3. Respondent acted WITHOUT, or IN
EXCESS of its JURISDICTION, or acted
with GRAVE ABUSE OF DISCRETION
amounting to lack of jurisdiction; and
4. There must be NO APPEAL or other PLAIN,
SPEEDY and ADEQUATE remedy.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Writ of Certiorari
It is a writ emanating from a superior court
directed against an inferior court, tribunal, or
officer exercising judicial or quasi judicial
functions. The purpose of which is to correct
ERRORS OF JURISDICTION.
Questions of fact cannot be raised in an original
action for certiorari. Only established or admitted
facts can be considered (Rubio vs. Reyes, L-
24581, may 27, 1968).
Note: Rule 65 should not be confused with Rule
45. Refer to Rule 45 for the distinctions.
Bar Exam Question 2011
(41) What is the movant’s remedy if the trial
court incorrectly denies his motion to
dismiss and related motion for
reconsideration? (A) Answer the complaint.
(B) File an administrative action for gross
ignorance of the law against the trial judge.
(C) File a special civil action of certiorari
on ground of grave abuse of discretion.
(D) Appeal the orders of denial.
Bar Exam Question 2013
XX. The Labor Arbiter, ruling on a purely
legal question, ordered a worker’s
reinstatement and this ruling was affirmed
on appeal by the NLRC whose decision,
under the Labor Code, is final. The
company’s recourse under the
circumstances is to __________. (1%) (A) file
a motion for reconsideration and if denied,
file a petition for review with the Court of
Appeals on the pure legal question the case
presents. (B) file a motion for
reconsideration and if denied, appeal to the
Secretary of Labor since a labor policy issue
is involved. (C) file a motion for
reconsideration and if denied, file a
petition for certiorari with the Court of
Appeals on the ground of grave abuse of
discretion by the NLRC.
(D) file a motion for reconsideration and if
denied, file a petition for review on
certiorari with the Supreme Court since a
pure question of law is involved. (E) directly
file a petition for certiorari with the Court of
Appeals since a motion for reconsideration
would serve no purpose when a pure
question of law is involved.
SUGGESTED ANSWER: (C), In Nemia
Castro vs. Rosalyn and Jamir Guevarra,
G.R. No. 192737, April 25, 2012, the
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Supreme Court held that a motion for
reconsideration is a condition precedent for
the filing of a petition for certiorari. Its
purpose is to grant an opportunity for the
court to correct any actual or perceived
error attributed to it by the re-examination
of the legal and factual circumstances of
the case. In Saint Martin Funeral Homes vs.
NLRC, G.R. No. 130866, September 16,
1998, the Supreme Court ruled that the
petitions for certiorari under Rule 65
against decisions of final order of the NLRC
should be initially filed in the Court of
Appeals in strict observance of the doctrine
on the hierarchy of courts as the
appropriate forum for the relief desired.
ALTERNATIVE ANSWER:
(E), In Beatriz Siok Ping Tang vs. Subic bay
Distribution, G.R> No. 162575, December
15, 2010, the Supreme Court held that a
motion for reconsideration is a condition
sine qua non for the filing of am petition for
certiorari. The rule is, however,
circumscribed by well-defined exceptions,
such as (a) where the order is a patent
nullity, as where the court a quo had no
jurisdiction; (b) where the questions raised
in the certiorari proceeding have been duly
raised and passed upon in the lower court;
(c) where there is an urgent necessity for
the resolution of the question and any
further delay would prejudice the interests
of the Government or of the petitioner or
the subject matter of the action is
perishable; (d) where, under the
circumstances, a motion for reconsideration
would be useless; (e) where petitioner was
deprived of due process and there is
extreme urgency for relief; (f) where, in a
criminal case, relief from an order of arrest
is urgent and the granting of such relief by
the trial court is improbable; (g) where the
proceedings in the lower court are a nullity
for lack of due process; (h) where the
proceedings were ex parte, or in which the
petitioner had o opportunity to object; and
(i) where the issue raised is one purely of
law or where public interest is involved.
Certiorari; Petition for Certiorari, Rule 65
(2012)
No.I. (a) After an information for rape was filed
in the RTC, the DOJ Secretary, acting on the
accused's petition for review, reversed the
investigating prosecutor's finding of probable
cause. Upon order of the DOJ Secretary, the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
trial prosecutor filed a Motion to Withdraw
Information which the judge granted. The
order of the judge stated only the following:
"Based on the review by the DOJ Secretary
of the findings of the investigating
prosecutor during the preliminary
investigation, the Court agrees that there is
no sufficient evidence against the accused
to sustain the allegation in the information.
The motion to withdraw Information is,
therefore, granted." If you were the private
prosecutor, what should you do? Explain.
(5%) SUGGESTED ANSWER: If I were the
private prosecutor, I would file a petition
for certiorari under Rule 65 with the
Court of Appeals (Cerezo vs. People, G.R.
No.185230, June 1, 2011). It is well-
settled that when the trial court is
confronted with a motion to withdraw
and Information (on the ground of lack
of probable cause to hold the accused for
trial based on resolution of the DOJ
Secretary), the trial court has the duty
to make an independent assessment of
the merits of the motion. It may either
agree or disagree with the
recommendation of the Secretary.
Reliance alone on the resolution of the
Secretary would be an abdication of the
trial court‟s duty and jurisdiction to
determine a prima facie case. The court
must itself be convinced that there is
indeed no sufficient evidence against the
accused. Otherwise, the judge acted with
grave abuse of discretion if he grants the
Motion to Withdraw Information by the
trial prosecutor. (Harold Tamargo vs.
Romulo Awingan et. al. G.R. No. 177727,
January 19, 2010).
ALTERNATIVE ANSWER: If I were the
private prosecutor, I would file a Motion
for Reconsideration of the Order of the
trial court. If the same has been denied,
I would file a petition for review on
certiorari under Rule 45 on pure
question of law, which actually
encompasses both the criminal and civil
aspects thereof. The filing of the petition
is merely a continuation of the appellate
process.
Special Civil Action; Petition for Certiorari (2002)
The defendant was declared in default in the RTC
for his failure to file an answer to a complaint for a
sum of money. On the basis of the plaintiff’s ex
parte presentation of evidence, judgment by default
was rendered against the defendant. The default
judgment was served on the defendant on October
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1, 2001. On October 10, 2001, he files a verified motion
to lift the order of default and to set aside the judgment.
In his motion, the defendant alleged that, immediately
upon receipt of the summon, he saw the plaintiff and
confronted him with his receipt evidencing his payment
and that the plaintiff assured him that he would instruct
his lawyer to withdraw the complaint. The trial court
denied the defendant’s motion because it was not
accompanied by an affidavit of merit. The defendant
filed a special civil action for certiorari under Rule 65
challenging the denial order.
A. Is certiorari under Rule 65 the proper remedy?
Why? (2%)
B. Did the trial court abuse its discretion or act without
or in excess of its jurisdiction in denying the defendant’s
motion to lift the order of default judgment? Why? (3%)
SUGGESTED ANSWER:
A. The petition for certiorari under Rule 65 filed by the
defendant is the proper remedy because appeal is not a
plain, speedy and adequate remedy in the ordinary
course of law. In appeal, the defendant in default can
only question the decision in the light of the evidence of
the plaintiff. The defendant cannot invoke the receipt to
prove payment of his obligation to the plaintiff.
ALTERNATIVE ANSWER:
A. Under ordinary circumstances, the proper remedy of
a party wrongly declared in default is either to appeal
from the judgment by default or file a petition for relief
from judgment. [Jao, Inc. v. Court of Appeals, 251 SCRA
391 (1995)
SUGGESTED ANSWER:
B. Yes, the trial court gravely abused its discretion or
acted without or in excess of jurisdiction in denying the
defendant’s motion because it was not accompanied by a
separate affidavit of merit. In his verified motion to lift
the order of default and to set aside the judgment, the
defendant alleged that immediately upon the receipt of
the summons, he saw the plaintiff and confronted him
with his receipt showing payment and that the plaintiff
assured him that he would instruct his lawyer to
withdraw the complaint. Since the good defense of the
defendant was already incorporated in the verified
motion, there was no need for a separate affidavit of
merit. [Capuz v. Court of Appeals, 233 SCRA 471 (1994);
Mago v. Court of Appeals, 303 SCRA 600 (1999)].
Certiorari; Petition for Certiorari; Contempt
(2012)
No.IV.B. Mr. Sheriff attempts to enforce a Writ
of Execution against X, a tenant in a
condominium unit, who lost in an ejectment
case. X does not want to budge and refuses to
leave. Y, the winning party, moves that X be
declared in contempt and after hearing, the
court held X guilty of indirect contempt. If you
were X's lawyer, what would you do? Why?
(5%) SUGGESTED ANSWER: If I were X’s
Lawyer, I would file a petition for certiorari
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
under Rule 65. The judge should not
have acted on Y‟s motion to declare X in
contempt. The charge of indirect
contempt is initiated through a verified
petition. (Rule 71, Sec. 4, Rules of
Court). The writ was not directed to X
but to the sheriff who was directed to
deliver the property to Y. As the writ did
not command the judgment debtor to do
anything, he cannot be guilty of the
facts described in Rule 71 which is
“disobedience of or resistance to a lawful
writ, process, order, judgment, or
command any court.” The proper
procedure is for the sheriff to oust X
availing of the assistance of peace
officers pursuant to Section 10 (c) of
Rule 39 (Lipa vs. Tutaan, L-16643, 29
September 1983; Medina vs. Garces, L-
25923, July 15, 1980; Pascua vs. Heirs
of Segundo Simeon, 161 SCRA 1;
Patagan et. al. Vs. Panis, G.R. No. 55630,
April 8, 1988).
Section 2. Petition for prohibition. —
When the proceedings of any tribunal,
corporation, board, officer or person,
whether exercising judicial, quasi-judicial
or ministerial functions, are without or in
excess of its or his jurisdiction, or with
grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is
no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of
law, a 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 to desist
from further proceedings in the action or
matter specified therein, or otherwise
granting such incidental reliefs as law and
justice may require.
The petition shall likewise be accompanied
by a certified true copy of the judgment,
order or resolution subject thereof, copies
of all pleadings and documents relevant
and pertinent thereto, and a sworn
certification of non-forum shopping as
provided in the third paragraph of section
3, Rule 46. (2a)
REQUISITES FOR PROHIBITION
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1. There must be a CONTROVERSY;
2. Respondent is exercising JUDICIAL or
QUASI-JUDICIAL or MINISTERIAL
functions;
3. Respondent acted WITHOUT, or IN
EXCESS of its JURISDICTION, or acted
with GRAVE ABUSE OF DISCRETION
amounting to lack of jurisdiction; and
4. There must be NO APPEAL or other PLAIN,
SPEEDY and ADEQUATE remedy.
Writ of Prohibition
It is a writ issued by a superior court and directed
against an inferior court, corporation, board, officer
or other person whether performing judicial, quasi-
judicial or ministerial functions for the purpose of
preventing the latter from USURPING
JURISDICTION with which it is not legally vested.
GR: Prohibition does not ordinarily lie to restrain an
act which is already a fait accompli (Accomplished
Fact)
Exception: When the act complained of is capable
of repetition, yet EVADING REVIEW. Writ of
Prohibition will lie to prevent the creation of a new
province by those in corridors of power who would
avoid judicial intervention and review by merely
speedily and stealthily completing the commission
of such illegality (Tan vs. COMELEC, GR No.
73155, July 11, 1986)
Prohibition, and not mandamus, is the remedy
where a motion to dismiss is improperly denied
(Enriquez vs. Macaraeg, 84 Phil. 674)
Note: Prohibition must not be confused with
injunction. See distinction on the topic on
Provisional Remedies.
Section 3. Petition for mandamus. — When
any tribunal, corporation, board, officer or
person unlawfully neglects the performance
of an act which the law specifically enjoins as
a duty resulting from an office, trust, or
station, or unlawfully excludes another from
the use and enjoyment of a right or office to
which such other is entitled, and there is no
other plain, speedy and adequate remedy in
the ordinary course of law, 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, to do the act required
to be done to protect the rights of the
petitioner, and to pay the damages sustained
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
by the petitioner by reason of the
wrongful acts of the respondent.
The petition shall also contain a sworn
certification of non-forum shopping as
provided in the third paragraph of section
3, Rule 46. (3a)
REQUISITES FOR MANDAMUS:
1. There must be a CLEAR LEGAL RIGHT or
DUTY;
2. The act to be performed must be
PRACTICAL—within the powers of the
respondent to perform such that if the writ of
mandamus was issued, he can comply with
it, or else essence will be defeated;
3. Respondent must be exercising a
MINISTERIAL DUTY—a duty which is
imperative and absolute and involves merely
its execution;
4. The duty or act to be performed must be
EXISTING—a correlative right will be denied
if not performed by the respondents; and
5. There is NO OTHER PLAIN, SPEEDY AND
ADEQUATE REMEDY in the ordinary
course of law.
Writ of Mandamus
It is a writ issued in the name of the state, to an
inferior court, tribunal, corporation, board, or
person, COMMANDING the performance of an
act which the law enjoins as a duty resulting
from an office, trust or station.
Mandamus (2012) No.X.B. A files a
Complaint against 8 for recovery of title and
possession of land situated in Makati with
the RTC of Pasig. B files a Motion to
Dismiss for improper venue. The RTC Pasig
Judge denies B's Motion to Dismiss, which
obviously was incorrect. Alleging that the
RTC Judge "unlawfully neglected the
performance of an act which the law
specifically enjoins as a duty resulting from
an office", 8 files a Petition for Mandamus
against the judge. Will Mandamus lie?
Reasons. (3%) SUGGESTED ANSWER:
No, mandamus will not lie. The proper
remedy is a petition for prohibition.
(Serana vs. Sandiganbayan, G.R. No.
162059, January 22, 2008). The
dismissal of the case based on improper
venue is not a ministerial duty.
Mandamus does not lie to compel the
performance of a discretionary duty.
(Nilo Paloma vs. Danilo Mora, G.R. No.
157783, September 23, 2005).
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a. to compel a judge to consolidate trial of

GROUNDS FOR MANDAMUS
1. When any tribunal, corporation, board or person
UNLAWFULLY NEGLECTS the performance of
an act which the law enjoins as a duty resulting
from an office, trust or station;
2. When any tribunal, corporation, board, officer or
person UNLAWFULLY EXCLUDES another
from the use and enjoyment of a right or office
to which the other is entitled.
GR: Mandamus will not issue when administrative
remedies are still available.
Exceptions:
1. If the party is in estoppel; and
2. Pure questions of law are raised.
Note: Mandamus is not available to compel the
performance of contractual obligations. The proper
action is to file an ordinary action for Specific
Performance.
Bar Exam Question 2011
(73) Which of the following is NOT REQUIRED
in a petition for mandamus? (A) The act to be
performed is not discretionary. (B) There is no
other adequate remedy in the ordinary course
of law. (C) The respondent neglects to
perform a clear duty under a contract. (D)
The petitioner has a clear legal right to the act
demanded.
Q: May mandamus be used to compel a
discretionary duty?
A: NO. It is only applicable to a ministerial duty.
However, it can be used to the extent of requiring
the performance of a discretionary duty to act but
not to require performance of such duty in a
particular manner.
two cases pending before different branches
of the court.
b. to compel a judge to reduce his
decision in writing.
c. to direct a probate court to appoint a
particular person as regular administrator.
d. to compel a judge to grant or deny an
application for preliminary injunction.
SUGGESTED ANSWER:
(b), The 1987 Constitution no less
commands that “No decision shall be
rendered by any court without
expressing therein clearly and distinctly
the facts and the law on which it is
based.” (Art. VIII, Sec. 14, 1987
Constitution). Relative thereto, the
Rules of Court also require a judgment or
final order to 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.
(Rule 36, Sec.1, Rules of Court). (Lenido
Lumanog and Augusto Santos vs. People,
G.R. No. 182555, September 7, 2010,
Villarama, Jr., J.). Evidently, mandamus
will lie to compel a judge to perform his
ministerial duty to reduce his decision
in writing.
MANDAMUS INJUNCTION
To set in motion and To restrain motion or to
compel action enforce inaction
(ACTIVE) (CONSERVATIVE)
Remedial Preventive
Motion to dismiss— Additional ground for
Rule 16 and 17 motion to dismiss—
Rule 58, sec. 6

Exception to the last portion: Where there has been

gross abuse of discretion, manifest injustice, or DISCRETIONARY MINISTERIAL ACT
palpable excess of authority, in which case, the ACT
respondent can be ordered to act in a particular One where public One which an officer
manner (Kant Wong vs. PCGG, GR NO. 79484, functionaries, by virtue or tribunal performs in
Dec. 7, 1987). of a power or right, a given state of facts,
conferred upon them in a prescribed
TAKE NOTE: Although sec. 1 and 2 do not mention by law, can act manner, in obedience
the award of damages, as compared with sec. 3, the officially, under certain to the mandate of a
SC had allowed damages in some decided cases. circumstances, legal authority, without
Notice that there is allowed a general prayer for uncontrolled by the regard to or the
such incidental reliefs as the law and justice may judgment or exercise of his own
require. conscience of others judgment upon
propriety or
Bar Exam Question 2012 impropriety of act
68. Choose the most accurate phrase to done
complete the statement: Mandamus will lie ---

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 227

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Mandamus (2nd ground) vs. Quo Warranto
Mandamus is the proper remedy when the
respondent unlawfully excludes the petitioner from
an office which the latter is entitled without usurping,
intruding into or unlawfully holding the office.
On the other hand, if the respondent claims any
right to the office and usurps, intrudes into or
unlawfully holds it against the petitioner, quo
warranto is the proper remedy (Feria, p. 494).
Mandamus may be combined with quo warranto
The petition for mandamus is against the person
who excludes the plaintiff from office in question,
while the petition for quo warranto is directed
against the person who actually holds said office
(Burguete vs. Mayor, 94 Phil. 930)
Judgment; Mandamus vs. Quo Warranto (2001)
Petitioner Fabian was appointed Election Registrar of
the Municipality of Sevilla supposedly to replace the
respondent Election Registrar Pablo who was
transferred to another municipality without his consent
and who refused to accept his aforesaid transfer, much
less to vacate his position in Bogo town as election
registrar, as in fact he continued to occupy his aforesaid
position and exercise his functions thereto. Petitioner
Fabian then filed a petition for mandamus against Pablo
but the trial court dismissed Fabian’s petition contending
that quo warranto is the proper remedy. Is the court
correct in its ruling? Why? (5%)
SUGGESTED ANSWER:
Yes, the court is correct in its ruling. Mandamus will
not lie. This remedy applies only where petitioner’s
right is founded clearly in law, not when it is doubtful.
Pablo was transferred without his consent
which is tantamount to removal without cause, contrary
to the fundamental guarantee on non-removal except for
cause.
Considering that Pedro continued to occupy the
disputed position and exercise his functions therein, the
proper remedy is quo warranto, not mandamus. {Garces
v. Court of Appeals, 259 SCRA 99 (1996)]
ALTERNATIVE ANSWER:
Yes, the court is correct in its ruling. Mandamus lies
when the respondent unlawfully excludes another from
the use and enjoyment of a right or office to which
such other is entitled. (Sec. 2, Rule 65). In this case, Pablo
has not unlawfully excluded Fabian from the Office of
Election Registrar. The remedy of Fabian is to file an
action of quo warranto in his name against Pablo for
usurping the office. (Sec. 5, Rule 66)
Special Civil Actions; Mandamus (2006)
In 1996, Congress passed Republic Act No. 8189,
otherwise known as the Voter's Registration Act of
1996, providing for computerization of elections.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Pursuant thereto, the COMELEC approved the
Voter's Registration and Identification System
(VRIS) 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 P6 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
P1 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 (OSG), 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?
(5%)
SUGGESTED ANSWER:
No, the petition for mandamus is not an
appropriate remedy because it is not available to
enforce a contractual obligation. Mandamus is
directed only to ministerial acts, directing or
commanding a person to do a legal duty
(COMELEC v. Quijano-Padilla, G.R. No. 151992,
September 18, 2002; Sec. 3, Rule 65).
RESPONDENTS
The principal respondent is the judge as a
person, not the court as an entity. However, he
is merely a nominal or formal party.
The non-inclusion of the person interested in
sustaining the proceedings renders the petition
defective (RP vs. Zurbano, 105 Phil 409) .
A person not a party to the proceedings in the
trial court or in the CA cannot maintain an action
for certiorari in the SC to have the judgment
reviewed (Ramos vs. Lampa, 63 Phil. 216).
CERTIORARI PROHIBITION MANDAMUS
Directed
Directed against an Directed
against an entity or against an
entity or person entity or
person exercising person
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exercising judicial, quasi- exercising 1. It does not interrupt the course of the
judicial or judicial or ministerial principal action;
quasi-judicial ministerial function 2. It does not affect the running of the
function function reglementary periods involved in the
grounds: Grounds; Grounds: proceedings;
 Without  Without  Neglect 3. It does not stay the execution of
jurisdiction; jurisdiction; performance judgment, unless a TRO or Writ of
 In excess of  In excess of of Preliminary Injunction has been issued.
jurisdiction; jurisdiction; ministerial
 With grave  With grave duty; or Judicial Function
abuse of abuse of  Excluding It is where the tribunal or person has the power
discretion. discretion another to determine what the law is, what the rights of
from right or the parties are, and undertakes to determine
office these questions and adjudicate upon the rights
Purpose is to Purpose is for of the parties.
Purpose is to have the the
annul or nullify respondent respondent to Without Jurisdiction
a proceeding desist from do the act It is when the respondent does not have the
further and require legal power to determine the case.
proceeding payment of
damages
Affirmative or Excess of Jurisdiction
To prevent or positive if It is where the respondent, being clothed with
To correct restrain performance the power to determine the case, oversteps his
usurpation of usurpation of of a duty is authority as determined by law.
jurisdiction jurisdiction ordered, or it
(corrective) (preventive is negative if Grave Abuse of Discretion
and negative) a person is It is where the respondent acts in a capricious,
ordered to whimsical, arbitrary or despotic manner in the
desist from exercise of his judgment as to be said to be
excluding equivalent to lack of jurisdiction. The abuse of
another from discretion must be so patent and gross as to
office or right amount to an evasion of positive duty or to a
Covers Covers virtual refusal to perform a duty enjoined by law,
discretionary discretionary Covers or to act at all in contemplation of law, as where
acts and ministerial ministerial the power is exercised in an arbitrary and
acts acts despotic manner by reason of passion or
personal hostility.

Plain, speedy and adequate remedy

Q: In original action for CPM, when does the
court acquire jurisdiction over the person of the
defendant?
A: IT DEPENDS
1. If the action is filed wit the RTC; we follow
the rules on ordinary civil actions. Hence,
jurisdiction is acquired by the service of
summons to the respondent or by his
voluntary appearance in court.
2. If the action is filed with the SC or CA; the
court acquires jurisdiction over the
respondents with the service on them of its
orders indicating its initial action on the
petition or by their voluntary submission to
such jurisdiction.
An original action for CPM is an INDEPENDENT
ACTION and such:
Is one which will promptly relieve the petitioner
from injurious effects of the judgment and acts of
the lower court or agency.
Q: Can the CA award damages in mandamus
proceedings?
A: YES. CA is authorized to award damages in
petition for mandamus (Vital-Gozon vs CA, 212
SCRA 235)
NOTE: A writ of certiorari or prohibition cannot
be issued by an RTC against an administrative
agency exercising quasi-judicial functions since
the latter is of the same rank as the RTC.
HOWEVER, a writ of prohibition may be issued
by an RTC against administrative agencies
exercising administrative functions.

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 229

________________________________________________________________________________________________
GR: A motion for Reconsideration is an essential
precondition for the filing of a petition for CPM. It is
plain, speedy, and adequate remedy. Its purpose is
to give the court a quo the opportunity to correct
itself.
Exceptions:
1. Where the order is a patent nullity;
2. Where the questions raised in the certiorari
proceeding have been duly raised and
passed upon by the lower court or are the
same as those raised and passed upon in
the lower court;
3. Where there is an urgent necessity for the
resolution of the question;
4. Where MR would be useless;
5. Where petitioner is deprived of due process;
6. Where, in criminal case, relief from an order
of arrest is urgent and the granting of such
relief by the trial court is improbable;
7. where the issue raised is purely of law;
8. Where public interest is involved;
9. Where proceeding of the lower court is a
nullity for lack of due process;
10. Where the proceeding is ex parte or in
which the petitioner had no opportunity to
object.
EFFECT OF FILING A MOTION FOR
RECONSIDERATION
If a MR is filed, the period shall not only be
interrupted but another 60 days shall be given to the
petitioner within which to file the appropriate petition
for certiorari or prohibition (SC Administrative
Circular 00-2-03)
GR: Where the proper remedy is appeal, the action
for certiorari will not be entertained. Certiorari is not
a remedy for errors of judgment. Errors of judgment
are correctible by appeal.
Exceptions:
1. When appeal is not a plain, speedy or
adequate remedy;
2. Where orders were issued either in excess
or without jurisdiction;
3. For certain special considerations as public
policy or public welfare;
4. Where the order is of patent nullity;
5. Where the decision in the certiorari case will
avoid future litigation;
6. When, in criminal case, the court rejects
rebuttal evidence for the prosecution as, in
case of acquittal, there could be no more
remedy (Regalado, p. 783)
IMPORTANT REQUIREMENTS:
1. Verified by the petitioner, not by the lawyer;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
2. Accompanied by a certified true copy of
the judgment or duplicate original (not
photocopy);
3. CAFS.
Section 4. When and where petition
filed. — The petition shall be filed not
later than sixty (60) days from notice of
the judgment, order or resolution. In case
a motion for reconsideration or new trial is
timely filed, whether such motion is
required or not, the sixty (60) day period
shall be counted from notice of the denial
of said motion.
The petition shall be filed in the Supreme
Court or, if it relates to the acts or
omissions of a lower court or of a
corporation, board, officer or person, in
the exercising jurisdiction over the
territorial area as defined by the Supreme
Court. It may also be filed in the Court of
Appeals whether or not the same is in aid
of its appellate jurisdiction, or in the
Sandiganbayan if it is in aid of its
appellate jurisdiction. If it involves the
acts or omissions of a quasi-judicial
agency, unless otherwise provided by law
or these Rules, the petition shall be filed
in and cognizable only by the Court of
Appeals.
No extension of time to file the petition
shall be granted except for compelling
reason and in no case exceeding fifteen
(15) days. (4a) (Bar Matter No. 803, 21
July 1998; A.M. No. 00-2-03-SC)
CONCEPT OF “IN AID OF ITS APPELLATE
JURISDICTION”
It means a court’s right to hear an appeal from
the lower court’s finding on the merits.
In original actions for certiorari, the findings of
fact of the CA are not conclusive or binding upon
the SC, unlike the general rule in appeal by
certiorari under Rule 45 (Medran vs. CA, 83 Phil.
1640
Bar Exam Question 2012
22. In election cases involving an act or
omission of an MTC or RTC, a certiorari
petition shall be filed with:
a. The Court of Appeals
b. The Supreme Court
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c. The COMELEC
d. The Court of Appeals or the COMELEC both
having concurrent jurisdiction
SUGGESTED ANSWER: (c), Section 4, Rule
65 of the Rules of Court, as amended by
A.M. No. 07-7-12-SC (Amendments to Rules
41, 45, 58, and 65 of the Rules of Court)
provides that in election cases involving an
act or omission of a municipal or a regional
trial court, the petition shall be filed
exclusively with the Commission on
Elections, in aid of its appellate
jurisdiction. (Galang vs. Hon. Geronimo,
G.R. No. 192793, February 22, 2011).
Section 5. Respondents and costs in
certain cases. — When the petition filed
relates to the acts or omissions of a judge,
court, quasi-judicial agency, tribunal,
corporation, board, officer or person, the
petitioner shall join, as private respondent or
respondents with such public respondent or
respondents, the person or persons
interested in sustaining the proceedings in
the court; and it shall be the duty of such
private respondents to appear and defend,
both in his or their own behalf and in behalf
of the public respondent or respondents
affected by the proceedings, and the costs
awarded in such proceedings in favor of the
petitioner shall be against the private
respondents only, and not against the judge,
court, quasi-judicial agency, tribunal,
corporation, board, officer or person
impleaded as public respondent or
respondents.
Unless otherwise specifically directed by the
court where the petition is pending, the
public respondents shall not appear in or file
an answer or comment to the petition or any
pleading therein. If the case is elevated to a
higher court by either party, the public
respondents shall be included therein as
nominal parties. However, unless otherwise
specifically directed by the court, they shall
not appear or participate in the proceedings
therein. (5a)
WHO MUST BE JOINED AS RESPONDENTS:
1. Judge, court, quasi-judicial agency, tribunal,
corporation board, officer or person who
rendered the judgment (public respondent);
2. Person/s interested in sustaining the
proceeding in court (private respondents).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
The private respondent shall appear and defend
the assailed proceedings and shall bear the
costs
GR: Unless otherwise specifically directed by
the court where the petition is pending, the
public respondents shall not appear in or file an
answer or comment to the petition or any
pleading therein.
EXCEPTION: Where, however, the actuations of
the judge are assailed on the grounds other than
legal ones and imputing to the judge personal
motives, the judge cannot be blamed if he takes
personal interest in trying to disprove the
imputations (Montalban vs. Canonoy168 SCRA
1).
Section 6. Order to comment. — If the
petition is sufficient in form and
substance to justify such process, the
court shall issue an order requiring the
respondent or respondents to comment
on the petition within ten (10) days from
receipt of a copy thereof. Such order shall
be served on the respondents in such
manner as the court may direct together
with a copy of the petition and any
annexes thereto.
In petitions for certiorari before the
Supreme Court and the Court of Appeals,
the provisions of section 2, Rule 56, shall
be observed. Before giving due course
thereto, the court may require the
respondents to file their comment to, and
not a motion to dismiss, the petition.
Thereafter, the court may require the
filing of a reply and such other responsive
or other pleadings as it may deem
necessary and proper. (6a)
Section 7. Expediting proceedings;
injunctive relief. — 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. The petition shall not
interrupt the course of the principal case
unless a temporary restraining order or a
writ of preliminary injunction has been
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issued against the public respondent from
further proceeding in the case. (7a)
In the absence of an injunction or a temporary
restraining order, the public respondent shall
proceed with the principal case within ten (10) days
from the filing of the petition. Failure to proceed may
be a ground for an administrative charge (as
amended by AM No. 07-7-12-SC)
NOTE: Thus, the filing of a petition of r certiorari
does not interrupt the running of the period to file an
answer. Defendant may be then be declared in
default (Diaz vs. Diaz).
Bar Exam Question 2013
XI. What is the effect of the pendency of a
special civil action under Rule65 of the Rules
of Court on the principal case before the lower
court? (1%) (A) It always interrupts the course
of the principal case. (B) It interrupts the
course of the principal case only if the
higher court issues a temporary restraining
order or a writ of preliminary injunction
against the lower court. (C) The lower court
judge is given the discretion to continue with
the principal case. (D) The lower court judge
will continue with the principal case if he
believes that the special civil action was meant
to delay proceedings.
(E) Due respect to the higher court demands
that the lower court judge temporarily suspend
the principal case.
SUGGESTED ANSWER: (B), Under Section 7
of Rule 65, 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. 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 (A.M. No. 07-
7-12-SC, December 12, 2007; Churchille B.
Mari & People of the Phils. Vs. Hon. Rolando
A. Gonzales & PO1 Rudyard Paloma, G.R.
No. 187728, September 12, 2011, Peralta,
J.).
Section 8. Proceedings after comment is
filed. — After the comment or other
pleadings required by the court are filed, or
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the time for the filing thereof has expired,
the court may hear the case or require the
parties to submit memoranda. If after
such hearing or submission of memoranda
or the expiration of the period for the
filing thereof the court finds that the
allegations of the petition are true, it shall
render judgment for the relief prayed for
or to which the petitioner is entitled.
The court, however, may dismiss the
petition if it finds the same to be patently
without merit, prosecuted manifestly for
delay, or that the questions raised therein
are too unsubstantial to require
consideration. (8a)
Section 9. Service and enforcement of
order or judgment. — A certified copy of
the judgment rendered in accordance with
the last preceding section shall be served
upon the court, quasi-judicial agency,
tribunal, corporation, board, officer or
person concerned in such manner as the
court may direct, and disobedience
thereto shall be punished as contempt. An
execution may issue for any damages or
costs awarded in accordance with section
1 of Rule 39. (9a)
RULE 66
Quo Warranto
Quo Warranto
It is a proceeding or writ issued by the court to
determine the right to the use or exercise of an
office, position or franchise and oust the person
holding or exercising such office, position or
franchise if his right to enjoy is unfounded or if
he had forfeited his right to enjoy the privilege.
Actions of quo warranto against corporations
with regard to franchises and rights granted to
them, as well as their dissolution, covered under
the former Rule 66 now fall under the jurisdiction
of SEC. however, such jurisdiction was
subsequently transferred to the RTC (Securities
Regulation Code, sec. 5. 2).
QUO WARRANTO MANDAMUS
Designed to try the Does not lie to try
right or title to the disputed titles but only
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office, if the right or to enforce legal duties
title to the office is
itself disputed
Section 1. Action by Government against
individuals. — An action for the usurpation
of a public office, position or franchise may
be commenced by a verified petition brought
in the name of the Republic of the Philippines
against:
(a) A person who usurps, intrudes into, or
unlawfully holds or exercises a public office,
position or franchise;
(b) A public officer who does or suffers an act
which, by the provision of law, constitutes a
ground for the forfeiture of his office; or
(c) An association which acts as a corporation
within the Philippines without being legally
incorporated or without lawful authority so to
act. (1a)
Section 2. When Solicitor General or
public prosecutor must commence
action. — The Solicitor General or a public
prosecutor, when directed by the
President of the Philippines, or when upon
complaint or otherwise he has good reason
to believe that any case specified in the
preceding section can be established by
proof, must commence such action. (3a)
Section 3. When Solicitor General or
public prosecutor may commence action
with permission of court. — The Solicitor
General or a public prosecutor may, with the
permission of the court in which the action
is to be commenced, bring such an action at
the request and upon the relation of
another person; but in such case the officer
bringing it may first require an indemnity
for the expenses and costs of the action in an
amount approved by and to be deposited in
the court by the person at whose request and
upon whose relation the same is brought.
(4a)
Section 4. When hearing had on
application for permission to commence
action. — Upon application for permission to
commence such action in accordance with the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
next preceding section, the court shall
direct that notice be given to the
respondent so that he may be heard in
opposition thereto; and if permission is
granted, the court shall issue an order to
that effect, copies of which shall be served
on all interested parties, and the petition
shall then be filed within the period
ordered by the court. (5a)
Section 5. When an individual may
commence such an action. — A person
claiming to be entitled to a public office or
position usurped or unlawfully held or
exercised by another may bring an action
therefor in his own name. (6)
WHO MAY COMMENCE:
1. Government through the Solicitor
General (SolGen);
2. Public Prosecutor;
3. Individual claiming to be entitled to the
office or position usurped or unlawfully
held or exercised by another.
CLASSIFICATION OF QUO WARRANTO
PROCEEDINGS
1. Mandatory—section 2;
2. Discretionary—section 3.
RELATOR
A person at whose request and upon whose
relation, the Solgen or public prosecutor brings
an action for quo warranto with the permission of
the court under section 3 & 4.
If the plaintiff’s right to file the complaint is not
proven, it becomes unnecessary for the court to
pass upon the right of the defendant who has
perfect right to the undisturbed possession of his
office. However, if the complaint is brought by
the Solgen or public prosecutor, the court may
pass upon the defendant’s right to office.
Section 6. Parties and contents of
petition against usurpation. — When
the action is against a person for usurping
a public office, position or franchise, the
petition shall set forth the name of the
person who claim to be entitled thereto, if
any, with an averment of his right to the
same and that the respondent is
unlawfully in possession thereof. All
persons who claim to be entitled to the
public office, position or franchise may be
made parties, and their respective rights
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to such public office, position or franchise title he holds a public

determined, in the same action. (7a) office or exercise a
public franchise
CONTENTS OF PETITION; A proceeding under the
1. Name of person claiming title to office, if Omnibus Election Code
any; for the exclusive 3 grounds:
2. Averment of his right to the position/office; purpose of impugning usurpation;
3. Allegation that defendant unlawfully the election of a public forfeiture;
possessed the same. officer on the ground of Illegal association
ineligibility or
disqualification to hold
Section 7. Venue. — An action under the
the office and disloyalty
preceding six sections can be brought only in to the Republic of the
the Supreme Court, the Court of Appeals, Philippines
or in the Regional Trial Court exercising Presupposes the
jurisdiction over the territorial area where the respondent is already
respondent or any of the respondents Petition is filed within 10 holding office and
resides, but when the Solicitor General days from proclamation action must be
commences the action, it may be brought in of the candidate note: a commenced within 1
a Regional Trial Court in the City of Manila, in petition to annul year after cause of
the Court of Appeals, or in the Supreme proclamation suspends ouster or right of
Court. (8a) the 10-day period. petitioner to hold office
arose
Note: Hierarchy of courts is also applicable under The petitioner must be
this rule. May be filed by any the gov’t or the person
Notice that the 1st portion on the rule on venue is registered voter in the entitled to the office and
similar in the rules on venue under the Katarungang constituency who would assume the
Pambarangay Law. same if his action
succeeds
Special Civil Action; Quo Warranto (2001) Actual or compensatory Person adjudged
A group of businessmen formed an association in Cebu damages are entitled to the office
City calling itself Cars C. to distribute / sell cars in said recoverable in quo may also bring an
city. It did not incorporate itself under the law nor did it warranto proceedings action (separate)
have any government permit or license to conduct its under the OEC (sec. against the respondent
business as such. The Solicitor General filed before a 259, BP 881) to recover damages
RTC in Manila a verified petition for quo warranto Jurisdiction is with the
questioning and seeking to stop the operations of Cars MTCs, RTCs, or the Jurisdiction is with the
Co. The latter filed a motion to dismiss the petition on COMELEC, as the case RTC
the ground of improper venue claiming that its main may be.
office and operations are in Cebu City and not in Manila.
Is the contention of Cars Co. correct? Why? (5%) Note: If the dispute is as to the counting of votes
SUGGESTED ANSWER: or on matters connected with the conduct of the
No. As expressly provided in the Rules, when the election, quo warranto is not the proper remedy
Solicitor General commences the action for quo but an Election Protest (Cesar vs. Garrido, 53
warranto, it may be brought in a RTC in the City of Phil. 97).
Manila, as in this case, in the Court of Appeals or in the
Section 8. Period for pleadings and
Supreme Court. (Sec. 7 of Rule 66) proceedings may be reduced; action
given precedence. — The court may
reduce the period provided by these Rules
for filing pleadings and for all other
QUO WARRANTO IN QUO WARRANTO proceedings in the action in order to
ELECTORAL UNDER RULE 66 secure the most expeditious determination
PROCEEDINGS of the matters involved therein consistent
Prerogative writ by with the rights of the parties. Such action
To contest the right of which the government may be given precedence over any other
an elected public officer can call upon any civil matter pending in the court. (9a)
to hold public office person to show by what

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 234

________________________________________________________________________________________________
Section 9. Judgment where usurpation
found. — When the respondent is found
guilty of usurping into, intruding into, or
unlawfully holding or exercising a public
office, position or franchise, judgment shall
be rendered that such respondent be ousted
and altogether excluded therefrom, and that
the petitioner or relator, as the case may be,
recover his costs. Such further judgment may
be rendered determining the respective rights
in and to the public office, position or
franchise of all the parties to the action as
justice requires. (10a)
Section 10. Rights of persons adjudged
entitled to public office; delivery of
books and papers; damages. — If
judgment be rendered in favor of the person
averred in the complaint to be entitled to the
public office he may, after taking the oath of
office and executing any official bond
required by law, take upon himself the
execution of the office, and may immediately
thereafter demand of the respondent all the
books and papers in the respondent's custody
or control appertaining to the office to which
the judgment relates. If the respondent
refuses or neglects to deliver any book or
paper pursuant to such demand, he may be
punished for contempt as having disobeyed a
lawful order of the court. The person
adjudged entitled to the office may also bring
action against the respondent to recover the
damages sustained by such person by reason
of the usurpation. (15a)
RIGHTS OF THE PERSON ADJUDGED
ENTITLED TO OFFICE:
1. To take upon himself the execution of the office;
2. Demand from respondent all the books and
papers appertaining to the office;
Neglect or refusal of respondent is
punishable by contempt.
3. Bring an action for damages against the
usurper.
Must be commenced within 1 year from
entry of judgment.
Section 11. Limitations. — Nothing
contained in this Rule shall be construed to
authorize an action against a public officer or
employee for his ouster from office unless the
same be commenced within one (1) year
after the cause of such ouster, or the right of
the petitioner to hold such office or position,
arose, nor to authorize an action for damages
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
in accordance with the provisions of the
next preceding section unless the same be
commenced within one (1) year after the
entry of the judgment establishing the
petitioner's right to the office in question.
(16a)
NOTE: The periods within which the petition
should be brought are condition precedent to
the existence of a cause of action.
The 1 year period is not interrupted by the
prosecution of any administrative remedy as in
quo warranto proceeding, no one is compelled
to resort to administrative remedies since
public interest requires that the right to public
office should be determined as speedily as
possible (Palma-Fernandez vs. Dela Paz, 160
SCRA 751)
Notice also that splitting a cause of action is
practically allowed under sec. 11, in relation to
sec. 10, of this Rule. The reason is that to
allow the claim for damages in the very same
quo warranto proceeding would unduly delay
the proceeding. The settled public policy is
that questions regarding rightful holder of a
public office should be resolved without delay.
Section 12. Judgment for costs. — In an
action brought in accordance with the
provisions of this Rule, the court may
render judgment for costs against either
the petitioner, the relator, or the
respondent, or the person or persons
claiming to be a corporation, or may
apportion the costs, as justice requires.
(17a)
RULE 67
Expropriation
EMINENT DOMAIN
It is the right and authority of the State to acquire
private property for public use upon the
observance of due process and payment of just
compensation (Visayan Refining Co. vs. Camus,
40 Phil. 550).
EXPROPRIATION
It is the procedure to be observed in the
exercise of the right of eminent domain.
Eminent domain is a real action. Jurisdiction is
with the RTC because the first issue to be
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resolved is the right of the plaintiff to file an
expropriation case. Such is incapable of pecuniary
estimation.
When the respondent (generally the owner of the
property) fail to file answer, he is deemed to have
waived the right to question the propriety of the
expropriation. But he cannot be declared in default.
He can still present evidence to determine the just
compensation.
WHEN IS EXPROPRIATION PROPER:
1. When the owner refuses to sell;
2. When he agrees to sell but an agreement
as to price cannot be reached.
DE FACTO EXPROPRIATION
The taking by the government of a private property
without the formal exercise of the power of eminent
domain. Remedy: Inverse Condemnation
Proceeding.
INVERSE CONDEMNATION PROCEEDING
An action to recover just compensation from the
state. It has the objective to recover the value of the
property taken in fact by the governmental
defendant, even though no formal exercise of the
power of eminent domain has been attempted by
the taking agency (cited in NPC vs. Heirs of
Sangkay, GR No. 165828, Aug 24, 2011)
Note: In inverse condemnation proceedings, the
value of the property is determined at the time of the
action, NOT at the time of the purported taking or
entry to the property (Ibid).
Bar Exam Question 2011
(4) Which of the following is NOT CONSISTENT
with the rules governing expropriation
proceedings?
(A) The court shall declare the defendant
who fails to answer the complaint in default
and render judgment against him. (B) The
court shall refer the case to the Board of
Commissioners to determine the amount of
just compensation. (C) The plaintiff shall make
the required deposit and forthwith take
immediate possession of the property sought to
be expropriated. (D) The plaintiff may
appropriate the property for public use after
judgment and payment of the compensation
fixed in it, despite defendant’s appeal.
Congress; Law Expropriating Property (2006)
May Congress enact a law providing that a 5, 000 square
meter lot, a part of the UST compound in Sampaloc
Manila, be expropriated for the construction of a park in
honor of former City Mayor Arsenic Lacson? As
compensation to UST, the City of Manila shall deliver its
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
5-hectare lot in Sta. Rosa, Laguna originally intended
as a residential subdivision for the Manila City Hall
employees. Explain. (5%)
SUGGESTED ANSWER:
Yes, Congress may enact a law expropriating
property provided that it is for public use and with
just compensation. In this case, the construction of a
park is for public use (See Sena v. Manila Railroad Co.,
G.R. No. 15915, September 7, 1921; Reyes v. NHA, GR
No. 147511, March 24, 2003). The planned
compensation, however, is not legally tenable as the
determination of just compensation is a judicial
function.No statue, decree or executive order can
mandate that the determination of just
compensation by the executive or legislative
departments can prevail over the court's findings
(Export Processing Zone Authority v. Dulay, G.R. No.
L-59603, April 29,1987; Sees. 5 to 8 Rule 67,1997 Rules of
Civil Procedure). In addition, compensation must be
paid in money (Esteban v. Onorio, A.M. No. 00- 4-166-
RTC, June 29, 2001).
Section 1. The complaint. — The right of
eminent domain shall be exercised by the
filing of a verified complaint which shall
state with certainty the right and purpose
of expropriation, describe the real or
personal property sought to be
expropriated, and join as defendants all
persons owning or claiming to own, or
occupying, any part thereof or interest
therein, showing, so far as practicable, the
separate interest of each defendant. If the
title to any property sought to be
expropriated appears to be in the Republic
of the Philippines, although occupied by
private individuals, or if the title is
otherwise obscure or doubtful so that the
plaintiff cannot with accuracy or certainty
specify who are the real owners, averment
to that effect shall be made in the
complaint. (1a)
CONTENTS OF THE VERIFIED COMPLAINT:
1. Right and purpose of expropriation;
2. Description of the real or personal property;
3. All persons owning or claiming to own or
occupying any part or interest therein must
be named as defendants, showing so far as
practicable, the separate interest of each
defendant;
4. If the title of the property to be
expropriated is in the name of the Republic
of the Philippines, or if the title is obscure or
doubtful, the averment to that effect shall be
made in the complaint.
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All properties can be expropriated, except:
1. Money;
2. Choses in action
Section 2. Entry of plaintiff upon
depositing value with authorized
government depositary. — Upon the filing
of the complaint or at any time
thereafter and after due notice to the
defendant, the plaintiff shall have the right to
take or enter upon the possession of the real
property involved if he deposits with the
authorized government depositary an amount
equivalent to the assessed value of the
property for purposes of taxation to be held
by such bank subject to the orders of the
court. Such deposit shall be in money, unless
in lieu thereof the court authorizes the
deposit of a certificate of deposit of a
government bank of the Republic of the
Philippines payable on demand to the
authorized government depositary.
If personal property is involved, its value
shall be provisionally ascertained and the
amount to be deposited shall be promptly
fixed by the court.
After such deposit is made the court shall
order the sheriff or other proper officer to
forthwith place the plaintiff in possession of
the property involved and promptly submit a
report thereof to the court with service of
copies to the parties. (2a)
PURPOSE OF PRELIMINARY DEPOSIT
1. Provide for damages if the court finds the
plaintiff has no right to expropriate;
2. Advance payment if in case property is
finally expropriated.
Note: When the national government expropriates
private property, the implementing agency may
enter into the possession of the property through a
writ of possession upon the filing of the complaint as
long as it makes immediate payment to the property
owner the amount equivalent to 100% of the value
of the property and the value of the improvements,
based on the relevant BIR zonal valuation (sec. 4,
RA 8974).
This provision modifies section 2, Rule 67, ROC
as it is not enough to make initial deposit of an
amount equivalent to the assessed value of the
property (Republic vs. Gingoyon, GR No.
166429, Dec. 19, 2005).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
However, under the LGC, sec. 19 [last part] –
That the local government unit may
immediately take possession of the property
upon the filing of the expropriation proceedings
and upon making a deposit with the proper
court of at least fifteen percent (15%) of the fair
market value of the property based on the
current tax declaration of the property to be
expropriated: Provided, finally, That, the
amount to be paid for the expropriated
property shall be determined by the proper
court, based on the fair market value at the
time of the taking of the property.
Expropriation; Motion to Dismiss (2009)
No.XIV.A. The Republic of the Philippines,
through the department of Public Works
and Highways (DPWH) filed with the RTC a
complaint for the expropriation of the
parcel of land owned by Jovito. The land is
to be used as an extension of the national
highway. Attached to the complaint is a
bank certificate showing that there is, on
deposit with the Land Bank of the
Philippines, an amount equivalent to the
assessed value of the property. Then DPWH
filed a motion for the issuance of a writ of
possession. Jovito filed a motion to dismiss
the complaint on the ground that there are
other properties which would better serve
the purpose.
(a) Will Jovito’s motion to dismiss prosper?
Explain SUGGESTED ANSWER: NO. the
present Rule of Procedure governing
expropriation (Rule 67), as amended by
the 1997 Rules of Civil Procedure,
requires the defendant to file an Answer,
which must be filed on or before the
time stated in the summons.
Defendant‟s objections and defenses
should be pleaded in his Answer not in a
motion.
(b) As judge, will you grant the writ of
possession prayed for by DPWH? Explain
SUGGESTED ANSWER: 100% payment of
the zonal value of the property as
determined by the BIR, to be the amount
deposited. Before such deposit is made,
the national government thru the DPWH
has no right to take the possession of
the property under expropriation.
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Section 3. Defenses and objections. — If a
defendant has no objection or defense to
the action or the taking of his property, he
may file and serve a notice of appearance
and a manifestation to that effect, specifically
designating or identifying the property in
which he claims to be interested, within the
time stated in the summons. Thereafter, he
shall be entitled to notice of all proceedings
affecting the same.
If a defendant has any objection to the
filing of or the allegations in the complaint, or
any objection or defense to the taking of his
property, he shall serve his answer within the
time stated in the summons. The answer
shall specifically designate or identify the
property in which he claims to have an
interest, state the nature and extent of the
interest claimed, and adduce all his
objections and defenses to the taking of his
property. No counterclaim, cross-claim or
third-party complaint shall be alleged or
allowed in the answer or any subsequent
pleading.
A defendant waives all defenses and
objections not so alleged but the court, in the
interest of justice, may permit amendments
to the answer to be made not later than ten
(10) days from the filing thereof. However, at
the trial of the issue of just compensation
whether or not a defendant has previously
appeared or answered, he may present
evidence as to the amount of the
compensation to be paid for his property, and
he may share in the distribution of the award.
(n)
Section 4. Order of expropriation. — If the
objections to and the defenses against the
right of the plaintiff to expropriate the
property are overruled, or when no party
appears to defend as required by this Rule,
the court may issue an order of expropriation
declaring that the plaintiff has a lawful right
to take the property sought to be
expropriated, for the public use or purpose
described in the complaint, upon the
payment of just compensation to be
determined as of the date of the taking of
the property or the filing of the complaint,
whichever came first.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
A final order sustaining the right to
expropriate the property may be appealed
by any party aggrieved thereby. Such
appeal, however, shall not prevent the
court from determining the just
compensation to be paid.
After the rendition of such an order, the
plaintiff shall not be permitted to dismiss
or discontinue the proceeding except on
such terms as the court deems just and
equitable. (4a)
Section 5. Ascertainment of
compensation. — Upon the rendition of
the order of expropriation, the court shall
appoint not more than three (3)
competent and disinterested persons as
commissioners to ascertain and report
to the court the just compensation for the
property sought to be taken. The order of
appointment shall designate the time and
place of the first session of the hearing to
be held by the commissioners and specify
the time within which their report shall be
submitted to the court.
Copies of the order shall be served on the
parties. Objections to the appointment of
any of the commissioners shall be filed
with the court within ten (10) days from
service, and shall be resolved within thirty
(30) days after all the commissioners shall
have received copies of the objections.
(5a)
NOTE: Appointment of commissioners is
mandatory and cannot be dispensed with
(Meralco vs. Pineda).
Note that under Rule 32, the appointment of
commissioners is discretionary.
Section 6. Proceedings by
commissioners. — Before entering upon
the performance of their duties, the
commissioners shall take and subscribe an
oath that they will faithfully perform their
duties as commissioners, which oath shall
be filed in court with the other
proceedings in the case. Evidence may be
introduced by either party before the
commissioners who are authorized to
administer oaths on hearings before them,
and the commissioners shall, unless the
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parties consent to the contrary, after due
notice to the parties, to attend, view and
examine the property sought to be
expropriated and its surroundings, and may
measure the same, after which either party
may, by himself or counsel, argue the case.
The commissioners shall assess the
consequential damages to the property not
taken and deduct from such consequential
damages the consequential benefits to be
derived by the owner from the public use or
purpose of the property taken, the operation
of its franchise by the corporation or the
carrying on of the business of the corporation
or person taking the property. But in no case
shall the consequential benefits assessed
exceed the consequential damages assessed,
or the owner be deprived of the actual value
of his property so taken. (6a)
Section 7. Report by commissioners and
judgment thereupon. — The court may
order the commissioners to report when any
particular portion of the real estate shall have
been passed upon by them, and may render
judgment upon such partial report, and direct
the commissioners to proceed with their work
as to subsequent portions of the property
sought to be expropriated, and may from
time to time so deal with such property. The
commissioners shall make a full and accurate
report to the court of all their proceedings,
and such proceedings shall not be effectual
until the court shall have accepted their
report and rendered judgment in accordance
with their recommendations. Except as
otherwise expressly ordered by the court,
such report shall be filed within sixty (60)
days from the date the commissioners were
notified of their appointment, which time may
be extended in the discretion of the court.
Upon the filing of such report, the clerk of the
court shall serve copies thereof on all
interested parties, with notice that they are
allowed ten (10) days within which to file
objections to the findings of the report, if
they so desire. (7a)
Section 8. Action upon commissioners'
report. — Upon the expiration of the period
of ten (10) days referred to in the preceding
section, or even before the expiration of such
period but after all the interested parties
have filed their objections to the report or
their statement of agreement therewith, the
court may, after hearing, accept the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
report and render judgment in
accordance therewith, or, for cause
shown, it may recommit the same to the
commissioners for further report of facts,
or it may set aside the report and appoint
new commissioners; or it may accept the
report in part and reject it in part and it
may make such order or render such
judgment as shall secure to the plaintiff
the property essential to the exercise of
his right of expropriation, and to the
defendant just compensation for the
property so taken. (8a)
JUST COMPENSATION
It is equivalent to the fair market value of the
property at the time of the taking or filing of the
complaint whichever comes first. It is the fair and
full equivalent for the loss sustained by the
defendant.
FAIR MARKET VALUE
Is that sum of money which a person, desirous
but not compelled to buy, and an owner, willing
but not compelled to sell (Nachura).
 Determination of just compensation is a
JUDICIAL PREROGATIVE.
 Executive determination of just
compensation is unconstitutional (Panes vs.
Visayas State College of Agriculture, 263
SCRA 708).
FORMULA for the determination of just
compensation”
Just compensation = [fair market value +
(consequential damages –
consequential benefits)].
If consequential benefits is more than
consequential damages, then just
compensation is equal to the fair market
value.
Section 9. Uncertain ownership;
conflicting claims. — If the ownership of
the property taken is uncertain, or there
are conflicting claims to any part thereof,
the court may order any sum or sums
awarded as compensation for the property
to be paid to the court for the benefit of
the person adjudged in the same
proceeding to be entitled thereto. But the
judgment shall require the payment of the
sum or sums awarded to either the
defendant or the court before the plaintiff
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can enter upon the property, or retain it for
the public use or purpose if entry has already
been made. (9a)
Section 10. Rights of plaintiff after
judgment and payment. — Upon payment
by the plaintiff to the defendant of the
compensation fixed by the judgment, with
legal interest thereon from the taking of the
possession of the property, or after tender to
him of the amount so fixed and payment of
the costs, the plaintiff shall have the right to
enter upon the property expropriated and to
appropriate it for the public use or purpose
defined in the judgment, or to retain it should
he have taken immediate possession thereof
under the provisions of section 2 hereof. If
the defendant and his counsel absent
themselves from the court, or decline to
receive the amount tendered, the same shall
be ordered to be deposited in court and such
deposit shall have the same effect as actual
payment thereof to the defendant or the
person ultimately adjudged entitled thereto.
(10a)
WHEN IS TITLE VESTED IN EXPROPRIATION:
1. If personal property; upon payment of just
compensation (se. 10);
2. If real; property; upon payment of just
compensation and registration (sec. 13).
NOTE: However, in agrarian reform cases, title
passes even before payment of just compensation
(resolution of MR; Land Bank vs. CA, 258 SCRA
404).
FORM OF COMPENSATION:
Compensation is to be paid in money and no other.
Exception: payment made partly in Land Bank
bonds is allowed (Association of Small Landowners
vs. Sec. of Agrarian Reform, 175 SCRA 343)
Reason: Not a traditional exercise of eminent
domain, but a REVOLUTIONARY kind of
expropriation
Section 11. Entry not delayed by appeal;
effect of reversal. — The right of the
plaintiff to enter upon the property of the
defendant and appropriate the same for
public use or purpose shall not be delayed by
an appeal from the judgment. But if the
appellate court determines that plaintiff has
no right of expropriation, judgment shall be
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
rendered ordering the Regional Trial Court
to forthwith enforce the restoration to the
defendant of the possession of the
property, and to determine the damages
which the defendant sustained and may
recover by reason of the possession taken
by the plaintiff. (11a)
NOTE: The court can award damages motu
proprio, a counterclaim being a prohibited
pleading under sec. 3, 2nd par.
Section 12. Costs, by whom paid. — The
fees of the commissioners shall be taxed
as a part of the costs of the proceedings.
All costs, except those of rival claimants
litigating their claims, shall be paid by the
plaintiff, unless an appeal is taken by the
owner of the property and the judgment is
affirmed, in which event the costs of the
appeal shall be paid by the owner. (12a)
Section 13. Recording judgment, and
its effect. — The judgment entered in
expropriation proceedings shall state
definitely, by an adequate description, the
particular property or interest therein
expropriated, and the nature of the public
use or purpose for which it is
expropriated. When real estate is
expropriated, a certified copy of such
judgment shall be recorded in the registry
of deeds of the place in which the
property is situated, and its effect shall be
to vest in the plaintiff the title to the real
estate so described for such public use or
purpose. (13a)
Section 14. Power of guardian in such
proceedings. — The guardian or
guardian ad litem of a minor or of a
person judicially declared to be
incompetent may, with the approval of the
court first had, do and perform on behalf
of his ward any act, matter, or thing
respecting the expropriation for public use
or purpose of property belonging to such
minor or person judicially declared to be
incompetent, which such minor or person
judicially declared to be incompetent could
do in such proceedings if he were of age
or competent. (14a)
MULTIPLE APPEALS
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Order of expropriation may be appealed by the
defendant by record on appeal. This is an instance
when multiple appeals are allowed because they
have separate and/or several judgments on
different issues.
Issue on the right to expropriate;
Issue of just compensation.
A final order sustaining the right to expropriate may
be appealed by any party aggrieved thereby (sec. 4,
par. 2). An appeal does not delay the right of the
plaintiff to enter upon the property of the defendant
and appropriate the same for public purpose.
EFFECT IF ORDER OF CONDEMNATION IS
REVERSED BY THE APPELLATE COURT: The
owner shall repossess the property with the right to
be indemnified for all damages sustained due to the
taking.
In the event the judgment of expropriation is
reversed and the case is remanded to the lower
court with the mandate to determine the damages
caused to the landowner, such landowner has the
option of proving his such damages either in the
same case or in a separate action instituted for that
purpose, as the judgment denying the right to
expropriation is not res judicata on the issue of
damages arising from such illegal expropriation
(Republic vs. Baylosis, 109 Phil. 580).
NOTE: For more discussion on the substantive
aspect of eminent domain, refer to the notes on the
fundamental powers of the state.
RULE 68
Foreclosure of Real Estate Mortgage
FORECLOSURE OF MORTGAGE
It is a proceeding in a court of justice conducted
according to the legal forms by which the mortgagee
or his successors or one who has, by law,
succeeded to the rights and liabilities of the
mortgagee, undertakes to dispose of, to ban, to cut-
off the legal and equitable claims of lien holders or
of the mortgagor or those who have succeeded to
the rights and duties of the mortgagor.
Foreclosure of REM is an action quasi- in rem.
Jurisdiction is with the RTC. The primary issue to
be resolved is the issue of the right of the
mortgagee to foreclose the mortgage which is
incapable of pecuniary estimation.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Multiple appeals allowed in foreclosure of
REM.
Subsequent action for foreclosure is not barred
(by res judicata) by a criminal case for violation
of BP 22 as payment on the loan where REM
was constituted (Torres vs. Medina, 2010)
JUDICIAL EXTRAJUDICIAL
FORECLOSURE FORECLOSURE
Requires court No court intervention
intervention necessary
There is only an equity Right of redemption
redemption exists
Rule 68 Act 3135
Bar Exam Question 2011
(78) Which of the following correctly states
the rule on foreclosure of mortgages? (A)
The rule on foreclosure of real estate
mortgage is suppletorily applicable to
extrajudicial foreclosures. (B) In judicial
foreclosure, an order of confirmation is
necessary to vest all rights in the
purchaser. (C) There is equity of
redemption in extra-judicial foreclosure. (D)
A right of redemption by the judgment
obligor exists in judicial foreclosure.
A mortgagee may bring a personal action for the
amount due, instead of a foreclosure suit, in
which case he will be deemed to have waived
his right to proceed against the property in a
foreclosure proceeding (Movido vs.RFC, 105
Phil. 886)
An action to annul the mortgage can stand side
by side with foreclosure of mortgage. There is
neither litis pendentia nor res judicata.
PROVISIONAL REMEDIES AVAILABLE
1. Preliminary attachment;
2. Receivership.
Section 1. Complaint in action for
foreclosure. — In an action for the
foreclosure of a mortgage or other
encumbrance upon real estate, the
complaint shall set forth the date and due
execution of the mortgage; its
assignments, if any; the names and
residences of the mortgagor and the
mortgagee; a description of the
mortgaged property; a statement of the
date of the note or other documentary
evidence of the obligation secured by the
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mortgage, the amount claimed to be unpaid
thereon; and the names and residences of all
persons having or claiming an interest in the
property subordinate in right to that of the
holder of the mortgage, all of whom shall be
made defendants in the action. (1a)
CONTENTS OF THE COMPLAINT:
1. The date and due execution of the mortgage,
its assignment, if any;
2. Name and residences of the mortgagor and
the mortgagee;
3. A description of the mortgaged property;
4. A statement of the date of the note or other
documentary evidence of the obligation
secured by the mortgage, the amount claimed
to be unpaid thereon;
5. The names and residences of the persons
having or claiming interest in the property
subordinate in right to that of the holder of the
mortgage, all of whom shall be made
defendants n the action.
DEFENDANTS IN JUDICIAL FORECLOSURE:
1. The person obliged to pay the mortgage debt;
2. The person who own, occupy or control the
mortgage premises or any part thereof;
3. The transferee or grantee of the property;
4. The 2nd mortgagee or junior encumbrancers or
any person claiming a right or interest in the
property subordinate to the mortgage sought to
be foreclosed (to foreclose their equity
redemption); but if the action is by the junior
encumbrancers, the first mortgagee may also
be joined as defendant.
EFFECT IF THE JUNIOR ENCUMBRANCER IS
NOT IMPLEADED:
a. His equity redemption is not affected or barred
by the judgment of the court because he is
merely a necessary party and not an
indispensable party ( Sunlife Insurance vs. Diez,
52 Phil. 271)
b. The remedy of the senior encumbrancer is to
file an independent proceeding to foreclose the
right to redeem by requiring the junior
encumbrancer to pay the amount stated in the
order of execution or to redeem the property at
the specified time.
There is no provision prohibiting the joinder of a first
mortgagee in a complaint filed by the second
mortgagee for the same purpose. In such a
situation, the 2nd mortgagee has to wait until after
the debtor’s obligation to the first mortgage has
been fully settled and the excess of the proceeds of
the sale, if any, will be given to the 2 nd mortgagee
(Alpha Insurance vs. Reyes, 106 SCRA 274).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
If the first mortgagee is not joined as a party, he
may file a complaint in intervention. Moreover,
even without his intervention, his rights are
protected inasmuch as the mortgaged property
remains subject to the lien (BPI vs. De Coster,
47 Phil. 594).
Section 2. Judgment on foreclosure for
payment or sale. — If upon the trial in
such action the court shall find the facts
set forth in the complaint to be true, it
shall ascertain the amount due to the
plaintiff upon the mortgage debt or
obligation, including interest and other
charges as approved by the court, and
costs, and shall render judgment for the
sum so found due and order that the
same be paid to the court or to the
judgment obligee within a period of not
less than ninety (90) days nor more than
one hundred twenty (120) days from the
entry of judgment, and that in default of
such payment the property shall be sold
at public auction to satisfy the judgment.
(2a)
Petition for Certiorari (2000)
AB mortgaged his property to CD. AB failed to pay
his
obligation and CD filed an action for foreclosure of
mortgage. After trial, the court issued an Order
granting CD’s prayer for foreclosure of mortgage
and ordering AB to pay CD the full amount of the
mortgage debt including interest and other charges
not later than 120 days from date of receipt of the
Order. AB received the Order on August 10, 1999.
No other proceeding took place thereafter. On
December 20, 1999, AB tendered the full amount
adjudged by the court to CD but the latter refused to
accept it on the ground that the amount was
tendered beyond the 120-day period granted by the
court. AB filed a motion in the same court praying
that CD be directed to receive the amount tendered
by him on the ground that the Order does not
comply with the provisions of Section 2, Rule 68 of
the Rules of Court which give AB 120 days from
entry of judgment, and not from date of receipt of
the Order. The court denied his motion on the
ground that the Order had already become final and
can no longer be amended to conform with Section
2, Rule 68. Aggrieved, AB files a petition for
certiorari against the Court and CD. Will the petition
for certiorari prosper? Explain. (5%)
SUGGESTED ANSWER:
Yes. The court erred in issuing an Order granting
CD’s prayer for foreclosure of mortgage and
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ordering AB to pay CD the full amount of the mortgage
debt including interest and other charges not later than
120 days from receipt of the Order. The court should
have rendered a judgment which is appealable. Since no
appeal was taken, the judgment became final on August
25, 1999, which is the date of entry of judgment. (Sec 2,
Rule 36)
Hence, AB had up to December 24, 1999 within which
to pay the amount due. (Sec. 2, Rule 68) The court gravely
abused its discretion amounting to lack or excess of
jurisdiction in denying AB’s motion praying that CD be
directed to receive the amount tendered.
Bar Exam Question 2013
VI. When the court renders judgment in a
judicial foreclosure proceeding, when is the
mortgaged property sold at public auction to
satisfy the judgment? (1%) (A) After the
decision has become final and executory. (B) At
any time after the failure of the defendant to
pay the judgment amount. (C) After the
failure of the defendant to pay the
judgment amount within the period fixed in
the decision, which shall not be less than
ninety (90) nor more than one hundred
twenty (120) days from entry of judgment.
(D) The mortgaged property is never sold at
public auction. (E) The mortgaged property
may be sold but not in any of the situations
outlined above.
SUGGESTED ANSWER: (C), Under Section 2
of Rule 68, if upon the trial in such action
the court shall find the facts set forth in
the complaint to be true, it shall ascertain
the amount due to the plaintiff upon the
mortgage debt or obligation, including
interest and other charges as approved by
the court, and costs, and shall render
judgment for the sum so found due and
order that the same be paid to the court or
to the judgment oblige within a period of
not less than ninety (90) days nor more
than one hundred twenty (120) days from
the entry of judgment, and that in default
of such payment the property shall be sold
at public auction to satisfy the judgment.
Bar Exam Question 2011
(63) In a judicial foreclosure proceeding, under
which of the following instances is the court
NOT ALLOWED to render deficiency judgment
for the plaintiff? (A) If the mortgagee is a
banking institution. (B) if upon the mortgagor’s
death during the proceeding, the mortgagee
submits his claim in the estate proceeding. (C)
If the mortgagor is a third party who is not
solidarily liable with the debtor. (D) If the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
mortgagor is a non-resident person and
cannot be found in the Philippines.
Bar Exam Question 2012
27. Equity of Redemption is the right of the
mortgagor to redeem the mortgaged
property after default in the performance of
the conditions of the mortgage, before the
sale or the confirmation of sale in a(n):
a. extrajudicial foreclosure of mortgage.
b. judicial foreclosure of mortgage.
c. execution sale.
d. foreclosure by a bank.
SUGGESTED ANSWER: (b), Equity of
redemption exists in case of judicial
foreclosure of a mortgage. This is simply
the right of the defendant mortgagor to
extinguish the mortgage and retain
ownership of the property by paying the
secured debt within a period of not less
than ninety (90) days nor more than one
hundred twenty (120) days from the
entry of judgment, in accordance with
Rule 68, or even after the foreclosure
sale but prior to its confirmation.
(Spouses Rosales vs. Spouses Alfonso,
G.R. No. 137792, August 12, 2003).
Section 3. Sale of mortgaged property;
effect. — When the defendant, after
being directed to do so as provided in the
next preceding section, fails to pay the
amount of the judgment within the period
specified therein, the court, upon
motion, shall order the property to be
sold in the manner and under the
provisions of Rule 39 and other
regulations governing sales of real estate
under execution. Such sale shall not affect
the rights of persons holding prior
encumbrances upon the property or a part
thereof, and when confirmed by an order
of the court, also upon motion, it shall
operate to divest the rights in the
property of all the parties to the action
and to vest their rights in the purchaser,
subject to such rights of redemption as
may be allowed by law.
Upon the finality of the order of
confirmation or upon the expiration of
the period of redemption when allowed by
law, the purchaser at the auction sale or
last redemptioner, if any, shall be entitled
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to the possession of the property unless a
third party is actually holding the same
adversely to the judgment obligor. The said
purchaser or last redemptioner may secure a
writ of possession, upon motion, from the
court which ordered the foreclosure. (3a)
ORDER OF CONFIRMATION
Before the order of confirmation, even after the
expiration of the period of equity redemption, the
debtor can still pay the debt.
Mortgagor does not have the right to a notice of sale
after failure to pay debt because:
1. Said notice is not litigable; and
2. Issuance is ministerial.
However, the mortgagor is entitled to a notice of
hearing of the confirmation of sale, otherwise, the
order is VOID.
Due process requires that said notice be given so
that the mortgagor:
1. Can resist the motion;
2. Be informed that his right to redeem is cut-
off (Tiglao vs. Botones, 90 Phil. 275).
The Order of Confirmation is APPEALABLE.
NOTE: The issuance of a writ of possession in a
foreclosure proceeding is not an execution of
judgment within the purview of section 6 of Rule 39
but is merely a ministerial and complementary duty
of the court to put an end to the litigation which the
court can undertake even after the lapse of 5 years,
provided the statute of limitations and the rights of a
third person have not intervened in the meantime
Special Civil Action; Foreclosure (2003)
A borrowed from the Development Bank of the
Philippines (DBP) the amount of P1 million secured by
the titled land of his friend B who, however, did not
assume personal liability for the loan. A defaulted and
DBP filed an action for judicial foreclosure of the real
estate mortgage impleading A and B as defendants. In
due course, the court rendered judgment directing A to
pay the outstanding account of P1.5 million (principal
plus interest) to the bank. No appeal was taken by A on
the Decision within the reglementary period. A failed to
pay the judgment debt within the period specified in the
decision. Consequently, the court ordered the
foreclosure sale of the mortgaged land. In that
foreclosure sale, the land was sold to the DBP for P1.2
million. The sale was subsequently confirmed by the
court, and the confirmation of the sale was registered
with the Registry of Deeds on 05 January 2002.
On 10 January 2003, the bank filed an ex-parte motion
with the court for the issuance of a writ of possession to
oust B from the land. It also filed a deficiency claim for
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
P800,000.00 against A and B. the deficiency claim
was opposed by A and B.
(a) Resolve the motion for the issuance of a writ of
possession.
(b) Resolve the deficiency claim of the bank. 6%
SUGGESTED ANSWER:
(a) In judicial foreclosure by banks such as DBP, the
mortgagor or debtor whose real property has been
sold on foreclosure has the right to redeem the
property sold within one year after the sale (or
registration of the sale). However, the purchaser at
the auction sale has the right to obtain a writ of
possession after the finality of the order confirming
the sale. (Sec. 3 of Rule 68; Sec. 47 of RA 8791. The General
Banking Law of 2000). The motion for writ of
possession, however, cannot be filed ex parte. There
must be a notice of hearing.
(b) The deficiency claim of the bank may be
enforced against the mortgage debtor A, but it
cannot be enforced against B, the owner of the
mortgaged property, who did not assume personal
liability for the loan.
Section 4. Disposition of proceeds of
sale. — The amount realized from the
foreclosure sale of the mortgaged
property shall, after deducting the costs of
the sale, be paid to the person foreclosing
the mortgage, and when there shall be
any balance or residue, after paying off
the mortgage debt due, the same shall be
paid to junior encumbrancers in the order
of their priority, to be ascertained by the
court, or if there be no such
encumbrancers or there be a balance or
residue after payment to them, then to
the mortgagor or his duly authorized
agent, or to the person entitled to it. (4a)
Section 5.How sale to proceed in case
the debt is not all due. — If the debt for
which the mortgage or encumbrance was
held is not all due as provided in the
judgment as soon as a sufficient portion of
the property has been sold to pay the
total amount and the costs due, the sale
shall terminate; and afterwards as often
as more becomes due for principal or
interest and other valid charges, the court
may, on motion, order more to be sold.
But if the property cannot be sold in
portions without prejudice to the parties,
the whole shall be ordered to be sold in
the first instance, and the entire debt and
costs shall be paid, if the proceeds of the
sale be sufficient therefor, there being a
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rebate of interest where such rebate is redemption shall be registered with the
proper. (5a) registry of deeds, and a brief
memorandum thereof shall be made by
Section 6. Deficiency judgment. — If upon the registrar of deeds on said certificate of
the sale of any real property as provided in title.
the next preceding section there be a balance
due to the plaintiff after applying the If the property is not redeemed, the final
proceeds of the sale, the court, upon motion, deed of sale executed by the sheriff in
shall render judgment against the defendant favor of the purchaser at the foreclosure
for any such balance for which, by the record sale shall be registered with the registry of
of the case, he may be personally liable to deeds; whereupon the certificate of title in
the plaintiff, upon which execution may issue the name of the mortgagor shall be
immediately if the balance is all due at the cancelled and a new one issued in the
time of the rendition of the judgment; name of the purchaser. (n)
otherwise; the plaintiff shall be entitled to
execution at such time as the balance WHEN IS TITLE ACQUIRED
remaining becomes due under the terms of The buyer acquires title upon finality of the
the original contract, which time shall be confirmation of sale.
stated in the judgment. (6a)
The certificate of sale cannot be registered
JUDGMENT OF DEFICIENCY without the final order confirming the sale.
FORECLOSURE JUDGMENT
Action quasi in rem Action in personam EQUITY of RIGHT OF
REDEMPTION REDEMPTION
INSTANCES WHERE THE COURT CANNOT Right of the debtor, his
RENDER DEFICIENCY JUDGMENT: Right of the defendant successors in interest
1. When Recto Law applies (Art. 1484, NCC); mortgagor to or any judicial or
2. When the mortgagor is a non-resident and extinguish the judgment creditor of
is not found in the Philippines; mortgage and retain said debtor or any
3. When the mortgagor dies, the mortgagee ownership of the person having lien on
may file his claim with the probate court property by paying the the property
(Rule 86, sec. 7); debt within 90- 120 subsequent to the
4. If the mortgagor is a third person not days after the entry of mortgage or deed of
SOLIDARILY liable with the debtor. judgment or even after trust under which the
the foreclosure but property is sold to
Deficiency not executed before the death of the prior to confirmation of redeem the property
mortgage debtor may be filed as a claim against the sale by the court within 1 year from the
estate of the deceased (Reyes vs. Rosenstock, 47 registration of the
Phil. 7840 sheriff’s certificate of
foreclosure sale
Governed by Rule 68 Governed by Rule 39
Section 7. Registration. — A certified copy sec. 29- 31
of the final order of the court confirming the Period is 90- 120 days Period is 1 year from
sale shall be registered in the registry of after entry of judgment date of registration of
deeds. If no right of redemption exists, the or prior to confirmation certificate of sale
certificate of title in the name of the of sale
mortgagor shall be cancelled, and a new one
issued in the name of the purchaser. NOTE: There is no right of redemption in judicial
foreclosure sale after confirmation of sale.
Where a right of redemption exists, the
certificate of title in the name of the Exception: If the mortgagee is a bank- within
mortgagor shall not be cancelled, but the one year from date of sale [sec. 78, RA 337,
certificate of sale and the order confirming GBA] (Government Insurance System vs. CFI of
the sale shall be registered and a brief Iloilo, 185 SCRA 19). BPI Family vs. Avenido,
memorandum thereof made by the registrar GR No. 175816, Dec. 7, 2011.
of deeds upon the certificate of title. In the
event the property is redeemed, the deed of

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 245

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GR: In extra-judicial foreclosure, the mortgagor has
the right to redeem the property within 1 year from
registration of the deed of sale.
Exception: HOWEVER, sec. 47 of the General
Banking Act provides that in case of extrajudicial
foreclosure notwithstanding Act 3135, juridical
persons shall have the right to redeem the property
until, but not after, the registration of the certificate
of foreclosure sale with the Register of Deeds which
in no case shall be more than 3 months after the
foreclosure, which ever is earlier.
Where after extrajudicial foreclosure of real estate
mortgage, the mortgagee purchased the same at
the foreclosure sale, he shall be entitled to a writ of
possession despite the fact that the premises are in
the possession of a lessee whose lease are not yet
terminated, unless the lease has been previously
(a) registered with the Register of deeds or the
mortgagee has(b) actual knowledge of the
existence of the lease.
Under sec. 7 of Act 3135,as amended, the petition
for such writ of possession shall be made under
oath and filed as an ex parte motion in the
registration or cadastral proceeding of the property
(Ibasco vs. Caguia, GR NO. 62619, Aug. 19, 1986).
Some relevant provisions on right of redemption
under CA 141:
Under sec. 119 of CA 141, the right to repurchase is
given to :
1. Homestead grantee;
2. His widow;
3. Legal heirs.
The period to redeem is within 5 years from
conveyance. Note, HOWEVER, that the right to
repurchase is available only if the sale is to third
persons outside of the family circle or not an
immediate member of the family.
5 years is counted from the date of sale and NOT
from date of registration with the ROD (Lee Chuy
Realty Corp. vs. CA, 250 SCRA 596. Dec. 4, 1995)
Period of Redemption applies even to foreclosure
sales (Cassion vs. Banco Nacional Fiipino, 89 Phil.
560)
Section 119 of CA 141 prevails over statutes
providing for shorter redemption period in extra
judicial sale (PNB vs. De los Reyes, 179 SCRA 619;
Paras vs. CA 91 Phil. 389; Belisario vs. IAC, 165
SCRA 101.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
IMPORTANT: In relation to Act 3135, in case of
extrajudicial foreclosure, the homesteader has a
period of six years to redeem. The 5 year period
runs only after the expiration of the one year
from date of auction sale (Cassion vs. Banco
Nacional Filipino, supra; Manuel vs. PNB, 101
Phil 968).
ANOTHER: The right to repurchase is not
applicable where the person asking to
repurchase is merely speculating or expecting
for greater profits by reselling the subject land
again (Simeon vs. Pena, 365 SCRA 610;
Santana vs. Marinas GR No. L- 35537, Dec. 27,
1979)
Section 8. Applicability of other
provisions. — The provisions of sections
31, 32 and 34 of Rule 39 shall be
applicable to the judicial foreclosure of
real estate mortgages under this Rule
insofar as the former are not inconsistent
with or may serve to supplement the
provisions of the latter. (8a)
Extrajudicial Foreclosure of REM; Procedure.
Under the latest SC Adm. Cir. A. M. 99-10-05-0
governing extrajudicial foreclose of REM, the
petition must be filed with the Office of the
Executive Judge (EJ), through the Office of the
Clerk of Court and the Ex-Oficio Sheriff, and the
corresponding docketing fee must be paid,
whether the foreclosure proceedings shall be
handled by the Sheriff or by a Notary Public
(NP).
Procedure to contest legality of extra-judicial
foreclosure of REM:
Once the Petition for Extra-Judicial Foreclosure
is filed and a docket number is assigned after
the payment of the docketing fee, and before the
EJ has given the clearance to the Sheriff to
proceed with foreclosure, an administrative
objection to the petition may be filed with the EJ
who is vested with the responsibility over, and
direct supervision of, the work of the Clerk of
Court and Ex-Oficio Sheriff, including the duty of
the Clerk of Court to “examine, in case of REM
foreclosure, whether the applicant has complied
with the requirements before public auction is
conducted.
If the EJ finds that the petition is defective either
in form or in substance, he will not give due
course to the petition.
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Extra-Judicial proceedings are not judicial
proceedings.
Unlike in an action, an extra-judicial foreclosure of
REM is initiated by filing a petition not with the court
of justice but with the office of the sheriff. The EJ
comes into the picture only because he exercises
administrative supervision over the sheriff to see to
it that “the applicant has complied with the
requirements before public auction is conducted.”
The EJ cannot exercise adjudicatory functions, such
as ruling on the question whether the loans were
paid or not as a ground for issuing a TRO or a writ
of injunction, which is a remedy available only in a
judicial action. (Supena vs Dela Rosa, 267 SCRA 1
[1997]).
If the EJ approves the petition, the sheriff
schedules the auction sale by posting and
publication of the Notice of Public Auction, the
objecting mortgagor has the following alternative
remedies:
a. file a petition for certiorari and prohibition with
application for issuance of a writ of preliminary
injunction or TRO under Rule 65 with the CA to
review the order of the EJ giving due course to the
petition, if grave abuse of discretion on the part of
the EJ can be shown, or
b. an ordinary civil action to annul the foreclosure
proceedings with application for issuance of a writ of
preliminary injunction or TRO to be filed with the
RTC.
The grounds to restrain or enjoin foreclosure in
general are as follows:
a. Formal and substantive defects in the REM and
the foreclosure proceedings provide the legal and
equitable grounds to enjoin the foreclosure
proceeding or eventually nullify the foreclosure
proceeding, if not the REM itself. The Civil Code
provides:
Art. 5. Acts executed against the provisions of
mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity.
b. If there is a genuine dispute on the amount legally
due and enforceable by the REM. The dispute may
be due to the following:
(1) Where there is a dispute regarding the interest
RATE increase. The present day issue that affects
the total amount due under the mortgage is the
floating rate of interest periodically fixed by the Bank
based on the prevailing interest rate in the market,
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
such as the Manila Reference Rate (MRR) or
Treasury Bill rate, plus a margin as determined
by the Bank. If the floating rate is unilaterally
fixed by the Bank for each interest period
without the written conformity of the Borrower,
the interest may be declared null and void for
being potestative and for lack of mutuality based
on essential equality between the parties.
(Almeda vs CA and PNB, 256 SCRA 293
[1996]).
If the interest is declared null and void, the
foreclosure sale for a higher amount than what
is legally due is likewise null and void because
under the Civil Code, a mortgage maybe
foreclosed only to enforce the fulfillment of the
obligation for whose security it was constituted.
(Art. 2126, NCC).
(2) Where the total amount due on the
mortgage is undetermined because some of the
properties covered by the REM are agricultural
properties that are subjected to coverage under
the CARP, in which case a portion of the
mortgaged indebtedness “will be assumed by
the Government up to the amount equivalent to
the landowner’s compensation”. (Art. 73 [b], RA
6657). Until the final valuation of the lands
subjected to CARP coverage is determined, the
total amount of the mortgage indebtedness is
unliquidated (undetermined).
c. If the foreclosed property is in the actual
possession of a THIRD PARTY who has a claim
adverse to the mortgagor, the writ of possession
may not legally be issued even if petitioner’s
(mortgagee’s) title over the subject property has
been consolidated or confirmed in its favor. It is
still not entitled to a writ of possession as the
same may be issued in extra-judicial foreclosure
of REM only if the debtor is in possession and
no third person had intervened. (Gatchalian vs
Arlegui (L-41360, Feb. 17, 1997) reiterated in
Guevarra vs. Ramos (L-24358, March 31, 1971,
38 SCRA 194).
The bank (mortgagee) may legally proceed with
foreclosure only when the exact amount of the
obligations of the mortgagor is determined after
trial on the merit and the mortgagor cannot meet
the obligation following that determination.
(Almeda vs CA, et al. L-113412, April 17, 1996).
Q. Is the prohibition against issuance of
injunction against foreclosure of Government
Financial Institute absolute?
Ans. No. PD 385 which prohibits the issuance
of an injunction against foreclosure by any
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government financial institution is arbitrary and
unreasonable, and for that reason may be said to be
unconstitutional for being violative of due process of
law. Such prohibition cannot be sustained if there is
a clear legal ground to restrain the foreclosure.
Despite the existence of PD 385, the Supreme
Court allows the issuance of injunction to enjoin
extra-judicial foreclosure of government financial
institution where “an unsecured obligation x x x
sought to be satisfied by the x x x foreclosure sale.
(C & C Commercial Corp. vs vs CA, 253 SCRA 241
[1996]).
x x x In line with the Filipino Marble ruling, pending
determination by the lower court of x x x the larger
issue of failure of consideration, the sale at public
auction of the foreclosure chattels should be
enjoined, PD 385, notwithstanding. (Ibid).
Q. a. What is the “Dragnet Clause” in connection
with a REM? b. Is the clause valid?
Ans. a. A clause in the REM extending coverage
of the mortgage to loans constituted before, during
and after the execution of the mortgage, regardless
of the amount of the loans.
b. yes for REM but not valid for a chattel mortgage
because of the affidavit of good faith.
Q. Do all mortgagors have the right of redemption?
If so, within what period is the right to be exercised?
Ans. No. Under the new amendment to Sec. 47 of
the General Banking Act (the General Banking Law
of 2000), corporate mortgagors do not enjoy
anymore the right of redemption. They only enjoy
the equity of redemption which may be exercised
only before the lapse of 90 days from the date of the
auction or registration of the Sheriff’s Certificate of
Sale with the ROD, whichever comes first.
Q. How much is the amount of redemption?
Ans. It depends. a. If the mortgagee-creditor is a
bank, the amount due under the mortgage deed,
with interest thereon at the rate specified in the
mortgage. (Sec. 47, General Banking Act).
b. If the mortgage-creditor is other than a bank, the
bid price plus 12% interest per annum. (Act No.
3135).
Q. What is the procedural remedy of the purchaser
at public auction upon extrajudicial foreclosure sale
of property subject of a REM so that he could obtain
possession of the property?
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Ans. File a petition with the RTC for the
issuance of a writ of possession under Sec. 33
of Rule 39. (DBP vs. Gatal, L-138567, March 4,
2005, 452 SCRA 697, 3rd Div.).
a. No separate and independent action is
necessary to obtain possession of the property.
(Tan Soo Huat vs. Ongwico, 63 Phil. 746
[1936]).
b. Petition for writ of possession under Sec. 7 of
Act No. 3135 is not an initiatory pleading.
Hence, certification against forum-shopping
required in Sec. 5, Rule 7 does not apply. The
proceeding being summary in nature and, in
fact, it can be asked and granted ex parte,
intervention is not proper. (Ancheta vs
MetroBank, Inc., L-163410, Sept. 16, 2005, 470
SCRA 157).
c. Although a Petition for Writ of Possession is
filed, actually it is a motion. That’s why it could
be asked and granted ex parte and it is not an
initiatory pleading. Duty of the court to issue the
writ, just like a writ of execution, is ministerial.
(Arquiza vs CA, L-160479, June 8, 2005, 459
SCRA 753, 2nd Div.).
d. Although under the law and the decisions of
the Supreme Court, the hearings are ex-parte,
the trend and recent practice is to allow the
mortgagor to participate in the proceedings. As
a matter of law, the mortgagor is permitted
under Sec. 8 of Act 3135 to set aside the
foreclosure sale in the SAME PROCEEDINGS
for the issuance of a Writ of Possession.
NOTE: In extra-judicial foreclosure, the “two
bidder rule” is not anymore required (Supreme
Court Resolution amending par. 5 of AM 99-10-
05-0, Jan. 30, 2001)
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JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 249

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EXECUTION SALE (Rule 39)
Notice of time and place of sale:
a) Perishable property – post written
notice in 3 public places, preferably in
conspicuous areas of the municipal or
city hall, post office and public market
in the municipality or city where the
sale is to take place for such time as
may be necessary;
b) Other personal property—post similar
notice in the 3 public places
abovementioned for not less than 5
days;
c) Real property—post similar notice for
20 days in 3 public places
abovementioned; if assessed value of
the property exceeds P50.000, publish
a copy of the notice once a week for
two consecutive weeks in a
newspaper selected by raffle having
general circulation in the province or
city (sec. 15)
Time and place of sale:
Time—not earlier than 9AM and not later
than2PM
Place—may me agreed upon by the parties; in
the absence of such agreement, it shall be held
in the office of the clerk of court of the RTC or
MTC which issued the writ or which was
designated by the appellate court if property is
real or is not capable of manual delivery or in
the place where it is located if personal property
Manner of sale:
Must be at public auction, to the highest bidder,
to start at the exact time stated in the notice
No need to confirm sale
Redemption of the property sold:
The judgment obligor or redemptioner may
redeem at any time within 1 year from the date
of the registration of the certificate of sale by
paying the purchase price with interest and any
assessments or taxes which may have been
paid with interest (sec. 28)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
JUDICIAL FORECLOSURE
(Rule 68)
Same as in execution
Same as in execution
Same as in execution
Sale must be confirmed by
an order of the court upon
motion (sec. 3)
The judgment obligor shall
be directed by the court to
pay the court or to the
judgment oblige within a
period of not less than 90
days nor more than 120 days
from entry of judgment the
amount due to the plaintiff
upon the mortgage debt or
obligation, including interest
and other charges as
approved by the court, and
costs (sec. 2)
EXTRAJUDICIAL FORECLOSURE
(Act 3135)
Post such notice for not less than 20
days in at least 3 public places of the
municipality or city where property is
situated
Time—between 9AM and 4PM (sec.
4)
Place—sale cannot be made legally
outside of the province in which the
property sold is situated; if the place is
the subject of stipulation, the sale
shall be made in such place or in the
municipal building in which the
property or part thereof is situated
(sec. 2)
At public auction, under the direction
of the sheriff, justice or auxiliary
justice of the peace of the municipality
in which the sale has to be made, or a
notary public of said municipality
No need to confirm the sale
The debtor, his successors in interest,
or any person having a lien on the
property subsequent to the mortgage
or deed of trust under which the
property is sold may redeem the same
at any tie within 1 year from the date
of the sale or from registration of sale
if the foreclosed property is a
registered property.
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Possession:
The redemptioner (Judgment debtor) shall be
entitled to the possession of the property until
the expiration of the redemption period (sec.
33)
The purchaser is entitled to The purchaser may petition the court
possession of the property of the place where the property or any
only after the finality of the part thereof is located to give him the
order of confirmation or upon possession thereof during the
the expiration of the period of redemption period and furnishing a
redemption, when allowed by bond
law [ex. Redemption under
sec. 119, of CA 141] (SEC.3)

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 251

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RULE 69
Partition
PARTITION
It is the process of dividing and assigning property
own in common among the various co-owners
thereof in proportion to their respective interests in
said property.
PARTITION MAY BE :
1. Judicial—Rule 69;
2. Extrajudicial—no court intervention.
PROVISIONAL REMEDY APPLICABLE:
Appointment of a Receiver.
Partition is an action in personam.
The first issue to be resolved in an action for
partition is whether the plaintiff has a right to compel
partition. It is incapable of pecuniary estimation.
Hence, jurisdiction is with the RTC.
Note: A division of property cannot be ordered by
the court unless co-ownership is first established
(Co Giok Lun vs. Jose Co, GR No. 184454, Aug. 3,
2011).
ORAL PARTITION was held valid, but cannot
however, prejudice third persons (Hernandez vs.
Andal).
Section 1. Complaint in action for
partition of real estate. — A person having
the right to compel the partition of real estate
may do so as provided in this Rule, setting
forth in his complaint the nature and extent
of his title and an adequate description of the
real estate of which partition is demanded
and joining as defendants all other persons
interested in the property. (1a)
CONTENTS OF THE COMPLAINT
1. Nature and extent of plaintiff’s title;
2. Adequate description of the real estate of
which partition is demanded;
3. Join as defendants all persons interested in
the property.
PARTIES
All co-owners are indispensable parties. Creditors or
assignees of co-owners may intervene and object to
a partition effected without their concurrence. But
they cannot impugned partition already executed,
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Unless:
1. There has been fraud;
2. In case it was made notwithstanding a
formal opposition presented to prevent
it.(art. 497,NCC)
However, this right to intervene is not absolute
and intervenor must show a legitimate and
proper interest in the subject property (De Borja
vs. Jugo, 64 Phil 464)
NON- INCLUSION OF A CO-OWNER
1. BEFORE JUDGMENT—not ground for
a motion to dismiss; remedy is to file a
motion to include the party.
2. AFTER JUDGMENT—judgment is void
because co-owners are indispensable
parties.
Even though the complaint is defective for failure
to make allegations necessary to constitute a
cause of action but during trial, evidence offered
establishes a cause of action intended to be
alleged, the defect is cured and cannot be made
a ground for subsequent objection. This is in
accordance with section 5 of Rule 10 (Del Val
vs. Del Val).
WHEN CAN PARTITION BE MADE
GR: It can be made anytime. Pertinent provision
of the law says:
Art. 494, NCC. No co-owner shall be obliged to
remain in the co-ownership. Each co-owner
may demand at any time the partition of the
thing owned in common, insofar as his share is
concerned.
Nevertheless, an agreement to keep the thing
undivided for a certain period of time, not
exceeding ten years, shall be valid. This term
may be extended by a new agreement.
A donor or testator may prohibit partition for a
period which shall not exceed twenty years.
Neither shall there be any partition when it is
prohibited by law.
No prescription shall run in favor of a co-owner
or co-heir against his co-owners or co-heirs so
long as he expressly or impliedly recognizes the
co-ownership.
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GR: The right to demand partition does not
PRESCRIBE.
Exception: If a co-owner asserts adverse title to the
property in which case the period of prescription
runs from such time of assertion of adverse
title.(OCEAN—Open, Continuous, Exclusive,
Adverse, and Notorious possession)
Exception to the exception: Title to lands which
are, covered by the Torrens System does not
prescribe.
Exception of the exception to the exception:
claim of title may, however, be barred by the
equitable doctrine of laches. That is unreasonable
delay in the assertion of rights.
Note: The Doctrine of Laches is NOT strictly
followed with regard to blood relatives. Thus,
what may be considered unreasonable time to
strangers is not necessarily true where the
parties are related to each other by blood
relationship.
Section 2. Order for partition and
partition by agreement thereunder. — If
after the trial the court finds that the plaintiff
has the right thereto, it shall order the
partition of the real estate among all the
parties in interest. Thereupon the parties
may, if they are able to agree, make the
partition among themselves by proper
instruments of conveyance, and the court
shall confirm the partition so agreed upon by
all the parties, and such partition, together
with the order of the court confirming the
same, shall be recorded in the registry of
deeds of the place in which the property is
situated. (2a)
A final order decreeing partition and
accounting may be appealed by any party
aggrieved thereby. (n)
Art. 496, NCC. Partition may be made by
agreement between the parties or by judicial
proceedings. Partition shall be governed by the
Rules of Court insofar as they are consistent with
this Code.
NATURE OF PARTITION
An action for partition and accounting under Rule 69
is in the nature of an action quasi in rem. Such an
action is essentially for the purpose of affecting the
defendant’s interest in a specific property and not to
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
render judgment against him (Valmonte vs. CA,
252 SCRA 102).
Two aspects of partition:
1. Existence of co-ownership;
2. Accounting (how to actually partition the
property).
MODE OF APPEAL: Record on Appeal.
Judgment directing an accounting is appealable
regardless of whether the accounting is the
principal relief sought or just a mere incident,
and becomes final and executory after the lapse
of the reglementary period (Miranda vs. CA, 71
SCRA 295)
Section 3. Commissioners to make
partition when parties fail to agree. —
If the parties are unable to agree upon the
partition, the court shall appoint not more
than three (3) competent and
disinterested persons as commissioners to
make the partition, commanding them to
set off to the plaintiff and to each party in
interest such part and proportion of the
property as the court shall direct. (3a)
Section 4. Oath and duties of
commissioners. — Before making such
partition; the commissioners shall take
and subscribe an oath that they will
faithfully perform their duties as
commissioners, which oath shall be filed in
court with the other proceedings in the
case. In making the partition, the
commissioners shall view and examine the
real estate, after due notice to the parties
to attend at such view and examination,
and shall hear the parties as to their
preference in the portion of the property
to be set apart to them and the
comparative value thereof, and shall set
apart the same to the parties in lots or
parcels as will be most advantageous and
equitable, having due regard to the
improvements, situation and quality of the
different parts thereof. (4a)
Section 5. Assignment or sale of real
estate by commissioners. — When it is
made to appear to the commissioners that
the real state, or a portion thereof, cannot
be divided without prejudice to the
interests of the parties, the court may
order it assigned to one of the parties
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willing to take the same, provided he pays to
the other parties such amount as the
commissioners deem equitable, unless one of
the interested parties asks that the property
be sold instead of being so assigned, in which
case the court shall order the commissioners
to sell the real estate at public sale under
such conditions and within such time as the
court may determine. (5a)
Pertinent provisions of NCC:
Art. 495. Notwithstanding the provisions of the
preceding article, the co-owners cannot demand
a physical division of the thing owned in
common, when to do so would render it
unserviceable for the use for which it is intended.
But the co-ownership may be terminated in
accordance with Article 498.
Art. 498. Whenever the thing is essentially
indivisible and the co-owners cannot agree that it
be allotted to one of them who shall indemnify
the others, it shall be sold and its proceeds
distributed.
Note: The public sale is MANDATORY if one of
the parties interested asks that the property be
sold instead of being allotted to one of the co-
owners (Feria, p. 601)
Bar Exam Question 2011
(16) When may a co-owner NOT demand the
partition of the thing owned in common?
(A) When the creditor of one of the co-owners
has attached the property. (B) When the
property is essentially indivisible. (C) When
related co-owners agreed to keep the property
within the family. (D) When a co-owner uses
the property as his residence.
Section 6. Report of commissioners;
proceedings not binding until confirmed.
— The commissioners shall make a full and
accurate report to the court of all their
proceedings as to the partition, or the
assignment of real estate to one of the
parties, or the sale of the same. Upon the
filing of such report, the clerk of court shall
serve copies thereof on all the interested
parties with notice that they are allowed ten
(10) days within which to file objections to
the findings of the report, if they so desire.
No proceeding had before or conducted by
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the commissioners and rendered
judgment thereon. (6a)
Section 7. Action of the court upon
commissioners report. — Upon the
expiration of the period of ten (10) days
referred to in the preceding section or
even before the expiration of such period
but after the interested parties have filed
their objections to the report or their
statement of agreement therewith the
court may, upon hearing, accept the
report and render judgment in accordance
therewith, or, for cause shown recommit
the same to the commissioners for further
report of facts; or set aside the report and
appoint new commissioners; or accept the
report in part and reject it in part; and
may make such order and render such
judgment as shall effectuate a fair and
just partition of the real estate, or of its
value, if assigned or sold as above
provided, between the several owners
thereof. (7)
Section 8. Accounting for rent and
profits in action for partition. — In an
action for partition in accordance with this
Rule, a party shall recover from another
his just share of rents and profits received
by such other party from the real estate in
question, and the judgment shall include
an allowance for such rents and profits.
(8a)
Section 9. Power of guardian in such
proceedings. — The guardian or
guardian ad litem of a minor or person
judicially declared to be incompetent may,
with the approval of the court first had, do
and perform on behalf of his ward any act,
matter, or thing respecting the partition of
real estate, which the minor or person
judicially declared to be incompetent could
do in partition proceedings if he were of
age or competent. (9a)
Section 10. Costs and expenses to be
taxed and collected. — The court shall
equitably tax and apportion between or
among the parties the costs and expenses
which accrue in the action, including the
compensation of the commissioners,
having regard to the interests of the
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parties, and execution may issue therefor as
in other cases. (10a)
Section 11. The judgment and its effect;
copy to be recorded in registry of deeds.
— If actual partition of property is made, the
judgment shall state definitely, by metes and
bounds and adequate description, the
particular portion of the real estate assigned
to each party, and the effect of the judgment
shall be to vest in each party to the action in
severalty the portion of the real estate
assigned to him. If the whole property is
assigned to one of the parties upon his
paying to the others the sum or sums
ordered by the court, the judgment shall
state the fact of such payment and of the
assignment of the real estate to the party
making the payment, and the effect of the
judgment shall be to vest in the party making
the payment the whole of the real estate free
from any interest on the part of the other
parties to the action. If the property is sold
and the sale confirmed by the court, the
judgment shall state the name of the
purchaser or purchasers and a definite
description of the parcels of real estate sold
to each purchaser, and the effect of the
judgment shall be to vest the real estate in
the purchaser or purchasers making the
payment or payments, free from the claims
of any of the parties to the action. A certified
copy of the judgment shall in either case be
recorded in the registry of deeds of the place
in which the real estate is situated, and the
expenses of such recording shall be taxed as
part of the costs of the action. (11a)
Section 12. Neither paramount rights nor
amicable partition affected by this Rule.
— Nothing in this Rule contained shall be
construed so as to prejudice, defeat, or
destroy the right or title of any person
claiming the real estate involved by title
under any other person, or by title
paramount to the title of the parties among
whom the partition may have been made, nor
so as to restrict or prevent persons holding
real estate jointly or in common from making
an amicable partition thereof by agreement
and suitable instruments of conveyance
without recourse to an action. (12a)
Art. 499, NCC. The partition of a thing owned in
common shall not prejudice third persons, who
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
shall retain the rights of mortgage, servitude
or any other real rights belonging to them
before the division was made. Personal rights
pertaining to third persons against the co-
ownership shall also remain in force,
notwithstanding the partition.
Section 13. Partition of personal
property. — The provisions of this Rule
shall apply to partitions of estates
composed of personal property, or of
both real and personal property, in so far
as the same may be applicable. (13)
RULE 70
Forcible Entry and Unlawful Detainer
NOTES: Nature of Proceedings in accion
interdictal.
Ejectment cases are summary proceedings
intended to provide an expeditious means of
protecting actual possession or right of
possession of property.
The Rule on Summary Procedure applies only in
cases filed before the MTCs.
When the decision of the MTC is appealed to
the RTC, the applicable Rules are those of the
RTC, and not the summary rules (Refugia vs.
CA, 258 SCRA 347).
Ejectment case is a real action, which is not
extinguished by death of a party ( Cañiza vs.
CA, 268 SCRA 640).
Prejudicial Question; Ejectment vs. Specific
Performance (2000)
BB files a complaint for ejectment in the MTCon the
ground of non-payment of rentals against JJ. After
two days, JJ files in the RTC a complaint against BB
for specific performance to enforce the option to
purchase the parcel of land subject of the ejectment
case. What is the effect of JJ’s action on BB’s
complaint? Explain. (5%)
SUGGESTED ANSWER:
There is no effect. The ejectment case involves
possession de facto only. The action to enforce the
option to purchase will not suspend the action of
ejectment for non-payment of rentals. (Willman Auto
Supply Corp. v. Court of Appeals, 208 SCRA 108 [1992]).
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Section 1. Who may institute ACCION ACCION ACCION

proceedings, and when. — Subject to the INTERDICT PUBLICIAN REINVIDICATOR
provisions of the next succeeding section, a AL A IA
person deprived of the possession of any land A summary A plenary
or building by force, intimidation, threat, action for the action for An action for the
strategy, or stealth, or a lessor, vendor, recovery of the recovery recovery of
vendee, or other person against whom the physical of real right ownership, which
possession of any land or building is possession of necessarily
where the possession includes recovery
unlawfully withheld after the expiration or
disposition when the of possession
termination of the right to hold possession,
has NOT disposition
by virtue of any contract, express or implied,
lasted for has lasted
or the legal representatives or assigns of any more than for more
such lessor, vendor, vendee, or other person, one year than one
may, at any time within one (1) year after year
such unlawful deprivation or withholding of All cases of
possession, bring an action in the proper forcible entry
Municipal Trial Court against the person or and unlawful RTC has RTC has
persons unlawfully withholding or depriving of detainer jurisdiction if jurisdiction if the
possession, or any person or persons irrespective the value of value of the
claiming under them, for the restitution of of the the property property exceeds
such possession, together with damages and amount of exceeds 20, 20, 000 outside
costs. (1a) damages or 000 outside Metro Manila; 50,
unpaid Metro 000 within Metro
rentals Manila; 50, Manila.
WHO MAY INSTITUTE: sought to be 000 within Otherwise MTC
recovered Metro has jurisdiction
A. Forcible Entry: A person deprived of possession should be Manila.
of any land or building by force, intimidation, threat, brought to Otherwise
strategy or stealth (FITSS). the MTC. MTC has
However, if jurisdiction
B. Unlawful Detainer: not brought
1. Lessor, vendor, vendee or other person against within one
whom possession of any land or building is year, RTC
unlawfully withheld; has
jurisdiction
2. Legal representatives, or assigns of any such
lessor, vendor, vendee or other person against NOTE: Amount of rents and damages does not
whom possession of any land or building is affect the jurisdiction of the MTC because they
unlawfully withheld. are only incidental or accessory to the main
action (Lao Seng Hian vs. Lopez, 83 Phil. 617).
AGAINST WHOM ACTION MAY BE MAINTAINED:
1. The action of forcible entry may be maintained But if only rents or damages in an ordinary
only against a person who was in possession of action, the action is personal and the amount
the land or building at the commencement of the claimed determines jurisdiction.
action;
2. Tenant with right of possession may bring an From what date is the one year period
action against another tenant; counted?
3. Vendor may bring an action for ejectment
against vendee upon failure to pay the A. FORCIBLE ENTRY
installments (take note however of the Maceda
Law); It is counted from the date of the entry or
4. Forcible entry and unlawful detainer may also lie taking of possession by the use of force,
against the very owner of the property. intimidation, threat, strategy or stealth.

NOTE: The Supreme Court acknowledged the

3 KINDS OF ACTIONS FOR RECOVERY OF difference between an entry secured by force
POSSESSION and intimidation and one obtained by stealth.
The owner or possessor of the land could not be

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 256

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expected to enforce his right to its possession
against the illegal occupant and sue the latter before
learning of the clandestine intrusion. And to deprive
the lawful possessor of the benefit of the summary
action under Rule 70 simply because the stealthy
intruder manages to conceal the trespass for more
than one year would be to reward the clandestine
usurpation even if it is unlawful (Vda. De Prieto vs.
Reyes, 121 Phil. 1218).
The one year period should be counted from the
date of the demand to vacate upon learning of the
entry by stealth (Feria, p. 619).
Forcible Entry; Remedies (2013) No.V. The
spouses Juan reside in Quezon City. With their
lottery winnings, they purchased a parcel of
land in Tagaytay City for P100,000.00. In a
recent trip to their Tagaytay property, they
were surprised to see hastily assembled
shelters of light materials occupied by several
families of informal settlers who were not there
when they last visited the property three (3)
months ago. To rid the spouses’ Tagaytay
property of these informal settlers, briefly
discuss the legal remedy you, as their counsel,
would use; the steps you would take; the court
where you would file your remedy if the need
arises; and the reason/s for your actions. (7%)
SUGGESTED ANSWER:
As counsel for spouses Juan, I will file a
special civil action for Forcible Entry. The
Rules of Court provide that a person
deprived of the possession of any land or
building by force, intimidation, threat,
strategy, or stealth may at anytime within 1
year after such withholding of possession
bring an action in the proper Municipal
Trial Court where the property is located.
This action which is summary in nature
seeks to recover the possession of the
property from the defendant which was
illegally withheld by the latter (Section 1,
Rule 70, Rules of Court). An ejectment case
is designed to restore , through summary
proceedings, the physical possession of any
land or building to one who has been
illegally deprived of such possession,
without prejudice to the settlement of
parties‟ opposing claims of juridical
possession in an appropriate proceedings
(Heirs of Agapatio T. Olarte and Angela A.
Olarte et. al. vs. Office of the President of
the Philippines et al., G.R. No. 177995,
June 15, 2011, Villarama, Jr., J.).
In Abad vs. Farrales, G.R. No. 178635, April
11, 2011, the Supreme Court held that two
allegations are indispensable in actions for
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
forcible entry to enable first level courts
to acquire jurisdiction over them: first,
that the plaintiff had prior physical
possession of the property; and, second,
that the defendant deprived him of such
possession by means of force,
intimidation, threats, strategy, or
stealth. However, before instituting the
said action, I will first endeavour to
amicably settle the controversy with the
informal settlers before the appropriate
Lupon or Barangay Chairman. If there is
no agreement reached after mediation
and conciliation under the Katarungang
Pambarangay Law, I will secure a
certificate to file action and file the
complaint for ejectment before the MTC
of Tagaytay City where the property is
located since ejectment suit is a real
action regardless of the value of the
property to be recovered or claim for
unpaid rentals (BP 129 and RULE 4,
Section 1 of the Revised Rules on Civil
Procedure). In the aforementioned
complaint, I will allege that Spouses
Juan had prior physical possession and
that the dispossession was due to force,
intimidation and stealth. The complaint
will likewise show that the action was
commenced within a period of one (10
year from unlawful deprivation of
possession, and that the Spouses Juan is
entitled to restitution of possession
together with damage costs.
B. UNLAWFUL DETAINER
a. From the date of the last demand to vacate
in case of non-payment of rent or non-
compliance with the conditions of the lease.
Exception: when the subsequent demands
were merely in the nature of reminders of
the original demand, in which case the one
year period is counted from the first demand
(Desbarats vs. Laureano, L- 21875, Sept.
27, 1966).
b. From the date of the notice to quit, in case of
a tacit renewal of the lease (tacita
recondussion), as when with the
acquiescence of the lessor, the lessee
continues enjoying the thing leased for
fifteen days, as provided in art. 1670, NCC.
c. From the date of the revocation of the
permit, in case of occupancy on mere
tolerance or under temporary permit.
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While it is true that the only issue in forcible entry or
unlawful detainer is the physical possession (de
facto possession), not possession de jure, yet the
court may go beyond that if only to prove the very
nature of possession. The court may receive
evidence upon the question of title for the purpose
of determining the character and extent of
possession and damages for the detention (Consing
vs. Jamandre, 64 SCRA 1).
Bar Exam Question 2011
(62) Which of the following renders a complaint
for unlawful detainer deficient? (A) The
defendant claims that he owns the subject
property. (B) The plaintiff has tolerated
defendant’s possession for 2 years before
demanding that he vacate it. (C) The
plaintiff‟s demand is for the lessee to pay
back rentals or vacate. (D) The lessor
institutes the action against a lessee who has
not paid the stipulated rents.
Jurisdiction; Unlawful Detainer (2010)
No.III. Anabel filed a complaint against B for
unlawful detainer before the Municipal Trial
Court (MTC) of Candaba, Pampanga. After the
issues had been joined, the MTC dismissed the
complaint for lack of jurisdiction after noting
that the action was one for accion publiciana.
Anabel appealed the dismissal to the RTC
which affirmed it and accordingly dismissed
her appeal. She elevates the case to the Court
of Appeals, which remands the case to the
RTC. Is the appellate court correct? Explain.
(3%) SUGGESTED ANSWER: Yes, the Court
of Appeals is correct in remanding the case
to the RTC for the latter to try the same on
the merits. The RTC, having jurisdiction
over the subject matter of the case appealed
from MTC should try the case on the merits
as if the case was originally filed with it,
and not just to affirm the dismissal of the
case. R.A. No. 7691, however, vested
jurisdiction over specified accion publiciana
with courts of the first level (Metropolitan
Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts) in cases
where the assessed value of the real
property involved does not exceed
P20,000.00 outside Metro Manila, or in
Metro Manila, where such value does not
exceed P50,000.00.
Jurisdiction; Unlawful Detainer (2008)
No.IV. Filomeno brought an action in the
Metropolitan Trial Court (METC) of Pasay City
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
against Marcelino pleading two causes of
action. The first was a demand for the
recovery of physical possession of a parcel
of land situated in Pasay City with an
assessed value of 40,000; the second was a
claim for damages of 500,000 for
Marcelino’s unlawful retention of the
property. Marcelino filed a motion to
dismiss on the ground that the total
amount involved, which is 540,000, is
beyond the jurisdiction of the MeTC. Is
Marcelino correct? SUGGESTED ANSWER:
No, Metropolitan or Municipal trial
Courts have exclusive jurisdiction over a
complaint for forcible entry and unlawful
detainer regardless of the amount of the
claim for damages (Sec. 33 [2], B.P. 129).
Also, Sec. 3, Rule 70 gives jurisdiction to
the said courts irrespective of the
amount of damages. This is the same
provision in the Revised Rules of
Summary Procedure that governs all
ejectment cases (Sec. 1[A][1], Revised
Rule on Summary Procedure). The Rule,
however, refers to the recovery of a
reasonable amount of damages. In this
case, the property is worth only
P40,000, but the claim for damages is
P500,000.
Unlawful; Detainer; Prior Possession
(2008) No.XVII. Ben sold a parcel of land to
Del with right to repurchase within one(1)
year. Ben remained in possession of the
property. When Ben failed to repurchase
the same, title was consolidated in favor of
Del. Despite demand, Ben refused to vacate
the land, constraining Del to file a
complaint for unlawful detainer. In his
defense, Ben averred that the case should
be dismissed because Del had never been
in possession of the property. Is Ben
correct? SUGGESTED ANSWER: No, for
unlawful detainer, the defendant need
not have been in prior possession of the
property. This is upon the theory that
the vendee steps into the shoes of the
vendor and succeeds to his rights and
interests. In contemplation of law, the
vendee‟s possession is that of the
vendor‟s (Maninang vs. C.A., G.R. No.
121719, 16 September 1999; Dy Sun vs.
Brillantes, 93 Phil. 175 [1953]); (Pharma
Industries, Inc., vs. Pajarillaga, G.R. No.
L-53788, 17 October 1980).
Bar Exam Question 2011
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(64) In which of the following cases is the However, inasmuch as all actions of forcible entry
plaintiff the real party in interest? (A) A and unlawful detainer are subject to summary
creditor of one of the co-owners of a parcel of procedure and since the counterclaim is only
land, suing for partition (B) An agent acting in permissive, it cannot be entertained by the Municipal
his own name suing for the benefit of a Court. (Revised Rule on Summary Procedure.)
disclosed principal (C) Assignee of the lessor
in an action for unlawful detainer (D) An
administrator suing for damages arising from Section 2. Lessor to proceed against
the death of the decedent lessee only after demand. — Unless
otherwise stipulated, such action by the
lessor shall be commenced only after
FORCIBLE ENTRY UNLAWFUL demand to pay or comply with the
(detentacion) DETAINER
conditions of the lease and to vacate is
(desahucio)
made upon the lessee, or by serving
Possession of the Possession is
written notice of such demand upon the
defendant is unlawful inceptively lawful but it
from the very beginning becomes illegal by person found on the premises if no person
as he acquires reason of the be found thereon, and the lessee fails to
possession by force, termination of the right comply therewith after fifteen (15) days in
intimidation, threat, to the possession of the the case of land or five (5) days in the
strategy or stealth property under the case of buildings. (2a)
contract with the
plaintiff Note: DEMAND contemplated in this section is
Demand is jurisdictional jurisdictional. It is a two-fold demand:
No previous demand for if the ground is non-
the defendant to vacate payment of rentals or 1. To pay and vacate; or
is necessary failure to comply with 2. To comply with the conditions of the
the provisions of the lease and vacate.
lease contract
The plaintiff must prove A demand is a pre-requisite to an action for
that he was in prior The plaintiff need not unlawful detainer when the action is for failure
possession of the have been in prior to pay rent due or to comply with the
premises until he was physical possession conditions of his lease, and not where the
deprived thereof by the termination of the lease is because of expiration
defendant of its term (Co Tiamco vs. Diaz, 75 Phil 62).
The one year period is Period is counted from
generally counted from last demand or last Acceptance of rentals in arrears does not
the unlawful entry to the letter of demand constitute a waiver of default in payment of
land (except by stealth) rentals (Clutario vs. CA, 216 SCRA 341).

Special Civil Action; Ejectment (1998)

In an action for unlawful detainer in the Municipal Trial
Court (MTC), defendant X raised in his Answer the
defense that plaintiff A is not the real owner of the
house subject of the suit. X filed a counterclaim against
A for the collection of a debt of P80,000 plus accrued
interest of P15,000 and attorney's fees of P20,000.
1. Is X's defense tenable? [3%]
2. Does the MTC have jurisdiction over the
counterclaim? [2%] SUGGESTED ANSWER::
1. No. X's defense is not tenable if the action is filed by a
lessor against a lessee. However, if the right of
possession of the plaintiff depends on his ownership
then the defense is tenable.
2. The counterclaim is within the jurisdiction of the
Municipal Trial Court which does not exceed P100,000,
because the principal demand is P80,000, exclusive of
interest and attorney's fees. (Sec. 33, B.P. Big. 129, as amended.)
The term VACATE need not be stated if there
are other terms definitively implying that the
tenant should vacate (Golden Gate Realty Corp.
vs.IAC GR NO. 74289, July 31, 1987).
However, if the term of the demand is
AMBIGOUS, the rule in Golden Gate case will
not apply (La Campana vs. CA).
HOW DEMAND IS MADE:
1. Personally;
2. Service of written notice of such demand
upon person found in the premises;
3. Posting in the premises if no person is
found thereon (Viray vs. CA);
4. Registered mail (Co Keng Kian vs CA)
PRIOR DEMAND IN UNLAWFUL DETAINER
IS NOT REQUIRED:

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 259

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1. Where the purpose of the action is to
terminate the lease by reason of the
expiration of the lease;
2. Where the purpose of the suit is not
ejectment but for the enforcement of the
terms of the contract;
3. When the defendant is not a tenant but a
mere intruder.
Special Civil Action; Ejectment (1997)
On 10 January 1990, X leased the warehouse of A under
a lease contract with a period of five years. On 08 June
1996, A filed an unlawful detainer case against X without
a prior demand for X to vacate the premises.
(a) Can X contest his ejectment on the ground that there
was no prior demand for him to vacate the premises?
(b) In case the Municipal Trial Court renders judgment
in favor of A, is the judgment immediately executory?
SUGGESTED ANSWER:
(a) Yes. X can contest his ejectment on the ground that
there was no prior demand to vacate the premises. (Sec.
2 of Rule 70; Casilan vs.Tomassi l0 SCRA 261; Iesaca
vs.Cuevas. 125 SCRA 335).
(b) Yes, because the judgment of the Municipal Trial
Court against the defendant X is immediately executory
upon motion unless an appeal has been perfected, a
supersede as bond has been filed and the periodic
deposits of current rentals. If any, as determined by the
judgment will be made with the appellate court. (Sec. 8 of
former Rule 70; Sec. 19 of new Rule 70).
ALTERNATIVE ANSWER:
(a) Yes, X can contest his ejectment on the ground that
since he continued enjoying the thing leased for fifteen
days after the termination of the lease on January 9, 1995
with the acquiescence of the lessor without a notice to
the contrary, there was an IMPLIED NEW LEASE.
(Art. 1670. Civil Code).
Section 3. Summary procedure. — Except
in cases covered by the agricultural tenancy
laws or when the law otherwise expressly
provides, all actions for forcible entry and
unlawful detainer, irrespective of the amount
of damages or unpaid rentals sought to be
recovered, shall be governed by the
summary procedure hereunder provided.
(n)
Section 4. Pleadings allowed. — The only
pleadings allowed to be filed are the
complaint, compulsory counterclaim and
cross-claim pleaded in the answer, and
the answers thereto. All pleadings shall be
verified. (3a, RSP)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 5. Action on complaint. — The
court may, from an examination of the
allegations in the complaint and such
evidence as may be attached thereto,
dismiss the case outright on any of the
grounds for the dismissal of a civil action
which are apparent therein. If no ground
for dismissal is found, it shall forthwith
issue summons. (n)
Section 6. Answers. — Within ten (10)
days from service of summons, the
defendant shall file his answer to the
complaint and serve a copy thereof on
the plaintiff. Affirmative and negative
defenses not pleaded therein shall be
deemed waived, except lack of jurisdiction
over the subject matter. Cross-claims and
compulsory counterclaims not asserted in
the answer shall be considered barred.
The answer to counterclaims or cross-
claims shall be served and filed within ten
(10) days from service of the answer in
which they are pleaded. (5 RSP)
Section 7. Effect of failure to answer.
— Should the defendant fail to answer the
complaint within the period above
provided, the court, motu proprio or on
motion of the plaintiff, shall render
judgment as may be warranted by the
facts alleged in the complaint and limited
to what is prayed for therein. The court
may in its discretion reduce the amount of
damages and attorney's fees claimed for
being excessive or otherwise
unconscionable, without prejudice to the
applicability of section 3 (c), Rule 9 if
there are two or more defendants.
(6, RSP)
Section 8. Preliminary conference;
appearance of parties. — Not later than
thirty (30) days after the last answer is
filed, a preliminary conference shall be
held. The provisions of Rule 18 on pre-trial
shall be applicable to the preliminary
conference unless inconsistent with the
provisions of this Rule.
The failure of the plaintiff to appear in the
preliminary conference shall be cause for
the dismissal of his complaint. The
defendant who appears in the absence of
the plaintiff shall be entitled to judgment
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on his counterclaim in accordance with the
next preceding section. All cross-claims shall
be dismissed. (7, RSP)
If a sole defendant shall fail to appear, the
plaintiff shall likewise be entitled to judgment
in accordance with the next preceding
section. This procedure shall not apply where
one of two or more defendants sued under a
common cause of action defense shall appear
at the preliminary conference.
No postponement of the preliminary
conference shall be granted except for highly
meritorious grounds and without prejudice
to such sanctions as the court in the exercise
of sound discretion may impose on the
movant. (n)
Unlawful Detainer; Preliminary Conference
(2007)
No. VIII.(a) X files an unlawful detainer case
against Y before the appropriate Metropolitan
Trial Court. In his answer, Y avers as a special
and affirmative defense that he is a tenant of
X’s deceased father in whose name the
property remains registered. What should the
court do? Explain briefly. (5%)
SUGGESTED ANSWER: The court should
hold a preliminary conference not later
than thirty (30) days after the defendant’s
Answer was filed, since the case is governed
by summary procedure under Rule 70,
Rules of Court, where a Reply is not
allowed. The court should receive evidence
to determine the allegations of tenancy. If
tenancy had in fact been shown to be the
real issue, the court should dismiss the case
for lack of jurisdiction. If it would appear
that Y‟s occupancy of the subject property
was one of agricultural tenancy, which is
governed by agrarian laws, the court should
dismiss the case because it has no
jurisdiction over agricultural tenancy cases.
Defendant’s allegation that he is a “tenant”
of plaintiff’s deceased father suggests that
the case is one of landlord-tenant relation
and therefore, not within the jurisdiction of
ordinary courts.
Section 9. Record of preliminary
conference. — Within five (5) days after
the termination of the preliminary
conference, the court shall issue an order
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
stating the matters taken up therein,
including but not limited to:
1. Whether the parties have arrived at an
amicable settlement, and if so, the terms
thereof;
2. The stipulations or admissions
entered into by the parties;
3. Whether, on the basis of the pleadings
and the stipulations and admission made
by the parties, judgment may be rendered
without the need of further proceedings,
in which event the judgment shall be
rendered within thirty (30) days from
issuance of the order;
4. A clear specification of material facts
which remain controverted; and
5. Such other matters intended to
expedite the disposition of the case. (8,
RSP)
Section 10. Submission of affidavits
and position papers. — Within ten (10)
days from receipt of the order mentioned
in the next preceding section, the parties
shall submit the affidavits of their
witnesses and other evidence on the
factual issues defined in the order,
together with their position papers setting
forth the law and the facts relied upon by
them. (9, RSP)
Section 11. Period for rendition of
judgment. — Within thirty (30) days
after receipt of the affidavits and position
papers, or the expiration of the period for
filing the same, the court shall render
judgment.
However, should the court find it
necessary to clarify certain material facts,
during the said period, issue an order
specifying the matters to be clarified, and
require the parties to submit affidavits or
other evidence on the said matters within
ten (10) days from receipt of said order.
Judgment shall be rendered within fifteen
(15) days after the receipt of the last
affidavit or the expiration of the period for
filing the same.
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The court shall not resort to the foregoing
procedure just to gain time for the rendition
of the judgment. (n)
Section 12. Referral for conciliation. —
Cases requiring referral for conciliation,
where there is no showing of compliance with
such requirement, shall be dismissed
without prejudice, and may be revived only
after that requirement shall have been
complied with. (18a, RSP)
Section 13. Prohibited pleadings and
motions. — The following petitions, motions,
or pleadings shall not be allowed:
1. Motion to dismiss the complaint
except on the ground of lack of
jurisdiction over the subject matter, or
failure to comply with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for
reconsideration of a judgment, or for
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file
pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus,
or prohibition against any interlocutory
order issued by the court;
8. Motion to declare the defendant in
default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions. (19a, RSP)
NOTE: The motion prohibited by section 13, par. (3)
is that which seeks reconsideration of the judgment
rendered by the courts after trial on the merits of the
case. The decision dismissing the case for lack of
jurisdiction was not an adjudication on the merits.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Review thereof could be sought by the petitioner
through her motion for reconsideration and this
motion, which is not pro forma, had the effect of
suspending the running of the period to appeal
(Joven vs. CA, 212 SCRA 700).
Section 14. Affidavits. — The affidavits
required to be submitted under this Rule
shall state only facts of direct personal
knowledge of the affiants which are
admissible in evidence, and shall show
their competence to testify to the matters
stated therein.
A violation of this requirement may
subject the party or the counsel who
submits the same to disciplinary action,
and shall be cause to expunge the
inadmissible affidavit or portion thereof
from the record. (20, RSP)
Section 15. Preliminary injunction. —
The court may grant preliminary
injunction, in accordance with the
provisions of Rule 58 hereof, to prevent
the defendant from committing further
acts of dispossession against the plaintiff.
A possessor deprived of his possession
through forcible means may, within five
(5) days from the filing of the complaint,
present a motion in the action for forcible
entry or unlawful detainer for the issuance
of a writ of preliminary mandatory
injunction to restore him in his
possession. The court shall decide the
motion within thirty (30) days from the
filing thereof. (3a)
Section 16. Resolving defense of
ownership. — When the defendant raises
the defense of ownership in his pleadings
and the question of possession cannot be
resolved without deciding the issue of
ownership, the issue of ownership shall be
resolved only to determine the issue of
possession. (4a)
Provisional determination only.
NOTE: The existence of a formal contract is not
necessary in unlawful detainer. Even if there is
no formal contract between the parties, there
can still be unlawful detainer implied contracts
are covered by ejectment proceedings.
Possession by mere tolerance creates an
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implied promise to vacate the premises upon
demand by the owner (Peran vs. CFI of Sorsogon).
QUESTIONS TO BE RESOLVED IN AN ACTION
FOR FORCIBLE ENTRY:
1. Who had actual possession of the property?
2. Was the possessor ousted therefrom within one
year from the filing of the complaint by force,
intimidation, threat, strategy or stealth?
3. Does plaintiff asks for the restoration of his
possession?(Dizon vs. Concina 30 SCRA 897).
Section 17. Judgment. — If after trial court
finds that the allegations of the complaint are
true, it shall render judgment in favor of the
plaintiff for the restitution of the premises,
the sum justly due as arrears of rent or as
reasonable compensation for the use and
occupation of the premises, attorney's fees
and costs. If a counterclaim is established,
the court shall render judgment for the sum
found in arrears from either party and award
costs as justice requires. (6a)
Q: Are 3rd persons bound by the judgment in an
ejectment case?
A: As GR: YES, provided his possession can be
traced from the title of the defendant (Sub-lessee).
Exceptions:
1. If the property is acquired before the action.
2. If the property is covered by a Torrens title
and the certificate does not state that the
property is subject to a pending action and
he bought the same in good faith.
The judgment binds and may be executed against
sub lessees who have not been impleaded since
their right to stay is only subsidiary to that of the
lessees. Once the right of the lather disappears,
they have nothing to stand on, unless they claim an
understanding or relation with the owner.
Judgment for ejectment cannot be enforced against
co-owner who was not made party to the action
(Cruzcosa vs. Concepcion, 101 Phil. 147).
The court can award damages in ejectment
cases provided the damages refer only to:
1. Fair and reasonable value of the use and
enjoyment of the property or the rent arising
from the loss of possession;
2. Rent in arrears;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
3. Liquidated damages since they are already
part of the contract (Azcuna vs. vs. CA, 225
SCRA 215).
Note: However, other forms of damages
(like moral damages) were at times been
awarded by the Court (Review Lecture).
AGAINST WHOM JUDGMENT IS BINDING
The judgment is binding against the parties and
all persons claiming under them:
1. Trespassers, squatters or agents of the
defendant fraudulently occupying the
property to frustrate judgment;
2. Guests or other occupants of the premises
with the permission of the defendant;
3. Transferees pendente lite;
4. Sublessees;
5. Members of the family, relatives and other
privies of the defendant (Herrera, pp. 592-
593) (Sunflower vs. CA, GR No. 136274,
Sep. 3, 2003).
Section 18. Judgment conclusive only
on possession; not conclusive in
actions involving title or ownership. —
The judgment rendered in an action for
forcible entry or detainer shall be
conclusive with respect to the possession
only and shall in no wise bind the title or
affect the ownership of the land or
building. Such judgment shall not bar an
action between the same parties
respecting title to the land or building.
The judgment or final order shall be
appealable to the appropriate Regional
Trial Court which shall decide the same on
the basis of the entire record of the
proceedings had in the court of origin and
such memoranda and/or briefs as may be
submitted by the parties or required by
the Regional Trial Court. (7a)
Section 19. Immediate execution of
judgment; how to stay same. — If
judgment is rendered against the
defendant, execution shall issue
immediately upon motion unless an
appeal has been perfected and the
defendant to stay execution files a
sufficient supersedeas bond, approved
by the Municipal Trial Court and executed
in favor of the plaintiff to pay the rents,
damages, and costs accruing down to the
time of the judgment appealed from, and
unless, during the pendency of the appeal,
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he deposits with the appellate court the
amount of rent due from time to time under
the contract, if any, as determined by the
judgment of the Municipal Trial Court. In the
absence of a contract, he shall deposit with
the Regional Trial Court the reasonable value
of the use and occupation of the premises for
the preceding month or period at the rate
determined by the judgment of the lower
court on or before the tenth day of each
succeeding month or period. The supersedeas
bond shall be transmitted by the Municipal
Trial Court, with the papers, to the clerk of
the Regional Trial Court to which the action is
appealed.
All amounts so paid to the appellate court
shall be deposited with said court or
authorized government depositary bank, and
shall be held there until the final disposition
of the appeal, unless the court, by agreement
of the interested parties, or in the absence of
reasonable grounds of opposition to a motion
to withdraw, or for justifiable reasons, shall
decree otherwise. Should the defendant fail
to make the payments above prescribed from
time to time during the pendency of the
appeal, the appellate court, upon motion of
the plaintiff, and upon proof of such failure,
shall order the execution of the judgment
appealed from with respect to the restoration
of possession, but such execution shall not be
a bar to the appeal taking its course until the
final disposition thereof on the merits.
After the case is decided by the Regional Trial
Court, any money paid to the court by the
defendant for purposes of the stay of
execution shall be disposed of in accordance
with the provisions of the judgment of the
Regional Trial Court. In any case wherein it
appears that the defendant has been
deprived of the lawful possession of land or
building pending the appeal by virtue of the
execution of the judgment of the Municipal
Trial Court, damages for such deprivation of
possession and restoration of possession and
restoration of possession may be allowed the
defendant in the judgment of the Regional
Trial Court disposing of the appeal. (8a)
GR: Judgment of the MTC against the defendant is
immediately executory.
Exception: when the following concur:
1. Defendant perfects appeal;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
2. He files supersedeas bond;
3. He deposits with the appellate court the
amount of rent due from time to time/the
reasonable value of use or occupation,
on or before the 10th day of each
succeeding month or period.
SUPERSEDEAS BOND NOT REQUIRED
1. Where the monetary award in the
judgment of the inferior court has been
deposited with the court;
2. Where the judgment of the lower court
did not make findings with respect to
any amount in arrears, damages or
costs against the defendant.
Ejectment is not suspended by other actions
(Wilson Auto Supply Corp. vs. CA, 208 SCRA
108) such as:
1. Injunction;
2. Consignation of rentals;
3. Accion Publiciana;
4. Writ of possession case;
5. Quieting of title;
6. Specific performance with damages;
7. Reformation of instrument;
8. Reconveyance of property;
9. Annulment of sale, or title, or document,
annulment of deed of sale with
assumption of mortgage and/or to
declare the same an equitable
mortgage, annulment of sale with
damages (Feria p. 615).
Section 20. Preliminary mandatory
injunction in case of appeal. — Upon
motion of the plaintiff, within ten (10)
days from the perfection of the appeal to
the Regional Trial Court, the latter may
issue a writ of preliminary mandatory
injunction to restore the plaintiff in
possession if the court is satisfied that the
defendant's appeal is frivolous or
dilatory or that the appeal of the plaintiff
is prima facie meritorious. (9a)
Section 21. Immediate execution on
appeal to Court of Appeals or
Supreme Court. — The judgment of the
Regional Trial Court against the defendant
shall be immediately executory, without
prejudice to a further appeal that may be
taken therefrom. (10a)
NOTE:
It is mandatory for the RTC to order execution
of the appealed judgment upon failure of the
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defendant to make monthly deposit of current
rentals (Denesa vs.[ Macaralag]?, 81 SCRA 543).
Prior notice of judgment is required for immediate
execution (Dy vs. CA, 195 SCRA 585).
RULE 71
Contempt
CONTEMPT
It 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
litigant or their witnesses during litigation (Halili vs.
CIR, 136 SCRA 112).
PURPOSE AND NATURE OF CONTEMPT
POWER
The power to punish for contempt is inherent in all
courts; its existence is essential to the preservation
of the order in judicial proceedings and to the
enforcement of judgments, orders, and mandates of
the courts, and consequently, to due administration
of justice.
The exercise of the power to punish for contempt
has dual aspect. Primarily, the proper punishment
of the guilty party for his disrespect to the courts;
Secondarily, his compulsory performance of some
act or duty required of him by the court and which
he refuses to perform.
Judges have, time and again, been enjoined to
exercise their contempt power judiciously, sparingly,
with utmost restraint and with the end view of
utilizing the same for the correction and
preservation of the dignity of the court and not for
retaliation or vindication (cited in Atty. Garayblas vs.
Hon. Ong, GR No. 174507-30, Aug. 3, 2011).
Section 1. Direct contempt punished
summarily. — A person guilty of
misbehavior in the presence of or so near a
court as to obstruct or interrupt the
proceedings before the same, including
disrespect toward the court, offensive
personalities toward others, or refusal to be
sworn or to answer as a witness, or to
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
subscribe an affidavit or deposition when
lawfully required to do so, may be
summarily adjudged in contempt by such
court and punished by a fine not
exceeding two thousand pesos or
imprisonment not exceeding ten (10)
days, or both, if it be a Regional Trial
Court or a court of equivalent or higher
rank, or by a fine not exceeding two
hundred pesos or imprisonment not
exceeding one (1) day, or both, if it be a
lower court. (1a)
GROUNDS FOR DIRECT CONTEMPT
1. MISBEHAVIOR in the presence of or so
near a court as to obstruct or interrupt
the proceedings;
2. DISRESPECT towards the court;
3. OFFENSIVE personalities toward
others; and
4. REFUSAL to be sworn or to answer as
witness or to subscribe an affidavit or
deposition.
Bar Exam Question 2012
45. A person may be charged with direct
contempt of court when:
a. A person re-enters a property he was
previously ejected from.
b. A person refuses to attend a hearing
after being summoned thereto.
c. He attempts to rescue a property in
custodia legis.
d. She writes and submits a pleading
containing derogatory, offensive or
malicious statements.
SUGGESTED ANSWER:
(d), A person guilty of misbehavior in the
presence of or so near a court as to
obstruct or interrupt the proceedings
before the same, including disrespect
toward the court, offensive personalities
toward others, or refusal to be sworn or
to answer as a witness, or to subscribe
an affidavit or deposition when lawfully
required to do so, may be summarily
adjudged in contempt by such court.
(Rule 71, Sec. 1, Rules of Court). In
Surigao Mineral Reservation Board vs.
Cloribel, 31 SCRA 1, the Supreme Court
held that disrespectful, abusive and
abrasive language, offensive
personalities, unfounded accusations or
intemperate words tending to obstruct,
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embarrass or influence the court in
administering justice or to bring it into
disrepute have no place in a pleading. Their
employment serves no useful purpose and
on the contrary constitutes direct contempt
or contempt in facie curiae.
Section 2. Remedy therefrom. — The
person adjudged in direct contempt by any
court may not appeal therefrom, but may
avail himself of the remedies of certiorari
or prohibition. The execution of the
judgment shall be suspended pending
resolution of such petition, provided such
person files a bond fixed by the court which
rendered the judgment and conditioned that
he will abide by and perform the judgment
should the petition be decided against him.
(2a)
Section 3. Indirect contempt to be
punished after charge and hearing. —
After a charge in writing has been filed, and
an opportunity given to the respondent to
comment thereon within such period as may
be fixed by the court and to be heard by
himself or counsel, a person guilty of any of
the following acts may be punished for
indirect contempt;
(a) Misbehavior of an officer of a
court in the performance of his official
duties or in his official transactions;
(b) Disobedience of or resistance to a
lawful writ, process, order, or judgment of
a court, including the act of a person who,
after being dispossessed or ejected from
any real property by the judgment or
process of any court of competent
jurisdiction, enters or attempts or induces
another to enter into or upon such real
property, for the purpose of executing
acts of ownership or possession, or in any
manner disturbs the possession given to
the person adjudged to be entitled
thereto;
(c) Any abuse of or any unlawful
interference with the processes or
proceedings of a court not constituting
direct contempt under section 1 of this
Rule;
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(d) Any improper conduct tending,
directly or indirectly, to impede,
obstruct, or degrade the
administration of justice;
(e) Assuming to be an attorney or
an officer of a court, and acting as
such without authority;
(f) Failure to obey a subpoena duly
served;
(g) The rescue, or attempted
rescue, of a person or property in the
custody of an officer by virtue of an
order or process of a court held by
him.
But nothing in this section shall be so
construed as to prevent the court from
issuing process to bring the respondent
into court, or from holding him in custody
pending such proceedings. (3a)
Contempt; Death of a Party; Effect (1998)
A filed a complaint for the recovery of ownership of
land against B who was represented by her counsel
X.
In the course of the trial, B died. However, X failed
to
notify the court of B's death. The court proceeded to
hear the case and rendered judgment against B. After
the Judgment became final, a writ of execution was
issued against C, who being B's sole heir, acquired
the property. Did the failure of counsel X to inform
the court of B's death
constitute direct contempt? (2%)
SUGGESTED ANSWER:
No. It is not direct contempt under Sec. 1 of Rule
71,
but it is indirect contempt within the purview of Sec
3
of Rule 71. The lawyer can also be the subject of
disciplinary action. (Sec. 16, Rule 3)
Note: In all cases of disobedience of or
resistance of lawful writ, process, order or
judgments, the following must be present:
1. Order must be specific;
2. Order must be lawful; and
3. Disobedience must be willful.
If the court has jurisdiction when it rendered the
judgment, the same cannot be disobeyed
however erroneous it may be.
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CAREFUL: Remember that the refusal of the
defendant in an ejectment case to obey an “order to
vacate” is NOT punishable as contempt of court.
The reason is that the order is directed to the sheriff.
However, if defendant or any other person would
commit the acts mentioned in par. b, he may be
held liable for indirect contempt.
Section 4. How proceedings commenced.
— Proceedings for indirect contempt may be
initiated motu proprio by the court against
which the contempt was committed by an
order or any other formal charge requiring
the respondent to show cause why he should
not be punished for contempt.
In all other cases, charges for indirect
contempt shall be commenced by a verified
petition with supporting particulars and
certified true copies of documents or papers
involved therein, and upon full compliance
with the requirements for filing initiatory
pleadings for civil actions in the court
concerned. If the contempt charges arose out
of or are related to a principal action pending
in the court, the petition for contempt shall
allege that fact but said petition shall be
docketed, heard and decided separately,
unless the court in its discretion orders the
consolidation of the contempt charge and the
principal action for joint hearing and decision.
(n)
Bar Exam Question 2012
23. A charge for indirect contempt committed
against an RTC judge may be commenced
through:
a. A written charge requiring respondent to
show cause filed with the Court of Appeals.
b. An order of the RTC Judge requiring
respondent to show cause in the same RTC.
c. Verified petition filed with another branch of
the RTC.
d. Verified petition filed with a court of higher
or equal rank with the RTC.
SUGGESTED ANSWER:
(b), The proceedings for indirect contempt
may be initiated motu propio by the court
against which the contempt was committed
by an order or any other formal charge
requiring the respondent to show cause why
he should not be punished for contempt. It
may also be commenced by a verified
petition with supporting particulars and
certified true copies of documents or papers
involved therein, and upon full compliance
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
with the requirements for filing
initiatory pleadings for civil actions in
the court concerned (Rule 71, Sec.4,
Rules of Court).
TWO MODES OF COMMENCING A
PROCEEDING FOR INDIRECT CONTEMPT:
1. Moto proprio by the court by an order or
other formal charge requiring the
respondent to show cause why he
should not be punished for contempt;
and
2. A petition charging indirect contempt
with supporting particulars and certified
true copies of necessary documents and
papers.
The first procedure applies only when the
indirect contempt is committed against a court or
judge possessed and clothed with contempt
powers.
The second mode applies if the contemptuous
act was committed not against a court or a
judicial officer with authority to punish
contemptuous acts (Nazareno vs. Barnes,136
SCRA 57).
Without charge and hearing, court acquires no
jurisdiction to punish for indirect contempt
(Esparagoza vs. Tan, 94 Phil. 749).
Formal information by the prosecuting officer is
not necessary to begin contempt proceedings.
All that Rule 71 requires is that there be charge
in writing duly filed in court and an opportunity
given to the person charged to be heard by
himself or counsel.
Section 5. Where charge to be filed. —
Where the charge for indirect contempt
has been committed against a Regional
Trial Court or a court of equivalent or
higher rank, or against an officer
appointed by it, the charge may be filed
with such court. Where such contempt has
been committed against a lower court, the
charge may be filed with the Regional Trial
Court of the place in which the lower court
is sitting; but the proceedings may also be
instituted in such lower court subject to
appeal to the Regional Trial Court of such
place in the same manner as provided in
section 11 of this Rule. (4a; Bar Matter
No. 803, 21 July 1998)
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Section 6. Hearing; release on bail. — If
the hearing is not ordered to be had
forthwith, the respondent may be released
from custody upon filing a bond, in an
amount fixed by the court, for his appearance
at the hearing of the charge. On the day set
therefor, the court shall proceed to
investigate the charge and consider such
comment, testimony or defense as the
respondent may make or offer. (5a)
Section 7. Punishment for indirect
contempt. — If the respondent is adjudged
guilty of indirect contempt committed against
a Regional Trial Court or a court of equivalent
or higher rank, he may be punished by a fine
not exceeding thirty thousand pesos or
imprisonment not exceeding six (6) months,
or both. If he is adjudged guilty of contempt
committed against a lower court, he may be
punished by a fine not exceeding five
thousand pesos or imprisonment not
exceeding one (1) month, or both. If the
contempt consists in the violation of a writ of
injunction, temporary restraining order or
status quo order, he may also be ordered to
make complete restitution to the party
injured by such violation of the property
involved or such amount as may be alleged
and proved.
The writ of execution, as in ordinary civil
actions, shall issue for the enforcement of a
judgment imposing a fine unless the court
otherwise provides. (6a)
Section 8. Imprisonment until order
obeyed. — When the contempt consists in
the refusal or omission to do an act which is
yet in the power of the respondent to
perform, he may be imprisoned by order of
the court concerned until he performs it. (7a)
Section 9. Proceeding when party
released on bail fails to answer. — When
a respondent released on bail fails to appear
on the day fixed for the hearing, the court
may issue another order of arrest or may
order the bond for his appearance to be
forfeited and confiscated, or both; and, if the
bond be proceeded against, the measure of
damages shall be the extent of the loss or
injury sustained by the aggrieved party by
reason of the misconduct for which the
contempt charge was prosecuted, with the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
costs of the proceedings, and such
recovery shall be for the benefit of the
party injured. If there is no aggrieved
party, the bond shall be liable and
disposed of as in criminal cases. (8a)
Section 10. Court may release
respondent. — The court which issued
the order imprisoning a person for
contempt may discharge him from
imprisonment when it appears that public
interest will not be prejudiced by his
release. (9a)
Section 11. Review of judgment or
final order; bond for stay. — The
judgment or final order of a court in a
case of indirect contempt may be
appealed to the proper court as in criminal
cases. But execution of the judgment or
final order shall not be suspended until a
bond is filed by the person adjudged in
contempt, in an amount fixed by the court
from which the appeal is taken,
conditioned that if the appeal be decided
against him he will abide by and perform
the judgment or final order. (10a)
Note: The mode of appeal here is by notice of
appeal. However, the judgment is not
stayed unless the person adjudged for
contempt files a bond.
Section 12. Contempt against quasi-
judicial entities. — Unless otherwise
provided by law, this Rule shall apply to
contempt committed against persons,
entities, bodies or agencies exercising
quasi-judicial functions, or shall have
suppletory effect to such rules as they
may have adopted pursuant to authority
granted to them by law to punish for
contempt. The Regional Trial Court of the
place wherein the contempt has been
committed shall have jurisdiction over
such charges as may be filed therefor. (n)
Bar Exam Question 2013
XIII. Contempt charges made before
persons, entities, bodies and agencies
exercising quasi-judicial functions against
the parties charged, shall be filed with the
Regional Trial Court of the place where the
__________. (1%) (A) person, entity or agency
exercising quasi-judicial function is located
(B) person who committed the
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contemptuous act resides (C) act of contempt b. CRIMINAL CONTEMPT

was committed (D) party initiating the It is a conduct that is directed
contempt proceeding resides (E) charging against the authority and dignity
entity or agency elects to initiate the action of a court or of a judge acting
SUGGESTED ANSWER: (C), Under Section 12 judicially as in unlawfully
of Rule 71, unless otherwise provided by assailing or discrediting the
law, this Rule shall apply to contempt authority and dignity of the court
committed against persons, entities, bodies or judge, or in doing a duly
or agencies exercising quasi-judicial forbidden act.
functions, or shall have suppletory effect to
such rules as they may have adopted
pursuant to authority granted to them by
law to punish for contempt. The Regional
Trial Court of the place wherein the
contempt has been committed shall have CRIMINAL CIVIL CONTEMPT
jurisdiction over such charges as may be CONTEMPT
filed therefor. Punitive in nature Remedial in nature
Purpose is to provide a
Purpose is to preserve remedy for an injured
the court’s authority suitor and to coerce
and to punish for compliance with an
Classes of Contempt disobedience of its order, for the
orders preservation of the
1. As to manner of commission rights of private
persons
DIRECT CONTEMPT INDIRECT CONTEMPT Intent is necessary Intent not necessary
Committed in the Not committed within Instituted by the
presence of or so near the presence of the State is the real aggrieved party or his
a court court prosecutor successor, or
Summary in nature There is charge and someone who has
hearing pecuniary interest in
Punishment if Punishment if the right to be
committed against: committed against: protected
RTC—fine not RTC—fine not Proof beyond Mere preponderance
exceeding 2,000 or exceeding 30,000 or reasonable doubt of evidence
imprisonment not imprisonment not If accused is acquitted
exceeding 10 days or exceeding 6 months or there can be no If judgment is for the
both; both; appeal (double respondent, there can
jeopardy rule applies – be an appeal
MTC—fine not MTC—fine not Santiago vs. Asuncion,
exceeding 200 or exceeding 5,000 or 184 SCRA 118, 1990)
imprisonment not imprisonment not
exceeding 1 day or both exceeding 1 month or
both NOTE: In special judgments under Rule 39 sec.
Remedy is certiorari or Remedy is appeal 11, the person required by the judgment to obey
prohibition the same may be punished for contempt if he
disobeys.
In both cases, the execution of judgment may be
suspended, provided a bond is filed in the amount
fixed by the court and conditioned that he will abide No contempt however lies in judgments for
by and perform the judgment should the petition or money (sec.9) and judgment for specific act
appeal be decided against him (sec. 2 and 11). (sec. 10) under Rule 39.
2. As to nature
a. CIVIL CONTEMPT
It consists in failing to do something
ordered to be done by a court or a
judge in a civil case on the benefit
of the opposing party therein.

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VENUE AND JURISDICTION OF SPECIAL CIVIL ACTIONS

NAME OF SCA VENUE JURISDICTION

Interpleader Where the plaintiff or any of the principal
plaintiffs resides or where the defendant
or any of the defendants resides.
MTC—where the value of the claim or
personal property does not exceed
300,000 or 400,000 in Metro Manila;
or where the assessed value of the
real property does not exceed 20, 000
or 50,000 in Metro Manila

RTC—if the value exceeds the above-

stated amounts or if the subject matter
is exclusively within the jurisdiction of
the RTC (specific performance,
recovery of title)

Declaratory Relief Where petitioner or the respondent RTC

resides

Certiorari, Prohibition, RTC of the place where the respondent RTC, CA, SC, Sandiganbayan in aid
Mandamus court, corporation, officer or person is of its appellate jurisdiction
situated.

If the petition is filed in the SC, or CA, or

the Sandiganbayan, in which case the
location of the respondent is
immaterial(sec.4, Rule 65)

Quo Warranto If filed with the SC, or CA, the location of RTC, CA, SC
the respondent is immaterial;

RTC of the place where the respondent

resides or where any of the respondents
resides;
However if SolGen commences the
action, it may be brought in the RTC in
Manila, or CA, or SC (sec. 7, Rule 66);
The Sandiganbayan has exclusive
original jurisdiction on Quo Warranto
arising or that may arise under E.O. 1, 2,
14, 14-A but this must be in aid of its
appellate jurisdiction and not exclusive of
the SC

Expropriation Where the property is located in case the RTC (first issue is incapable of
subject is the land pecuniary estimation—Barangay San
Roque vs. Heirs of Pastor, GR No.
138896, June 20, 2000)

Foreclosure Where the land or any part thereof is RTC (first issue is incapable of
located pecuniary estimation)

Partition Where the real property or a portion RTC (first issue is incapable of
thereof is located. If the subject matter is pecuniary estimation)
personal property, in the place where the
plaintiff or the defendant resides (sec. 13,
Rule 69)

Forcible Entry/Unlawful Detainer Where the property is located MTC

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Contempt Where the court involved is located MTC, RTC, CA, SC

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PART II — SPECIAL PROCEEDINGS
(Rule 72 to 109)
GENERAL PROVISION
RULE 72
Subject Matter and Applicability of General
Rules
Section 1. Subject matter of special proceedings.
— Rules of special proceedings are provided for in
the following cases:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of
minor natural children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation of correction of entries in the
civil registry.
SPECIAL PROCEEDINGS
It is a remedy by which a party seeks to establish a
status, a right or a particular fact (Rule 1, sec.3 [c].
 Special proceedings are generally NON-
ADVERSARIAL, except Habeas Corpus.
 Publication is always necessary to acquire
jurisdiction over the case.
 Interlocutory orders, in special proceedings,
may be subject of an appeal.
 Sec. 3 of Rule 17 cannot be applied.
OTHER SPECIAL PROCEEDINGS:
1. Liquidation proceedings;
2. Corporate rehabilitation;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
3. Recognition and enforcement of
arbitration proceedings;
4. Vacation, setting aside, correction or
modification of an arbitral award;
5. Any application with a court for
arbitration assistance and supervision.
Civil Actions vs. Special Proceedings (1998)
Distinguish civil actions from special proceedings.
[3%] SUGGESTED ANSWER:
A CIVIL ACTION is one by which a party sues
another for the enforcement or protection of a right,
or the prevention or redress of a wrong. (See. 3[a], Rule
1, 1997 Rules of Civil Procedure), while a SPECIAL
PROCEEDING is a remedy by which a party seeks
to establish a status, a right or a particular fact. (Sec.
3[C]. Rule 1,1997 Rules of Civil Procedure.)
Bar Exam Question 2012
30. Which of the following is not a Special
Proceeding?
a. Absentees;
b. Escheat;
c. Change of First Name;
d. Constitution of Family Home;
SUGGESTED ANSWERS: (c), Under R.A.
9048, as amended by R.A. 10172, the
correction of First Name can now be
done administratively before the Local
Civil Registrar where the record sought
to be corrected is kept or the nearest
Philippine Consulate. Hence, it is no
longer considered a special proceeding
since the provisions of Rules 103 and
108 do not apply anymore in the change
of First name of a person.
(d), the rules on Constitution of the
Family Home have already been repealed
by Articles 152-162 of the Family Code.
Under Article 153 of the Family Code, a
family home is deemed constituted on a
house and lot from the time it is
occupied as a family residence.
Consequently, there is no need to
constitute a family home either
judicially or extrajudicially. Hence, it is
no longer considered a special
proceeding. ALTERNATIVE ANSWER: All
the above-mentioned actions are
considered Special Proceedings because
they are remedies which seek to
establish a status, right or a particular
fact. (Rule 1, Sec. 2(c), Rules of Court).
Section 2. Applicability of rules of civil
actions. — In the absence of special provisions,
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the rules provided for in ordinary actions shall be, as
far as practicable, applicable in special proceedings.
Probate of Will; Application of Modes of
Discovery (2008) No.XIII. An heir/oppositor in
a probate proceeding filed a motion to remove
the administrator on the grounds of neglect of
duties as administrator and absence from the
country. On his part the heir/oppositor served
written interrogatories to the administrator
preparatory to presenting the latter as a
witness. The administrator objected, insisting
that the modes of discovery apply only to
ordinary civil actions, not special proceedings.
Rule on the matter. SUGGESTED ANSWER:
No, the administrator is not correct. Modes
of discovery apply also to special
proceedings. Sec. 2, Rule 72 states that in
the absence of special provisions, the rules
provided for in ordinary actions shall be, as
far as practicable, applicable in special
proceedings.
JURISDICTION
GR: Regional Trial Court
Exceptions: MTC has jurisdiction in the following
cases:
1. Probate proceedings, whether testate or
intestate, where the gross value of the
estate does not exceed 300,000 or does not
exceed 400,000 in Metro Manila, exclusive
of interest, damages of whatever kind,
attorney’s fees, litigation expenses and
costs.
2. Delegated Jurisdiction in cadastral and
Land Registration cases covering lots where
there is no controversy or opposition or
contested lots where the value does not
exceed 100,000.
will on the ground that the total amount included in
the relief of the petition is more than P100,000.00,
the maximum jurisdictional amount for municipal
circuit trial courts. The court overruled the
opposition and proceeded to hear the case. Was the
municipal circuit trial court correct in its ruling?
Why? (5%)
SUGGESTED ANSWER:
Yes, the Municipal Circuit Trial Court was correct in
proceeding to hear the case. It has exclusive
jurisdiction
in all matters of probate, both testate and intestate,
where the value of the estate does not exceed
P100,000.00 (now P300,000.00 for areas outside
Manila and 400,000 for Manila). The value in this
case of P95,000.00 is within its jurisdiction. In
determining the jurisdictional amount, excluded are
attorney’s fees, litigation expenses and costs; these
are considered only
for determining the filing fees. (B.P.Blg. 129, Sec. 34, as
amended)
3. Special Jurisdiction—petitions for
Habeas Corpus in case of
absence of RTC judges.
Note: the SC, and CA have original jurisdiction
over Habeas Corpus cases, concurrent with the
RTC.
DIFFERENT MODES OF SETTLEMENT OF
ESTATE OF DECEASED PERSON:
1. Extra-judicial Settlement of Estate (sec.
1, Rule 74);
2. Summary Settlement of Estate of Small
Value (sec. 3, Rule 74);
3. Partition (Rule 69);
4. Probate of Will (Rule 75—79);
5. Petition for Letters Administration in
Intestacy (Rule 79).

Appeal is taken to the CA, not to the RTC, since

MTC is equal to the RTC in this instance. (sec. 34,
BP 129).

Jurisdiction; Probate (2001)

Josefa filed in the Municipal Circuit Trial Court of
Alicia and Mabini, a petition for the probate of the will ORDINARY ACTION SPECIAL
of her husband, Martin, who died in the Municipality of PROCEEDING
Alicia, the residence of the spouses. The probable value To protect or enforce a Involves the
of the estate which consisted mainly of a house and lot right or prevent or establishment of the
was placed at P95,000.00 and in the petition for the redress a wrong right, status, or fact
allowance of the will, attorney’s fees in the amount of It involves 2 or more It may involve only one
P10,000.00, litigation expenses in the amount of parties party
P5,000.00 and costs were included. Pedro, the next of Governed by ordinary Governed by special
kin of Martin, filed an opposition to the probate of the rules supplemented by rules supplemented by
special rules ordinary rules

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 273

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It is heard by courts of Heard by courts of

general jurisdiction
Initiated by a pleading
and responded to by
an answer
limited jurisdiction
Initiated by means of a
petition and parties Filing of Claims
respond by means of (Rule 86)
an opposition

Payment of Claims
Sale/Mortgage/Encumbrance of Properties of the
Estate
ORDINARY SPECIAL SPECIAL
CIVIL ACTION CIVIL ACTION PROCEEDING
One by which Remedy by
a party sues which a party Distribution of the residue, if any
another for the seeks to (but this can be made even before
enforcement or establish a payment if bond is filed by the heirs)
protection of a status, a right,
right or the or a particular
prevention or fact
redress of a
wrong
Governed by Ordinary rules Governed by Settlement Of Estate Of Deceased Persons
the rule for apply primarily special rules
ordinary civil but subject to and ordinary RULE 73
actions specific rules rules apply
suppletorily Venue and Process
Involves two or Involves two or May involve
more parties more parties only one party Section 1. Where estate of deceased persons
Some are settled. — If the decedent is an inhabitant of the
Initiated by initiated by Initiated by Philippines at the time of his death, whether a
complaint complaint and petition citizen or an alien, his will shall be proved, or
some are by letters of administration granted, and his estate
petition settled, in the Court of First Instance in the
Some SCA Not based on province in which he resides at the time of his
Based on a have no cause cause of death, and if he is an inhabitant of a foreign
cause of action of action action, except country, the Court of First Instance of any
Habeas province in which he had estate. The court first
Corpus taking cognizance of the settlement of the estate
of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the
place of residence of the decedent, or of the
location of his estate, shall not be contested in a
suit or proceeding, except in an appeal from that
court, in the original case, or when the want of
jurisdiction appears on the record.

PROCEDURE IN SETTLEMENT PROCEEDINGS
Probate of the Will, if any
(Rules 75—76)
VENUE
1. INHABITANT (resident) of the Philippines,
whether citizen or alien—court of the
province/city where he resides at the time of
death.

2. INHABITANT (resident) of a foreign country—

court of any province wherein he had his estate.
Issuance of Letters Testamentary/Administration
(Rule 77—80) Probate of Will (2003)

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 274

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A, a resident of Malolos, Bulacan, died leaving an estate
located in Manila, worth P200,000.00. In what court,
taking into consideration the nature of jurisdiction and
of venue, should the probate proceeding on the estate
of A be instituted? (4%)
SUGGESTED ANSWER:
The probate proceeding on the estate of A should be
instituted in the Municipal Trial Court of Malolos,
Bulacan which has jurisdiction, because the estate is
valued at P200,000.00, and is the court of proper venue
because A was a resident of Malolos at the time of his
death. (Sec. 33 of BP 129 as amended by RA 7691; Sec. 1 of
Rule 73).
RESIDENCE
It means his personal, actual or physical habitation,
his actual residence or place of abode (Fule vs. CA,
L-40502, Nov. 29, 1976).
2 KINDS OF SETTLEMENT
1. EXTRAJUDICIAL SETTLEMENT (Rule 74,
sec. 1);
2. JUDICIAL SETTLEMENT—testate or
intestate proceeding instituted in the country
where decedent had his residence.
EXTENT OF JURISDICTION
Probate court is a court of limited jurisdiction. It may
only determine and rule on issues relating to the
settlement of the estate, namely:
1. Administration of the estate;
2. Liquidation of the estate;
3. Distribution of the estate.
Bar Exam Question 2011
(92) In proceedings for the settlement of the
estate of deceased persons, the court in which
the action is pending may properly (A) pass
upon question of ownership of a real property
in the name of the deceased but claimed by a
stranger. (B) pass upon with the consent of
all the heirs the issue of ownership of estate
asset, contested by an heir if no third
person is affected. (C) rule on a claim by one
of the heirs that an estate asset was held in
trust for him by the deceased. (D) rescind a
contract of lease entered into by the deceased
before death on the ground of contractual
breach by the lessee.
GR: Probate Court cannot determine issue of
ownership.
Exception:
1. Provisionally, ownership may be determined
for the purpose of including the property in
the inventory, without prejudice to its final
determination in a separate action;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
2. When all the parties are the heirs and
they submit the issue of ownership to
the probate court provided that rights of
3rd parties are not prejudiced (Bernardo
vs. CA, L- 18148, Feb. 28, 1963);
3. The question is one of collation or
advancement;
4. When the parties consent to the
assumption of jurisdiction by the probate
court.
OTHER QUESTIONS THAT THE PROBATE
COURT CAN DETERMINE:
1. Who are the heirs of the decedent;
2. The recognition of a natural child;
3. The validity of the disinheritance
effected by the testator;
4. Status of a woman who claims to be the
wife of the decedent;
5. The validity of a waiver to the hereditary
rights;
6. The status of each heir;
7. Whether the property in inventory is
exclusive property of the deceased or
conjugal;
8. All matters incidental or collateral to the
settlement and distribution of the estate.
Bar Exam Question 2011
(59) Apart from the case for the settlement
of her parents' estate, Betty filed an action
against her sister, Sigma, for reconveyance
of title to a piece of land. Betty claimed that
Sigma forged the signatures of their late
parents to make it appear that they sold the
land to her when they did not, thus
prejudicing Betty’s legitime. Sigma moved
to dismiss the action on the ground that
the dispute should be resolved in the estate
proceedings. Is Sigma correct? (A) Yes,
questions of collation should be resolved
in the estate proceedings, not in a
separate civil case. (B) No, since questions
of ownership of property cannot be resolved
in the estate proceedings. (C) Yes, in the
sense that Betty needs to wait until the
estate case has been terminated. (D) No, the
filing of the separate action is proper; but
the estate proceeding must be suspended
meantime.
Note: A court (RTC) exercising its
original/ordinary jurisdiction cannot order
collation in an action for reconveyance (Review
Lecture).
Q: Is complaint in intervention allowed in
probate proceedings?
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A: YES. Provided that all the parties consent to the
intervention (Ucat).
PRINCIPLE OF EXCLUSIONARY RULE
The court first taking cognizance of the settlement
proceedings shall exercise jurisdiction to the
exclusion of other courts
The probate court acquires jurisdiction the petition is
filed with the said court. It cannot be divested of
such jurisdiction by the subsequent acts of the
parties as by entering into extrajudicial partition of
the estate (Sandoval vs. Santiago, 88 Phil. 784); or
by filing another petition for the settlement in the
proper of concurrent venue (De Boria vs Tan, 77
Phil 872).
Exception: Estoppel By Laches
NOTE: Jurisdiction under Rule 73 sec.1 DOES NOT
relate to jurisdiction per se but to venue. Hence,
institution in an the court where the decedent is
neither an inhabitant nor have his estate may be
waived (Uriarti vs. CFI, L-21938 May 29, 1970).
REMEDY IF VENUE IS IMROPERLY LAID
ORDINARY APPEAL not certiorari or mandamus
unless want of jurisdiction appears on the record of
the case.
NOTE: Testate proceedings take precedence over
intestate proceeding for the same estate.
If during the pendency of an intestate proceeding a
will of the decedent is discovered, proceedings for
the probate will replace the intestate even if the
administrator had already appointed therein
(Cuenco vs. CA, L-24742, Oct. 26, 1973)
Judicial Settlement of Estate (2005)
State the rule on venue in judicial settlement of estate
of deceased persons. (2%)
SUGGESTED ANSWER:
If the decedent is an inhabitant of the Philippines at the
time of' his death, whether a citizen or an alien, the venue
shall be in the RTC in the province in which he resides at
the time of his death, not in the place where he used to
live. (Jao v. Court of Appeals,
G.R. No. 128314, May 29, 2002)
If he is an inhabitant, of a foreign country, the RTC of
any province or city in which he had estate shall be the
venue. The court first taking cognizance of the case
shall exercise jurisdiction to the exclusion of all other
courts. When the marriage is dissolved by the death of
the husband or wife, the community property shall be
inventoried, administered and liquidated, and the debts
thereof paid, in the testate or intestate proceedings of the
deceased spouse. If both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
proceedings of either. (Sees. 1 and 2, Rule 73, Rules of
Court)
Section 2. Where estate settled upon
dissolution of marriage. — When the marriage
is dissolved by the death of the husband or wife,
the community property shall be inventoried,
administered, and liquidated, and the debts
thereof paid, in the testate or intestate
proceedings of the deceased spouse. If both
spouses have died, the conjugal partnership
shall be liquidated in the testate or intestate
proceedings of either.
Section 3. Process. — In the exercise of probate
jurisdiction, Courts of First Instance may issue
warrants and process necessary to compel the
attendance of witnesses or to carry into effect
theirs orders and judgments, and all other
powers granted them by law. If a person does
not perform an order or judgment rendered by a
court in the exercise of its probate jurisdiction, it
may issue a warrant for the apprehension and
imprisonment of such person until he performs
such order or judgment, or is released.
Note: GR: There should only be one probate
court to settle the estate of a decedent.
Exception: when during the lifetime of the
decedent his will has been probated (anti-
mortem probate).
GR: RTC is a court of general jurisdiction.
Exception: When it is acting as a probate court,
it is a court of limited jurisdiction.
WRIT OF EXECUTION
GR: Probate court cannot issue writ of
execution.
Reason—its orders usually refer to the
adjudication of the claims against the
estate which the executor/administrator
may satisfy without the need of
executory process.
Exceptions:
1. To satisfy the contributive share of the
devisees, legatees and heirs when the
latter had entered prior possession over
the estate (sec. 6, Rule 88);
2. To enforce payment of the expenses of
partition (sec. 3, Rule 90);
3. To satisfy the costs when a person is
cited for examination in probate
proceedingse.13, Rule 142).
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Section 4. Presumption of death. — For purposes
of settlement of his estate, a person shall be
presumed dead if absent and unheard from for the
periods fixed in the Civil Code. But if such person
proves to be alive, he shall be entitled to the
balance of his estate after payment of all his debts.
The balance may be recovered by motion in the
same proceeding.
NOTE: There can be no independent action for
the declaration of presumptive death.
Art. 390. After an absence of seven years, it being
unknown whether or not the absentee still lives, he
shall be presumed dead for all purposes, except for
those of succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be
sufficient in order that his succession may be opened.
(n)
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among
the heirs:
(1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who
has not been heard of for four years since the
loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken
part in war, and has been missing for four years;
(3) A person who has been in danger of death
under other circumstances and his existence
has not been known for four years. (n)
Bar Exam Question 2011
(72) Which of the following CANNOT be
disputably presumed under the rules of
evidence? (A) That the thing once proved to
exist continues as long as is usual with things
of that nature. (B) That the law has been
obeyed. (C) That a writing is truly dated. (D)
That a young person, absent for 5 years, it
being unknown whether he still lives, is
considered dead for purposes of succession.
RULE 74
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Summary Settlement of Estate
GR: If a person dies, his estate is submitted to a
judicial settlement proceeding.
Exception: The heirs may resort to:
1. Extrajudicial settlement of the estate;
2. Summary settlement of the estate—
conducted in accordance with the
summary procedure and not of regular
procedure.
Executor or administrator need not be
appointed in the two exceptions.
Section 1. Extrajudicial settlement by
agreement between heirs. — If the decedent
left no will and no debts and the heirs are all of
age, or the minors are represented by their
judicial or legal representatives duly authorized
for the purpose, the parties may without
securing letters of administration, divide the
estate among themselves as they see fit by
means of a public instrument filed in the office of
the register of deeds, and should they disagree,
they may do so in an ordinary action of partition.
If there is only one heir, he may adjudicate to
himself the entire estate by means of an affidavit
filled in the office of the register of deeds. The
parties to an extrajudicial settlement, whether by
public instrument or by stipulation in a pending
action for partition, or the sole heir who
adjudicates the entire estate to himself by
means of an affidavit shall file, simultaneously
with and as a condition precedent to the filing of
the public instrument, or stipulation in the action
for partition, or of the affidavit in the office of the
register of deeds, a bond with the said register
of deeds, in an amount equivalent to the value of
the personal property involved as certified to
under oath by the parties concerned and
conditioned upon the payment of any just claim
that may be filed under section 4 of this rule. It
shall be presumed that the decedent left no
debts if no creditor files a petition for letters of
administration within two (2) years after the
death of the decedent.
The fact of the extrajudicial settlement or
administration shall be published in a newspaper
of general circulation in the manner provided in
the nest succeeding section; but no extrajudicial
settlement shall be binding upon any person
who has not participated therein or had no
notice thereof.
Settlement of Estate (2009) No.XVIII.
Pinoy died without a will. His wife, Rosie
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and three children executed a deed of b) NO DEBTS.

extrajudicial settlement of his estate. The deed 2. The heirs are all of age or the minors
was properly published and registered with the are represented by their judicial or legal
Office of the Register of Deeds. Three years representatives duly authorized (by the
thereafter, Suzy appeared, claiming to be the court – Escolin) for that purpose.
illegitimate child of Pinoy. She sought to annul B. Procedural
the settlement alleging that she was deprived 1. Division of the estate must be in public
of her rightful share in the estate. Rosie and instrument or by affidavit of self
the Three Children contended that (1) the adjudication, in case of a sole heir;
publication of the deed constituted 2. Filed with the proper ROD;
constructive notice to the whole world, and 3. Publication of the fact of extrajudicial
should therefore bind Suzy; and (2) Suzy’s settlement once a week for 3
action had already prescribed. Are Rosie and consecutive weeks; and
the Three Children Correct? Explain. 4. Bond filed equivalent to the value of the
SUGGESTED ANSWER: personal property.
NO, the contention is not correct. Suzy can
file a complaint to annul the extrajudicial Note: The bond is required only when
settlement and she can recover what is due personalty is involved. If it is a real estate, it
her as such heir if her status as an shall be subject to a lien in favor of the creditors,
illegitimate child of the deceased has been heirs, or other persons for the full period of 2
established. The publication of the years from such distribution and such lien
settlement does not constitute constructive cannot be substituted by a bond.
notice to the heirs who had no knowledge
The bond is the value of the personal property
or did not take part in it because the same
certified by the parties under oath and
was notice after the fact of execution. The
conditioned upon payment of just claims filed
requirement of publication is intended for
under sec. 4, Rule 74.
the protection of creditors and was never
intended to deprive heirs of their lawful Q: is a public instrument necessary for the
participation in the decedent’s estate. She validity of an extrajudicial settlement?
can file the action therefor within four (4) A: NO. Private instrument/document or even
years after the settlement was registered. oral agreement of partition is valid among the
heirs who participated in the extrajudicial
settlement. The requirement under sec. 1, Rule
Extra-judicial Settlement of Estate (2005) 74 is not constitutive of the validity but is merely
Nestor died intestate in 2003, leaving no debts. How evidentiary in nature (Hernandez vs. Andal).
may his estate be settled by his heirs who are of legal
age and have legal capacity? Explain. (2%) Reformation (execution) of the Instrument may
SUGGESTED ANSWER:
be compelled (Regalado, p. 19).
If the decedent left no will and no debts, and the heirs
are all of age, the parties may, without securing letters of
EXTRAJUDICIAL SUMMARY
administration, divide the estate among themselves by
SETTLEMENT SETTLEMENT
means of a public instrument or by
No court intervention Requires summary
stipulation in a pending action for partition and shall file
judicial adjudication
a bond with the register of deeds in an amount
Value of the estate is Gross estate must not
equivalent to the value of the personal property involved
immaterial exceed 10,000
as certified to under oath by the parties concerned. The
Allowed only in Allowed in both testate
fact of extra-judicial settlement shall
intestate succession and intestate
be published in a newspaper of general circulation once succession
a week for three consecutive weeks in the province. (Sec. There must not be It is available even if
1, Rule 74, Rules of Court)
outstanding debt of the there are debts; it is
estate at the time the court which will
settlement make provision for its
EXTRAJUDICIAL SETTLEMENT
payment
REQUISITES May be instituted by
Resorted at the any interested party,
A. Substantive
instance and even a creditor of the
1. Decedent left:
agreement of all the estate without the
a) NO WILL;
heirs consent of the heirs

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 278

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Amount of bond is Amount of bond is
equal to the value of fixed by the court
the personal property
While the Rules provide that the decedent must not
have left any debts, it is sufficient if any debt he may
have left have been paid at the time of the
extrajudicial settlement is entered into (Guico vs.
Bautista, 110 Phil. 584).
Probate of Will (2007)
No.VIII. (b) The heirs of H agree among
themselves that they will honor the division of
H’s estate as indicated in her Last Will and
Testament. To avoid the expense of going to
court in a Petition for Probate of the Will, can
they instead execute an Extrajudicial
Settlement Agreement among themselves?
Explain briefly. (5%)
SUGGESTED ANSWER: The heirs of H
cannot validly agree to resort to
extrajudicial settlement of his estate and do
away with the probate of H‟s last will and
testament. Probate of the will is mandatory
(Guevarra v. Guevarra, 74 Phil. 479 [1943]).
The policy of the law is to respect the will
of the testator as manifested in the other
dispositions in his last will and testament,
insofar as they are not contrary to law,
public morals and public policy.
Extrajudicial settlement of an estate of a
deceased is allowed only when the deceased
left no last will and testament and all debts,
if any, are paid (Rule 74, Sec. 1, Rules of
Court).
Section 2. Summary settlement of estate of small
value. — Whenever the gross value of the estate of
a deceased person, whether he died testate or
intestate, does not exceed ten thousand pesos,
and that fact is made to appear to the Court of First
Instance having jurisdiction of the estate by the
petition of an interested person and upon hearing,
which shall be held not less than one (1) month nor
more than three (3) months from the date of the last
publication of a notice which shall be published
once a week for three (3) consecutive weeks in a
newspaper of general circulation in the province,
and after such other notice to interested persons as
the court may direct, the court may proceed
summarily, without the appointment of an executor
or administrator, and without delay, to grant, if
proper, allowance of the will, if any there be, to
determine who are the persons legally entitled to
participate in the estate, and to apportion and divide
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
it among them after the payment of such debts
of the estate as the court shall then find to be
due; and such persons, in their own right, if they
are of lawful age and legal capacity, or by
theirguardians or trustees legally appointed and
qualified, if otherwise, shall thereupon be
entitled to receive and enter into the possession
of the portions of the estate so awarded to them
respectively. The court shall make such order as
may be just respecting the costs of the
proceedings, and all orders and judgments
made or rendered in the course thereof shall be
recorded in the office of the clerk, and the order
of partition or award, if it involves real estate,
shall be recorded in the proper register's office.
Gross value of the estate must not exceed
10,000. The amount is jurisdictional (Del
Rosario vs. Cunanan, L-37903., March 30,
1977).
IMPORTANT REQUIREMENTS
1. Application must contain allegation of
value of the estate;
2. Date of hearing:
a) Shall be set by the court not
less than 1 month nor more than
3 months from date of last
publication;
b) Order of hearing published once
a week for 3 consecutive weeks
in a newspaper of general
circulation.
3. Notice shall be served upon such
interested persons as the court may
direct;
4. Bond fix by the court.
Section 3. Bond to be filed by distributees. —
The court, before allowing a partition in
accordance with the provisions of the preceding
section, my require the distributees, if property
other than real is to be distributed, to file a bond
in an amount to be fixed by court, conditioned
for the payment of any just claim which may be
filed under the next succeeding section.
Bar Exam Question 2011
(85) As a rule, the estate shall not be
distributed prior to the payment of all
charges to the estate. What will justify
advance distribution as an exception? (A)
The estate has sufficient residual assets
and the distributees file sufficient bond.
(B) The specific property sought to be
distributed might suffer in value. (C) An
agreement among the heirs regarding such
distribution. (D) The conformity of the
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majority of the creditors to such distribution.

1. Within 2 years claim against the bond
Section 4. Liability of distributees and estate. — or the lien over the real property;
If it shall appear at any time within two (2) years
after the settlement and distribution of an estate in After the lapse of 2 years, an
accordance with the provisions of either of the first ordinary action may be instituted
two sections of this rule, that an heir or other person against the distributees within
has been unduly deprived of his lawful participation the statute of limitations BUT
in the estate, such heir or such other person may NOT against the bond.
compel the settlement of the estate in the courts in
the manner hereinafter provided for the purpose of 2. Rescission in case of preterition of a
satisfying such lawful participation. And if within the compulsory heir in partition tainted
same time of two (2) years, it shall appear that there with bad faith (1104, NCC);
are debts outstanding against the estate which have
not been paid, or that an heir or other person has Art. 1104. A partition made
been unduly deprived of his lawful participation with preterition of any of the
payable in money, the court having jurisdiction of compulsory heirs shall not be
the estate may, by order for that purpose, after rescinded, unless it be proved
hearing, settle the amount of such debts or lawful
participation and order how much and in what
that there was bad faith or
manner each distributee shall contribute in the fraud on the part of the other
payment thereof, and may issue execution, if persons interested; but the
circumstances require, against the bond provided in latter shall be proportionately
the preceding section or against the real estate obliged to pay to the person
belonging to the deceased, or both. Such bond and omitted the share which
such real estate shall remain charged with a liability
to creditors, heirs, or other persons for the full
belongs to him.
period of two (2) years after such distribution,
notwithstanding any transfers of real estate that may 3. Reconveyance of real property;
have been made.
An heir deprived of his share
may file an action for
REQUISITES FOR THE 2 YEAR PERIOD LIEN: Reconveyance based on an
1. Persons have taken part or have notice of implied or constructive trust
extrajudicial partition; and which prescribes in 10 years
2. There is compliance with sec. 1, Rule 74 from date of registration or date
(Sampilo vs CA, 103 Phil. 71). of the issuance of certificate of
title or from actual discovery of
Note: The 2 year lien upon the real property fraud if registration was done in
distributed by extrajudicial or summary settlement bad faith.
shall be annotated on the title issued to the
distributees and after 2 years, will be cancelled by 4. Acton to annul the deed of
the register of deeds without need of a court order extrajudicial settlement on the ground
(LRO CIRCULAR 143). of fraud which should be filed within 4
years from discovery of fraud;
Such lien cannot be discharged nor the annotation
be cancelled within the 2 year period even if the 5. Rescission in case there is lesion.
distributees offer to post a bond to answer for
contingent claims from which lien is established
Art. 1098. A partition, judicial or
(Rebong vs. Ebanez, 79 Phil. 324).
extra-judicial, may also be
COMPEL SETTLEMENT OF THE ESTATE BASIS: rescinded on account of lesion,
1. There is undue deprivation of lawful when any one of the co-heirs
participation in the estate; received things whose value is
2. The existence of debts against the estate or less, by at least one-fourth,
undue deprivation of lawful participation
than the share to which he is
payable in money.
entitled, considering the value
REMEDIES OF AGGRIEVED PARTIES AFTER
SETTLEMENT OF ESTATE:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 280
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of the things at the time they were
adjudicated.
REMEDY OF HEIR UNLAWFULLY DEPRIVED OF
PARTICIPATION IN THE PROBATE
PROCEEDINGS
1. Action for Partition;
2. Action Reividicatoria on the ground of fraud.
REMEDY OF AGGRIEVED PARTY IF
EXTRAJUDICIAL SETTLEMENT IS APPROVED
BY THE COURT
1. Rescission if there is lesion;
2. Relief from Judgment (Atty. Ucat).
NOTE:[ a]. When there is preterition of subject
(compulsory heir in the direct line), the institution of
heirs is annulled.
Art. 854. The preterition or
omission of one, some, or all of the
compulsory heirs in the direct line,
whether living at the time of the
execution of the will or born after
the death of the testator, shall
annul the institution of heir; but
the devises and legacies shall be
valid insofar as they are not
inofficious.
If the omitted compulsory heirs
should die before the testator, the
institution shall be effectual,
without prejudice to the right of
representation.
[b]. when there is preterition of object.
Art. 1103. The omission of one or
more objects or securities of the
inheritance shall not cause the
rescission of the partition on the
ground of lesion, but the partition
shall be completed by the
distribution of the objects or
securities which have been
omitted.
Section 5. Period for claim of minor or
incapacitated person. — If on the date of the
expiration of the period of two (2) years prescribed
in the preceding section the person authorized to file
a claim is a minor or mentally incapacitated, or is
in prison or outside the Philippines, he may
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
present his claim within one (1) year after such
disability is removed.
NOTE: In conventional or legal redemption,
sec.5, Rule 74 does not apply. The period to
redeem is not suspended by the fact of
minority, incapacity, etc.
RULE 75
Production of Will. Allowance of Will
Necessary
NATURE OF PROBATE PROCEEDINGS
1. IN REM—Binding on the whole world.
2. MANDATORY—Art. 838, NCC. No will
shall pass either real or personal
property unless it is proved and allowed
in accordance with the Rules of Court.
3.
NOTE: However, it has been held in a case
(Mang-Oy vs. CA, 144 SCRA 33) that a Will
may be sustained on the basis of art. 1080,
NCC, which states that:
Art. 1080. Should a person make
partition of his estate by an act inter
vivos, or by will, such partition shall be
respected, insofar as it does not
prejudice the legitime of the
compulsory heirs.
4. IMPRESCRIPTIBLE—Because of the
public policy to obey the wishes of the
testator. It is also one of the attributes of
ownership to dispose of his own
property by his act inter vivos or mortis
causa.
5. DOCTRINE OF ESTOPPEL DOES NOT
APPLY—The presentation of the will is
required by public policy. It involves
public interest (Fernandez vs. Dimagiba,
21 SCRA 428).
GR: Probate does not look into the intrinsic
validity of the will. The issue is restricted to the
extrinsic validity of the will—whether the testator,
being of sound mind, freely executed the will in
accordance with the formalities prescribed by
law (Pastor, Jr. vs. CA, 122 SCRA 85).
EXCEPTION: PRINCIPLE OF PRACTICAL
CONSIDERATION as enunciated in the case of
Nuguid vs. Nuguid, 17 SCRA 449, where the
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Court held that waste of time, effort, expense plus
added anxiety are practical considerations that
induces us to a belief that we might as well meet
head-on the issues of the validity of the provisions
of the will (note that there is preterition in this
case).
Section 1. Allowance necessary. Conclusive as
to execution. — No will shall pass either real or
personal estate unless it is proved and allowed in
the proper court. Subject to the right of appeal, such
allowance of the will shall be conclusive as to its
due execution.
Probate of Will (2005)
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? (2%)
SUGGESTED ANSWER:
No. No will, shall pass either real or personal estate
unless it is proved and allowed in the proper court. (Sec. 1,
Rule 75, Rules of Court)
Probate of Will (2010) No.XIV. Czarina died
single. She left all her properties by will to her
friend Duqueza. In the will, Czarina stated that
she did not recognize Marco as an adopted son
because of his disrespectful conduct towards
her.
Duqueza soon instituted an action for probate
of Czarina’s will. Marco, on the other hand,
instituted intestate proceedings. Both actions
were consolidated before the RTC of Pasig. On
motion of Marco, Duqueza’s petition was
ordered dismissed on the ground that the will
is void for depriving him of his legitime. Argue
for Duqueza. (5%) SUGGESTED ANSWER: The
petition for probate of Czarina‟s will, as
filed by Duquesa should not be dismissed on
mere motion of Marco who instituted
intestate proceedings. The law favors
testacy over intestacy, hence, the probate
of the will cannot be dispensed with. (See
Sec. 5, Rule 75) Thus, unless the will –
which shows the obvious intent to
disinherit Marco – is probated, the right of a
person to dispose of his property may be
rendered nugatory (See Seanio vs. Reyes,
G.R. Nos. 140371-72, Nov. 27, 2006).
Besides, the authority of the probate court
is generally limited only to a determination
of the extrinsic validity of the will. In this
case, Marco questioned the intrinsic
validity of the will.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Probate of Will; Jurisdictional Facts
(2012) No.X.C. What are the jurisdictional
facts that must be alleged in a petition for
probate of a will? How do you bring before
the court these jurisdictional facts? (3%)
SUGGESTED ANSWER:
The jurisdictional facts in a petition for
probate are: (1) that a person died
leaving a will; (2) in case of a resident,
that he resided within the territorial
jurisdiction of the court; and (3) in the
case of a non-resident, that he left an
estate within such territorial
jurisdiction. The jurisdictional facts
shall be contained in a petition for
allowance of will.
Section 2. Custodian of will to deliver. — The
person who has custody of a will shall, within
twenty (20) days after he knows of the death of
the testator, deliver the will to the court having
jurisdiction, or to the executor named in the will.
Probate of Will (2006)
Sergio Punzalan, Filipino, 50 years old, married, and
residing at Ayala Alabang Village, Muntinlupa City,
of sound and disposing mind, executed a last will
and testament in English, a language spoken and
written by him proficiently. He disposed of his estate
consisting of a parcel of land in Makati City and cash
deposit at the City Bank in the sum of P 300 Million.
He bequeathed P 50 Million each to his 3 sons and P
150 Million to his wife. He devised a piece of land
worth P100 Million to Susan, his favorite daughter-
inlaw. He named his best friend, Cancio Vidal, as
executor of the will without bond.
Is Cancio Vidal, after learning of Sergio's death,
obliged to file with the proper court a petition of
probate of the latter's last will and testament?
(2%)
SUGGESTED ANSWER:
Cancio Vidal is obliged to file a petition for probate
and for accepting or refusing the trust within the
statutory period of 20 days under Sec. 3, Rule 75,
Rules of Court.
Supposing the original copy of the last will and
testament was lost, can Cancio compel Susan to
produce a copy in her possession to be submitted
to the probate court. (2%)
SUGGESTED ANSWER:
Yes, Cancio can compel Susan to produce the copy
in her possession. A person having custody of the
will is bound to deliver the same to the court of
competent jurisdiction or to the executor, as
provided in Sec. 2, Rule 75, Rules of Court.
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Can the probate court appoint the widow as executor
of the will? (2%)
SUGGESTED ANSWER:
Yes, the probate court can appoint the widow as
executor of the will if the executor does not qualify, as
when he is incompetent, refuses the trust, or fails to give
bond (Sec. 6, Rule 78, Rules of Court).
Can the widow and her children settle extrajudicially
among themselves the estate of the deceased? (2%)
SUGGESTED ANSWER:
No, the widow and her children cannot settle the estate
extrajudicially because of the existence of the Will. No
will shall pass either real or personal estate unless it is
proved and allowed in the proper court (Sec. 1, Rule 75,
Rules of Court).
Can the widow and her children initiate a separate
petition for partition of the estate pending the probate
of the last will and testament by the court? (2%)
SUGGESTED ANSWER:
No, the widow and her children cannot file a separate
petition for partition pending the probate of the will.
Partition is a mode of settlement of the estate (Sec. 1, Rule
75, Rules of Court).
Section 3. Executor to present will and accept or
refuse trust. — A person named as executor in a
will shall, within twenty (20) days after he knows of
the death of the testator, or within twenty (20) days
after he knows that he is named executor if he
obtained such knowledge after the death of the
testator, present such will to the court having
jurisdiction, unless the will has reached the court in
any other manner, and shall, within such period,
signify to the court in writing his acceptance of the
trust or his refusal to accept it.
Section 4. Custodian and executor subject to fine
for neglect. — A person who neglects any of the
duties required in the two last preceding sections
without excuse satisfactory to the court shall be
fined not exceeding two thousand pesos.
Section 5. Person retaining will may be
committed. — A person having custody of a will
after the death of the testator who neglects without
reasonable cause to deliver the same, when
ordered so to do, to the court having jurisdiction,
may be committed to prison and there kept until he
delivers the will.
RULE 76
Allowance or Disallowance of Will
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
PROBATE (Allowance of Will)
It is the act of proving in court a document
purporting to be a last will and testament of a
deceased person in order that it may be officially
recognized, registered and its provisions carried
insofar as they are in accordance with law.
NOTE: There is NO such thing as VOIDABLE
WILL (Atty. Ucat).
VOID disposition does not necessarily avoids
a valid will (disposition to a concubine does
not annul the entire will (Ucat).
Section 1. Who may petition for the allowance
of will. — Any executor, devisee, or legatee
named in a will, or any other person interested in
the estate, may, at any time after the death of
the testator, petition the court having jurisdiction
to have the will allowed, whether the same be in
his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime,
petition the court for the allowance of his will.
Persons who may petition for the allowance
of the will:
1. Testator during his lifetime;
2. Executor;
3. Devisee or Legatee named in the will;
4. Persons interested in the estate (ex.
Heirs);
An interested party is one who
would be benefited by the
estate, such as an heir, or one
who has a claim against the
estate, such as a creditor.
5. Any creditor, as preparatory for filing his
claim therein (Regalado, p. 30).
Who may be party to the probate:
In general, any person having direct and
material interest in the will or the estate.
Section 2. Contents of petition. — A petition
for the allowance of a will must show, so far as
known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the
heirs, legatees, and devisees of the testator
or decedent;
(c) The probable value and character of the
property of the estate;
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(d) The name of the person for whom letters are
prayed;
(e) If the will has not been delivered to the court,
the name of the person having custody of it.
But no defect in the petition shall render void the
allowance of the will, or the issuance of letters
testamentary or of administration with the will
annexed.
EFFECT OF THE PROBATE OF THE WILL
It is conclusive as to the EXECUTION and the
VALIDITY of the will (even against the state). Thus,
a criminal case against the forger may not lie after
the will has been probated.
ISSUE IN THE PROBATE OF THE WILL
GR: Only the determination of the extrinsic validity
NOT the intrinsic validity of testamentary
dispositions..
Exceptions: Where the entire or all testamentary
dispositions are void and where the defect is
apparent on its face (Acain vs. IAC, GR NO.
72706,Oct., 27, 1987; Nepumuceno vs. CA,139
SCRA 206).
EXTRINSIC VALIDITY- means due execution of the
will.
Meaning of DUE EXECUTION
1. That the will was executed strictly in
accordance with the formalities required by
law;
2. That the testator was of sound and
disposing mind when he executed the will;
3. That there where no vitiation of consent
through duress, fear or threats;
4. That it was not procured by undue influence
or improper pressure or influence on the
part of the beneficiary, or some other
person for his benefit;
5. That the signature of the testator was
genuine, i.e. it was not procured through
fraud and that the testator intended that
what he executed was his last will and
testament.
Section 3. Court to appoint time for proving will.
Notice thereof to be published. — When a will is
delivered to, or a petition for the allowance of a will
is filed in, the court having jurisdiction, such court
shall fix a time and place for proving the will when
all concerned may appear to contest the allowance
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
thereof, and shall cause notice of such time and
place to be published three (3) weeks
successively, previous to the time appointed, in
a newspaper of general circulation in the
province.
But no newspaper publication shall be made
where the petition for probate has been filed by
the testator himself.
Q: When does the court acquire jurisdiction over
interested persons and the res?
A: Upon publication for 3 weeks successively of
the order setting the case for hearing and
sending notices to all persons interested.
Section 4. Heirs, devisees, legatees, and
executors to be notified by mail or
personally. — The court shall also cause
copies of the notice of the time and place fixed
for proving the will to be addressed to the
designated or other known heirs, legatees,
and devisees of the testator resident in the
Philippines at their places of residence, and
deposited in the post office with the postage
thereon prepaid at least twenty (20) days
before the hearing, if such places of residence
be known. A copy of the notice must in like
manner be mailed to the person named as
executor, if he be not the petitioner; also, to any
person named as co-executor not petitioning, if
their places of residence be known. Personal
service of copies of the notice at least (10) days
before the day of hearing shall be equivalent to
mailing.
If the testator asks for the allowance of his own
will, notice shall be sent only to his compulsory
heirs.
Section 5. Proof at hearing. What sufficient in
absence of contest. — At the hearing
compliance with the provisions of the last two
preceding sections must be shown before the
introduction of testimony in support of the will.
All such testimony shall be taken under oath and
reduced to writing. If no person appears to
contest the allowance of the will, the court may
grant allowance thereof on the testimony of one
of the subscribing witnesses only, if such
witness testify that the will was executed as
required by law.
In the case of a holographic will, it shall be
necessary that at least one witness who knows
the handwriting and signature of the testator
explicitly declare that the will and the signature
are in the handwriting of the testator. In the
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absence of any such competent witness, and if the
court deem it necessary, expert testimony may be
resorted to.
EVIDENCE required in support of the will:
1. UNCONTESTED WILL (sec. 5)
a. Notarial wills—Testimony of at least 1 of the
subscribing witnesses may be allowed, if
such witness testifies that the will was
executed as required by law.
I. If all the subscribing witnesses
reside outside the province,
DEPOSITION may be allowed (sec.
7).
II. If the subscribing witnesses are
dead, insane or none of them
resides in the Philippines, the court
may admit testimony of other
witnesses to prove the sanity of the
testator and the due execution of
the will, and as evidence of such
execution of the will, it may admit
proof of the handwriting of the
testator and of the subscribing
witnesses or any of them (sec. 8).
b. Holographic wills—testimony of 1 witness
who knows the handwriting and signature of
the testator. In the absence thereof, the
testimony of an expert witness.
2. CONTESTED WILLS (sec. 11).
1. Notarial Wills—ALL subscribing witnesses
AND the Notary Public before whom the will
was acknowledged must be produced and
examined
HOWEVER, If any or all of the witnesses
testify against the execution of the will; do
not remember attesting thereto; or of
doubtful credibility, the will may be allowed if
the court is satisfied from the testimony of
other witnesses and from the evidence
presented that the will was executed and
attested in the manner required by law
(note: this is an instance where a party may
impeach his own witness).
2. Holographic Wills—3 witnesses who know
the handwriting of the testator. In the
absence thereof, an expert testimony may
be resorted to.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
HOWEVER, the SC held that if a
holographic will is contested, 3
witnesses who know the handwriting
and signature of the testator are now
required or mandatory to prove its
authenticity and for its allowance (Codoy
vs. Calugay, GR NO. 123486, Aug. 12,
1999).
GR: Holographic will if destroyed cannot be
probated.
Exception: If there exists a photostatic or Xerox
copy thereof (Gan vs. Yap, 104 Phil. 509).
Section 6. Proof of lost or destroyed will.
Certificate thereupon. — No will shall be proved
as a lost or destroyed will unless the execution
and validity of the same be established, and the
will is proved to have been in existence at the
time of the death of the testator, or is shown to
have been fraudulently or accidentally destroyed
in the lifetime of the testator without his
knowledge, nor unless its provisions are clearly
and distinctly proved by at least two (2) credible
witnesses. When a lost will is proved, the
provisions thereof must be distinctly stated and
certified by the judge, under the seal of the
court, and the certificate must be filed and
recorded as other wills are filed and recorded.
Probate of Lost Wills (1999)
What are the requisites in order that a lost or
destroyed Will may be allowed? (2%)
A's Will was allowed by the Court. No appeal was
taken from its allowance. Thereafter, Y, who was
interested in the estate of A, discovered that the Will
was not genuine because A's signature was forged by
X. A criminal action for forgery was instituted
against X. May the due execution of the Will be
validly questioned in such criminal action? (2%)
SUGGESTED ANSWER:
a. In order that a lost or destroyed will may be
allowed,
the following must be complied with:
1 the execution and validity of the same should be
established;
2 the will must have been in existence at the time of
the death of the testator, or shown to have been
fraudulently or accidentally destroyed in the lifetime
of the testator without his knowledge; and
3 its provisions are clearly and distinctly proved by
at least two credible witnesses.
(Sec. 6, Rule 76 of the Rules of Court)
SUGGESTED ANSWER:
b. No. The allowance of the will from which no
appeal
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was taken is conclusive as to its due execution. (Sec. 1 of
Rule 75.) Due execution includes a finding that the will is
genuine and not a forgery. Accordingly, the due
execution of the will cannot again be questioned in a
subsequent proceeding, not even in a criminal action for
forgery of the will.
Facts which should be proved in order that a
lost or destroyed will ay be allowed:
1. Due execution of the will;
2. Existence of will when testator died, or that
it was fraudulently or accidentally destroyed
in the lifetime of the testator without his
knowledge; and
3. Provisions of the will are clearly established
by at least 2 credible witnesses.
Section 7. Proof when witnesses do not reside in
province. — If it appears at the time fixed for the
hearing that none of the subscribing witnesses
resides in the province, but that the deposition of
one or more of them can be taken elsewhere, the
court may, on motion, direct it to be taken, and may
authorize a photographic copy of the will to be made
and to be presented to the witness on his
examination, who may be asked the same
questions with respect to it, and to the handwriting
of the testator and others, as would be pertinent and
competent if the original will were present.
Section 8. Proof when witnesses dead or insane
or do not reside in the Philippines. — If the
appears at the time fixed for the hearing that the
subscribing witnesses are dead or insane, or that
none of them resides in the Philippines, the court
may admit the testimony of other witnesses to
prove the sanity of the testator, and the due
execution of the will; and as evidence of the
execution of the will, it may admit proof of the
handwriting of the testator and of the subscribing
witnesses, or of any of them.
Section 9. Grounds for disallowing will. — The
will shall be disallowed in any of the following cases:
(a) If not executed and attested as required by
law;
(b) If the testator was insane, or otherwise
mentally incapable to make a will, at the time of
its execution;
(c) If it was executed under duress, or the
influence of fear, or threats;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(d) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary, or of some other person for his
benefit;
(e) If the signature of the testator was
procured by fraud or trick, and he did not
intend that the instrument should be his will
at the time of fixing his signature thereto.
NOTES: The grounds are EXCLUSIVE.
Bar Exam Question 2011
(84) Which of the following is sufficient to
disallow a will on the ground of mistake?
(A) An error in the description of the land
devised in the will. (B) The inclusion for
distribution among the heirs of properties
not belonging to the testator. (C) The
testator intended a donation intervivos
but unwittingly executed a will. (D) An
error in the name of the person nominated
as executor.
Evidence of forgery may be admitted by the
probate court even if there was no allegation
of forgery. The issues are defined by law and
not by the parties (Review Lecture). Thus,
evidence of forgery may be admitted even if
the opposition is based only on fraud.
Separate Wills which contain essentially the
same provisions and pertain to property which
in all probability is conjugal in nature, practical
considerations dictate their joint probate
(Motoomull vs. Dela Paz, 187 SCRA 743).
Section 10. Contestant to file grounds of
contest. — Anyone appearing to contest the will
must state in writing his grounds for opposing
its allowance, and serve a copy thereof on the
petitioner and other parties interested in the
estate.
Section 11. Subscribing witnesses produced
or accounted for where will contested. — If
the will is contested, all the subscribing
witnesses, and the notary in the case of wills
executed under the Civil Code of the Philippines,
if present in the Philippines and not insane, must
be produced and examined, and the death,
absence, or insanity of any of them must be
satisfactorily shown to the court. If all or some of
such witnesses are present in the Philippines
but outside the province where the will has been
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filed, their deposition must be taken. If any or all of
them testify against the due execution of the will, or
do not remember having attested to it, or are
otherwise of doubtful credibility, the will may
nevertheless, be allowed if the court is satisfied from
the testimony of other witnesses and from all the
evidence presented that the will was executed and
attested in the manner required by law.
If a holographic will is contested, the same shall be
allowed if at least three (3) witnesses who know the
handwriting of the testator explicitly declare that the
will and the signature are in the handwriting of the
testator; in the absence of any competent
witnesses, and if the court deem it necessary,
expert testimony may be resorted to.
Section 12. Proof where testator petitions for
allowance of holographic will. — Where the
testator himself petitions for the probate of his
holographic will and no contest is filed, the fact that
the affirms that the holographic will and the
signature are in his own handwriting, shall be
sufficient evidence of the genuineness and due
execution thereof. If the holographic will is
contested, the burden of disproving the
genuineness and due execution thereof shall be on
the contestant. The testator to rebut the evidence
for the contestant.
Section 13. Certificate of allowance attached to
prove will. To be recorded in the Office of
Register of Deeds. — If the court is satisfied, upon
proof taken and filed, that the will was duly
executed, and that the testator at the time of its
execution was of sound and disposing mind, and
not acting under duress, menace, and undue
influence, or fraud, a certificate of its allowance,
signed by the judge, and attested by the seal of the
court shall be attached to the will and the will and
certificate filed and recorded by the clerk. Attested
copies of the will devising real estate and of
certificate of allowance thereof, shall be recorded in
the register of deeds of the province in which the
lands lie.
RULE 77
Allowance of Will Proved Outside of Philippines
and Administration of Estate Thereunder
Section 1. Will proved outside Philippines may
be allowed here. — Wills proved and allowed in a
foreign country, according to the laws of such
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
country, may be allowed, filed, and recorded by
the proper Court of First Instance in the
Philippines.
NOTE: A will allowed or probated in a foreign
country must be REPROBATED in the
Philippines. If the decedent owns properties in
different countries, separate administration
proceedings must be had in said countries.
2 TYPES OF ESTATE PROCEEDINGS
A. Principal Administration
It is that which is granted in the jurisdiction of the
decedent’s domicile (aka Domiciliary
Administration).
B. Ancillary Administration
It is the administration proceeding instituted in
the place where the decedent had his estate.
NECESSARY EVIDENCE IN REPROBATE OF
THE WILL:
1. Due execution of the will according to
the foreign laws;
2. The testator had his domicile in the
foreign country and not in the
Philippines;
3. The will has been admitted to probate in
such country;
4. The fact that the foreign tribunal is a
probate court;
5. The laws of the foreign country on the
procedure and allowance of wills.
DOCTRINE OF PROCESSUAL
PRESUMPTION
Laws of foreign must be properly alleged and
proved according the rules of evidence,
OTHERWISE, the same may be presumed to be
the same as that in the Philippines.
GR: Laws of foreign countries must be alleged
and proved. Courts cannot, generally take
JUDICIAL NOTICE of the same.
Exception: When such foreign law so much
familiar to our own law, as in the case of a
foreign law being adapted or copied by our
legislature. Court sometimes take judicial notice
of such fact.
Section 2. Notice of hearing for allowance. —
When a copy of such will and of the order or
decree of the allowance thereof, both duly
authenticated, are filed with a petition for
allowance in the Philippines, by the executor or
other person interested, in the court having
jurisdiction, such court shall fix a time and place
for the hearing, and cause notice thereof to be
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given as in case of an original will presented for
allowance.
REQUISITES FOR ANCILLARY
ADMINISTRATION
1. There must be a will;
2. Filing of:
a. copy of the will executed in the foreign
country;
b. order or decree of foreign court allowing
such; and authentication of (a) and (b)
above.
3. Notice of time and place of hearing;
4. Hearing; and certificate of allowance.
Section 3. When will allowed, and effect thereof.
— If it appears at the hearing that the will should be
allowed in the Philippines, the court shall so allow it,
and a certificate of its allowance, signed by the
judge, and attested by the seal of the court, to which
shall be attached a copy of the will, shall be filed
and recorded by the clerk, and the will shall have
the same effect as if originally proved and allowed in
such court.
EFFECTS OF ALLOWANCE
1. The will shall have the same effect as if
originally proved and allowed in the courts
of the Philippines;
2. Letters testamentary or administration with
a will annexed shall extend to all estates
located in the Philippines
3. Such estate, after the payment of just debts
and expenses of administration, shall be
disposed of according to the will, so far as
such will may operate upon it, and the
residue, if any, 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.
Section 4. Estate, how administered. — When a
will is thus allowed, the court shall grant letters
testamentary, or letters of administration with the
will annexed, and such letters testamentary or of
administration, shall extend to all the estate of the
testator in the Philippines. Such estate, after the
payment of just debts and expenses of
administration, shall be disposed of according to
such will, so far as such will may operate upon it;
and the residue, if any shall be disposed of as is
provided by law in cases of estates in the
Philippines belonging to persons who are
inhabitants of another state or country.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Probate of Will: Will Outside of the
Philippines (2010) No.XV. Pedrillo, a Fil-
Am permanent resident of Los Angeles,
California at the time of his death,
bequeathed to Winston a sum of money to
purchase an annuity. Upon Pedrillo’s
demise, his will was duly probated in Los
Angeles and the specified sum in the will
was in fact used to purchase an annuity
with XYZ of Hong Kong so that Winston
would receive the equivalent of US$1,000
per month for the next 15 years. Wanting to
receive the principal amount of the annuity,
Winston files for the probate of Pedrillo’s
will in the Makati RTC. As prayed for, the
court names Winston as administrator of
the estate. Winston now files in the Makati
RTC a motion to compel XYZ to account for
all sums in its possession forming part of
Pedrillo’s estate. Rule on the motion. (5%)
SUGGESTED ANSWER:
The motion should be denied. Makati
RTC has no jurisdiction over XYZ of
hongkong. The letters of administration
granted to Winston only covers all
Pedrillo‟s estate in the Philippines. (Rule
77, Sec. 4) This cannot cover the
annuities in Hongkong. At the outset,
Makati RTC should not have taken
cognizance of the petition filed by
Winston, because the will does not cover
any property of Pedrillo located here in
the Philippines.
RULE 78
Letters Testamentary and of Administration,
When and to Whom Issued
Who can administer the estate:
a. Executor;
b. Administrator, regular or special;
c. Administrator with a will annexed.
EXECUTOR
He is the one named by the testator in his will for
the administration of his property after his death.
ADMINISTRATOR
He is the one appointed by the court in
accordance with the Rules or governing statutes
to administer and settle the intestate estate or
such testate estate where the testator did not
name any executor or that the executor named
refuses to accept the trust or fails to file a bond
or otherwise incompetent.
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ADMINISTRATOR with a will annexed provided by testator in Compensation

He is the one appointed by the court in cases, when
although there is a will, the will does not appoint any
executor, or if appointed, is either incapacitated or
unwilling to serve as such.
WHO may serve as an executor/administrator?
Any COMPETENT person may serve as such.
Section 1. Who are incompetent to serve as
executors or administrators. — No person is
competent to serve as executor or administrator
who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
(c) Is in the opinion of the court unfit to execute
the duties of the trust by reason of drunkenness,
improvidence, or want of understanding or
integrity, or by reason of conviction of an
offense involving moral turpitude.
Section 2. Executor of executor not to administer
estate. — The executor of an executor shall not, as
such, administer the estate of the first testator.
the will, otherwise, sec. governed by sec. 7,
7 Rule 85 applies Rule 85
Section 3. Married women may serve. — A
married woman may serve as executrix or
administratrix, and the marriage of a single
woman shall not affect her authority so to serve
under a previous appointment.
Bar Exam Question 2011
(1) Anna filed a petition for appointment as
regular administratrix of her fathers' estate.
Her sister Sophia moved to dismiss the
petition on the ground that the parties, as
members of the same family, have not
exerted earnest effort toward a compromise
prior to the filing of the petition. Should the
petition be dismissed? (A) Yes, since such
earnest effort is jurisdictional in all estate
cases. (B) No, since such earnest effort is
not required in special proceedings. (C)
Yes, since such earnest effort is required
prior to the filing of the case. (D) No, since
such earnest effort toward a compromise is
not required in summary proceedings.

EXECUTOR ADMINISTRATOR
Appointed by the court
in case the testator did Section 4. Letters testamentary issued when
not appoint an executor will allowed. — When a will has been proved
Nominated by testator or if the executor and allowed, the court shall issue letters
and appointed by the refused appointment or testamentary thereon to the person named as
court if the will was executor therein, if he is competent, accepts the
disallowed or if the trust, and gives bond as required by these rules.
person did not make
any will
Section 5. Where some coexecutors
Must present will to the
disqualified others may act. — When all of the
court within 20 days
executors named in a will can not act because of
after he knows the
incompetency, refusal to accept the trust, or
death of the testator or
failure to give bond, on the part of one or more
after he knew that he No such duty
of them, letters testamentary may issue to such
was appointed as
of them as are competent, accept and give
executor (if he obtained
bond, and they may perform the duties and
such knowledge after
discharge the trust required by the will.
the death of testator),
unless the will has
reached the court in Section 6. When and to whom letters of
any manner. administration granted. — If no executor is
Testator may provide named in the will, or the executor or executors
that he may serve are incompetent, refuse the trust, or fail to give
without a bond (BUT He must always give a bond, or a person dies intestate, administration
the court may direct him bond shall be granted:
to give a bond
conditioned only to pay (a) To the surviving husband or wife, as
debts). the case may be, or next of kin, or both, in
Compensation may be the discretion of the court, or to such

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 289

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person as such surviving husband or wife, or
next of kin, requests to have appointed, if
competent and willing to serve;
(b) If such surviving husband or wife, as the
case may be, or next of kin, or the person
selected by them, be incompetent or unwilling,
or if the husband or widow, or next of kin,
neglects for thirty (30) days after the death of
the person to apply for administration or to
request that administration be granted to
some other person, it may be granted to one
or more of the principal creditors, if
competent and willing to serve;
(c) If there is no such creditor competent and
willing to serve, it may be granted to such
other person as the court may select.
Settlement of Estate; Administrator (1998)
A, claiming to be an illegitimate child of the deceased D,
instituted an Intestate proceeding to settle the estate of
the latter. He also prayed that he be appointed
administrator of said estate. S, the surviving spouse,
opposed the petition and A's application to be appointed
the administrator on the ground that he was not the
child of her deceased husband D. The court, however,
appointed A as the
administrator of said estate. Subsequently, S, claiming to
be the sole heir of D, executed an Affidavit of
Adjudication, adjudicating unto herself the entire estate
of her deceased husband D. S then sold the entire estate
to X. Was the appointment of A as administrator
proper? [2%] Was the action of S in adjudicating the
entire estate of her late husband to herself legal? [3%]
SUGGESTED ANSWER:
1. Yes, unless it is shown that the court gravely-abused
its discretion in appointing the illegitimate child as
administrator, instead of the spouse. While the spouse
enjoys preference, it appears that the spouse has
neglected to apply for letters of administration within
thirty (30) days from the death of the decedent. (Sec. 6,
Rule 78, Rules of Court;
Gaspay, Jr. vs. Court of Appeals. 238 SCRA 163.)
ALTERNATIVE ANSWER:
S, the surviving spouse, should have been appointed
administratrix of the estate, in as much as she enjoys
first preference in such appointment under the rules.
(Sec. 6(a) of Rule 78, Rules of Court.)
SUGGESTED ANSWER:
2. No. An affidavit of self-adjudication is allowed only if
the affiant is the sole heir of the. deceased. (Sec. 1, Rule 74,
Rules of Court). In this case, A also claims to be an heir.
Moreover, it is not legal because there is already
apending juridical proceeding for the settlement of the
estate.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
NOTE: The order of appointment of regular
administrator is final and appealable.
REMEDY IF THE APPOINTMENT OF
ADMINSTRATOR IS SUBJECT OF AN
APPEAL
1. Execution pending appeal;
2. Appointment of special administrator.
BASIS FOR THE PREFERENTIAL RIGHT
 The underlying assumption is that those
who will reap the benefits of a wise,
speedy and economical administration
of the estate or those who will most
suffer the consequences of waste,
improvidence or mismanagement, have
the higher interest and most influential
motive to administer the estate correctly.
NOTE: Co-administrators may be appointed for
the benefit of the estate and those interested
therein (Matute vs. CA, 26 SCRA 768).
RULE 79
Opposing Issuance Of Letters Testamentary.
Petition And Contest For Letters Of
Administration
Section 1. Opposition to issuance of letters
testamentary. Simultaneous petition for
administration. — Any person interested in a
will may state in writing the grounds why letters
testamentary should not issue to the persons
named therein as executors, or any of them, and
the court, after hearing upon notice, shall pass
upon the sufficiency of such grounds. A petition
may, at the time, be filed for letters of
administration with the will annexed.
GR: Any person interested in the will may
oppose the issuance of the letters
testamentary.
Exception: even where a person who had
filed a petition for the allowance of the will had
no right to do so in view of lack of interest in
the estate, nevertheless, when the interested
persons did not object to its application, the
defect in the petition would be deemed cured.
The filing of the petition, may be considered as
having been ratified by the interested parties
(Eusebio vs. Valmores, 97 Phil. 163).
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Section 2. Contents of petition for letters of
administration. — A petition for letters of
administration must be filed by an interested person
and must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of
the heirs, and the names and residences of
the creditors, of the decedent;
(c) The probable value and character of
the property of the estate;
(d) The name of the person for whom letters
of administration are prayed.
But no defect in the petition shall render void the
issuance of letters of administration.
Letters of Administration; Interested Person
(2008) No.XVIII. Domencio and Gen lived
without benefit of marriage for 20 years,
during which time they purchased properties
together. After Domencio died without a will,
Gen filed a petition for letters of
administration. Domencio’s siblings opposed
the same on the ground that Gen has no legal
personality. Decide. SUGGESTED ANSWER: A
petition for letters of administration may be
filed by any “interested person” (Sec. 2,
Rule 79, Rules of Court). Gen would be
considered an interested person if she was
not married to Domenico, because she can
claim co-ownership of the properties left by
him under their property regime of a union
without marriage under conditions provided
in the Family Code 9Arts. 147-148, Family
Code; San Luis vs. San Luis, G.R. No.
133743, February 6, 2007).
Section 3. Court to set time for hearing. Notice
thereof. — When a petition for letters of
administration is filed in the court having jurisdiction,
such court shall fix a time and place for hearing the
petition, and shall cause notice thereof to be given
to the known heirs and creditors of the decedent,
and to any other persons believed to have an
interest in the estate, in the manner provided in
sections 3 and 4 of Rule 76.
Note: Publication for 3 weeks and notice to heirs,
creditors and other persons believed to have an
interest in the estate as required before hearing.
Important: this section is JURISDICTIONAL.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
It has been held that where no notice has
been given to the persons believed to have an
interest in the estate of the deceased person,
the proceeding for the settlement of the estate
is void (De Guzman vs. Angeles, 162 SCRA
347).
Section 4. Opposition to petition for
administration. — Any interested person may,
by filing a written opposition, contest the petition
on the ground of the incompetency of the person
for whom letters are prayed therein, or on the
ground of the contestant's own right to the
administration, and may pray that letters issue to
himself, or to any competent person or person
named in the opposition.
Settlement of Estate (2010) No.XVI. Sal Mineo
died intestate, leaving a P1 billion estate. He
was survived by his wife Dayanara and their five
children. Dayanara filed a petition for the
issuance of letters of administration. Charlene,
one of the children, filed an opposition to the
petition, alleging that there was neither an
allegation nor genuine effort to settle the estate
amicably before the filing of the petition. Rule
on the opposition. (5%) SUGGESTED ANSWER:
The opposition should be overruled for lack of
merit. The allegation that there was a genuine
effort to settle the estate amicably before the
filing of the petition is not required by the
Rules. Besides, a petition for issuance of letters
of administration may be contested on either of
two grounds : (1) the incompetency of the
person for whom letters are prayed therein;
and (2) the contestant‟s own right to the
administration. (Sec. 4, Rule 79).
Grounds for opposition:
A. Letters Testamentary—incompetency;
B. Letters Administration—incompetency
and/or preferential right of the oppositor.
Section 5. Hearing and order for letters to issue.
— At the hearing of the petition, it must first be
shown that notice has been given as
hereinabove required, and thereafter the court
shall hear the proofs of the parties in support of
their respective allegations, and if satisfied that
the decedent left no will, or that there is no
competent and willing executor, it shall order the
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issuance of letters of administration to the party best
entitled thereto.
Section 6. When letters of administration granted
to any applicant. — Letters of administration may
be granted to any qualified applicant, though it
appears that there are other competent persons
having better right to the administration, if such
persons fail to appear when notified and claim the
issuance of letters to themselves.
RULE 80
Special Administrator
Section 1. Appointment of special administrator.
— When there is delay in granting letters
testamentary or of administration by any cause
including an appeal from the allowance or
disallowance of a will, the court may appoint a
special administrator to take possession and charge
of the estate of the deceased until the questions
causing the delay are decided and executors or
administrators appointed.
Appointment of Special Administrator proper
when:
1. There is delay in granting the letters,
including appeal in the probate of the will;
2. Executor is himself has a claim against the
estate (sec. 8, Rule 86).
NOTE: In this 2nd instance, the administrator shall
have the same powers as that of a general
administrator.
ORDER OF APPOINTMENT DISCRETIONARY
The preference accorded by sec. 6, Rule 78 to the
surviving spouse refers to the appointment of a
regular administrator, not to the order appointing a
special administrator. The latter lies within the
discretion of the probate court (Pijuan vs. De
Gurrea, 124 Phil. 1527).
Note: The appointment or removal of a special
administrator is discretionary and is thus
interlocutory and may be assailed through a petition
for certiorari under Rule 65 (Manungas vs. Loreto,
GR No. GR No. 193161, Aug 22, 2011).
ADMINISTRATOR SPECIAL
ADMINISTRATOR
Appointment may be Appointment is an
subject of an appeal interlocutory order
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
One of the obligations Cannot pay the debts of
to pay debts of the the estate
estate
Appointed when the Appointed when there
decedent died intestate is delay in appointment
or did not appoint an of the regular
executor in the will, or administrator or
will was disallowed executor/administrator
is claiming from the
estate
Section 2. Powers and duties of special
administrator. — Such special administrator
shall take possession and charge of the goods,
chattels, rights, credits, and estate of the
deceased and preserve the same for the
executors or administrator afterwards appointed,
and for that purpose may commence and
maintain suits as administrator. He may sell only
such perishable and other property as the court
orders sold. A special administrator shall not be
liable to pay any debts of the deceased unless
so ordered by the court.
POWERS AND DUTIES OF SPECIAL
ADMINISTRATOR:
1. Possession and charge of goods;
2. Preservation of the same;
3. Commence and maintain suit;
4. Sell only perishable property or as
ordered by the court;
5. Pay debts only when ordered.
Section 3. When powers of special
administrator cease. Transfer of effects.
Pending suits. — When letters testamentary or
of administration are granted on the estate of
the deceased, the powers of the special
administrator shall cease, and he shall forthwith
deliver to the executor or administrator the
goods, chattels, money, and estate of the
deceased in his hands. The executor or
administrator may prosecute to final judgment
suits commenced by such special administrator.
NOTE: It is possible for the executor or
administrator whose appointment has been
challenged by appeal to be appointed also as
special administrator pending such appeal.
There is no harm in appointing the same person
as special administrator because there is a vast
difference between the powers and duties of the
two positions.
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RULE 81
Bond of Executors and Administrators
Section 1. Bond to be given issuance of letters.
Amount. Conditions. — Before an executor or
administrator enters upon the execution of his trust,
and letters testamentary or administration issue, he
shall give a bond, in such sum as the court directs,
conditioned as follows:
(a) To make and return to the court, within
three (3) months, a true and complete
inventory of all goods, chattels, rights,
credits, and estate of the deceased which
shall come to his possession or knowledge
or to the possession of any other person for
him;
(b) To administer according to these rules,
and, if an executor, according to the will of
the testator, all goods, chattels, rights,
credits, and estate which shall at any time
come to his possession or to the possession
of any other person for him, and from the
proceeds to pay and discharge all debts,
legacies, and charges on the same, or such
dividends thereon as shall be decreed by
the court;
(c) To render a true and just account of his
administration to the court within one (1)
year, and at any other time when required
by the court;
(d) To perform all orders of the court by
him to be performed.
Terms and effectivity of bond does not depend on
the payment of premium and does not expire until
the administration is closed. As long as the probate
court retains jurisdiction of the estate, the bond
contemplates a continuing liability (Luzon Surety vs.
Quebrar, 127 SCRA 295).
Section 2. Bond of executor where directed in
will. When further bond required. — If the testator
in his will directs that the executors serve without
bond, or with only his individual bond, he may be
allowed by the court to give bond in such sum and
with such surety as the court approves conditioned
only to pay the debts of the testator; but the court
may require of the executor a further bond in case
of a change in his circumstance, or for other
sufficient case, with the conditions named in the last
preceding section.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 3. Bonds of joint executors and
administrators. — When two or more persons
are appointed executors or administrators the
court may take a separate bond from each, or a
joint bond from all.
Section 4. Bond of special administrator. — A
special administrator before entering upon the
duties of his trust shall give a bond, in such sum
as the court directs, conditioned that he will
make and return a true inventory of the goods,
chattels, rights, credits, and estate of the
deceased which come to his possession or
knowledge, and that he will truly account for
such as are received by him when required by
the court, and will deliver the same to the
person appointed executor or administrator, or
to such other person as may be authorized to
receive them.
RULE 82
Revocation of Administration, Death,
Resignation, and Removal of Executors or
Administrators
Section 1. Administration revoked if will
discovered. Proceedings thereupon. — If
after letters of administration have been granted
on the estate of a decedent as if he had died
intestate, his will is proved and allowed by the
court, the letters of administration shall be
revoked and all powers thereunder cease, and
the administrator shall forthwith surrender the
letters to the court, and render his account with
such time as the court directs. Proceeding for
the issuance of letters testamentary or of
administration under the will shall be as
hereinbefore provided.
NOTE: Discovery of the will does not ipso
facto nullify the letters of administration
already issued until the will has been proved
and allowed (De Parreno vs. Aranzado, GR
NO. L-27657, Aug. 30, 1982).
Probate of Will; Mandatory Nature (2002)
What should the court do if, in the course of
intestate proceedings, a will is found and it is
submitted for probate? Explain. (2%)
SUGGESTED ANSWER:
If a will is found in the course of intestate
proceedings and it is submitted for probate, the
intestate proceedings will be suspended until the will
is probated. Upon the probate of the will, the
intestate proceedings will be terminated.
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(Rule 82, sec. 1).

Section 2. Court may be remove or accept RULE 83

resignation of executor or administrator.
Proceeding upon death, resignation, or removal. Inventory and Appraisal. Provision for
— If an executor or administrator neglects to render Support of Family
his account and settle the estate according to law,
or to perform an order or judgment of the court, or a
Section 1. Inventory and appraisal to be
duty expressly provided by these rules, or
returned within three months. — Within three
absconds, or becomes insane, or otherwise
(3) months after his appointment every executor
incapable or unsuitable to discharge the trust, the
or administrator shall return to the court a true
court may remove him, or in its discretion, may
inventory and appraisal of all real and personal
permit him to resign. When an executor or
estate of the deceased which has come into his
administrator dies, resign, or is removed the
possession or knowledge. In the appraisement
remaining executor or administrator may administer
of such estate, the court may order one or more
the trust alone, unless the court grants letters to
of the inheritance tax appraisers to give his or
someone to act with him. If there is no remaining
their assistance.
executor or administrator, administration may be to
any suitable person.
NOTES: The 3 month period is not mandatory.
GROUNDS FOR THE REMOVAL OF EXECUTOR The fact that the inventory is filed after the 3
month period would not deprive the probate
OR ADMINISTRATOR
1. Neglect to render account; court of jurisdiction to approve the same.
However, the unexplained delay may subject
2. Neglect to settle estate;
him to removal or other disciplinary action.
3. Neglect to perform an order of the court;
4. Absconding;
5. Insanity or incapability or unsuitability to Approval of an inventory is not conclusive
determination of what assets constituted the
discharged the trust.
decedent’s estate and of the valuation thereof.
Such determination is only provisional and a
Administrator is required to exercise reasonable
prima facie finding on the issue of ownership.
diligence and act in entire good faith in the
performance of that trust.
Section 2. Certain article not to be
inventoried. — The wearing apparel of the
Section 3. Acts before revocation, resignation, or
surviving husband or wife and minor children.,
removal to be valid. — The lawful acts of an
the marriage bed and bedding, and such
executor or administrator before the revocation of
provisions and other articles as will necessarily
his letters testamentary or of administration, or
be consumed in the subsistence of the family of
before his resignation or removal, shall have the like
the deceased, under the direction of the court,
validity as if there had been no such revocation,
shall not be considered as assets, nor
resignation, or removal.
administered as such, and shall not be included
in the inventory.
Section 4. Powers of new executor or
administrator. Renewal of license to sell real
Section 3. Allowance to widow and family. —
estate. — The person to whom letters testamentary
The widow and minor or incapacitated children
or of administration are granted after the revocation
of a deceased person, during the settlement of
of former letters, or the death, resignation, or
the estate, shall receive therefrom, under the
removal of a former executor or administrator, shall
direction of the court, such allowance as are
have the like powers to collect and settle the estate
provided by law.
not administered that the former executor or
administrator had, and may prosecute or defend
actions commenced by or against the former Allowance
executor or administrator, and have execution on This refers to monetary advances which are the
judgments recovered in the name of such former subject to collation and are likewise deductible
executor or administrator. An authority granted by from their share in the estate of the decedent.
the court to the former executor or administrator for
the sale or mortgage of real estate may be renewed WHO are entitled to allowance during the
in favor of such person without further notice or proceedings?
hearing.

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 294

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1. Legitimate Surviving Spouse (Nepumoceno
vs. CA);
2. Children of the decedent.
Note: According to art. 188, NCC, the children need
not be minors or incapacitated to be entitled to
allowance (Santero vs. CFI of Cavite, GR NO.
61700-03, Sept. 24, 1987).
Grandchildren are not entitled to allowance under
Rule 83 (Heirs of Ruiz s CA).
When liabilities exceed the assets of the estate, his
widow and children are not entitled to support
pending liquidation of the intestate estate, on the
ground that such support, having the character of an
advance payment to be deducted from the
respective share of heir during distribution (Wagner
vs. Moore).
RULE 84
General Powers and Duties of Executors and
Administrators
Section 1. Executor or administrator to have
access to partnership books and property. How
right enforced. — The executor or administrator of
the estate of a deceased partner shall at all times
have access to, and may examine and take copies
of, books and papers relating to the partnership
business, and make examine and make invoices of
the property belonging to such partnership; and the
surviving partner or partners, on request, shall
exhibit to him all such books, papers, and property
in their hands or control. On the written application
of such executor or administrator, the court having
jurisdiction of the estate may order any such
surviving partner or partners to freely permit the
exercise of the rights, and to exhibit the books,
papers, and property, as in this section provided,
and may punish any partner failing to do so for
contempt.
Section 2. Executor or administrator to keep
buildings in repair. — An executor or administrator
shall maintain in tenantable repair the houses and
other structures and fences belonging to the estate,
and deliver the same in such repair to the heirs or
devisees when directed so to do by the court.
Section 3. Executor or administrator to retain
whole estate to pay debts, and to administer
estate not willed. — An executor or administrator
shall have the right to the possession and
management of the real as well as the personal
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
estate of the deceased so long as it is necessary
for the payment of the debts and the expenses
of administration.
POWERS OF EXECUTOR OR
ADMINISRATOR:
1. To have access to partnership books
and papers , in case the decedent is a
partner;
2. To examine and make invoices of the
property belonging to the partnership;
3. To make the necessary repairs and to
make improvements thereon when
approved by the court;
4. To possess and manage the estate
when necessary for the payment of
debts or payment of expenses for
administration;
5. To maintain in tenantable repairs
houses and other structures
SOME RESTRICTIONS ON THE POWERS OF
THE EXECUTOR OR ADMINISTRATOR:
1. Cannot acquire by purchase, even at
public or judicial auction, either in
person or mediation of another, the
property under administration;
2. Cannot borrow money without authority
from the court;
3. Cannot speculate with funds under
administration;
4. Cannot lease the property for more than
one year;
5. Cannot continue the business of the
deceased unless authorized by the
court; and
6. Cannot profit in the increase or
decrease in value of the property under
administration.
RULE 85
Accountability and Compensation of
Executors and Administrators
Section 1. Executor or administrator
chargeable with all estate and income. —
Except as otherwise expressly provided in the
following sections, every executor or
administrator is chargeable in his account with
the whole of the estate of the deceased which
has come into his possession, at the value of the
appraisement contained in the inventory; with all
the interest, profit, and income of such estate;
and with the proceeds of so much of the estate
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as is sold by him, at the price at which it was sold.
GR: The executor or administrator is
accountable for the whole estate of the
deceased.
Exception: He is not accountable for properties
which never came into his possession.
Exception to the exception: When through
untruthfulness to the trust or his own inaction,
the executor or administrator failed to recover
part of the estate which came into his
knowledge.
Section 2. Not to profit by increase or lose by
decrease in value. — No executor or administrator
shall profit by the increase, or suffer loss by the
decrease or destruction, without his fault, of any part
of the estate. He must account for the excess when
he sells any part of the estate for more than the
appraisement, and if any is sold for the less than the
appraisement, he is not responsible for the loss, if
the sale has justly made. If he settles any claim
against the estate for less than its nominal value, he
is entitled to charge in his account only the amount
he actually paid on the settlement.
Section 3. When not accountable for debts due
estate. — No executor or administrator shall be
accountable for debts due the deceased which
remain uncollected without his fault.
Section 4. Accountable for income from realty
used by him. — If the executor or administrator
uses or occupies any part of the real estate himself,
he shall account for it as may be agreed upon
between him and the parties interested, or adjusted
by the court with their assent; and if the parties do
not agree upon the sum to be allowed, the same
may be ascertained by the court, whose
determination in this respect shall be final.
Section 5. Accountable if he neglects or delays
to raise or pay money. — When an executor or
administrator neglects or unreasonably delays to
raise money, by collecting the debts or selling the
real or personal estate of the deceased, or neglects
to pay over the money he has in his hands, and the
value of the estate is thereby lessened or
unnecessary cost or interest accrues, or the
persons interested suffer loss, the same shall be
deemed waste and the damage sustained may be
charged and allowed against him in his account,
and he shall be liable therefor on his bond.
Section 6. When allowed money paid as cost. —
The amount paid by an executor or administrator for
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
costs awarded against him shall be allowed in
his administration account, unless it appears
that the action or proceeding in which the costs
are taxed was prosecuted or resisted without
just cause, and not in good faith.
Section 7. What expenses and fees allowed
executor or administrator. Not to charge for
services as attorney. Compensation
provided by will controls unless renounced.
— An executor or administrator shall be allowed
the necessary expenses the care, management,
and settlement of the estate, and for his
services, four pesos per day for the time
actually and necessarily employed, or a
commission upon the value of so much of the
estate as comes into his possession and is
finally disposed of by him in the payment of
debts, expenses, legacies, or distributive shares,
or by delivery to heirs or devisees, of two per
centum of the first five thousand pesos of such
value, one per centum of so much of such value
as exceeds five thousand pesos and does not
exceed thirty thousand pesos, one-half per
centum of so much of such value as exceed one
hundred thousand pesos. But in any special
case, where the estate is large, and the
settlement has been attended with great
difficulty, and has required a high degree of
capacity on the part of the executor or
administrator, a greater sum may be allowed. If
objection to the fees allowed be taken, the
allowance may be re-examined on appeal.
If there are two or more executors or
administrators, the compensation shall be
apportioned among them by the court according
to the services actually rendered by them
respectively.
When the executors or administrator is an
attorney, he shall not charge against the estate
any professional fees for legal services rendered
by him.
When the deceased by will makes some other
provision for the compensation of his executor,
that provision shall be a full satisfaction for his
services unless by a written instrument filed in
the court he renounces all claim to the
compensation provided by the will.
NOTES: An administrator may not recover
attorney’s fees from the estate, his
compensation is fixed by the Rules but such
compensation is in the nature of executor’s or
administrator’s commission, and never as
attorney’s fees.
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PROCEDURE FOR THE COLLECTION OF
ATTORNEY’S FEES:
1. Request the administrator to make payment
and file a action against him, in his personal
capacity and not as administrator, should he
fail to pay;
2. Petition in the testate or intestate
proceeding asking the court, after notice to
all persons interested, allow his claim and
direct the administrator to pay it as an
expense of administration.
Section 8. When executor or administrator to render
account. — Every executor or administrator shall
render an account of his administration within one
(1) year from the time of receiving letters
testamentary or of administration, unless the court
otherwise directs because of extensions of time for
presenting claims against, or paying the debts of,
the estate, or for disposing of the estate; and he
shall render such further accounts as the court may
require until the estate is wholly settled.
NOTE: The fact that the final account had been
approved does not divest the court of jurisdiction to
require supplemental accounting, aside from the
initial accounting. The Rules provide that “he shall
render such further account as the court may
require until the estate is wholly settled”.
Section 9. Examinations on oath with respect to
account — The court may examine the executor or
administrator upon oath with respect to every matter
relating to any account rendered by him, and shall
so examine him as to the correctness of his account
before the same is allowed, except when no
objection is made to the allowance of the account
and its correctness is satisfactorily established by
competent proof. The heirs, legatees, distributees,
and creditors of the estate shall have the same
privilege as the executor or administrator of being
examined on oath on any matter relating to an
administration account.
Section 10. Account to be settled on notice. —
Before the account of an executor or administrator
is allowed, notice shall be given to persons
interested of the time and place of examining and
allowing the same; and such notice may be given
personally to such persons interested or by
advertisement in a newspaper or newspapers, or
both, as the court directs.
Section 11. Surety on bond may be party to
accounting. — Upon the settlement of the account
of an executor or administrator, a person liable as
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
surety in respect to such account may, upon
application, be admitted as party to such
accounting.
GR: Execution is not available in settlement
proceedings.
Exceptions:
1. Satisfaction of contributive share -
Sec.6, Rule88;
2. Satisfaction of expenses of partition -
Sec. 3, Rule 90;
3. Sec. 13, rule 142 (Ucat).
RULE 86
Claims Against Estate
Notes: prior recourse to Barangay conciliation is
not required in filing claims against the estate.
Estate is not a natural person. It is just an
extension of personality of the deceased for the
purpose of settling his properties.
Rule 86 covers MONEY CLAIMS arising from
contracts, express or implied.
CLAIM
It refers to any debt or pecuniary demand
against the decedent’s estate.
Section 1. Notice to creditors to be issued by
court. — Immediately after granting letters
testamentary or of administration, the court shall
issue a notice requiring all persons having
money claims against the decedent to file
them in the office of the clerk of said court.
PURPOSE: For the speedy settlement of the
affairs of the deceased person and early
delivery of the property into the hands of the
persons entitled to it.
Section 2. Time within which claims shall be
filed. — In the notice provided in the preceding
section, the court shall state the time for the
filing of claims against the estate, which shall not
be more than twelve (12) nor less than six (6)
months after the date of the first publication of
the notice. However, at any time before an order
of distribution is entered, on application of a
creditor who has failed to file his claim within the
previously limited, the court may, for cause
shown and on such terms as are equitable,
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allow such claim to be filed within a time not
exceeding one (1) month.
Bar Exam Question 2012
24. The statute of "non-claims" requires that:
a. claims against the estate be published by
the creditors.
b. money claims be filed with the clerk of
court within the time prescribed by the
rules.
c. claims of an executor or administrator
against the estate be filed with the special
administrator.
d. within two (2) years after settlement and
distribution of the estate, an heir unduly
deprived of participation in the estate may
compel the re-settlement of the estate.
SUGGESTED ANSWER:
(b), After the Court has granted letters
testamentary or administration, it shall
immediately issue a notice requiring all
persons having money claims against the
decedent to file them in the office of the
clerk of court. (Rule 86, Sec.1, Rules of
Court). The Notice shall state the time for
the filing of claims against the estate,
which shall not be more than twelve (12)
nor less than six (6) months after the date
of the first publication of the notice. (Rule
86, Sec.2, Rules of Court).
STATUTE OF NON-CLAIMS
It is the period fixed by the Rules for the filing of
claims against the estate.
GR: Claims not filed within the period provided by
the notice, are BARRED forever.
Exception: Belated Claims—claims not filed within
the original period fixed by the court. On application
of any creditor who has failed to file his claim within
the time previously limited, at ANY TIME before as
ORDER OF DISTRIBUTION is entered, the court
MAY, for cause shown and such terms as are
equitable, allow such claim to be filed within a time
NOT exceeding 1 month from order allowing the
filing of belated claims.
Statute of Non-claims SUPERSEDES the Statute of
Limitations insofar as the debts of the deceased
person are concerned because if a creditor fails to
file his claim within the time fixed by the court, then
the claim is barred forever. However, BOTH Statute
of Non-claims and Statute of Limitations must
CONCUR in order for the creditor to collect.
NOTE: However, a claim barred by the Statute of
Non-claims may be filed as a COUNTERCLAIM in
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
any suit that the executor or administrator may
bring against such creditor.
Claims arising AFTER the death of the
decedent cannot be presented except for:
1. Funeral expenses; and
2. Expenses of the last sickness of the
decedent.
Claims for taxes (inheritance and estate) due
and assessed after the death of the decedent
need not be presented in a form of a claim.
The court, in the exercise of administrative
supervision over the executor or administrator,
may direct the latter to pay such taxes. And the
heirs, even after the distribution, are liable for
such taxes.
Section 3. Publication of notice to creditors.
— Every executor or administrator shall,
immediately after the notice to creditors is
issued, cause the same to be published three
(3) weeks successively in a newspaper of
general circulation in the province, and to be
posted for the same period in four public
places in the province and in two public
places in the municipality where the decedent
last resided.
Section 4. Filing of copy of printed notice. —
Within ten (10) days after the notice has been
published and posted in accordance with the
preceding section, the executor or administrator
shall file or cause to be filed in the court a
printed copy of the notice accompanied with an
affidavit setting forth the dates of the first and
last publication thereof and the name of the
newspaper in which the same is printed.
Section 5. Claims which must be filed under
the notice. If not filed, barred; exceptions. —
All claims for money against the decent, arising
from contract, express or implied, whether the
same be due, not due, or contingent, all claims
for funeral expenses and expense for the last
sickness of the decedent, and judgment for
money against the decent, must be filed within
the time limited in the notice; otherwise they are
barred forever, except that they may be set forth
as counterclaims in any action that the executor
or administrator may bring against the claimants.
Where an executor or administrator commences
an action, or prosecutes an action already
commenced by the deceased in his lifetime, the
debtor may set forth by answer the claims he
has against the decedent, instead of presenting
them independently to the court as herein
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provided, and mutual claims may be set off against
each other in such action; and if final judgment is
rendered in favor of the defendant, the amount so
determined shall be considered the true balance
against the estate, as though the claim had been
presented directly before the court in the
administration proceedings. Claims not yet due, or
contingent, may be approved at their present value.
Note: Claims referred to in this section refer to
claims fro the recovery of money and which are not
secured by a lien against the property of the estate
(Olave vs. Carlos, 208 Phil. 678).
ACTIONS WHICH MUST BE FILED WITHIN THE
STATUTE OF NON-CLAIMS (actions which do
not Survive):
1. Money claims, debts incurred by the
deceased during his lifetime arising from
contract:
a) Express or implied;
b) Due or not due;
c) Absolute or contingent.
2. Claims for funeral expenses;
3. Claims for the last illness of the decedent;
4. Judgment for money against the decedent.
Absolute Claim
It is such a claim as, if contested between living
persons, would be proper subject of immediate legal
action and would supply a basis of a judgment for a
sum certain
Contingent Claim
It is a conditional claim that is subject to the
happening of a future uncertain event.
Claims no yet due or contingent may be approved at
their present value.
A claim that is extinguished by death should be
distinguished from an action which does not survive.
A claim is extinguished by reason of death if the
action is personal to either parties such as in case
of legal separation, annulment or declaration of
nullity of marriage.
Section 6. Solidary obligation of decedent. —
Where the obligation of the decedent is solidary with
another debtor, the claim shall be filed against the
decedent as if he were the only debtor, without
prejudice to the right of the estate to recover
contribution from the debtor. In a joint obligation of
the decedent, the claim shall be confined to the
portion belonging to him.
See the case of Jaucian vs. Quero, 38 Phil. 7071).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Note, however, that under the law, a creditor
has the right to choose who among the
solidary debtors he would ask for payment.
Art. 1216, NCC. The creditor may
proceed against any one of the solidary
debtors or some or all of them
simultaneously. The demand made against
one of them shall not be an obstacle to those
which may subsequently be directed against
the others, so long as the debt has not been
fully collected.
Section 7. Mortgage debt due from estate. —
A creditor holding a claim against the deceased
secured by mortgage or other collateral security,
may abandon the security and prosecute his
claim in the manner provided in this rule, and
share in the general distribution of the assets of
the estate; or he may foreclose his mortgage or
realize upon his security, by action in court,
making the executor or administrator a party
defendant, and if there is a judgment for a
deficiency, after the sale of the mortgaged
premises, or the property pledged, in the
foreclosure or other proceeding to realize upon
the security, he may claim his deficiency
judgment in the manner provided in the
preceding section or he may rely upon his
mortgage or other security alone, and
foreclosure the same at any time within the
period of the statute of limitations, and in that
event he shall not be admitted as a creditor, and
shall receive no share in the distribution of the
other assets of estate; but nothing herein
contained shall prohibit the executor or
administrator from redeeming the property
mortgaged or pledged, by paying the debt for
which it is held as security, under the direction of
the court, if the court shall adjudge it to be for
the best interest of the estate that such
redemption shall be made.
ALTERNATIVE REMEDIES OF A CREDITOR
HAVING A CLAIM SECURED BY A
MORTGAGE OR OTHER COLLATERAL
SECURITY:
1. ABANDON the security and prosecute
his claim against the estate and share in
the general distribution of assets of the
estate;
2. FORECLOSE his mortgage or realize
upon his security by action in court
making the executor or administrator a
party defendant and if there is a
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judgment for deficiency, he may file
(contingent) a claim against the estate
within the statute of non-claims;
3. RELY SOLELY ON HIS MORTGAGE and
foreclose the same at any time within the
statute of limitations but he cannot be
admitted as creditor and shall not receive in
the distribution of the other assets of the
estate.
This remedies are alternative, the availment of one
bars the availment of other remedies.
Important notes:
Q: Will death of the mortgagor revoked the
stipulation allowing the mortgagee to extra-judicially
foreclose the mortgage?
A: NO. special power to foreclose is not revoked
because it is an agency coupled with interest. It is
an agency entered for the fulfillment of a previous
binding contract.
A person dealing with an administrator or executor
cannot raise the defense of being a purchaser of
good faith (and of value). There is a conclusive
presumption of Knowledge of the limitations of the
powers of the executor/administrator.
Section 8. Claim of executor or administrator
against an estate. — If the executor or
administrator has a claim against the estate he
represents, he shall give notice thereof, in writing, to
the court, and the court shall appoint a special
administrator, who shall, in the adjustment of such
claim, have the same power and be subject to the
same liability as the general administrator or
executor in the settlement of other claims. The court
may order the executor or administrator to pay to
the special administrator necessary funds to defend
such claim.
Bar Exam Question 2012
76. A special administrator may be appointed
by a court when:
a. the executor cannot post a bond.
b. the executor fails to render an account.
c. regular administrator has a claim against
estate he represents.
d. a Motion for Reconsideration is filed with
respect to a decision disallowing probate of a
will.
SUGGESTED ANSWER: (c), If the executor or
administrator has a claim against estate he
represents, he shall give notice thereof, in
writing, to the court, and the court shall
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
appoint a special administrator (Rule 86,
Sec. 8, Rules of Court).
Section 9. How to file a claim. Contents
thereof. Notice to executor or administrator.
— A claim may be filed by delivering the same
with the necessary vouchers to the clerk of court
and by serving a copy thereof on the executor or
administrator. If the claim be founded on a bond,
bill, note, or any other instrument, the original
need not be filed, but a copy thereof with all
endorsements shall be attached to the claim and
filed therewith. On demand, however, of the
executor or administrator, or by order of the
court or judge, the original shall be exhibited,
unless it be lost or destroyed, in which case the
claimant must accompany his claim with affidavit
or affidavits containing a copy or particular
description of the instrument and stating its loss
or destruction. When the claim is due, it must be
supported by affidavit stating the amount justly
due, that no payments have been made thereon
which are not credited, and that there are no
offsets to the same, to the knowledge of the
affiant. If the claim is not due, or is contingent,
when filed, it must also be supported by
affidavits stating the particulars thereof. When
the affidavit is made by a person other than the
claimant, he must set forth therein the reason
why it is not made by the claimant. The claim
once filed shall be attached to the record of the
case in which the letters testamentary or of
administration were issued, although the court,
in its discretion, and as a matter of convenience,
may order all the claims to be collected in a
separate folder.
HOW TO FILE A CLAIM
1. Deliver the claim with the necessary
vouchers to the clerk of court;
2. Serve a copy thereof to the executor or
administrator;
3. If the claim is due, it must be supported
by affidavit stating the amount due and
the fact that there has been no offsets;
and
4. If the claim is contingent, it must be
accompanied by an affidavit stating the
particulars thereof.
Section 10. Answer of executor or
administrator. Offsets —Within fifteen (15)
days after service of a copy of the claim on the
executor or administrator, he shall file his
answer admitting or denying the claim
specifically, and setting forth the admission or
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denial. If he has no knowledge sufficient to enable
him to admit or deny specifically, he shall state such
want of knowledge. The executor or administrator in
his answer shall allege in offset any claim which the
decedent before death had against the claimant,
and his failure to do so shall bar the claim forever. A
copy of the answer shall be served by the executor
or administrator on the claimant. The court in its
discretion may extend the time for filing such
answer.
Intestate Proceedings (2002)
X filed a claim in the intestate proceedings of D. D’s
administrator denied liability and filed a counterclaim
against X. X’s claim was disallowed.
(1) Does the probate court still have jurisdiction to
allow the claim of D’s administrator by way of offset?
Why? (2%)
(2) Suppose D’s administrator did not allege any claim
against X by way of offset, can D’s administrator
prosecute the claim in an independent proceeding/ why/
(3%)
SUGGESTED ANSWER:
(1) No, because since the claim of X was disallowed,
there is no amount against which to offset the claim of
D’s administrator.
(2) Yes, D’s administrator can prosecute the claim in an
independent proceeding since the claim of X was
disallowed. If X had a valid claim and D’s administrator
did not allege any claim against X by way of offset, his
failure to do so would bar his claim forever.
(Rule 86, sec.10).
Section 11. Disposition of admitted claim. — Any
claim admitted entirely by the executor or
administrator shall immediately be submitted by the
clerk to the court who may approve the same
without hearing; but the court, in its discretion,
before approving the claim, may order that known
heirs, legatees, or devisees be notified and heard. If
upon hearing, an heir, legatees, or devisee opposes
the claim, the court may, in its discretion, allow him
fifteen (15) days to file an answer to the claim in the
manner prescribed in the preceding section.
Section 12. Trial of contested claim. — Upon the
filing of an answer to a claim, or upon the expiration
of the time for such filing, the clerk of court shall set
the claim for trial with notice to both parties. The
court may refer the claim to a commissioner.
Section 13. Judgment appealable. — The
judgment of the court approving or disapproving a
claim, shall be filed with the record of the
administration proceedings with notice to both
parties, and is appealable as in ordinary cases. A
judgment against the executor or administrator shall
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
be that he pay, in due course of administration,
the amount ascertained to be due, and it shall
not create any lien upon the property of the
estate, or give to the judgment creditor any
priority of payment.
Note: The Mode of Appeal is Record on
Appeal and must be filed within 30 days
from notice of judgment.
Section 14. Costs. — When the executor or
administrator, in his answer, admits and offers to
pay part of a claim, and the claimant refuses to
accept the amount offered in satisfaction of his
claim, if he fails to obtain a more favorable
judgment, he cannot recover costs, but must pay
to the executor or administrator costs from the
time of the offer. Where an action commenced
against the deceased for money has been
discontinued and the claim embraced therein
presented as in this rule provided, the prevailing
party shall be allowed the costs of his action up
to the time of its discontinuance.
RULE 87
Actions By and Against Executors and
Administrators
NOTE: Executor/administrator may sue and
be sued without prior leave of court.
Section 1. Actions which may and which may
not be brought against executor or
administrator. — No action upon a claim for the
recovery of money or debt or interest thereon
shall be commenced against the executor or
administrator; but to recover real or personal
property, or an interest therein, from the estate,
or to enforce a lien thereon, and actions to
recover damages for an injury to person or
property, real or personal, may be commenced
against him.
Actions which may be directly commenced
against the executor or administrator
1. Recovery of real or personal property or
any interest therein from the estate;
2. Enforcement of a lien thereon;
3. Action to recover damages for any injury
to person or property, real or personal
(tortuous acts)..
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These are actions that survive the death of the
decedent.
Bar Exam Question 2011
(29) Which of the following claims survive the
death of the defendant and need not be
presented as a claim against the estate? (A)
Contingent money claims arising from
contract. (B) Unenforced money judgment
against the decedent, with death occurring
before levy on execution of the property. (C)
Claims for damages arising from quasi-
delict. (D) Claims for funeral expenses.
Actions; Survives Death of the Defendant (2000)
PJ engaged the services of Atty. ST to represent him in a
civil case filed by OP against him which was docketed as
Civil Case No. 123. A retainership agreement was
executed between PJ and Atty. ST whereby PJ promised
to pay Atty. ST a retainer sum of P24,000.00 a year and
to transfer the ownership of a parcel of land to Atty. ST
after presentation of PJ’s evidence. PJ did not comply
with his undertaking. Atty. ST filed a case against PJ
which was docketed as Civil Case No. 456. During the
trial of Civil Case No. 456, PJ died. 1 Is the death of PJ a
valid ground to dismiss the money claim of Atty. ST in
Civil Case No. 456? Explain. (2%)
2 Will your answer be the same with respect to
the real property being claimed by Atty. ST in Civil
Case No. 456? Explain (2%)
SUGGESTED ANSWER:
1 No. Under Sec. 20, Rule 3, 1997 Rules of Civil
Procedure, when the action is for recovery of money
arising from contract, express or implied, and the
defendant dies before entry of final judgment in the
court in which the action is pending at the time of such
death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A
favorable judgment obtained by the plaintiff shall be
enforced in the manner especially provided in the Rules
for prosecuting claims against the estate of a deceased
person.
2 Yes, my answer is the same. An action to
recover real property in any event survives the death of
the defendant. (Sec. 1, Rule 87, Rules of Court).
However, a favorable judgment may be enforced
in accordance with Sec. 7(b) Rule 39 (1997 Rules
of Civil Procedure) against the executor or
administrator or successor in interest of the
deceased.
The estate must be impleaded. The executor or
administrator is just a representative party.
An action for the revival of money judgment may be
filed against the administrator to preempt the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
prescription of judgment (Romualdez vs. Tiglao,
105 SCRA 762).
Section 2. Executor or administrator may
bring or defend actions which survive. — For
the recovery or protection of the property or
rights of the deceased, an executor or
administrator may bring or defend, in the right of
deceased, actions for causes which survive.
Section 3. Heir may not sue until share
assigned — When an executor or administrator
is appointed and assumes the trust, no action
to recover the title or possession of lands or for
damages done to such lands shall be
maintained against him by an heir or devisee
until there is an order of the court assigning such
lands to such heir or devisee or until the time
allowed for paying debts has expired.
Section 4. Executor or administrator may
compound with debtor. — Within the approval
of the court, an executor or administrator may
compound with the debtor of the deceased for a
debt due, and may give a discharge of such debt
on receiving a just dividend of the estate of the
debtor.
Section 5. Mortgage due estate may be
foreclosed. — A mortgage belonging to the
estate of a deceased person, as mortgagee or
assignee of the right or a mortgage, may be
foreclosed by the executor or administrator.
Section 6. Proceedings when property
concealed, embezzled, or fraudulently
conveyed. — If an executor or administrator,
heir, legatee, creditor or other individual
interested in the estate of the deceased,
complains to the court having jurisdiction of the
estate that a person is suspected of having
concealed, embezzled, or conveyed away any of
the money, goods, or chattels of the deceased,
or that such person has in his possession or has
knowledge of any deed, conveyance, bond,
contract, or other writing which contains
evidence of or tends or discloses the right, title,
interest, or claim of the deceased, the court may
cite such suspected person to appear before it
and may examine him on oath on the matter of
such complaint; and if the person so cited
refuses to appear, or to answer on such
examination or such interrogatories as are put to
him, the court may punish him for contempt, and
may commit him to prison until he submits to the
order of the court. The interrogatories put any
such person, and his answers thereto, shall be
in writing and shall be filed in the clerk's office.
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PURPOSE: To elicit information or secure evidence
from those persons suspected as having possessed
or having knowledge of properties belonging to the
deceased, or having concealed, embezzled, or
having conveyed away any properties of the
deceased.
GR: The probate court has no authority to decide
whether or not the properties belong to the estate or
to the person examined since the probate court is a
court of limited jurisdiction.
Exceptions:
1. Provisional determination of ownership for
the purpose of including it in the inventory;
2. When the parties are all heirs and they
voluntarily submitted the issue to the
probate court and the determination will not
prejudice 3rd persons (Bernardo vs. CA, GR
NO. 82483, Sept. 26, 1990).
Section 7. Person entrusted with estate
compelled to render account. — The court, on
complaint of an executor or administrator, may cite
a person entrusted by an executor or administrator
with any part of the estate of the deceased to
appear before it, and may require such person to
render a full account, on oath, of the money, goods,
chattels, bonds, account, or other papers belonging
to such estate as came to his possession in trust for
such executor or administrator, and of his
proceedings thereon; and if the person so cited
refuses to appear to render such account, the court
may punish him for contempt as having disobeyed a
lawful order of the court.
Section 8. Embezzlement before letters issued —
If a person, before the granting of letters
testamentary or of administration on the estate of
the deceased, embezzles or alienates any of the
money, goods, chattels, or effects of such
deceased, such person shall be liable to an action in
favor of the executor or administrator of the estate
for double the value of the property sold,
embezzled, or alienated, to be recovered for the
benefit of such estate.
Section 9. Property fraudulently conveyed by
deceased may be recovered. When executor or
administrator must bring action. — When there is
a deficiency of assets in the hands of an executor or
administrator for the payment of debts and
expenses of administration, and the deceased in his
lifetime had conveyed real or personal property, or a
right or interest therein, or any debt or credit, with
intent to defraud his creditors or to avoid any right,
debt, or duty; or had so conveyed such property,
right, interest, debt or credit that by law the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
conveyance would be void as against his
creditors, and the subject of the attempted
conveyance would be liable to attachment by
any of them in his lifetime, the executor or
administrator may commence and prosecute to
final judgment an action for the recovery of such
property, right, interest, debt, or credit for the
benefit of the creditors; but he shall not be
bound to commence the action unless on
application of the creditors of the deceased,
not unless the creditors making the application
pay such part of the costs and expenses, or give
security therefor to the executor or administrator,
as the court deems equitable.
REQUISITES:
1. There is deficiency of assets for
payment of debts, etc;
2. Deceased fraudulently conveyed his
property in his lifetime;
3. The subject property is liable for
attachment (not exempt from
execution);
4. Executor/administrator has no desire to
file an action;
5. There is leave of court;
6. A bond is filed by the creditors;
7. Action is in the name of the executor or
administrator.
NOTE: Accion Pauliana.
Section 10. When creditor may bring action.
Lien for costs. — When there is such a
deficiency of assets, and the deceased in his
lifetime had made or attempted such a
conveyance, as is stated in the last preceding
section, and the executor or administrator has
not commenced the action therein provided for,
any creditor of the estate may, with the
permission of the court, commence and
prosecute to final judgment, in the name of the
executor or administrator, a like action for the
recovery of the subject of the conveyance or
attempted conveyance for the benefit of the
creditors. But the action shall not be
commenced until the creditor has filed in a court
a bond executed to the executor or
administrator, in an amount approved by the
judge, conditioned to indemnify the executor or
administrator against the costs and expenses
incurred by reason of such action. Such creditor
shall have a lien upon any judgment recovered
by him in the action for such costs and other
expenses incurred therein as the court deems
equitable. Where the conveyance or attempted
conveyance had been made by the deceased in
his lifetime in favor of the executor or
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administrator, the action which a creditor may bring
shall be in the name of all the creditors, and
permission of the court and filing of bond as above
prescribed, are not necessary.
RULE 88
Payment of the Debts of the Estate
Section 1. Debts paid in full if estate sufficient. —
If, after hearing all the money claims against the
estate, and after ascertaining the amount of such
claims, it appears that there are sufficient assets to
pay the debts, the executor or administrator pay the
same within the time limited for that purpose.
NOTE: A writ of execution is not the proper
procedure to satisfy debts. Court must order the
sale or mortgage of the properties of the
decedent, the proceeds of which will satisfy the
debts and expenses.
REASON: (a) approval of a claim does not create
a lien over a property of the estate; (b) special
procedure is for the court to order the sale or
mortgage of properties to satisfy the claims.
Section 2. Part of estate from which debt paid
when provision made by will. — If the testator
makes provision by his will, or designates the estate
to be appropriated for the payment of his debts, the
expenses of administration, or the family expenses,
they shall be paid according to the provisions of the
will; but if the provision made by the will or the
estate appropriated, is not sufficient for that
purpose, such part of the estate of the testator, real
or personal, as is not disposed of by will, if any shall
be appropriated for that purpose.
Section 3. Personalty first chargeable for debts,
then realty. — The personal estate of the deceased
not disposed of by will shall be first chargeable with
the payment of debts and expenses; and if said
personal estate is not sufficient for that purpose, or
its sale would redound to the detriment of the
participants for the estate, the whole of the real
estate not dispose of by will, or so much thereof as
is necessary, may be sold, mortgaged, or otherwise
encumbered for that purpose by the executor or
administrator, after obtaining the authority of the
court therefor. Any deficiency shall be met by
contributions in accordance with the provisions of
section 6 of this rule.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 4. Estate to be retained to meet
contingent claims. — If the court is satisfied
that a contingent claim duly filed is valid, it may
order the executor or administrator to retain in
his hands sufficient estate to pay such
contingent claim when the same becomes
absolute, or if the estate is insolvent, sufficient to
pay a portion equal to the dividend of the other
creditors.
REQUISITES:
1. Contingent claim is duly filed;
2. The claim is found to be valid;
3. The claim has become absolute.
Section 5. How contingent claim becoming
absolute in two years allowed and paid.
Action against distributees later. — If such
contingent claim becomes absolute and is
presented to the court, or to the executor or
administrator, within two (2) years from the time
limited for other creditors to present their claims,
it may be allowed by the court if not disputed by
the executor or administrator and, if disputed, it
may be proved and allowed or disallowed by the
court as the facts may warrant. If the contingent
claim is allowed, the creditor shall receive
payment to the same extent as the other
creditors if the estate retained by the executor or
administrator is sufficient. But if the claim is not
so presented, after having become absolute,
within said two (2) years, and allowed, the
assets retained in the hands of the executor or
administrator, not exhausted in the payment of
claims, shall be distributed by the order of the
court to the persons entitled to the same; but the
assets so distributed may still be applied to the
payment of the claim when established, and the
creditor may maintain an action against the
distributees to recover the debt, and such
distributees and their estates shall be liable for
the debt in proportion to the estate they have
respectively received from the property of the
deceased.
Note: It has been held that the only instance
wherein a creditor can file an action against a
distributee of the debtor’s assets is under Rule
88, sec. 5. The contingent claim must have
been established first and allowed in the
probate court before the creditors can file an
action directly against the distributees (De
Bautista vs. De Guzman, 125 SCRA 682).
Section 6. Court to fix contributive shares
where devisees, legatees, or heirs have been
possession. — Where devisees, legatees, or
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heirs have entered into possession of portions of the
estate before the debts and expenses have been
settled and paid, and have become liable to
contribute for the payment of such debts and
expenses, the court having jurisdiction of the estate
may, by order for that purpose, after hearing, settle
the amount of their several liabilities, and order how
much and in what manner each person shall
contribute, and may issue execution as
circumstances require.
Section 7. Order of payment if estate insolvent —
If the assets which can be appropriated for the
payment of debts are not sufficient for that purpose,
the executor or administrator shall pay the debts
against the estate, observing the provisions of
Articles 1059 and 2239 to 2251 of the Civil Code.
Section 8. Dividends to be paid in proportion to
claims. — If there are no assets sufficient to pay
the credits of any once class of creditors after
paying the credits entitled to preference over it,
each creditor within such class shall be paid a
dividend in proportion to his claim. No creditor of
any one class shall receive any payment until those
of the preceding class are paid.
Section 9. Estate of insolvent non-resident, how
disposed of. — In case administration is taken in
the Philippine of the estate of a person who was at
the time of his death an inhabitant of another
country, and who died insolvent, hi estate found in
the Philippines shall, as far as practicable, be so
disposed of that his creditors here and elsewhere
may receive each an equal share, in proportion to
their respective credits.
Section 10. When and how claim proved outside
the Philippines against insolvent resident's
estate paid. — If it appears to the court having
jurisdiction that claims have been duly proven in
another country against the estate of an insolvent
who was at the time of his death an inhabitant of the
Philippines, and that the executor or administrator in
the Philippines had knowledge of the presentation of
such claims in such country and an opportunity to
contest their allowance, the court shall receive a
certified list of such claims, when perfected in such
country, and add the same to the list of claims
proved against the deceased person in the
Philippines so that a just distribution of the whole
estate may be made equally among all its creditors
according to their respective claims; but the benefit
of this and the preceding sections shall not be
extended to the creditors in another country if the
property of such deceased person there found is not
equally apportioned to the creditors residing in the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Philippines and the other creditor, according to
their respective claims.
Note: The underlined portion is the principle of
Reciprocity.
Section 11. Order for payment of debts. —
Before the expiration of the time limited for the
payment of the debts, the court shall order the
payment thereof, and the distribution of the
assets received by the executor or administrator
for that purpose among the creditors, as the
circumstances of the estate require and in
accordance with the provisions of this rule.
Section 12. Orders relating to payment of debts
where appeal is taken. — If an appeal has been
taken from a decision of the court concerning a
claim, the court may suspend the order for the
payment of the debts or may order the
distributions among the creditors whose claims
are definitely allowed, leaving in the hands of the
executor or administrator sufficient assets to pay
the claim disputed and appealed. When a
disputed claim is finally settled the court having
jurisdiction of the estate shall order the same to
be paid out of the assets retained to the same
extent and in the same proportion with the
claims of other creditors.
Section 13. When subsequent distribution of
assets ordered. — If the whole of the debts are
not paid on the first distribution, and if the whole
assets are not distributed, or other assets
afterwards come to the hands of the executor or
administrator, the court may from time to time
make further orders for the distributions of
assets.
Section 14. Creditors to be paid in
accordance with terms of order. — When an
order is made for the distribution of assets
among the creditors, the executor or
administratior shall, as soon as the time of
payment arrives, pay the creditors the amounts
of their claims, or the dividend thereon, in
accordance with the terms of such order.
Section 15. Time for paying debts and
legacies fixed, or extended after notice,
within what periods. — On granting letters
testamentary or administration the court shall
allow to the executor or administrator a time for
disposing of the estate and paying the debts and
legacies of the deceased, which shall not, in the
first instance, exceed one (1) year; but the court
may, on application of the executor or
administrator and after hearing on such notice of
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the time and place therefor given to all persons
interested as it shall direct, extend the time as the
circumstances of the estate require not exceeding
six (6) months for a single extension so that the
whole period allowed to the original executor or
administrator shall not exceed two (2) years.
Section 16. Successor of dead executor or
administrator may have time extended on notice
within certain period. — When an executor or
administrator dies, and a new administrator of the
same estate is appointed, the court may extend the
time allowed for the payment of the debts or
legacies beyond the time allowed to the original
executor or administrator, not exceeding six (6)
months at a time and not exceeding six (6) months
beyond the time which the court might have allowed
to such original executor or administrator; and
notice shall be given of the time and place for
hearing such application, as required in the last
preceding section.
RULE 89
Sales, Mortgages, and Other Encumbrances of
Property of Decedent
Section 1. Order of sale of personalty. — Upon
the application of the executor or administrator, and
on written notice to the heirs and other persons
interested, the court may order the whole or a part
of the personal estate to be sold, if it appears
necessary for the purpose of paying debts,
expenses of administration, or legacies, or for the
preservation of the property.
Section 2. When court may authorize sale,
mortgage, or other encumbrance of realty to pay
debts and legacies through personalty not
exhausted. — When the personal estate of the
deceased is not sufficient to pay the debts,
expenses of administration, and legacies, or where
the sale of such personal estate may injure the
business or other interests of those interested in the
estate, and where a testator has not otherwise
made sufficient provision for the payment of such
debts, expenses, and legacies, the court, on the
application of the executor or administrator and on
written notice of the heirs, devisees, and legatees
residing in the Philippines, may authorize the
executor or administrator to sell, mortgage, or
otherwise encumber so much as may be necessary
of the real estate, in lieu of personal estate, for the
purpose of paying such debts, expenses, and
legacies, if it clearly appears that such sale,
mortgage, or encumbrance would be beneficial to
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the persons interested; and if a part cannot be
sold, mortgaged, or otherwise encumbered
without injury to those interested in the
remainder, the authority may be for the sale,
mortgage, or other encumbrance of the whole of
such real estate, or so much thereof as is
necessary or beneficial under the
circumstances.
Section 2 applies if:
1. Personal estate is not sufficient to pay
debts;
2. Sale of personal estate is injurious to
persons interested in the estate;
3. Testator does not made provision for
payment of debts;
4. If deceased was , under contract,
binding in law to deed real property to a
beneficiary during his lifetime (SEC. 8);
5. If deceased during his lifetime held real
property in trust for another (sec. 9).
REQUISITES:
1. Application of the
executor/administrator;
2. Written notice to persons interested;
3. Hearing.
Assets in the hands of the executor or
administrator will not be reduced to prevent a
creditor from receiving his full debt or diminish
his dividends.
Without notice and hearing, the sale, mortgage
or encumbrance is VOID. Notice is mandatory.
REASON: The reason behind the requirement
that the heirs are the presumptive owner. Since
they succeed to all the rights and obligations of
the deceased from the moment of death, they
are the persons directly affected by the sale,
mortgage any encumbrance and therefore
cannot be deprived of the property, except in the
manner provided by law (Maneclang vs. Baun,
208 SCRA 179).
Section 3. Persons interested may prevent
such sale, etc., by giving bond. — No such
authority to sell, mortgage, or otherwise
encumber real or personal estate shall be
granted if any person interested in the estate
gives a bond, in a sum to be fixed by the court,
conditioned to pay the debts, expenses of
administration, and legacies within such time as
the court directs; and such bond shall be for the
security of the creditors, as well as of the
executor or administrator, and may be
prosecuted for the benefit of either.
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Section 4. When court may authorize sale of
estate as beneficial to interested persons.
Disposal of proceeds. — When it appears that the
sale of the whole or a part of the real or personal
estate, will be beneficial to the heirs, devisees,
legatees, and other interested persons, the court
may, upon application of the executor or
administrator and on written notice to the heirs,
devisees, and legatees who are interested in the
estate to be sold, authorize the executor or
administrator to sell the whole or a part of said
estate, although not necessary to pay debts,
legacies, or expenses of administration; but such
authority shall not be granted if inconsistent with the
provisions of a will. In case of such sale, the
proceeds shall be assigned to the persons entitled
to the estate in the proper proportions.
Section 5. When court may authorize sale,
mortgage, or other encumbrance of estate to
pay debts and legacies in other countries. —
When the sale of personal estate, or the sale,
mortgage, or other encumbrance of real estate is
not necessary to pay the debts, expenses of
administration, or legacies in the Philippines, but it
appears from records and proceedings of a probate
court in another country that the estate of the
deceased in such other country is not sufficient to
pay the debts, expenses of administration, and
legacies there, the court here may authorize the
executor or administrator to sell the personal estate
or to sell, mortgage, or otherwise encumber the real
estate for the payment of debts or legacies in the
other country, in same manner as for the payment
of debts or legacies in the Philippines.
Section 6. When court may authorize sale,
mortgage, or other encumbrance of realty
acquired on execution or foreclosure. — The
court may authorize an executor or administrator to
sell mortgage, or otherwise encumber real estate
acquired by him on execution or foreclosure sale,
under the same circumstances and under the same
regulations as prescribed in this rule for the sale,
mortgage, or other encumbrance of other real
estate.
Section 7. Regulation for granting authority to
sell, mortgage, or otherwise encumber estate. —
The court having jurisdiction of the estate of the
deceased may authorize the executor or
administrator to sell personal estate, or to sell,
mortgage, or otherwise encumber real estate, in
cases provided by these rules and when it appears
necessary or beneficial under the following
regulations.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(a) The executor or administrator shall
file a written petition setting forth the
debts due from the deceased, the
expenses of administration, the
legacies, the value of the personal
estate, the situation of the estate to be
sold, mortgaged, or otherwise
encumbered, and such other facts as
show that the sale, mortgage, or other
encumbrance is necessary or beneficial.
(b) The court shall thereupon fix a time
and place for hearing such petition, and
cause notice stating the nature of the
petition, the reasons for the same, and
the time and place of hearing, to be
given personally or by mail to the
persons interested, and may cause such
further notice to be given, by publication
or otherwise, as it shall deem proper;
(c) If the court requires it, the executor
or administrator shall give an additional
bond, in such sum as the court directs,
conditioned that such executor or
administrator will account for the
proceeds of the sale, mortgage, or other
encumbrance;
(d) If the requirements in the preceding
subdivisions of this section have been
complied with, the court, by order stating
such compliance, may authorize the
executor or administrator to sell,
mortgage, or otherwise encumber, in
proper cases, such part of the estate as
is deemed necessary, and in case of
sale the court may authorize it to be
public or private, as would be most
beneficial to all parties concerned. The
executor or administrator shall be
furnished with a certified copy of such
order;
(e) If the estate is to be sold at auction,
the mode of giving notice of the time and
place of the sale shall be governed by
the provisions concerning notice of
execution sale;
(f) There shall be recorded in the
registry of deeds of the province in
which the real estate thus sold,
mortgage, or otherwise encumbered is
situated, a certified copy of the order of
the court, together with the deed of the
executor or administrator for such real
estate, which shall be as valid as if the
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deed had been executed by the deceased
in his lifetime.
Application for authority to sell, mortgage, or
encumber may be denied if:
1. The disposition is not for any of the reasons
specified by the Rules;
2. If the persons interested in the estate files a
bond conditioned to pay the debts and
expenses of administration and legacies.
Section 8. When court may authorize conveyance
of realty which deceased contracted to convey.
Notice. Effect of deed. — Where the deceased
was in his lifetime under contract, binding in law, to
deed real property, or an interest therein, the court
having jurisdiction of the estate may, on application
for that purpose, authorize the executor or
administrator to convey such property according to
such contract, or with such modifications as are
agreed upon by the parties and approved by the
court; and if the contract is to convey real property
to the executor or administrator, the clerk of court
shall execute the deed. The deed executed by such
executor, administrator, or clerk of court shall be as
effectual to convey the property as if executed by
the deceased in his lifetime; but no such
conveyance shall be authorized until notice of the
application for that purpose has been given
personally or by mail to all persons interested, and
such further notice has been given, by publication
or otherwise, as the court deems proper; nor if the
assets in the hands of the executor or administrator
will thereby be reduced so as to prevent a creditor
from receiving his full debt or diminish his dividend.
Section 9. When court may authorize conveyance
of lands which deceased held in trust. — Where
the deceased in his lifetime held real property in
trust for another person, the court may after notice
given as required in the last preceding section,
authorize the executor or administrator to deed such
property to the person, or his executor or
administrator, for whose use and benefit it was so
held; and the court may order the execution of such
trust, whether created by deed or by law.
RULE 90
Distribution and Partition of the Estate
LIQUIDATION
It means the determination of the assets of the
estate and payment of all debts and expenses.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 1. When order for distribution of
residue made. — When the debts, funeral
charges, and expenses of administration, the
allowance to the widow, and inheritance tax, if
any, chargeable to the estate in accordance with
law, have been paid, the court, on the
application of the executor or administrator, or of
a person interested in the estate, and after
hearing upon notice, shall assign the residue of
the estate to the persons entitled to the same,
naming them and the proportions, or parts, to
which each is entitled, and such persons may
demand and recover their respective shares
from the executor or administrator, or any other
person having the same in his possession. If
there is a controversy before the court as to who
are the lawful heirs of the deceased person or
as the distributive shares to which each person
is entitled under the law, the controversy shall
be heard and decided as in ordinary cases.
No distribution 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.
Intestate Proceedings; Debts of the Estate (2002)
A, B and C, the only heirs in D’s intestate
proceedings, submitted a project of partition to the
partition, two lots were assigned to C, who
immediately entered into the possession of the lots.
Thereafter, C died and proceedings for the
settlement of his estate were filed in the RTC-
Quezon City. D’s administrator then filed a motion
in the probate court (RTC-Manila), praying that one
of the lots assigned to C in the project of partition
be turned over to him to satisfy debts corresponding
to C’s portion. The motion was opposed by the
administrator of C’s estate. How should the
RTCManila resolve the motion of D’s administrator?
Explain. (3%)
SUGGESTED ANSWER:
The motion of D’s administrator should be granted.
The assignment of the two lots to C was premature
because the debts of the estate had not been fully
paid. [Rule 90, sec. 1; Reyes v. Barreto-Datu, 19 SCRA 85
(1967)].
In these proceedings, the court shall:
1. Collate;
2. Determine the heirs;
3. Determine the shares of each heir.
NOTE: A separate action for the declaration of
heirs is not necessary.
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WHEN IS TITLE VESTED:
It is vested upon the finality of the Order of
Distribution.
An order which determines the distributive shares of
the heirs is appealable. If not appealed, it becomes
final.
NOTE: However, that under the law:
Art. 777, NCC. The rights to the succession are
transmitted from the moment of the death of the
decedent.
The probate court loses jurisdiction over the
settlement proceedings only upon the payment of all
debts and expenses of the obligor and delivery of
the entire estate to all the heirs (Timbol vs. Cano, 1
SCRA 1271).
CONDITIONS PRECEDENT for the issuance of
the Order of Distribution:
1. There must be showing that the executor or
administrator or the persons interested
applied for such order;
2. Notice and hearing is complied with.
PROHIBITION AGAINST INTERFERRENCE BY
OTHER COURTS
As long as the order of distribution of the estate has
not been complied with, the probate proceedings
cannot be deemed close and terminated, because
judicial partition is not final and conclusive and does
not prevent the heirs from bringing an action to
obtain his share, provided the prescriptive period
therefore has not elapsed.
The better practice, however, for the heir who has
not received his share is to demand his share
through a proper motion in the same probate or
administrative proceedings, or the reopening the
probate or administrative proceedings if it had been
already closed, and not through an independent
action, which would be tried by another court or
judge which may thus reverse a decision or order of
the probate or intestate court already final and
executed and re-shuffle properties long ago
distributed and disposed of (Timbol vs. Cano,
supra).
Section 2. Questions as to advancement to be
determined. — 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; and the final order of the court thereon
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
shall be binding on the person raising the
questions and on the heir.
Section 3. By whom expenses of partition
paid. — If at the time of distribution the executor
or administrator has retained sufficient effects in
his hands which may lawfully be applied for the
expenses of partition of the properties
distributed, such expenses of partition may be
paid by such executor or administrator when it
appears equitable to the court and not
inconsistent with the intention of the testator;
otherwise, they shall be paid by the parties in
proportion to their respective shares or interest
in the premises, and the apportionment shall be
settled and allowed by the court, and, if any
person interested in the partition does not pay
his portion or share, the court may issue an
execution in the name of the executor or
administrator against the party not paying the
sum assessed.
Section 4. Recording the order of partition of
estate. — 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.
RULE 91
Escheats
CADUCIARY RIGHT
It is the right of the state to claim through
escheat proceedings the properties of a
decedent who is not survived by any heir.
Note, however, that under our jurisdiction, the
state is the last heir of any person:
Art. 1011, NCC. In default of persons
entitled to succeed in accordance with the
provisions of the preceding Sections, the State
shall inherit the whole estate.
Hence, technically, caduciary right is not
applied. The state, as provided by law, itself is
an heir of the deceased.
ESCHEAT
It is a proceeding whereby the real and personal
property of a deceased person in the
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Philippines, who dies without leaving any will or
legal heirs, become the property of the state upon
his death.
3 INSTANCES OF ESCHEATS:
1. When a person died intestate but leaving
properties in the Philippines;
2. Reversion Proceedings—sale in violation of
constitutional provisions;
3. Dormant Accounts for 10 years under the
Unclaimed Balances Act.
WHAT is the basis of the state to receive the
property in escheat: In the order of succession,
the state is the last heir of the decedent.
WHO files: The Solicitor General or his
representative in behalf the Philippines.
WHERE to file: In the RTC of his last residence or
of the location of his estate in the Philippines if he is
a non-resident.
Section 1. When an by whom petition filed. —
When a person dies intestate, seized of real
property in the Philippines, leaving no heir or person
by law entitled to the same, the Solicitor General or
his representative in behalf of the Republic of the
Philippines, may file a petition in the Court of First
Instance of the province where the deceased last
resided or in which he had estate, if he resided out
of the Philippines, setting forth the facts, and
praying that the estate of the deceased be declared
escheated.
Section 2. Order for hearing. — If the petition is
sufficient in form and substance, the court, by an
order reciting the purpose of the petition, shall fix a
date and place for the hearing thereof, which date
shall be not more than six (6) months after the
entry of the order, and shall direct that a copy of the
order be published before the hearing at least once
a week for six (6) successive weeks in some
newspaper of general circulation published in the
province, as the court shall be deem best.
Requisites:
1. Person died intestate;
2. He left real and personal properties in the
Philippines;
3. He left no heir or person entitled to such
properties;
4. Publication of order;
5. There is no sufficient cause to the contrary.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 3. Hearing and judgment. — Upon
satisfactory proof in open court on the date fixed
in the order that such order has been published
as directed and that the person died intestate,
seized of real or personal property in the
Philippines, leaving no heir or person entitled to
the same, and no sufficient cause being shown
to the contrary, the court shall adjudge that the
escheat of the estate of the deceased in the
Philippines, after the payment of just debts and
charges, and shall, pursuant to law, assign the
personal estate to the municipality or city where
he last resided in the Philippines, and the real
estate to the municipalities or cities,
respectively, in which the same is situated. If the
deceased never resided in the Philippines, the
whole estate may be assigned to the respective
municipalities or cities where the same is
located. Such estate shall be for the benefit of
public schools, and public charitable
institutions and centers in said municipalities
or cities.
The court, at the instance of an interested party,
or on its own motion, may order the
establishment of a permanent trust, so that the
only income from the property shall be used.
Section 4. When and by whom claim to estate
filed. — If a devisee, legatee, heir, widow,
widower, or other person entitled to such estate
appears and files a claim thereto with the court
within five (5) years from the date of such
judgment, such person shall have possession
of and title to the same, or if sold, the
municipality or city shall be accountable to him
for the proceeds after deducting reasonable
charges for the care of the estate; but a claim
not made within the said time shall be forever
barred.
Bar Exam Question 2012
74. A person entitled to the estate of a
deceased person escheated in favor of the
State has:
a. 5 years from date of judgment to file a
claim.
b. 2 years from date of judgment to file a
claim.
c. 5 years from date of registration of the
judgment to file a claim.
d. 2 years from date of registration of the
judgment to file a claim.
SUGGESTED ANSWER: (a), A person
entitled to the estate of a deceased
person escheated in favour of the State
has a period of five (5) years from the
date of such judgment within which to
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file a claim thereto with the court. A claim
not made within said time shall be forever
barred. If the claim is meritorious, such
person shall have possession of and title to
the same, or if sold, the municipality or city
shall be accountable to, him for the
proceeds, after deducting reasonable
charges for the care of the estate. (Rule 91,
Sec. 4, Rules of Court).
NOTES:
Art. 1014,NCC. If a person legally entitled to
the estate of the deceased appears and files a
claim thereto with the court within five years
from the date the property was delivered to the
State, such person shall be entitled to the
possession of the same, or if sold the municipality
or city shall be accountable to him for such part
of the proceeds as may not have been lawfully
spent.
Q: Can the court convert escheat proceedings
into ordinary special proceedings or vice-versa?
A: NO. This is not allowed for the 2 actions have
different requirements in acquiring jurisdiction. In
special proceedings, publication is once a week
for 3 weeks while in escheat, once a week for six
weeks.
Escheat Proceedings (2002)
Suppose the property of D was declared escheated on
July 1, 1990 in escheat proceedings brought by the
Solicitor General. Now, X, who claims to be an heir of
D, filed an action to recover the escheated property. Is
the action viable? Why? (2%)
SUGGESTED ANSWER:
No, the action is not viable. The action to recover
escheated property must be filed within five years from
July 1, 1990 or be forever barred. (Rule 91, sec. 4).
Section 5. Other actions for escheat. — Until
otherwise provided by law, actions reversion or
escheat of properties alienated in violation of the
Constitution or of any statute shall be governed by
this rule, except that the action shall be instituted in
the province where the land lies in whole or in part.
NOTE: Escheat under the Unclaimed Balances
Act must be filed in the RTC where the deposits
are found.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
General Guardians and Guardianship
RULE 92
Venue
NOTE: Guardianship of minors is now governed
by the Rule on Guardianship of Minors(A.M. No.
03-02-05-SC) which took effect on May 1, 2003
while guardianship of incompetents is still
governed by the provisions of the Rules of Court
on Guardianship (Rule 92 to Rule 97).
GUARDIANSHIP
This is the power of protective authority given by
law and imposed on an individual who is free
and in enjoyment of his rights over one whose
weakness on account of his age, or other
infirmity renders him unable to protect himself.
GUARDIAN
He is the person in whom the law has entrusted
the custody and control of the person or estate
or both of an infant, insane or other person
incapable of managing his own affairs.
KINDS OF GUARDIANS
A. According to scope:
1. Guardian of the person—one who has
been lawfully invested with the care of
the person of the minor;
2. Guardian of the property—one
appointed to have the management of
the estate of a minor or incompetent;
3. General guardian—one entrusted with
the custody and care of the person and
of all property of the minor or
incompetent.
B. According to the constitution:
1. Legal guardian—without judicial
appointment;
2. Guardian ad litem—appointed by the
court of justice to prosecute or defend a
minor, insane or person declared to be
incompetent in an action in court;
3. Judicial guardian—those appointed
pursuant to law, as guardian for insane,
prodigals, minors, etc.
Section 1. Where to institute proceedings. —
Guardianship of a person or estate of a minor or
incompetent may be instituted in the Court of
First Instance of the province, or in the justice of
the peace court of the municipality, or in the
municipal court chartered city where the minor
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or incompetent persons resides, and if he resides in incompetent who has no parent or lawful
a foreign country, in the Court of First Instance of guardian, or the minor himself if fourteen years
the province wherein his property or the part thereof of age or over, may petition the court having
is situated; provided, however, that where the value jurisdiction for the appointment of a general
of the property of such minor or incompetent guardian for the person or estate, or both, of
exceeds that jurisdiction of the justice of the peace such minor or incompetent. An officer of the
or municipal court, the proceedings shall be Federal Administration of the United States in
instituted in the Court of First Instance. the Philippines may also file a petition in favor of
a ward thereof, and the Director of Health, in
In the City of Manila the proceedings shall be favor of an insane person who should be
instituted in the Juvenile and Domestic Relations hospitalized, or in favor of an isolated leper.
Court.
MINOR INCOMPETENT
WHERE TO INSTITUTE: 1. Any relative;
1. Incompetents—RTC of the place where he 1. Any relative; 2. Friend;
resides or where his property is situated in 2. Other person on 3. Other person on
case of non-resident; behalf of the minor; behalf of the resident
2. Minor—Family Court of his residence, or 3. Minor himself if 14 incompetent who has
where his property is situated in case of years of age or over; no parents or lawful
non-resident (sec. 3, AM 03-02—O5). 4. The Secretary of guardians;
Social Welfare and 4. The Director of
Section 2. Meaning of word "incompetent." — Development AND the Health in favor of an
Under this rule, the word "incompetent" includes Secretary of Health in insane person who
persons: case of an insane should be hospitalized
minor who needs to be or in favor of an
1. suffering the penalty of civil interdiction; or hospitalized (sec. 2 isolated leper;
2. who are hospitalized lepers; AM 03-02-05-SC) 5. Anyone interested in
3. prodigals; the estate of a non-
4. deaf and dumb who are unable to read and resident incompetent
write; (sec.6)
5. those who are of unsound mind, even
though they have lucid intervals; and NOTE: The father and the mother shall jointly
6. persons not being of unsound mind, but by exercise legal guardianship over the person and
reason of age, disease, weak mind, and property of their minor children without the
other similar causes, cannot, without necessity of a court appointment. In such case,
outside aid, take care of themselves and this Rule shall be suppletory to the provisions of
manage their property, becoming thereby the Family Code on guardianship.
an easy prey for deceit and exploitation.
Section 2. Contents of petition. — A petition
Section 3. Transfer of venue. — The court taking for the appointment of a general guardian must
cognizance of a guardianship proceeding, may show, so far as known to the petitioner:
transfer the same to the court of another province or
municipality wherein the ward has acquired real (a) The jurisdictional facts;
property, if he has transferred thereto his bona-
fide residence, and the latter court shall have full (b) The minority or incompetency
jurisdiction to continue the proceedings, without rendering the appointment necessary or
requiring payment of additional court fees. convenient;

(c) The names, ages, and residence of

the relatives of the minor or
RULE 93 incompetent, and of the person having
him in their care;
Appointment of Guardians
(d) The probable value and character of
Section 1. Who may petition for appointment of his estate;
guardian for resident. — Any relative, friend, or
other person on behalf of a resident minor or

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(e) The name of the person for whom letters (sec. 7, AM 03-
of guardianship are prayed. 03-05-SC)

The petition shall be verified; but no defect in the NOTE: The petition involving minors is required
petition or verification shall render void the issuance to be VERIFIED and accompanied by CAFS
of letters of guardianship. while that of involving incompetents must be
verified only. However, no defect in the petition
or verification shall render the void the issuance
of letters of guardianship.
CONTENTS OF THE PETITION
MINOR INCOMPETENT Section 3. Court to set time for hearing. Notice
thereof. — When a petition for the appointment
1. the 1. the
of a general guardian is filed, the court shall fix a
jurisdictional jurisdictional
time and place for hearing the same, and shall
facts; facts;
cause reasonable notice thereof to be given to
2. the name, 2. The
the persons mentioned in the petition residing in
residence, and incompetency
the province, including the minor if above 14
age of the rendering the
years of age or the incompetent himself, and
prospective appointment
may direct other general or special notice
ward; necessary or
thereof to be given.
3. the ground convenient;
rendering the 3. The probable
appointment value and Note: There is no requirement for
necessary or character of his PUBLICATION, only notice EXCEPT in case
convenient; estate; of non-resident incompetent/minor.
4. the death of the 4. The names,
parents of the ages, and However, service of notice to the persons
minor or the residences of mentioned in the petition, including the minor
deprivation or the relatives of if 14 years of age or over or the incompetent is
suspension of the mandatory and jurisdictional.
their parental incompetent
authority; and of the If the person is insane, service of notice upon
5. the remarriage persons having the Director of the Hospital where he is
of the minor’s him in their hospitalized is sufficient.
surviving care;
parent; 5. The name of Section 4. Opposition to petition. — Any
6. the names, the person interested person may, by filing a written
ages and whom the opposition, contest the petition on the ground of
residences of letters of majority of the alleged minor, competency of
relatives within guardianship the alleged incompetent, or the unsuitability of
the 4th civil are prayed the person for whom letters are prayed, and may
degree of the (sec.2, Rule 93) pray that the petition be dismissed, or that letters
minor and of of guardianship issue to himself, or to any
the person suitable person named in the opposition.
having him in
their care and Section 5. Hearing and order for letters to
custody; issue. — At the hearing of the petition the
7. the probable alleged incompetent must be present if able to
value, location attend, and it must be shown that the required
and character notice has been given. Thereupon the courts
of the property shall hear the evidence of the parties in support
of the minor; of their respective allegations, and, if the person
8. the name, age in question is a minor, or incompetent it shall be
and residence appoint a suitable guardian of his person or
of the person estate, or both, with the powers and duties
whom the hereinafter specified.
letters of
guardianship Section 6. When and how guardian for non-
are prayed resident appointed. Notice. — When a person

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liable to be put under guardianship resides without
the Philippines but the estate therein, any relative
or friend of such person, or any one interested in
his estate, in expectancy or otherwise, may petition
a court having jurisdiction for the appointment of a
guardian for the estate, and if, after notice given to
such person and in such manner as the court
deems proper, by publication or otherwise, and
hearing, the court is satisfied that such non-resident
is a minor or incompetent rendering a guardian
necessary or convenient, it may appoint a guardian
for such estate.
Section 7. Parents as guardians. — When the
property of the child under parental authority is
worth two thousand pesos or less, the father or the
mother, without the necessity of court appointment,
shall be his legal guardian. When the property of the
child is worth more than two thousand pesos, the
father or the mother shall be considered guardian of
the child's property, with the duties and obligations
of guardians under this rules, and shall file the
petition required by section 2 hereof. For good
reasons the court may, however, appoint another
suitable person.
Note: Art. 225,FC. The father and the mother
shall jointly exercise legal guardianship over the
property of the unemancipated common child
without the necessity of a court appointment. In
case of disagreement, the father's decision shall
prevail, unless there is a judicial order to the
contrary.
Where the market value of the property or the
annual income of the child exceeds P50,000, the
parent concerned shall be required to furnish a
bond in such amount as the court may
determine, but not less than ten per centum
(10%) of the value of the property or annual
income, to guarantee the performance of the
obligations prescribed for general guardians.
A verified petition for approval of the bond shall
be filed in the proper court of the place where
the child resides, or, if the child resides in a
foreign country, in the proper court of the place
where the property or any part thereof is
situated.
The petition shall be docketed as a summary
special proceeding in which all incidents and
issues regarding the performance of the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
obligations referred to in the second
paragraph of this Article shall be heard and
resolved.
The ordinary rules on guardianship shall be
merely suppletory except when the child is
under substitute parental authority, or the
guardian is a stranger, or a parent has
remarried, in which case the ordinary rules on
guardianship shall apply.
Section 8. Service of judgment. — Final orders
or judgments under this rule shall be served
upon the civil registrar of the municipality or city
where the minor or incompetent person resides
or where his property or part thereof is situated.
RULE 94
Bonds of Guardians
Section 1. Bond to be given before issuance
of letters. Amount. Condition. — Before a
guardian appointed enters upon the execution of
his trust, or letters of guardianship issue, he
shall give a bond, in such sum as the court
directs, conditioned as follows:
(a) To make and return to the court, within
three (3) months, a true and complete
inventory of all the estate, real and
personal, of his ward which shall come to his
possession or knowledge of any other
person for him;
(b) To faithfully execute the duties of his
trust, to manage and dispose of the estate
according to these rules for the best
interests of the ward, and to provide for the
proper care, custody, and education of the
ward;
(c) To render a true and just account of all
the estate of the ward in his hands, and of
all proceeds or interest derived therefrom,
and of the management and disposition of
the same, at the time designated by these
rules and such other times as the courts
directs, and 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;
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(d) To perform all orders of the court
by him to be performed.
PURPOSE OF THE BOND
For the protection of the property of the minor or
incompetent to the end that he may be assured of
an honest administration of his funds (Herrera).
Bar Exam Question 2011
(27) Which of the following is a duty enjoined
on the guardian and covered by his bond? (A)
Provide for the proper care, custody, and
education of the ward. (B) Ensure the wise
and profitable investment of the ward’s
financial resources. (C) Collect compensation
for his services to the ward. (D) Raise the ward
to become a responsible member of society.
Section 2. When new bond may be required and
old sureties discharged. — Whenever it is
deemed necessary, the court may require a new
bond to be given by the guardian, and may
discharge the sureties on the old bond from further
liability, after due notice to interested persons, when
no injury can result therefrom to those interested in
the estate.
Section 3. Bonds to be filed. Actions thereon. —
Every bond given by a guardian shall be filed in the
office of the clerk of the court, and, in case of the
breach of a condition thereof, may be prosecuted in
the same proceeding or in a separate action for
the use and benefit of the ward or of any other
person legally interested in the estate.
Note: The bond of the guardian is a continuing
one against the obligors and their estates until all
the conditions are fulfilled. The mere fact that the
defendant was removed as guardian did not
relieve him or her bondsmen from liability during
the time she was duly acting as such guardian
(Guerrero vs. Teran, 13 Phil. 212).
RULE 95
Selling and Encumbering Property of Ward
Section 1. Petition of guardian for leave to sell or
encumber estate. — When the income of the
estate under guardianship is insufficient to maintain
the ward and his family, or to maintain and educate
the ward when a minor, or when it appears that it is
for the benefit of the ward that his real estate or
some part thereof be sold, or mortgaged or
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
otherwise encumbered, and the proceeds
thereof put out at interest, or invested in some
productive security, or in the improvement or
security or other real estate of the ward, the
guardian may present a verified petition to the
court by which he was appointed setting forth
such facts, and praying that an order issue
authorizing the sale or encumbrance.
A. GROUNDS: (clue words only)
1. Income is insufficient;
a. To maintain the ward and
family;
b. To educate, when ward is
minor.
2. For benefit of the ward;
B. REQUIREMENTS:
1. Verified petition (sec. 1);
2. Notice to next of kin (sec.2);
NEXT OF KIN—pertains to those
relatives who are entitled to share in the
estate of the ward under the law on
Intestate succession including those
who inherit per stirpes or by right of
representation.
Note: Notice to the next of kin or other
persons interested is JURISDICTIONAL.
3. Hearing to justify the petition (sec.4).
Section 2. Order to show cause thereupon. —
If it seems probable that such sale or
encumbrance is necessary, or would be
beneficial to the ward, the court shall make an
order directing the next of kin of the ward, and
all persons interested in the estate, to appear at
a reasonable time and place therein specified to
show cause why the prayer of the petition
should not be granted.
Section 3. Hearing on return of order. Costs.
— At the time and place designated in the order
to show cause, the court shall hear the proofs
and allegations of the petitioner and next of kin,
and other persons interested, together with their
witnesses, and grant and refuse the prayer of
the petition as the best interest of the ward
require. The court shall make such order as to
cost of the hearing as may be just.
NOTE: Sale of the ward’s property without
authority from the court is VOID. Under the
law, a parent acting merely as legal
administrator of the property of is children,
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does not have the power to dispose of, alienate
the property of said minor without judicial approval
(Lindain vs. CA, GR No. 95305, Aug. 20, 1992).
Section 4. Contents of order for sale or
encumbrance, and how long effective. Bond. —
If, after full examination, it appears that it is
necessary, or would be beneficial to the ward, to sell
or encumber the estate, or some portion of it, the
court shall order such sale or encumbrance and that
the proceeds thereof be expended for the
maintenance of the ward and his family, or the
education of the ward, if a minor, or for the putting of
the same interest, or the investment of the same as
the circumstances may require. The order shall
specify the causes why the sale or encumbrance is
necessary or beneficial, and may direct that estate
ordered sold be disposed of at either public or
private sale, subject to such conditions as to the
time and manner of payment, and security where a
part of the payment is deferred as in the discretion
of the court are deemed most beneficial to the ward.
The original bond of the guardian shall stand as
security for the proper appropriation of the proceeds
of the sale, but the judge may, if deemed expedient,
require an additional bond as a condition for the
granting of the order of sale. No order of sale
granted in pursuance of this section shall continue
in force more than one (1) year after granting the
same, without a sale being had.
NOTES: The authority to sell or encumber shall
not extend beyond 1 year from the issuance
thereof, unless renewed by the court.
Appeal is the proper remedy against an order of
the court authorizing the sale of the ward’s
property (Lopez vs. Teodoro, 86 Phil. 499).
Note: There being a presumption that the sale of
the ward’s estate is valid, the same cannot be
attacked collaterally. A separate action to avoid or
rescind the sale on the grounds specified by law
should have been filed (Margate vs. Rabacal, 117
Phil. 903).
Section 5. Court may order investment of
proceeds and direct management of estate. —
The court may authorize and require the guardian to
invest the proceeds of sales or encumbrances, and
any other of his ward's money in his hands, in real
estate or otherwise, as shall be for the best interest
of all concerned, and may make such other orders
for the management, investment, and disposition of
the estate and effects, as circumstances may
require.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
RULE 96
General Powers and Duties of Guardians
Section 1. To what guardianship shall extend.
— A guardian appointed shall have the care and
custody of the person of his ward, and the
management of his estate, or the management
of the estate only, as the case may be. The
guardian of the estate of a non-resident shall
have the management of all the estate of the
ward within the Philippines, and no court other
than that in which such guardian was appointed
shall have jurisdiction over the guardianship.
POWERS AND DUTIES (clue words):
1. Inventory;
2. Manage
3. Account;
4. Perform duties.
a. Pay debts;
b. Settle accounts;
c. Collect debts;
d. Appear in actions for the ward;
NOTE: Conflicts regarding the ownership or title
to the property in the hands of the guardian in
his capacity as such should be litigated in a
separate proceeding, the court in guardianship
proceeding being solely concerned with the
ward’s care and custody and proper
administration of his properties (Viloria vs.
Administrator of Veteran Affairs, 19 Phil. 762).
Section 2. Guardian to pay debts of ward. —
Every guardian must pay the ward's just debts
out of his personal estate and the income of his
real estate, if sufficient; if not, then out of his real
estate upon obtaining an order for the sale or
encumbrance thereof.
Section 3. Guardian to settle accounts,
collect debts, and appear in actions for ward.
— A guardian must settle all accounts of his
ward, and demand, sue for, and receive all
debts due him, or may, with the approval of the
court, compound for the same and give
discharges to the debtor, on receiving a fair and
just dividend of the estate and effects; and he
shall appear for and represent his ward in all
actions and special proceedings, unless another
person be appointed for that purpose.
Section 4. Estate to be managed frugally, and
proceeds applied to maintenance of ward. —
A guardian must manage the estate of his ward
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frugally and without the waste, and apply the
income and profits thereof, so far as may be
necessary, to the comfortable and suitable
maintenance of the ward and his family, if there be
any; and if such income and profits be insufficient
for that purpose, the guardian may sell or encumber
the real estate, upon being authorized by order so to
do, and apply to such of the proceeds as may be
necessary to such maintenance.
Section 5. Guardian may be authorized to join in
partition proceedings after hearing. — The court
may authorized the guardian to join in an assent to
a partition of real or personal estate held by the
ward jointly or in common with others, but such
authority shall only be granted after hearing, upon
such notice to relatives of the ward as the court may
direct, and a careful investigation as to the
necessity and propriety of the proposed action.
Section 6. Proceedings when the person
suspected of embezzling or concealing property
of ward. — Upon complaint of the guardian or ward,
or of any person having actual or prospective
interest in the estate of the ward as creditor, heir, or
otherwise, that anyone is suspected of having
embezzled, concealed, or conveyed away any
money, goods, or interest, or a written instrument,
belonging to the ward or his estate, the court may
cite the suspected person to appear for examination
touching such money, goods, interest, or
instrument, and make such orders as will secure the
estate against such embezzlement, concealment or
conveyance.
PURPOSE: To secure evidence from persons
suspected of embezzling, concealing, or conveying
away any property of the ward so as to enable the
guardian to institute the appropriate action to obtain
possession and secure title to said property (Cui vs.
Piccio, 91 Phil. 712).
NOTE: In guardianship proceedings, the court
cannot actually order the delivery of the ward’s
property found to be embezzled or conveyed,
EXCEPT when title to the same is CLEAR AND
UNDISPUTED (Cui vs. Piccio, supra).
Section 7. Inventories and accounts of
guardians, and appraisement of estates. — A
guardian must render to the court an inventory of
the estate of his ward within three (3) months after
his appointment, and annually after such
appointment an inventory and account, the rendition
of any of which may be compelled upon the
application of an interested person. Such
inventories and accounts shall be sworn to by the
guardian. All the estate of the ward described in the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
first inventory shall be appraised. In the
appraisement the court may request the
assistance of one or more of the inheritance tax
appraisers. And whenever any property of the
ward not included in an inventory already
rendered is discovered, or succeeded to, or
acquired by the ward, like proceedings shall be
had for securing an inventory and appraisement
thereof within three (3) months after such
discovery, succession, or acquisition.
Section 8. When guardian's accounts
presented for settlement. Expenses and
compensation allowed. — Upon the expiration
of a year from the time of his appointment, and
as often thereafter as may be required, a
guardian must present his account to the court
for settlement and allowance. In the settlement
of the account, the guardian, other than a
parent, shall be allowed the amount of his
reasonable expenses incurred in the execution
of his trust and also such compensation for his
services as the court deems just, not exceeding
fifteen per centum of the net income of the
ward.
RULE 97
Termination of Guardianship
Section 1. Petition that competency of ward
be adjudged, and proceedings thereupon. —
A person who has been declared
incompetent for any reason, or his guardian,
relative, or friend, may petition the court to
have his present competency judicially
determined. The petition shall be verified by
oath, and shall state that such person is then
competent. Upon receiving the petition, the court
shall fix a time for hearing the questions raised
thereby, and cause reasonable notice thereof to
be given to the guardian of the person so
declared incompetent, and to the ward. On the
trial, the guardian or relatives of the ward, and,
in the discretion of the court, any other person,
may contest the right to the relief demanded,
and witnesses may be called and examined by
the parties or by the court on its own motion. If it
be found that the person is no longer
incompetent, his competency shall be adjudged
and the guardianship shall cease.
MINOR INCOMPETENT
1. The ward 1. Competency of
has come of the ward has
age; been judicially
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2. Has died; determined;
3. Death of the 2. Guardianship is
guardian no longer
(sec. 25, necessary;
AM 03-02- 3. Death of the
05-SC) guardian;
4. Death of the
ward
NOTE: Notice of hearing of the petition is not
intended as personal service process in the sense
necessary to give the court jurisdiction over the
ward (In Re: Guardianship of Incompetent Jose
Inchausti, 40 Phil. 682).
Section 2. When the guardian removed or
allowed to resign. New appointment. — When a
guardian becomes insane or otherwise incapable of
discharging his trust or unsuitable therefor, or has
wasted or mismanaged the estate, or failed for thirty
(30) days after it is due to render an account or
make a return, the court may, upon reasonable
notice to the guardian, remove him, and compel him
to surrender the estate of the ward to the person
found to be lawfully entitled thereto. A guardian may
resign when it appears proper to allow the same;
and upon his resignation or removal the court may
appoint another in his place.
GROUNDS FOR THE REMOVAL OF GUARDIAN:
1. Insanity;
2. Incapability or unsuitability to discharge
functions;
3. Wastage or mismanagement of the property
of the ward;
4. Failure to render account or make a return
within 30 days after it was due.
The remedy of the guardian is to file an appeal from
the order of removal (Olarte vs. Enriquez, 109 Phil.
1137).
Section 3. Other termination of guardianship. —
The marriage or voluntary emancipation of a minor
ward terminates the guardianship of the person of
the ward, and shall enable the minor to administer
his property as though he were of age, but he
cannot borrow the money or alienate or encumber
real property without the consent of his father or
mother, or guardian. He can sue and be sued in
court only with the assistance of his father, mother
or guardian. The guardian of any person may be
discharged by the court when it appears, upon the
application of the ward or otherwise, that the
guardianship is no longer necessary.
Section 4. Record to be kept by the justice of the
peace or municipal judge. — When a justice of the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
peace or municipal court takes cognizance of
the proceedings in pursuance of the provisions
of these rules, the record of the proceedings
shall be kept as in the Court of First Instance.
Section 5. Service of judgment. — Final orders
of judgments under this rule shall be served
upon the civil registrar of the municipality or
city where the minor or incompetent person
resides or where his property or part thereof is
situated.
SALIENT FEATURES and SPECIAL RULES
found in the Rule on Guardianship of Minors
(A.M. No. 03-02-05-SC, effective May 1, 2003)
A. GROUNDS for the Petition (sec. 4) :
1. Continued absence, or incapacity or
death of his parents (AID);
2. Suspension, termination, deprivation
of parental authority (STD);
3. Remarriage of the surviving parent, if
the latter is found to be unsuitable to
exercise parental authority; or
4. When best interest of the minor so
requires.
B. CONSIDERATIONS in Appointing
Guardians (sec. 5):
1. Moral character;
2. Physical, mental, and psychological
condition;
3. Financial status;
4. Relationship of trust with the minor;
5. Availability to exercise the powers and
duties of a guardian for the full period of
guardianship;
6. Lack of conflict of interest with the
minor;
7. Ability to manage the property of the
minor.
C. WHO may be Appointed guardian of the
person or property, or both , of a minor (sec.
6):
In default of parents or a court appointed
guardian, the court may appoint a guardian of a
minor, observing as far as practicable, the
following ORDER OF PREFERRENCE:
1. The surviving grandparent and in case
of several grandparents, the court shall
select among them taking into account
relevant considerations;
2. The oldest brother or sister over 21
years of age, unless unfit or unqualified;
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3. The actual custodian of the minor over 21 guardian shall notify the court of such fact
years of age unless unfit or unqualified; within 10 days of its occurrence.
4. Any other person, who in the discretion of
the court would serve the best interests of
the minor.
RULE 98
Bar Exam Question 2012
4. In default of parents, the court may appoint Trustees
a guardian for a minor giving first preference
to:
a. an older brother or sister who is over 18 EXECUTOR/ GUARDIAN TRUSTEE
ADMINISTRATO
years old.
R
b. the actual custodian over 21 years old.
Account are not
c. a paternal grandparent
under oath and
d. an uncle or aunt over 21 years old.
except for initial Accounts Accounts
SUGGESTED ANSWER: (c), In default of
and final must be must be
parents or a court-appointed guardian, the
submission of under oath under oath
court may appoint a guardian of the person accounts, they and filed and filed
or property, or both of a minor, observing as shall be filed only annually annually
far as practicable, the following order of at such times as
preference: (a) the surviving grandparent. In may be required
case several grandparents survive, the court by the court
shall select any of them taking into account Court that
all relevant considerations; (b) the oldest has
brother or sister of the minor over twenty- jurisdiction
one years of age, unless unfit or Court that has Court that is RTC if
disqualified; (c) the actual custodian of the jurisdiction may has appointed
minor over twenty-one years of age, unless be RTC or MTC jurisdiction is to carry into
unfit or disqualified; and (d) any other RTC effect the
person, who in the sound discretion of the (incompetent provisions
court, would serve the best interests of the s) and Family of a will; if
minor. (SEC. 6, A.M. No. 03-02-05-SC 2003- Courts trustee
05-01, Rule on Guardianship of Minors). (minors) dies,
resigns, or
removed in
D. Case Study Report (sec. 9) contractual
The court shall order a social worker to conduct a trust, RTC
case study of the minor and all prospective has
guardians and submit report and recommendations jurisdiction
to the court for its guidance before the scheduled to appoint
hearing. new trustee
May sell, May sell or
E. Bond of parents as guardians of property of mortgage, or encumber
the minor (sec. 16, in relation to art. 225, Family encumber property of May sell or
Code). property if it is ward if encumber
necessary for the income of property
F. Removal or Resignation of Guardian (sec. 24). purpose of estate is held in trust
No motion for removal or resignation shall be paying debts, insufficient to if
granted unless the guardian has submitted the expenses of maintain the necessary
proper accounting of the property of the ward and administration or ward and his or
the court approved the same. for the family and expedient
preservation of educate the upon order
G. Grounds for Termination of Guardianship the property, or if ward; or that of the court
(sec. 25) the sale will be the sale is
The court motu proprio or upon verified motion of beneficial to the beneficial to
any person allowed to file a petition for guardianship heirs, legatees or the ward
may terminate the guardianship on the ground that devisees upon order of
the ward has COME OF AGE, or has DIED. The the court.

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________________________________________________________________________________________________

Order of sale administer trust. — If a testator has omitted in

Order of sale has is valid only Order of his will to appoint a trustee in the Philippines,
no time limit for 1 year sale has no and if such appointment is necessary to carry
after the grant time limit into effect the provisions of the will, the proper
of the same Court of First Instance may, after notice to all
Appointed persons interested, appoint a trustee who shall
to carry into have the same rights, powers, and duties, and in
Appointed by the effect the whom the estate shall vest, as if he had been
court to settle the Appointed as provisions appointed by the testator. No person succeeding
estate of the guardian of a will or to a trust as executor or administrator of a
decedent written former trustee shall be required to accept such
instrument trust.
(contractual
trust) NOTE: Notice to and consent of the
beneficiary are not essential for the creation of
Not exempted Maybe the trust (De Leon vs. Molo-Peckson, 6 SCRA
from filing bond exempted 978)
even if such from filing
exemption is Must always bond if Section 3. Appointment and powers of new
provided in the file a bond provided in trustee under written instrument. — When a
will (bond is only the will or if trustee under a written instrument declines,
conditioned upon beneficiarie resigns, dies or removed before the objects of
payment of s requested the trust are accomplished, and no adequate
debts) exemption provision is made in such instrument for
Terminated supplying the vacancy, the proper Court of First
Services of Guardianship upon Instance may, after due notice to all persons
executor or is terminated turning over interested, appoint a new trustee to act alone or
administrator is upon of the jointly with the others, as the case may be. Such
terminated upon attainment of property to new trustee shall have and exercise the same
payment of debts age of the powers, right, and duties as if he had been
of the estate and majority or beneficiary originally appointed, and the trust estate shall
the distribution of upon gaining after the vest in him in like manner as it had vested or
properties to the competency expiration would have vested, in the trustee in whose place
heirs in case of an of trust he is substituted and the court may order such
incompetent (period may conveyance to be made by the former trustee or
(the latter be provided his representatives, or by the other remaining
needs court in the will or trustees, as may be necessary or proper to vest
order) trust the trust estate in the new trustee, either or
contract) jointly with the others.
Must pay the Must pay the No
debts of the debts of the obligation Section 4. Proceedings where trustee
estate ward to pay the appointed abroad. — When land in the
debts of the
Philippines is held in trust for persons resident
trustor or here by a trustee who derives his authority from
beneficiary without the Philippines, such trustee shall, on
petition filed in the Court of First Instance of the
province where the land is situated, and after
Section 1. Where trustee appointed. — A trustee due notice to all persons interested, be ordered
necessary to carry into effect the provisions of a will to apply to the court for appointment as trustee;
on written instrument shall be appointed by the and upon his neglect or refusal to comply with
Court of First Instance (now RTC) in which the will such order, the court shall declare such trust
was allowed, if it be a will allowed in the Philippines, vacant, and shall appoint a new trustee in whom
otherwise by the Court of First Instance of the the trust estate shall vest in like manner as if he
province in which the property, or some portion had been originally appointed by such court.
thereof, affected by the trust is situated.
Section 5. Trustee must file bond. — Before
Section 2. Appointment and powers of trustees entering on the duties of his trust, a trustee shall
under will. Executor of former trustee need not file with the clerk of the court having jurisdiction

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________________________________________________________________________________________________
of the trust a bond in the amount fixed by the judge
of said court, payable to the Government of the
Philippines and sufficient and available for the
protection of any party in interest, and a trustee who
neglects to file such bond shall be considered to
have declined or resigned the trust; but the court
may until further order exempt a trustee under a will
from giving a bond when the testator has directed or
requested such exemption and may so exempt any
trustee when all persons beneficially interested in
the trust, being of full age, request the exemption.
Such exemption may be cancelled by the court at
any time and the trustee required to forthwith file a
bond.
Note: The court may cancel the exemption at any
time.
Section 6. Conditions included in bond. — The
following conditions shall be deemed to be part of
the bond whether written therein or not;
(a) That the trustee will make and return to
the court, at such time as it may order, a
true inventory of all the real and personal
estate belonging to him as trustee, which at
the time of the making of such inventory
shall have come to his possession or
knowledge;
(b) That he will manage and dispose of all
such estate, and faithfully discharge his
trust in relation thereto, according to law
and the will of the testator or the provisions
of the instrument or order under which he is
appointed;
(c) That he will render upon oath at least
once a year until his trust is fulfilled, unless
he is excused therefrom in any year by the
court, a true account of the property in his
hands and the management and disposition
thereof, and will render such other accounts
as the court may order;
(d) That at the expiration of his trust he will
settle his account in court and pay over
and deliver all the estate remaining in his
hands, or due from him on such settlement,
to the person or persons entitled to thereto.
But when the trustee is appointed as a successor to
a prior trustee, the court may dispense with the
making and return of an inventory, if one has
already been filed, and in such case the condition of
the bond shall be deemed to be altered accordingly.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 7. Appraisal. Compensation of
trustee. — When an inventory is required to be
returned by a trustee, the estate and effects
belonging to the trust shall be appraised and
the court may order one or more inheritance tax
appraisers to assist in the appraisement. The
compensation of the trustee shall be fixed by the
court, if it be not determined in the instrument
creating the trust.
Section 8. Removal or resignation of trustee.
— The proper Court of First Instance may, upon
petition of the parties beneficially interested and
after due notice to the trustee and hearing,
remove a trustee if such removal appears
essential in the interest of the petitioner. The
court may also, after due notice to all persons
interested, remove a trustee who is insane or
otherwise incapable of discharging his trust or
evidently unsuitable therefor. A trustee, whether
appointed by the court or under a written
instrument, may resign his trust if it appears to
the court proper to allow such resignation.
Section 9. Proceedings for sale or
encumbrance of trust estate. — When the
sale or encumbrance of any real or personal
estate held in trust is necessary or expedient,
the court having jurisdiction of the trust may, on
petition and after due notice and hearing, order
such sale or encumbrance to be made, and the
re-investment and application of the proceeds
thereof in such manner as will best effect the
objects of the trust. The petition, notice, hearing,
order of sale or encumbrance, and record of
proceedings, shall conform as nearly as may be
to the provisions concerning the sale or
encumbrance by guardians of the property of
minors or other wards.
RULE 99
Adoption and Custody of Minors
New Rule on Adoption, effective August 22,
2002
NATURE AND CONCEPT OF ADOPTION
Adoption is a juridical act, a proceeding IN REM,
which creates between 2 persons a relationship
similar to that which results from legitimate
paternity and filiation.
PURPOSE OF ADOPTION
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The promotion of the welfare of the child and the of general circulation in
enhancement of his opportunities for a useful and the province or city
happy life, and every intendment is sustained to where the court is
promote that objective. situated
Application is through a Application may be
WHAT DOES THE COURT IN ADOPTION CASES petition with the FC through a foreign
DETERMINE: country agency and
1. Capacity of the adopters; then submit to ICAB
2. Whether the adoption would be for the best Decree of adoption is
interest of the child. issued by the FC which Decree of adoption is
has jurisdiction over the issued by a foreign
Adoption is strictly personal between the adopter case court
and the adopted (Teotico vs. Del Val, L-18753,
March 26, 1956). Hence, the adopted child has NO
RIGHT OF REPRESENTATION in the estate of his Section 1. Venue. — A person desiring to adopt
adopter’s parent. another or have the custody of a minor shall
present his petition to the Court of First Instance
JUDICIAL ADOPTION EXTRAJUDICIAL of the province, or the municipal or justice of the
ADOPTION peace court of the city or municipality in which
Proper in domestic Proper in inter-country he resides.
adoption adoption
Under the jurisdiction of In the City of Manila, the proceedings shall be
Under the jurisdiction of the Inter-country instituted in the Juvenile and Domestic Relations
the Family Court (where Adoption board (but Court.
the adopter resides) petition may also be
filed with the Family
Venue; Special Proceedings (1997)
Court (where adoptee
Give the proper venue for the following special
resides) which will turn
proceedings: a) A petition to declare as escheated a
it over to ICAB
parcel of land owned by a resident of the Philippines
Trial custody in the Trial custody is in the
who died intestate and without heirs or persons
Philippines for 6 months country of the adopter
entitled to the property.
(but court may reduce and is mandatory
period or exempt before a decree of
b) A petition for the appointment of an
parties from trial adoption is issued administrator over the land and building left by an
custody) (expenses are borne by American citizen residing in California, who had
the adopter) been declared an incompetent by an American court.
Petition for adoption c) A petition for the adoption of a minor residing in
may include a prayer Pampanga.
SUGGESTED ANSWER:
for the change of name, Petition for adoption
(a) The venue of the escheat proceedings of a parcel
or declaration that the only
of land in this case is the place where the deceased
child is a foundling,
last resided. (Sec. 1. Rule 91, Rules of Court).
abandoned, dependent
or neglected child
(b) The venue for the appointment of an
administrator over land and building of an American
Legitimate or Only a child legally
illegitimate child of the available for domestic citizen residing in California, declared Incompetent
spouse or even a adoption may be the by an American Court, is the RTC of the place
person of legal age may subject of inter-country where his property or part thereof is situated. (Sec. 1.
Rule 92).
be adopted adoption
(c) The venue of a petition for the adoption of a
Income tax returns, Income tax returns,
minor residing in Pampanga is the RTC of the place
police clearance, police clearance,
in which the petitioner resides. (Sec. 1. Rule 99)
character reference, character reference,
family picture, birth family picture, birth
certificate of adopter certificate of adopter
are not required to be are required to be Section 2. Contents of petition. — The petition
annexed to the petition annexed to the petition for adoption shall contain the same allegations
Petition must be required in a petition for guardianship, to wit:
published at least once
a week for 3 successive No publication (a) The jurisdictional facts;
weeks in a newspaper requirement

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(b) The qualification of the adopter;
(c) That the adopter is not disqualified by law;
(d) The name, age, and residence of the person
to be adopted and of his relatives of the persons
who have him under their care;
(e) The probable value and character of the
estate of the person to be adopted.
Section 3. Consent of adoption. — There shall be
filed with the petition a written consent to the
adoption signed by the child, if fourteen years of age
or over and not incompetent, and by the child's
spouse, if any, and by each of its known living
parents who is not insane or hopelessly intemperate
or has not abandoned such child, or if there is no
such parents by the general guardian or guardian
ad litem of the child, or if the child is in the custody
of an orphan asylum, children's home, or benevolent
society or person, by the proper officer of such
asylum, home, or society, or by such person; but if
the child is illegitimate and has not been recognized,
the consent of its father to the adoption shall not be
required.
If the person to be adopted is of age, only his or her
consent and that of the spouse, if any, shall be
required.
Section 4. Order for hearing. — If the petition and
consent filed are sufficient in form and substance,
the court, by an order reciting the purpose of the
petition, shall fix a date and place for the hearing
thereof, which shall not be more than six (6) months
after the entry of the order, and shall direct that a
copy of the order be published before the hearing at
least once a week for three (3) successive weeks in
some newspaper of general circulation published in
the province, as the court shall deem best.
Section 5. Hearing and judgment. — Upon
satisfactory proof in open court on the date fixed in
the order that such order has been published as
directed, that the allegations of petition are true, and
that it is a proper case for adoption and the
petitioner or petitioners are able to bring up and
educate the child properly, the court shall adjudge
that thenceforth the child is free from all legal
obligations of obedience and maintenance with
respect to its natural parents, except the mother
when the child is adopted by her husband, and is, to
all legal intents and purposes, the child of the
petitioner or petitioners, and that its surname is
changed to that the petitioner or petitioners. The
adopted person or child shall thereupon become the
legal heir of his parents by adoption and shall also
remain the legal heir of his natural parents. In case
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
of the death of the adopted person or child, his
parents and relatives by nature, and not by
adoption, shall be his legal heirs.
Section 6. Proceedings as to the child whose
parents are separated. Appeal. — When
husband and wife are divorce or living
separately and apart from each other, and the
question as to the care, custody, and control of a
child or children of their marriage is brought
before a Court of First Instance by petition or as
an incident to any other proceeding, the court,
upon hearing the testimony as may be pertinent,
shall award the care, custody, and control of
each such child as will be for its best interest,
permitting the child to choose which parent it
prefers to live with if it be over ten years of age,
unless the parent so chosen be unfit to take
charge of the child by the reason of moral
depravity, habitual drunkenness, incapacity, or
poverty. If, upon such hearing, it appears that
both parents are improper persons to have the
care, custody, and control of the child, the court
may either designate the paternal or maternal
grandparent of the child, or his oldest brother or
sister, or some reputable and discreet person to
take charge of such child, or commit it to any
suitable asylum, children's home, or benevolent
society. The court may in conformity with the
provisions of the Civil Code order either or both
parents to support or help support said child,
irrespective of who may be its custodian, and
may make any order that is just and reasonable
permitting the parent who is deprived of its care
and custody to visit the child or have temporary
custody thereof. Either parent may appeal from
an order made in accordance with the provisions
of this section. No child under seven years of
age shall be separated from its mother, unless
the court finds there are compelling reasons
thereof.
Section 7. Proceedings as to vagrant or
abused child. — When the parents of any
minor child are dead, or by reason of long
absence or legal or physical disability have
abandoned it, or cannot support it through
vagrancy, negligence, or misconduct, or neglect
or refuse to support it, or treat it with excessive
harshness or give it corrupting orders, counsels,
or examples, or cause or allow it to engage in
begging, or to commit offenses against the law,
the proper Court of First Instance, upon petition
filed by some reputable resident of the province
setting forth the facts, may issue an order
requiring such parents to show cause, or, if the
parents are dead or cannot be found, requiring
the fiscal of the province to show cause, at a
time and place fixed in the order, why the child
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should not be taken from its parents, if living; and if
upon the hearing it appears that the allegations of
the petition are true, and that it is order taking it from
its parents, if living; and committing it to any suitable
orphan asylum, children's home, or benevolent
society or person to be ultimately placed, by
adoption or otherwise, in a home found for it by
such asylum, children's home, society, or person.
PROPOSED RULE ON COMMITMENT OF
CHILDREN
(AM 01-1-19-SC)
WHO may file (sec. 4a):
1. The Secretary of DSWD;
2. His authorized representative;
3. Any child placement or child caring agency.
VENUE (sec. 4b):
The Family Court of the province or city in
which the parent or guardian resides or
where the child is found.
WHO shall be summoned (sec. 4d):
1. Parent or guardian of the child;
2. Office of the Public Prosecutor.
WHEN may summons may not be issued (sec.
4d):
1. If it appears in the face of the petition that
both of he parents are dead; or
2. That neither parent can be found in the
province or city where the court is located
and the child has no guardian residing
therein.
Note: In case no summons are issued, the court has
the duty of appointing a guardian ad litem and shall
proceed with the hearing of the case with due notice
to the provincial or city prosecutor.
Note: There is no ANSWER here, only hearing is
required.
Child’s Right to Counsel (sec. 4g)
The court, upon request of the child capable of
forming his own views or upon request of his
guardian ad litem, shall appoint a lawyer to
represent him in the proceedings.
Duty of the Public Prosecutor (sec.4h)
The provincial or city prosecutor shall appear for the
state and ascertain if there has been due notice to
all parties concerned and that there is justification
for the declaration of dependency, abandonment or
neglect.
Judgment (sec. 4j)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
If, after hearing, the court shall find that the child
to be dependent, abandoned, or neglected, it
shall render judgment committing him to the
care and custody of the DSWD or any child
placement or child caring agency.
However, if the court finds that the abandonment
or neglect of the child may be remedied, the
child may be allowed to stay in his home under
the custody and care of his parent, subject to the
supervision of the DSWD.
END OF A.M. 02-1-19-SC
Section 8. Service of judgment. — Final orders
or judgments under this rule shall be served by
the clerk upon the civil registrar of the city or
municipality wherein the court issuing the same
is situated.
RULES ON DOMESTIC ADOPTION
(Secs. 1- 25, A.M. NO. 02-6-02)
WHO MAY ADOPT (sec. 4):
A. Any Filipino Citizen-
1. Of legal age;
2. In possession of full civil
capacity and legal rights;
3. Of good moral character;
4. Has not been convicted of any
crime involving moral turpitude;
5. Emotionally and psychologically
capable of caring for children;
6. In a position to support and care
for his/her children in keeping
with the means of the family;
and
7. At least 16 years older than the
adoptee.
B. Any Alien possessing the same
qualifications as above; Provided:
1. That his/her country has
diplomatic relations with the
Philippines;
2. That he/she been living in the
Philippines for at least 3
continuous years prior to the
filing of the application for
adoption;
3. Maintains residence until the
adoption decree is entered;
4. Certified to have legal capacity
to adopt by his/her country; and
5. That his/her government allows
the adoptee to enter his/her
country as his/her adopted child.
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C. The Guardian
The requirement of 16 years difference between
adopter and adoptee may be waived if adopter
is:
1. The biological parent of the adoptee;
2. The spouse of the adoptee’s parent.
The residency requirement and certification of
aliens qualification to adopt may be waived for
the following:
1. The adopter is a former Filipino citizen who
seeks to adopt a relative within the 4 th
degree of consanguinity or affinity;
2. One who seeks to adopt the legitimate child
of his/her Filipino spouse;
3. One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative within the 4th degree of
consanguinity or affinity of the Filipino
spouse.
WHO MAY BE ADOPTED (sec. 5):
1. Any person below 18 years of age who has
been judicially declared available for
adoption OR voluntarily committed to he
DSWD;
2. The legitimate child of one spouse by the
other spouse;
3. An illegitimate child by a qualified adopter to
raise the status of the former to that of
legitimacy;
4. A person of legal age regardless of civil
status, if, prior to the adoption, said person
has been consistently considered and
treated by the adopters as their own child
since minority;
5. A child whose adoption has been previously
rescinded;
6. A child whose biological or adoptive parents
have died but no proceedings shall be
initiated within 6 months from the time of
death of said parents; and
7. A child not otherwise disqualified by law or
this Rules.
CHILD LEGALLY AVAILABLE FOR ADOPTION
This refers to a child who has been voluntarily or
involuntarily committed to the DSWD or to a duly
licensed and accredited child-placing or child caring
agency, freed from the parental authority of his
biological parents, or in case of rescission of
adoption, his guardian or adopter/s.
2 WAYS TO COMMIT A CHILD:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
1. Administrative/Voluntary—in this case,
the parent or guardian of the child
voluntarily committed him to the DSWD
or any duly licenses child placement of
child caring agency. The child must be
surrendered in WRITING. Such written
instrument must be notarized and
signed in the presence of an authorized
representative of the department after
counseling has been made to
encourage the parents to keep the child
(sec. 5, AM 02-1-19-SC).
2. Judicial/Involuntary—follow the
procedure in AM 02-1-19-SC.
GR: Husband and Wife shall JOINTLY adopt.
Exceptions:
1. If one spouse seeks to adopt the
legitimate child of the other;
2. If one spouse seeks to adopt his/her
own illegitimate child provided the other
spouse has signified his consent
thereto; or
3. If the spouses are legally separated
from each other.
VENUE (sec. 6)
Family Court where the prospective
adoptive parents reside.
CONTENTS OF THE PETITION(sec. 7):
A. If the adopter is a Filipino citizen, the
petition shall allege the following:
(a) Jurisdictional facts;
(b) The matters contained in sec.
4a of AM 02-6-02;
The requirement of 16 years difference
between adopter and adoptee may be waived
if adopter is:
1. The biological parent of the adoptee;
2. The spouse of the adoptee’s parent.
(c) the Fact that the prospective
adoptee has undergone pre-
adoption services.
B. If the petitioner is an alien, the
petition shall allege the following:
(a) The jurisdictional facts;
(b) Sub-paragraph b above (same
as a Filipino citizen);
(c) That his/her country has
diplomatic relations with the
Philippines;
(d) That he/she been living in the
Philippines for at least 3
continuous years prior to the
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filing of the application for adoption;
(e) Certified to have legal capacity to
adopt by his/her country; and
(f) That his/her government allows the
adoptee to enter his/her country as
his/her adopted child.
The residency requirement and certification of
aliens qualification to adopt may be waived for the
following:
1. The adopter is a former Filipino citizen who
seeks to adopt a relative within the 4 th
degree of consanguinity or affinity;
2. One who seeks to adopt the legitimate child
of his/her Filipino spouse;
3. One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
relative within the 4th degree of
consanguinity or affinity of the Filipino
spouse.
C. If the adopter is the legal guardian of the
adoptee:
The petition shall allege that the
guardianship had been terminated and the
guardian had cleared his financial
accountabilities.
D. If the adopter is married, the spouse
shall be a co-petitioner except:
1. One spouse seeks to adopt the
legitimate child of the other;
2. If one spouse seeks to adopt his
own illegitimate child and the other
spouse has signified his consent
thereto;
3. If the spouses are legally separated
from each other.
E. If the adoptee is a foundling, the petition
shall allege the entries which should appear
in his birth certificate, such as name of child,
date of birth, place of birth if known, sex,
name and citizenship of adoptive mother
and father, and date and place of their
marriage.
F. If the petition prays for the change of name,
it shall also state the cause or reason for
such change of name.
In all petitions, it shall be alleged:
1. The first name, surname or names,
age and residence of the adoptee
as shown by his record of birth,
baptismal, or foundling certificate
and school records;
2. That the adoptee is not disqualified
by law to be adopted;
3. The probable value and character
of the estate of the adoptee;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
4. The first name, surname, or names by
which the adoptee is to be known and
registered in the Civil Registry.
Petition shall be verified and specifically state
at the initiatory pleading whether the petition
contains an application for a change of name,
rectification of simulated birth, voluntary or
involuntary commitment of children, declaration
of abandonment, dependency or being
neglected.
CAFS shall be included
pursuant to sec. 5, Rule 7 of
the Rules of Court.
ANNEXES TO THE PETITION
A. Birth, baptismal, or foundling certificate,
as the case may be and school records
showing the name, age and residence of
the adoptee;
B. Affidavit of consent of the following:
1. The adoptee, if 10 years or
over;
2. The biological parents of the
child, if known, or the legal
guardian, or the child-placement
agency, child-caring agency or
the proper government
instrumentality which has legal
custody of the child;
3. The legitimate and adopted
children of the adopter, if any,
who are 10 years of age or over;
4. The illegitimate children of the
adopter living with him who are
10 years of age or over;
5. The spouse, if any, of the
adopter or adoptee.
C. Child study report on the adoptee and
his biological parents;
D. If the petitioner is an alien, a certification
by his diplomatic or consular office or
any appropriate government agency that
he has legal capacity to adopt and that
his government allows the adoptee to
enter his country as his own adopted
child unless exempted under section
4(2);
E. Home study reports on the adopters. If
the adopter is an alien or residing
abroad but qualified to adopt the home
study report of a foreign adoption
agency duly accredited by the Inter-
Country Adoption Board;
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F. Decree of annulment, nullity, or legal
separation of the adopter as well as that of
the biological parents, if any.
PROCEDURE
A. ORDER OF HEARING (sec. 12)
1. It must be published at least once a week
for 3 consecutive weeks;
2. At the discretion of the court, copies of the
order of hearing shall be furnished to the
Office of the Solicitor General, to the
provincial or city prosecutor, the DSWD,
and the biological parents, if known;
3. If change of name of the adoptee is prayed
for in the petition, notice to the SolGen shall
be MANDATORY.
Contents of the order:
1. The registered name of the adoptee in the
birth certificate and the names by which the
adoptee has been known which shall be
stated in the caption;
2. The purpose of the petition;
3. The complete name which the adoptee will
use if petition is granted;
4. The date and place of hearing which shall
be set within 6 months from the date of the
issuance of the order and shall direct that a
copy thereof be published before the date of
the hearing at least once a week for 3
successive weeks in a newspaper of
general circulation in the province or city
where the court is situated; Provided, that in
case of application for change of name, the
date set for hearing shall not be within 4
months after the last publication of the
notice nor within 30 days prior to an
election.
The newspaper shall be selected by raffle
under the supervision of the executive
judge.
5. A directive to the social worker of the court,
the social service office of the local
government unit or any child-placing or child
caring agency, or the DSWD to prepare and
submit a child and home study reports
before hearing if such reports have not been
attached to the petition due to unavailability
at the time of the filing of the latter; and
6. A directive to the social worker of the court
to conduct counseling sessions with the
biological parents on the matter of adoption
of the adoptee and submit her report before
the date of hearing.
B. CHILD and HOME STUDY REPORTS (sec. 13)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
The social worker verifies with
the Civil Registry the real
parents and the name of the
adoptee and the fact that he is
legally available for adoption
The social worker may make
recommendations to the court if
he finds some grounds to deny
the petition.
C. HEARING (sec. 14)
It is to be held within 6 months from the
date of issuance of the order.
Except: In case of application for change
of name which hearing must neither be
within 4 months after last publication nor
within 30 days prior to election.
The petitioner and the adoptee must
personally appear and the former must
testify in court.
D. SUPERVISED TRIAL CUSTODY [STC]
(sec. 15)
Before the issuance of the Decree of Adoption,
the court shall give adopter trial custody of the
adoptee for at least 6 months.
REASON: In order for the parties to adjust
psychologically and emotionally with each other
and to establish a bonding relationship.
GR: Alien adopter must complete the 6 months
STC.
EXCEPTION: Same as exceptions from
residency and certification requirements
NOTE: Court may reduce or exempt parties
from supervised trial custody, if it finds that the
same shall be for the best interest of the
adoptee.
E. DECREE OF ADOPTION
If issued, this will take effect as of the date of the
filing of the original petition.
In case of change of name, the decree shall be
submitted to the Civil Registrar where the court
issuing the same is situated.
An amended birth certificate shall be issued.
The original birth certificate shall be stamped
“cancelled” and shall be sealed in the Civil
Registry records.
Note: the new birth certificate to be issued to the
adoptee shall not bear any notation that it is an
amended issue.
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EFFECTS OF ADOPTION:
1. Adopter shall exercise parental authority;
2. All legal ties between biological parents and
adoptee shall be severed, except when
biological parent is the spouse of the
adopter;
3. Adoptee shall be considered legitimate child
of the adopter for all intents and purposes;
4. Adopters shall have reciprocal rights of
succession without distinction from
legitimate filiation.
NOTES: under the law:
Art. 979, NCC, par. 2. An adopted child succeeds to
the property of the adopting parents in the same
manner as a legitimate child.
The following, HOWEVER, are pertinent
provisions of the FC:
Art. 189, FC. Adoption shall have the following
effects:
(1) For civil purposes, the adopted shall be
deemed to be a legitimate child of the
adopters and both shall acquire the
reciprocal rights and obligations arising
from the relationship of parent and child,
including the right of the adopted to use
the surname of the adopters;
(2) The parental authority of the parents by
nature over the adopted shall terminate
and be vested in the adopters, except that
if the adopter is the spouse of the parent
by nature of the adopted, parental
authority over the adopted shall be
exercised jointly by both spouses; and
(3) The adopted shall remain an intestate
heir of his parents and other blood
relatives.
Art. 190, FC. Legal or intestate succession to the
estate of the adopted shall be governed by the
following rules:
(2) When the parents, legitimate or
illegitimate, or the legitimate ascendants of
the adopted concur with the adopter, they
shall divide the entire estate, one-half to be
inherited by the parents or ascendants and
the other half, by the adopters;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(5) When only the adopters survive,
they shall inherit the entire estate; and
(6) When only collateral blood relatives
of the adopted survive, then the
ordinary rules of legal or intestate
succession shall apply.
All hearings and records are confidential (sec.
18).
INTER-COUNTRY ADOPTION (sec. 26-32)
WHERE to file Petition (sec. 28):
1. A verified petition to adopt a Filipino
child may be filed by a Filipino
permanently residing abroad or foreign
national with the Family Court having
jurisdiction of the place where the child
resides or may be found; or
2. It may be filed directly with the ICAB.
WHO may Adopt:
1. Any alien or Filipino citizen permanently
residing abroad who is at least 27 years
of age;
2. Other requirements are the same as
with R.A. 8552 (Domestic Adoption Act
of 1998).
WHO may be Adopted:
Only a child legally available for
domestic adoption may be the subject of
inter-country adoption.
A child under the Inter-Country Adoption
Act is defined as any person below 15
years of age.
CONTENTS OF THE PETITION (sec. 30)
PETITIONER MUST ALLEGE:
1. His age and the age of the child to be
adopted, showing that he is at last 27
years of age and at least 16 years older
than the child to be adopted at the time
of application, unless petitioner is the
parent by nature of the child or the
spouse of such parent;
2. If, married, the name of the spouse who
must be joined as co-petitioner except
when adopted is a legitimate child of his
spouse;
3. That he has capacity to act and assume
all rights and responsibilities of parental
authority under his national law, and has
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undergone the appropriate counseling from
an accredited counselor in his country;
4. That he has not been convicted of a crime
involving moral turpitude;
5. That he is eligible to adopt under his
national law;
6. That he can provide the proper care and
support and instill the necessary moral
values and example to his children,
including the child to be adopted;
7. That he agrees to uphold the basic rights of
the child, as embodied under Philippine
laws and the UN Convention on the Rights
of the Child, and to abide by the rules and
regulations issued to implement the
provisions of RA 8043;
8. That he comes from a country which the
Philippines has diplomatic relations and
whose government maintains similarly
authorized and accredited agency and that
adoption of a Filipino child is allowed under
his national law;
9. The he possesses all the qualifications and
non of the disqualifications provide in this
Rule, in Republic Act 8043, and all other
applicable laws of the Philippines.
ANNEXES (sec. 31):
1. Birth certificate of petitioner;
2. Marriage contract, if married, and, if
applicable, the divorce decree, or judgment
dissolving the marriage;
3. Sworn statement of consent of petitioner’s
biological or adopted child above 10 years
of age;
4. Physical, medical and psychological
evaluation of the petitioner certified by a
duly licensed physician and psychologist;
5. Income tax return or any authentic
document showing petitioner’s current
financial capability;
6. Police clearance of petitioner issued within
6 months before filing the petition;
7. Character reference from local
church/minister, the petitioner’s employer
and a member of the immediate community
who have known the petitioner for at least 5
years;
8. Full-body postcard size pictures of the
petitioner and his immediate family taken at
least 6 months before filing the petition.
RULE 100
Rescission and Revocation of Adoption
Section 1. Who may file petition; grounds.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 2. Order to answer. —
Section 3. Judgment. —
Section 4. Service of Judgment.
Section 5. Time within which to file petition.
NOTES:
RESCISION OF ADOPTION
Under the Domestic Adoption Act of 1998, the
adopter CAN NO LONGER RESCIND the
adoption, he can merely DISINHERIT the
adoptee in accordance with the provisions of the
Civil Code.
Bar Exam Question 2012
84. A and B adopted their nephew. They
filed an action for revocation of the
adoption on May 1, 1998 on the ground
that their nephew neglected them. Based on
the Rules of Domestic Adoption, the judge
must:
a. advise A and B to just disinherit the
nephew.
b. disallow the revocation.
c. refer the petition to the DSWD.
d. grant the petition after hearing.
SUGGESTED ANSWERS: (a) and (b),
Adoption being in the best interest of
the child, shall not be subject to
rescission by the adopter(s). However,
the adopter(s) may disinherit the
adoptee for causes provided in Article
919 of the Civil Code. (Sec.19, R.A. 8552
Rules of Domestic Adoption).
Rescission relates only as to the date of the
judgment. Hence, vested rights prior to the
rescission shall be respected.
WHO files (sec.19):
1. Adoptee
a) Over 18 years of age;
b) If minor, with the assistance of
DSWD.
2. Guardian or Counsel, if over 18 but
incapacitated
GROUNDS for Rescission (sec.19):
1. Repeated physical violence and verbal
maltreatment by the adopter despite
having undergone counseling;
2. Attempt on the life of the adoptee;
3. Sexual assault or violence; or
4. Abandonment or failure to comply with
parental obligations.
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VENUE (sec. 20)
Family Court of the province or city where
adoptee resides.
WHEN to file verified petition (sec.24):
Within 5 YEARS from reaching the age of
majority or after recovery from
incompetency.
Adverse party shall file his answer within 15
days from receipt of order of court requiring
him to answer (sec. 22).
EFFECTS OF JUDGMENT OF RESCISSION:
1. Parental authority of the biological parent or
legal custody of DSWD will be restored;
2. Reciprocal rights of adopter and adoptee is
extinguished;
3. Vested rights prior to the judicial rescission
shall be respected;
4. Successional rights shall revert to its status
prior to adoption, as of the date of judgment
of judicial rescission;
5. Adoptee shall use the name in his original
birth or foundling certificate; and
6. Civil Registrar shall reinstate his original
birth or foundling certificate.
Unlike in revocation of guardianship, revocation of
adoption is a separate proceeding from adoption.
RULE 101
Proceedings for Hospitalization of Insane
Persons
Section 1. Venue, Petition for commitment. — A
petition for the commitment of a person to a hospital
or other place for the insane may be filed with the
Court of First Instance (now RTC) of the province
where the person alleged to be insane is found. The
petition shall be filed by the Director of Health in all
cases where, in his opinion, such commitment is for
the public welfare, or for the welfare of said person
who, in his judgment, is insane and such person or
the one having charge of him is opposed to his
being taken to a hospital or other place for the
insane.
Section 2. Order for hearing. — If the petition filed
is sufficient in form and substance, the court, by an
order reciting the purpose of the petition, shall fix a
date for the hearing thereof, and copy of such order
shall be served on the person alleged to be insane,
and to the one having charge (over) him, or on such
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
of his relatives residing in the province or city as
the judge may deem proper. The court shall
furthermore order the sheriff to produce the
alleged insane person, if possible, on the date of
the hearing.
Section 3. Hearing and judgment. — Upon
satisfactory proof, in open court on the date
fixed in the order, that the commitment applied
for is for the public welfare or for the welfare of
the insane person, and that his relatives are
unable for any reason to take proper custody
and care of him, the court shall order his
commitment to such hospital or other place for
the insane as may be recommended by the
Director of Health. The court shall make proper
provisions for the custody of property or money
belonging to the insane until a guardian be
properly appointed.
Section 4. Discharge of insane. — When, in
the opinion of the Director of Health, the person
ordered to be committed to a hospital or other
place for the insane is temporarily or
permanently cured, or may be released
without danger he may file the proper petition
with the Court of First Instance which ordered
the commitment.
Section 5. Assistance of fiscal in the
proceeding. — It shall be the duty of the
provincial fiscal or in the City of Manila the fiscal
of the city, to prepare the petition for the Director
of Health and represent him in court in all
proceedings arising under the provisions of this
rule.
RULE 102
Habeas Corpus
NOTES: HC only applies to living persons
(body). However, in a case, the SC held that HC
can be applied to obtain custody of the
deceased body. Note, however that the subject
person died during the pendency of the HC
proceedings.
Appeal in HC is within 48 hours from notice of
judgment (sec. 39, BP 129)
Habeas Corpus (1993)
Roxanne, a widow, filed a petition for habeas corpus
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with the Court of Appeals against Major Amor who is Note: Actual physical restraint is not required;
allegedly detaining her 18-year old son Bong without any restraint which will prejudice freedom of
authority of the law. action is sufficient.
After Major Amor had a filed a return alleging the
cause of detention of Bong, the Court of Appeals WRIT OF HABEAS CORPUS (Amparo
promulgated a resolution remanding the case to the Libertad)
RTC for a full-blown trial due to the conflicting facts It is a writ directed to the person detaining
presented by the parties in their pleadings. In directing another and commanding him to produce the
the remand, the court of Appeals relied on Sec.9(1), in body of the prisoner at a certain time and place,
relation to Sec. 21 of BP 129 conferring upon said Court with the day and the cause of his caption and
the authority to try and decide habeas corpus cases detention, to do, to submit to, and receive
concurrently with the RTCs. Did the Court of Appeals whatsoever the court or judge awarding the writ
act correctly in remanding the petition to the RTC? shall consider in that behalf.
Why?
SUGGESTED ANSWER: WHEN AVAILED OF: (as consequence of a
No, because while the CA has original jurisdiction over judicial proceeding) [Feria vs. CA, GR No.
habeas corpus concurrent with the RTCs, it has no 122954, Feb. 15, 2000).
authority for remanding to the latter original actions filed
with the former. On the contrary, the CA is specifically 1. There has been a deprivation of a
given the power to receive evidence and perform any constitutional right resulting in the
and all acts necessary to resolve factual issues raised in restraint of a person;
cases falling within its original jurisdiction. 2. The court has no jurisdiction to impose
ALTERNATIVE ANSWER: the sentence;
Yes, because there is no prohibition in the law against a 3. An excessive penalty has been
superior court referring a case to a lower court having imposed, as such sentence is void as to
concurrent jurisdiction. The Supreme Court has referred the excess; or
to the CA or the RTC cases falling within their 4. When the law is amended as when the
concurrent jurisdiction. penalty is lowered.
5. It also extend to cases by which rightful
custody of any person is withheld from
the person entitled thereto (Tijing vs.
CERTIORARI, CA, GR No. 125901, March 8, 2001).
PROHIBITION AND HABEAS CORPUS 6. The writ was issued on the ground that
MANDAMUS moral restraint was being exerted by the
Special Civil Action Special proceeding employer to prevent the housemaid from
under Rule 65 leaving (Caunca vs. Salazar, 82 Phil.
It reaches the record; It reaches the body but 851).
concerned with errors not the records; inquiry
of jurisdiction on the legality of the NATURE OF THE PROCEEDING
committed by the court detention Petition for HC is like a proceeding IN REM
Direct attack Collateral attack because, it is an inquisition by the government,
at the suggestion and instance of an individual,
Failure to file comment Failure to file return
most probably, but still in the name and capacity
will not be punished by constitutes indirect
contempt and will not contempt of the sovereign. It is also instituted for the
purpose of fixing the status of a person and that
even be declared in
default there can be no judgment entered against
anybody since there is no real plaintiff and
Court and prevailing Respondent is the
defendant (Alimpos vs. CA, 106 SCRA 159).
party are named detainer
defendants
PURPOSE: The essential object and purpose of
.
the wit of HC is to inquire into all manners of
involuntary restraint as distinguished from
Section 1. To what habeas corpus extends. — voluntary, and to relieve the person therefrom, if
Except as otherwise expressly provided by law, the such restraint is illegal (Moncupa vs. Enrile, 141
writ of habeas corpus shall extend to all cases of SCRA233).
illegal confinement or detention by which any
person is deprived of his liberty, or by which the Any further rights of the parties are left
rightful custody of any person is withheld from untouched by decision on the wit, whose
the person entitled thereto.

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 331

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principal purpose is to set the individual at liberty
(Villavicencio vs. Lukban, 39 Phil. 778).
The general rule is that HC is a remedy availed
only against living person.
Exceptional case: Custody of the deceased body
of the person subject of a petition for HC, who died
during the pendency of the HC proceedings, was
awarded in a HC case by mere amendment of the
pleadings (Eugenio, Sr. vs. Velez, 185 SCRA 425).
WHEN DOES THE COURT ACQUIRE
JURISDICTION OVER THE PERSON OF THE
RESPONDENT:
The Writ itself plays the rule of summons in ordinary
actions; Court acquires jurisdiction over the person
of the respondent BY MERE SERVICE OF THE
WRIT.
GROUNDS FOR THE SUSPENSION OF THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS
UNDER THE CONSTITUTION:
1. Invasion, when public safety requires it;
2. Rebellion, when public safety requires it.
The following is a constitutional provision
pertinent to HC:
Section 18, Art. VII. The President shall be the
Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary,
he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion.
In case of invasion or rebellion, when the public
safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the
Philippines or any part thereof under martial law.
Within forty-eight hours from the proclamation
of martial law or the suspension of the privilege
of the writ of habeas corpus, the President shall
submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote
of at least a majority of all its Members in regular
or special session, may revoke such proclamation
or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the
President, the Congress may, in the same
manner, extend such proclamation or suspension
for a period to be determined by the Congress, if
the invasion or rebellion shall persist and public
safety requires it.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
The Congress, if not in session, shall, within
twenty-four hours following such
proclamation or suspension, convene in
accordance with its rules without need of a
call.
The Supreme Court may review, in an
appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the
proclamation of martial law or the suspension
of the privilege of the writ or the extension
thereof, and must promulgate its decision
thereon within thirty days from its filing.
A state of martial law does not suspend the
operation of the Constitution, nor supplant
the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies
over civilians where civil courts are able to
function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ
shall apply only to persons judicially charged
for rebellion or offenses inherent in or
directly connected with invasion.
During the suspension of the privilege of the
writ, any person thus arrested or detained
shall be judicially charged within three days,
otherwise he shall be released. (ARTICLE VII,
sec. 18).
IN CASE OF ILLEGAL CONFINEMENT OR
DETENTION
GR: the release, whether permanent or
temporary, of a detained person renders the
petition for HC moot and academic.
Exception: When there are restraints attached
to his release which precludes freedom of
action, in which case the court can still inquire
into the nature of his involuntary restraint
(Villavicencio vs. Lukban, supra).
VOLUNTARY RESTRAINT
GR: Writ not available if restraint is voluntary.
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Exception: Writ will lie to enable the parents (or
persons having substitute parental authority) to
recover custody of a minor child although she is in
custody of a 3rd person on his/her own volition.
NOTE: Voluntariness is viewed from the viewpoint
of the person entitled to custody.
WHEN PETITION FOR HC NOT PROPER:
1. For asserting or vindicating denial of right to
bail; and
2. For correcting errors in appreciation of facts
or appreciation of law.
HC can never be a substitute of an appeal.
Can HC may be properly be filed with petition for
certiorari and mandamus:
The court ruled that the writs of HC and Certiorari
may be ancillary to each other where necessary to
give effect to the supervisory powers of the higher
courts.
A writ of HC reaches the body and the jurisdictional
matters, but not the record. A writ of certiorari
reaches the record but not the body.
Hence, a writ of HC may be used with the writ of
certiorari for the purpose of review. However, HC
does not lie where the petitioner has remedy of
appeal because it will not be permitted to perform
the function of a writ of error or appeal for the
purpose of reviewing mere errors or irregularities in
the proceedings of a court having jurisdiction over
the person and the subject matter (Galvez, et. Al.
vs.CA, et. Al. 237 SCRA 685).
Section 2. Who may grant the writ. — The writ of
habeas corpus may be granted by the Supreme
Court, or any member thereof in the instances
authorized by law, and if so granted it shall be
enforceable anywhere in the Philippines, and may
be made returnable before the court or any member
thereof, or before a Court of First Instance, or any
judge thereof for the hearing and decision on the
merits. It may also be granted by a Court of First
Instance, or a judge thereof, on any day and at any
time, and returnable before himself, enforceable
only within his judicial district.
Note: RTC, CA, and SC have concurrent jurisdiction
to issue writs of HC. The MTC can issue the writ in
case there is no available RTC judge. Hierarchy of
courts is not observed.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Bar Exam Question 2012
53. A judge of an MTC can hear and decide
petitions for habeas corpus or applications
for bail where:
a. the Supreme Court authorizes the MTC.
b. the judge is the Executive Judge of the
MTC.
c. the judge of the RTC where the case is
raffled has retired, was dismissed or had
died.
d. in the absence of all the RTC Judges
in the province or city.
SUGGESTED ANSWER: (d), In the
absence of all the Regional Trial Judges
in a province or city, any Metropolitan
Trial Judge, Municipal Trial Judge,
Municipal Circuit Trial Judge may hear
and decide petitions for a writ of habeas
corpus or applications for bail in
criminal cases in the province or city
where the absent Regional Trial Judges
sit. (Section 35, Batas Pambansa Blg.
129).
Habeas Corpus (2003)
Widow A and her two children, both girls, aged 8
and 12 years old, reside in Angeles City, Pampanga.
A leaves her two daughters in their house at night
because she works in a brothel as a prostitute.
Realizing the danger to the morals of these two girls,
B, the father of the deceased husband of A, files a
petition for abeas corpus against A for the custody
of the girls in the Family Court in Angeles City. In
said petition, B alleges that he is entitled to the
custody of the two girls because their mother is
living a disgraceful life. The court issues the writ of
habeas corpus. When A learns of the petition and
the writ, she brings her two children to Cebu City.
At the expense of B the sheriff of the said Family
Court goes to Cebu City and serves the writ on A. A
files her comment on the petition raising the
following defenses: a) The enforcement of the writ
of habeas corpus in Cebu City is illegal; and b) B has
no personality to institute the petition. 6% Resolve
the petition in the light of the above defenses of A.
(6%)
SUGGESTED ANSWER:
(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 Supreme Court or Court
of Appeals which is enforceable anywhere in the
Philippines. (Sec. 20 of Rule on Custody of Minors and
Writ of Habeas Corpus in Relation to Custody of
Minors. (A.M. No. 03-04-04-SC; see also Sec. 4 of Rule
102, Rules of Court.)
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(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 as against the mother A who is a
prostitute. (Sectioins 2 and 13, Id.)
Sandiganbayan may issue writs of HC only if it is in
aid of its appellate jurisdiction.
Habeas Corpus; Jurisdiction; Sandiganbayan (2009)
No.XI.C. In the exercise of its original jurisdiction, the
Sandiganbayan may grant petitions for the issuance of a
writ of habeas corpus. SUGGESTED ANSWER:
FALSE. The Sandiganbayan may grant petitions for
Habeas corpus only in aid of its appellate
jurisdiction (R.A. 7975, as amended by R.A 8249),
not in the exercise of “original” jurisdiction.
Bar Exam Question 2012
57. The Sandiganbayan can entertain a quo
warranto petition only in:
a. cases involving public officers with salary
grade 27 or higher.
b. only in aid of its appellate jurisdiction.
c. as a provisional remedy.
d. cases involving "ill gotten wealth".
SUGGESTED ANSWER:
(b), The Sandiganbayan shall have exclusive
original jurisdiction over petitions for the
issuance of the writs of mandamus,
prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and
processes in aid of its appellate jurisdiction
and over petitions of similar nature,
including quo warranto, arising or that may
arise in cases filed or which may be filed
under Executive Order Nos. 1, 2, 14 and 14-
A, issued in 1986: Provided, that the
jurisdiction over these petitions shall not
be exclusive of the Supreme Court. (Sec. 4,
R.A. 8249, Act amending P.D. 1606).
Bar Exam Question 2012
85. Sandiganbayan exercises concurrent
jurisdiction with the Supreme Court and the
Court of Appeals over:
a. Petitions for Writ of Certiorari and
Prohibition;
b. Petitions for Writ of Habeas Corpus;
c. Petitions for Quo Warranto;
d. Petitions for Writ of Amparo and Habeas
Corpus.
SUGGESTED ANSWER: (d), The
Sandiganbayan shall have exclusive original
jurisdiction over petitions for the issuance
of the writs of mandamus, prohibition,
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
certiorari, habeas corpus, injunction,
and other ancillary writs and processes
in aid of its appellate jurisdiction:
Provided, that the jurisdiction over
these petitions shall not be exclusive of
the Supreme Court. (Sec.2, R.A. 7975-An
Act to Strengthen the Functional and
Structural Organization of the
Sandiganbayan, amending for that
purpose Presidential Decree No. 1606, as
amended).
COLLEGIATE RTC
COURTS
Enforceable throughout Enforceable only within
the Philippines their respective judicial
region
Returnable to any court Returnable only to
itself.
JURISDICTION IN CASES OF HABEAS
CORPUS WITH RESPECT TO CUSTODY OF
MINORS
Although the Family Court where the petitioner
resides or where the minor may be found has
exclusive and original jurisdiction to hear
petitions for HC with respect to minors, the SC
and the CA can take cognizance of such petition
in order that it may be enforceable within the
Philippines.
However, the return can be heard in the FC/RTC
if there is no FC in the judicial region and there
is no need to file a separate petition for custody
because the issue can be ventilated in the
petition for the writ.
Jurisdiction; Habeas Corpus; Custody of Minors (2005)
While Marietta was in her place of work in Makati
City,
her estranged husband Carlo barged into her house
in
Paranaque City, abducted their six-year old son,
Percival, and brought the child to his hometown in
Baguio City. Despite Marietta's pleas, Carlo refused
to return their child. Marietta, through counsel, filed
a petition for habeas corpus against Carlo in the
Court of Appeals in Manila to compel him to
produce their son, before the court and for her to
regain custody.
She alleged in the petition that despite her efforts,
she
could no longer locate her son. In his comment,
Carlo alleged that the petition was erroneously filed
in the Court of Appeals as the same should have
been filed in the Family Court in Baguio City which,
under Republic Act No. 8369, has exclusive
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jurisdiction, over the petition. Marietta replied that under
Rule 102 of the Rules of Court, as amended, the petition
may be filed in the Court of Appeals and if granted, the
writ of habeas corpus shall be enforceable anywhere in
the Philippines. Whose contention is correct? Explain.
(5%)
SUGGESTED ANSWER:
Marietta's contention is correct. The Court of Appeals
has concurrent jurisdiction with the family courts and
the Supreme Court in petitions for habeas corpus where
the custody of minors is at issue, notwithstanding the
provision in the Family Courts AH. (R.A. No. 8369) that
family courts have exclusive jurisdiction in such cases.
(Thornton v. Thornton, G.R. No. 154598, August, 2004)
REQUISITES for the issuance of the writ in
cases where the rightful custody over the
person of the minor is withheld from the person
entitled thereto:
1. That the petitioner has the right to the
custody over the minor;
2. That the rightful custody of the minor is
being withheld from the petitioner by
respondent;
3. That it is for the best interest of the minor to
be in the custody of the petitioner and not
that of respondent (Sombong vs. CA,
January 31, 1996).
Section 3. Requisites of application therefor. —
Application for the writ shall be by petition signed
and verified either by the party for whose relief it is
intended, or by some person on his behalf, and shall
set forth:
(a) That the person in whose behalf the
application is made is imprisoned or restrained
on his liberty;
(b) The officer or name of the person by whom
he is so imprisoned or restrained; or, if both are
unknown or uncertain, such officer or person
may be described by an assumed appellation,
and the person who is served with the writ shall
be deemed the person intended;
(c) The place where he is so imprisoned or
restrained, if known;
(d) A copy of the commitment or cause of
detention of such person, if it can be procured
without impairing the efficiency of the remedy;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
or, if the imprisonment or restraint is without
any legal authority, such fact shall appear.
NOTE: The liberal application of the Rules in
accepting petitions for HC filed by detained
prisoners (Ucat).
Section 4. When writ not allowed or discharge
authorized. — If it appears that the person
alleged to be restrained of his liberty is in the
custody of an officer under process issued by a
court or judge or by virtue of a judgment or order
of a court of record, and that the court or judge
had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not
be allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be
discharged by reason of any informality or defect
in the process, judgment, or order. Nor shall
anything in this rule be held to authorize the
discharge of a person charged with or convicted
of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment.
GROUNDS FOR DENIAL OR DISCHARGE OF
THE WRIT:
1. If the person is in custody of an officer
under process issued by a court or by
virtue of a judgment or order of a court
of record which has jurisdiction to issue
the process, render judgment or make
the order
a) Warrant of arrest;
b) Writ of mitimus;
c) Commitment order;
d) Imprisoned for direct contempt;
e) Others (failure to obey an order
of the court).
2. If jurisdiction appears after the writ is
allowed;
3. If the person is charged and convicted of
an offense in the Philippines;
4. If the person is suffering imprisonment
under lawful judgment;
5. A 3 day detention period of a suspect
without charge as provided under the
Human Security Acts (sec. 18, RA
9372).
Supervening Events may BAR release
Even if the arrest of a person is illegal,
supervening events may bar release or
discharge from custody. What is to be inquired
into is the legality of detention as of, at the
earliest, the filing of the application for the writ of
HC, for even the detention is at its inception is
illegal, it may, by reason of some supervening
events such as the instances mentioned in
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section 4, be no longer illegal at the time of the filing
of the application (Velasco vs. CA, July 7, 1995).
Habeas Corpus; Bail (2008)
No.XIX. After Alma had started serving her
sentence for violation of BP 22, she filed a
petition for a writ of habeas corpus, citing Vaca
vs CA where the sentence of imprisonment of a
party found guilty of violation of BP 22 was
reduced to a fine equal to double the amount
of the check involved. She prayed that her
sentence be similarly modified and that she be
immediately released from detention. In the
alternative, she prayed that pending
determination on whether the Vaca ruling
applies to her, she be allowed to post bail
pursuant to Rule 102, Sec. 14, which provides
that if a person is lawfully imprisoned or
restrained on a charge of having committed an
offense not punishable by death, he may be
admitted to bail in the discretion of the court.
accordingly, the trial court allowed Alma to
post bail and then ordered her release. In your
opinion, is the order of the trial court correct –
(a) Under Rule 102? SUGGESTED ANSWER:
No, Alma, who is already convicted by final
judgment, cannot be entitled to bail under
Sec. 14, Rule 102. The provision
presupposes that she had not been
convicted as yet. It provides that if she is
lawfully imprisoned or restrained for an
offense not punishable by death, she may be
recommitted to imprisonment or admitted
to bail in the discretion of the court or
judge (Sec. 14, Rule 102; Celeste vs. People,
31 SCRA 391; Vicente vs. Judge Majaducon,
A.M. No. RTJ-02-1698, 23 June 2005; San
Pedro vs. Peo, G.R. No. 133297, 15 August
2002).
(b) Under the Rules of criminal procedure?
SUGGESTED ANSWER: Under the Rules of
Criminal Procedure, Rule 114, Sec. 24
clearly prohibits the grant of bail after
conviction by final judgment and after the
convict has started to serve sentence. In
the present case, Alma had already started
serving her sentence. She cannot, therefore,
apply for bail (Peo. vs. Fitzgerald, G.R. No.
149723, 27 October 2006).
Habeas Corpus (1998)
A was arrested on the strength of a warrant of arrest
issued by the RTC in connection with an Information
for Homicide. W, the live-in partner of A filed a petition
for habeas corpus against A's jailer and police
investigators with the Court of Appeals.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
1. Does W have the personality to file the petition
for habeas corpus? [2%]
2. Is the petition tenable? [3%]
SUGGESTED ANSWER:
1. Yes. W, the live-in partner of A, has the
personality to file the petition for habeas corpus
because it may be filed by "some person in his
behalf." (Sec. 3. Rule 102. Rules
of Court.)
2. No. The petition is not tenable because the
warrant of arrest was issued by a court which had
Jurisdiction to issue it (Sec. 4, Rule 102 Rules of Court)
Section 5. When the writ must be granted and
issued. — A court or judge authorized to grant
the writ must, when a petition therefor is
presented and it appears that the writ ought to
issue, grant the same forthwith, and immediately
thereupon the clerk of the court shall issue the
writ under the seal of the court; or in case of
emergency, the judge may issue the writ under
his own hand, and may depute any officer or
person to serve it.
PRELIMINARY CITATION
This refers to a citation to the government officer
having the person in his custody to show cause
why he writ of HC should not issue (detention is
NOT PATENTLY illegal).
PEREMPTORY WRIT
This is issued when the cause of detention
appears to be patently illegal and the non-
compliance therewith is punishable.
PROCEDURE FOR THE GRANT OF WRIT:
1. Verified Petition signed by the party for
whose relief it is intended or by some
other person in his behalf;
2. Allowance of the writ;
3. Command officer to produce;
4. Service of writ by sheriff or other officer;
5. Return; and
6. Hearing on return.
Section 6. To whom writ directed, and what to
require. — In case of imprisonment or restraint
by an officer, the writ shall be directed to him,
and shall command him to have the body of the
person restrained of his liberty before the court
or judge designated in the writ at the time and
place therein specified. In case of imprisonment
or restraint by a person not an officer, the writ
shall be directed to an officer, and shall
command him to take and have the body of the
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person restrained of his liberty before the court or
judge designated in the writ at the time and place
therein specified, and to summon the person by
whom he is restrained then and there to appear
before said court or judge to show the cause of the
imprisonment or restraint.
Section 7. How prisoner designated and writ
served. — The person to be produced should be
designated in the writ by his name, if known, but if
his name is not known he may be otherwise
described or identified. The writ may be served in
any province by the sheriff or other proper officer, or
by a person deputed by the court or judge. Service
of the writ shall be made by leaving the original with
the person to whom it is directed and preserving a
copy on which to make return or service. If that
person cannot be found, or has not the prisoner in
his custody, then the service shall be made on any
other person having or exercising such custody.
Section 8. How writ executed and returned. —
The officer to whom the writ is directed shall convey
the person so imprisoned or restrained, and named
in the writ, before the judge allowing the writ, or in
case of his absence or disability, before some other
judge of the same court, on the day specified in the
writ, unless, from sickness or infirmity of the person
directed to be produced, such person cannot,
without danger, be bought before the court or judge;
and the officer shall make due return of the writ,
together with the day and the cause of the caption
and restraint of such person according to the
command thereof.
Section 9. Defect of form. — No writ of habeas
corpus can be disobeyed for defect of form, if it
sufficiently appears therefrom in whose custody or
under whose restraint the party imprisoned or
restrained is held and the court or judge before
whom he is to be bought.
Section 10. Contents of return. — When the
person to be produced is imprisoned or restrained
by an officer, the person who makes the return shall
state therein, and in other cases the person in
whose custody the prisoner is found shall state, in
writing to the court or judge before whom the writ is
returnable, plainly and unequivocably:
(a) Whether he has or has not the party in
his custody or power, or under restraint;
(b) If he has the party in his custody or
power, or under restraint, the authority and
the true and whole cause thereof, set forth
at large, with a copy of the writ, order
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
execution, or other process, if any, upon
which the party is held;
(c) If the party is in his custody or power
or is restrained by him, and is not
produced, particularly the nature and
gravity of the sickness or infirmity of
such party by reason of which he
cannot, without danger, be bought
before the court or judge;
(d) If he has had the party in his custody
or power, or under restraint, and has
transferred such custody or restraint to
another, particularly to whom, at what
time, for what cause, and by what
authority such transfer was made.
Section 11. Return to be signed and sworn to.
— The return or statement shall be signed by
the person who makes it; and shall also be
sworn by him if the prisoner is not produced, and
in all other cases unless the return is made and
signed by a sworn public officer in his official
capacity.
Section 12. Hearing on return. Adjournments.
— When the writ is returned before one judge, at
a time when the court is in session, he may
forthwith adjourn the case into the court, there to
be heard and determined. The court or judge
before whom the writ is returned or adjourned
must immediately proceed to hear and examine
the return, and such other matters as are
properly submitted for consideration, unless for
good cause shown the hearing is adjourned, in
which event the court or judge shall make such
order for the safekeeping of the person
imprisoned or restrained as the nature of the
case requires. If the person imprisoned or
restrained is not produced because of his
alleged sickness or infirmity, the court or judge
must be satisfied that it is so grave that such
person cannot be produced without danger,
before proceeding to hear and dispose of the
matter. On the hearing the court or judge shall
disregard matters of form and technicalities in
respect to any warrant or order of commitment
of a court or officer authorized to commit by law.
Section 13. When the return evidence, and
when only a plea. — If it appears that the
prisoner is in custody under a warrant of
commitment in pursuance of law, the return shall
be considered prima facie evidence of the cause
of restraint, but if he is restrained of his liberty by
any alleged private authority, the return shall be
considered only as a plea of the facts therein set
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forth, and the party claiming the custody must prove
such facts.
NOTES:
A. If return is filed by a public officer, the
detention is disputably presumed legal—
burden is on the petitioner to show illegality
of detention.
B. If private authority, it is merely considered
allegations, hence the party claiming
custody must prove such fact.
Section 14. When person lawfully imprisoned
recommitted, and when let to bail. — If it appears
that the prisoner was lawfully committed, and is
plainly and specifically charged in the warrant of
commitment with an offense punishable by death,
he shall not be released, discharged, or bailed. If he
is lawfully imprisoned or restrained on a charge of
having committed an offense not so punishable, he
may be recommitted to imprisonment or admitted to
bail in the discretion of the court or judge. If he be
admitted to bail, he shall forthwith file a bond in such
sum as the court or judge deems reasonable,
considering the circumstances of the prisoner and
the nature of the offense charged, conditioned for
his appearance before the court where the offense
is properly cognizable to abide its order of judgment;
and the court or judge shall certify the proceedings,
together with the bond, forthwith to the proper court.
If such bond is not so filed, the prisoner shall be
recommitted to confinement.
COMMENT: This seemed to be a misplaced
provision.
Section 15. When prisoner discharged if no
appeal. — When the court or judge has examined
into the cause of caption and restraint of the
prisoner, and is satisfied that he is unlawfully
imprisoned or restrained, he shall forthwith order his
discharge from confinement, but such discharge
shall not be effective until a copy of the order has
been served on the officer or person detaining the
prisoner. If the officer or person detaining the
prisoner does not desire to appeal, the prisoner
shall be forthwith released.
Section 16. Penalty for refusing to issue writ, or
for disobeying the same. — A clerk of a court who
refuses to issue the writ after allowance thereof and
demand therefor, or a person to whom a writ is
directed, who neglects or refuses to obey or make
return of the same according to the command
thereof, or makes false return thereof, or who, upon
demand made by or on behalf of the prisoner,
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
refuses to deliver to the person demanding,
within six (6) hours after the demand therefor, a
true copy of the warrant or order of commitment,
shall forfeit to the party aggrieved the sum of
one thousand pesos, to be recovered in a proper
action, and may also be punished by the court or
judge as for contempt.
Section 17. Person discharged not to be
again imprisoned. — A person who is set at
liberty upon a writ of habeas corpus shall not be
again imprisoned for the same offense unless by
the lawful order or process of a court having
jurisdiction of the cause or offense; and a person
who knowingly, contrary to the provisions of this
rule, recommits or imprisons, or causes to be
committed or imprisoned, for the same offense,
or pretended offense, any person so set at
liberty, or knowingly aids or assists therein, shall
forfeit to the party aggrieved the sum of one
thousand pesos, to be recovered in a proper
action, notwithstanding any colorable pretense
or variation in the warrant of commitment, and
may also be punished by the court or judge
granting the writ as for contempt.
Section 18. When prisoner may be removed
from one custody to another. — A person
committed to prison, or in custody of an officer,
for any criminal matter, shall not be removed
therefrom into the custody of another unless:
1. by legal process, or
2. the prisoner be delivered to an inferior
officer to carry to jail,
3. or, by order of the proper court or judge,
be removed from one place to another
within the Philippines for trial,
4. or in case of fire epidemic, insurrection,
or other necessity or public calamity;
and a person who, after such commitment,
makes signs, or counter-signs any order for
such removal contrary to this section, shall
forfeit to the party aggrieved the sum of one
thousand pesos, to be recovered in a proper
action.
Section 19. . — The proceedings upon a
writ of habeas corpus shall be recorded by the
clerk of the court, and upon the final disposition
of such proceedings the court or judge shall
make such order as to costs as the case
requires. The fees of officers and witnesses
shall be included in the costs taxed, but no
officer or person shall have the right to demand
payment in advance of any fees to which he is
entitled by virtue of the proceedings. When a
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person confined under color of proceedings in a
criminal case is discharged, the costs shall be taxed
against the Republic of the Philippines, and paid out
of its Treasury; when a person in custody by virtue
or under color of proceedings in a civil case is
discharged, the costs shall be taxed against him, or
against the person who signed the application for
the writ, or both, as the court shall direct.
RULE ON CUSTODY OF MINORS AND WRIT OF
HABEAS CORPUS IN RELATION TO THE
CUSTODY OF MINORS
(A.M. No. 03-04-04-SC)
WHO may file Petition (sec. 2):
A verified petition may be filed by any
person claiming such right.
WHERE to file petition (sec. 3):
Family Court of the province or city where
the petitioner resides or where the minor
may be found.
CONTENTS of the Petition (sec. 4):
1. The personal circumstances of the
petitioner and respondent;
2. The name, age and present whereabouts of
the minor and his relationship to the
petitioner and respondent;
3. The material operative facts constituting
deprivation of custody;
4. Such other matters which are relevant to the
custody of the minor.
NOTE: Motion to Dismiss is not allowed except on
the ground of lack of jurisdiction over the subject
matter and over the parties.
Respondent must file verified answer within 5 days
from service of summons and a copy of the petition.
Provisional Order awarding custody (sec. 13)
As far as practicable, the following order of
preference shall be observed in the award of
custody:
1. Both parents jointly;
2. Either parent, taking into account all
relevant considerations, especially the
choice of the minor over 7 years of age and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
of sufficient discernment, unless the
parent chosen is unfit;
3. The grandparent, or if there are several
of them, the grandparent chosen by the
minor over 7 years of age and of
sufficient discernment, unless the
grandparent chosen is unfit or
disqualified;
4. The eldest brother or sister over 21yars
of age unless unfit or disqualified;
5. The actual custodian of the minor over
21 years of age, unless unfit or
disqualified;
6. Any other person or institution which the
court may deem suitable to provide
proper care and guidance for the minor.
Habeas Corpus (2007)
No.IV. Husband H files a petition for
declaration of nullity of marriage before the
RTC of Pasig City. Wife W files a petition for
habeas corpus before the RTC of Pasay
City, praying for custody over their minor
child. H files a motion to dismiss the wife’s
petition on the ground of the pendency of
the other case. Rule. SUGGESTED
ANSWER: The motion to dismiss the
petition for habeas corpus should be
granted to avoid multiplicity of suits.
The question of who between the
spouses should have custody of their
minor child could also be determined in
the petition for declaration of nullity of
their marriage which is already pending
in the RTC of Pasig City. In other words,
the petition filed in Pasig City, praying
for custody of the minor child is
unnecessary and violates only the
cardinal rules of procedure against
multiplicity of suits. Hence, the latter
suit may be abated by a motion to
dismiss on the ground of litis pendentia
(Yu v. Yu, 484 SCRA 485 [2006]).
Bar Exam Question 2011
(54) Dorothy filed a petition for writ of
habeas corpus against her husband, Roy,
to get from him custody of their 5 year old
son, Jeff. The court granted the petition
and required Roy to turn over Jeff to his
mother. Roy sought reconsideration but the
court denied it. He filed a notice of appeal
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five days from receipt of the order denying his
motion for reconsideration. Did he file a timely
notice of appeal? (A) No, since he filed it more
than 2 days after receipt of the decision
granting the petition. (B) No, since he filed it
more than 2 days after receipt of the order
denying his motion for reconsideration. (C)
Yes, since he filed it within 15 days from
receipt of the denial of his motion for
reconsideration. (D) Yes, since he filed it within
7 days from receipt of the denial of his motion
for reconsideration.
Temporary Visitation Rights (sec.15)
The court shall provide in its order awarding
provisional custody appropriate visitation rights to
the non-custodial parent or parents unless the court
finds said parent or parents unfit or disqualified.
Hold Departure Order (sec. 16)
The minor child subject of the petition shall not be
brought out of the country without prior court order
while the petition is pending.
The court may, motu proprio or upon application
under oath, issue an ex parte hold departure order.
Petition for HC (sec. 20).
 Shall be filed with the Family Court where
the petitioner resides or where the minor
may be found;
 Shall be enforceable in the judicial region to
which the Family Court belongs;
 The petition may, however be brought with
the regular court in the absence of presiding
judge of the Family Court, provided however
that the regular court shall refer the case to
the Family Court as soon as its presiding
judge returns to duty;
 Petition may also be filed with SC, CA or
any of its presiding members and, if so
granted, shall be enforceable anywhere in
the Philippines. The writ may be returnable
to a Family Court or to any regular court
within the region where the petitioner
resides or where the minor may be found for
hearing and decision on the merits.
Republic of the Philippines
SUPREME COURT
Manila
A.M. No. 07-9-12-SC
(25 September 2007)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
THE RULE ON THE WRIT OF AMPARO
Note: The basis of the Rule is the Rule-Making
Power of the Supreme Court – Art. VIII, sec. 5 of
the 1987 Constitution.
The Writ is merely remedial in nature.
There is no criminal nor administrative
liability.
There is, however, liability for contempt.
SECTION 1. Petition. – The petition for a writ
of amparo is a remedy available to any person
whose right to life, liberty and security is violated
or threatened with violation by an unlawful act or
omission of a public official or employee, or of a
private individual or entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
Bar Exam Question 2011
(44) What is the right correlation between a
criminal action and a petition for Writ of
Amparo both arising from the same set of
facts?
(A) When the criminal action is filed after
the Amparo petition, the latter shall be
dismissed. (B) The proceeding in an Amparo
petition is criminal in nature. (C) No
separate criminal action may be instituted
after an Amparo petition is filed. (D) When
the criminal action is filed after the
Amparo petition, the latter shall be
consolidated with the first.
Writ of Amparo; Habeas Corpus (2009)
No.XIX.B. What is the writ of amparo? How
is it distinguished from the writ of habeas
corpus? SUGGESTED ANSWER: A writ of
amparo is a remedy available to any
person whose right to life, liberty, and
security is violated or threatened with
violation by an unlawful act or omission
of a public official or employee, or of a
private individual or entity. The writ
shall cover extralegal killings and
enforced disappearances or threats
thereof. Whereas a writ of habeas corpus
is a remedy available to any individual
who is deprived of liberty or whose
rightful custody of any person is
withheld, by unlawful confinement or
detention.
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A writ of amparo may be appealed to the
Supreme Court under Rule 45 raising
questions of fact or law or both. The appeal
shall be made within 5 working days from
the date of notice of the adverse judgment.
The period for appeal for habeas corpus
shall be 48hours from the notice of the
judgment appealed from.
Bar Exam Question 2011
(45) Alex filed a petition for writ of amparo
against Melba relative to his daughter Toni's
involuntary disappearance. Alex said that
Melba was Toni's employer, who, days before
Toni disappeared, threatened to get rid of her
at all costs. On the other hand, Melba
countered that she had nothing to do with
Toni's disappearance and that she took steps
to ascertain Toni's whereabouts. What is the
quantum of evidence required to establish the
parties' respective claims? (A) For Alex,
probable cause; for Melba, substantial
evidence. (B) For Alex, preponderance of
evidence; for Melba, substantial evidence. (C)
For Alex, proof beyond reasonable doubt; for
Melba, ordinary diligence.
(D) For both, substantial evidence.
Note connect to Rule 133.
SEC. 2. Who May File. – The petition may be filed
by the aggrieved party or by any qualified person or
entity in the following order:
a. Any member of the immediate family,
namely: the spouse, children and parents of
the aggrieved party;
b. Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph; or
c. Any concerned citizen, organization,
association or institution, if there is no
known member of the immediate family or
relative of the aggrieved party.
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties to
file similar petitions. Likewise, the filing of the
petition by an authorized party on behalf of the
aggrieved party suspends the right of all others,
observing the order established herein.
SEC. 3. Were to File. – The petition may be filed on
ny day and at any time with the Regional Trial Court
of the place where the threat, act or omission was
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
committed or any of its elements occurred, or
with the Sandiganbayan, the Court of Appeals,
the Supreme Court, or any justice of such
courts. The writ shall be enforceable anywhere
in the Philippines.
When issued by a Regional Trial Court or any
judge thereof, the writ shall be returnable before
such court or judge.
When issued by the Sandiganbayan or the Court
of Appeals or any of their justices, it may be
returnable before such court or any justice
thereof, or to any Regional Trial Court of the
place where the threat, act or omission was
committed or any of its elements occurred.
When issued by the Supreme Court or any of its
justices, it may be returnable before such Court
or any justice thereof, or before the
Sandiganbayan or the Court of Appeals or any
of their justices, or to any Regional Trial Court of
the place where the threat, act or omission was
committed or any of its elements occurred.
SEC. 4. No Docket Fees. – The petitioner shall
be exempted from the payment of the docket
and other lawful fees when filing the petition.
The court, justice or judge shall docket the
petition and act upon it immediately.
SEC. 5. Contents of Petition. – The petition
shall be signed and verified and shall allege the
following:
a. The personal circumstances of the
petitioner;
b. The name and personal circumstances
of the respondent responsible for the
threat, act or omission, or, if the name is
unknown or uncertain, the respondent
may be described by an assumed
appellation;
c. The right to life, liberty and security of
the aggrieved party violated or
threatened with violation by an unlawful
act or omission of the respondent, and
how such threat or violation is
committed with the attendant
circumstances detailed in supporting
affidavits;
d. The investigation conducted, if any,
specifying the names, personal
circumstances, and addresses of the
investigating authority or individuals, as
well as the manner and conduct of the
investigation, together with any report;
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e. The actions and recourses taken by the or omission against the aggrieved party;
petitioner to determine the fate or and
whereabouts of the aggrieved party and the d. If the respondent is a public official or
identity of the person responsible for the employee, the return shall further state
threat, act or omission; and the actions that have been or will still be
f. The relief prayed for. taken:

The petition may include a general prayer for other i. to verify the identity of the
just and equitable reliefs. aggrieved party;
ii. to recover and preserve
SEC. 6. Issuance of the Writ. – Upon the filing of evidence related to the death or
the petition, the court, justice or judge shall disappearance of the person
immediately order the issuance of the writ if on its identified in the petition which
face it ought to issue. The clerk of court shall issue may aid in the prosecution of
the writ under the seal of the court; or in case of the person or persons
urgent necessity, the justice or the judge may issue responsible;
the writ under his or her own hand, and may iii. to identify witnesses and obtain
deputize any officer or person to serve it. statements from them
concerning the death or
disappearance;
The writ shall also set the date and time for
summary hearing of the petition which shall not be iv. to determine the cause, manner,
later than seven (7) days from the date of its location and time of death or
disappearance as well as any
issuance.
pattern or practice that may
have brought about the death or
SEC. 7. Penalty for Refusing to Issue or Serve disappearance;
the Writ. – A clerk of court who refuses to issue the v. to identify and apprehend the
writ after its allowance, or a deputized person who person or persons involved in
refuses to serve the same, shall be punished by the the death or disappearance; and
court, justice or judge for contempt without prejudice vi. to bring the suspected offenders
to other disciplinary actions. before a competent court.

SEC. 8. How the Writ is Served. – The writ shall be
served upon the respondent by a judicial officer or
by a person deputized by the court, justice or judge
who shall retain a copy on which to make a return of
service. In case the writ cannot be served
personally on the respondent, the rules on
substituted service shall apply.
The return shall also state other matters relevant
to the investigation, its resolution and the
prosecution of the case.
A general denial of the allegations in the petition
shall not be allowed.

SEC. 10. Defenses not Pleaded Deemed

SEC. 9. Return; Contents. – Within seventy-two
(72) hours 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. The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security
of the aggrieved party, through any act or
omission;
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
Waived. — All defenses shall be raised in the
return, otherwise, they shall be deemed waived.
SEC. 11. Prohibited Pleadings and Motions. –
The following pleadings and motions are
prohibited:
a. Motion to dismiss;
b. Motion for extension of time to file
return, opposition, affidavit, position
paper and other pleadings;
c. Dilatory motion for postponement;
d. Motion for a bill of particulars;
e. Counterclaim or cross-claim;
f. Third-party complaint;
g. Reply;
h. Motion to declare respondent in default;
i. Intervention;

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 342

________________________________________________________________________________________________
j. Memorandum;
k. Motion for reconsideration of interlocutory
orders or interim relief orders; and
l. Petition for certiorari, mandamus or
prohibition against any interlocutory order.
Prohibited Pleadings (2010)
No. X. Marinella is a junior officer of the Armed
Forces of the Philippines who claims to have
personally witnessed the malversation of funds
given by US authorities in connection with the
Balikatan exercises. Marinella alleges that as a
result of her exposé, there are operatives
within the military who are out to kill her. She
files a petition for the issuance of a writ of
amparo against, among others, the Chief of
Staff but without alleging that the latter
ordered that she be killed. Atty. Daro, counsel
for the Chief of Staff, moves for the dismissal of
the Petition for failure to allege that his client
issued any order to kill or harm Marinella.
Rule on Atty. Daro’s motion. Explain. (3%)
SUGGESTED ANSWER: The motion to
dismiss must be denied on the ground that
it is a prohibited pleading under Section 11
(a) of the Rule on the Writ of Amparo.
Moreover, said Rule does not require the
petition therefor to allege a complete detail
of the actual or threatened violation of the
victim‟s rights. It is sufficient that there be
an allegation of real threat against
petitioner‟s life, liberty, and/or security
(Gen. A. Razon, Jr. vs. Tagitis, G.R. No.
182498, Dec. 03, 2009).
SEC. 12. Effect of Failure to File Return. — In
case the respondent fails to file a return, the court,
justice or judge shall proceed to hear the petition ex
parte.
SEC. 13. Summary Hearing. — The hearing on the
petition shall be summary. However, the court,
justice or judge may call for a preliminary
conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions
from the parties.
The hearing shall be from day to day until
completed and given the same priority as petitions
for habeas corpus.
SEC. 14. Interim Reliefs. — Upon filing of the
petition or at anytime before final judgment, the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
court, justice or judge may grant any of the
following reliefs:
(a) Temporary Protection Order. – The
court, justice or judge, upon motion or
motu proprio, may order that the
petitioner or the aggrieved party and any
member of the immediate family be
protected in a government agency or by
an accredited person or private
institution capable of keeping and
securing their safety. If the petitioner is
an organization, association or
institution referred to in Section 3(c) of
this Rule, the protection may be
extended to the officers involved.
The Supreme Court shall accredit the
persons and private institutions that
shall extend temporary protection to the
petitioner or the aggrieved party and any
member of the immediate family, in
accordance with guidelines which it shall
issue.
The accredited persons and private
institutions shall comply with the rules
and conditions that may be imposed by
the court, justice or judge.
(b) Inspection Order. — The court,
justice or judge, upon verified motion
and after due hearing, may order any
person in possession or control of a
designated land or other property, to
permit entry for the purpose of
inspecting, measuring, surveying, or
photographing the property or any
relevant object or operation thereon.
The motion shall state in detail the place
or places to be inspected. It shall be
supported by affidavits or testimonies of
witnesses having personal knowledge of
the enforced disappearance or
whereabouts of the aggrieved party.
If the motion is opposed on the ground
of national security or of the privileged
nature of the information, the court,
justice or judge may conduct a hearing
in chambers to determine the merit of
the opposition.
The movant must show that the
inspection order is necessary to
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establish the right of the aggrieved party
alleged to be threatened or violated.
The inspection order shall specify the
person or persons authorized to make the
inspection and the date, time, place and
manner of making the inspection and may
prescribe other conditions to protect the
constitutional rights of all parties. The order
shall expire five (5) days after the date of its
issuance, unless extended for justifiable
reasons.
(c) Production Order. – The court, justice
or judge, upon verified motion and after due
hearing, may order any person in
possession, custody or control of any
designated documents, papers, books,
accounts, letters, photographs, objects or
tangible things, or objects in digitized or
electronic form, which constitute or contain
evidence relevant to the petition or the
return, to produce and permit their
inspection, copying or photographing by or
on behalf of the movant.
The motion may be opposed on the ground
of national security or of the privileged
nature of the information, in which case the
court, justice or judge may conduct a
hearing in chambers to determine the merit
of the opposition.
The court, justice or judge shall prescribe
other conditions to protect the constitutional
rights of all the parties.
(d) Witness Protection Order. – The court,
justice or judge, upon motion or motu
proprio, may refer the witnesses to the
Department of Justice for admission to the
Witness Protection, Security and Benefit
Program, pursuant to Republic Act No.
6981.
The court, justice or judge may also refer
the witnesses to other government
agencies, or to accredited persons or
private institutions capable of keeping and
securing their safety.
Bar Exam Question 2012
2. Under the Rules on the Writ of Amparo,
interim relief orders may be issued by the
Court except:
a. production order;
b. witness protection order;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
c. hold departure order;
d. temporary protection order.
SUGGESTED ANSWER: (c), Under the
Rules on the Writ of Amparo, upon filing
of the petition or at any time before final
judgment, the court, justice or judge
may grant any of the following interim
relief orders; (a) Temporary Protection
Order; (b) Inspection Order; (c)
Production Order; and (c) Witness
Protection Order. It does not include
Hold Departure Order. (Sec. 12 (a) (b) (c)
(d), A.M. No.07-9-12-SC)
SEC. 15. Availability of Interim Reliefs to
Respondent. – Upon verified motion of the
respondent and after due hearing, the court,
justice or judge may issue an inspection order or
production order under paragraphs (b) and (c) of
the preceding section.
A motion for inspection order under this section
shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the
defenses of the respondent.
SEC. 16. Contempt. – The court, justice or
judge may order the respondent who refuses to
make a return, or who makes a false return, or
any person who otherwise disobeys or resists a
lawful process or order of the court to be
punished for contempt. The contemnor may be
imprisoned or imposed a fine.
SEC. 17. Burden of Proof and Standard of
Diligence Required. – The parties shall
establish their claims by substantial evidence.
The respondent who is a private individual or
entity must prove that ordinary diligence as
required by applicable laws, rules and
regulations was observed in the performance of
duty.
The respondent who is a public official or
employee must prove that extraordinary
diligence as required by applicable laws, rules
and regulations was observed in the
performance of duty.
The respondent public official or employee
cannot invoke the presumption that official duty
has been regularly performed to evade
responsibility or liability.
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SEC. 18. Judgment. — The court shall render
judgment within ten (10) days from the time the
petition is submitted for decision. If the allegations in
the petition are proven by substantial evidence, the
court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise,
the privilege shall be denied.
Note: The decision granting the privilege of the writ
is immediately executory. There is no need for a
motion for execution.
SEC. 19. Appeal. – Any party may appeal from the
final judgment or order to the Supreme Court under
Rule 45. The appeal may raise questions of fact or
law or both.
The period of appeal shall be five (5) working days
from the date of notice of the adverse judgment.
The appeal shall be given the same priority as in
habeas corpus cases.
SEC. 20. Archiving and Revival of Cases. – The
court shall not dismiss the petition, but shall archive
it, if upon its determination it cannot proceed for a
valid cause such as the failure of petitioner or
witnesses to appear due to threats on their lives.
A periodic review of the archived cases shall be
made by the amparo court that shall, motu proprio
or upon motion by any party, order their revival
when ready for further proceedings. The petition
shall be dismissed with prejudice upon failure to
prosecute the case after the lapse of two (2) years
from notice to the petitioner of the order archiving
the case.
The clerks of court shall submit to the Office of the
Court Administrator a consolidated list of archived
cases under this Rule not later than the first week of
January of every year.
SEC. 21. Institution of Separate Actions. — This
Rule shall not preclude the filing of separate
criminal, civil or administrative actions.
SEC. 22. Effect of Filing of a Criminal Action. –
When a criminal action has been commenced, no
separate petition for the writ shall be filed. The
reliefs under the writ shall be available by motion in
the criminal case.
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
amparo.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
SEC. 23. Consolidation. – When a criminal
action is filed subsequent to the filing of a
petition for the writ, the latter shall be
consolidated with the criminal action.
When a criminal action and a separate civil
action are filed subsequent to a petition for a writ
of amparo, the latter shall be consolidated with
the criminal action.
After consolidation, the procedure under this
Rule shall continue to apply to the disposition of
the reliefs in the petition.
SEC. 24. Substantive Rights. — This Rule
shall not diminish, increase or modify
substantive rights recognized and protected by
the Constitution.
SEC. 25. Suppletory Application of the Rules
of Court. – The Rules of Court shall apply
suppletorily insofar as it is not inconsistent with
this Rule.
SEC. 26. Applicability to Pending Cases. –
This Rule shall govern cases involving extralegal
killings and enforced disappearances or threats
thereof pending in the trial and appellate courts.
SEC. 27. Effectivity. – This Rule shall take
effect on October 24, 2007, following its
publication in three (3) newspapers of general
circulation.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A. M. No. 08-1-16-SC January 22, 2008
THE RULE ON THE WRIT OF HABEAS DATA
SECTION 1. Habeas Data. - The writ of
habeas data is a remedy available to any
person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful
act or omission of a public official or employee,
or of a private individual or entity engaged in the
gathering, collecting or storing of data or
information regarding the person, family, home
and correspondence of the aggrieved party.
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Habeas Data (2010) No.XX. Azenith, the
cashier of Temptation Investments, Inc.
(Temptation, Inc.) with principal offices in
Cebu City, is equally hated and loved by her
co-employees because she extends cash
advances or "vales " to her colleagues whom
she likes. One morning, Azenith discovers an
anonymous letter inserted under the door of
her office threatening to kill her. Azenith
promptly reports the matter to her superior
Joshua, who thereupon conducts an internal
investigation to verify the said threat. Claiming
that the threat is real, Temptation, Inc. opts to
transfer Azenith to its Palawan Office, a move
she resists in view of the company’s refusal to
disclose the results of its investigation.
Decrying the move as a virtual deprivation of
her employment, Azenith files a petition for the
issuance of a writ of habeas data before the
Regional Trial Court (RTC) to enjoin
Temptation, Inc. from transferring her on the
ground that the company’s refusal to provide
her with a copy of the investigation results
compromises her right to life, liberty and
privacy. Resolve the petition. Explain. (5%)
SUGGESTED ANSWER: Azenith‟s petition
for the issuance of a writ of habeas data
must be dismissed as there is no showing
that her right to privacy in life, liberty, or
security is violated or threatened by an
unlawful act or omission. Neither was the
company shown to be engaged in the
gathering, collecting nor storing of data or
information regarding the person, family,
home and correspondence of the aggrieved
party (Sec. 1, Rule on the Writ of Habeas
Data).
Habeas Data (2009) No.XIX.C. What is the
writ of habeas data? SUGGESTED ANSWER:
A writ of habeas data is a remedy available
to any persons whose right to privacy in
life, liberty, or security is violated or
threatened with violation by unlawful act or
omission of a public official or employee, or
of a private individual or entity engaged in
the gathering, collecting, or storing of data
or information regarding the person, family,
home and correspondence of the aggrieved
party.
SEC. 2. Who May File. - Any aggrieved party may
file a petition for the writ of habeas data. However,
in cases of extralegal killings and enforced
disappearances, the petition may be filed by:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(a) Any member of the immediate family of
the aggrieved party, namely: the spouse,
children and parents; or
(b) Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in the
preceding paragraph; or
SEC. 3. Where to File. - The petition may be
filed with the Regional Trial Court where the
petitioner or respondent resides, or that which
has jurisdiction over the place where the data or
information is gathered, collected or stored, at
the option of the petitioner.
The petition may also be filed with the Supreme
Court or the Court of Appeals or the
Sandiganbayan when the action concerns public
data files of government offices.
Bar Exam Question 2012
7. A wants to file a Petition for Writ of
Habeas Data against the AFP in connection
with threats to his life allegedly made by
AFP intelligence officers. A needs copies of
AFP highly classified intelligence reports
collected by Sgt. Santos who is from AFP. A
can file his petition with:
a. RTC where AFP is located;
b. RTC where Sgt. Santos resides;
c. Supreme Court;
d. Court of Appeals.
SUGGESTED ANSWER: (d), In accordance
with the principle of judicial hierarchy of
the courts, A should file with the Court
of Appeals.
ALTERNATIVE ANSWER: (b), The petition
may be filed with the Regional Trial
Court where the petitioner or respondent
resides, or that which has jurisdiction
over the place where the data or
information is gathered, collected or
stored, at the option of the petitioner.
(c), The petition may also be filed with
the Supreme Court or the Court of
Appeals or the Sandiganbayan when the
action concerns public data files of
government offices. (Sec.3, A.M. No. 08-
1-16-SC, The Rule on the Writ of Habeas
Data, January 22, 2008).
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SEC. 4. Where Returnable; Enforceable. - When
the writ is issued by a Regional Trial Court or any
judge thereof, it shall be returnable before such
court or judge.
When issued by the Court of Appeals or the
Sandiganbayan or any of its justices, it may be
returnable before such court or any justice thereof,
or to any Regional Trial Court of the place where the
petitioner or respondent resides, or that which has
jurisdiction over the place where the data or
information is gathered, collected or stored.
When issued by the Supreme Court or any of its
justices, it may be returnable before such Court or
any justice thereof, or before the Court of Appeals
or the Sandiganbayan or any of its justices, or to
any Regional Trial Court of the place where the
petitioner or respondent resides, or that which has
jurisdiction over the place where the data or
information is gathered, collected or stored.
The writ of habeas data shall be enforceable
anywhere in the Philippines.
Sec. 5. Docket Fees. - No docket and other lawful
fees shall be required from an indigent petitioner.
The petition of the indigent shall be docked and
acted upon immediately, without prejudice to
subsequent submission of proof of indigency not
later than fifteen (15) days from the filing of the
petition.
SEC. 6. Petition. - A verified written petition for a
writ of habeas data should contain:
(a) The personal circumstances of the petitioner
and the respondent;
(b) The manner the right to privacy is violated or
threatened and how it affects the right to life,
liberty or security of the aggrieved party;
(c) The actions and recourses taken by the
petitioner to secure the data or information;
(d) The location of the files, registers or
databases, the government office, and the
person in charge, in possession or in control of
the data or information, if known;
(e) The reliefs prayed for, which may include the
updating, rectification, suppression or
destruction of the database or information or
files kept by the respondent.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
In case of threats, the relief may include
a prayer for an order enjoining the act
complained of; and
(f) Such other relevant reliefs as are just and
equitable.
SEC. 7. Issuance of the Writ. - Upon the filing
of the petition, the court, justice or judge shall
immediately order the issuance of the writ if on
its face it ought to issue. The clerk of court shall
issue the writ under the seal of the court and
cause it to be served within three (3) days from
the issuance; or, in case of urgent necessity, the
justice or judge may issue the writ under his or
her own hand, and may deputize any officer or
person serve it.
The writ shall also set the date and time for
summary hearing of the petition which shall not
be later than ten (10) work days from the date of
its issuance.
SEC. 8. Penalty for Refusing to Issue or
Serve the Writ. - A clerk of court who refuses to
issue the writ after its allowance, or a deputized
person who refuses to serve the same, shall be
punished by the court, justice or judge for
contempt without prejudice to other disciplinary
actions.
SEC. 9. How the Writ is Served. - The writ
shall be served upon the respondent by a
judicial officer or by a person deputized by the
court, justice or judge who shall retain a copy on
which to make a return of service. In case the
writ cannot be served personally on the
respondent, the rules on substituted service
shall apply.
SEC. 10. Return; Contents. - The respondent
shall file a verified written return together with
supporting affidavits within five (5) working days
from service of the writ, which period may be
reasonably extended by the Court for justifiable
reasons. The return shall, among other things,
contain the following:
(a) The lawful defenses such as national
security, state secrets, privileged
communications, confidentiality of the
source of information of media and others;
(b) In case of respondent in charge, in
possession or in control of the data or
information subject of the petition;
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(i) a disclosure of the data or information
about the petitioner, the nature of such data
or information, and the purpose for its
collection;
(ii) the steps or actions taken by the
respondent to ensure the security and
confidentiality of the data or information;
and,
(iii) the currency and accuracy of the data or
information held; and,
(c) Other allegations relevant to the resolution of
the proceeding.
A general denial of the allegations in the petition
shall not be allowed.
SEC. 11. Contempt. - The court, justice or judge
may punish with imprisonment or fine a respondent
who commits contempt by making a false return, or
refusing to make a return; or any person who
otherwise disobeys or resist a lawful process or
order of the court.
SEC. 12. When Defenses May be Heard in
Chambers. - A hearing in chambers may be
conducted where the respondent invokes the
defense that the release of the data or information in
question shall compromise national security or state
secrets, or when the data or information cannot be
divulged to the public due to its nature or privileged
character.
Sec. 13. Prohibited Pleadings and Motions. - The
following pleadings and motions are prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file return,
opposition, affidavit, position paper and other
pleadings;
(c) Dilatory motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory
orders or interim relief orders; and
(l) Petition for certiorari, mandamus or
prohibition against any interlocutory order.
SEC. 14. Return; Filing. - In case the respondent
fails to file a return, the court, justice or judge shall
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
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.
SEC. 15. Summary Hearing. - The hearing on
the petition shall be summary. However, the
court, justice or judge may call for a preliminary
conference to simplify the issues and determine
the possibility of obtaining stipulations and
admissions from the parties.
SEC. 16. Judgment. - The court shall render
judgment within ten (10) days from the time the
petition is submitted for decision. If the
allegations in the petition are proven by
substantial evidence, the court shall enjoin the
act complained of, or order the deletion,
destruction, or rectification of the erroneous data
or information and grant other relevant reliefs as
may be just and equitable; otherwise, the
privilege of the writ shall be denied.
Upon its finality, the judgment shall be enforced
by the sheriff or any lawful officers as may be
designated by the court, justice or judge within
five (5) working days.
SEC. 17. Return of Service. - The officer who
executed the final judgment shall, within three
(3) days from its enforcement, make a verified
return to the court. The return shall contain a full
statement of the proceedings under the writ and
a complete inventory of the database or
information, or documents and articles
inspected, updated, rectified, or deleted, with
copies served on the petitioner and the
respondent.
The officer shall state in the return how the
judgment was enforced and complied with by
the respondent, as well as all objections of the
parties regarding the manner and regularity of
the service of the writ.
SEC. 18. Hearing on Officer’s Return. - The
court shall set the return for hearing with due
notice to the parties and act accordingly.
SEC. 19. Appeal. - Any party may appeal from
the final judgment or order to the Supreme Court
under Rule 45. The appeal may raise questions
of fact or law or both.
The period of appeal shall be five (5) working
days from the date of notice of the judgment or
final order.
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The appeal shall be given the same priority as in
habeas corpus and amparo cases.
SEC. 20. Institution of Separate Actions. - The
filing of a petition for the writ of habeas data shall
not preclude the filing of separate criminal, civil or
administrative actions.
SEC. 21. Consolidation. - When a criminal action is
filed subsequent to the filing of a petition for the writ,
the latter shall be consolidated with the criminal
action.
When a criminal action and a separate civil action
are filed subsequent to a petition for a writ of
habeas data, the petition shall be consolidated with
the criminal action.
After consolidation, the procedure under this Rule
shall continue to govern the disposition of the reliefs
in the petition.
SEC. 22. Effect of Filing of a Criminal Action. -
When a criminal action has been commenced, no
separate petition for the writ shall be filed. The relief
under the writ shall be available to an aggrieved
party by motion in the criminal case.
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
habeas data.
SEC. 23. Substantive Rights. - This Rule shall not
diminish, increase or modify substantive rights.
SEC. 24. Suppletory Application of the Rules of
Court. - The Rules of Court shall apply suppletorily
insofar as it is not inconsistent with this Rule.
SEC. 25. Effectivity. - This Rule shall take effect on
February 2, 2008, following its publication in three
(3) newspapers of general circulation.
[PUBLISHED IN THE MANILA BULLETIN, THE
PHILIPPINE STAR AND THE PHILIPPINE DAILY
INQUIRER ON 25 JANUARY 2008]
RULE 103
Change of Name
Section 1. Venue. — A person desiring to change
his name shall present the petition to the Court of
First Instance of the province in which he resides,
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
or, in the City of Manila, to the Juvenile and
Domestic Relations Court.
NOTES: The RTC of the province where the
petitioner has been residing for 3 years prior to
the filing of the petition.
A change of name is a proceeding in rem and
such, strict compliance with all jurisdictional
requirements, particularly on publication, is
essential in order to vest the court with
jurisdiction (Herrera).
Section 2. Contents of petition. — A petition
for change of name shall be signed and verified
by the person desiring his name changed, or
some other person on his behalf, and shall set
forth:
(a) That the petitioner has been a bona
fide resident of the province where the
petition is filed for at least three (3)
years prior to the date of such filing;
(b) The cause for which the change of
the petitioner's name is sought;
(c) The name asked for.
Note: must also contain all names by
which the petitioner is known (Secan
Kok vs. Republic, 52 SCRA 322).
Requirement for verification is formal, not
jurisdictional. It is not a ground for dismissing the
petition.
JURISDICTIONAL REQUIREMENTS
1. The verified petition should be published
for 3 successive weeks in some
newspaper of general circulation in the
province;
2. That both the title or caption of the
petition and its body shall recite:
a. Name/names or aliases of the
applicant;
b. Cause for which the change of
name is sought;
c. New name asked for (Secan
Kok vs. Republic, supra).
REASON: Change of name is a matter of public
interest.
Section 3. Order for hearing. — If the petition
filed is sufficient in form and substance, the
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court, by an order reciting the purpose of the
petition, shall fix a date and place for the hearing
thereof, and shall direct that a copy of the order be
published before the hearing at least once a week
for three (3) successive weeks in some
newspaper of general circulation published in the
province, as the court shall deem best. The date set
for the hearing shall not be within thirty (30) days
prior to an election nor within four (4) months after
the last publication of the notice.
Effect of discrepancy in the petition and the
published order:
the defect in the petition and the order, as to the
spelling of the name of the petitioner, is
substantial, because it did not correctly identify
the party to said proceedings (Tan vs. Republic,
40 SCRA 1128).
GROUNDS FOR THE CHANGE OF NAME:
1. Name is ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;
2. Consequence of change of status (e.g.
legitimated child);
3. Necessity to avoid confusion;
4. Having continuously used and have been
known since childhood by a Filipino name,
unaware of their alien parentage;
5. A sincere desire to adopt a Filipino name to
erase signs of former alienage, all in good
faith and without prejudicing anybody.
TITLE OF PETITION MUST CONTAIN THE
FOLLOWING:
1. Official name (birth certificate)—be very
particular with the spelling because it may
avoid or annul the proceedings; it is
jurisdictional;
2. All aliases; and
3. Name asked for.
NOTE: All the name and aliases must appear in the
title or caption of the petition, because the reader
usually merely glances at the title of the petition and
may proceed only to read the entire petition if the
title is of interest to him (Secan Kok vs. Republic,
supra).
The non-inclusion of all names or aliases of the
applicant in the caption of the order or in the title of
the petition defeats the very purpose of the required
publication (Republic vs. Zosa, Sept. 12, 1988)
A decree of adoption grants the adoptee the right to
use the adopter’s surname but not to change the
former’s first name which relief must be sought in a
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
petition under Rule 103 (Republic vs.
Hernandez, GR No. 117209, Feb. 9, 1996).
Section 4. Hearing. — Any interested person
may appear at the hearing and oppose the
petition. The Solicitor General or the proper
provincial or city fiscal shall appear on behalf of
the Government of the Republic.
Section 5. Judgment. — Upon satisfactory proof
in open court on the date fixed in the order that
such order has been published as directed and
that the allegations of the petition are true, the
court shall, if proper and reasonable cause
appears for changing the name of the petitioner,
adjudge that such name be changed in
accordance with the prayer of the petition.
Section 6. Service of judgment. — Judgments or
orders rendered in connection with this rule shall
be furnished the civil registrar of the
municipality or city where the court issuing the
same is situated, who shall forthwith enter the
same in the civil register.
Bar Exam Question 2011
(55) Angel Kubeta filed a petition to change
his first name "Angel." After the required
publication but before any opposition could
be received, he filed a notice of dismissal.
The court confirmed the dismissal without
prejudice. Five days later, he filed another
petition, this time to change his surname
"Kubeta." Again, Angel filed a notice of
dismissal after the publication. This time,
however, the court issued an order,
confirming the dismissal of the case with
prejudice. Is the dismissal with prejudice
correct? (A) Yes, since such dismissal with
prejudice is mandatory. (B) No, since the
rule on dismissal of action upon the
plaintiff’s notice does not apply to special
proceedings. (C) No, since change of name
does not involve public interest and the
rules should be liberally construed.
(D) Yes, since the rule on dismissal of
action upon the plaintiff‟s notice applies
and the two cases involve a change in
name.
RULE 104
Voluntary Dissolution of Corporations
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NOTE: Dissolution of corporations should now be
filed with the SEC and is covered by Title XIV
Sections 117 to 122 of the Corporation Code of the
Philippines.
RULE 105
Judicial Approval of Voluntary Recognition of
Minor Natural Children
Section 1. Venue. — Where judicial approval of a
voluntary recognition of a minor natural child is
required, such child or his parents shall obtain the
same by filing a petition to that effect with the Court
of First Instance of the province in which the child
resides. In the City of Manila, the petition shall be
filed in the Juvenile and Domestic Relations Court.
VOLUNTARY RECOGNITION
This refers to an admission of the fact of paternity or
maternity by the presumed parent (Gapusan Chua
vs. CA, 188 SCRA 160).
Section 2. Contents of petition. — The petition for
judicial approval of a voluntary recognition of a
minor natural child shall contain the following
allegations:
(a) The jurisdictional facts;
(b) The names and residences of the parents
who acknowledged the child, or of either of
them, and their compulsory heirs, and the
person or persons with whom the child lives;
(c) The fact that the recognition made by the
parent or parents took place in a statement
before a court of record or in an authentic
writing, copy of the statement or writing being
attached to the petition.
Section 3. Order for hearing. — Upon the filing of
the petition, the court, by an order reciting the
purpose of the same, shall fix the date and place for
the hearing thereof, which date shall not be more
than six (6) months after the entry of the order, and
shall, moreover, cause a copy of the order to be
served personally or by mail upon the interested
parties, and published once a week for three (3)
consecutive weeks, in a newspaper or newspaper
of general circulation in the province.
Section 4. Opposition. — Any interested party
must, within fifteen (15) days from the service, or
from the last date of publication, of the order
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
referred to in the next preceding section, file his
opposition to the petition, stating the grounds or
reasons therefor.
Section 5. Judgment. — If, from the evidence
presented during the hearing, the court is
satisfied that the recognition of the minor natural
child was willingly and voluntarily made by the
parent or parents concerned, and that the
recognition is for the best interest of the child, it
shall render judgment granting judicial approval
of such recognition.
Section 6. Service of judgment upon civil
registrar. — A copy of the judgment rendered in
accordance with the preceding section shall be
served upon the civil registrar whose duty it
shall be to enter the same in the register.
RULE 106
Constitution of Family Home
NOTE: THE Rule may be deemed to have been
repealed by the following pertinent provisions of
the Family Code, which took effect on August 3,
1988:
Art. 152, FC. The family home, constituted
jointly by the husband and the wife or by an
unmarried head of a family, is the dwelling
house where they and their family reside, and
the land on which it is situated. (223a)
Art. 153, FC. The family home is deemed
constituted on a house and lot from the time
it is occupied as a family residence. From the
time of its constitution and so long as any of
its beneficiaries actually resides therein, the
family home continues to be such and is
exempt from execution, forced sale or
attachment except as hereinafter provided
and to the extent of the value allowed by law.
RULE 107
Absentees
ABENTEE INCOMPETENT
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Beyond 7 years intents and purposes

Includes person (absence of 4 years except for succession
One who disappears suffering from penalty under extraordinary (if disappeared under
from his domicile and of civil interdiction or circumstances) extraordinary
his whereabouts being who are hospitalized circumstances,
unknown and without lepers, prodigals, deaf considered dead for all
having left an agent to and dumb who are purposes including
administer his property unable to read and succession
or the power of the write, those who are of For purposes of
agent has expired unsound mind, and 4 years of continued remarriage after a
persons who are absence (2 years in summary proceeding
unable to take care of extraordinary for the declaration of
themselves and circumstances) presumptive death (art.
manage their property 41, FC)
by reason of age,
disease, weak mind Section 1. Appointment of representative. —
and other similar When a person disappears from his domicile, his
causes whereabouts being unknown, and without
RTC will first appoint a having left an agent to administer his property,
representative and or the power conferred upon the agent has
after an absence of 2 expired, any interested party, relative or friend
years or 5 years in may petition the Court of First Instance of the
case the absentee left place where the absentee resided before his
a person in charge of disappearance, for the appointment of a person
the administration of to represent him provisionally in all that may be
his property. Petition necessary. In the City of Manila, the petition
for declaration of shall be filed in the Juvenile and Domestic
absence may be filed Relations Court.
and an administrator
or trustee may be
Section 2. Declaration of absence; who may
appointed
petition. — After the lapse of two (2) years from
Order of hearing must his disappearance and without any news about
be published once a the absentee or since the receipt of the last
week for 3 consecutive Notice of petition for news, or of five (5) years in case the absentee
weeks in a newspaper guardianship for non- has left a person in charge of the administration
of general circulation resident may be of his property, the declaration of his absence
in the province or city published when the
and appointment of a trustee or administrator
where the absentee court deems it proper. may be applied for by any of the following:
resides and
declaration of absence
will only take effect 6 (a) The spouse present;
months after its
publication in a (b) The heirs instituted in a will, who may
newspaper of general present an authentic copy of the same.
circulation designated
by the court and in the (c) The relatives who would succeed by the
Official Gazette law of intestacy; and

(d) Those who have over the property of the

PERIOD OF ABSENCE CONSEQUENCE
0—2 years Petition for Appointment
of a Representative
Petition for Declaration
2—7 years of Absence and
Appointment of
administrator or trustee
may be filed
Considered dead for all
absentee some right subordinated to the
condition of his death.
Section 3. Contents of petition. — The petition
for the appointment of a representative, or for
the declaration of absence and the appointment
of a trustee or an administrator, must show the
following:

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 352

________________________________________________________________________________________________
(a) The jurisdictional facts;
(b) The names, ages, and residences of the
heirs instituted in the will, copy of which shall be
presented, and of the relatives who would
succeed by the law of intestacy;
(c) The names and residences of creditors
and others who may have any adverse interest
over the property of the absentee;
(d) The probable value, location and character
of the property belonging to the absentee.
Section 4. Time of hearing; notice and
publication thereof. — When a petition for the
appointment of a representative, or for the
declaration of absence and the appointment of a
trustee or administrator, is filed, the court shall fix a
date and place for the hearing thereof where all
concerned may appear to contest the petition.
Copies of the notice of the time and place fixed for
the hearing shall be served upon the known heirs,
legatees, devisees, creditors and other interested
persons, at least ten (10) days before the day of
the hearing, and shall be published once a week
for three (3) consecutive weeks prior to the time
designated for the hearing, in a newspaper of
general circulation in the province or city where the
absentee resides, as the court shall deem best.
Section 5. Opposition. — Anyone appearing to
contest the petition shall state in writing his grounds
therefor, and serve a copy thereof on the petitioner
and other interested parties on or before the date
designated for the hearing.
Section 6. Proof at hearing; order. — At the
hearing, compliance with the provisions of section 4
of this rule must first be shown. Upon satisfactory
proof of the allegations in the petition, the court shall
issue an order granting the same and appointing the
representative, trustee or administrator for the
absentee. The judge shall take the necessary
measures to safeguard the rights and interests of
the absentee and shall specify the powers,
obligations and remuneration of his representative,
trustee or administrator, regulating them by the rules
concerning guardians.
In case of declaration of absence, the same shall
not take effect until six (6) months after its
publication in a newspaper of general circulation
designated by the court and in the Official Gazette.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 7. Who may be appointed. — In the
appointment of a representative, the spouse
present shall be preferred when there is no legal
separation. If the absentee left no spouse, or if
the spouse present is a minor or otherwise
incompetent, any competent person may be
appointed by the court.
In case of declaration of absence, the trustee or
administrator of the absentee's property shall be
appointed in accordance with the preceding
paragraph.
Section 8. Termination of administration. —
The trusteeship or administration of the property
of the absentee shall cease upon order of the
court in any of the following cases:
(a) When the absentee appears personally
or by means of an agent;
(b) When the death of the absentee is
proved and his testate or intestate heirs
appear;
(c) When a third person appears, showing
by a proper document that he has acquired
the absentee's property by purchase or
other title.
In these cases the trustee or administrator shall
cease in the performance of his office, and the
property shall be placed at the disposal of
whose may have a right thereto.
GR: No independent action for the declaration
of Presumptive Death.
Exception: Summary declaration under art.
41, FC, for purposes of remarriage.
Absentee; Declaration of Absence vs.
Declaration of Presumptive Death (2009)
No.V. Frank and Gina were married on
June 12, 1987 in Manila. Barely a year
after the wedding, Frank exhibited a violent
temperament, forcing Gina, for reasons of
personal safety, to live with her parents. A
year thereafter, Gina found employment as
a domestic helper in Singapore, where she
worked for ten consecutive years. All the
time she was abroad, Gina had absolutely
no communications with Frank, nor did she
hear any news about him. While in
Singapore, Gina met and fell in love with
Willie. On July 4, 2007, Gina filed a petition
with the RTC of manila to declare Frank
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presumptively dead, so that she could marry
Willie. The RTC granted Gina’s petition. The
office of the Solicitor General (OSG) filed a
notice of Appeal with the RTC, stating that it
was appealing the decision of the Court of
Appeals on questions of fact and law. (a) Is a
petition for declaration of Presumptive Death a
special proceeding? SUGGESTED ANSWER:
No. the petition for Declaration of
Presumptive Death provided in Art. 41 of
the “Family Code” is not the special
proceeding governing absentees under Rule
107 of the Rules of Court whose rules of
procedure will not be followed (Republic vs.
C.A., 458 SCRA [2005]). Said petition for
Declaration of Presumptive Death under
Article 41 of the Family Code is a summary
proceeding, authorized for purposes only of
remarriage of the present spouse, to avoid
incurring the crime of bigamy. Nonetheless,
it is in the nature of a special proceeding,
being an application to establish a status or
a particular fact in court.
ALTERNATIVE ANSWER: A petition for
declaration of presumptive death may be
considered a special proceeding, because it
is so classified in the Rules of Court (Rule
107, Rules of Court), as differentiated from
an ordinary action which is adversarial. It is
a mere application or proceeding to
establish the status of a party or a
particular fact, to viz: that a person has
been unheard of for a long time and under
such circumstance that he may be
presumed dead.
(b) As the RTC judge who granted Gina’s
petition, will you give due course to the OSG’s
notice of appeal? SUGGESTED ANSWER:
NO. Appeal is not a proper remedy since the
decision is immediately final and executor
upon notice to the parties under Art. 247 of
the Family Code(Republic vs Bermudez-
Lorino, 449 SCRA 57 [2005]). The OSG may
assail RTC‟s grant of the petition only on
the premise of grave abuse of discretion
amounting to lack or excess of jurisdiction.
The remedy should be by certiorari under
Rule 65 of the Rules of Court.
RULE 108
Cancellation Or Correction Of Entries In The
Civil Registry
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 1. Who may file petition. — Any
person interested in any act, event, order or
decree concerning the civil status of persons
which has been recorded in the civil register,
may file a verified petition for the cancellation or
correction of any entry relating thereto, with the
Court of First Instance of the province where the
corresponding civil registry is located.
WHO may file:
Any person interested in civil status of
persons.
WHERE to file:
RTC of the province where the
corresponding civil registry is found.
REQUISITES of Adversarial Proceedings:
1. Proper petition is filed where the Civil
Register is located and all parties
interested are impleaded; (sec. 3)
2. The order of hearing must be published
once a week for 3 consecutive weeks;
(sec. 4)
3. Notice must be given to the Civil
Registrar and all parties interested
thereby; (sec. 4)
4. Within 15 days from notice or last date
of publication, the civil registrar or any
party claiming interest may file their
opposition thereto; and (sec. 5)
5. Full blown trial.
NOTE: Proceedings for the correction of entries
should not be considered as establishing one’s
status in a manner beyond dispute. The status
corrected would not have a superior quality for
evidentiary purposes. There is no increase or
diminution of substantive rights (Chiao Ben Lim
vs. Zosa, L-40252, Dec. 29, 1986).
Section 2. Entries subject to cancellation or
correction. — Upon good and valid grounds,
the following entries in the civil register may be
cancelled or corrected:
(a) births:
(b) marriage;
(c) deaths;
(d) legal separations;
(e) judgments of annulments of marriage;
(f) judgments declaring marriages void from the
beginning;
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(g) legitimations; on indispensable parties is cured by the publication

(h) adoptions; made because the action is one in rem (Alba v.
(i) acknowledgments of natural children; Court of Appeals, 465 SCRA 495 [2005]; Barco v.
(j) naturalization; Court of Appeals, 420 SCRA 39 [2005]).
(k) election, loss or recovery of citizenship;
(l) civil interdiction;
Section 5. Opposition. — The civil registrar and
(m) judicial determination of filiation;
any person having or claiming any interest under
(n) voluntary emancipation of a minor; and
the entry whose cancellation or correction is
(o) changes of name.
sought may, within fifteen (15) days from notice
of the petition, or from the last date of
Section 3. Parties. — When cancellation or publication of such notice, file his opposition
correction of an entry in the civil register is sought, thereto.
the civil registrar and all persons who have or
claim any interest which would be affected thereby
Section 6. Expediting proceedings. — The
shall be made parties to the proceeding.
court in which the proceeding is brought may
make orders expediting the proceedings, and
Section 4. Notice and publication. — Upon the may also grant preliminary injunction for the
filing of the petition, the court shall, by an order, fix preservation of the rights of the parties pending
the time and place for the hearing of the same, and such proceedings.
cause reasonable notice thereof to be given to the
persons named in the petition. The court shall also
Section 7. Order. — After hearing, the court
cause the order to be published once a week for
may either dismiss the petition or issue an order
three (3) consecutive weeks in a newspaper of
granting the cancellation or correction prayed
general circulation in the province.
for. In either case, a certified copy of the
judgment shall be served upon the civil registrar
Cancellation or Correction; Notice (2007) No.VII. (a) B concerned who shall annotate the same in his
files a petition for cancellation of the birth certificate of record.
her daughter R on the ground of the falsified material
entries therein made by B’s husband as the informant.
The RTC sets the case for hearing and directs the
publication of the order for hearing and directs the PETITION FOR
publication of the order once a week for three PETITION FOR CORRECTION,
consecutive weeks in a newspaper of general circulation. CHANGE OF NAME CANCELLATION OF
Summons was service on the Civil Registrar but there (Rule 103) ENTRIES (Rule 108)
was no appearance during the hearing. The RTC granted Petition filed in the Verified petition filed in
the petition. R filed a petition for annulment of RTC where the the RTC where the
judgment before the Court of Appeals, saying that she petitioner resides corresponding Civil
was not notified of the petition and hence, the decision Registry is located
was issued in violation of due process. B opposed saying Civil Registrar
that the publication of the court order was sufficient Solicitor general must concerned is made
compliance with due process. Rule. (5%) SUGGESTED be notified by service party to the
ANSWER: R‟s petition for annulment of judgment of a copy of the proceeding as
before the Court of Appeals should be granted. petition respondent. The
Although there was publication of the court order Solgen must also be
acting the petition to cancel the birth certificate, notified by service of a
copy of the petition
reasonable notice still has to be served on R as she has
Petition is filed by any
an interest affected by the cancellation. (Sec. 3 and 4,
Petition is filed by the person interested in
Rule 108, Rules of Court) She is an indispensable party
person desiring to any event, act, order or
(Republic v. Benemerito, 425 SCRA 488 [2004]), and change his name decree concerning civil
notice has to be served on her, not for the purpose of status of persons
vesting the court with jurisdiction, but to comply with Order shall also be
the requirements of fair play and due process (Ceruila Order for hearing shall published once a week
v. Delantar, 477 SCRA 134 [2005]). ALTERNATIVE be published once a for 3 consecutive
ANSWER: The petition for annulment of judgment week for 3 weeks AND shall
should not be granted. While R is an indispensable consecutive weeks cause reasonable
party, it has been held that the failure to service notice notice to persons

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 355

________________________________________________________________________________________________
named in the petition
First name or last
name (there must be Only cancellation and
valid ground with correction of entries
respect to the latter)
may be changed
Service of judgment shall be made on the Civil
Register concerned
Petition for Change of Name(R. 103) and Petition
for Correction Or Cancellation of Entries(R. 108) are
DISTINCT proceedings.
Hence, a party cannot change name and correct an
entry in a single petition without satisfying the
jurisdictional requirements (Republic vs. Balmore).
Cancellation or Correction; Entries Civil Registry (2005)
Helen is the daughter of Eliza, a Filipina, and Tony, a
Chinese, who is married to another woman living in
China. Her birth certificate indicates that Helen is the
legitimate child of Tony and Eliza and that she is a
Chinese citizen. Helen wants her birth certificate
corrected by changing her filiation from "legitimate" to
"illegitimate" and her citizenship from "Chinese" to
"Filipino" because her parents were not married. What
petition should Helen file and what procedural
requirements must be observed? Explain. (5%)
SUGGESTED ANSWER:
A petition to change the record of birth by changing the
filiation from "legitimate" to "illegitimate" and
petitioner's citizenship from "Chinese" to "Filipino"
because her parents were not married, does not involve a
simple summary correction, which could otherwise be
done under the authority of R.A. No. 9048. A petition
has to be filed in a proceeding under Rule 108 of the
Rules of Court, which has now been interpreted to be
adversarial in nature. (Republic v. Valencia, G.R. No. L-
32181, March 5, 1986) Procedural requirements include: (a)
filing a verified petition; (b) naming as parties all persons
who have or claim any interest which would be affected;
(c) issuance 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 order
once a week for three consecutive seeks in a newspaper
of general circulation. (Rule 108, Rules of Court)
REPUBLIC ACT NO. 9048
March 22, 2001
AN ACT AUTHORIZING THE CITY OR
MUNICIPAL CIVIL REGISTRAR OR THE CONSUL
GENERAL TO CORRECT A CLERICAL OR
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
TYPOGRAPHICAL ERROR IN AN ENTRY
AND/OR CHANGE OF FIRST NAME OR
NICKNAME IN THE CIVIL REGISTER
WITHOUT NEED OF A JUDICIAL ORDER,
AMENDING FOR THIS PURPOSE ARTICLES
376 AND 412 OF THE CIVIL CODE OF THE
PHILIPPINES
Be it enacted by the Senate and the House of
Representatives of the Philippines in Congress
assembled:
Section 1. Authority to Correct Clerical or
Typographical Error and Change of First
Name or Nickname – No entry in a civil register
shall be changed or corrected without a judicial
order, except for clerical or typographical errors
and change of first name or nickname which can
be corrected or changed by the concerned city
or municipal civil registrar or consul general in
accordance with the provisions of this Act and its
implementing rules and regulations.
NOTE: The above provision of law speaks
clearly. Clerical or typographical errors in the
entries of the civil register are now to be
corrected and changed without 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 the entries of the civil register. Hence,
what is left for the scope of operation of Rule 8
are substantial changes and corrections I the
entries (Lee vs. CA, GR NO. 118387, Oct. 11,
2001).
Section 2. Definition of Terms – As used in this
Act, the following terms shall mean:
(1) "City or Municipal civil registrar" refers to the
head of the local civil registry office of the city
or municipality, as the case may be, who is
appointed as such by the city or municipal
mayor in accordance with the provisions of
existing laws.
(2) "Petitioner" refers to a natural person filing
the petition and who has direct and personal
interest in the correction of a clerical or
typographical error in an entry or change of first
name or nickname in the civil register.
(3) "Clerical or typographical error" refers to a
mistake committed in the performance of clerical
work in writing, copying, transcribing or typing an
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________________________________________________________________________________________________
entry in the civil register that is harmless and
innocuous, such as misspelled name or misspelled
place of birth or the like, which is visible to the eyes
or obvious to the understanding, and can be
corrected or changed only by reference to other
existing record or records: Provided, however, That
no correction must involve the change of nationality,
age, status or sex of the petitioner.
(4) "Civil Register"
(5) "Civil registrar general" refers to the
Administrator of the National Statistics Office which
is the agency mandated to carry out and administer
the provision of laws on civil registration.
(6) "First name" refers to a name or nickname given
to a person which may consist of one or more
names in addition to the middle and last names.
Section 3. Who May File the Petition and Where.
– Any person having direct and personal interest in
the correction of a clerical or typographical error in
an entry and/or change of first name or nickname in
the civil register may file, in person, a verified
petition with the local civil registry office of the city or
municipality where the record being sought to be
corrected or changed is kept.
In case the petitioner has already migrated to
another place in the country and it would not be
practical for such party, in terms of transportation
expenses, time and effort to appear in person
before the local civil registrar keeping the
documents to be corrected or changed, the petition
may be filed, in person, with the local civil registrar
of the place where the interested party is presently
residing or domiciled. The two (2) local civil
registrars concerned will then communicate to
facilitate the processing of the petition.
Citizens of the Philippines who are presently
residing or domiciled in foreign countries may file
their petition, in person, with the nearest Philippine
Consulates.
The petitions filed with the city or municipal civil
registrar or the consul general shall be processed in
accordance with this Act and its implementing rules
and regulations.
All petitions for the clerical or typographical errors
and/or change of first names or nicknames may be
availed of only once.
Section 4. Grounds for Change of First Name or
Nickname. – The petition for change of first name
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
or nickname may be allowed in any of the
following cases:
(1) The petitioner finds the first name or
nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or
pronounce.
(2) The new first name or nickname has
been habitually and continuously used by
the petitioner and he has been publicly
known by that by that first name or
nickname in the community: or
(3) The change will avoid confusion.
Section 5. Form and Contents of the Petition.
– The petition shall be in the form of an affidavit,
subscribed and sworn to before any person
authorized by the law to administer oaths. The
affidavit shall set forth facts necessary to
establish the merits of the petition and shall
show affirmatively that the petitioner is
competent to testify to the matters stated. The
petitioner shall state the particular erroneous
entry or entries, which are sought to be
corrected and/or the change sought to be made.
The petition shall be supported with the following
documents:
(1) A certified true machine copy of the
certificate or of the page of the registry book
containing the entry or entries sought to be
corrected or changed.
(2) At least two (2) public or private
documents showing the correct entry or
entries upon which the correction or change
shall be based; and
(3) Other documents which the petitioner or
the city or municipal civil registrar or the
consul general may consider relevant and
necessary for the approval of the petition.
In case of change of first name or nickname, the
petition shall likewise be supported with the
documents mentioned in the immediately
preceding paragraph. In addition, the petition
shall be published at least once a week for two
(2) consecutive weeks in a newspaper of
general circulation. Furthermore, the petitioner
shall submit a certification from the appropriate
law enforcement agencies that he has no
pending case or no criminal record.
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The petition and its supporting papers shall be filed
in three (3) copies to be distributed as follows: first
copy to the concerned city or municipal civil
registrar, or the consul general; second copy to the
Office of the Civil Registrar General; and third copy
to the petitioner.
Section 6. Duties of the City or Municipal Civil
Registrar or the Consul General. – The city or
municipal civil registrar or the consul general to
whom the petition is presented shall examine the
petition and its supporting documents. He shall post
the petition in a conspicuous place provided for that
purpose for ten (10) consecutive days after he finds
the petition and its supporting documents sufficient
in form and substance.
The city or municipal civil registrar or the consul
general shall act on the petition and shall render a
decision not later than five (5) working days after the
completion of the posting and/or publication
requirement. He shall transmit a copy of his decision
together with the records of the proceedings to the
Office of the Civil Registrar General within five (5)
working days from the date of the decision.
Section 7. Duties and Powers of the Civil
Registrar General. – The civil registrar general
shall, within ten (10) working days from receipt of
the decision granting a petition, exercise the power
to impugn such decision by way of an objection
based on the following grounds:
(1) The error is not clerical or typographical;
(2) The correction of an entry or entries in the
civil register is substantial or controversial as it
affects the civil status of a person; or
(3) The basis used in changing the first name or
nickname of a person does not fall under
Section 4.
The civil registrar general shall immediately notify
the city or municipal civil registrar or the consul
general of the action taken on the decision. Upon
receipt of the notice thereof, the city or municipal
civil registrar or the consul general shall notify the
petitioner of such action.
The petitioner may seek reconsideration with the
civil registrar general or file the appropriate petition
with the proper court.
If the civil registrar general fails to exercise his
power to impugn the decision of the city or
municipal civil registrar or of the consul general
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
within the period prescribed herein, such
decision shall become final and executory.
Where the petition is denied by the city or
municipal civil registrar or the consul general,
the petitioner may either appeal the decision to
the civil registrar general or file the appropriate
petition with the proper court.
Section 8. Payment of Fees. – The city or
municipal civil registrar or the consul general
shall be authorized to collect reasonable fees as
a condition for accepting the petition. An indigent
petitioner shall be exempt from the payment of
the said fee.
Section 9. Penalty Clause. - A person who
violates any of the provisions of this Act shall,
upon conviction, be penalized by imprisonment
of not less than six (6) years but not more than
twelve (12) years, or a fine of not less than Ten
thousand pesos (P10,000.00) but not more than
One Hundred Thousand pesos (P100,000.00),
or both, at the discretion of the court.
In addition, if the offender is a government
official or employee he shall suffer the penalties
provided under civil service laws, rules and
regulations.
Section 10. Implementing Rules and
Regulations.
Section 11. Retroactivity Clause. - This Act shall
have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in
accordance with the Civil Code and other laws.
Section 12. Separability Clause
Section 13. Repealing Clause
Section 14. Effectivity Clause. –
NOTE: There is a new law further amending RA
9048. The new law further allowed
administrative change of gender and correction
of date of birth, particularly, the month and day
of birth.
RULE 109
Appeals in Special Proceedings
Section 1. Orders or judgments from which
appeals may be taken. — An interested person
may appeal in special proceedings from an
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order or judgment rendered by a Court of First Tan vs. Gedorio, Jr. G.R. No. 166520,
Instance or a Juvenile and Domestic Relations March 14, 2008).
Court, where such order or judgment:

(a) Allows or disallows a will;

ORDERS THAT ARE NOT APPEALABLE:
(b) Determines who are the lawful heirs of a 1. Order directing administrator to take
deceased person, or the distributive share of the action to recover amount due to the
estate to which such person is entitled; estate;
2. Order made in administration
(c) Allows or disallows, in whole or in part, any claim proceeding relating to the inclusion or
against the estate of a deceased person, or any exclusion of items of property in the
claim presented on behalf of the estate in offset to a inventory executed by the administrator;
claim against it; 3. Order appointing special administrator;
4. Order granting or denying a motion for
(d) Settles the account of an executor, new trial or reconsideration.
administrator, trustee or guardian;
Section 2. Advance distribution in special
(e) Constitutes, in proceedings relating to the proceedings. — Notwithstanding a pending
settlement of the estate of a deceased person, or controversy or appeal in proceedings to settle the
the administration of a trustee or guardian, a final estate of a decedent, the court may, in its discretion
determination in the lower court of the rights of the and upon such terms as it may deem proper and
party appealing, except that no appeal shall be just, permit that such part of the estate may not be
allowed from the appointment of a special affected by the controversy or appeal be distributed
administrator; and among the heirs or legatees, upon compliance with
the conditions set forth in Rule 90 of this rules.
(f) Is the final order or judgment rendered in the
case, and affects the substantial rights of the person
appealing unless it be an order granting or denying
a motion for a new trial or for reconsideration
APPEAL IN APPEAL IN SPECIAL
Bar Exam Question 2012 ORDINARY CIVIL PROCEEDINGS
ACTION
1. In settlement proceedings, appeal may be 15 days 30 days;
taken from an: 30 days 48 hours in HC, from
a. order appointing a special administrator; notice.
b. order appointing an administrator; Notice of appeal and Record on appeal and
c. order of an administrator to recover property docket fees docket fees
of the estate; No extension May be extended on
d. order to include or exclude property from meritorious grounds
the estate.
SUGGESTED ANSWER: (b) an order
appointing a regular administrator is
appealable (See Sy Hong Eng vs. Sy Liac
Suy, 8 Phil., 594). An order of a CFI
appointing an administrator of a deceased
person’s estate has been held to be a final
determination of the rights of the parties
thereunder, and is appealable. (Intestate
Estate of Luis Morales et. Al. Vs. SIcat, L-
5236, May 5, 1953). On the other hand, an
order appointing a special administrator is
interlocutory in nature and a mere incident
in the judicial proceedings, hence not
appealable. (Rule 109, Sec. 1, Rules of
Court) (Samson vs. Samson, 102 Phil. 735;

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 359

________________________________________________________________________________________________
VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS
SPECIAL PROCEEDING
Settlement of the Estate
Escheat
Appointment of Guardians
Appointment of Trustees
Domestic Adoption
Inter-country Adoption
Rescission of Adoption
Habeas Corpus
Habeas Corpus in relation to minors
Change of Name
Appointment of
Representative/Declaration of
Absence
Cancellation/Correction of Entries in
the Civil Registries
Petition for Declaration of Nullity,
Annulment, Legal Separation
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
VENUE JURISDICTION
Resident of decedent or if non- MTC if the gross value of the estate
resident, place where he had his does not exceed P300,000 or
estate P400,000 in Metro Manila
RTC if gross value exceeds the above
amounts
a. Person dies intestate leaving no RTC
heirs—resident of the decedent or if
non-resident, place where he had an
estate;
b. Reversion—where the land lies in
whole or in part;
c. Dormant deposits—where the
dormant deposits are located
Where the minor or incompetent Family Courts in case of minors;
resides RTCs in case of incompetents
Where the will was allowed or where RTC
the property or portion thereof
affected by the trust is located
Where adopter resides Family Court
Where the adoptee resides if filed Family Court or the Inter-country
with the Family Court Adoption Board
Where the adoptee resides Family Court
Where the detainee is detained (if SC,CA, RTC, MTC in the province or
filed with the RTC) city in the absence of RTC judge;
Sandiganbayan, in aid of appellate
jurisdiction
Where the petitioner resides or where Family Court, SC, CA
the minor may be found
Where petitioner resides RTC
Where the absentee resides before RTC
his disappearance
Where the corresponding Civil RTC
Registry is located
Where the petitioner or respondent Family Court
has been residing for at least 6
months prior to the date of filing, in
case of non-resident respondent,
where he may be found at the
election of the petitioner
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Rules 110-127 It requires all crimes except the private

REVISED RULES OF CRIMINAL PROCEDURE offenses which must be commenced by
the complaint of the offended party, to be
prosecuted by a public prosecutor. Trial is
conducted publicly and the right of the
accused against self-incrimination is
THE REVISED RULES OF CRIMINAL
guaranteed.
PROCEDURE
3. Mixed system
(As amended, December 1, 2000)
It is a commixture of inquisitorial and
SOURCES: accusatorial system.
1. Rules of Court 110—127;
2. 1987 Constitution particularly the Bill of
CRIMINAL JURISDICTION
Rights;
It is the authority to hear and try a particular
3. Various acts passed by legislature like BP
offense and impose the punishment for it (People
129;
vs. Mariano, 71SCRA 600).
4. Presidential Decrees;
5. Executive Orders;
REQUISITES FOR A VALID EXERCISE OF
6. Decisions of the Supreme Court.
CRIMINAL JURISDICTION:
1. The offense, by virtue of the imposable
CRIMINAL PROCEDURE
penalty or its nature, is one which the
This is concerned with the procedural steps
court is by law authorized to take
through which a criminal case passes,
cognizance of (jurisdiction over the
commencing with the initial investigation of a
subject matter);
crime and concluding with the unconditional
2. The offense must have been committed
release of the offender.
within the territorial jurisdiction of the court
(Jurisdiction over the territory—non-
In its generic term, it describes the network of laws
waiveable);
and rules which governs the procedural
3. The person charged with the offense must
administration of criminal justice, that is, laws and
have been brought to its presence for trial,
court rules governing arrest, search and seizure,
forcibly by warrant of arrest, or upon his
bail, etc. (Black’s Law Dictionary)
voluntary submission to the court
(jurisdiction over the person of the
accused)
CRIMINAL LAW CRIMINAL
PROCEDURE
Note: The general rule is that the question of
Substantive Remedial jurisdiction may be raised at any stage of the
Declares what acts are Provides how the act is proceedings. The exception is where there has
punishable to be punished been estoppel by laches on the party who raises
It defines crimes, treats It provides for the the question.
of their nature and method by which a
provides for their person accused of a NOTE: The case of Tijam vs. Sibonghanoy (a
punishment crime is arrested, tried ruling case in civil cases) was made applicable in
or punished criminal cases:
1. Vera vs. People, 31SCRA 711 (1970);
SYSTEMS OF CRIMINAL PROCEDURE 2. People vs. Munar, 53 SCRA 278;
1. Inquisitorial system 3. Austria vs. People, 192 SCRA 340 (1990);
4. People vs. Regulario, 220 SCRA 368
The prosecution of crimes is wholly in the (1993).
hand of the prosecuting officer and the
court. The procedure is characterized by
secrecy and the presence of the accused JURISDICTION OVER JURISDICTION OVER
before the magistrate is not necessary. THE SUBJECT THE PERSON OF THE
MATTER ACCUSED
2. Accusatorial system Derived from law. It can May be acquired by
never be acquired by consent of the accused
consent of the parties or waiver of objections

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 361

________________________________________________________________________________________________
(accused)
Objection that the court
has no jurisdiction over If he fails to make
the subject matter may timely objections, he is
be made at any stage deemed to have waived
of the proceedings and it (objection must be
the right to make such before plea)
objection is never
waived
DETERMINATION OF CRIMINAL
JURISDICTION:
1. Determined by the allegations in the
complaint or information not by the results
of proof or by the trial court’s appreciation
of the evidence presented;
2. Determined by law enforced at the time of
the institution of the criminal action. ONCE
VESTED, IT CANNOT BE WITHDRAWN
by (Doctrine of Adherence/Continuity of
Jurisdiction):
a) Subsequent valid amendment of
the information;
b) Subsequent statutory amendment
of the rules of jurisdiction unless
otherwise provided.
JURISDICTION OVER COMPLEX CRIMES
Jurisdiction over the whole complex crime is
lodged with the trial court having jurisdiction to
impose the maximum and most serious penalty
imposable of an offense forming part of the
complex crime (Cuyos vs. Garcia, 160 SCRA
302).
Jurisdiction; Complex Crimes (2003)
In complex crimes, how is the jurisdiction of a court
determined? 4%
SUGGESTED ANSWER:
In a complex crime, jurisdiction over the whole
complex crime must be lodged with the trial court
having jurisdiction to impose the maximum and most
serious penalty imposable on an offense forming part
of the complex crime. (Cuyos v. Garcia, 160 SCRA 302
[1988]).
JURISDICTION OVER CONTINUING CRIMES
Continuing offenses are consummated in one
place, yet by the nature of the offense, the
violation of the law is deemed continuing (e.g.
estafa and libel). As such, the courts of the
territories where the essential elements of the
crime took place have concurrent jurisdiction. But
the court which first acquires jurisdiction excludes
other courts (Doctrine of Exclusion).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
JURISDICTION OVER CRIMES PUNISHABLE
BY DESTIERRO
Where the imposable penalty is destierro, the
case falls within the exclusive jurisdiction of the
MTCs, considering that in the hierarchy of
penalties under art. 71, RPC, destierro follows
arresto mayor which involves imprisonment
(People vs. Eduarte, 182 SCRA ?[ GR NO. 88232,
Feb. 6,1990]).
RULE 110
Prosecution of Offenses
CRIMINAL ACTION
It is one by which the state prosecutes a person
for an act or omission punishable by law.
Section 1. Institution of criminal actions. —
Criminal actions shall be instituted as follows:
(a) For offenses where a preliminary
investigation is required pursuant to
section 1 of Rule 112, by filing the
complaint with the proper officer for the
purpose of conducting the requisite
preliminary investigation.
(b) For all other offenses, by filing the
complaint or information directly with the
Municipal Trial Courts and Municipal
Circuit Trial Courts, or the complaint with
the office of the prosecutor. In Manila and
other chartered cities, the complaint shall
be filed with the office of the prosecutor
unless otherwise provided in their
charters.
The institution of the criminal action shall interrupt
the running period of prescription of the offense
charged unless otherwise provided in special
laws. (1a)
NOTES: Preliminary Investigation is required for
offenses where the penalty prescribed by law is at
least 4 years, 2 months and 1 day, without regard
to fine (sec. 1, par. 2, Rule 112).
DOES NOT APPLY to offenses subject to
Summary Procedure.
EFFECT OF INSTITUTION OF CRIMINAL
ACTION:
It interrupts the running of the prescriptive period,
unless otherwise provided in special laws.
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Note: with respect to offenses penalized by
special laws, the filing of the complaint or
information in court is the one that interrupts the
prescriptive period and not the filing of the
complaint in the proper office for preliminary
investigation (Zaldivia vs. Reyes,211 SCRA 277).
See section 2 of Act 3326.
NOTE HOWEVER: In Panaguiton v DOJ (2nd
Division of the SC) , filing of the information in
the prosecution’s office interrupts the running of
the prescriptive period for violation of BP22.
Bar Exam Question 2012
20. The filing of a complaint with the Punong
Barangay involving cases covered by the
Katarungang Pambarangay Rules shall:
a. not interrupt any prescriptive period.
b. interrupt the prescriptive period for 90
days.
c. interrupt the prescriptive period for 60
days.
d. interrupt the prescriptive period not
exceeding 60 days.
SUGGESTED ANSWER:
(d), The filing of a complaint with the
Punong Barangay involving cases covered
by the Katarungang Pambarangay Rules
shall interrupt the prescriptive periods for
offenses and cause of action under
existing laws for a period not exceeding
Sixty (60) days from the filing of the
complaint with the Punong barangay.
(Sec.410, Local Government Code).
REMEDIES OF OFFENDED PARTY IF
PROSECUTOR REFUSES TO FILE AN
INFORMATION:
1. File an action for mandamus, in case
there is grave abuse of discretion;
2. Lodge another complaint before the court
having jurisdiction over the offense;
3. Take up (appeal) the matter with the
Secretary of Justice in accordance with
the Revised Administrative Code;
4. Institute administrative charges against
the erring prosecutor;
5. File criminal action against the prosecutor
with corresponding action for damages.
MAY INJUNCTION ISSUE TO RESTAIN
CRIMINAL PROSECUTION?
GR: NO. Criminal prosecutions may not be
restrained or stayed by injunction, preliminary or
final. The reason being, public interest requires
that criminal acts be immediately investigated and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
prosecuted for the protection of the society
(Domingo vs. Sandiganbayan, 322 SCRA 655).
Exceptions:
1. To afford adequate protection to the
constitutional rights of the accused;
2. When necessary for the administration of
justice or to avoid oppression or
multiplicity of suits;
3. When there is a prejudicial question which
is sub judice;
4. When acts of the officer is without or in
excess of authority;
5. When the prosecution is under an invalid
law, ordinance or regulation;
6. When double jeopardy is clearly apparent;
7. When the court had no jurisdiction over
the offense;
8. When it is a case of persecution rather
than prosecution;
9. When charges are manifestly false and
motivated by lust for vengeance;
10. When there is clearly no prima facie case
against the accused and a motion to
quash on that ground has been denied.
Actions; Injunction (1999)
Will injunction lie to restrain the commencement of a
criminal action? Explain. (2%)
SUGGESTED ANSWER:
As a general rule, injunction will not lie to restrain a
criminal prosecution except:
a) To afford adequate protection to the constitutional
rights of the accused;
b) When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of
actions;
c) When double jeopardy is clearly apparent;
d) Where the charges are manifestly false and
motivated by the lust for vengeance;
e) Where there is clearly no prima facie case against the
accused and a motion to quash on that ground has
been denied. (See cases cited in Roberts, Jr., vs. Court of
Appeals, 254 SCRA 307 [1996] and Brocka v. Enrile, 192
SCRA 183 [1990].)
Section 2. The Complaint or information. — The
complaint or information shall be in writing, in the
name of the People of the Philippines and against
all persons who appear to be responsible for the
offense involved. (2a)
Section 3. Complaint defined. — A complaint is a
sworn written statement charging a person with an
offense, subscribed by the offended party, any
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peace officer, or other public officer charged with

the enforcement of the law violated. (3)
NOTE: The complaint mentioned in this section
refers to one filed in court for the commencement
of a criminal prosecution for violation of law,
usually cognizable by MTCs as well as to a
complaint filed by the offended party in private
crimes or those which cannot be prosecuted de
officio.
REQUISITES OF A COMPLAINT:
1. It must be in writing and under oath;
2. It must be in the name of the People of
the Philippines;
3. It must charge a person with an offense;
4. It must be subscribed by the offended
party, by any peace officer or public officer
charged with the enforcement of the law
violated.
PERSONS WHO CAN FILE A COMPLAINT:
1. Offended party;
2. Any peace officer;
3. Any person charged with the enforcement
of the law violated (e.g. Internal Revenue
Officer for violation of NIRC; Customs
agents for violation of TCC).
Section 4. Information defined. — An information
is an accusation in writing charging a person with
an offense, subscribed by the prosecutor and filed
with the court. (4a)
REQUISITES OF INFORMATION:
1. It must be in writing;
2. it must charge a person of an offense;
3. It must be subscribed by the prosecutor;
and
4. It must be filed in court.
PERSONS AUTHORIZED TO FILE
INFORMATION;
1. City or provincial prosecutor and their
assistants; and
2. Duly appointed special prosecutors.
Complaint vs. Information (1999)
Distinguish a Complaint from Information. (2%)
SUGGESTED ANSWER:
In criminal procedure, a complaint is a sworn written
statement charging a person with an offense,
subscribed by the offended party, any peace officer or
other peace officer charged with the enforcement of
the law violated. (Sec. 3, Rule 110, 1985 Rules of Criminal
Procedure); while an information is an accusation in
writing charging a person with an offense subscribed
by the prosecutor and filed with the court. (Sec. 4, Id.)
NOTE: Prosecution in the RTC is always
commenced by information.
Exceptions:
1. In certain crimes against chastity
(concubinage, adultery, seduction,
abduction, acts of lasciviousness);
2. Defamations imputing the aforesaid
offenses wherein a sworn written
complaint of the offended party is
required.
3. When accused was arrested without a
warrant and there is absence of an
inquest prosecutor, complaint may be filed
directly with the proper court.
NOTE: In case of variance in the complaint filed
by the offended party and the information in
crimes against chastity, the complaint controls (P.
vs. Oso, 62 Phil. 271).
Section 5. Who must prosecute criminal
actions. — All criminal actions commenced by a
complaint or information shall be prosecuted
under the direction and control of the prosecutor.
However, in Municipal Trial Courts or Municipal
Circuit Trial Courts when the prosecutor assigned
thereto or to the case is not available, the
offended party, any peace officer, or public officer
charged with the enforcement of the law violated
may prosecute the case. This authority ceases
upon actual intervention of the prosecutor or upon
elevation of the case to the Regional Trial Court.
(This Section was repealed by A.M. No. 02-2-07-SC effective May 1,
2002)

COMPLAINT INFORMATION The crimes of adultery and concubinage shall not

Subscribed by the be prosecuted except upon a complaint filed by
offended party, any the offended spouse. The offended party cannot
peace officer or other Subscribed by the institute criminal prosecution without including the
public officers charged prosecutor guilty parties, if both alive, nor, in any case, if the
with the enforcement of (indispensable) offended party has consented to the offense or
the law violated pardoned the offenders.
It may be filed in court It is filed in court
or in the prosecutor’s The offenses of seduction, abduction and acts of
office lasciviousness shall not be prosecuted except
It must be under oath Need not be under oath upon a complaint filed by the offended party or her

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 364

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parents, grandparents or guardian, nor, in any
case, if the offender has been expressly pardoned
by any of them. If the offended party dies or
becomes incapacitated before she can file the
complaint, and she has no known parents,
grandparents or guardian, the State shall initiate
the criminal action in her behalf.
The offended party, even if a minor, has the right
to initiate the prosecution of the offenses of
seduction, abduction and acts of lasciviousness
independently of her parents, grandparents, or
guardian, unless she is incompetent or incapable
of doing so. Where the offended party, who is a
minor, fails to file the complaint, her parents,
grandparents, or guardian may file the same. The
right to file the action granted to parents,
grandparents or guardian shall be exclusive of all
other persons and shall be exercised successively
in the order herein provided, except as stated in
the preceding paragraph.
No criminal action for defamation which consists in
the imputation of the offenses mentioned above
shall be brought except at the instance of and
upon complaint filed by the offended party. (5a)
The prosecution for violation of special laws shall
be governed by the provisions thereof. (n)
Full control and direction of the Prosecutor
All criminal actions commenced by a complaint or
information shall be prosecuted under the control
and direction of the prosecutor.
Bar Exam Question 2012
82. After the DOJ Secretary granted
accused's Petition for Review, the prosecution
filed a motion to withdraw the Information
before the trial court. The judge therein
denied the same. The trial prosecutor
manifested before the judge that he can no
longer prosecute the case because he is only
an alter ego of the DOJ Secretary who
ordered him to withdraw the Information.
The case should therefore be prosecuted by:
a. a DOJ state prosecutor.
b. private prosecutor, if any.
c. trial prosecutor of the pairing court.
d. the same trial prosecutor who
manifested his inability to prosecute the
case.
SUGGESTED ANSWER: (d), All criminal
actions either commenced by complaint
or information shall be prosecuted under
the direction and control of a public
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
prosecutor. (Rule 110, Sec. 5, Rules of
Court). The trial prosecutor assumes full
discretion and control over a case.
Accordingly, the same trial prosecutor
who manifested his inability should
prosecute the case.
NOTE: The institution of a criminal action depends
upon the sound discretion of the prosecutor. But
once the case is filed in court, the same can no
longer be withdrawn or dismissed without the
tribunal’s approval. Should the fiscal find it proper
to conduct a reinvestigation of the case at such
stage, the permission of the court must be
secured (Crespo vs. Mogul, 151 SCRA 462).
There is a Motion for Reinvestigation filed
in court.
The grant of the motion for reinvestigation
will revest to the prosecutor’s office full
control and authority over the case. There
will be no need for leave of court in
dismissing the case. The better practice,
however is to furnish the court with the
order dismissing the case at the
prosecutor level (Ucat).
PRIVATE PROSECUTOR may be authorized to
prosecute criminal action subject to the
following conditions:
1. The public prosecutor has a heavy work
schedule, or there is no public prosecutor
assigned in the province or city;
2. The private prosecutor is authorized in
WRITING by the Chief of the Regional
State Prosecutor:
3. The authority of the private prosecutor is
approved by the court;
4. The private prosecutor shall continue to
prosecute the case until the end unless
the authority is withdrawn or revoked;
5. In case of revocation or withdrawal of
authority, the same court (Memo Circular
No. 25, April 26, 2002).
In appeals before the CA, and the SC, it is only
the Solicitor General that is authorized to bring
and defend actions in behalf of the People of the
Philippines (P. vs. Nano, 205 SCRA155).
In all cases elevated to the
Sandiganbayan and from the
Sandiganbayan to the SC, the Office of
the Ombudsman, through its special
prosecutor shall represent the People,
except in cases filed pursuant to E.O. No.
1, 2, 14, and 14-A, issued in 1986 (sec. 4,
RA 8249).
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In government service related cases, the
prosecution of cases cognizable by the
Sandiganbayan shall be under the
exclusive control and supervision of the
Office of the Ombudsman. In cases
cognizable by the regular courts, the law
recognizes a concurrence of jurisdiction
between the Ombudsman and other
investigative agencies of the government
in the prosecution of said cases (Uy vs.
Sandiganbayan, 354 SCRA 651).
PRIVATE CRIME
This refers to those which cannot be prosecuted
except upon the complaint filed by the offended
party. This legal requirement was imposed out of
the consideration for the aggrieved party might
prefer to suffer the outrage in silence than to go
through the scandal of a public trial.
In crimes of adultery and concubinage:
NOTE: The offended spouse must be
the legal spouse at the time of the filing of
the complaint. Hence, filing of the
complaint, after the grant of divorce
obtained in a foreign country by the
foreign spouse, against the Filipino
spouse was not allowed (Imelda Pilapil vs.
Hon. Ibay-Somera, GR NO. 80116, June
30, 1989)
PROSECUTION OF PRIVATE CRIME
COMPLEXED WITH A PUBLIC OFFENSE
In complex crimes, where one of the component
offense is a private crime, and the other is public
offense, the fiscal (prosecutor) may initiate the
proceedings de oficio. The reason therefore is that
since one component is a public offense, the latter
should prevail, the public interest being always
paramount to private interest.
Actions; Commencement of an Action;
Party (2013)
No.II. Yvonne, a young and lonely OFW, had
an intimate relationship abroad with a friend,
Percy. Although Yvonne comes home to
Manila every six months, her foreign posting
still left her husband Dario lonely so that he
also engaged in his own extramarital
activities. In one particularly exhilarating
session with his girlfriend, Dario died. Within
180 days from Dario’s death, Yvonne gives
birth in Manila to a baby boy. Irate relatives
of Dario contemplate criminally charging
Yvonne for adultery and they hire your law
firm to handle the case.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(A) Is the contemplated criminal action a
viable option to bring? (3%)
SUGGESTED ANSWER: No. Section 5 of
Rule 110 provides that the crimes of
adultery and concubinage shall not be
prosecuted except upon complaint filed by
the offended spouse. Since the offended
spouse is already dead, then the criminal
action for Adultery as contemplated by
offended party‟s relatives is no longer
viable. Moreover, it appears that the
adulterous acts of Yvonne were committed
abroad. Hence, the contemplated criminal
action is not viable as the same was
committed outside of the Philippine
courts.
(B) Is a civil action to impugn the paternity of
the baby boy feasible, and if so, in what
proceeding may such issue be determined?
(5%)
SUGGESTED ANSWER:
Yes, under Article 171 of the Familyy
Code, the heirs of the husband may
impugn the filiation of the child in the
following cases: a) If the husband should
die before the expiration of the period
fixed for bringing his action: b) If he
should die after the filing of the
complaint, without having desisted
therefrom; or c) If the child was born after
the death of the husband. Since Dario is
already dead when the baby was, his heirs
have the right to impugn the filiation of
the child. Consequently, the heirs may
impugn the filiation either by a direct
action to impugn such filiation or raise
the same in a special proceeding for
settlement of the estate of the decedent.
In the said proceeding, the Probate court
has the power to determine questions as
to who are the heirs of the decedent
(Reyes vs. Ysip, et. al., 97 Phil. 11,
Jimenez vs. IAC, 184 SCRA 367).
Incidentally, the heirs can also submit the
baby boy for DNA testing (A.M. No. 6-11-5-
SC, Rules on DNA Evidence) or even blood-
test in order to determine paternity and
filiation. In Jao vs. Court of Appeals, G.R.
No. L-49162, July 28, 1987, the Supreme
Court held that blood grouping tests are
conclusive as to non-paternity, although
inconclusive as to paternity. The fact that
the blood type of the child is a possible
product of the mother and alleged father
does not conclusively prove that the child
is born by such parents; but, if the blood
type of the child is not the possible blood
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type when the blood of the mother and
the alleged father are cross matched, then
the child cannot possibly be that of the
alleged father.
ALTERNATIVE ANSWER: No, there is no
showing in the problem of any ground that
would serve as a basis for an action to
impugn paternity of the baby boy. In
Concepcion vs. Almonte, G.R. No. 123450,
August 31, 2005 citing Cabatania vs.
Court of Appeals, the Supreme Court held
that the law requires that every
reasonable presumption be made in favour
of legitimacy.
The presumption of legitimacy does not
only flow out of declaration in the statute
but is based on the broad principles of
natural justice and the supposed virtue of
the mother. It is grounded on the policy
to protect the innocent offspring from the
odium of illegitimacy. The presumption of
legitimacy proceeds from the sexual union
in marriage, particularly during the period
of conception. To overthrow this
presumption on the basis of Article 166 (1)
(b) of the Family Code, it must be shown
beyond reasonable doubt that there was
no access that could have enabled the
husband to father the child. Sexual
Intercourse is to be presumed where
personal access is not disposed, unless
such presumption is rebutted by evidence
to the contrary. Hence, a child born to a
husband and wife during a valid marriage
is presumed legitimate. Thus, the child‟s
legitimacy may be impugned only under
the strict standards provided by law
(Herrera vs. Alba, G.R. No. 148220, June
15, 2005). [Note: The Family Code is not
covered by the 2013 bar Examination
Syllabus for Remedial Law].
WHO CAN GIVE PARDON:
1. Concubinage and Adultery—only the
offended spouse, not otherwise
incapacitated, can validly extend pardon
or consent contemplated therein.
2. Seduction, abduction, Acts of
lasciviousness:
a) The offended minor, if with
sufficient discretion, can validly
pardon the accused by herself if
she has no parents or where the
accused is her own father and the
mother is dead;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
b) The parents, grandparents or
guardian of the offended minor, in
that order, CANNOT extend a
valid pardon in said crimes
WITHOUT the conformity of the
offended party, even if the latter is
a minor;
c) If the offended woman is of age,
and not otherwise incapacitated,
only she can validly extend a
pardon.
NOTE: The pardon refers to pardon BEFORE the
filing of the criminal complaint in court. Pardon
effected AFTER the filing of the complaint in court
does not prohibit the continuance of the
prosecution except in case of MARRIAGE (valid
and in good faith) between the offender and the
offended party.
Subsequent sexual intercourse after the discovery
of adulterous relationship is an implied pardon.
But it refers only to prior acts of
adultery(intercourse) NOT to subsequent acts
after such implied pardon.
PARDON CONSENT
Refers to past acts of Refers to future acts
adultery
Must be extended to Sufficient that it is
both offenders granted to only one
spouse
GR: The SUBSEQUENT MARRIAGE between the
offended party and the accused extinguishes the
criminal liability of the latter, together with that of
the co-principals, accomplices and accessories.
Exceptions:
1. Where the marriage is invalid or
contracted in bad faith in order to (solely)
escape criminal liability;
2. In private libel or libelous imputation to the
complainant of the commission of the
crimes of concubinage, adultery,
seduction, abduction or acts of
lasciviousness, and in slander by deed;
3. In multiple rape, in so far as the other
accused in the other acts of rape
respectively committed by them are
concerned.
Note: The acquittal or death of one of the accused
does not bar the prosecution of the other accused
(P. vs. Topino, et al.,35 Phil. 901).
HOWEVER, the death of the offended party
before the filing of the complaint for adultery bars
further prosecution. But if offended spouse died
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after the filing of the complaint, his death will not
prevent the proceeding from continuing to its
ultimate conclusion.
Note: Desistance of the complainant does not bar
criminal prosecution but it operates as waiver of
the right to pursue civil indemnity.
An offended party in a criminal case has sufficient
personality to file special civil action for certiorari,
in proper cases, even without the imprimatur of
the state. In so doing, the complainant should not
bring the action in the name of the People of the
Philippines. The action may be prosecuted in the
name of said complainant (Perez vs. Hagonoy
Rural bank inc. 327 SCRA 588).
Parties; Prosecution of Offenses (2000)
Your friend YY, an orphan, 16 years old, seeks your
legal advice. She tells you that ZZ, her uncle, subjected
her to acts of lasciviousness; that when she told her
grandparents, they told her to just keep quiet and not
to file charges against ZZ, their son. Feeling very much
aggrieved, she asks you how her uncle ZZ can be
made to answer for his crime. a) What would your
advice be?
Explain. (3%) b) Suppose the crime committed against
YY by her uncle ZZ is rape, witnessed by your mutual
friend XX. But this time, YY was prevailed upon by
her grandparents not to file charges. XX asks you if
she can initiate the complaint against ZZ. Would your
answer be the same? Explain. (2%).
SUGGESTED ANSWER:
(a) I would advise the minor, an orphan of 16 years of
age, to file the complaint herself independently of her
grandparents, because she is not incompetent or
incapable to doing so upon grounds other than her
minority. (Sec. 5, Rule 110, Rules of Criminal Procedure.)
(b) Since rape is now classified as a Crime Against
Persons under the Anti-Rape Law of 1997 (RA 8353), I
would advise XX to initiate the complaint against ZZ.
Section 6. Sufficiency of complaint or
information. — A complaint or information is
sufficient if:
1. it states the name of the accused;
2. the designation of the offense given by
the statute;
3. the acts or omissions complained of as
constituting the offense;
4. the name of the offended party;
5. the approximate date of the commission
of the offense;
6. and the place where the offense was
committed.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
When an offense is committed by more than one
person, all of them shall be included in the
complaint or information. (6a)
Purpose of the rule:
1. To inform the accused of the nature and
the cause of accusation against him;
2. To notify the defendant of the criminal act
imputed to him so that he can duly
prepare his defense.
Substantial defects in the complaint or information
cannot be cured by evidence that would
jeopardize the constitutional right of the accused
to be informed of the nature and the cause of
accusations he being charged.
Section 7. Name of the accused. — The
complaint or information must state the name and
surname of the accused or any appellation or
nickname by which he has been or is known. If his
name cannot be ascertained, he must be
described under a fictitious name with a statement
that his true name is unknown.
If the true name of the accused is thereafter
disclosed by him or appears in some other
manner to the court, such true name shall be
inserted in the complaint or information and
record. (7a)
PURPOSE
The manifest intent of the provision is to make a
specific identification of the person to whom the
commission of an offense is imputed.
An error in the name of the accused is not a
reversible error as long as his identity is
sufficiently established. This defect is curable at
any stage of the proceedings as insertion of the
real name of the accused is merely a matter of
form (P. Padica, 221 SCRA 362).
Section 8. Designation of the offense. — The
complaint or information shall state the
designation of the offense given by the statute,
aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the
offense, reference shall be made to the section or
subsection of the statute punishing it. (8a)
Information (2001)
The prosecution filed an information against Jose for
slight physical injuries alleging the acts constituting the
offense but without anymore alleging that it was
committed after Jose’s unlawful entry in the
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complainant’s abode. Was the information correctly
prepared by the prosecution? Why? (5%)
SUGGESTED ANSWER:
No. The aggravating circumstance of unlawful entry in
the complainant’s abode has to be specified in the
information; otherwise, it cannot be considered as
aggravating. (Sec. 8 of Rule 110, Revised Rules of Criminal
Procedure)
ALTERNATIVE ANSWER:
The information prepared by the prosecutor is not
correct because the accused should have been charged
with qualified trespass to dwelling.
Information must or complaint must state the
following whenever possible:
1. The designation of the offense given by
the statute, if there is no designation given
by the statute, reference shall be made to
the section of the statute punishing it;
2. The statements of the acts or omissions
constituting the offense, in ordinary and
concise and particular words;
3. The specific qualifying and aggravating
circumstances must be stated in ordinary
and concise language.
NOTE: Qualifying and aggravating circumstances
not alleged in the information cannot be
appreciated even if proved on trial(P. vs. Perreras,
362 SRA 202).
In case of allegations of Habitual Delinquency, it
should not be generally averred. The information
must specify the requisite data regarding:
1. The commission of the crimes;
2. The last conviction or release;
3. The other previous conviction or release
of the accused.
ALLEGATIONS PREVAIL OVER THE
DESIGNATION OF THE OFFENSE IN THE
INFORMATION
It is not the designation of the offense in the
complaint or information that is controlling (P. vs.
Samillano, 56 SCRA 573); the facts alleged
therein and not its title determine the nature of the
crime (P. vs. Magduwa, 73 Phil. 512).
The accused may be convicted of a crime more
serious than that named in the title or preliminary
part if such crime is covered by the facts alleged in
the body of the information and its commission is
established by evidence (Buhat vs. CA, 265 SCRA
701).
Note: Accused charged of intentional
Malversation may be convicted of Malversation
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
through negligence (Torres vs. P., GR No.
175074, Aug. 31, 2011).
An accused could not be convicted under one act
when he is charged with a violation of another if
the change from one statute to other involves:
1. Change in the theory of the trial;
2. Requires of the defendant a different
defense;
3. Surprises the accused in any way (US vs.
Panlilio, 28 Phil. 603).
Section 9. Cause of the accusation. — The acts
or omissions complained of as constituting the
offense and the qualifying and aggravating
circumstances must be stated in ordinary and
concise language and not necessarily in the
language used in the statute but in terms sufficient
to enable a person of common understanding to
know what offense is being charged as well as its
qualifying and aggravating circumstances and for
the court to pronounce judgment. (9a)
PURPOSE:
1. To enable the court to pronounce proper
judgment;
2. To furnish the accused with such
description of the charge as to enable him
to make a defense;
3. As a protection for further prosecution for
the same cause(double jeopardy bar).
RULE ON NEGATIVE AVERMENTS
GR: Where the statute alleged to have been
violated prohibits generally acts therein defined
and is intended to apply to all persons
indiscriminately, but prescribes certain limitation or
exceptions from its violation, the indictment or
information is sufficient even if it does NOT allege
that the accused falls within the excepted
situation, for then the complete definition of the
offense is entirely separable from the exceptions
and can be made without reference to the latter. In
this case, the exception is a matter of defense
which the accused has to prove.
EXCEPTION: Where the statute alleged to have
been violated applies to specific classes of
persons and special conditions and the
exemptions are so incorporated in the language
defining the crime that the ingredients of the
offense cannot be accurately and clearly set forth
if the exemption is omitted. Then the indictment
must show that the accused does not fall within
the exemptions.
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Note: amendment of pleading to conform to
evidence – Rule 10, sec. 5, does not apply in
criminal cases.
Section 10. Place of commission of the offense.
— The complaint or information is sufficient if it
can be understood from its allegations that the
offense was committed or some of the essential
ingredients occurred at some place within the
jurisdiction of the court, unless the particular
place where it was committed constitutes an
essential element of the offense or is necessary
for its identification. (10a)
NOTE: The example of the underlined portion:
1. Trespass to dwelling;
2. Destructive arson;
3. Robbery in an inhabited place.
PURPOSE: To show territorial jurisdiction which is
jurisdictional(mandatory) in criminal cases.
Note: Venue of prosecution of illegal
recruitment:
a) Place of the commission of the offense;
b) Place of residence of offended party.
Jurisdiction is with the RTC.
Section 11. Date of commission of the offense.
— It is not necessary to state in the complaint or
information the precise date the offense was
committed except when it is a material ingredient
of the offense. The offense may be alleged to
have been committed on a date as near as
possible to the actual date of its commission.
(11a)
NOTE: Example of the underlined portion:
1. Infanticide;
2. Violation of Gun ban;
3. Physical injuries.
Section 12. Name of the offended party. — The
complaint or information must state the name and
surname of the person against whom or against
whose property the offense was committed, or any
appellation or nickname by which such person has
been or is known. If there is no better way of
identifying him, he must be described under a
fictitious name.
(a) In offenses against property, if the
name of the offended party is unknown,
the property must be described with such
particularity as to properly identify the
offense charged.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(b) If the true name of the of the person
against whom or against whose properly
the offense was committed is thereafter
disclosed or ascertained, the court must
cause the true name to be inserted in the
complaint or information and the record.
(c) If the offended party is a juridical
person, it is sufficient to state its name, or
any name or designation by which it is
known or by which it may be identified,
without need of averring that it is a
juridical person or that it is organized in
accordance with law. (12a)
Section 13. Duplicity of the offense. — A
complaint or information must charge but one
offense, except when the law prescribes a single
punishment for various offenses. (13a)
GR: A complaint or information must charge only
one offense.
Exceptions:
1. Complex crimes;
2. Special complex crimes;
3. Continuous crimes or delito continuado;
4. Crimes susceptible of being committed in
various modes;
5. Crime of which another offense is an
ingredient.
REQUISITES for Continuous crimes:
1. Plurality of acts committed separately
during a period of time;
2. Unity of penal provision violated;
3. Unity of criminal intent which means two
or more violation of the same penal
provision are united on one and the same
intent leading to the perpetration of the
same criminal purpose (P. vs. Ledesma,
76 SCRA 47).
REMEMBER: Connect this section to Rule 120,
sec. 3.
Section 3, Rule 120. Judgment for two or
more offenses. — When two or more offenses
are charged in a single complaint or
information but the accused fails to object to it
before trial, the court may convict him of as
many offenses as are charged and proved,
and impose on him the penalty for each
offense, setting out separately the findings of
fact and law in each offense. (3a)
NOTE: Should there be duplicity of offense in the
information, the accused must move for the
quashal thereof BEFORE the arraignment.
Otherwise, he is deemed to have waived the
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objection and may be found guilty of as many
offenses as those charged and proved during trial.
SPLITTING OF CASE NOT ALLOWED
On the other hand, a defendant should not be
harassed with various prosecutions based upon
the same act by splitting the same into various
charges, all emanating from the same law violated
when the prosecution could easily and well
embody them in a single information.
Section 14. Amendment or substitution. — A
complaint or information may be amended, in form
or in substance, without leave of court, at any
time before the accused enters his plea. After
the plea and during the trial, a formal amendment
may only be made with leave of court and when it
can be done without causing prejudice to the
rights of the accused.
However, any amendment before plea, which
downgrades the nature of the offense charged in
or excludes any accused from the complaint or
information, can be made only upon motion by the
prosecutor, with notice to the offended party and
with leave of court. The court shall state its
reasons in resolving the motion and copies of its
order shall be furnished all parties, especially the
offended party. (n)
If it appears at any time before judgment that a
mistake has been made in charging the proper
offense, the court shall dismiss the original
complaint or information upon the filing of a new
one charging the proper offense in accordance
with section 19, Rule 119, provided the accused
shall not be placed in double jeopardy. The court
may require the witnesses to give bail for their
appearance at the trial. (14a)
Bar Exam Questions 2013
III. Leave of court is required to amend a
complaint or information before arraignment
if the amendment __________. (1%)
(A) upgrades the nature of the offense from a
lower to a higher offense and excludes any of
the accused (B) upgrades the nature of the
offense from a lower to a higher offense and
adds another accused (C) downgrades the
nature of the offense from a higher to a
lower offense or excludes any accused (D)
downgrades the nature of the offense from a
higher to a lower offense and adds another
accused (E) All the above choices are
inaccurate. SUGGESTED ANSWER: (C),
Under Section 14 of Rule 110 of the Rules
of Criminal Procedure, any amendment
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
before plea, which downgrades the nature
of the offense charged in or excludes any
accused from the complaint or
information, can be made only upon
motion by the prosecutor, with notice to
the offended party and with the leave of
court.
NOTES: KINDS OF AMENDMENTS
A. BEFORE PLEA—covers both substantial
and formal amendments, without leave of
court.
Except: (a) amendment which
downgrades the nature of the offense; (b)
excludes any accused from the complaint
can be made only:
1) Upon motion by the prosecutor;
2) With notice to offended party;
3) With leave of court.
B. AFTER PLEA—covers only formal
amendments provided:
a) Leave of court is obtained;
b) Not prejudicial to the rights of the
accused.
Except: When a facts supervenes which
changes the nature of the crime charged
in the information or upgrades it to a
higher crime, in which case, there is a
need for another arraignment of the
accused under the amended information.
Information; Amendment (2001)
Amando was charged with frustrated homicide. Before
he entered his plea and upon the advice of his counsel,
he manifested his willingness to admit having
committed the offense of serious physical injuries. The
prosecution then filed an amended information for
serious physical injuries against Amando. What steps
or action should the prosecution take so that the
amended information against Amando which
downgrades the nature of the offense could be validly
made? Why? (5%)
SUGGESTED ANSWER:
In order that the amended information which
downgrades the nature of the offense could be validly
made, the prosecution should file a motion to ask for
leave of court with notice to the offended party. (Sec.14
of Rule 110, Revised Rules of Criminal Procedure). The new rule is
for the protection of the interest of the offended party
and to prevent possible abuse by the prosecution.
Information; Amendment; Double Jeopardy; Bail (2002)
A. D and E were charged with homicide in one
information. Before they could be arraigned, the
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prosecution moved to amend the information to SUGGESTED ANSWER:

exclude E therefrom. Can the court grant the motion (a) No. The Information cannot be amended to
to amend? Why? (2%) change the offense charged from homicide to
B. On the facts above stated, suppose the prosecution, parricide. Firstly, the marriage is not a supervening fact
instead of filing a motion to amend, moved to arising from the act constituting the charge of
withdraw the information altogether and its motion homicide. (Sec. 7[a] of Rule 117). Secondly, after plea,
was granted. Can the prosecution re-file the amendments may be done only as to matters of form.
information although this time for murder? Explain The amendment is substantial because it will change
(3%) the nature of the offense. (Sec. 14 of Rule 110; Dionaldo
SUGGESTED ANSWER: us. Dacuycuy. 108 SCRA 736).
A. Yes, provided notice is given to the offended party (b) No. A can be convicted only of homicide not of
and the court states its reasons for granting the same. parricide which is a graver offense. The accused has
(Rule 110, sec. 14). the constitutional rights of due process and to be
B. Yes, the prosecution can re-file the information for informed of the nature and the cause of the accusation
murder in substitution of the information for homicide against him. (Secs. 1, 14 (1) and (2} Art. III. 1987 Constitution),
because no double jeopardy has as yet attached.
[Galvez v. Court of Appeals, 237 SCRA 685 (1994)]. SUBSTITUTION
Paragraph 3 of sec. 14 is known as the
substitution of information/complaint.
AN AMENDMENT IS ONLY OF FORM IF:
1. It neither affects nor alters the nature of LIMITATIONS ON THE RULE ON
the offense charged; SUBSTITUTION:
2. The charge does not deprived the
accused of a fair opportunity to present 1. No judgment has yet been rendered;
his defense; 2. The accused cannot be convicted of the
3. It does not involve a change in the basic offense charged or of any other offense
theory of the of the prosecution. necessarily included therein;
3. The accused would not be placed in
Note: Substantial matters in a complaint or double jeopardy.
information is the recital of facts constituting the
offense charged and the determination of the
jurisdiction of courts. All other matters are merely AMENDMENT SUBSTITUTION
matters of form. (Almeda vs. Villaluz, 66 SCRA
May involve either Involves substantial
38).
formal or substantial change from original
GR: After the accused has been arraigned, the changes charge
information may be amended to change material Amendment before Must be with leave of
dates of the commission of the crime. Allegations plea can be effected court as the original
regarding the time of the commission of the crime without leave of court information is to be
are formal matters. dismissed(initiative
comes from the court)
EXCEPTION: When the time is a MATERIAL No need for another PI Another PI may be had
INGREDIENT of the crime (like; infanticide and and retaking of the plea and the accused has to
violation of election laws), amendment must be if the amendment is plead anew to the new
before the accused enters his plea (Gabionza vs. only formal information
CA, L-140311, March 30, 2001). An amended
information refers to the
Information; Amendment; Supervening Events (1997) same offense charged Requires that or
A was accused of homicide for the killing of B. During in the original presuppose that the
the trial, the public prosecutor received a copy of the information or to an new information
marriage certificate of A and B. offense which involves a different
(a) Can the public prosecutor move for the necessarily includes or offense which does not
amendment of the information to charge A with the is necessarily included include or included in
crime of parricide? in the original charge. the original charge;
Hence, substantial hence, the accused
(b) Suppose instead of moving for the amendment of
amendments to the cannot claim double
the information, the public prosecutor presented in
information after the jeopardy.
evidence the marriage certificate without objection on
plea has been taken
the part of the defense, could Abe convicted of
cannot be made over
parricide?

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 372

________________________________________________________________________________________________
the objection of the
accused for if the
original information
would be withdrawn,
the accused could
invoke double jeopardy.
Test for propriety of Amendment after Plea:
The test as to whether the defendant is prejudiced
by the amendment of an information has been
said to be whether a defense under the original
information would be available to the amended
information and whether the evidence, the
defendant might have would be equally applicable
to the information in one form as in the other.
VARIANCE BETWEEN ALLEGATIONS AND
PROOF (situations contemplated):
1. When the offense proved is less serious
than, and is necessarily included in, the
offense charged, in which case the
defendant shall be convicted of the
offense proved;
2. When the offense proved is more serious
than and includes the offense charged, in
which case the accused shall be
convicted of the offense charged;
3. When the offense proved is neither
included in, nor does it include, the
offense charged and is different
therefrom, in which case the court shall
dismiss the case upon filing of the proper
charge(Rule 110, sec.14, par.3).
Section 15. Place where action is to be
instituted. —
(a) Subject to existing laws, the criminal action
shall be instituted and tried in the court of the
municipality or territory where the offense was
committed or where any of its essential
ingredients occurred.
(b) Where an offense is committed in a train,
aircraft, or other public or private vehicle while
in the course of its trip, the criminal action
shall be instituted and tried in the court of any
municipality or territory where such train,
aircraft or other vehicle passed during such its
trip, including the place of its departure and
arrival.
(c) Where an offense is committed on board a
vessel in the course of its voyage, the criminal
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
action shall be instituted and tried in the court
of the first port of entry or of any municipality
or territory where the vessel passed during
such voyage, subject to the generally
accepted principles of international law.
Venue (1997)
Where is the proper venue for the filing of an
information in the following cases? a) The theft of a
car in Pasig City which was brought to Obando,
Bulacan, where it was cannibalized.
b) The theft by X, a bill collector of ABC Company,
with main offices in Makati City, of his collections
from customers in Tagaytay City. In the contract of
employment, X was detailed to the Calamba branch
office, Laguna, where he was to turn in his collections.
c) The malversation of public funds by a Philippine
consul detailed in the Philippine Embassy in London.
SUGGESTED ANSWER:
(a) The proper venue is in Pasig City where the theft
of the car was committed, not in Obando where it was
cannibalized. Theft is not a continuing offense. (People
v Mercado, 65 Phil 665).
(b) If the crime charged is theft, the venue is in
Calamba where he did not turn in his collections. If
the crime of X is estafa, the essential ingredients of the
offense took place in Tagaytay City where he received
his collections, in Calamba where he should have
turned in his collections, and in Makati City where the
ABC Company was based. The information may
therefore be filed in Tagaytay City or Calamba or
Makati which have concurrent territorial Jurisdiction.
(Catingub vs. Court of Appeals, 121 SCRA 106).
(c) The proper court is the Sandiganbayan which has
jurisdiction over crimes committed by a consul or
higher official in the diplomatic service. (Sec. 4(c). PD
1606, as amended by RA. No. 7975). The Sandiganbayan
is a national court. (Nunez v. Sandiganbayan, 111 SCRA
433 [1982]. It has only one venue at present, which is in
Metro Manila, until RA. No. 7975, providing for two
other branches in Cebu and in Cagayan de Oro, is
implemented.
Alternative Answers:
(b) The information may be filed either in Calamba or
in Makati City, not in Tagaytay City where no offense
had as yet been committed, (c) Assuming that the
Sandiganbayan has no jurisdiction, the proper venue is
the first RTC in which the charge is filed (Sec. 15(d). Rule
110).
Note: place of arrival and departure NOT
included.
(d) Crimes committed outside the Philippines
but punishable under Article 2 of the Revised
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Penal Code shall be cognizable by the court
where the criminal action is first filed. (15a)
PURPOSE: The purpose being not to compel the
defendant to move to, and appear in a court from
that of the territory where the crime was
committed, as it would cause him great
inconvenience in looking for his witnesses and
other evidence in another place(Beltran vs.
Ramos, 96 Phil. 149).
VENUE is Jurisdictional in criminal cases.
Place where action is to be instituted:
GR: par. (a).
Exceptions:
1. Par. (b), (c), and (d);
2. Piracy;
3. Art. 360, RPC. Libel—the action may be
instituted at the election of the offended
party in the province or city:
a) Where the libelous article is
printed and first published;
b) If one of the offended party is a
private individual, where said
individual actually resides at the
time of the commission of the
offense;
c) If the offended part is a public
official, where he holds office at
the time of the commission of the
offense.
4. In exceptional circumstances—to ensure
a fair trial and impartial inquiry. The SC
shall have the power to change the venue
or place of trial to avoid miscarriage of
justice(sec.5[4], art. VIII, 1987
Constitution). [Ampatuan and Abu Sayaf
cases].
5. In cases falling under BP 22—action is
filed in the place where the check was
dishonored or issued.
6. Sandiganbayan cases.
Section 16. Intervention of the offended party in
criminal action. — Where the civil action for
recovery of civil liability is instituted in the criminal
action pursuant to Rule 111, the offended party
may intervene by counsel in the prosecution of the
offense. (16a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
GR: sec. 16.
Exceptions:
1. Where the nature of the crime and the law
punishing it, no civil liability arises in favor
of he offended party;
2. Where the offended party has waived his
right to civil indemnity;
3. Where the offended party has expressly
reserved his right to institute a separate
civil action;
4. Where the offended party has already
instituted said action.
NOTE: As a general rule, only the prosecutor can
file a complaint/information in the RTC.
EXCEPT: When the accused was arrested without
a warrant, an inquest is conducted. In the absence
of the inquest prosecutor, the complaint can be
directly filed with the RTC by the offended party.
RULE 111
Prosecution of Civil Action
Section 1. Institution of criminal and civil
actions. — (a) When a criminal action is
instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be
deemed instituted with the criminal action unless
the offended party waives the civil action,
reserves the right to institute it separately or
institutes the civil action prior to the criminal
action.
The reservation of the right to institute separately
the civil action shall be made before the
prosecution starts presenting its evidence and
under circumstances affording the offended party
a reasonable opportunity to make such
reservation.
When the offended party seeks to enforce civil
liability against the accused by way of moral,
nominal, temperate, or exemplary damages
without specifying the amount thereof in the
complaint or information, the filing fees thereof
shall constitute a first lien on the judgment
awarding such damages.
Where the amount of damages, other than actual,
is specified in the complaint or information, the
corresponding filing fees shall be paid by the
offended party upon the filing thereof in court.
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Except as otherwise provided in these Rules, no
filing fees shall be required for actual damages.
No counterclaim, cross-claim or third-party
complaint may be filed by the accused in the
criminal case, but any cause of action which could
have been the subject thereof may be litigated in a
separate civil action. (1a)
(b) The criminal action for violation of Batas
Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file
such civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil
actions, the offended party shall pay in full the
filing fees based on the amount of the check
involved, which shall be considered as the actual
damages claimed. Where the complaint or
information also seeks to recover liquidated,
moral, nominal, temperate or exemplary damages,
the offended party shall pay additional filing fees
based on the amounts alleged therein. If the
amounts are not so alleged but any of these
damages are subsequently awarded by the court,
the filing fees based on the amount awarded shall
constitute a first lien on the judgment.
Where the civil action has been filed separately
and trial thereof has not yet commenced, it may
be consolidated with the criminal action upon
application with the court trying the latter case. If
the application is granted, the trial of both actions
shall proceed in accordance with section 2 of this
Rule governing consolidation of the civil and
criminal actions. (cir. 57-97)
Actions; BP22; Civil Action deemed included (2001)
Saturnino filed a criminal action against Alex for the
latter’s 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
court’s order granting the motion for reconsideration
correct? Why? (5%)
SUGGESTED ANSWER:
Yes, the court’s order granting the motion for
reconsideration is correct. The Rules provide that the
criminal action for violation of B.P. Blg. 22 shall be
deemed to include the corresponding civil action, and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
that no reservation to file such civil action separately
shall be allowed. [Sec. 1(b), Rule 111, Revised Rules of Criminal
Procedure]
Actions; BP22; Demurrer to Evidence (2003)
In an action for violation of Batas Pambansa Big. 22,
the court granted the accused’s demurrer to evidence
which he filed without leave of court. Although he was
acquitted of the crime charged, he, however, was
required by the court to pay the private complainant
the face value of the check. The accused filed a Motion
of Reconsideration regarding the order to pay the face
value of the check on the following grounds: a) the
demurrer to evidence applied only to the criminal
aspect of the case; and b) at the very least, he was
entitled to adduce controverting evidence on the civil
liability. Resolve the Motion for Reconsideration. (6%)
SUGGESTED ANSWER:
(a) The Motion for Reconsideration should be denied.
The ground that the demurrer to evidence applied only
to the criminal aspect of the case was not correct
because the criminal action for violation of Batas
Pambansa Blg. 22 included the corresponding civil
action. (Sec. 1(b) of Rule 111).
(b) The accused was not entitled to adduce
controverting evidence on the civil liability, because he
filed his demurrer to evidence without leave of court.
(Sec. 23 of Rule 119).
Instances where no reservation for a separate
civil action is allowed:
1. BP 22 cases;
2. Cases cognizable by the Sandiganbayan
(sec. 4, PD 1606, as amended by RA
8249);
3. Tax cases (sec. 7 par. B, no. 1, RA 9282).
NOTE: Only the civil liability arising from the
offense charged as a felony is now deemed
instituted.
Civil liability arising from other sources of
obligations (law, contract, quasi-contract, and
quasi-delict) are no longer deemed instituted like
those under Article, 32, 33, 34 and 2176 of the
NCC which can be prosecuted even without
reservation.
If the judgment did not provide for the award of
civil damages, the judge may be compelled by
mandamus.
Take Note: as a GR, there is no filing fee is
required for actual damages. However, in BP 22
cases, there is required payment of filing fee
based upon the value of the check.
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Section 2. When separate civil action is
suspended. — After the criminal action has been
commenced, the separate civil action arising
therefrom cannot be instituted until final judgment
has been entered in the criminal action.
If the criminal action is filed after the said civil
action has already been instituted, the latter shall
be suspended in whatever stage it may be found
before judgment on the merits. The suspension
shall last until final judgment is rendered in the
criminal action. Nevertheless, before judgment on
the merits is rendered in the civil action, the same
may, upon motion of the offended party, be
consolidated with the criminal action in the court
trying the criminal action. In case of consolidation,
the evidence already adduced in the civil action
shall be deemed automatically reproduced in the
criminal action without prejudice to the right of the
prosecution to cross-examine the witnesses
presented by the offended party in the criminal
case and of the parties to present additional
evidence. The consolidated criminal and civil
actions shall be tried and decided jointly.
During the pendency of the criminal action, the
running of the period of prescription of the civil
action which cannot be instituted separately or
whose proceeding has been suspended shall be
tolled. (n)
The extinction of the penal action does not carry
with it extinction of the civil action. However, the
civil action based on delict shall be deemed
extinguished if there is a finding in a final judgment
in the criminal action that the act or omission from
which the civil liability may arise did not exist. (2a)
NOTES:
GR: PRIMACY OF CRIMINAL ACTON OVER
CIVIL ACTION.
Art. 35,NCC. When a person, claiming to
be injured by a criminal offense, charges another
with the same, for which no independent civil
action is granted in this Code or any special law,
but the justice of the peace finds no reasonable
grounds to believe that a crime has been
committed, or the prosecuting attorney refuses
or fails to institute criminal proceedings, the
complainant may bring a civil action for damages
against the alleged offender. Such civil action
may be supported by a preponderance of
evidence. Upon the defendant's motion, the
court may require the plaintiff to file a bond to
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
indemnify the defendant in case the complaint
should be found to be malicious.
If during the pendency of the civil action, an
information should be presented by the
prosecuting attorney, the civil action shall be
suspended until the termination of the criminal
proceedings.
Exceptions:
1. In cases of independent civil actions
under art. 32, 33, 34 and 2176, NCC;
2. The civil action presents a prejudicial
question under art. 36, NCC;
3. In case the civil action is consolidated with
the criminal action;
4. Where the civil action is not intended to
enforce a civil liability arising from the
offense (art. 31, NCC).
CONSOLIDATION OF CIVIL AND CRIMINAL
CASES
The consolidation must be in the criminal court,
irrespective of the nature of the offense, the
amount of civil claim or rank of the court trying the
civil case.
Notice that as a rule consolidation of the criminal
and civil cases may be consolidated only before
the trial of the civil cases is commenced.
Nevertheless, it may still be consolidated before
judgment is rendered on merits (sec. 1, in relation
to sec. 2.
ACQUITTAL IN A CRIMINAL CASE DOES NOT
BAR THE FILING OF THE CIVIL CASE WHERE:
1. The acquittal is based on reasonable
doubt, if the civil case has been reserved;
2. The decision contains a declaration that
the liability of the accused is only civil and
not criminal;
3. The civil liability is not derived on the
criminal act of which the accused is
acquitted (Sapiera vs. CA, 314 SCRA
370)[ART. 31, NCC].
NOTE: The extinction of the civil liability arising
from the crime(delict); whereas, the civil liability for
the same act arising from other sources of
obligation is not even extinguished by a
declaration in the criminal case that the criminal
act charged has not happened or has not been
committed by the accused.
Civil Liability not Extinguished despite
Acquittal. (2010) (2) Name two instances
where the trial court can hold the accused
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civilly liable even if he is acquitted. (2%)
SUGGESTED ANSWER: The instances
where the civil liability is not
extinguished despite the acquittal of the
accused where: (1) The acquittal is based
on reasonable doubt; (2) Where the court
expressly declares that the liability of the
accused is not criminal but only civil in
nature; and (3) Where the civil liability is
not derived from or based on the criminal
act of which the accused is acquitted
(Remedios Nota Sapiera vs. Court of
Appeals, September 14, 1999).
ENFORCEMENT OF SUBSIDARY CIVIL
LIABILITY
Noteworthy is the fact that the subsidiary liability
established in articles 102 and 103 of RPC may
be enforce in the same criminal case by filing in
said criminal action a motion for execution against
the person subsidiary liable (alias writ of
execution)
Acquittal; Effect (2002)
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 Delia’s injuries? Why? (3%)
SUGGESTED ANSWER:
If the judgment of acquittal in the criminal case finds
that the act or omission from which the civil liability
may arise does not exist, the court may receive it in
evidence over the objection by Delia. [Rule 111, sec. 2, last
paragraph].
ALTERNATIVE ANSWER:
If the judgment of acquittal is based on reasonable
doubt, the court may receive it in evidence because in
such case, the civil action for damages which may be
instituted requires only a preponderance of the
evidence. (Art. 29, Civil Code).
Section 3. When civil action may proceeded
independently. — In the cases provided for in
Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines, the independent civil action may
be brought by the offended party. It shall proceed
independently of the criminal action and shall
require only a preponderance of evidence. In no
case, however, may the offended party recover
damages twice for the same act or omission
charged in the criminal action. (3a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Actions; Commencement of an Action;
Criminal, Civil (2013) No.III. While in his
Nissan Patrol and hurrying home to Quezon
City from his work in Makati, Gary figured in
a vehicular mishap along that portion of
EDSA within the City of Mandaluyong. He
was bumped from behind by a Ford
Expedition SUV driven by Horace who was
observed using his cellular phone at the time
of the collision. Both vehicles - more than 5
years old – no longer carried insurance other
than the compulsory third party liability
insurance. Gary suffered physical injuries
while his Nissan Patrol sustained damage in
excess of Php500,000.
(A) As counsel for Gary, describe the process
you need to undertake starting from the
point of the incident if Gary would proceed
criminally against Horace, and identify the
court with jurisdiction over the case. (3%)
SUGGESTED ANSWER:
A) As counsel for Gary, I will first have
him medically examined in order to
ascertain the gravity and extent of the
injuries sustained from the accident.
Second, I will secure an accurate police
report relative to the mishap unless
Horace admits his fault in writing, and
request Gary to secure a car damage
estimate from a car repair shop. Third, I
will ask him to execute his Sinumpaang
Salaysay. Thereafter, I will use his
Sinumpaang Salaysay or prepare a
Complaint-affidavit and file the same in
the Office of the City Prosecutor of
Mandaluyong City (Sections 1 and 15 Rule
110, Rules of Criminal Procedure). This
being a case of simple negligence and the
penalty for the offense does not exceed six
months imprisonment, the court with
original and exclusive jurisdiction is the
Metropolitan Trial Court of Mandaluyong
City.
(B) If Gary chooses to file an independent civil
action for damages, explain briefly this type
of action: its legal basis; the different
approaches in pursuing this type of action;
the evidence you would need; and types of
defenses you could expect. (5%)
SUGGESTED ANSWER:
An independent civil action is an action
which is entirely distinct and separate
from the criminal action. Such civil action
shall proceed independently of the
criminal prosecution and shall require
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only a preponderance of evidence. Section
3 of Rule 111 allows the filing of an
independent civil action by the offended
party based on Article 33 and 2176 of the
New Civil Code. The different approaches
that the plaintiff can pursue in this type
of action are as follows: (a) File the
independent civil action and prosecute
the criminal case separately. (b) File the
independent civil action without filing the
criminal case. (c) File the criminal case
without need of reserving the independent
civil action. Aside from the testimony of
Gary, the pieces of evidence that would be
required in an independent civil action are
the medical report and certificate
regarding the injuries sustained by Gary,
hospital and medical bills including
receipt of payments made police report
and proof of the extent of damage
sustained by his car and the Affidavit of
witnesses who saw Horace using his
cellular phone at the time the incident
happened.
I will also present proof of employment of
Gary such as payslip in order to prove that
he was gainfully employed at the time of
the mishap, and as a result of the injuries
he suffered, he was not able to earn his
usual income thereof. I will also present
the attending Doctor of Gary to
corroborate and authenticate the contents
of the medical report and abstract thereof.
The evidence required to hold defendant
Horace liable is only preponderance of
evidence. The types of defenses that may
be raised against this action are fortuitous
event, force majeure or acts of God. The
defendant can also invoke contributory
negligence as partial defense. Moreover,
the defendant can raise the usual defenses
that the: (a) plaintiff will be entitled to
double compensation or recovery, and (b)
defendant will be constrained to litigate
twice and therefore suffer the cost of
litigation twice.
Actions; Complaint; Forum Shopping
(2010)
No.IV. X was driving the dump truck of Y
along Cattleya Street in Sta. Maria, Bulacan.
Due to his negligence, X hit and injured V
who was crossing the street. Lawyer L, who
witnessed the incident, offered his legal
services to V. V, who suffered physical
injuries including a fractured wrist bone,
underwent surgery to screw a metal plate to
his wrist bone. On complaint of V, a criminal
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
case for Reckless Imprudence Resulting in
Serious Physical Injuries was filed against X
before the Municipal Trial Court (MTC) of Sta.
Maria. Atty. L, the private prosecutor, did not
reserve the filing of a separate civil action. V
subsequently filed a complaint for Damages
against X and Y before the Regional Trial
Court of Pangasinan in Urdaneta where he
resides. In his "Certification Against Forum
Shopping," V made no mention of the
pendency of the criminal case in Sta. Maria.
(a) Is V guilty of forum shopping? (2%)
SUGGESTED ANSWER:
No, V is not guilty of forum shopping
because the case in Sta. Maria, Bulacan, is
a criminal action filed in the name of the
People of the Philippines, where civil
liability arising from the crime is deemed
also instituted therewith; whereas the
case filed in Urdaneta, Pangasinan, is a
civil action for quasi-delict in the name of
V and against both X and Y for all damages
caused by X and Y to V, which may be
beyond the jurisdiction of MTC. Hence,
the tests of forum shopping, which is res
adjudicate or litis pendencia, do not
obtain here. Moreover, substantive law
(Art. 33, Civil Code) and Sec. 3, Rule 111,
Revised Rules of Criminal Procedure,
expressly authorize the filing such action
for damages entirely separate and distinct
from the criminal action.
(b) Instead of filing an Answer, X and Y move
to dismiss the complaint for damages on the
ground of litis pendentia. Is the motion
meritorious? Explain. (2%) SUGGESTED
ANSWER: No, the motion to dismiss base
on alleged litis pendencia is without merit
because there is no identity of parties and
subject matter in the two cases. Besides,
Art. 33 of the Civil Code and Rule 111,
Sec. 3 of the Rules of Criminal Procedure
authorize the separate civil action for
damages arising from physical injuries to
proceed independently.
(c) Suppose only X was named as defendant
in the complaint for damages, may he move
for the dismissal of the complaint for failure
of V to implead Y as an indispensable party?
(2%) SUGGESTED ANSWER:
No, X may not move for dismissal of the
civil action for damages on the contention
that Y is an indispensable party who
should be impleaded. Y is not an
indispensable party but only necessary
party. Besides, nonjoinder and misjoinder
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of parties is not a ground for dismissal of
actions (Rule 3, Sec. 11, Rules of Court).
(d) X moved for the suspension of the
proceedings in the criminal case to await the
decision in the civil case. For his part, Y
moved for the suspension of the civil case to
await the decision in the criminal case.
Which of them is correct? Explain. (2%)
SUGGESTED ANSWER: Neither of them is
correct. Both substantive law (Art. 33 of
the Civil Code) and procedural law (Rule
111, Sec. 3, Rules of Criminal Procedure)
provide for the two actions to proceed
independently of each other, therefore, no
suspension of action is authorized.
(e) Atty. L offered in the criminal case his
affidavit respecting what he witnessed during
the incident. X’s lawyer wanted to cross-
examine Atty. L who, however, objected on
the ground of lawyer-client privilege. Rule on
the objection. (2%)
SUGGESTED ANSWER: The objection
should be overruled. Lawyer-client
privilege is not involved here. The subject
on which the counsel would be examined
has been made public in the affidavit he
offered and thus, no longer privileged,
aside from the fact that it is in respect of
what the counsel witnessed during the
incident and not to the communication
made by the client to him or the advice he
gave thereon in his professional capacity.
Section 4. Effect of death on civil actions. —
The death of the accused after arraignment and
during the pendency of the criminal action shall
extinguish the civil liability arising from the delict.
However, the independent civil action instituted
under section 3 of this Rule or which thereafter is
instituted to enforce liability arising from other
sources of obligation may be continued against
the estate or legal representative of the accused
after proper substitution or against said estate, as
the case may be. The heirs of the accused may be
substituted for the deceased without requiring the
appointment of an executor or administrator and
the court may appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order said legal
representative or representatives to appear and
be substituted within a period of thirty (30) days
from notice.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
A final judgment entered in favor of the offended
party shall be enforced in the manner especially
provided in these rules for prosecuting claims
against the estate of the deceased.
If the accused dies before arraignment, the case
shall be dismissed without prejudice to any civil
action the offended party may file against the
estate of the deceased. (n)
Section 5. Judgment in civil action not a bar. —
A final judgment rendered in a civil action
absolving the defendant from civil liability is not a
bar to a criminal action against the defendant for
the same act or omission subject of the civil
action. (4a)
Section 6. Suspension by reason of prejudicial
question. — A petition for suspension of the
criminal action based upon the pendency of a
prejudicial question in a civil action may be filed in
the office of the prosecutor or the court conducting
the preliminary investigation. When the criminal
action has been filed in court for trial, the petition
to suspend shall be filed in the same criminal
action at any time before the prosecution rests.
(6a)
NOTES: Art. 36, NCC. Pre-judicial questions
which must be decided before any criminal
prosecution may be instituted or may proceed,
shall be governed by rules of court which the
Supreme Court shall promulgate and which shall
not be in conflict with the provisions of this Code.
PREJUDICIAL QUESTION
It is one which arises in a case, the resolution of
which is a logical antecedent of the issue involved
therein and cognizance of which pertains to
another tribunal (Agpalo, p. 137).
Prejudicial question is based on a fact distinct and
separate from the crime but so intimately
connected with it that it determines the guilt or
innocence of the accused.
REASON: To avoid two conflicting decisions.
WHERE TO FILE PETITION FOR SUSPENSION
OF CRIMINAL ACTION:
1. Office of the Prosecutor;
2. Court where the case is filed for trial, at
any time before prosecution rests.
Section 7. Elements of prejudicial question. —
The elements of a prejudicial question are:
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(a) the previously instituted civil action the prosecutor in the criminal case, briefly discuss your
involves an issue similar or intimately related grounds in support of your opposition to the motion
to the issue raised in the subsequent criminal to suspend proceedings. (5%).
action, and SUGGESTED ANSWER:
As the prosecutor, I will argue that the motion to
(b) the resolution of such issue determines suspend is not in order for the following reasons:
whether or not the criminal action may 1 The civil case filed by CX against MM for
proceed. (5a) accounting and damages does not involve an issue
similar to or intimately related to the issue of estafa
raised in the criminal action.
NOTES: 2 The resolution of the issue in the civil case for
accounting will not determine whether or not the
criminal action for estafa may proceed. (Sec. 5, Rule 111,
PREJUDICIAL PREVIOUS QUESTION Rules of Criminal Procedure.)
QUESTION
I. Administrative Bar Exam Question 2011
Civil and Criminal and civil cases; (17) The city prosecutor of Manila filed, upon
cases II. Civil then Soledad’s complaint, a criminal action for
administrative estafa against her sister, Wella, before the
cases; RTC of Manila for selling to Victor a land that
III. Civil and civil she previously sold to Soledad. At the same
cases; time Soledad filed a civil action to annul the
IV. Administrative second sale before the RTC of Quezon City.
and criminal (ULP May the Manila RTC motu proprio suspend
case before Labor the criminal action on ground of prejudicial
Arbiters before question? (A) Yes, if it may be clearly inferred
filing a Criminal that complainant will not object to the
case for ULP) suspension of the criminal case. (B) No, the
V. Criminal then civil accused must file a motion to suspend the
(Falsification and action based on prejudicial question.
Probate of Will) (C) Yes, if it finds from the record that such
prejudicial question exists. (D) Yes, if it is
Note: It is not in all cases that the decision (finding convinced that due process and fair trial will
of facts) in the administrative case will bind the be better served if the criminal case is
civil case. suspended.

Prejudicial Question (1999)

What is a prejudicial question? (2%)
SUGGESTED ANSWER:
A prejudicial question is an issue involved in a civil
action which is similar or intimately related to the issue
raised in the criminal action, the resolution of which
determines whether or not the criminal action may
proceed. (Sec. 5 of Rule 111.)
ANOTHER ANSWER:
A prejudicial question is one based on a fact distinct
and separate from the crime but so intimately
connected with it that it determines the guilt or
innocence of the accused.
Prejudicial Question (2000)
CX is charged with estafa in court for failure to remit
to MM sums of money collected by him (CX) for MM
in payment for goods purchased from MM, by
depositing the amounts in his (CX’s) personal bank
account. CX files a motion to suspend proceedings
pending resolution of a civil case earlier filed in court
by CX against MM for accounting and damages
involving the amounts subject of the criminal case. As
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Prejudicial Question; Suspension of Criminal Action
(1999)
A allegedly sold to B a parcel of land which A later
also sold to X. B brought a civil action for nullification
of the second sale and asked that the sale made by A in
his favor be declared valid. A theorized that he never
sold the property to B and his purported signatures
appearing in the first deed of sale were forgeries.
Thereafter, an Information for estafa was filed against
A based on the same double sale that was the subject
of the civil action. A filed a "Motion for Suspension of
Action" in the criminal case, contending that the
resolution of the issue in the civil case would
necessarily be determinative of his guilt or innocence.
Is the suspension of the criminal action in order?
Explain. (2%)
SUGGESTED ANSWER:
Yes. The suspension of the criminal action is in order
because the defense of A in the civil action, that he
never sold the property to B and that his purported
signatures in the first deed of sale were forgeries, is a
prejudicial question the resolution of which is
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determinative of his guilt or innocence. If the first sale
is null and void, there would be no double sale and A
would be innocent of the offense of estafa. (Ras v.
Rasul, 100 SCRA 125.)
RULE 112
Preliminary Investigation
NOTE: This Rule has been partially amended by
AM 05-8-26-SC. The amendment took effect on
Oct. 3, 2005. The amendment, in essence,
consists of removing the conduct of Preliminary
Investigation from judges of first level courts.
For purposes of preliminary investigation,
complaint need not be filed by offended party.
A complaint for purposes of preliminary
investigation by the Prosecutor need not be filed
by the offended party. The rule has been that,
unless the offense subject thereof is one that
cannot be prosecuted de oficio, the same may be
filed, for preliminary investigation purposes, by
any competent person. The crime of estafa is a
public crime which can be initiated by “any
competent person”. The witnesses who executed
the affidavits based on their personal knowledge
of the acts committed by the petitioner
(respondent) fall within the purview of “any
competent person” who may institute the
complaint for a public crime. (Ebarle vs Sucaldito,
L-33628 & 34162, Dec. 29, 1987, 156 SCRA 803;
cited in Soriano vs Hon. Casanova, L-163400,
March 31, 2006).
Bar Exam Question 2012
100. An accused's custodial rights, e.g., right
to counsel and right to remain silent, is
available:
a. at preliminary investigation.
b. at police line-up for identification
purposes.
c. at ultra-violet examination to determine
presence of ultra violet powder on accused's
hands.
d. at one-on-one confrontation with
eyewitness.
SUGGESTED ANSWER:
(a), Any person under investigation for the
commission of an offense shall have the
right to be informed of his right to remain
silent and to have competent and
independent counsel preferably of his own
choice. If the person cannot afford the
services of counsel, he must be provided
with one. These rights cannot be waived
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
except in writing and in the presence of
counsel. (Article III, Sec. 12 (1), 1987
Constitution). These guaranteed rights are
available in all kinds of investigation
including a preliminary investigation. In a
preliminary investigation, a public
prosecutor determines whether a crime
has been committed and whether there is
probable cause that the accused is guilty
thereof. (Rules of Court, Rule 112, Section
1). (Metropolitan Bank and Trust Company
vs. Rogelio Reynaldo, et.al., G.R. No.
164538, August 9, 2010, Del Castillo, J.).
The right to have a preliminary
investigation conducted before being
bound over to trial for a criminal offense
and hence formally at risk of incarceration
or some other penalty, is not a mere
formal or technical right: it is a
substantive right. To deny the accused‟s
claim to a preliminary investigation would
be to deprive him of the full measure of
his right to due process.” (Sales vs.
Sandiganbayan, G.R. No. 143802,
November 16, 2001). Applying the
foregoing constitutional and procedural
precepts, there is no doubt that the
custodial rights are available during the
preliminary investigation.
ALTERNATIVE ANSWER:
There are some authorities however, who
believe that the custodial rights do not
apply during the preliminary investigation
is a summary proceeding and merely
inquisitorial in nature. Hence, the accused
cannot yet invoke the full exercise of his
rights including the right to counsel.
Moreover, a preliminary investigation is
not part of a trial and it is only in a trial
where an accused can demand the full
exercise of his rights, such as the right to
confront and cross-examine his accusers
to establish his innocence (Albana vs.
Belo, G.R. No. 158734, October 2, 2009,
Leonardo-De Castro, J.). In a preliminary
investigation, a full and exhaustive
presentation of the parties‟ evidence is
not even required, but only such as may
engender a well-grounded belief that an
offense has been committed and that the
accused is probably guilty thereof. (George
Miller vs. Secretary Hernando B. Perez,
G.R. No. 165412, May 30, 2011, Villarama,
Jr.). Ergo, the custodial rights of the
accused are not available during the
preliminary investigation. (c), At ultra-
violet examination to determine presence
of ultra violet powder on accused‟s hands.
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The custodial rights of an accused are
already available at the time an ultra-
violet examination to determine presence
of ultra-violet powder on his hands is
being conducted.
There is a custodial investigation when a
person is taken under the custody of the
law or otherwise deprived of his freedom
of action in any significant way.
“Custodial investigation is in the stage
“where the police investigation is no
longer a general inquiry into an unsolved
crime but has begun to focus on a
particular suspect taken into custody by
the police who carry out a process of
interrogation that leads itself to elicit
incriminating statements.” (People vs.
Sunga, G.R. No. 126029, March 27, 2003).
Otherwise stated, a custodial investigation
begins when the investigation starts to
focus on a particular suspect. Among the
rights guaranteed to a suspect is that he
must continuously have a counsel
assisting him from the very start of that
interrogation (Poeple vs. Morial, et. al.,
G.R. No. 129295, April 15, 2001). Clearly,
when an accused is compelled to undergo
ultra-violet examination to determine the
presence of the ultra-violet powder on his
hands, it is no longer a mere general
inquiry but rather a custodial
investigation which focuses on him as a
suspect in the commission of the crime.
Therefore, for all intents and purposes, he
is entitled to exercise his Constitutional
safeguard and guaranteed rights to
counsel and to remain silent.
Section 1. Preliminary investigation defined;
when required. — Preliminary investigation is an
inquiry or proceeding to determine whether there
is sufficient ground to engender a well-founded
belief that a crime has been committed and the
respondent is probably guilty thereof, and should
be held for trial.
Except as provided in section 6 of this Rule, a
preliminary investigation is required to be
conducted before the filing of a complaint or
information for an offense where the penalty
prescribed by law is at least four (4) years, two
(2) months and one (1) day without regard to the
fine. (1a)
Note: There is no right of PI under sec. 7 (now
sec. 6 of the circular) when a person is lawfully
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
arrested without a warrant unless there is a waiver
of the provisions of art. 125 of RPC.
However, the arrested can ask for a PI in the
following cases:
1. If a person is arrested, he can ask for PI
before the filing of the
complaint/information but he must sign a
waiver in accordance with art. 125, RPC;
2. After the filing of the complaint or
information, the accused may, within 5
days from the time he learns of its filing,
ask for PI.
3-FOLD PURPOSE OF PI:
1. To inquire concerning the commission of
the crime and the connection of the
accused with it, in order that he may be
informed of the nature and character of
the crime charged against him, and if,
there is probable cause for believing him
guilty, that the state may take the
necessary steps to bring him to trial;
2. To preserve evidence and keep the
witnesses within the control of the state;
3. To determine the amount of bail if the
offense is bailable.
PI: PERSONAL STATUTORY RIGHT
The right to PI is a personal right covered by a
statute and may be waived expressly or by
implication.
The right to PI is deemed waived by:
1. Failure to invoke it before the accused
pleaded;
2. His silence;
3. Failure to request for PI within 5 days from
the time he learns of the filing of the
information/complaint in instances where
the accused was arrested without a
warrant.
Absence of PI does not affect the jurisdiction of
the court or invalidate a valid information, if no
timely objection was raised by the accused.
If an objection is raised, the court, instead of
dismissing the information, should conduct such
investigation or remand the case for PI to the
Prosecutor’s Office (Doromal vs. Sandiganbayan,
117 SCRA 354).
REMEDIES OF THE ACCUSED IF THERE WAS
NO PI:
1. Refuse to enter plea and object to further
proceedings upon such ground;
2. Insist on a PI;
3. File certiorari if refused, when proper;
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4. Raise lack of PI as an error on appeal;
5. File prohibition.
PI is not a part of trial, the dismissal of the case by
the investigator will not constitute double jeopardy
and will not bar the filing of another complaint for
the same offense, but if refilled, the accused is
entitled to another PI (US vs. Marfori, 35 Phil.
666).
Bar Exam Question 2011
(61) What is the remedy of the accused if the
trial court erroneously denies his motion for
preliminary investigation of the charge
against him? (A) Wait for judgment and, on
appeal from it, assign such denial as error.
(B) None since such order is final and
executory. (C) Ask for reconsideration; if
denied, file petition for certiorari and
prohibition. (D) Appeal the order denying the
motion for preliminary investigation.
Arrest; Warrantless Arrest; Preliminary Investigation
(2004)
AX swindled RY in the amount of P10,000 sometime
in mid-2003. On the strength of the sworn statement
given by RY personally to SPO1 Juan Ramos
sometime in mid-2004, and without securing a warrant,
the police officer arrested AX. Forthwith the police
officer filed with the City Prosecutor of Manila a
complaint for estafa supported by RY"s sworn
statement and other documentary evidence. After due
inquest, the prosecutor filed the requisite information
with the MM RTC. No preliminary investigation was
conducted either before or after the filing of the
information and the accused at no time asked for such
an investigation.
However, before arraignment, the accused moved to
quash the information on the ground that the
prosecutor suffered from a want of authority to file the
information because of his failure to conduct a
preliminary investigation before filing the information,
as required by the Rules of Court. Is the warrantless
arrest of AX valid? Is he entitled to a preliminary
investigation before the filing of the information?
Explain. (5%)
SUGGESTED ANSWER:
No. The warrantless arrest is not valid because the
alleged offense has not just been committed. The
crime was allegedly committed one year before the
arrest. (Sec. 5 (b) of Rule 113).
Yes, he is entitled to a preliminary investigation
because he was not lawfully arrested without a warrant
(See Sec. 7 of Rule 112). He can move for a reinvestigation.
ALTERNATIVE ANSWER:
He is not entitled to a preliminary investigation
because the penalty for estafa is the sum of P10,000
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
does not exceed 4 years and 2 months. Under Sec. 1,
second par., Rule 112, a preliminary investigation is
not required. (Note: The penalty is not stated in the question.)
Section 2. Officers authorized to conduct
preliminary investigations. —
The following may conduct preliminary
investigations:
(a) Provincial or City Prosecutors and their
assistants;
(b) Judges of the Municipal Trial Courts and
Municipal Circuit Trial Courts;
(c) National and Regional State
Prosecutors; and
(d) Other officers as may be authorized by
law.
Their authority to conduct preliminary
investigations shall include all crimes cognizable
by the proper court in their respective territorial
jurisdictions. (2a)
Section 3. Procedure. — The preliminary
investigation shall be conducted in the following
manner:
(a) The complaint shall state the address of
the respondent and shall be accompanied by
the affidavits of the complainant and his
witnesses, as well as other supporting
documents to establish probable cause. They
shall be in such number of copies as there are
respondents, plus two (2) copies for the
official file. The affidavits shall be subscribed
and sworn to before any prosecutor or
government official authorized to administer
oath, or, in their absence or unavailability,
before a notary public, each of who must
certify that he personally examined the
affiants and that he is satisfied that they
voluntarily executed and understood their
affidavits.
(b) Within ten (10) days after the filing of the
complaint, the investigating officer shall either
dismiss it if he finds no ground to continue
with the investigation, or issue a subpoena to
the respondent attaching to it a copy of the
complaint and its supporting affidavits and
documents.
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The respondent shall have the right to
examine the evidence submitted by the
complainant which he may not have been
furnished and to copy them at his expense. If
the evidence is voluminous, the complainant
may be required to specify those which he
intends to present against the respondent,
and these shall be made available for
examination or copying by the respondent at
his expense.
Objects as evidence need not be furnished a
party but shall be made available for
examination, copying, or photographing at the
expense of the requesting party.
(c) Within ten (10) days from receipt of the
subpoena with the complaint and supporting
affidavits and documents, the respondent
shall submit his counter-affidavit and that of
his witnesses and other supporting documents
relied upon for his defense. The counter-
affidavits shall be subscribed and sworn to
and certified as provided in paragraph (a) of
this section, with copies thereof furnished by
him to the complainant. The respondent shall
not be allowed to file a motion to dismiss in
lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed,
or if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the
investigating officer shall resolve the
complaint based on the evidence presented
by the complainant.
(e) The investigating officer may set a hearing
if there are facts and issues to be clarified
from a party or a witness. The parties can be
present at the hearing but without the right to
examine or cross-examine. They may,
however, submit to the investigating officer
questions which may be asked to the party or
witness concerned.
The hearing shall be held within ten (10) days
from submission of the counter-affidavits and
other documents or from the expiration of the
period for their submission. It shall be
terminated within five (5) days.
(f) Within ten (10) days after the investigation,
the investigating officer shall determine
whether or not there is sufficient ground to
hold the respondent for trial. (3a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Procedure Summary:
1. Filing of the complaint together with the
affidavits and supporting documents;
2. Within 10 days after filing, the investigating
prosecutor would either dismiss the case or
issue subpoenas;
3. If subpoena is issued, respondent shall submit
a counter-affidavit and other supporting
documents within 10 days from receipt
thereof. Note: The respondent may ask for the
extension of time to file counter-affidavits
which must not be more than 10 days (Ucat);
4. Hearing (optional) within 10 days from
submission of counter-affidavits or from the
expiration of the period for their submission;
5. Resolution by the Investigating Prosecutor.
Note: The respondent shall not be allowed to file
motion to dismiss instead in lieu of counter-
affidavits.
RIGHTS OF THE RESPONDENT IN A PI:
1. To submit counter-affidavits;
2. To examine the evidence submitted by the
complainant;
3. To be present in the clarificatory hearing.
The Rules do not require the presence of the
respondent in the PI. What is required is that he
be given the opportunity to controvert the
evidence of the complainant by submitting
counter-affidavits.
Failure of the offended party to attend in the
clarificatory hearing despite several rescheduling
which results to the dismissal of the complaint in
the prosecution level constitutes a bar to another
prosecution. The doctrine of res judicata and
estoppel has been applied although they are civil
law concepts.
Res Judicata in Prison Grey (2010) No.XVII. What is
"res judicata in prison grey"? (2%) SUGGESTED
ANSWER: “Res judicata in prison grey” is the criminal
concept of double jeopardy, as “res judicata” is the
doctrine of civil law (Trinidad vs. Office of the
Ombudsman, G.R. No. 166038, December 4, 2007).
Described as “res judicata in prison grey,” the right
against double jeopardy prohibits the prosecution of
a person for a crime of which he has been previously
acquitted or convicted. The purpose is to set the
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effects of the first prosecution forever at rest,
assuring the accused that he shall not thereafter be
subjected to the danger and anxiety of a second
charge against him for the same offense (Joel B. Caes
vs. Intermediate Appellate Court, November 6, 1989).
Section 4. Resolution of investigating
prosecutor and its review. — If the investigating
prosecutor finds cause to hold the respondent for
trial, he shall prepare the resolution and
information. He shall certify under oath in the
information that he, or as shown by the record, an
authorized officer, has personally examined the
complainant and his witnesses; that there is
reasonable ground to believe that a crime has
been committed and that the accused is probably
guilty thereof; that the accused was informed of
the complaint and of the evidence submitted
against him; and that he was given an opportunity
to submit controverting evidence. Otherwise, he
shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall
forward the record of the case to the provincial or
city prosecutor or chief state prosecutor, or to the
Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the exercise
of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt
thereof and shall immediately inform the parties of
such action.
No complaint or information may be filed or
dismissed by an investigating prosecutor without
the prior written authority or approval of the
provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends
the dismissal of the complaint but his
recommendation is disapproved by the provincial
or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a
probable cause exists, the latter may, by himself,
file the information against the respondent, or
direct any other assistant prosecutor or state
prosecutor to do so without conducting another
preliminary investigation.
If upon petition by a proper party under such rules
as the Department of Justice may prescribe or
motu proprio, the Secretary of Justice reverses or
modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the
corresponding information without conducting
another preliminary investigation, or to dismiss or
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
move for dismissal of the complaint or information
with notice to the parties. The same rule shall
apply in preliminary investigations conducted by
the officers of the Office of the Ombudsman. (4a)
Actions; Discretionary Power of Fiscal (1999)
A filed with the Office of the Fiscal a Complaint for
estafa against B. After the preliminary investigation,
the Fiscal dismissed the Complaint for lack of merit.
May the Fiscal be compelled by mandamus to file the
case in court? Explain. (2%)
SUGGESTED ANSWER:
No. The public prosecutor may not be compelled by
mandamus to file the case in court because the
determination of probable cause is within the
discretion of the prosecutor. The remedy is an appeal
to the Secretary of Justice. (Sec. 4 Rule 112.)
NOTE: When the investigating prosecutor has
already commenced the investigation – that is,
there were already counter-affidavits – the
investigating prosecutor may only recommend the
dismissal of the complaint (Review Lecture).
The absence of certification of the prosecutor
does not affect the validity of the information.
Certification is not an integral part of the
information (Review Lecture).
APPEAL TO THE SECRETARY OF JUSTICE
(DOJ Circular No. 70 dated July 3,2000)
An aggrieved party may appeal by filing a verified
petition for review with the Secretary of Justice,
and furnishing copies thereof to the adverse party
and the prosecution office issuing the assailed
resolution (sec. 4):
1. The appeal shall be taken within 15 days
from receipt of the resolution or the denial
of the motion for
reconsideration/reinvestigation if one has
been filed within 15 days from receipt
assailed resolution. Only one motion for
reconsideration is allowed (sec. 3);
2. 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 (sec. 9, par. 1);
3. If the Secretary finds it necessary to
reinvestigate the case, the reinvestigation
shall be held by the investigating
prosecutor, unless, for compelling
reasons, another prosecutor is designated
to conduct the same(sec. 11).
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The Ombudsman has the authority to reverse or
modify the resolution of the officers of the Office of
the Ombudsman.
He may direct the officer concerned either
(1) To file the corresponding information in
court without conducting another
investigation; or (2) To dismiss the case or
move for the dismissal of the complaint of
information with notice to the parties.
Q. When shall the Investigating Prosecutor file
the information against the accused?
Ans. After the resolution of the motion for
reconsideration (MFR) filed by the respondent
(accused) or the lapse of the 15-day period from
receipt by the respondent or his counsel of a copy
of the resolution, if no MFR is filed within the said
15-day period.
Under the Rules, upon the release of the
resolution finding probable cause against the
respondent, the information against the accused
may likewise be filed in court. This is implied from
Sec. 4, Rule 112 providing that: “If the
investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution
and information. x x x “. The filing of the
information simultaneously with the release of the
resolution of the investigating prosecutor was
upheld by the Supreme Court in Webb vs de
Leon. (247 SCRA 652). However, Webb was
modified in Ombudsman vs Castro (L-164678,
Oct. 20, 2005, 473 SCRA 608, First Div.). wherein
it was held that the information shall be filed ONLY
after the accused is afforded his right to file a
motion for reconsideration, otherwise, a denial of
such right which is allowed in Sec. 3 of DOJ
Cir. No. 70 and under Sec. 56 of the Manual for
Prosecutors renders the preliminary
investigation conducted INCOMPLETE.
Prosecutor need not wait for resolution of
petition for review/appeal filed by the
respondent (accused) with the DOJ.
It is believed, however, that once the motion for
reconsideration is denied, the investigating
prosecutor can already file the information in
court. That is, he does not have to wait for a
resolution by the DOJ of the Appeal or Petition for
Review which the respondent (accused) may file.
This is implied from the following provisions:
a. If upon petition by a proper party under
such rules as the DOJ may prescribe or motu
proprio, the Secretary of Justice reverses or
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to
file the corresponding information without
conducting another preliminary investigation,
or to dismiss or move for the dismissal of
the complaint or information with notice to
the parties. x x x (Last par. Sec. 4, Rule 114).
b. One ground for the suspension of the
arraignment of the accused is “A petition for
review of the resolution of the prosecutor is
pending at either at the Department of Justice,
or the Office of the President, provided, that
the period of suspension shall not exceed 60
days counted from the filing of the petition with
the reviewing office. “ (Sec. 11 [c], Rule 116).
If the accused
(respondent) does not take step
to prevent his arraignment, in
effect, he is estopped to pursue
his appeal in the DOJ, warranting
its dismissal if one had already
been filed (Dimatulac vs Villon,
297 SCRA 679). Where,
however, the arraignment is done
with undue haste so as to
preempt the action of the DOJ in
upgrading the crime charged in
the information, the arraignment is
void for lack of due process
afforded to the State. (Ibid.).
4. Resolutions or final orders of the DOJ. Sec.
1, Rule 43 (Scope of appeal from quasi-judicial
agencies to Court of Appeals). DOJ not a quasi-
judicial agency whose resolutions or final orders
are appealable to the Court of Appeals under Rule
43. However, in case of grave abuse of
discretion, the proper remedy is a Petition for
Certiorari under Rule 65 to be filed with the Court
of Appeals (Torres, Jr. vs. Aguinaldo, L-164268,
June 28, 2005, 461 SCRA 599).
The decision of the DOJ Secretary is NOT
judicially appealable. But it may be appealed to
the Office of the President if the penalty is at least
Reclusion Perpetua and the offense does not
prescribe in six months. The decision of the office
of the President is appealable to the CA under
Rule 43, then to the SC (Review Lecture).
NOTE: Where the information was already filed in
court but the accused filed a petition for review of
the findings of the investigating prosecutor with
the DOJ, the court is bound to suspend the
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arraignment of the accused for a period of not
exceeding 60 days (Rule 116, sec.11, c).
This does not contradict the doctrine in Crespo vs.
Mogul, 151 SCRA 462, because said case merely
advised the DOJ as far as practicable to refrain
from entertaining a petition for review or appeal
from the action of the prosecutor when the
complaint or information was already filed in court.
Bar Exam Question 2011
(70) Upon review, the Secretary of Justice
ordered the public prosecutor to file a motion
to withdraw the information for estafa
against Sagun for lack of probable cause. The
public prosecutor complied. Is the trial court
bound to grant the withdrawal? (A) Yes, since
the prosecution of an action is a prerogative
of the public prosecutor. (B) No, since the
complainant has already acquired a vested
right in the information. (C) No, since the
court has the power after the case is filed
to itself determine probable cause. (D) Yes,
since the decision of the Secretary of Justice
in criminal matters is binding on courts.
Information; Bail (2003)
After the requisite proceedings, the Provincial
Prosecutor filed an Information for homicide against
X. The latter, however, timely filed a Petition for
Review of the Resolution of the Provincial Prosecutor
with the Secretary of Justice who, in due time, issued a
Resolution reversing the resolution of the Provincial
Prosecutor and directing him to withdraw the
Information.
Before the Provincial Prosecutor could comply with
the directive of the Secretary of Justice, the court
issued a warrant of arrest against X.
The Public Prosecutor filed a Motion to Quash the
Warrant of Arrest and to Withdraw the Information,
attaching to it the Resolution of the Secretary of
Justice. The court denied the motion. (6%) a) Was
there a legal basis for the court to deny the motion? b)
If you were the counsel for the accused, what
remedies, if any, would you pursue?
SUGGESTED ANSWER:
a. Yes, there is a legal basis for the court to deny the
motion to quash the warrant of arrest and to withdraw
the information. The court is not bound by the
Resolution of the Secretary of Justice. (Crespo v. Mogul,
151 SCRA 462 [1987]).
b. If I were the counsel for the accused, I would
surrender the accused and apply for bail because the
offense is merely homicide, a non-capital offense. At
the pre-trial, I would make a stipulation of facts with
the prosecution which would show that no offense
was committed.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 5. Resolution of investigating judge and its
review. —
NOTE: Section 5 was deleted by AM 05-8-26-
SC
Section 6 is now the section 5.
Section 5. When warrant of arrest may issue. —
(a) By the Regional Trial Court. — Within ten
(10) days from the filing of the complaint or
information, the judge shall personally evaluate
the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if
the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he
shall issue a warrant of arrest, or a commitment
order if the accused has already been arrested
pursuant to a warrant issued by the judge who
conducted the preliminary investigation or when
the complaint or information was filed pursuant to
section 7 of this Rule. In case of doubt on the
existence of probable cause, the judge may order
the prosecutor to present additional evidence
within five (5) days from notice and the issue must
be resolved by the court within thirty (30) days
from the filing of the complaint of information.
(b) By the Municipal Trial Court. — When
required pursuant to the second paragraph of
section 1 of this Rule, the preliminary investigation
of cases falling under the original jurisdiction of the
Metropolitan Trial Court, Municipal Trial Court in
Cities, Municipal Trial Court, or Municipal Circuit
Trial Court may be conducted by either the judge
or the prosecutor. When conducted by the
prosecutor, the procedure for the issuance of a
warrant or arrest by the judge shall be governed
by paragraph (a) of this section. When the
investigation is conducted by the judge himself, he
shall follow the procedure provided in section 3 of
this Rule. If the findings and recommendations are
affirmed by the provincial or city prosecutor, or by
the Ombudsman or his deputy, and the
corresponding information is filed, he shall issue a
warrant of arrest. However, without waiting for the
conclusion of the investigation, the judge may
issue a warrant of arrest if he finds after an
examination in writing and under oath of the
complainant and his witnesses in the form of
searching question and answers, that a probable
cause exists and that there is a necessity of
placing the respondent under immediate custody
in order not to frustrate the ends of justice.
(c) When warrant of arrest not necessary. — A
warrant of arrest shall not issue if the accused is
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already under detention pursuant to a warrant
issued by the municipal trial court in accordance
with paragraph (b) of this section, or if the
complaint or information was filed pursuant to
section 7 of this Rule or is for an offense penalized
by fine only. The court shall then proceed in the
exercise of its original jurisdiction. (6a)
NOTE: This section is substantially modified
by the removal of power to conduct PI from
inferior court judges.
PROBABLE CAUSE
It presupposes a reasonable ground for belief in
the existence of facts warranting the proceedings
complained of.
An apparent state of facts found to exist upon
reasonable inquiry which would induce a
reasonably intelligent and prudent man to believe
that the accused person had committed the crime
charged.
If the judge finds probable cause, he shall issue
warrant of arrest, or a commitment order if the
accused had already been arrested and hold him
for trial. If the judge is satisfied that there is no
necessity for the issuance of a warrant of arrest,
he may issue summons instead of a warrant of
arrest.
Judges of the RTCs and MTCs need not
personally examine the complainant and the
witnesses in the determination of probable cause
for the issuance of the warrant of arrest. He is only
required to:
1. Personally evaluate the report and the
supporting documents submitted by the
prosecutor;
2. And on the basis thereof, he may:
a) Dismiss;
b) Issue warrant;
c) Require further affidavits.
VERY IMPORTANT: This is to be distinguished in
finding probable cause for the issuance of a
SEARCH WARRANT which requires the judge to
personally examine the applicant and the
witnesses in the form of searching questions and
answers. For detailed discussion, refer to Search
and Seizure.
The provincial prosecutor, if he believes that the
accused should be immediately placed in custody,
may file the corresponding information so that the
RTC may issue the necessary warrant of arrest
(Samulde vs. Salvani, Jr. GR NO. 78606, Sept.
26, 1988).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
While the judge may rely on the fiscal’s
certification thereof, the same is not conclusive on
him as the issuance of said warrant calls for the
exercise of judicial discretion and, for that purpose
the judge may require the submission of affidavits
of witnesses to aid him in arriving the proper
conclusion, or may require the fiscal to conduct
further preliminary investigation or reinvestigation.
INSTANCES WHEN WARRANT OF ARREST
NOT NECESSARY:
1. When the accused is already under
detention;
2. If the complaint or information was filed
after the accused was lawfully arrested
without a warrant;
3. If the offense is punishable by a fine only.
Section 6. When accused lawfully arrested
without warrant. — When a person is lawfully
arrested without a warrant involving an offense
which requires a preliminary investigation, the
complaint or information may be filed by a
prosecutor without need of such investigation
provided an inquest has been conducted in
accordance with existing rules. In the absence or
unavailability of an inquest prosecutor, the
complaint may be filed by the offended party or a
peace office directly with the proper court on the
basis of the affidavit of the offended party or
arresting officer or person.
Before the complaint or information is filed, the
person arrested may ask for a preliminary
investigation in accordance with this Rule, but he
must sign a waiver of the provisions of Article 125
of the Revised Penal Code, as amended, in the
presence of his counsel. Notwithstanding the
waiver, he may apply for bail and the investigation
must be terminated within fifteen (15) days from its
inception.
After the filing of the complaint or information in
court without a preliminary investigation, the
accused may, within five (5) days from the time he
learns of its filing, ask for a preliminary
investigation with the same right to adduce
evidence in his defense as provided in this Rule.
(7a; sec. 2, R.A. No. 7438)
Bar Exam Question 2012
8. W was arrested in the act of committing a
crime on October 1, 2011. After an inquest
hearing, an information was filed against W
and his lawyer learned of the same on
October 5, 2011. W wants to file a motion for
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preliminary investigation and therefore he
has only up to _____ to file the same.
a. October 20, 2011;
b. October 10, 2011;
c. November 15, 2011;
d. October 16, 2011.
SUGGESTED ANSWER: (b), When a person
is lawfully arrested without a warrant
involving an offense which requires a
preliminary investigation, he may ask a
preliminary investigation with the same
right to adduce evidence in his defense
within five (5) days from the time he
learns of the filing of the complaint or
information in court. (Rule 112, Sec. 7,
Rules of Court).
Actions; Commencement of an Action
(2012) No.V. X was arrested, en flagrante, for
robbing a bank. After an investigation, he
was brought before the office of the
prosecutor for inquest, but unfortunately no
inquest prosecutor was available. May the
bank directly file the complaint with the
proper court? If in the affirmative, what
document should be filed? (5%) SUGGESTED
ANSWER:
Yes, the bank may directly file the
complaint with the proper court. In the
absence or unavailability of an inquest
prosecutor, the complaint may be filed by
the offended party or a peace officer
directly with the proper court on the basis
of the affidavit of the offended party or
arresting officer or person (Section 6, Rule
112 of the Revised Rules of Criminal
Procedure).
R.A. 3019; Remedies (2013)
No.VII. You are the defense counsel of Angela
Bituin who has been charged under RA 3019
( Anti-Graft and Corrupt Practices Act )
before the Sandiganbayan. While Angela has
posted bail, she has yet to be arraigned.
Angela revealed to you that she has not been
investigated for any offense and that it was
only when police officers showed up at her
residence with a warrant of arrest that she
learned of the pending case against her. She
wonders why she has been charged before
the Sandiganbayan when she is not in
government service. (A) What "before-trial"
remedy would you invoke in Angela’s behalf
to address the fact that she had not been
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
investigated at all, and how would you avail
of this remedy? (4%) SUGGESTED ANSWER:
I will file a Motion for the conduct of
preliminary investigation or
reinvestigation and the quashal or recall
of the warrant of arrest in the Court where
the case is pending with an additional
prayer to suspend the arraignment. Under
Section 6 of Rule 112 of the Rules of
Court, after the filing of the complaint or
information in court without a preliminary
investigation, the accused may within five
days from the time he learns of its filing
ask for preliminary investigation with the
same right to adduce evidence in his
defense.
Moreover, Section 26, Rule 114 of the
Rules on Criminal Procedure provides that
an application for or admission to bail
shall not bar the accused from challenging
the validity of his arrest or legality of the
warrant issued therefor, or from assailing
the regularity or questioning the absence
of a preliminary investigation of the
charge against him, provided that he
raises them before entering his plea. The
court shall resolve the matter as early as
practicable but not later than the start of
the trial of the case.
ALTERNATIVE ANSWER: I will file a
Motion to Quash on the ground that the
Sandiganbayan has no jurisdiction over
the person of the accused (Section 3, Rule
117 of the Rules of Criminal Procedure).
The Sandiganbayan has exclusive original
jurisdiction over violations of R.A. 3019
(Anti-graft and Corrupt Practices law)
where one or more of the accused are
officials occupying the enumerated
positions in the government whether in a
permanent, acting, or interim incapacity,
at the time of the commission of the
offense (Sec. 4, R.A. 8249).
In Bondoc vs. Sandiganbayan, G.R. No.
71163-65, November 9, 1990, the
Supreme Court held that before the
Sandiganbayan may lawfully try a private
individual under PD 1606, the following
requisites must be established: (a) he must
be charged with a public officer/employee;
and (b) he must be tried jointly. Since the
aforementionedrequisites are not present,
the Sandiganbayan has no jurisdiction.
(B) What "during-trial" remedy can you use
to allow an early evaluation of the
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prosecution evidence without the need of
presenting defense evidence; when and how
can you avail of this remedy? (4%)
SUGGESTED ANSWER: I will file a Motion
for Leave to file a Demurrer to Evidence
within five (5) days from the time the
prosecution has rested its case. If the
motion is granted, I will file a demurrer to
evidence within a non-extendible period of
Ten (10) days from notice. However, if the
motion for leave to file demurrer to
evidence is denied, I can adduce evidence
for the accused during the trial to meet
squarely the reasons for its denial (Section
23, Rule 119, Rules of Criminal
Procedure). This remedy would allow the
early evaluation of the sufficiency of
prosecution‟s evidence without the need
of presenting defense evidence. It may be
done through the court‟s initiative or
upon motion of the accused and after the
prosecution rested its case.
INQUEST
It is an informal and summary investigation
conducted by a public prosecutor in criminal cases
involving persons arrested and detained without
the benefit of a warrant of arrest issued by the
court for the purpose of determining whether or
not said persons should remain in custody and
correspondingly be charged in court.
Inquest Proceedings must be terminated within
the periods prescribed under the provisions of art.
125, RPC.
Bar Exam Question 2011
(99) When may an information be filed in
court without the preliminary investigation
required in the particular case being first
conducted? (A) Following an inquest, in
cases of those lawfully arrested without a
warrant. (B) When the accused, while under
custodial investigation, informs the arresting
officers that he is waiving his right to
preliminary investigation. (C) When the
accused fails to challenge the validity of the
warrantless arrest at his arraignment. (D)
When the arresting officers take the suspect
before the judge who issues a detention order
against him.
RA 9372 HUMAN SECURITY ACT OF 2007
NOTE: Took effect on July 14, 2007.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Sec. 18. Period of Detention Without Judicial
Warrant of Arrest.
SEC. 18. Period of Detention Without Judicial
Warrant of Arrest. “ The provisions of Article
125 of the Revised Penal Code to the contrary
notwithstanding, any police or law
enforcement personnel, who, having been
duly authorized in writing by the Anti-
Terrorism Council has taken custody of a
person charged with or suspected of the
crime of terrorism or the crime of conspiracy
to commit terrorism shall, without incurring
any criminal liability for delay in the delivery
of detained persons to the proper judicial
authorities, deliver said charged or suspected
person to the proper judicial authority within
a period of three (3) days counted from the
moment the said charged or suspected
person has been apprehended or arrested,
detained, and taken into custody by the said
police, or law enforcement personnel:
Provided, That the arrest of those suspected
of the crime of terrorism or conspiracy to
commit terrorism must result from the
surveillance under Section 7 and examination
of bank deposits under Section 27 of this Act.
INQUEST PROCEEDINGS
Receipt by the inquest officer of referral
documents
Arrest not properly Arrest properly
effected effected
Release shall be A PI may be
recommended conducted if
requested
Otherwise,
inquest proper
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Determination of
probable cause
If no probable cause, If there is probable
release shall be cause, information
recommended shall be filed
NOTE: The 5 day period is MANDATORY. Failure
to file the motion within the said period amounts to
waiver of the right to ask for PI.
Where the information is amended without a new
PI having been conducted, the 5-day period is
computed from the time the accused learns of the
filing of the amended information.
Where the trial court has granted a motion for
reinvestigation, it must hold in abeyance the
arraignment and trial of the accused until the
prosecutor shall have conducted and made a
report on the result of such reinvestigation.
RIGHT TO BAIL PENDING PI
A person lawfully arrested may post bail before
the filing of the information or even after its filing
without having waived his right to PI, provided that
he asks for a PI within the period fixed in the
Rules [before entering his plea](P. vs. CA, May
29, 1995).
Section 7. Records. — (a) Records supporting the
information or complaint. — An information or
complaint filed in court shall be supported by the
affidavits and counter-affidavits of the parties and
their witnesses, together with the other supporting
evidence and the resolution on the case.
(b) Record of preliminary investigation. — The
record of the preliminary investigation, whether
conducted by a judge or a fiscal, shall not form
part of the record of the case. However, the court,
on its own initiative or on motion of any party, may
order the production of the record or any its part
when necessary in the resolution of the case or
any incident therein, or when it is to be introduced
as an evidence in the case by the requesting
party. (8a)
Section 8. Cases not requiring a preliminary
investigation nor covered by the Rule on
Summary Procedure. —
(a) If filed with the prosecutor. — If the
complaint is filed directly with the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
prosecutor involving an offense
punishable by imprisonment of less four
(4) years, two (2) months and one (1) day,
the procedure outlined in section 3(a) of
this Rule shall be observed. The
prosecutor shall act on the complaint
based on the affidavits and other
supporting documents submitted by the
complainant within ten (10) days from its
filing.
(b) If filed with the Municipal Trial
Court. — If the complaint or information is
filed directly with the Municipal Trial Court
or Municipal Circuit Trial Court for an
offense covered by this section, the
procedure in section 3(a) of this Rule shall
be observed. If within ten (10) days after
the filing of the complaint or information,
the judge finds no probable cause after
personally evaluating the evidence, or
after personally examining in writing and
under oath the complainant and his
witnesses in the form of searching
question and answers, he shall dismiss
the same. He may, however, require the
submission of additional evidence, within
ten (10) days from notice, to determine
further the existence of probable cause. If
the judge still finds no probable cause
despite the additional evidence, he shall,
within ten (10) days from its submission or
expiration of said period, dismiss the
case. When he finds probable cause, he
shall issue a warrant of arrest, or a
commitment order if the accused had
already been arrested, and hold him for
trial. However, if the judge is satisfied that
there is no necessity for placing the
accused under custody, he may issue
summons instead of a warrant of arrest.
(9a)
PROCEDURE TO BE FOLLOWED IN CASES
WHICH DO NOT REQUIRE PI
1. Evaluate the evidence presented;
2. Conduct searching questions and
answers;
3. Require the submission of additional
evidence.
Note: For cases under the Revised Rules on
Summary Procedure, no warrant of arrest shall be
issued EXCEPT where the accused fails to appear
after being summoned.
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RULE 113
Arrest
Note: For more detailed substantive discussion on
arrest, please refer to the Constitutional Law
Reviewer.
Section 1. Definition of arrest. — Arrest is the
taking of a person into custody in order that he
may be bound to answer for the commission of an
offense. (1)
MODES OF ARREST
1. Arrest by virtue of a warrant;
2. Warrantless arrest under exceptional
circumstances (sec. 5, Rule 113).
ESSENTIAL REQUISITES OF A VALID
ARREST:
1. It must be issued upon probable cause
which must be determined personally by a
judge after personally evaluating the
records form the prosecutor’s office or by
examination under oath or affirmation of
the complainant and the witnesses he
may produce;
2. The warrant must particularly describe the
person to be seized.
NOTE: A warrant of arrest has no expiry date. It
remains valid until arrest is effected(executed),
warrant lifted by the judge, or is quashed. This is
different from a search warrant which must be
used (served) within 10 days from issuance.
Bar Exam Question 2011
(13) Ramon witnessed the commission of a
crime but he refuses to testify for fear of his
life despite a subpoena being served on him.
Can the court punish him for contempt? (A)
No, since no person can be compelled to be a
witness against another. (B) Yes, since
public interest in justice requires his
testimony. (C) No, since Ramon has a valid
reason for not testifying. (D) Yes, since
litigants need help in presenting their cases.
REMEDY FOR WARRANTS IMPROPERLY
ISSUED
Where a warrant of arrest is improperly issued, the
proper remedy is a petition to quash the warrant,
NOT Habeas Corpus, since the court in the latter
case may only order his release but not enjoin the
further prosecution or preliminary examination of
the accused (Alimpoos vs. CA, 106 SCRA 159).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
NOTE: Posting of Bail does not bar one from
questioning the illegal arrest (sec. 26, Rule 114)
Jurisdiction; Reinvestigation; Arrest
(2008) No.X. Jose, Alberto and Romeo were
charged with murder. Upon filing the
information, the RTC judge issued warrants
for their arrest. Learning of the issuance of
the warrants, the three accused jointly filed a
motion for reinvestigation and for the recall of
the warrants of arrest. On the date set for
hearing of their motion, none of accused
showed up in court for fear of being arrested.
The RTC judge denied their motion because
the RTC did not acquire jurisdiction over the
persons of the movants. Did the RTC rule
correctly? SUGGESTED ANSWER: The RTC
was not entirely correct in stating that it
had no jurisdiction over the persons of the
accused. By filing motions and seeking
affirmative reliefs from the court, the
accused voluntarily submitted themselves
to the jurisdiction of the court. However,
the RTC correctly denied the motion for
reinvestigation. Before an accused ca
move for reinvestigation and the recall of
his warrant of arrest, he must first
surrender his person to the court
(Miranda, et al. vs. Tuliao, G.R. No.
158763, 31 March 2006).
Section 2. Arrest; how made. — An arrest is
made by an actual restraint of a person to be
arrested, or by his submission to the custody of
the person making the arrest.
No violence or unnecessary force shall be used in
making an arrest. The person arrested shall not be
subject to a greater restraint than is necessary for
his detention. (2a)
REASONABLE AMOUNT OF FORCE MAY BE
USED TO EFFECT ARREST
It is a principle very generally accepted that an
officer, having the right to arrest an offender, may
use such force as is necessary to effect his
purpose, and to a great extent he is made the
judge of the degree of force that may be properly
exerted.
A police officer , in the performance of his
duties, must stand his ground and cannot,
like a private individual, take refuge in
flight. His duty requires him to overcome
his opponent (Valcorza vs. People, 30
SCRA 143).
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Upon arrest, the following may be confiscated
from the person arrested:
1. Objects subject of the offense or used or
intended to be used in the commission of
the crime;
2. Objects which are fruits of the crime;
3. Those which might be used by the
arrested person to commit violence or to
escape;
4. Dangerous weapons and those which
may be used as evidence in the case.
Section 3. Duty of arresting officer. — It shall be
the duty of the officer executing the warrant to
arrest the accused and to deliver him to the
nearest police station or jail without unnecessary
delay. (3a)
Section 4. Execution of warrant. — The head of
the office to whom the warrant of arrest was
delivered for execution shall cause the warrant to
be executed within ten (10) days from its receipt.
Within ten (10) days after the expiration of the
period, the officer to whom it was assigned for
execution shall make a report to the judge who
issued the warrant. In case of his failure to
execute the warrant, he shall state the reasons
therefor. (4a)
Note: No time limit is fixed for the validity of a
warrant of arrest.
This must be so, for the return mentioned in this
section does not refer to the physical delivery of
the same copy of the process to the issuing
court, but the report of the officer charged with
the execution on the action taken by him
thereon. In short, the 10 day period is only a
directive to the officer executing the warrant to
make a return (report) to the court (P. vs.
Givera, 349 SCRA 513).
Section 5. Arrest without warrant; when lawful.
— A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense;
(b) When an offense has just been
committed, and he has probable cause to
believe based on personal knowledge of facts
or circumstances that the person to be
arrested has committed it; and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or is temporarily confined while
his case is pending, or has escaped while
being transferred from one confinement to
another.
In cases falling under paragraph (a) and (b)
above, the person arrested without a warrant shall
be forthwith delivered to the nearest police station
or jail and shall be proceeded against in
accordance with section 7 of Rule 112. (5a)
Arrest; Warrantless Arrests & Searches
(2007) No.VI. (a) On his way home, a member
of the Caloocan City police force witnesses a
bus robbery in Pasay City and effects the
arrest of the suspect. Can he bring the
suspect to Caloocan City for booking since
that is where his station is? Explain briefly.
(5%) SUGGESTED ANSWER: No, the
arresting officer may not take the arrested
suspect from Pasay City to Caloocan City.
The arresting officer is required to deliver
the person arrested without a warrant to
the nearest police station or jail (Rule
113, Sec. 5, 2000 Rules of Criminal
Procedure). To be sure, the nearest police
station or jail is in Pasay City where the
arrest was made, and not in Caloocan
City.
(b) In the course of serving a search warrant,
the police find an unlicensed firearm. Can
the police take the firearm even if it is not
covered by the search warrant? If the warrant
is subsequently quashed, is the police
required to return the firearm? Explain
briefly. (5%) SUGGESTED ANSWER: Yes,
the police may take with him the
“unlicensed” firearm although not covered
by the search warrant. Possession of an
“unlicensed firearm” is a criminal offense
and the police officer may seize an article
which is the “subject of an offense.” Thus
us especially so considering that the
“unlicensed firearm” appears to be in
“plain view” of the police officer when the
conducted the search. Even if the warrant
was subsequently quashed, the police are
not mandated to return the “unlicensed
firearm.” The quashal of the search
warrant did not affect the validity of the
seizure of the “unlicensed firearm.”
Moreover, returning the firearm to a
person who is not otherwise allowed by
law to possess the same would be
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tantamount to abetting a violation of the
law.
Jurisdiction; Complex Crimes (2013)
No.VIII. On his way to the PNP Academy in
Silang, Cavite on board a public transport
bus as a passenger, Police Inspector
Masigasig of the Valenzuela Police witnessed
an on-going armed robbery while the bus was
traversing Makati. His alertness and training
enabled him to foil the robbery and to
subdue the malefactor. He disarmed the felon
and while frisking him, discovered another
handgun tucked in his waist. He seized both
handguns and the malefactor was later
charged with the separate crimes of robbery
and illegal possession of firearm.
A) Where should Police Inspector Masigasig
bring the felon for criminal processing? To
Silang, Cavite where he is bound; to Makati
where the bus actually was when the felonies
took place; or back to Valenzuela where he is
stationed? Which court has jurisdiction over
the criminal cases? (3%) SUGGESTED
ANSWER:
Police Inspector Masigasig should bring
the felon to the nearest police station or
jail in Makati City where the bus actually
was when the felonies took place. In cases
of warrantless arrest, the person arrested
without a warrant shall be forthwith
delivered to the nearest police station or
jail and shall be proceeded against in
accordance with section 7 of Rule 112
(Section 113, Rules of Criminal
Procedure). Consequently, the criminal
case for robbery and illegal possession of
firearms can be filed in Regional Trial
Court of Makati City or on any of the
places of departure or arrival of the bus.
(B) May the charges of robbery and illegal
possession of firearm be filed directly by the
investigating prosecutor with the appropriate
court without a preliminary investigation?
(4%) SUGGESTED ANSWER: Yes. Since the
offender was arrested in flagrante delicto
without a warrant of arrest, an inquest
proceeding should be conducted and
thereafter a case may be filed in court
even without the requisite preliminary
investigation. Under Section 6, Rule 112,
Rules of Criminal Procedure, when a
person is lawfully arrested without a
warrant involving an offense which
requires a preliminary investigation, the
complaint or information may be filed by a
prosecutor without a need of such
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
investigation provided an inquest has
been conducted in accordance with
existing rules.
LAWFUL WARRANTLESS ARRESTS:
1. In flagrante cases (par. a);
2. Hot pursuit cases (par. b);
3. Prisoner escape cases (par. c);
4. Where a person lawfully arrested escapes
or is rescued (sec. 13, Rule 113);
5. By the bondsman for the purpose of
surrendering the accused (sec. 23, Rule
114);
6. Where the accused, on bail, attempts to
leave the country without permission from
the court (sec. 23, Rule 114).
OTHERS:
1. Arrest for the purpose of carrying into
effect a final order of deportation (but not
for purposes of investigation);
2. Arrest for contempt of legislative
proceedings (Senate and House of
Reps.);
3. Arrests for contempt (direct) of court;
4. Arrest of a material witness for failure to
post bail (sec. 14, Rule 119);
5. Rule 110, sec. 14 (by implication).
If the arrest was effected without a warrant, the
arresting officer must comply with the provisions of
art. 125,RPC. OTHERWISE, he may be made
liable for delay in the delivery of persons to proper
judicial authorities.
NOTE: Every warrant must contain a
recommendation of the amount of bail except
when the offense is non-bailable.
IN FLAGRANTE DELICTO ARRESTS
An offense is committed in the presence or within
the view of the person making the arrest when he
sees the offense, although at a distance, or hears
the disturbance created thereby and proceeds at
once to the scene thereof; or the offense is
continuing or has been consummated, at the time
the arrest is made (P. vs. Evaresto, 216 SCRA
431).
Personal knowledge must be based upon
probable cause which means an actual belief or
reasonable grounds of suspicion.
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The grounds of suspicion is reasonable when, in
the absence of actual belief of the arresting
officers, the suspicion that the person to be
arrested is probably guilty of committing the
offense is based on actual facts (Posadas vs.
Ombudsman, 341 SCRA 388).
RULES ON ILLEGALITY OF ARREST
1. An accused who enters his plea of not
guilty and participates in the trial waives
the illegality of the arrest. Objection to the
illegality of the arrest must be made
before arraignment, otherwise it is
deemed waived, as the accused , in this
case, has voluntarily submitted himself to
the jurisdiction of the court.
2. Illegality of the warrantless arrest may be
cured by the filing of the information in
court and the subsequent issuance of a
warrant of arrest.
This is however, without prejudice to the
criminal, administrative or civil liability that
the arresting officers may have incurred
by reason of such illegal arrest.
3. Once a person has been duly charged in
court, he may no longer question his
detention by a petition for Habeas Corpus;
his remedy is to quash the information or
quashal of the warrant of arrest.
Arrest; Warrantless Arrests; Objection (2000)
FG was arrested without a warrant by policemen while
he was walking in a busy street. After preliminary
investigation, he was charged with rape and the
corresponding information was filed in the RTC. On
arraignment, he pleaded not guilty. Trial on the merits
ensued. The court rendered judgment convicting him.
On appeal, FG claims that the judgment is void
because he was illegally arrested. If you were the
Solicitor General, counsel for the People of the
Philippines, how would you refute said claim? (5%)
SUGGESTED ANSWER:
Any objection to the illegality of the arrest of the
accused without a warrant is deemed waived when he
pleaded not guilty at the arraignment without raising
the question. T is too late to complain about a
warrantless arrest after trial is commenced and
completed and a judgment of conviction rendered
against the accused. (People v. Cabiles, 284 SCRA 199,
[1999])
Arrest; Warrantless Arrests & Searches (1997)
A was killed by B during a quarrel over a hostess in a
nightclub. Two days after the incident, and upon
complaint of the widow of A, the police arrested B
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
without a warrant of arrest and searched his house
without a search warrant. a) Can the gun used by B in
shooting A, which was seized during the search of the
house of B, be admitted in evidence? b) Is the arrest of
B legal? c) Under the circumstances, can B be
convicted of homicide?
SUGGESTED ANSWER:
(a) No. The gun seized during the search of the house
of B without a search warrant is not admissible in
evidence. (Secs. 2 and 3[2], Art. III of Constitution). Moreover,
the search was not an incident to a lawful arrest of a
person under Sec. 12 of Rule 126.
(b) No. A warrantless arrest requires that the crime has
in fact just been committed and the police arresting
has personal knowledge of facts that the person to be
arrested has committed it. (Sec. 5, Rule 113). Here, the
crime has not just been committed since a period of
two days had already lapsed, and the police arresting
has no such personal knowledge because he was not
present when the incident happened. (Go vs. Court of
Appeals. 206 SCRA 138).
(c) Yes. The gun is not indispensable in the conviction
of A because the court may rely on testimonial or
other evidence.
Section 6. Time of making arrest. — An arrest
may be made on any day and at any time of the
day or night. (6)
NOTE: As compared to search warrant that is
generally served only in daytime.
Section 7. Method of arrest by officer by virtue
of warrant. — When making an arrest by virtue of
a warrant, the officer shall inform the person to be
arrested of the cause of the arrest and of the fact
that a warrant has been issued for his arrest,
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 so requires, the
warrant shall be shown to him as soon as
practicable. (7a)
Section 8. Method of arrest by officer without
warrant. — When making an arrest without a
warrant, the officer shall inform the person to be
arrested of his authority and the cause of the
arrest, unless the latter is either engaged in the
commission of an offense, is pursued immediately
after its commission, has escaped, flees or forcibly
resists before the officer has opportunity so to
inform him, or when the giving of such information
will imperil the arrest. (8a)
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Section 9. Method of arrest by private person.
— When making an arrest, a private person shall
inform the person to be arrested of the intention to
arrest him and cause of the arrest, unless the
latter is either engaged in the commission of an
offense, is pursued immediately after its
commission, or has escaped, flees, or forcibly
resists before the person making the arrest has
opportunity to so inform him, or when the giving of
such information will imperil the arrest. (9a)
Section 10. Officer may summon assistance. —
An officer making a lawful arrest may orally
summon as many persons as he deems
necessary to assist him in effecting the arrest.
Every person so summoned by an officer shall
assist him in effecting the arrest when he can
render such assistance without detriment to
himself. (10a)
Note: Only an officer is covered by this section.
Hence, private individual cannot summon
assistance.
Section 11. Right of officer to break into
building or enclosure. — An officer, in order to
make an arrest either by virtue of a warrant, or
without a warrant as provided in section 5, may
break into any building or enclosure where the
person to be arrested is or is reasonably believed
to be, if he is refused admittance thereto, after
announcing his authority and purpose. (11a)
REQUISITES:
1. Person to be arrested is or is reasonably
believed to be in said building;
2. That he announced his authority and
purpose for entering therein;
3. That he has requested and denied
admittance.
Section 12. Right to break out from building or
enclosure. — Whenever an officer has entered
the building or enclosure in accordance with the
preceding section, he may break out therefrom
when necessary to liberate himself. (12a)
Note: Private individual making an arrest cannot
break in or out of a building or enclosure
because only officers are allowed by rules to do
so.
Arrest; Warrantless Arrests & Seizures (2003)
In a buy-bust operation, the police operatives arrested
the accused and seized from him a sachet of shabu and
an unlicensed firearm. The accused was charged in two
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Informations, one for violation of the “Dangerous
Drug Act”, as amended, and another for illegal
possession of firearms.
The accused filed an action for recovery of the firearm
in another court against the police officers with an
application for the issuance of a writ of replevin. He
alleged in his Complaint that he was a military
informer who had been issued a written authority to
carry said firearm. The police officers moved to
dismiss the complaint on the ground that the subject
firearm was in custodia legis. The court denied the
motion and instead issued the writ of replevin.
(a) Was the seizure of the firearm valid?
(b) Was the denial of the motion to dismiss proper?
6%
SUGGESTED ANSWER:
(a) Yes, the seizure of the firearm was valid because it
was seized in the course of a valid arrest in a buy-bust
operation. (Sec. 12 and 13 of Rule 126) A search warrant was
not necessary. (People v. Salazar, 266 SCRA 607 [1997]).
(b) The denial of the motion to dismiss was not
proper. The court had no authority to issue the writ of
replevin whether the firearm was in custodia legis or
not. The motion to recover the firearm should be filed
in the court where the criminal action is pending.
Section 13. Arrest after escape or rescue. — If a
person lawfully arrested escapes or is rescued,
any person may immediately pursue or retake him
without a warrant at any time and in any place
within the Philippines. (13)
NOTE: The pursuit must be immediate. The
fugitive may be retaken by any person who may
not necessarily be the same person from whose
custody he escaped or was rescued.
Section 14. Right of attorney or relative to visit
person arrested. — Any member of the
Philippine Bar shall, at the request of the person
arrested or of another acting in his behalf, have
the right to visit and confer privately with such
person in the jail or any other place of custody at
any hour of the day or night. Subject to reasonable
regulations, a relative of the person arrested can
also exercise the same right. (14a)
Take Note: The lawyer can visit and confer at any
time. But relatives are subject to reasonable
regulations. Thus, they may not at any time visit
their confined relatives.
Note: RA 7438 defined certain rights of persons
arrested, detained, or under custodial
investigation, with penalties for violations thereof
Bar Exam Question 2012
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34. In a criminal case for violation of a city
ordinance, the court may issue a warrant of
arrest:
a. for failure of the accused to submit his
counter-affidavit.
b. after finding probable cause against the
accused.
c. for failure of the accused to post bail.
d. for non-appearance in court whenever
required.
SUGGESTED ANSWER: (d), The criminal
case for violation of a city ordinance is
governed by the Revised Rules on
Summary Procedure. Under the said Rule,
the court shall not order the arrest of the
accused except for failure to appear
whenever required. (Section 16, 1991
Revised Rules on Summary Procedure).
Accordingly, the court may issue warrant
of arrest for non-appearance of the
accused whenever required in a criminal
case for infraction of a city ordinance.
RULE 114
Bail
Section 1. Bail defined. — Bail is the security
given for the release of a person in custody of the
law, furnished by him or a bondsman, to
guarantee his appearance before any court as
required under the conditions hereinafter
specified. Bail may be given in the form of
corporate surety, property bond, cash deposit,
or recognizance. (1a)
BAIL BOND RECOGNIZANCE
An obligation under
seal given by the An obligation of record,
accused with one or entered into before
more sureties, and some court or
made payable to the magistrate duly
proper officer with the authorized to take it,
condition to be void with the condition to do
upon performance by some particular act
the accused of such
acts as he may be
legally required to
perform
Note: A person is in the custody of the law when
he has been either arrested or otherwise deprived
of his freedom or when he has voluntarily
submitted himself to the jurisdiction of the court by
surrendering to the proper authorities.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Bail; Application (2012)
No.I.B. A was charged with a non-bailable
offense. At the time when the warrant of
arrest was issued, he was confined in the
hospital and could not obtain a valid
clearance to leave the hospital. He filed a
petition for bail saying therein that he be
considered as having placed himself under
the jurisdiction of the court. May the court
entertain his petition? Why or why not? (5%)
SUGGESTED ANSWER: No, the court may
not entertain his petition as he has not
yet been placed under arrest. A must be
“literally” placed under the custody of the
law before his petition for bail could be
entertained by the court (Miranda vs.
Tuliao, G.R. No. 158763, March 31, 2006).
ALTERNATIVE ANSWER: Yes, a person is
deemed to be under the custody of the law
either when he has been arrested or has
surrendered himself to the jurisdiction of
the court. the accused who is confined in
a hospital may be deemed to be in the
custody of the law if he clearly
communicates his submission to the court
while he is confined in the hospital.
(Paderanga vs. Court of Appeals, G.R. No.
No. 115407, August 28, 1995).
Bar Exam Question 2012
17. X was charged for murder and was
issued a warrant of arrest. X remains at large
but wants to post bail. X's option is to:
a. file a motion to recall warrant of arrest;
b. surrender and file a bail petition;
c. file a motion for reinvestigation;
d. file a petition for review with the OOJ.
SUGGESTED ANSWER: (b), Bail is the
security given for the release of a person
in the custody of the law (Rule 114, Sec.
1, Rules of Court). The Rules use of word,
“custody” to signify that bail is only
available for someone who is under the
custody of the law. Hence, X should first
surrender before he could be allowed to
post bail.
Bar Exam Question 2011
(95) A surety company, which provided the
bail bond for the release of the accused, filed
a motion to withdraw as surety on the
ground of the accused’s non-payment of the
renewal premium. Can the trial court grant
the withdrawal?
(A) No, since the surety‟s undertaking is
not annual but lasts up to judgment. (B)
Yes, since surety companies would fold up
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otherwise. (C) No, since the surety company
technically takes the place of the accused
with respect to court attendance. (D) Yes,
since the accused has breached its
agreement with the surety company.
Bail; Forms of Bail (1999)
In what forms may bail be given? (2%)
SUGGESTED ANSWER:
Bail may be given by a corporate surety, or through a
property bond, cash deposit or recognizance.
PROSECUTION WITNESSES may also be
required to post bail to ensure their appearance at
the trial of the case where:
1. There is substitution of information (sec.
14, Rule 110);
2. Where the court believes that a material
witness may not appear at the trial
(sec.14, Rule 119).
REQUIRING ARRAIGNMENT BEFORE GRANT
OF BAIL IS NOT VALID
It is a mistaken theory of the court to first require
arraignment before the grant of bail where it is
authorized. The reasons are:
1. The trial court could ensure the presence
of the accused at the arraignment
precisely by granting bail and ordering his
presence at any stage of the proceedings
such as arraignment (sec. 2[b], Rule 114);
and
2. The accused would be placed in a
position where he has to choose between
filing a motion to quash and thus delay his
release on bail, and foregoing the filing of
a motion to quash so that he can be
arraigned at once and thereafter be
released on bail (Lavides vs.CA, 324
SCRA 321).
Section 2. Conditions of the bail; requirements.
— All kinds of bail are subject to the following
conditions:
(a) The undertaking shall be effective upon
approval, and unless cancelled, shall remain
in force at all stages of the case until
promulgation of the judgment of the Regional
Trial Court, irrespective of whether the case
was originally filed in or appealed to it;
(b) The accused shall appear before the
proper court whenever required by the court of
these Rules;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(c) The failure of the accused to appear at the
trial without justification and despite due
notice shall be deemed a waiver of his right to
be present thereat. In such case, the trial may
proceed in absentia; and
(d) The bondsman shall surrender the
accused to the court for execution of the final
judgment.
The original papers shall state the full name and
address of the accused, the amount of the
undertaking and the conditions herein required.
Photographs (passport size) taken within the last
six (6) months showing the face, left and right
profiles of the accused must be attached to the
bail. (2a)
Bar Exam Question 2011
(49) When may the bail of the accused be
cancelled at the instance of the bondsman?
(A) When the accused jumps bail. (B) When
the bondsman surrenders the accused to
the court. (C) When the accused fails to pay
his annual premium on the bail bond.
(D) When the accused changes his address
without notice to the bondsman.
NOTE: No additional conditions can be imposed.
A detention prisoner who escapes waives his right
to cross-examination (Gimenez vs. Nazareno, 160
SCRA 1).
By filing a fake bail bond, an appellant is deemed
to have escaped from confinement during the
pendency of his appeal and in the normal course
of things, his appeal should be dismissed.
The condition of the bail that “ The accused shall
appear before the proper court whenever so
required by the court or these Rules” operates as
a valid restriction on his right to travel (Manotoc,
Sr. vs. CA 142 SCRA 149).
Section 3. No release or transfer except on
court order or bail. — No person under detention
by legal process shall be released or transferred
except upon order of the court or when he is
admitted to bail. (3a)
Section 4. Bail, a matter of right; exception. —
All persons in custody shall be admitted to bail as
a matter of right, with sufficient sureties, or
released on recognize as prescribed by law or this
Rule (a) before or after conviction by the
Metropolitan Trial Court, Municipal Trial Court,
Municipal Trial Court in Cities, or Municipal Circuit
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Trial Court, and (b) before conviction by the
Regional Trial Court of an offense not punishable
by death, reclusion perpetua, or life imprisonment.
(4a)
Section 13, Art III, 1987 Constitution. All
persons, except those charged with offenses
punishable by reclusion perpetua, when
evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or
be released on recognizance as may be
provided by law. The right to bail shall not be
impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail shall
not be required.
NOTE: In instances where bail is a matter of right
ant the bail to be granted is based on the
recommendation of the prosecution as stated in
the information or complaint, a hearing is not
necessary.
But where, however, there is a reduction of bail as
recommended or after conviction by the RTC of an
offense not punishable by death, reclusion
perpetua, or life imprisonment wherein the grant of
bail is discretionary, there must be a hearing
before the bail is granted in order to afford the
prosecution to oppose it (Bangayan vs. Butacan,
345 SCRA 301).
The prosecution cannot adduce evidence for the
denial of bail when it is a matter of right. However,
when it is a matter of discretion, prosecution may
show proof for the denial of bail.
Important note: A warrant of arrest without
recommendation for bail is a violation of the
constitutional right of the accused to bail unless
the accused is charged with a capital offense or
offenses punishable by reclusion perpetua or life
imprisonment and the evidence of guilt is strong
(Paraga vs. Veneracio, 269 SCRA 371).
GR: An extradite is not entitled to bail.
The constitutional provision on bail as well
as sec. 4, Rule 114 applies only when a
person has been arrested and detained
for violation of Philippine laws. It does not
apply to extradition proceedings because
extradition courts do not render judgments
of conviction or acquittal (Govt. of US vs.
Judge Purganan, Sept. 24, 2002).
EXCEPTION: Accordingly, it was held that after a
potential extraditee has been arrested and placed
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
under custody of the law, bail may be applied for
and granted as an exception, only upon clear and
convincing showing that:
1. Once granted bail, the applicant will not
be a flight risk or danger to the
community; and
2. There exists special, humanitarian and
compelling circumstances including, as a
matter of reciprocity, those cited by the
highest court in the requesting state when
it grants provisional liberty in extradition
cases therein.
a. A prospective extraditee is entitled to notice
and hearing before the cancellations of his
bail.
Considering that petitioner has not been shown to
be a flight risk nor a danger to the community, she
is entitled to notice and hearing before her bail
could be cancelled. Based on the record, we find
that, absent prior notice and hearing, the bail
cancellation was in violation of her right to due
process tantamount to grave abuse of discretion
on the part of the trial court. (Rodriguez, et al. vs.
Hon. Presiding Judge of RTC Branch 17, Manila,
et al., L-157977, Feb. 27, 2006).
b. However, a prospective extraditee is not
entitled to notice and hearing before the
issuance of warrant for his arrest.
In Government of USA vs. Purganan L-148571, 24
Sept. 2002, 389 SCRA 623), we said that a
prospective extraditee is not entitled to notice and
hearing before the issuance of a warrant of arrest,
because notifying him before his arrest only tips
him of his pending arrest. But this is for cases
pending the issuance of a warrant of arrest, not in
a CANCELLATION of a bail that had been issued
after determination that the extraditee is a no-flight
risk. The policy is that a prospective extraditee is
arrested and detained to avoid his flight from
justice. On the extraditee lies the burden of
showing that he will not flee once bail is granted.
If after his arrest and if the trial court finds that he
is no flight risk, it grants him bail. The grant of
bail, presupposes that the petitioner has already
presented evidence to prove her right to be on
bail, that she is no flight risk, and the trial court
had already exercised its sound discretion and
had already determined that under the
Constitution and laws in force, petitioner is entitled
to provisional release.
Bar Exam Question 2011
(9) The Metropolitan Trial Court convicted
Virgilio and Dina of concubinage. Pending
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appeal, they applied for bail, claiming they
are entitled to it as a matter of right. Is their
claim correct? (A) No, bail is not a matter of
right after conviction. (B) Yes, bail is a matter
of right in all cases not involving moral
turpitude. (C) No, bail is dependent on the
risk of flight. (D) Yes, bail is a matter of
right in the Metropolitan Trial Court
before and after conviction.
Extradition (2004)
RP and State XX have a subsisting Extradition Treaty.
Pursuant thereto RP's Secretary of Justice (SOJ) filed a
Petition for Extradition before the MM RTC alleging
that Juan Kwan is the subject of an arrest warrant duly
issued by the proper criminal court of State XX in
connection with a criminal case for tax evasion and
fraud before his return to RP as a balikbayan.
Petitioner prays that Juan be extradited and delivered
to the proper authorities of State XX for trial, and that
to prevent Juan's flight in the interim, a warrant for his
immediate arrest be issued. Before the RTC could act
on the petition for extradition, Juan filed before it an
urgent motion, in sum praying (1) that SoJ's
application for an arrest warrant be set for hearing and
(2) that Juan be allowed to post bail in the event the
court would issue an arrest warrant. Should the court
grant or deny Juan's prayers? Reason. (5%)
SUGGESTED ANSWER:
Under the Extradition Treaty and Law, the
application of the Secretary of Justice for a warrant
of arrest need not be set for hearing, and Juan
cannot be allowed to post bail if the court would
issue a warrant of arrest. The provisions in the Rules
of Court on arrest and bail are not basically
applicable. (Government of the United States of
America v. Puruganan, 389 SCRA 623 [2002])
Right to bail not available to military
personnel.
The right to bail embodied in the constitution, is
not available to military personnel or officer
charged with the violation of Articles of War
(Aswat vs. Galido, 204 SCRA 205).
Bail; Matter of Right (1999)
When the accused is entitled as a matter of right to
bail, may the Court refuse to grant him bail on the
ground that there exists a high degree of probability
that he will abscond or escape? Explain. (2%)
SUGGESTED ANSWER:
If bail is a matter of right, it cannot be denied on the
ground that there exists a high degree of probability
that the accused will abscond or escape. What the
court can do is to increase the amount of the bail. One
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
of the guidelines that the judge may use in fixing a
reasonable amount of bail is the probability of the
accused appearing in trial.
Bail; Matter of Right vs. Matter of Discretion (1999)
When is bail a matter of right and when is it a matter
of discretion? (2%)
SUGGESTED ANSWER:
When Bail is a matter of right:
All persons in custody shall (a) before or after
conviction by the metropolitan and municipal trial
courts, and (b) before conviction by the RTC of an
offense not punishable by death, reclusion perpetua or
life imprisonment, be admitted to bail as a matter of
right, with sufficient sureties, or be released on
recognizance as prescribed by law or Rule 114. (Sec. 4,
Rule 114, Rules of Court, as amended by Circular No. 12-
94.)
When bail is a matter of discretion:
Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment, on application of the accused. If the
penalty of imprisonment exceeds six years but not
more than 20 years, bail shall be denied upon a
showing by the prosecution, with notice to the
accused, of the following or other similar
circumstances:
1 That the accused is a recidivist, quasi-re-cidivist or
habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration;
2 That the accused is found to have previously escaped
from legal confinement, evaded sentence, or has
violated the conditions of his bail without valid
justification;
3 That the accused committed the offense while on
probation, parole, or under conditional pardon;
4 That the circumstances of the accused or his case
indicate the probability of flight if released on bail; or
5 That there is undue risk that during the pendency of
the appeal, the accused may commit another crime.
(Sec. 1, Id.)
Bail; Matter of Right vs. Matter of Discretion (2006)
When is bail a matter of right and when is it a matter
of discretion? (5%)
SUGGESTED ANSWER:
Bail is a matter of right (a) before or after conviction
by the inferior courts; (b) before conviction by the
RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment., when the evidence of
guilt is not strong (Sec. 4, Rule 114, 2000 Rules of
Criminal Procedure).
Bail is discretionary: Upon conviction by the RTC of
an offense not punishable by death, reclusion perpetua
or life imprisonment (Sec. 5, Rule 114, 2000 Rules of
Criminal Procedure).
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Section 5. Bail, when discretionary. — Upon
conviction by the Regional Trial Court of an
offense not punishable by death, reclusion
perpetua, or life imprisonment, admission to bail is
discretionary. The application for bail may be filed
and acted upon by the trial court despite the filing
of a notice of appeal, provided it has not
transmitted the original record to the appellate
court. However, if the decision of the trial court
convicting the accused changed the nature of the
offense from non-bailable to bailable, the
application for bail can only be filed with and
resolved by the appellate court.
Should the court grant the application, the
accused may be allowed to continue on
provisional liberty during the pendency of the
appeal under the same bail subject to the consent
of the bondsman.
If the penalty imposed by the trial court is
imprisonment exceeding six (6) years, the
accused shall be denied bail, or his bail shall be
cancelled upon a showing by the prosecution, with
notice to the accused, of the following or other
similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed the
crime aggravated by the circumstance of
reiteration;
(b) That he has previously escaped from legal
confinement, evaded sentence, or violated the
conditions of his bail without valid justification;
(c) That he committed the offense while under
probation, parole, or conditional pardon;
(d) That the circumstances of his case
indicate the probability of flight if released on
bail; or
(e) That there is undue risk that he may
commit another crime during the pendency of
the appeal.
The appellate court may, motu proprio or on
motion of any party, review the resolution of the
Regional Trial Court after notice to the adverse
party in either case. (5a)
Bar Exam Question 2011
(3) Angie was convicted of false testimony and
served sentence. Five years later, she was
convicted of homicide. On appeal, she applied
for bail. May the Court of Appeals deny her
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
application for bail on ground of habitual
delinquency? (A) Yes, the felonies are both
punishable under the Revised Penal Code. (B)
Yes, her twin convictions indicated her
criminal inclinations. (C) No, the felonies
fall under different titles in the Revised
Penal Code. (D) No, the charges are both
bailable.
Bar Exam Question 2011
(28) Berto was charged with and convicted of
violating a city ordinance against littering in
public places punishable by imprisonment of
one month or a fine of P1,000.00. But the
city mayor pardoned him. A year later, he
was charged with violating a city ordinance
against jaywalking which carried the same
penalty. Need Berto post bail for such
offense? (A) Yes, his previous conviction
requires posting of bail for the present
charge. (B) Yes, since he may be deemed to
have violated the terms of his pardon. (C) No,
because he is presumed innocent until
proven otherwise. (D) No, one charged with
the violation of a city ordinance is not
required to post bail, notwithstanding a
previous pardon.
Section 6. Capital offense defined. — A capital
offense is an offense which, under the law existing
at the time of its commission and of the
application for admission to bail, may be punished
with death. (6a)
NOTE: If the law at the time of the commission
does not impose the death penalty, the
subsequent amendment of the law increasing
the penalty cannot apply to the case, otherwise
it would be ex post facto, and penalties are
determined at the time of the commission of the
offense.
If the law at the time of the application for bail
has amended the prior law, which impose the
death penalty by reducing such penalty, such
favorable law, generally has a retro-active effect
(art. 22, RPC).
Bar Exam Question 2011
(58) Which of the following states a correct
guideline in hearing applications for bail in
capital offenses? (A) The hearing for bail in
capital offenses is summary; the court
does not sit to try the merits of the case.
(B) The prosecution’s conformity to the
accused’s motion for bail is proof that its
evidence of his guilt is not strong. (C) The
accused, as applicant for bail, carries the
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burden of showing that the prosecution’s
evidence of his guilt is not strong. (D) The
prosecution must have full opportunity to
prove the guilt of the accused.
Section 7. Capital offense or an offense
punishable by reclusion perpetua or life
imprisonment, not bailable. — No person
charged with a capital offense, or an offense
punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage
of the criminal prosecution. (7a)
NOTE: RA 9346 (AN ACT PROHIBITING THE
IMPOSITION OF DEATH PENALTY IN THE
PHILIPPINES, June 24,2006) abolished (may be
called suspended because the constitution itself
did not totally abolished death penalty). Hence
there is no more capital offense.
GR: No bail if charge is a capital offense or is
punishable by reclusion perpetua or life
imprisonment AND evidence of guilt is strong.
REASON: One who faces a probable death
sentence has a particularly strong temptation to
flee.
Exception: If the accused charged with a capital
offense is a minor.
For the purposes of recommending the
amount of bail, the privileged mitigating
circumstance of minority shall be
considered (sec. 34 RA 9344 (JUVENILE
JUSTICE AND WELFARE ACT OF 2206).
NOTE: RA9344 suspends the sentence of
persons convicted of an offense while they were
below 18 years of age. For those committed by
minors 15 years old and below, there is no
criminal liability, only civil. Minors more that 15 but
not more than 18 must have acted with
discernment. Otherwise, they have no criminal
liability.
NOTE: Even though the penalty provided by law is
reclusion perpetua or life imprisonment or death, if
such penalty is not likely to be imposed on
account of the attendance of (privileged) mitigating
circumstances, the crime does not fall under the
category of a capital offense for purposes of bail
(Bravo, Jr. vs. Borja, 134 SCRA 466).
Bail; Appeal (1998)
In an information charging them of Murder,
policemen A, B and C were convicted of Homicide. A
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
appealed from the decision but B and C did not. B
started serving his sentence but C escaped and is at
large. In the Court of Appeals, A applied for bail but
was denied. Finally, the Court of Appeals rendered a
decision acquitting A on the ground that the evidence
pointed to the NPA as the killers of the victim.
1 Was the Court of Appeal's denial of A's
application for bail proper? [2%]
2 Can B and C be benefited by the decision of the
Court of Appeals? [3%]
SUGGESTED ANSWER:
1, Yes, the Court of Appeals properly denied A's
application for bail. The court had the discretion to do
so. Although A was convicted of homicide only, since
he was charged with a capital offense, on appeal he
could be convicted of the capital offense. (Obosa vs.
Court of Appeals, 266 SCRA 281.)
ALTERNATIVE ANSWER:
Under Circular No. 2-92, A is entitled to bail because
he was convicted of homicide and hence the evidence
of guilt of murder is not strong.
SUGGESTED ANSWER:
2. B, who did not appeal, can be benefited by the
decision of the Court of Appeals which is favorable
and applicable to him. (Sec. 11 [a]. Rule 122, Rules of Criminal
Procedure.) The benefit will also apply to C even if his
appeal is dismissed because of his escape.
Section 8. Burden of proof in bail application.
— At the hearing of an application for bail filed by
a person who is in custody for the commission of
an offense punishable by death, reclusion
perpetua, or life imprisonment, the prosecution
has the burden of showing that evidence of guilt is
strong. The evidence presented during the bail
hearing shall be considered automatically
reproduced at the trial, but upon motion of either
party, the court may recall any witness for
additional examination unless the latter is dead,
outside the Philippines, or otherwise unable to
testify. (8a)
Bail (2002)
D was charged with murder, a capital offense. After
arraignment, he applied for bail. The trial court
ordered the prosecution to present its evidence in full
on the ground that only on the basis of such
presentation could it determine whether the evidence
of D’s guilt was strong for purposes of bail. Is the
ruling correct? Why? (3%)
SUGGESTED ANSWER:
No, the prosecution is only required to present as
much evidence as is necessary to determine whether
the evidence of D’s guilt is strong for purposes of
bail.(Rule 114, sec. 8).
NOTES: Bail hearing is mandatory. Granting
bail without hearing is gross ignorance of the law
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subjects the judge to administrative liabilities and
even dismissal from office [the judge was fined in
the amount of 20, 000 pesos] (Taborite vs.
Sollesta, AM No. MTJ-02-1388 , Aug. 12, 2003).
Q. What is the administrative liability of a judge
who granted an application for bail without
conducting a hearing as required in Sec. 8 of
Rule 114?
Ans. Gross ignorance of the law and for
incompetence.
The Bitoon Doctrine. Exhaustion of judicial
remedies not required before filing
administrative charge against judge provided
the complaint does not request that the
respondent’s questioned order be nullified .
(EN BANC ,A.M. No. MTJ-05-1598. January 23, 2006
LEONORA BITOON, FLORENCIO CANTADA, ANITA
MENDOZA, CAEL GLORIOSO and ATTY. MIRIAM S.
CLORINA-RENTOY, complainants, vs. JUDGE LORINDA B.
TOLEDO-MUPAS, MTC-Dasmariñas, Cavite, respondent).
The hearing should be summary or otherwise in
the discretion of the court. The burden of proving
that the guilt of the accused is strong lies within
the prosecution (Comia vs.Antona, 337 SCRA
656).
Q. What is the right of the accused (applicant)
during the bail hearing?
Ans. The right to cross examination (of
prosecution witnesses) and to introduce his own
evidence in rebuttal. (Basco vs Rapatalo, A.M.No.
RTJ-96-1335, 5 March 1997, 269 SCRA 220,
225).
Q. Where the accused is charged with murder,
would it be tenable for the court to grant his
application for bail on a finding that the crime
committed by the accused was only homicide?
Ans. No. It is a well-settled rule that the judge
conducting a bail hearing (preliminary
investigation during the time when judges of the
town courts were not yet divested of such
authority effective Oct. 3, 2005) has no legal
authority to determine the character of the crime.
The only authority of the judge during the bail
hearing is to determine whether the evidence of
guilt is strong, but he has no authority to reduce or
change the crime charged in order to justify the
grant of bail to the accused. (Depamaylo vs
Brotarlo, A.M. No. MTJ-92-731, 29 Nov. 1996, 265
SCRA 151, 157, cited in . EN BANC, A.M. No.
MTJ-05-1598. January 23, 2006 A BITOON,
FLORENCIO CANTADA, ANITA MENDOZA,
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
CAEL GLORIOSO and ATTY. MIRIAM S.
LORINA-RENTOY, complainants, vs. JUDGE
LORINDA B. TOLEDO-MUPAS, MTC-
Dasmariñas, Cavite, respondent)
Comment: It is the DOJ Prosecutor who has the
legal authority to determine the crime probably
committed by the accused which is to be charged
in the information. The authority of the judge to
determine what was the crime actually committed
by the accused comes in only after the trial on the
merits. (Ucat)
EVIDENCE OF GUILT IS STRONG WHEN
Proof is evident or the presumption of guilt is
strong. The test is not whether the evidence
establishes guilt beyond reasonable doubt but
whether it shows evident guilt or great
presumption of guilt.
The court’s order granting or denying bail must
contain a summary of evidence of the prosecution
(P. vs. Judge Cabral, GR NO. 131909, Feb. 18,
1999).
Note here that the evidence produced in the bail
hearing automatically forms part of the evidence of
the case on trial. This is different from the
evidence produced during the PI which is not
automatically reproduced on trial.
Section 9. Amount of bail; guidelines. — The
judge who issued the warrant or granted the
application shall fix a reasonable amount of bail
considering primarily, but not limited to, the
following factors:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the
accused;
(g) Probability of the accused appearing at the
trial;
(h) Forfeiture of other bail;
(i) The fact that accused was a fugitive from
justice when arrested; and
(j) Pendency of other cases where the
accused is on bail.
Excessive bail shall not be required. (9a)
NOTE: But, at the bottom, in bail fixing, the
principal factor considered, to the determination
of which most other factors are directed, is the
probability of the appearance of the accused, or
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of his flight to avoid punishment (Villaseñor vs.
Abano, 21 SCRA 312).
Section 10. Corporate surety. — Any domestic or
foreign corporation, licensed as a surety in
accordance with law and currently authorized to
act as such, may provide bail by a bond
subscribed jointly by the accused and an officer of
the corporation duly authorized by its board of
directors. (10a)
Section 11. Property bond, how posted. — A
property bond is an undertaking constituted as
lien on the real property given as security for the
amount of the bail.
Within ten (10) days after the approval of the
bond, the accused shall cause the annotation of
the lien on the certificate of title on file with the
Register of Deeds if the land is registered, or if
unregistered, in the Registration Book on the
space provided therefor, in the Registry of Deeds
for the province or city where the land lies, and on
the corresponding tax declaration in the office of
the provincial, city and municipal assessor
concerned.
Within the same period, the accused shall submit
to the court his compliance and his failure to do so
shall be sufficient cause for the cancellation of the
property bond and his re-arrest and detention.
(11a)
Section 12. Qualifications of sureties in
property bond. — The qualification of sureties in
a property bond shall be as follows:
(a) Each must be a resident owner of real
estate within the Philippines;
(b) Where there is only one surety, his
real estate must be worth at least the
amount of the undertaking;
(c) If there are two or more sureties, each
may justify in an amount less than that
expressed in the undertaking but the
aggregate of the justified sums must be
equivalent to the whole amount of bail
demanded.
In all cases, every surety must be worth the
amount specified in his own undertaking over and
above all just debts, obligations and properties
exempt from execution. (12a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
NOTE: Philippine residency is required of a
property bondsman. The reason for this is that
bondsmen in criminal cases, residing outside of
the Philippines, are not within the reach of the
processes of the court (Villaseñor vs. Abano,
supra).
Section 13. Justification of sureties. — Every
surety shall justify by affidavit taken before the
judge that he possesses the qualifications
prescribed in the preceding section. He shall
describe the property given as security, stating the
nature of his title, its encumbrances, the number
and amount of other bails entered into by him and
still undischarged, and his other liabilities. The
court may examine the sureties upon oath
concerning their sufficiency in such manner as it
may deem proper. No bail shall be approved
unless the surety is qualified. (13a)
PURPOSE
To enable the judge to determine whether or not
the surety possesses the qualification to act as
such, especially his financial worth.
The justification being under oath, any falsity
introduced thereto by the surety would render him
liable for perjury
Section 14. Deposit of cash as bail. — The
accused or any person acting in his behalf may
deposit in cash with the nearest collector or
internal revenue or provincial, city, or municipal
treasurer the amount of bail fixed by the court, or
recommended by the prosecutor who investigated
or filed the case. Upon submission of a proper
certificate of deposit and a written undertaking
showing compliance with the requirements of
section 2 of this Rule, the accused shall be
discharged from custody. The money deposited
shall be considered as bail and applied to the
payment of fine and costs while the excess, if any,
shall be returned to the accused or to whoever
made the deposit. (14a)
Section 15. Recognizance. — Whenever allowed
by law or these Rules, the court may release a
person in custody to his own recognizance or that
of a responsible person. (15a)
RECOGNIZANCE
This refers to an obligation of record, entered into
before some court or officer authorized to take it
with a condition to do some particular act, the
most usual condition in criminal cases being the
appearance of the accused on trial.
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NOTE: There may be a case where the accused
is released on his own recognizance, which
means that he has become his own jailer.
Section 16. Bail, when not required; reduced
bail or recognizance. — No bail shall be required
when the law or these Rules so provide.
When a person has been in custody for a period
equal to or more than the possible maximum
imprisonment prescribe for the offense charged,
he shall be released immediately, without
prejudice to the continuation of the trial or the
proceedings on appeal. If the maximum penalty to
which the accused may be sentenced is destierro,
he shall be released after thirty (30) days of
preventive imprisonment.
A person in custody for a period equal to or more
than the minimum of the principal penalty
prescribed for the offense charged, without
application of the Indeterminate Sentence Law or
any modifying circumstance, shall be released on
a reduced bail or on his own recognizance, at the
discretion of the court. (16a)
NOTE: The first paragraph of this section is
substantially from the last par. of art. 29, RPC.
RELEASED WITHOUT BAIL
1. Offense charged is violation of an
ordinance, light felony or a criminal
offense, the imposable penalty wherefore
does not exceed 6 months and/or a fine of
2,000 under RA 6036;
2. Where the accused has applied for
probation and before the same has been
resolved but no bail was filed or the
accused is incapable of filing one, in
which case he may be released on
recognizance;
3. In case of a youthful offender held for
physical or mental examination, trial, or
appeal, if unable to furnish bail and under
the circumstances under PD 603 as
amended (this is already modified by RA
9344);
4. Cases falling under art. 29 last par., RPC.
ON REDUCED BAIL OR ON HIS OWN
RECOGNIZANCE
1. When had already served the minimum
term, without applying the provisions of
the ISL and the modifying circumstances;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
UNDER THE REVISED RULES OF SUMMARY
PROCEDURE
GR: NO BAIL
EXCEPTIONS:
1. Where a warrant of arrest is issued for
failure to appear when required by the
court;
2. When accused:
 Is a recidivist;
 Is a fugitive from justice;
 Is charged with physical injuries;
 Does not reside in the place
where the violation of the law or
ordinance is committed;
 Has no known residence.
Section 17. Bail, where filed. —
(a) Bail in the amount fixed may be filed
with 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.
(b) Where the grant of bail is a matter of
discretion, or the accused seeks to be
released on recognizance, the application
may only be filed in the court where the
case is pending, whether on preliminary
investigation, trial, or on appeal.
(c) Any person in custody who is not yet
charged in court may apply for bail with
any court in the province, city, or
municipality where he is held. (17a)
NOTE: As an addition, (d) if the decision
of the trial court convicting the accused
changed the nature of the offense from
non-bailable to bailable, the application for
bail can only be filed and resolved by the
appellate court (sec. 5, Rule114).
Bail; Application; Venue (2002)
405
________________________________________________________________________________________________
If an information was filed in the RTC-Manila
charging D with homicide and he was arrested in
Quezon City, in what court or courts may he apply for
bail? Explain. (3%)
SUGGESTED ANSWER:
D may apply for bail in the RTC-Manila where the
information was filed or in the RTC-Quezon City
where he was arrested, or if no judge, thereof is
available, with any metropolitan trial judge, municipal
trial judge or municipal circuit trial judge therein. (Rule
114, sec. 17).
Section 18. Notice of application to prosecutor.
— In the application for bail under section 8 of this
Rule, the court must give reasonable notice of the
hearing to the prosecutor or require him to submit
his recommendation. (18a)
NOTE: Such notice is necessary because the
burden of proving that the evidence of guilt is
strong is on the prosecution and that the
discretion of the court in admitting the accused
to bail can only be exercised after the fiscal has
been heard regarding the nature of the evidence
in is possession (P. vs. Raba, 130 Phil. 384).
Section 19. Release on bail. — The accused
must be discharged upon approval of the bail by
the judge with whom it was filed in accordance
with section 17 of this Rule.
Whenever bail is filed with a court other than
where the case is pending, the judge who
accepted the bail shall forward it, together with the
order of release and other supporting papers, to
the court where the case is pending, which may,
for good reason, require a different one to be filed.
(19a)
NOTE: Once the accused has been admitted to
bail, he is entitled to immediate release from
custody. An officer who fails or refuses to
release him from detention notwithstanding the
approval by the proper court of his bail bond
may be held liable under art. 126, RPC for
“delaying release”.
Section 20. Increase or reduction of bail. —
After the accused is admitted to bail, the court
may, upon good cause, either increase or reduce
its amount. When increased, the accused may be
committed to custody if he does not give bail in the
increased amount within a reasonable period. An
accused held to answer a criminal charge, who is
released without bail upon filing of the complaint
or information, may, at any subsequent stage of
the proceedings and whenever a strong showing
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
of guilt appears to the court, be required to give
bail in the amount fixed, or in lieu thereof,
committed to custody. (20a)
NOTE: Where the offense is bailable as a matter
of right, the mere probability that the accused will
escape, or even if he had previously escaped from
detention, does not deprive him of his right to bail.
The remedy is to INCREASE the amount of bail,
provided such amount would not be excessive (Sy
Guan vs. Amparo, 79 Phil. 670).
Section 21. Forfeiture of bond. — When the
presence of the accused is required by the court
or these Rules, his bondsmen shall be notified to
produce him before the court on a given date and
time. If the accused fails to appear in person as
required, his bail shall be declared forfeited and
the bondsmen given thirty (30) days within which
to produce their principal and to show cause why
no judgment should be rendered against them for
the amount of their bail. Within the said period, the
bondsmen must:
(a) produce the body of their principal or
give the reason for his non-production;
and
(b) explain why the accused did not
appear before the court when first
required to do so.
Failing in these two requisites, a judgment shall be
rendered against the bondsmen, jointly and
severally, for the amount of the bail. The court
shall not reduce or otherwise mitigate the liability
of the bondsmen, unless the accused has been
surrendered or is acquitted. (21a)
NOTE: The 30-day period granted to the
bondsmen to comply with the 2 requisites for the
lifting of the order of forfeiture cannot be
shortened by the court but may be extended for
good cause shown.
ORDER OF ORDER OF
FORFEITURE CONFISCATION
Is conditional and Is not independent of
interlocutory, there the order of forfeiture. It
being something more is a judgment
to be done, such as the ultimately determining
production of the the liability of the
accused within 30-days surety. Therefore final
as provided by the and executory at once
rules. Not appealable
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________________________________________________________________________________________________
Section 22. Cancellation of bail. — Upon
application of the bondsmen, with due notice to
the prosecutor, the bail may be cancelled upon
surrender of the accused or proof of his death.
The bail shall be deemed automatically cancelled
upon acquittal of the accused, dismissal of the
case, or execution of the judgment of conviction.
In all instances, the cancellation shall be without
prejudice to any liability on the bond. (22a)
NOTE: Judicial Order is necessary in order to
relieve the bondsmen from the obligation
contracted by them by virtue of their bond.
Section 23. Arrest of accused out on bail. — For
the purpose of surrendering the accused, the
bondsmen may arrest him or, upon written
authority endorsed on a certified copy of the
undertaking, cause him to be arrested by a police
officer or any other person of suitable age and
discretion.
An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts to
depart from the Philippines without permission of
the court where the case is pending. (23a)
NOTE: The proper court may issue a hold-
departure order or direct the Department of
Foreign Affairs to cancel the passport of the
accused. This is a case of valid restriction of the
person’s right to travel so that he may be dealt
with in accordance with the law (Silverio vs. CA,
195 SCRA 760).
Section 24. No bail after final judgment;
exception. — No bail shall be allowed after the
judgment of conviction has become final. If before
such finality, the accused has applies for
probation, he may be allowed temporary liberty
under his bail. When no bail was filed or the
accused is incapable of filing one, the court may
allow his release on recognizance to the custody
of a responsible member of the community. In no
case shall bail be allowed after the accused has
commenced to serve sentence. (24a)
NOTE: The application for probation must be filed
within the period of perfecting an appeal, such
filing operates as a waiver of the right to appeal
(sec. 4 PD 968 as amended).
BONUS NOTES:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
WITHDRAWAL OR APPLICATION FOR
PROBATION
A. Allowed—if the application for probation is
unintelligently (not voluntary) made.
Application was filed only by a counsel de
oficio.
B. Not Allowed—application was done
intelligently (voluntary).
Application filed by the counsel de parte.
The withdrawal must, however be within the 15
day period of filing the appeal(Ucat).
Section 25. Court supervision of detainees. —
The court shall exercise supervision over all
persons in custody for the purpose of eliminating
unnecessary detention. The executive judges of
the Regional Trial Courts shall conduct monthly
personal inspections of provincial, city, and
municipal jails and their prisoners within their
respective jurisdictions. They shall ascertain the
number of detainees, inquire on their proper
accommodation and health and examine the
condition of the jail facilities. They shall order the
segregation of sexes and of minors from adults,
ensure the observance of the right of detainees to
confer privately with counsel, and strive to
eliminate conditions inimical to the detainees.
In cities and municipalities to be specified by the
Supreme Court, the municipal trial judges or
municipal circuit trial judges shall conduct monthly
personal inspections of the municipal jails in their
respective municipalities and submit a report to
the executive judge of the Regional Trial Court
having jurisdiction therein.
A monthly report of such visitation shall be
submitted by the executive judges to the Court
Administrator which shall state the total number of
detainees, the names of those held for more than
thirty (30) days, the duration of detention, the
crime charged, the status of the case, the cause
for detention, and other pertinent information.
(25a)
The employment of physical,
psychological, or degrading punishment
against any prisoner or detainee or the
use of substandard or inadequate penal
facilities under sub-human conditions shall
be dealt with by law (art. III, sec. 19, par.2,
1987 Constitution).
See also the Anti-Torture Act.
Section 26. Bail not a bar to objections on
illegal arrest, lack of or irregular preliminary
investigation. — An application for or admission
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________________________________________________________________________________________________
to bail shall not bar the accused from challenging
the validity of his arrest or the legality of the
warrant issued therefor, or from assailing the
regularity or questioning the absence of a
preliminary investigation of the charge against
him, provided that he raises them before entering
his plea.
The court shall resolve the matter as early as
practicable but not later than the start of the trial of
the case. (n)
RULE 115
Rights of Accused
NOTE: This Rule enumerates the rights of a
person accused of an offense, which are both
constitutional as well as statutory, save the right to
appeal which is purely statutory in character.
These rights are heavily and thoroughly
discussed in the CONSTITUTIONAL LAW
subject.
Section 14, Art. III, 1987 Constitution.
1. No person shall be held to answer for a
criminal offense without due process of
law.
2. In all criminal prosecutions, the accused
shall be presumed innocent until the
contrary is proved, and shall enjoy the
right to be heard by himself and counsel,
to be informed of the nature and cause of
the accusation against him, to have a
speedy, impartial, and public trial, to
meet the witnesses face to face, and to
have compulsory process to secure the
attendance of witnesses and the
production of evidence in his behalf.
However, after arraignment, trial may
proceed notwithstanding the absence of
the accused: Provided, that he has been
duly notified and his failure to appear is
unjustifiable.
Section 1. Rights of accused at the trial. — In all
criminal prosecutions, the accused shall be
entitled to the following rights:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(a) To be presumed innocent until the
contrary is proved beyond reasonable
doubt.
(b) To be informed of the nature and
cause of the accusation against him.
(c) To be present and defend in person
and by counsel at every stage of the
proceedings, from arraignment to
promulgation of the judgment. The
accused may, however, waive his
presence at the trial pursuant to the
stipulations set forth in his bail, unless his
presence is specifically ordered by the
court for purposes of identification. The
absence of the accused without justifiable
cause at the trial of which he had notice
shall be considered a waiver of his right to
be present thereat. When an accused
under custody escapes, he shall be
deemed to have waived his right to be
present on all subsequent trial dates until
custody over him is regained. Upon
motion, the accused may be allowed to
defend himself in person when it
sufficiently appears to the court that he
can properly protect his right without the
assistance of counsel.
(d) To testify as a witness in his own
behalf but subject to cross-examination on
matters covered by direct examination.
His silence shall not in any manner
prejudice him.
(e) To be exempt from being compelled to
be a witness against himself.
(f) To confront and cross-examine the
witnesses against him at the trial. Either
party may utilize as part of its evidence
the testimony of a witness who is
deceased, out of or can not with due
diligence be found in the Philippines,
unavailable or otherwise unable to testify,
given in another case or proceeding,
judicial or administrative, involving the
same parties and subject matter, the
adverse party having the opportunity to
cross-examine him.
(g) To have compulsory process issued to
secure the attendance of witnesses and
production of other evidence in his behalf.
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________________________________________________________________________________________________

(h) To have speedy, impartial and public information. To convict him of an offense other
trial. than that charged in the complaint or information
would be a violation of this constitutional right (P
(i) To appeal in all cases allowed and in vs. Ortega, 276 SCRA 166).
the manner prescribed by law. (1a)
When a person is charged in a complaint with a
RIGHTS OF THE ACCUSED AT THE TRIAL: crime and the evidence does not show that he is
guilty thereof, but does show that he is guilty of
some other crime or lesser offense, the court may
A. TO BE PRESUMED INNOCENT
sentence him for such lesser offense, PROVIDED
the lesser offense is a cognate offense and is
In all criminal prosecution, the accused shall be
included or in the complaint with the court.
presumed innocent until the contrary is proved
beyond reasonable doubt.
The qualifying or aggravating (ordinary or special)
must be ALLEGED and PROVED in order to be
REASONABLE DOUBT
considered by the court.
It is that doubt engendered by an investigation of
the whole proof and an ability, after such
C. TO BE PRESENT AND DEFEND IN PERSON
investigation, to let the mind rest easy upon
AND BY COUNSEL AT EVERY STAGE OF THE
certainty of guilt.
PROCEEDING
NOTE: Absolute certainty of guilt is not demanded
Presence of the accused is required only:
by law to convict of any criminal charge but moral
1. During arraignment (sec. 1b, Rule 116);
certainty is required, and this certainty is required
2. Promulgation of sentence, except when
as to every proposition of proof requisite to
the conviction is for a light offense, in
constitute the offense.
which case, it may be pronounced in the
presence of his counsel or representative;
REASON: The slightest possibility of an innocent
3. When ordered by the court for purposes of
man being convicted for an offense he has not
identification.
committed would be far dreadful than letting a
guilty person go unpunished for a crime he may
Not applicable in the SC and CA—The law
have perpetrated (P. vs. Lagmay, 306 SCRA 157).
securing to an accused the right to be present at
every stage of the proceedings has no application
EQUIPOISE RULE
to the proceedings before the CA and the SC nor
Where the evidence of the parties in a criminal
to the entry and promulgation of their judgments.
case are evenly balanced, the constitutional
The defendant need not be present in the court
presumption of innocence should tilt in favor of the
during the hearing of the appeal (sec. 9,Rule 124).
accused who must be acquitted.
Accused may waived his right to be present during
The Legislature may enact that when certain facts
the trial. However, his presence may be compelled
have been proven they shall be prima facie
when he is to be identified (Aquino, Jr. vs. Military
evidence of the existence of the guilt of the
Commission, 63 SCRA 546).
accused and shift the burden of proof provided
that there is a rational connection between the
He may be ordered arrested by the court for non-
facts proved and the ultimate fact presumed so
appearance upon summons.
that an inference of the one from proof of the other
is not unreasonable and arbitrary experience (P.
However, when he admits in open court that he is
vs. Mingoa, 92 Phil. 856).
the person named defendant during the
arraignment, his presence for purposes of
B. TO BE INFORMED OF THE NATURE AND
identification may not be necessary. Besides,
CAUSE OF ACCUSATIONS AGAINST HIM
when he is on bail, pictures submitted with the bail
application may be used for purposes of
This right requires that the information should
identification (Ucat).
state the facts and the circumstances constituting
the crime charged in such a way that a person of
EFFECTS OF WAIVER OF THE RIGHT TO
common understanding may easily comprehend
APPEAR BY THE ACCUSED:
and be informed of what it is all about.
1. Waiver of the right to present evidence;
2. Prosecution can present evidence if
An accused cannot be convicted of an offense
accused fails to appear;
unless it is clearly charged in the complaint or
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 409
________________________________________________________________________________________________
3. The court can decide even without the
accused’s evidence.
TRIAL IN ABSENTIA
It is important to state that the provision of the
Constitution authorizing trial in absentia of the
accused in case of his non-appearance AFTER
ARRAIGNMENT despite due notice simply means
that he waives his right to meet the witnesses face
to face among others.
Such waiver of the accused does not mean a
release of the accused from his obligation under
the bond to appear in court whenever so required.
The accused may waive his right but not his duty
or obligation to the court.
REQUISITES FOR TRIAL IN ABSENTIA
1. The accused has been arraigned;
2. He has been duly notified of the trial;
3. His failure to appear is unjustified.
Trial; Trial in Absentia (2010) No. XIX. (1)
Enumerate the requisites of a "trial in
absentia " (2%) and a "promulgation of
judgment in absentia" (2%). SUGGESTED
ANSWER: The requisites of a valid trial in
absentia are: (1) accused‟s arraignment;
(2) his due notification of the trial; (3) his
unjustifiable failure to appear during trial
(Bernardo vs. People, G.R. No. 166980,
April 4, 2007). The requisites for a valid
promulgation of judgment are: (a) A valid
notice of promulgation of judgment; (b)
Said notice was duly furnished to the
accused personally or thru counsel; (c)
Accused failed to appear on the scheduled
date of promulgation of judgment despite
due notice; (d) Such judgment be recorded
in the criminal docket; (e) Copy of said
judgment had been duly served upon the
accused or his counsel.
Trial; Trial in Absentia; Automatic Review of Conviction
(1998)
1. What are the requisites of a trial in absentia? [2%]
2. If an accused who was sentenced to death escapes,
is there still a legal necessity for the Supreme Court to
review the decision of SUGGcoEnSvTiEcDti oAnN?S
[W3%ER] :
1. The requisites of trial in absentia are: (a) the accused
has already been arraigned; (b) he has been duly
notified of the trial; and (c) his failure to appear is
unjustifiable. (Sec. 14 [2], Article III. Constitution; Parada
vs. Veneracion, 269 SCRA 371 [1997].)
2. Yes, there is still a legal necessity for the Supreme
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Court (as of 2004 the Court of Appeals has the jurisdiction to
such review) to review the decision of conviction
sentencing the accused to death, because he is entitled
to an automatic review of the death sentence. (Sees.
3[e] and 10, Rule 122, Rules of Criminal Procedure; People
vs. Espargas, 260 SCRA 539.)
An escapee who has been duly tried in absentia
waives his right to present evidence on his own
behalf and to confront and cross-examine
witnesses who testified against him (Gimenez vs.
Nazareno, 160 SCRA 1).
One who escapes from prison or confinement:
1. Losses standing in court;
2. Deemed to have waived any right to seek
relief from the court, unless he surrenders
or submits to the jurisdiction of the court;
3. Beyond the pale and protection of the law.
D. RIGHT TO COUNSEL
Even the most educated or intelligent man may
not have skill in the science of the law, particularly
in the rules of procedure Without the aid of
counsel, a person may be convicted not because
he is guilty but because he does not know how to
establish his innocence. (P. vs. Holgado, 86
Phil.752).
PURPOSE: To balance the discrepancy between
our adversarial system wherein the accused is
faced with the awesome prosecution machinery of
the state.
The right covers the period beginning from
custodial investigation, well into the rendition of
judgment and even appeal (P. vs. Serzo, 274
SCRA 553).
CUSTODIAL INVESTIGATION
It is the questioning by law enforcement officers of
a suspect taken into custody or otherwise
deprived of is freedom of action in a significant
way. It includes the practice of issuing an
“invitation” to a person who is investigated in
connection with an offense he is suspected to
have committed (RA 7438).
Right to counsel means reasonably effective
counsel
If during the investigation the assisting lawyer left,
or come and goes, the statement signed by the
accused is still inadmissible because the lawyer
should assist his client from the time the
confessant answers the first question asked by the
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investigating officer until the signing of the extra-
judicial confession (P. vs. Morial363 SCRA 96).
NOTE: The right to counsel and the right to
remain silent do not cease even after the criminal
complaint/information has already been filed in
court AS LONG AS he is still in custody.
Basis: these are oftentimes the critical stages of
the pre-trial proceedings.
IMPORTANT: The duty of the court to appoint a
counsel de oficio when the accused has no legal
counsel of choice and desires to employ the
services of one is MANDATORY only at the time
of the arraignment (sec. 6, Rule116).
 Right to counsel may be invoked on
appeal;
 Violation of right to counsel is a ground for
New Trial;
When the accused was assisted by a fake lawyer,
he is entitled to a new trial.
An order dismissing an appeal was set aside
when the late filing is due to the fact that the
lawyer is fake.
Note: however, in the case of P. vs. Elesterio,
although the accused was defended by a fake
lawyer, it is observed that he has chosen the
lawyer and that his representation does not
change the fact that he was carrying an
unlicensed firearm.
RIGHT TO COUNSEL DE PARTE IS NOT
ABSOLUTE
It cannot be used to delay the speedy
administration of justice. Hence, he cannot
successfully ask the service of a lawyer who he
cannot afford or is under conflict of interest.
Admissibility; Admission of Guilt; Requirements (2006)
What are the requirements in order that an admission
of guilt of an accused during a custodial investigation
be admitted in evidence? (2.5%)
SUGGESTED ANSWER:
1 The admission must be voluntary.
2 The admission must be in writing.
3 The admission must be made with the assistance of
competent, independent counsel.
4. The admission must be express (People v. Prinsipe,
G.R. No. 135862, May 2, 2002).
5. In case the accused waives his rights to silence and
to counsel, such waiver must be in writing, executed
with the assistance of competent, independent counsel.
E. TESTIFY AS WITNESS IN HIS OWN BEHALF
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
A denial of the defendant’s right to testify in his
own behalf would constitute an unjustifiable
violation of his constitutional right (P. vs. Santiago,
46 Phil. 734).
Note: If the accused testifies, he may be cross-
examined but only on matters covered by his
direct examination, unlike an ordinary witness who
can be cross-examined as to any matter stated in
the direct examination or connected therewith
(sec. 6, Rule 132). His failure to testify is not taken
against him but failure to produce evidence in his
behalf is considered against him (US vs. Bay, 97
Phil. 495).
An accused cannot be compelled to take the
witness stand unlike an ordinary witness for the
reason than the sole purpose of putting him on the
stand is precisely to incriminate him.
GR: Silence of the accused shall not be taken
against him.
Exception: When the prosecution has already
established a prima facie case against the
accused.
F. RIGHT AGAINST SELF-INCRIMINATION
AVAILABILITY
It is available not only in criminal prosecution but
also to other government proceedings including
civil action, and administrative or legislative
investigations.
The accused is protected under this rule from
questions which tend to incriminate him that is,
which may subject him to a penal liability.
Note: The right may be waived by failure to invoke
the privilege at the proper time, that is, AFTER the
incriminating question is asked and BEFORE his
answer. The lawyer must be very vigilant under
this situation. The client presumably does not
know that an incriminating question is shot at him.
The lawyer must manifest to the court his intention
to explain to the client that the question might
incriminate him (Ucat).
SCOPE
GR: The privilege of the accused to be exempt
from testifying as a witness involves a prohibition
against testimonial compulsion only and the
production of the accused of incriminating
documents and articles demanded from him (US
vs. Tan Teng, 23 Phil. 145).
Exceptions: Immunity statutes such as:
a) RA 1379—Forfeiture of illegally obtained
wealth;
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b) RA 749—Bribery and Graft cases.
RIGHT OF THE ACCUSED VS. RIGHT OF AN
ORDINARY WITNESS
The ordinary witness may be compelled to take
the witness stand and claim the privilege as each
question requiring an incriminating answer is shot
at him, while an accused may altogether refuse to
take the witness stand and refuse to answer any
and all questions.
NOTE; However, if the accused testifies in his
own behalf, he may be cross-examined as any
other witness. He may not on cross-examination
refuse to answer any question on the ground that
the answer might incriminate him for the crime
which he is charged, but he may refuse to answer
any question incriminating him for an offense
distinct that for which he is charged.
BODY CAN BE SUBMITTED TO EXAMINATION
(NO VIOLATION AGAINST SELF
INCRIMINATION):
1. Fingerprint;
2. Photograph;
3. Measurement;
4. Stand;
5. Assume position;
6. Blood examination;
7. Pregnancy test;
8. Wear particular dress;
9. Drug test (sec. 36, RA 9165); (Already
removed under new law and
jurisprudence)
10. Alcoholic breath;
11. DNA;
12. Hair samples;
13. Paraffin test;
14. Ultra-violet examination;
15. Medical examination.
Rights of the Accused; Validity; HIV Test (2005)
Under Republic Act No. 8353, one may be charged with
andfound guilty of qualified rape if he knew on or before
thecommission of the crime that he is afflicted with Human
Immuno-Deficiency Virus (HIV)/Acquired
ImmuneDeficiency Syndrome (AIDS) or any other
sexuallytransmissible disease and the virus or disease is
transmitted tothe victim. Under Section 17(a) of Republic
Act No. 8504 the court may compel the accused to submit
himself to a blood test where blood samples would be
extracted from his veins todetermine whether he has HIV.
(8%)
a) Are the rights of the accused to be presumed
innocent of the crime charged, to privacy, and
against self-incrimination violated by such
compulsory testing?
Explain.
SUGGESTED ANSWER:
No. The court may compel the accused to submit
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
himself to a blood test to determine whether he has
HIV under Sec. 17(a) of R.A. No, 8054. His rights to
be presumed innocent of the crime charged, to privacy
and against self-incrimination are not violated by such
compulsory testing. In an action in which the physical
condition of a party is in controversy, the court may
order the accused to submit to a physical examination.
(Sec. 1, Rule 28, 1997 Rules of Civil Procedure)(Look for citation of
latest case, in 2004)
b) If the result of such test shows that he is HIV
positive, and the prosecution offers such result in
evidence to prove the qualifying circumstance under
the Information for qualified rape, should the court
reject such result on the ground that it is the fruit of a
poisonous tree? Explain.
SUGGESTED ANSWER:
Since the rights of the accused are not violated because
the compulsory testing is authorized by the
law, the result of the testing cannot be considered to be the
fruit of a poisonous tree and can be offered in evidence to
prove the qualifying circumstance under the information for
qualified rape under R.A. No. 8353. The fruit, of the
poisonous tree doctrine refers to that rule of evidence that
excludes any evidence which may have been derived or
acquired from a tainted or polluted source. Such evidence is
inadmissible for having emanated from spurious origins. The
doctrine, however, does not apply to the results obtained
pursuant to Sec. 1, Rule 28, 1997 Rules of Civil Procedure,
as
it does not contemplate a search within the moaning of the
law. (People v. Montilla, G.R. No. 123872, January 30,1998)
Note: To impose mandatory drug testing on the
accused is a blatant attempt to harness a medical
test as a tool for criminal prosecution, contrary to
the stated objectives of RA 9165. Drug testing in
this case would violate a persons' right to privacy
guaranteed under Sec. 2, Art. III of the
Constitution. Worse still, the accused persons are
veritably forced to incriminate themselves.
Declared Unconstitutional. (ATTY.MANUEL J.
LASERNA, JR., vs.
DANGEROUS DRUGS BOARD and PHILIPPINE
DRUG ENFORCEMENT AGENCY, G.R. No.
158633,November 3, 2008)
Admissibility; Evidence from Invasive and
Involuntary Procedures (2010) No. XIII.
Policemen brought Lorenzo to the Philippine
General Hospital (PGH) and requested one of
its surgeons to immediately perform surgery
on him to retrieve a packet of 10 grams of
shabu which they alleged to have swallowed
Lorenzo. Suppose the PGH agreed to, and did
perform the surgery is the package of shabu
admissible in evidence? Explain. (3%)
SUGGESTED ANSWER: No, the package of
shabu extracted from the body of Lorenzo
is not admissible in evidence because it
was obtained through surgery which
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connotes forcible invasion into the body
of Lorenzo without his consent and absent
due process. The act of the policemen and
the PGH surgeon involved, violate the
fundamental rights of Lorenzo, the
suspect. ALTERNATIVE ANSWER: because
the constitutional right against self-
incriminating evidence exists. In the past,
Supreme Court has already declared many
invasive and involuntary procedures (i.e
examination of women‟s genitalia,
expulsion of morphine from one‟s mouth,
DNA testing) as constitutionally sound.
GR: Accused cannot be required to produce
documents that may incriminate him.
Exception: When there is a specific provision of
law directing a person to produce such document
even if it may incriminate him.
Example:
1. the Statement of Assets and Liabilities of
Public officers;
2. books of accounts of corporations under
police and taxing powers of the state.
Some examples of incriminating compulsions:
1. production of handwriting specimen
2. Forced re-enactment (P. vs. Olvis);
3. Signing a receipt of the seized articles.
Bar Exam Question 2013
XVIII. Maria was accused of libel. While
Maria was on the witness stand, the
prosecution asked her to write her name and
to sign on a piece of paper, apparently to
prove that she authored the libelous
material. Maria objected as writing and
signing her name would violate her right
against self-incrimination. Was Maria’s
objection proper? (1%) (A) No, she can be
cross examined just like any other witness
and her sample signature may be taken to
verify her alleged authorship of the libelous
statements. (B) No, her right against self-
incrimination is waived as soon as she
became a witness. (C) No, this privilege may
be invoked only by an ordinary witness and
not by the accused when she opts to take the
witness stand. (D) The objection was
improper under all of A, B, and C. (E) The
objection was proper as the right to self-
incrimination is a fundamental right that
affects liberty and is not waived simply
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
because the accused is on the witness
stand.
SUGGESTED ANSWER: (E), Section 17,
Article III of the 1987 Constitution
provides that no person shall be compelled
to be a witness against himself. The
essence of the right against self-
incrimination is testimonial compulsion,
that is, the giving of evidence against
himself through a testimonial act (People
vs. Casinillo, 213 SCRA 777 [1992]).
In Beltran vs. Samson, G.R. No. 32025,
September 23, 1929, the Supreme Court
held that for the purposes of the
constitutional privilege there similarity
between on who is compelled to produce a
document and one who is compelled to
furnish a specimen of his handwriting, for
in both cases, the witness is required to
furnish evidence against himself. In this
case, the purpose of the fiscal, who
requested the handwriting of the witness,
was to compare and determine whether
the accused wrote the documents believed
to be falsified. Thus, the right against self-
incrimination may be invoked by a
witness who was compelled to furnish his
handwriting for comparison.
In Gonzales vs. Secretary of Labor, the
Supreme Court held that the privilege
against self-incrimination must be
invoked at the proper time, and the
proper time to invoke it is when a
question calling for an incriminating
answer is propounded. This has to be so,
because before a question is asked there
would be no way of telling whether the
information to be elicited from the
witness is self-incriminating or not. As
stated in Jones on Evidence (Vol. 6, pp.
4926-4927), a person who has been
summoned to testify “cannot decline to
appear, nor can he decline to be sworn as
a witness” and “no claim of privilege can
be made until a question calling for a
criminating answer is asked; at that time,
and generally speaking, at that time only,
the claim of privilege may properly be
imposed‟ (Bagadiong vs. Gonzales, G.R.
No. L-25966, December 28, 1979, De
Castro, J.).
ALTERNATIVE ANSWER: (B), The right
against self-incrimination may be waived
expressly or impliedly. Thus, when Maria
took the witness stand, she is deemed to
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have waived her right against self-
incrimination.
G. RIGHT TO CONFRONT AND CROSS-
EXAMINE THE WITNESS AGAINST HIM AT
TRIAL
CONFRONTATION
It is the fact of setting a witness face to face with
the accused so that the latter may make any
objection he has to the witness, and the witness
may indentify the accused, and this must take
place in the presence of the court having
jurisdiction to permit the privilege of cross-
examination.
PURPOSE: The primary purpose is to secure the
opportunity of cross-examination and the
secondary purpose is to enable the judge to
observe the demeanor of witnesses.
Notes: Testimony of a witness who is not
submitted for cross-examination is not admissible
in evidence. The affidavits of witnesses who are
not presented during the trial—thus, are not
subjected to cross-examination—are inadmissible
because they are hearsay (P. vs. Quidato, GR
NO. 117401, Oct. 1, 1998).
Exception to the right of confrontation:
Section 47, Rule 130. Testimony or
deposition at a former proceeding. — The
testimony or deposition of a witness
deceased or unable to testify, given in a
former case or proceeding, judicial or
administrative, involving the same parties
and subject matter, may be given in
evidence against the adverse party who
had the opportunity to cross-examine
him.
Note: Identification was annulled in a case where
there was lack of confrontation.
The right of confrontation may be waived
Testimony of a witness who later on died
is admissible if the adverse party was
given the opportunity to cross-examine
but failed to do so due to his own fault.
Party must seasonably invoke the right to cross-
examination. Silence or failure to assert it is
tantamount to renunciation. Counsel must move
for the cross-examination of the adverse party.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
H. RIGHT TO COMPULSORY PROCESS TO
SECURE ATTENDANCE OF WITNESSES.
Section 14, Rule 119. Bail to secure appearance of
material witness. — When the court is satisfied,
upon proof or oath, that a material witness will
not testify when required, it may, upon motion of
either party, order the witness to post bail in such
sum as may be deemed proper. Upon refusal to
post bail, the court shall commit him to prison
until he complies or is legally discharged after his
testimony has been taken.
Bail; Witness Posting Bail (1999)
May the Court require a witness to post bail? Explain
your answer. (2%)
SUGGESTED ANSWER:
Yes. The court may require a witness to post bail if he
is a material witness and bail is needed to secure his
appearance. The rules provide that when the court is
satisfied, upon proof or oath, that a material witness
will not testify when required, it may, upon motion of
either party, order the witness to post bail in such sum
as may be deemed proper. Upon refusal to post bail,
the court shall commit him to prison until he complies
or is legally discharged after his testimony is taken. (Sec.
6, Rule 119)
REQUISITES FOR COMPELLING THE
ATTENDANCE OF WITNESSES AND THE
PRODUCTION OF EVIDENCE:
1. The evidence is really material;
2. The accused (party) is not guilty of neglect
in previously obtaining the production of
such evidence;
3. The evidence will be available at the time
desired;
4. No similar evidence can be obtained. (P.
vs. Chua, GR NO. 128280, April 4, 2001).
See also the topic on Subpoenas.
I. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC
TRIAL
SPEEDY TRIAL means a trial free from vexatious
capricious and oppressive delays.
The right to a speedy trial is intended to avoid
oppression and to prevent delay by imposing on
the courts and on the prosecution an obligation to
proceed with reasonable dispatch.
The courts, in determining whether the right of the
accused to a speedy trial has been denied should
consider such facts as:
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1. The length of time of delay;
2. The accused’s assertion or non-assertion
of his right;
3. Prejudice to the accused resulting from
the delay.
NOTE: There is NO violation of the right where the
delay is imputable to the accused (Solis vs.
Agloro, 64 SCRA 370).
FAILURE TO ASSERT MAY AMOUNT TO
WAIVER OR ABANDONMENT OF THE RIGHT.
Presumed waive if the repeated postponement is
procured by the accused or his counsel.
REMEDIES OF THE ACCUSED WHEN HIS
RIGHT TO A SPEEDY TRIAL IS VIOLATED:
1. He should ask for the trial of the case;
2. Motion to dismiss based on sec.14 of the
Speedy Trial Act of 1998;
3. Mandamus to compel the dismissal in
case the motion is denied;
4. Plus Habeas Corpus to obtain immediate
freedom.
RA 8493 SPEEDY TRIAL ACT OF 1998
PERIOD FOR THE ARRAIGNMENT OF THE
ACCUSED
Within 30 days from the filing of the
information or from the date the accused
appeared before the justice/judge/court in
which the charge is pending, whichever
date last occurs.
Trial; Speedy Trial (2007) No.IX. L was
charged with illegal possession of shabu
before the RTC. Although bail was allowable
under his indictment, he could not afford to
post bail, and so he remained in detention at
the City Jail. For various reasons ranging
from the promotion of the Presiding Judge, to
the absence of the trial prosecutor, and to the
lack of notice to the City Jail Warden, the
arraignment of L was postponed nineteen
times over a period of two years. Twice during
that period, L’s counsel filed motions to
dismiss, invoking the right of the accused to
speedy trial. Both motions were denied by the
RTC. Can L file a petition for mandamus.
Reason briefly. SUGGESTED ANSWER: Yes,
L can file a petition for mandamus to
enforce his constitutional right to a
speedy trial which was capriciously denied
to him.
There is absolutely no justification for
postponing an arraignment of the accused
nineteen (19) times and over a period of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
two (2) years. The numerous, unreasonable
postponements of the arraignment
demonstrate an abusive exercise of
discretion (Lumanlaw v. Peralta, 482 SCRA
396 [2006]). Arraignment of an accused
would not take thirty minutes of the
precious time of the court, as against the
preventive imprisonment and deprivation
of liberty of the accused just because he
does not have the means to post bail
although the crime charged is bailable.
The right to a speedy trial is guaranteed
by the Constitution to every citizen
accused of a crime, more so when is under
preventive imprisonment. L, in the given
case, was merely invoking his
constitutional right when a motion to
dismiss the case was twice filed by his
counsel. The RTC is virtually enjoined by
the fundamental law to respect such right;
hence a duty. Having refused or neglected
to discharge the duty enjoined by law
whereas there is no appeal nor any plain,
speedy, and adequate remedy in the
ordinary course of law, the remedy of
mandamus may be availed of.
DUTY OF THE COURT AFTER ARRAIGNMENT
OF THE ACCUSED
The court shall order a pre-trial conference to
consider the following:
1. Plea bargaining;
2. Stipulation of facts;
3. Marking for identification of evidence of
parties;
4. Waiver of objections to the admissibility of
evidence;
5. Such other matter as will promote a fair
and expeditious trial.
WHEN SHALL TRIAL COMMENCED AFTER
ARRAIGNMENT
Within 30 days from arraignment.
However, it may be extended but only:
1. For 180 days for the first 12
calendar month period from
effectivity of the law;
2. 120 days for the second 12 month
period;
3. 80 days for the 3rd 12 month
period.
TIME LIMIT FOR TRIAL OF CRIMINAL CASES
It shall not exceed 180 days from the first
day of trial.
However, this rule is not absolute.
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Exceptions:
1. Those governed by the Rule on Summary
Procedure;
2. Where the penalty prescribed by law does
not exceed 6 months imprisonment or a
fine of 1,000 or both;
3. Those authorized by the Chief Justice of
the SC.
IMPARTIAL TRIAL
Due process of law requires hearing before an
impartial and disinterested tribunal, and that every
litigant is entitled to nothing less than the cold
neutrality of an impartial judge (Mateo, Jr. vs.
Villaluz, 50 SCRA 180).
Judicial Autonomy & Impartiality (2003)
In rendering a decision, should a court take into
consideration the possible effect of its verdict upon
the
political stability and economic welfare of the nation?
4%
SUGGESTED ANSWER:
No, because a court is required to take into
consideration only the legal issues and the evidence
admitted in the case. The political stability and
economic welfare of the nation are extraneous to the
case. They can have persuasive influence but they are
not the main factors that should be considered in
deciding a case. A decision should be based on the law,
rules of procedure, justice and equity. However, in
exceptional cases the court may consider the political
stability and economic welfare of the nation when
these
are capable of being taken into judicial notice of and
are
relevant to the case.
Note: “Like Caesar’s wife, a judge must not only
be pure BUT beyond suspicion” (Palang vs. Zosa,
58 SCRA 776).
NOTE: If the judge is partial or is suffering from
valid grounds for his inhibition, a motion for
inhibition must be made before the trial judge has
already made some pronouncement (judgment)
on the merits of the case. Hence a motion for
inhibition after the judgment and denial of motion
for reconsideration is untenable (P. vs. Lacson, L-
149453, Oct. 7, 2003).(Ucat).
REASON: A party may not be allowed to
speculate upon the action of the court.
SOME CASES SHOWING PARTIALITY OF THE
JUDGE:
 When the trial judge personally conducted
the cross-examination of the accused
(Imelda Marcos vs. Sandiganbayan).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Note: But the judge can ask clarificatory
questions to the accused. This is not only
a right but duty of the judge who feels the
need to elicit information to the end that
justice will be served (P. vs. Vaynaco, GR
NO. 126286, March 22, 1999).
 Where the judge where the case is
pending is previously the one who
prosecutes the case;
 The judge of the case on appeal is the
judge (Promoted to higher court) who
rendered the judgment appealed from.
PUBLIC TRIAL
It means one held openly or publicly. It is sufficient
that the relatives and friends who want to see the
proceedings are given the opportunity to witness
the proceedings.
PURPOSE: So that the public will know that the
accused is fairly dealt with and not unjustly
condemned. This is intended to prevent possible
abuses that may be committed against the
accused (Garcia vs. Domingo, 52 SCRA 143).
EXCLUSION OF THE PUBLIC IS VALID WHEN:
1. Evidence to be produced is offensive to
decency or public morals;
2. Upon motion of the accused (sec. 21,
Rule 119).
RULE ON TRIAL BY PUBLICITY
The right of the accused to a fair trial is not
incompatible to a free press. Pervasive publicity is
not per se prejudicial to the right of the accused to
a fair trial.
To warrant a finding of prejudicial publicity, there
must be allegations and proof that the judges have
been unduly influenced, not simply that they might
be by the barrage of publicity (P. vs. Teehankee,
249 SCRA 54).
An accused has a right to a public trial, but it is a
right that belongs to him more than anyone else,
where his life or liberty can be held critically in
balance. A public trial is not synonymous with a
PUBLICIZED TRIAL; it only implies that the court
doors must be open to those who wish to come,
sit in the available seats, conduct themselves with
decorum, and observe trial process(RE: Request
for the Live TV Coverage of the Trial of Former
President Joseph Estrada, AM NO. 01-4-03-SC,
June 29, 2001).
J. RIGHT TO APPEAL ON ALL CASES
ALLOWED BY LAW AND IN THE MANNER
PRESCRIBED BY LAW
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The right to appeal is purely of statutory origin. It is
not a matter of absolute right, independently of
constitutional or statutory provisions allowing such
appeal.
WAIVER OF THE RIGHT TO APPEAL
The right to appeal is a personal right of the
accused and similarly to other rights of kindred
nature, it may be waived expressly or by
implication.
The waiver, however, must be intelligently made,
with full knowledge of its consequences. Hence, a
waiver of a grossly ignorant accused was set
aside. He was allowed to appeal despite the lapse
of the period to file an appeal.
Flight of the accused is a waiver of his right to
appeal.
Note: However, before the abolition of the death
penalty, when imposed, the right to appeal is not
waivable for the law provides for the automatic
review to the SC which was subsequently
transferred to the CA.
RULE 116
Arraignment and Plea
ARRAIGNMENT
It is the formal mode of implementing the
constitutional right of the accused to be informed
of the cause and nature of the accusations against
him.
PLEA
It pertains to the matter which the accused, on his
arraignment, alleges in answer to the charge
against him.
Section 1. Arraignment and plea; how made. —
(a) The accused must be arraigned before the
court where the complaint or information was filed
or assigned for trial. The arraignment shall be
made in open court by the judge or clerk by
furnishing the accused with a copy of the
complaint or information, reading the same in the
language or dialect known to him, and asking him
whether he pleads guilty or not guilty. The
prosecution may call at the trial witnesses
other than those named in the complaint or
information.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(b) The accused must be present at the
arraignment and must personally enter his plea.
Both arraignment and plea shall be made of
record, but failure to do so shall not affect the
validity of the proceedings.
(c) When the accused refuses to plead or makes a
conditional plea, a plea of not guilty shall be
entered for him. (1a)
(d) When the accused pleads guilty but presents
exculpatory evidence, his plea shall be deemed
withdrawn and a plea of not guilty shall be entered
for him. (n)
(e) When the accused is under preventive
detention, his case shall be raffled and its records
transmitted to the judge to whom the case was
raffled within three (3) days from the filing of the
information or complaint. The accused shall be
arraigned within ten (10) days from the date of the
raffle. The pre-trial conference of his case shall be
held within ten (10) days after arraignment. (n)
(f) The private offended party shall be required to
appear at the arraignment for purposes of plea
bargaining, determination of civil liability, and other
matters requiring his presence. In case of failure
of the offended party to appear despite due notice,
the court may allow the accused to enter a plea of
guilty to a lesser offense which is necessarily
included in the offense charged with the
conformity of the trial prosecutor alone. (cir. 1-89)
(g) Unless a shorter period is provided by special
law or Supreme Court circular, the arraignment
shall be held within thirty (30) days from the date
the court acquires jurisdiction over the person of
the accused. The time of the pendency of a
motion to quash or for a bill of particulars or other
causes justifying suspension of the arraignment
shall be excluded in computing the period. (sec. 2,
cir. 38-98)
Bar Exam Question 2012
81. The case of R, who is under detention,
was raffled to the RTC on March 1. His
arraignment should be set not later than:
a. March 4;
b. March 16;
c. March 30;
d. March 11.
SUGGESTED ANSWER: (d), The
arraignment of R should be set not later
than March 11. Under Section 1, Rule 116
of the Rules of Court, the accused shall be
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arraigned within ten (10) days from the
date of the raffle.
NOTES: Some important considerations:
1. Trial in absentia is allowed only after
accused has been arraigned;
2. Judgment is generally void when there is
lack of arraignment (Cabangangan vs.
Concepcion);
3. There can be no arraignment in absentia;
Note: However, arraignment in
absentia is technically allowed under
Rule 14, sec. 2, Rules of Procedure
for Environmental Cases (RPEC).
4. if the accused went to trial without
arraignment, but his counsel had the
opportunity to cross-examine the
witnesses of the prosecution and after the
prosecution he was arraigned, the defect
was cured (P. vs. Atienza and Closa).
If the information is materially amended,
arraignment to the amended information is
mandatory.
PERIOD TO PLEA
A. when the accused is under preventive
detention:
His case shall be raffled and its
records transmitted to the judge to
whom the case was raffled within
3 days from the filing of the
complaint or information and the
accused arraigned within 10 days
from the date of the raffle. The
pre-trial conference shall be held
within 10 days after arraignment.
B. When the accused is not under
preventive detention:
Unless a shorter period is
provided by special law or the SC
circular, the arraignment shall be
held within 30 days from the date
the court acquires jurisdiction over
the person of the accused.
C. Some laws providing for a shorter
period for arraignment:
1. RA 4908—Complainant is about
to depart from the Philippines
without definite date of return;
accused should be arraigned
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
without delay and trial should
commence within 3 days
 No postponement except
sickness of the accused
or other grounds beyond
the court’s control.
2. RA 7610—Trial shall commence
within 3 days from arraignment.
Notes: the court has no duty to point out the
duplicitousness of the offenses charged in the
information/complaint or to point out other defects.
It is the solemn duty of the lawyer to be vigilant to
protect his client.
GR: It is generally presumed, unless otherwise
proved, that an arraignment was duly conducted in
the course of the proceedings. This springs from
the presumption of regularity in the performance of
official duty.
Exception: When the accused is charged with a
capital offense. This is because of the primacy of
the right to life of the accused. The effect might be
irreversible.
WHEN PLEA OF NOT GUILTY SHOULD BE
ENTERED:
1. When the accused so pleaded;
2. When he refuses to plead;
3. Where in admitting the act charged, he
sets up matter of defense or with lawful
justification;
4. When he enters a conditional plea of guilt;
5. Where after plea of guilty, he introduces
evidence of self defense or other
exculpatory evidence;
6. When the plea is indefinite or ambiguous.
7. When accused, on bail, failed to appear
on the date of his arraignment (Rule 14,
sec. 2, RPEC)
GR: An unconditional plea of guilty admits the
crime and all attendant circumstances alleged in
the information including the allegation of
conspiracy and warrants judgment of conviction
without need of further evidence.
EXCEPTIONS:
1. Where the plea of guilty is compelled by
violence or intimidation;
2. When the accused did not fully
understand the consequences of his plea;
3. Where the information is insufficient to
sustain conviction of the offense charged;
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4. Where the information does not charged
an offense. Any conviction thereunder is
void;
5. Where the court has no jurisdiction.
6. Plea of guilt if for a capital offense.
NOTE: The accused is not entitled to know in
advance all the prosecution witnesses. To allow
otherwise would jeopardize the administration of
criminal justice.
NOTE: The case of P. vs. Balisacan, is not
anymore controlling, which held that when the
accused pleads guilty but is allowed to present
evidence for mitigating circumstance, but in effect
presented a complete justifying circumstance, the
plea is deemed vacated. Hence there is no more
standing plea on the judgment of acquittal, double
jeopardy does not apply in case of subsequent
appeal by the government for the same offense.
The new rule is that when the accused pleads
guilty BUT presents exculpatory evidence, a plea
of not guilty shall be entered for him(by the court
or order of the court).
Note: mere written manifestation is not a valid
plea as required by the Rules.
ACQUITTAL DESPITE PLEA OF GUILTY
Despite the plea of guilty, the accused must be
acquitted when the TOTALITY of the evidence
points to his acquittal. Hence, conviction in this
case is a grave abuse of discretion correctible by
certiorari.
Note that certiorari may be accompanied by a
Petition for Habeas Corpus to obtain immediate
release of the accused from detention.
Section 2. Plea of guilty to a lesser offense. —
At arraignment, the accused, with the consent of
the offended party and the prosecutor, may be
allowed by the trial court to plead guilty to a lesser
offense which is necessarily included in the
offense charged. After arraignment but before trial,
the accused may still be allowed to plead guilty to
said lesser offense after withdrawing his plea of
not guilty. No amendment of the complaint or
information is necessary. (sec. 4, circ. 38-98)
PLEA OF GUILTY
It is an unconditional admission of guilt, freely,
voluntarily and made with full knowledge of the
consequences and meaning of his act and with a
clear understanding of the precise nature of the
crime charged in the complaint or information.
PLEA BARGAINING
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
It is the process whereby the accused, the
offended party and the prosecution work out a
mutually satisfactory disposition of the case
subject to the court’s approval. It usually involves
the defendant’s pleading guilty to a lesser offense
or to only one or some of the counts of a multi-
count indictment in return for a lighter sentence
than that for the graver charge.
If the accused entered a plea of guilty to a lesser
offense without the consent of the offended party
and the prosecutor and was convicted, his
subsequent conviction of the crime charged would
not place him in DOUBLE JEOPARDY.
Bar Exam Question 2012
15. At arraignment, X pleads not guilty to a
Robbery charge. At the pretrial, he changes
his mind and agrees to a plea bargaining,
with the conformity of the prosecution and
offended party, which downgraded the
offense to theft. The Court should therefore:
a. render judgment based on the change of
plea.
b. allow the withdrawal of the earlier plea
and arraign X for theft and render
judgment.
c. receive evidence on the civil liability
and render judgment.
d. require the prosecution to amend the
information.
SUGGESTED ANSWERS: (b) and (c), The
Court should allow the withdrawal of the
earlier plea and arraign X for theft and
render judgment without need of an
amendment of complaint or information.
(Rule 116, Sec. 2, Rules of Court). Be that
as it may, the Court has to receive
evidence on the civil liability which is
impliedly instituted with the criminal
action before it renders a judgment
against X. (Rule 111, Sec.1, Rules of
Court).
Plea of Guilty; to a Lesser Offense (2002)
D was charged with theft of an article worth
p15,000.00. Upon being arraigned, he pleaded not
guilty to the offense charged. Thereafter, before trial
commenced, he asked the court to allow him to
change his plea of not guilty to a plea of guilt but only
to estafa involving P5,000.00. Can the court allow D to
change his plea? Why? (2%)
SUGGESTED ANSWER:
No, because a plea of guilty to a lesser offense may be
allowed if the lesser offense is necessarily included in
the offense charged. (Rule 116, sec. 2). Estafa involving
P5,000.00 is not necessarily included in theft of an
article worth P15,000.00
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DOJ CIRCULAR ON THE CONSENT OF THE
PROSECUTOR (DOJ CIRC. No. 55, March 11,
1996)
If the penalty imposable is prision mayor or higher,
or a fine exceeding 12,000, the trial prosecutor
shall submit comment or recommendation to the
city or provincial prosecutor or to the chief state
prosecutor for approval. If approved, trial
prosecutor may, with the consent of the offended
party, enter into plea bargaining.
Plea of guilty to a lesser offense after prosecution
rests is allowed when the prosecution does not
have sufficient evidence to convict the accused of
the crime charged (P. vs. Villarama210 SCRA 246
[1992].
Section 3. Plea of guilty to capital offense;
reception of evidence. — When the accused
pleads guilty to a capital offense, the court shall
conduct a searching inquiry into the voluntariness
and full comprehension of the consequences of
his plea and require the prosecution to prove his
guilt and the precise degree of culpability. The
accused may present evidence in his behalf. (3a)
Note: The rule is mandatory. The accused must
be informed of his right to present evidence if he
so desires.
To constitute SEARCHING INQUIRY, the
questioning must focus on:
1. The voluntariness of the plea;
2. Whether the accused understood fully the
consequences of his plea.
3. Whether or not the custodial rights of the
accused were observed (P. vs. Durango,
GR NO. 135428, April 5, 2000).
EFFECT OF IMPROVIDENT PLEA
If the sole basis of the conviction is the
improvident plea, judgment of conviction should
be reversed. However, if there exists sufficient
evidence in the record for his conviction,
conviction should be sustained (P. vs. Petalcorin,
GR O. 65376, Dec.29, 1989).
Section 4. Plea of guilty to non-capital offense;
reception of evidence, discretionary. — When
the accused pleads guilty to a non-capital offense,
the court may receive evidence from the parties to
determine the penalty to be imposed. (4)
GR: As a rule, the unconditional plea of guilty
admits all the allegations in the complaint or
information including all its attendant
circumstances and such, a judgment of conviction
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
can be had without the need of submission of
evidence.
Exceptions: (non-waivable defenses)
1. Lack of jurisdiction;
2. Failure to charge an offense;
3. Prescription of the offense;
4. Defendant would be placed in double
jeopardy.
FAILURE TO CHARGE AN OFFENSE
Where the facts charged in the information do not
state an offense, no conviction thereon can be had
notwithstanding the accused’s plea of guilty (P. vs.
Digoro, 16 SCRA 376).
Section 5. Withdrawal of improvident plea of
guilty. — At any time before the judgment of
conviction becomes final, the court may permit an
improvident plea of guilty to be withdrawn and be
substituted by a plea of not guilty. (5)
Plea of guilty not subject not collateral attack.
INSTANCES OF IMPROVIDENT PLEA
1. Plea of guilty was compelled by violence
or intimidation;
2. The accused did not fully understand the
consequences of his plea;
3. Insufficient information to sustain
conviction;
4. Information does not charge an offense;
5. Court has no jurisdiction.
NOTE: The withdrawal of plea of guilty is not a
matter right but of sound judicial discretion (P. vs.
Lambrino, 103 Phil. 504).
Section 6. Duty of court to inform accused of
his right to counsel. — Before arraignment, the
court shall inform the accused of his right to
counsel and ask him if he desires to have one.
Unless the accused is allowed to defend himself in
person or has employed a counsel of his choice,
the court must assign a counsel de oficio to
defend him. (6a)
DUTIES OF THE COURT WHEN THE ACCUSED
APPEARS WITHOUT COUNSEL (FOUR-FOLD):
1. It must inform the defendant that it is his
right to have an attorney before being
arraigned;
2. After giving such information, the court
must ask him if he desires the aid of an
attorney;
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3. If he desires, but is unable to employ one,
the court shall assign an attorney de oficio
to defend him;
4. If the accused desires to procure an
attorney of his own, he be given
reasonable time therefore.(P. vs. Holgado,
85 Phil. 752 [1950].
Failure of the court to comply with the above
duties is denial of due process.
Presumption of regularity in the performance of
duties does not prevail over the claim that the
accused has failed to appeal because he was not
assisted by counsel (Amar vs. Moscoso, 98 Phil.
115).
Section 7. Appointment of counsel de oficio. —
The court, considering the gravity of the offense
and the difficulty of the questions that may arise,
shall appoint as counsel de oficio only such
members of the bar in good standing who, by
reason of their experience and ability, can
competently defend the accused. But in localities
where such members of the bar are not available,
the court may appoint any person, resident of the
province and of good repute for probity and ability,
to defend the accused. (7a)
NOTES:
1. Private prosecutor disqualified to act as
counsel de oficio.
A private prosecutor who assisted
the prosecution of the case as to
the other co-accused cannot be
appointed as counsel de oficio of
one of the alleged perpetrators
(US vs. Laranja, 21 Phil. 500).
2. Counsel de officio need not be a choice of
the accused (US vs. Laranja, supra).
Duties of the court during arraignment and
duties during trial distinguished
The court has the affirmative duty to inform the
accused of his right to counsel during the
arraignment. While on the trial, it is for the
accused to assert his right to counsel (US vs.
Binajoh, 35 Phil. 23).
Otherwise stated, in arraignment, the presumption
that official duties are regularly performed may not
apply. While on trial, the presumption applies. The
right to counsel is non-waivable on arraignment
BUT is waivable on trial by his silence or failure to
assert his right.
3. Reluctance of counsel de oficio does not
amount to denial of right to counsel.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
As long as the counsel de oficio
duly performed his duties, lack of
sympathy to the defendant’s
cause does not deny the accused
the right to counsel (P. vs. Prieto,
80 Phil. 138).
4. Right to counsel substantially satisfied
even where the counsel de oficio
appeared only after trial has commenced
as long as he was given the right to cross-
examine the witnesses of the prosecution
(US vs. Ramirez, 26 Phil. 616).
5. Right to counsel de parte during
arraignment is not absolute.
6. Right to counsel during trial may be
waived. It must be raised before the trial
court. Otherwise, it may not be raised for
the first time on appeal.
7. Duty of the court during arraignment does
not include information as to the (duration)
penalty for the offense.
Section 8. Time for counsel de oficio to prepare
for arraignment. — Whenever a counsel de oficio
is appointed by the court to defend the accused at
the arraignment, he shall be given a reasonable
time to consult with the accused as to his plea
before proceeding with the arraignment. (8)
Note: What is reasonable is dependent upon
various circumstances like the gravity of the
offense, complexity of the allegations, etc.
Section 9. Bill of particulars. — The accused
may, before arraignment, move for a bill of
particulars to enable him properly to plead and to
prepare for trial. The motion shall specify the
alleged defects of the complaint or information and
the details desired. (10a)
NOTE: The remedy against an indictment which
that fails to allege the time of the commission of
the crime with sufficient definiteness is a motion
for a bill of particulars, not motion to quash
(Rocaberte vs. P., 193 SCRA 152 [1991].
Bill of particulars available to specify the age of
the minor below 12 years of age, which is
different from a minor 7 years of age, who is
raped. (P. vs. Fuertes, 296 SCRA 602 [1998].
Failure to ask for bill of particulars amounts to
waiver of right (P. vs. Gutierrez, 91 Phil. 876).
Section 10. Production or inspection of
material evidence in possession of
prosecution. — Upon motion of the accused
showing good cause and with notice to the parties,
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the court, in order to prevent surprise,
suppression, or alteration, may order the
prosecution to produce and permit the inspection
and copying or photographing of any written
statement given by the complainant and other
witnesses in any investigation of the offense
conducted by the prosecution or other
investigating officers, as well as any designated
documents, papers, books, accounts, letters,
photographs, objects or tangible things not
otherwise privileged, which constitute or contain
evidence material to any matter involved in the
case and which are in the possession or under the
control of the prosecution, police, or other law
investigating agencies. (11a)
Note: modes of discovery are available in
Preliminary Investigation (Web vs. De Leon, 247
SCRA 653 [1995].
Discovery; Production and Inspection (2009) No.XI.A.
The accused in a criminal case has the right to avail of
the various modes of discovery. SUGGESTED ANSWER:
TRUE. The accused has the right to move for the
production or inspection of material evidence in the
possession of the prosecution. It authorizes the
defense to inspect, copy or photograph any evidence
of the prosecution in its possession after obtaining
permission from the court (Rule 116, Sec. 10; Webb
vs. De Leon, 247 SCRA 652 [1995]). ALTERNATIVE
ANSWER: FALSE. The accused in criminal case only
has the right to avail of conditional examination of
his witness before a judge, or, if not practicable, a
member of a Bar in good standing so designated by
the judge in the order, or if the order be made by a
court of superior jurisdiction, before an inferior court
to be designated therein. (sec.12 &13, Rule 119).
Modes of discovery under civil actions does not apply
to criminal proceedings because the latter is primarily
governed by the REVISED RULES OF CRIMINAL
PROCEDURE (Vda. de Manguerravs Risos – 563 SCRA
499).
Section 11. Suspension of arraignment. —
Upon motion by the proper party, the arraignment
shall be suspended in the following cases:
(a) The accused appears to be suffering
from an unsound mental condition
which effectively renders him unable to
fully understand the charge against him
and to plead intelligently thereto. In such
case, the court shall order his mental
examination and, if necessary, his
confinement for such purpose;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(b) There exists a prejudicial question;
and
(c) A petition for review of the resolution
of the prosecutor is pending at either the
Department of Justice, or the Office of the
President; provided, that the period of
suspension shall not exceed sixty (60)
days counted from the filing of the petition
with the reviewing office. (12a)
Other incidents that may suspend the period
of arraignment:
1. Pendency of a motion to quash;
2. Motion for bill of particulars;
3. Motion for inhibition of judge.
Note: Petition for Review in the Office of the
President only in cases of which the imposable
penalty is non-bailable.
Bar Exam Question 2012
12. An accused may move for the suspension
of his arraignment if:
a. a motion for reconsideration is pending
before the investigating prosecutor.
b. accused is bonded and his bondsman
failed to notify him of his scheduled
arraignment.
c. a prejudicial question exists.
d. there is no available public attorney.
SUGGESTED ANSWER:
(c), Under Section 11, Rule 116 of the
Rules of Criminal Procedure, upon motion
of the proper party, the arraignment shall
be suspended in the following cases: (a)
The accused appears to be suffering from
an unsound mental condition which
effectively renders him unable to fully
understand the charge against him and to
plead intelligently thereto. In such case,
the court shall order his mental
examination and, if necessary, his
confinement for such purpose; (b) There
exists a prejudicial question; and (c) A
petition for review of the resolution of the
prosecutor is pending at either the
Department of Justice, or the Office of the
President; provided that the period of
suspension shall not exceed sixty (60)
days counted from the filing of the
petition with the reviewing office. (Rule
116, Sec. 11, Rules of Court).
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RULE 117
Motion to Quash
MOTION TO QUASH
It is a special pleading filed by the defendant
before entering his plea, which hypothetically
admits the truth of the facts spelled out in the
complaint or information at the same time that it
sets up a matter which, if duly proved, would
preclude further proceedings.
The court in resolving the motion cannot consider
facts contrary to those alleged in the information
or which do not appear on the face of the
information, except those admitted by the
prosecution.
GR: The accused may move to quash the
complaint or information at any time BEFORE
entering his plea.
Exceptions: (non-waivable)
1. Failure to charge an offense;
2. Lack of jurisdiction over the offense
charged;
3. Extinction (prescription)of the offense or
penalty;
4. Defendant would be placed in double
jeopardy.
Section 1. Time to move to quash. — At any
time before entering his plea, the accused may
move to quash the complaint or information. (1)
Section 2. Form and contents. — The motion to
quash shall be in writing, signed by the accused
or his counsel and shall distinctly specify its
factual and legal grounds. The court shall
consider no ground other than those stated in the
motion, except lack of jurisdiction over the offense
charged. (2a)
NOTE: A motion to suspend the issuance of
warrant of arrest is considered motion to quash
where the allegations in the motion sufficiently
alleges that the information does not charge an
offense. The allegations contained in the body of
the motion is controlling not the caption or title of
the motion (P. vs. Matondo, 1 SCRA 534).
RESOLUTION OF A MOTION TO QUASH
A motion to quash must be resolved BEFORE
the trial and cannot defer the hearing and the
determination of said motion until trial on the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
merits as it would impair the right of the accused
to speedy trial.
Bar Exam Question 2012
43. Which of the following statements is
incorrect?
a. A Motion to Quash which is granted is a
bar to the prosecution for the same offense if
the criminal action or liability has been
extinguished.
b. In the Court of Appeals, the accused may
file a motion for
new trial based only on newly discovered
evidence.
c. A demurrer to evidence may be filed
without leave of court in a criminal case.
d. None of the above.
SUGGESTED ANSWER: (d), A Motion to
Quash which is granted is a bar to the
prosecution for the same offense if the
criminal action or liability has been
extinguished. (Rule 117, Sec.6 in relation
to Section3). In the Court of Appeals, the
accused may file a motion for new trial
based only on newly discovered evidence.
(Rule 53, Sec. 1, Rules of Court). A
demurrer to evidence may be filed without
leave of court in criminal case. (Rule 119,
Sec. 23, Rules of Court).
Section 3. Grounds. — The accused may move
to quash the complaint or information on any of
the following grounds:
(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;
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(h) That it contains averments which, if true, would
constitute a legal excuse or justification; and
(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. (3a)
Information; Motion to Quash (2005)
Rodolfo is charged with possession of unlicensed
firearms in an Information filed in the RTC. It was
alleged therein that Rodolfo was in possession of two
unlicensed firearms: a .45 caliber and-a .32 caliber.
Under Republic Act No. 8294, possession of an
unlicensed .45 caliber gun is punishable by prision
mayor in its minimum period and a fine of P30.000.00,
while possession of an unlicensed .32 caliber gun is
punishable by prision correctional in its maximum
period and a fine of not less than P15,000.00. As
counsel of the accused, you intend to file a motion to
quash the Information. What ground or grounds
should you invoke? Explain. (4%)
SUGGESTED ANSWER:
The ground for the motion to quash is that more than
one offense is charged in the information. (Sec. 3[f], Rule
117, 2000 Rules of Criminal Procedure) Likewise, the RTC has
no jurisdiction over the second offense of possession
of an unlicensed .32 caliber gun, punishable by prision
correctional in its maximum period and a fine of not
less than P15.000.00. It is the MTC that has exclusive
and original jurisdiction over all offenses punishable by
imprisonment not exceeding six years. (Sec. 2, R.A. No.
7691, amending B.P. Blg. 129)
Information; Motion to Quash (2009) No.XVI.B. A
criminal information is filed in court charging Anselmo
with homicide. Anselmo files a motion to quash
information on the ground that no preliminary
investigation was conducted. Will the motion be
granted? Why or why not? SUGGESTED ANSWER: NO,
the motion to quash will not be granted. The lack of
preliminary investigation is not a ground for a motion
to quash under the Rules of Criminal Procedure.
Preliminary investigation is only a statutory right and
can be waived. The accused should instead file a
motion for reinvestigation within five (5) days after
he learns of the filing in Court of the case against him
(Sec. 6, Rule 112, as amended).
Information; Motion to Quash; Grounds (1998)
1 Give two (2) grounds to quash an Information.[2%]
2 If the Information is not accompanied by a
certification that a preliminary investigation has been
conducted. Is the Information void? [3%]
SUGGESTED ANSWER:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
1. Two grounds to quash an Information are:
a) That the facts charged do not constitute an offense;
and
b) That the court trying the case has no jurisdiction
over the offense charged or the person of the accused.
c) That the officer who filed the information had no
authority to do so;
d) That it does not conform substantially to the
prescribed form;
e) That more than one offense is charged except in
those cases in which existing laws prescribe a single
punishment for various offenses;
f) That the criminal action or liability has been
extinguished;
g) That it contains averments which, if true, would
constitute a legal excuse or justification; and
h) That the accused has been previously convicted or
in jeopardy of being convicted, or acquitted of the
offense charged. (Sec. 3, Rule 117. Rules of Criminal Procedure.)
SUGGESTED ANSWER:
2. No. The certification which is provided in Sec. 4,
Rule 112. Rules of Criminal Procedure, is not an
indispensable part of the information. (People vs.
Lapura, 255 SCRA 85.)
Information; Motion to Quash (2009)
No.IV. Pedrito and Tomas, Mayor and
Treasurer, respectively, of the Municipality of
San Miguel, Leyte, are charged before the
Sandiganbayan for violation of Section 3(e),
RA no. 3019 (Anti-Graft and Corrupt
Practices Act). The information alleges,
among others, that the two conspired in the
purchase of several units of computer
through personal canvass instead of a public
bidding, causing undue injury to the
municipality. Before arraignment, the
accused moved for reinvestigation of the
charge, which the court granted. After
reinvestigation, the Office of the Special
Prosecutor filed an amended information
duly singed and approved by the Special
Prosecutor, alleging the same delictual facts,
but with an additional allegation that the
accused gave unwarranted benefits to SB
enterprises owned by Samuel. Samuel was
also indicted under the amended
information. Before Samuel was arraigned,
he moved to quash the amended information
on the ground that the officer who filed had
no authority to do so. Resolve the motion to
quash with reasons. SUGGESTED ANSWER:
The motion to quash filed by Samuel
should be granted. There is no showing
that the special prosecutor was duly
authorized or deputized to prosecute
Samuel. Under R.A. No. 6770, also known
as the Ombudsman Act of 1989, the
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Special Prosecutor has the power and
authority, under the supervision and
control of the Ombudsman, to conduct
preliminary investigation and prosecute
criminal cases before the Sandiganbayan
and perform such other duties assigned to
him by the Ombudsman (Calingin vs.
Desierto, 529 SCRA 720 [2007]). Absent a
clear delegation of authority from the
Ombudsman to the Special Prosecutor to
file the information, the latter would have
no authority to file the same. The Special
Prosecutor cannot be considered an alter
ego of the Ombudsman as the doctrine of
qualified political agency does not apply
to the office of the Ombudsman. In fact,
the powers of the office of the Special
Prosecutor under the law may be exercised
only under the supervision and control
and upon authority of the Ombudsman
(Perez vs. Sandiganbayan, 503 SCRA 252
[2006]).
ALTERNATIVE ANSWER:
The motion to quash should be denied for
lack of merit. The case is already filed in
court which must have been done with the
approval of the Ombudsman, and thus the
Special Prosecutor‟s office of the
Ombudsman takes over. As it is the court
which ordered the reinvestigation, the
Office of the Special Prosecutor which is
handling the case in court, has the
authority to act and when warranted,
refile the case. The amendment made is
only a matter of form which only
particularized the violation of the same
provision of Rep. Act 3019, as amended.
Information; Motion to Quash (2000)
BC is charged with illegal possession of firearms under
an Information signed by a Provincial Prosecutor.
After arraignment but before pre-trial, BC found out
that the Provincial Prosecutor had no authority to sign
and file the information as it was the City Prosecutor
who has such authority. During the pre-trial, BC
moves that the case against him be dismissed on the
ground that the Information is defective because the
officer signing it lacked the authority to do so. The
Provincial Prosecutor opposes the motion on the
ground of estoppel as BC did not move to quash the
Information before arraignment. If you are counsel for
BC, what is your argument to refute the opposition of
the Provincial Prosecutor? (5%)
SUGGESTED ANSWER:
I would argue that since the Provincial Prosecutor had
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
no authority to file the information, the court did not
acquire jurisdiction over the person of the accused and
over the subject matter of the offense charged. (Cudia
v. Court of Appeals, 284 SCRA 173 [1999]). Hence, this
ground is not waived if not raised in a motion to quash
and could be raised at the pretrial. (Sec. 8, Rule 117, Rules of
Court).
NOTES:
1. Matters of defense not a proper ground for
motion to quash (P. vs. Miranda, 2 SCRA
261 [1961]). EXCEPTION: Extinction of
criminal liability; prescription; and former
jeopardy.
Affidavit of desistance is not a
ground for Motion to Quash. But it
may be a ground for dismissal
(Demurrer to evidence), for
absence of evidence by the State
(Review Lecture).
2. Fatally defective information is not
necessarily void when not objected to
during trial and supplemented by
competent proof (P. vs. Belga, 100 Phil.
996 [1957]).
Note: substantial defects in the
information that would jeopardize the right
to be informed of the nature and cause of
accusations against the accused is not
cured by evidence (IIo, et al. vs. CA, 108
Phil. 938 [1960]).
Trial tip: when the information does not
charge an offense, do not file a motion to
quash, but go to trial because the
prescriptive period will not be suspended
if the information is void (Atty. Ucat)
3. For discussion on jurisdiction, please refer
to explanations found elsewhere in this
work.
4. Jurisdiction over the person of the
accused is obtained:
a) When he was arrested;
b) When he submits voluntarily to
the jurisdiction of the court.
Note: It has been held that a
motion to quash on the ground of
lack of jurisdiction over the person
of the accused must be solely on
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based on this ground. The
inclusion of other grounds is
deemed to be a submission to the
courts jurisdiction (Sanchez vs.
Demetriou, GR NO. 111771-77,
Nov. 9, 1993).
The rule is different in civil cases
because of the Omnibus Motion
Rule.
5. Want of authority of the officer filing the
information.
A fiscal is without authority to file
information outside its territorial
jurisdiction (Cudia vs. CA, GR NO.
110315, Jan. 16, 1998).
Lack of authority of the person filing the
information cannot be cured by silence,
acquiescence, even by express consent.
The general rule is that if defendant enters
a plea before filing a motion to quash, all
objections to the information in so far as
formal objections are deemed waived. A
valid complaint is a requisite for the court
to acquire jurisdiction over the case. A
valid information is one which is signed
and filed by a competent(authorized)
person. Hence, lack of authority of the
person who filed the information may be
raised at any stage of the proceedings
being intimately connected with the
jurisdiction of the court (Villa vs. Ibañez,
88 Phil. 402).
Lack of authority may not be cured by
amendment of the information (Cruz, Jr.
vs. Sandiganbayan, 194 SCRA 474
[1991]).
6. Formal defects not prejudicial to the
substantial rights of the accused will not
be sustained as ground for quashing the
information. The proper procedure is for
the court to order the amendment of the
information pursuant to sec. 4, Rule 117.
7. Duplicity of offenses charged.
Failure to move for the quashal of the
information on the ground of duplicity of
offenses before arraignment is deemed
waiver of the defect. Hence, the accused
can be convicted of crimes as charged
and proved on trial (P. vs. Errojo, 229
SCRA 49 [1994]).
REASON FOR THE RULE: To give the
defendant the necessary knowledge of the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
charge so as to enable him to prepare his
defense (P. vs. Ferrer, L-8957, April 29,
1957).
8. Grounds for extinction of criminal liability.
Art. 89. How criminal liability is totally
extinguished. — Criminal liability is totally
extinguished:
1. By the death of the convict, as to the
personal penalties and as to pecuniary
penalties, liability therefor is extinguished
only when the death of the offender occurs
before final judgment.
2. By service of the sentence;
3. By amnesty, which completely extinguishes
the penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as
provided in Article 344 of this Code.
NOTE: These grounds are EXCLUSIVE in
character.
Accordingly, it was held that lack of preliminary
investigation is not a ground for a motion to quash,
not only because it is not stated in the rules as
one of the grounds, but also because lack of PI
does not impair the validity of the information,
does not render it otherwise defective and does
not affect the jurisdiction of the court over the case
(P. vs. Yutila, 102 SCRA 264).
a. Death of one of the co-accused does not
cause the dismissal of the criminal action
(US vs. De La Torre and Gregorio, 25
Phil. 36).
b. Death of offended party generally does
not affect or bar the prosecution of the
case. The real offended party in a public
offense is the state.
However, with respect to crimes which
cannot be prosecuted de oficio
(adultery/concubinage) death of the
offended party BEFORE the institution of
the action BARS the further prosecution of
the case. Note that such does not
extinguished the criminal liability but only
constitute a procedural bar for the
prosecution of the case.
c. Partial extinction of criminal liability:
 By conditional pardon;
 Commutation of sentence;
 Good conduct allowance (art. 94,
RPC).
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 Parole.
d. Effect of pardon by the offended party
9. Amnesty completely extinguishes penalty and
its effect (Republic vs. Vera, 182 SCRA 800 Art. 344, RPC. Prosecution of the crimes of
[1990]). adultery, concubinage, seduction, abduction,
rape and acts of lasciviousness. — The crimes of
a. Amnesty may be proved even if not
pleaded (P. vs. Macadaeg, 91 Phil. 410).
adultery and concubinage shall not be prosecuted
b. Pardon and amnesty distinguished. except upon a complaint filed by the offended
spouse.
PARDON AMNESTY
Pardon is granted Proclamation by the The offended party cannot institute criminal
by the Chief Chief Executive and prosecution without including both the guilty
Executive concurrence of
parties, if they are both alive, nor, in any case, if
Congress
Must be pleaded Need not be alleged he shall have consented or pardoned the
and proved (private and proved (public offenders.
act of the act which the courts
president) can take judicial The offenses of seduction, abduction, rape or acts
notice) of lasciviousness, shall not be prosecuted except
Can be granted
upon a complaint filed by the offended party or
Pardon is granted generally at any
only after final time even before her parents, grandparents, or guardian, nor, in
conviction prosecution is any case, if the offender has been expressly
commenced or after pardoned by the above named persons, as the
conviction case may be.
Generally available Generally granted
to any class of to persons who are
In cases of seduction, abduction, acts of
crimes guilty of political
offenses lasciviousness and rape, the marriage of the
Pardon looks offender with the offended party shall extinguish
forward and Looks backwards the criminal action or remit the penalty already
relieves the and abolishes and imposed upon him. The provisions of this
offender from the puts into oblivion paragraph shall also be applicable to the co-
imposition of the the offense itself
principals, accomplices and accessories after the
penalty but does and the person
not work for the stands before the fact of the above-mentioned crimes.
restoration of the law as though he
rights to hold public had committed no Art. 266-C, RPC. Effect of Pardon—The
office, or the right crime subsequent valid marriage between the offender
of suffrage, and and the offended party shall extinguish the
other vestiges of
the crime (like
criminal action or the penalty imposed.
moral turpitude)
unless expressly In case it is the legal husband who is the offender,
remitted in the the subsequent forgiveness by the wife as the
pardon) offended party shall extinguish the criminal action
or the penalty: Provided, That the crime shall not
The grant of pardon to one of the persons
be extinguished or the penalty shall not be
convicted of the offense does not necessarily
inure to the benefit of the other (US vs. Guarin, 30 abated if the marriage be void ab initio (RA 8353).
Phil. 85).
Note: however, if multiple rapes are committed,
c. The person granted conditional pardon marriage of one of the defendants extinguishes
must STRICTLY comply with the terms of the latter’s liability and that of his accessories or
the pardon. The same is a contract accomplices for a single crime of rape only and
between him and the Chief Executive. If cannot extend to other separate acts of rape; each
he violates the conditions, art. 159, RPC carnal act constitutes a separate and distinct
shall be applied to him. crime of rape (P. vs. Bernardo, 38 OG 3479).

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 427

________________________________________________________________________________________________
Jurisdiction; Finality of a Judgment (2005)
Mariano was convicted by the RTC for raping Victoria
and meted the penalty of reclusion perpetua. While
serving sentence at the National Penitentiary, Mariano
and Victoria were married. Mariano filed a motion in
said court for his release from the penitentiary on his
claim that under Republic Act No. 8353, his marriage
to Victoria extinguished the criminal action against
him for rape, as well as the penalty imposed on him.
However, the court denied the motion on the ground
that it had lost jurisdiction over the case after its
decision had become final and executory. (7%)
a) Is the filing of the court correct? Explain.
SUGGESTED ANSWER:
No. The court can never lose jurisdiction so long as its
decision has not yet been fully implemented and
satisfied. Finality of a judgment cannot operate to
divest a court of its jurisdiction. The court retains an
interest in seeing the proper execution and
implementation of its judgments, and to that extent,
may issue such orders necessary and appropriate for
these purposes. (Echegaray v. Secretary of Justice, G.R.
No. 13205, January 19, 1999)
b) What remedy/remedies should the counsel of
Mariano take to secure his proper and most
expeditious release from the National Penitentiary?
Explain.
SUGGESTED ANSWER:
To secure the proper and most expeditious release of
Mariano from the National Penitentiary, his counsel
should file: (a) a petition for habeas corpus for the
illegal confinement of Mariano (Rule 102), or (b) a
motion in the court which convicted him, to nullify the
execution of his sentence or the order of his
commitment on the ground that a supervening
development had occurred (Melo v. People, G.R. No. L-
3580, March 22, 1950) despite the finality of the
judgment.
10. Prescription is the loss of the state of the
right to prosecute the crime or to demand the
service of the penalty imposed.
(the following are pertinent RPC provisions):
Art. 90. Prescription of crime. — Crimes
punishable by death, reclusion perpetua or
reclusion temporal shall prescribe in twenty
years.
Crimes punishable by other afflictive penalties
shall prescribe in fifteen years.
Those punishable by a correctional penalty shall
prescribe in ten years; with the exception of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
those punishable by arresto mayor, which shall
prescribe in five years.
The crime of libel or other similar offenses shall
prescribe in one year.
The crime of oral defamation and slander by deed
shall prescribe in six months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound
one, the highest penalty shall be made the basis
of the application of the rules contained in the
first, second and third paragraphs of this article.
(As amended by RA 4661, approved June 19,
1966).
Art. 91. Computation of prescription of offenses.
— The period of prescription shall commence to
run from the day on which the crime is
discovered by the offended party, the authorities,
or their agents, and shall be interrupted by the
filing of the complaint or information, and shall
commence to run again when such proceedings
terminate without the accused being convicted or
acquitted, or are unjustifiably stopped for any
reason not imputable to him.
The term of prescription shall not run when the
offender is absent from the Philippine
Archipelago.
Art. 92. When and how penalties prescribe. — The
penalties imposed by final sentence prescribe as
follows:
1. Death and reclusion perpetua, in
twenty years;
2. Other afflictive penalties, in fifteen
years;
3. Correctional penalties, in ten years;
with the exception of the penalty of
arresto mayor, which prescribes in five
years;
4. Light penalties, in one year.
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Art. 93. Computation of the prescription of
penalties. — The period of prescription of
penalties shall commence to run from the date
when the culprit should evade the service of his
sentence, and it shall be interrupted if the
defendant should give himself up, be captured,
should go to some foreign country with which this
Government has no extradition treaty, or should
commit another crime before the expiration of
the period of prescription.
OTHERS:
Computation of prescriptive period of violations of
special laws.
The applicable law is Act No. 3326.
Prescription shall begin to run from the
day of the commission of the violation of
the law, and if the same be not known at
the time, from discovery thereof. It is
interrupted only by institution of judicial
proceedings for its investigation and
punishment (Zaldivia vs. Reyes, 211
SCRA 277 [1992]).
Illegal Recruitment is deemed discovered only
when the complainant learned that the recruiter is
without authority or license.
Period of prescription under the Anti- Graft Law is
from time of discovery and not from time of
commission
Note: where the accused has been found to have
committed a lesser offense included in the offense
charged, he cannot be convicted of the lesser
offense if at the time of the filing of the greater
offense, the lesser offense had already
prescribed. To hold otherwise would be to allow
circumvention of the law on prescription by simple
and expedient way of filing a graver offense which
includes the lesser offense( Francisco vs. CA, 122
SCRA 538).
Prescription is interrupted even if there is lack of
jurisdiction (Cruz, et al. vs. Enrile, GR NO. 75983,
April 15, 1988).
The rule on constructive notice in civil cases is
applicable in criminal cases. In a prosecution of
Falsification of a public document, the prescriptive
period commences to run from the period the
alleged forged document was registered with the
Register of Deeds. Registration is a constructive
notice to the whole world (P. vs. Villalon, 192
SCRA 521 [1990]).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
BUT note, however, in a prosecution of the crime
of Bigamy, period of prescription commenced to
run only upon the discovery of the bigamous
marriage contracted by the accused and NOT
from the time the marriage is recorded in the civil
registry (Sermonia vs. CA, 233 SCRA 155 [1994]).
Reason: The registration of the marriage is not for
the validity of the marriage.
Prescription of continuing crimes runs only from
the time such acts constituting the offense had
ceased to exist.
a. For unlawful solicitation; computed from
the latest act (P. vs. Castañeda, 187
SCRA 148 [1990]).
b. Rebellion when such rebellion had ceased
to exist.
Prescription of crime does not necessarily
extinguish civil liability.
Note: The state is not barred by prescription,
laches, or estoppel in recovering unlawfully
acquired public property (art. XI, sec. 15,
Constitution)
Where the last day of the prescriptive period for
filing an information is a Sunday or a legal holiday,
the information can no longer be filed on the next
working day. The remedy is for the prosecutor to
file the information on the last working day before
criminal offense prescribes (Yapdiangco vs.
Buencamino, 122 SCRA 713 [1983]).
Note: crimes punished under RA 9851
“Philippine Act on Crimes Against
Humanitarian Law, Genocide, and other
Crimes Against Humanity”, does not prescribe
(sec. 11).
Section 4. Amendment of the complaint or
information. — If the motion to quash is based on
an alleged defect of the complaint or information
which can be cured by amendment, the court shall
order that an amendment be made. (4a)
If it is based on the ground that the facts charged
do not constitute an offense, the prosecution shall
be given by the court an opportunity to correct the
defect by amendment. The motion shall be
granted if the prosecution fails to make the
amendment, or the complaint or information still
suffers from the same defect despite the
amendment. (n)
NOTE: When the original complaints states a
cause of action, but does it so imperfectly, and
afterwards an amended complaint is filed,
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________________________________________________________________________________________________
correcting the defect, the plea of prescription will
relate to the time of the filing of the original
complaint.
Bar Exam Question 2013
IX. Which of the following distinguishes a
motion to quash from a demurrer to
evidence? (1%)
(A) A motion to quash a complaint or
information is fi led before the prosecution
rests its case. (B) A motion to quash may be
fi led with or without leave of court, at the
discretion of the accused. (C) When a motion
to quash is granted, a dismissal of the
case will not necessarily follow. (D) The
grounds for a motion to quash are also
grounds for a demurrer to evidence. (E) The
above choices are all wrong. SUGGESTED
ANSWER: (C), Under Section 4 of Rule 117,
if the motion to quash is based on an
alleged defect of the complaint or
information which can be cured by
amendment, the court shall order that an
amendment be made. If it is based on the
ground that the facts charged do not
constitute an offense, the prosecution
shall be given by the court an opportunity
to correct the defect by amendment. The
motion shall be granted if the prosecution
fails to make the amendment, or the
complaint or information still suffers from
the same defect despite the amendment.
Section 5 of Rule 117 also provides that if
the motion to quash is sustained, the
court may order that another complaint or
information be filed except as provided in
section 6 of this rule. If the order is made,
the accused, if in custody, shall not be
discharged unless admitted to bail. If no
order is made nor if having been made, no
new information is filed within the time
specified in the order or within such
further time as the court may allow for
good cause, the accused, if in custody,
shall be discharged unless he is also in
custody for another charge.
Section 5. Effect of sustaining the motion to
quash. — If the motion to quash is sustained, the
court may order that another complaint or
information be filed except as provided in section
6 of this rule. If the order is made, the accused, if
in custody, shall not be discharged unless
admitted to bail. If no order is made or if having
been made, no new information is filed within the
time specified in the order or within such further
time as the court may allow for good cause, the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
accused, if in custody, shall be discharged unless
he is also in custody for another charge. (5a)
EFFECT IF THE COURT SUSTAINS THE
MOTION TO QUASH
1. If the ground of the motion is either
a. The facts charged do not
constitute an offense;
b. That the officer who filed the
information had no authority to do
so;
c. That it does not conform to the
prescribed form;
d. That more than one offense is
charged
The court may order that another information be
filed or an amendment thereof be made, within a
definite period. If such order is not made, or if
having been made, another information is not
filed within the time specified in the order, or within
such time as the court may allow, the accused, if
in custody shall be discharged, unless he is also in
custody of some other charge.
2. If the motion to quash is sustained on any
of the following grounds:
a. That criminal action or liability has
been extinguished;
b. That it contains averments, which
if true, would constitute a legal
excuse or justification;
c. That the accused has been
previously convicted or acquitted
of the offense charged.
The court must state, in its 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
3. If the ground upon which the motion to
quash is sustained is that the court has no
jurisdiction over the offense charged, the
better practice is for the court to remand
or forward the case to the proper court,
not to quash the complaint or information.
Note: The prosecution may elevate to the higher
courts an order granting a motion to quash. The
accused would not be placed in double jeopardy
because there has been no arraignment yet.
PROCEDURE IF MOTION TO QUASH IS
DENIED:
1. Accused should plead;
2. Accused should go to trial without
prejudice to the special defenses he
invoked in the motion;
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________________________________________________________________________________________________
3. Appeal from the judgment of conviction
and assign as one of the errors the denial
of the motion to quash.
An order denying a motion to quash is not
appealable.
Appeal in due time, as the proper remedy, implies
a previous conviction as a result of a trial on the
merits of the case and does not apply to an
interlocutory order denying the motion to quash. If
the court, in denying the motion, acts without or in
excess or with grave abuse of discretion, then
certiorari or prohibition will lie (Newsweek Inc. vs.
IAC, 142 SCRA 443).
On the other hand, if the motion to quash is
granted, the order to that effect is a final order, not
merely interlocutory, and is, therefore, appealable
at once (Milo vs. Salonga, 152 SCRA 113).
Section 6. Order sustaining the motion to
quash not a bar to another prosecution;
exception. — An order sustaining the motion to
quash is not a bar to another prosecution for the
same offense unless the motion was based on the
grounds specified in section 3 (g) and (i) of this
Rule. (6a)
The exceptions are:
1. The motion was based on the ground that
the criminal action or liability has been
extinguished;
2. (Double jeopardy) 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.
Section 7. Former conviction or acquittal;
double jeopardy. — When an accused has been
convicted or acquitted, or the case against him
dismissed or otherwise terminated without his
express consent by a court of competent
jurisdiction, upon a valid complaint or information
or other formal charge sufficient in form and
substance to sustain a conviction and after the
accused had pleaded to the charge, the conviction
or acquittal of the accused or the dismissal of the
case shall be a bar to another prosecution for the
offense charged, or for any attempt to commit the
same or frustration thereof, or for any offense
which necessarily includes or is necessarily
included in the offense charged in the former
complaint or information.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
However, the conviction of the accused shall not
be a bar to another prosecution for an offense
which necessarily includes the offense charged in
the former complaint or information under any of
the following instances:
(a) the graver offense developed due to
supervening facts arising from the same act or
omission constituting the former charge;
(b) the facts constituting the graver charge
became known or were discovered only after
a plea was entered in the former complaint or
information; or
(c) the plea of guilty to the lesser offense was
made without the consent of the prosecutor
and of the offended party except as provided
in section 1 (f) of Rule 116.
In any of the foregoing cases, where the accused
satisfies or serves in whole or in part the
judgment, he shall be credited with the same in
the event of conviction for the graver offense. (7a)
NOTES:
Section 21, art. III, 1987 Constitution. No
person shall be twice put in jeopardy of
punishment for the same offense. If an act is
punished by a law and an ordinance,
conviction or acquittal under either shall
constitute a bar to another prosecution for
the same act.
REQUISITES FOR DOUBLE JEOPARDY:
1. First jeopardy must have attached prior to
the second;
2. The first jeopardy must have been validly
terminated;
3. The second jeopardy must be for the
same offense, or the second offense
includes or is necessarily included in the
offense charged on the first information or
an attempt or frustration to commit the
same (P. vs. Bocar, 138 SCRA 169).
Bar Exam Question 2011
(52) The accused was convicted for estafa
thru falsification of public document filed by
one of two offended parties. Can the other
offended party charge him again with the
same crime? (A) Yes, since the wrong done
the second offended party is a separate
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________________________________________________________________________________________________
crime. (B) No, since the offense refers to
the same series of act, prompted by one
criminal intent. (C) Yes, since the second
offended party is entitled to the vindication of
the wrong done him as well. (D) No, since the
second offended party is in estoppel, not
having joined the first criminal action.
Actions; Commencement of an Action; Double Jeopardy
(2004)
SPO1 CNC filed with the MTC in Quezon City
(MeTCQC) a sworn written statement duly subscribed
by him, charging RGR (an actual resident of Cebu
City) with the offense of slight physical injuries
allegedly inflicted on SPS (an actual resident of
Quezon City). The Judge of the branch to which the
case was raffled thereupon issued an order declaring
that the case shall be governed by the Rule on
Summary Procedure in criminal cases.
Soon thereafter, the Judge ordered the dismissal of the
case for the reason that it was not commenced by
information, as required by said Rule. Sometime later,
based on the same facts giving rise to the slight
physical injuries case, the City Prosecutor filed with the
same MeTC-QC an information for attempted
homicide against the same RGR. In due time, before
arraignment, RGR moved to quash the information on
the ground of double jeopardy and after due hearing,
the Judge granted his motion. Was the dismissal of the
complaint for slight physical injuries proper? Was the
grant of the motion to quash the attempted homicide
information correct? Reason (5%)
SUGGESTED ANSWER:
Yes, the dismissal of the complaint for slight physical
injuries is proper because in Metropolitan Manila and
in chartered cities, the case has to be commenced only
by information. (Sec. 11, Revised Rule on Summary Procedure).
No, the grant of the motion to quash the attempted
homicide information on the ground of double
jeopardy was not correct, because there was no valid
prosecution for slight physical injuries.
Double Jeopardy (2002)
D was charged with slight physical injuries in the
MTC. He pleaded not guilty and went to trial. After
the prosecution had presented its evidence, the trial
court set the continuation of the hearing on another
date. On the date scheduled for hearing, the
prosecutor failed to appear, whereupon the court, on
motion of D, dismissed the case. A few minutes later,
the prosecutor arrived and opposed the dismissal of
the case. The court reconsidered its order and directed
D to present his evidence. Before the next date of trial
came, however, D moved that the last order be set
aside on the ground that the reinstatement of the case
had placed him twice in jeopardy. Acceding to this
motion, the court again dismissed the case. The
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
prosecutor then filed an information in the RTC,
charging D with direct assault based on the same facts
alleged in the information for slight physical injuries
but with the added allegation that D inflicted the
injuries out of resentment for what the complainant
had done in the performance of his duties as chairman
of the board of election inspectors. D moved to quash
the second information on the ground that its filing
had placed him in double jeopardy. How should D’s
motion to quash be resolved? (4%)
SUGGESTED ANSWER:
D’s motion to quash should be granted on the ground
of double jeopardy because the first offense charged is
necessarily included in the second offense charged.
[Draculan v. Donato, 140 SCRA 425 (1985)].
ALTERNATIVE ANSWER:
D’s motion to quash should be denied because the two
dismissals of the case against him were on his motion
(hence with his express consent) and his right to a
speedy trial was not violated.
Double Jeopardy; Upgrading; Original Charges (2005)
For the multiple stab wounds sustained by the victim,
Noel was charged with frustrated homicide in the
RTC. Upon arraignment, he entered a plea of guilty to
said crime. Neither the court nor the prosecution was
aware that the victim had died two days earlier on
account of his stab wounds. Because of his guilty plea,
Noel was convicted of frustrated homicide and meted
the corresponding penalty.
When the prosecution learned of the victim's death, it
filed within fifteen (15) days therefrom a motion to
amend the information to upgrade the charge from
frustrated homicide to consummated homicide. Noel
opposed the motion claiming that the admission of the
amended information would place him in double
jeopardy. Resolve the motion with reasons. (4%)
SUGGESTED ANSWER:
The amended information to consummated homicide
from frustrated homicide does not place the accused in
double jeopardy. As provided in the second paragraph
of Sec. 7, Rule 117,2000 Rules of Criminal Procedure, the
conviction of the accused shall not be a bar to another
prosecution for an offense which necessarily includes
the offense charged in the former complaint or
information when: (a) the graver offense developed
due to supervening facts arising from the same act or
omission constituting the former charge; or (b) the
facts constituting the graver charge became known or
were discovered only after a plea was entered in the
former complaint or information. Here, when the plea
to frustrated homicide was made, neither the court nor
the prosecution was aware that the victim had died
two days earlier on account of his stab wounds.
It is necessary in the first case that:
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1. The complaint or information or other
formal charge was sufficient in form and
substance to sustain a conviction;
2. The court had jurisdiction;
3. The accused had been arraigned and
pleaded; and
4. He was convicted or acquitted or the case
was dismissed without his express
consent.
When all this circumstances are present, they
constitute a BAR to second prosecution for:
1. The same offense;
2. An attempt to commit such offense;
3. A frustration of said offense;
4. Any offense which is necessarily included
or necessarily includes the first offense.
Discussions of the Requisites (for 1st jeopardy)
A. complaint or information must be sufficient
in form and substance:
 See notes on section 1;
 Authority of the person who filed the
complaint or information;
 Effects of defective information;
 Conviction under information which
charges no offense is void (P. vs. Austria,
94 Phil. 897);
 Defective information may be cured by
evidence if no objection (Serra vs.
Mortiga, 11 Phil. 762);
But without prejudice of the right to be
informed of the nature and cause of
accusation.
 Test of jeopardy is the crime charged in
the information and not that proved on
trial. Hence, a person charged of theft but
was acquitted, may subsequently
prosecuted for estafa, the offense proved
in the first case of theft.( P. vs. Magat de
Soriano, 94 Phil. 188);
 Void information or complaint will not
confer jurisdiction to the court to hear the
case (P. vs. Manaba, 58 Phil. 665).
B. Court of competent jurisdiction:
 Jurisdiction is conferred by law and in
some cases, the constitution itself;
 Determined in the allegations;
 Determined, generally at the time of filing
of action;
 Valid complaint/information confers
jurisdiction (P. vs. Jayme, 24 Phil. 90);
 Venue is jurisdictional in criminal cases;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
 Violation of the prosecution’s right to due
process ousts court of jurisdiction (p. VS.
Bocar, 138 SCRA 171);
 Judge must still be in office when
judgment is promulgated (P. vs. Tolentino,
GR NO. 4632 [1938]);
See sec. 9, Rule 135.
 OPEN COURT DOCTRINE (Olaguer vs.
Military Commission, 150 SCRA 144);
C. There must be a valid Arraignment and a
valid plea:
 No double jeopardy where accused is not
validly arraigned (P. vs. Montiero, 192
SCRA 548);
 Mere written manifestation not a valid plea
(Jimenez vs. Military Commission, 102
SCRA 40).
D. Termination of first case; by conviction,
acquittal, and dismissal without express
consent:
 No double jeopardy in PI (Bernarte vs.
SND, 116 SCRA 43);
 Mere filing of two information not basis for
double jeopardy (P. vs. Milflores,115
SCRA 570);
 Dismissal must be definite and
unconditional (P. vs. Jabajab, 100 Phil.
307);
 Dismissal without prejudice to the filing of
another case is not termination (P. vs.
Mogul, 131 SCRA 296 [1984]);
 Dismissal with grave abuse of discretion
amounting to excess of jurisdiction is null
and void and cannot be a basis for plea of
double jeopardy (P. vs. Mogul, supra.);
 Mere grave abuse of discretion (not
amounting to amounting to lack or excess
of jurisdiction) not sufficient to bar
application of double jeopardy (P. vs.
Hernando, 108 SCRA 1221);
 Erroneous dismissal on the ground of
prescription is valid and will not bar the
claim of double jeopardy (P. vs. Onel, GR
NO. L- 8393, April 27, 1956);
 Presence of accused not indispensable in
promulgation but may however, lose the
remedies provided by the rules (sec. 6,
Rule 120);
 Judge who rendered the decision must
still be in office (P. vs. So, L-8732, July
30, 1957);
 Judgment must be promulgated in its
entirety. If no promulgation, there is also
no double jeopardy (Dizon vs. Lopez, 278
SCRA 143);
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Note: Reading of the dispositive
portion is not enough. However, in
case if very lengthy judgments, upon
motion, promulgation may be limited
to the dispositive portion only.
 Silence does not mean consent (P. vs.
Ylagan, 58 Phil. 851);
Note: but a notation of “No Objection” at
the bottom of the prosecution’s motion to
dismiss constitutes an express consent
(Pendatun vs. Aragon, 93 Phil. 798).
 An appeal by the private complainant on
the civil aspect of a criminal case, of
which the accused is acquitted, does not
put the accused in double jeopardy
(Manantan vs. CA, L-107125, Jan. 29,
2001).
The discharge of a defendant on a PI is not such
an adjudication as will bar subsequent prosecution
of the offense. The accused is not yet arraigned
on PI.
DISMISSAL VS. ACQUITTAL
Acquittal is always based on the merits, that is
the defendant is acquitted because the evidence
does not show defendant’s guilt beyond
reasonable doubt; but dismissal does not decide
the case on the merits or that the defendant is not
guilty.
If an act is punished by two provisions of law or
statutes, but each provision requires proof of an
additional fact which the other does not require,
NEITHER conviction nor acquittal in one will bar a
prosecution for the other (Perez vs. CA, 163
SCRA 236).
Examples (no double jeopardy):
1. Estafa and violation of BP 22 (P. vs.
Reyes, 228SCRA13);
2. Selling mortgage property (Act 1506) and
estafa for selling mortgaged property as
free from encumbrance (P. vs. Alvarez,
45 Phil. 472);
3. Illegal fishing and illegal possession of
explosives (P vs. Acierto, 95 Phil. 865);
4. Alarm and scandal and discharge of
firearm (P. vs. Doriquiez, 24 SCRA 164);
5. Illegal possession and theft (P. vs.
Remerata, 98 Phil. 413);
6. Illegal possession and carrying firearm
outside residence without permit (P. vs.
Bacani, 120 SCRA 271);
7. Consented abduction and qualified
seduction (Perez vs. CA, GR NO. 80838,
Nov. 29, 1988).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
8. Separate offenses under RPC.
TEST FOR DETRMINING WHETHER THE
OFFENSES ARE IDENTICAL
A. SAME OFFENSE TEST
There is identity between two offenses not
only when the 2nd offense is exactly the
same as the first, but also when the 2nd
offense is an attempt or frustration of, or is
necessarily included in the offense
charged in the 1st information.
EXCEPTIONS TO THE IDENTITY RULE
1. The graver offense developed due to
supervening facts arising from the same
act or omission constituting the former
charge;
2. The facts constituting the graver offense
became known or were discovered only
after a plea was entered in the former
complaint or information;
3. The plea of guilty to the lesser offense
was made without the consent of the
prosecutor and the offended party; except
when the offended party fails to appear
during arraignment in which case, it may
be made with the consent of the trial
prosecutor alone.
B. SAME EVIDENCE TEST
Whether the facts as alleged in the 2 nd
information, if proved, would have been
sufficient to sustain the former
information, or for which the accused may
have been acquitted or convicted.
OTHER NOTES:
Warning against prosecution of several
offenses arising from a single act;
Only one criminal prosecution for single
criminal intent;
Single larcency test
Prohibition of filing from lowest to highest;
SAME ACT PUNISHED BY LAW AND
ORDINANCE.
The filing of a criminal case for violation of an
ordinance prohibiting the unauthorized installation
of electrical devises intended to unlawfully lessen
the electrical consumption, which was dismissed
because of prescription, bars the filing of criminal
case of theft under the RPC (P. vs. Relova, 148
SCRA 304).
The rule of double jeopardy in reckless
imprudence cases.
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There is no complex crime where one offense is
light offense. They are separate offenses subject
to different penalties. Reckless imprudence
resulting in slight physical injuries and reckless
imprudence resulting to damage to property is not
complex crime and CANNOT be a subject of a
single information. The two cases may however
be consolidated (Reodica vs. CA, reiterating
Lontok vs. Gorgonio, 89 SCRA 632 [1979]).
NOTE: This ruling is already modified. There shall
be no splitting of charges and only one information
shall be filed in the same court (Ivler vs. Modesto-
San Pedro, 635 SCRA 191).
GR: Appeal by the prosecution is generally
prohibited (P. vs. Ang Cho Kio, 95 Phil. 475).
Exceptions:
1. If dismissal is made upon motion, or with
express consent of the accused;
2. The dismissal is not an acquittal or based
upon consideration of the evidence or
merits of the case;
3. The question to be passed upon is purely
legal one so that the dismissal if found to
be incorrect, the case would be remanded
to the court of origin for further
proceedings (P. vs. Carandang, GR NO.
L-434659, Dec. 21, 1990).
GR: Review on certiorari is likewise, generally
prohibited (P. vs. Velasco, GR NO. 127444, Sept.
13, 2000).
Exception: there is want of jurisdiction or grave
abuse of discretion (P. vs. CA, 308 SCRA 687).
GR: No reopening of the case to modify judgment
of the defendant (P. vs. Paet, 100 Phil. 357).
Exception: Where the judgment made
reservation [mere continuation] (Lim vs. Oreta, 94
Phil. 40).
Appeal by the offended party of the civil liability
but does not allow that the accused be convicted
of a higher offense (Heirs of Tito Rillorta vs. Firme,
157 SCRA 518).
NOTE: Double jeopardy is available in contempt
proceedings, whether civil or criminal contempt,
because contempt is essentially criminal in nature
(Santiago vs. Asuncion, 184 SCRA 118 [1990]).
Question of double jeopardy not reviewable by a
writ of habeas corpus because HC does not delve
into the question of jurisdiction. The remedy is to
complement certiorari with HC.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 8. Provisional dismissal. — A case shall
not be provisionally dismissed except with the
express consent of the accused and with notice to
the offended party.
The provisional dismissal of offenses punishable
by imprisonment not exceeding six (6) years or a
fine of any amount, or both, shall become
permanent one (1) year after issuance of the
order without the case having been revived. With
respect to offenses punishable by imprisonment of
more than six (6) years, their provisional
dismissal shall become permanent two (2) years
after issuance of the order without the case having
been revived. (n)
Bar Exam Question 2011
(2) A pending criminal case, dismissed
provisionally, shall be deemed permanently
dismissed if not revived after 2 years with
respect to offenses punishable by
imprisonment (A) of more than 12 years. (B)
not exceeding 6 years or a fine not exceeding
P1,000.00.
(C) of more than 6 years or a fine in excess of
P1,000.00. (D) of more than 6 years.
Note: if no revival of the case within the
prescribed period, the dismissal becomes
permanent.
GR: Where the case is dismissed provisionally
with the consent of the accused, he cannot invoke
double jeopardy in another prosecution therefor or
where the case is reinstated on a motion for
reconsideration by the prosecution
EXCEPTIONS: Where the dismissal was actually
an acquittal based on:
1. Lack or insufficiency of the evidence
(Demurrer to Evidence);
2. Denial of the right to speedy trial, hence
even if he accused gave his express
consent to such dismissal or moved for
such dismissal, such consent is
immaterial as such dismissal is actually an
acquittal.
Exception to the exception:
Q. Can the trial court reconsider its order of
dismissal based on failure to prosecute (violation
of accused’s right to speedy trial) without violating
the accused’s right against double jeopardy?
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Ans. Yes, if it appears that there was in fact no
unreasonable, vexatious and oppressive delay in
the proceedings. Hence, there was no reason to
support the initial order of dismissal. It follows
then that accused cannot invoke his constitutional
right against double jeopardy because accused’s
right to speedy trial was not transgressed.
Moreover, the trial court’s order was upon motion
of accused’s counsel, hence, made with his
express consent. That being the case, despite the
reconsideration of said order, double jeopardy did
not attach. (Almario vs CA, et al. L-127772,
March 22, 2001).
Additional Notes:
If the case is wrongfully dismissed, as long as the
prosecution is not denied of its day in court, the
case may not be appealed or disturbed by
certiorari and mandamus. Double jeopardy sets in
(P. vs. Lagui, 171 SCRA 305).
Q. The trial court (RTC) dismissed the case and
denied the motion for reconsideration (MFR) filed
by the prosecution. Upon petition for Certiorari
under Rule 65 filed by the prosecution with the
Court of Appeals, the latter nullified the RTC’s
order dismissing the case and directed the trial
court to reinstate the case and continue the
proceedings. In the RTC, the accused raised the
issue that to reinstate the case against him would
violate his constitutional right against double
jeopardy. Resolve.
Ans. Untenable. The trial court acted without
jurisdiction or with grave abuse of discretion in
ordering the dismissal of the case and in denying
the MFR filed by the prosecution. Hence, in
effect, the first jeopardy was never terminated and
the remand of the criminal case for further hearing
and/or trial before the trial court amounts merely to
a continuation of the first jeopardy, and does not
expose the accused to a second jeopardy.
(People vs Tac-an, L-148000, Feb. 27, 2003, 398
SCRA 373).
No double jeopardy if there was no valid
promulgation of judgment.
Dismissal; Provisional Dismissal (2003)
Before the arraignment for the crime of murder, the
private complainant executed an Affidavit of
Desistance stating that she was not sure if the accused
was the man who killed her husband. The public
prosecutor filed a Motion to Quash the Information
on the ground that with private complainant’s
desistance, he did not have evidence sufficient to
convict the accused. On 02 January 2001, the court
without further proceedings granted the motion and
provisionally dismissed the case.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
The accused gave his express consent to the
provisional dismissal of the case. The offended party
was notified of the dismissal but she refused to give
her consent.
Subsequently, the private complainant urged the public
prosecutor to refile the murder charge because the
accused failed to pay the consideration which he had
promised for the execution of the Affidavit of
Desistance. The public prosecutor obliged and refiled
the murder charge against the accused on 01 February
2003, the accused filed a Motion to Quash the
Information on the ground that the provisional
dismissal of the case had already become permanent.
(6%)
a) Was the provisional dismissal of the case proper?
b) Resolve the Motion to Quash.
SUGGESTED ANSWER:
(a) The provisional dismissal of the case was proper
because the accused gave his express consent thereto
and the offended party was notified. It was not
necessary for the offended party to give her consent
thereto. (Sec. 8 of Rule 117).
(b) The motion to quash the information should be
denied because, while the provisional dismissal had
already become permanent, the prescriptive period for
filing the murder charge had not prescribed. There was
no double jeopardy because the first case was
dismissed before the accused had pleaded to the
charge. (Sec. 7 of Rule 117).
Provisional Dismissal (2002)
In a prosecution for robbery against D, the prosecutor
moved for the postponement of the first scheduled
hearing on the ground that he had lost his records of
the case. The court granted the motion but, when the
new date of trial arrived, the prosecutor, alleging that
he could not locate his witnesses, moved for the
provisional dismissal of the case. If D’s counsel does
not object, may the court grant the motion of the
prosecutor? Why? (3%)
SUGGESTED ANSWER:
No, because a case cannot be provisionally dismissed
except upon the express consent of the accused and
with notice to the offended party. (Rule 117, sec. 8).
Section 9. Failure to move to quash or to allege
any ground therefor. — The failure of the
accused to assert any ground of a motion to
quash before he pleads to the complaint or
information, either because he did not file a motion
to quash or failed to allege the same in said
motion, shall be deemed a waiver of any
objections except those based on the grounds
provided for in paragraphs (a), (b), (g), and (i) of
section 3 of this Rule. (8)
Non-waivable grounds:
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1. Information does not charge an offense; (f) such other matters as will promote a fair
2. Lack of jurisdiction of the court; and expeditious trial of the criminal and civil
3. Extinction of the offense or penalty; aspects of the case. (secs. 2 and 3, cir. 38-98)
4. Double jeopardy.
Note: If the accused had pleaded not guilty to the
crime charged, he may state whether he
interposes a negative or affirmative defense. A
RULE 118 negative defense shall require the prosecution to
prove the guilt of the accused beyond reasonable
Pre-Trial doubt, while an affirmative defense may modify
the order of trial and require the accused to prove
such defense by clear and convincing evidence
IMPORTANCE OF PRE-TRIAL (sec. 3 Circular 38-98).[Sec. 7, par. 2, Speedy
1. It covers not only that period technically Trial Act]
defined in Rule 118 but also that period
from filing of the information up to the NOTE: This disclosure order runs counter to the
actual conduct of trial; right of the accused to be presumed innocent and
2. It encompasses many legal remedies the burden of proof (sec. 14, art. lll, 1987
such as the filing of a motion to quash Constitution).
(Rule 117), motion to suppress evidence
(Rule 126, sec. 14), motion for the It would result in absurdity where the accused
determination of probable cause (Rule pleads “not guilty” but may be required to prove
126); his innocence if he interposes “an affirmative
3. It is that period when accused may invoke defense.”
the presumption of innocence and be
assured that he need not say or do
anything else (old rule was that pre-trial is
at the option of the accused). PRE-TRIAL IN CIVIL PRE-TRIAL IN
CASES CRIMINAL CASES
Section 1. Pre-trial; mandatory in criminal The presence of the The accused is merely
cases. — In all criminal cases cognizable by the defendant is required, required to sign the
Sandiganbayan, Regional Trial Court, unless he is duly written agreement
Metropolitan Trial Court, Municipal Trial Court in represented at the pre- arrived at in the pre-trial
Cities, Municipal Trial Court and Municipal Circuit trial conference by his conference, if he is in
Trial Court, the court shall after arraignment and counsel with the conformity with it.
within thirty (30) days from the date the court requisite authority to Unless otherwise
acquires jurisdiction over the person of the enter into a required by the court,
accused, unless a shorter period is provided for in compromise his presence therefore
special laws or circulars of the Supreme Court, agreement, failing in is not indispensable.
order a pre-trial conference to consider the either of which the case NOTE: This is aside
following: will proceed as if the from the consideration
defendant has been that the accused may
(a) plea bargaining; declared in default waive the right to be
present at any stage of
(b) stipulation of facts; the proceeding except
at arraignment,
promulgation of
(c) marking for identification of evidence of the
judgment, or required
parties;
by the court for
purposes of
(d) waiver of objections to admissibility of identification.
evidence; The presence of the The presence of the
plaintiff is required at private offended party is
(e) modification of the order of trial if the the pre-trial unless not required at the pre-
accused admits the charge but interposes a excused therefrom for trial. Instead, he is
lawful defense; and valid reasons or if he is required to appear at
represented by a the arraignment of the
person fully authorized accused for the
in writing to perform the purposes of plea

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 437

________________________________________________________________________________________________

acts specified in sec. 4, bargaining, caused by Atty. OP, he was substituted by Atty. QR as
Rule 18. determination of civil defense counsel. Atty. QR forthwith filed a motion to
Absent such liability, and other withdraw the "Joint Stipulation," alleging that it is
justification, the case matters requiring is prejudicial to the accused because it contains, inter alia,
may be dismissed with presence. the statement that the "Defense admitted all the
or with out prejudice. Should he fail to appear documentary evidence of the Prosecution," thus
therein, and the leaving the accused little or no room to defend
accused offers to plead himself, and violating his right against self-
to a lesser offense incrimination. Should the court grant or deny QR's
necessarily included in motion? Reason. (5%)
the offense charged, he SUGGESTED ANSWER:
may be allowed to do The court should deny QR's motion. If in the pretrial
so with the conformity agreement signed by the accused and his counsel, the
of the prosecutor alone. accused admits the documentary evidence of the
A pre-trial brief is No pre-trial brief but prosecution, it does not violate his right against self-
required with the only requires the incrimination. His lawyer cannot file a motion to
particulars and the attendance at the pre- withdraw. A pre-trial order is not needed. (Bayas v.
sanctions provided by trial conference to Sandiganbayan, 391 SCRA 415(2002}). The
sec. 6, Rule 18 consider matters stated admission of such documentary evidence is allowed by
in sec. 2 Rule 118 the rule. (Sec. 2 of Rule 118; People v. Hernandez,
260 SCRA 25 [1996]).
Pre-Trial; Criminal Case vs. Civil Case (1997)
Give three distinctions between a pre-trial in a criminal
case and a pre-trial in a civil case. SUGGESTED NOTE: Admissions deemed waiver of the right of
ANSWER: confrontation. The admission of the accused that
Three distinctions between a pre-trial in a criminal case the witness, if present, would testify to certain
and a pre-trial in a civil case are as follows: matters stated in the affidavit of the prosecution
1. The pre-trial in a criminal case is conducted only (US vs. Anastacio, 6 Phil. 413).
"where the accused and counsel agree" (Rule 118, Sec. 1):
while the pre-trial in a civil case is mandatory. (Sec. 1 of Admissions also would result to [deemed] waiver
former Rule 20; Sec, 1 of new Rule 18). of the right to present evidence on his behalf (P.
2. The pre-trial in a criminal case does not consider the vs. Dichoso, 96 SCRA 957).
possibility of a compromise, which is one important
aspect of the pre-trial in a civil case. (Sec. 1 of former Rule Note: stipulations of facts during trial need not be
20; Sec. 2 of new Rule 18). in writing. They are already contained in the TSN.
3. In a criminal case, a pre-trial agreement is required
to be reduced to writing and signed by the accused and GR: The admissions of the counsel during (in the
his counsel (See; Rule 118, Sec. 4); while in a civil case, the course of) trial, as a general rule binds the client
agreement may be contained in the pretrial order. (Sec. 4 and need not be in writing (P. vs. Ravelo, 202
of former Rule 20; See 7 of new Rule 78). SCRA 655).

Section 2. Pre-trial agreement. — All agreements
or admissions made or entered during the pre-trial
conference shall be reduced in writing and signed
by the accused and counsel, otherwise, they
cannot be used against the accused. The
agreements covering the matters referred to in
section 1 of this Rule shall be approved by the
court. (sec. 4, cir. 38-98)
Pre-Trial Agreement (2004)
Mayor TM was charged of malversation through
falsification of official documents. Assisted by Atty.
OP as counsel de parte during pre-trial, he signed
together with Ombudsman Prosecutor TG a "Joint
Stipulation of Facts and Documents," which was
presented to the Sandiganbayan. Before the court
could issue a pre-trial order but after some delay
EXCEPTION: When the mistake of the lawyer
would result in serious injustice [prejudicial to the
substantial rights] to the client (Villa Rheccar Bus
vs. De La Cruz, 157 SCRA13).
The agreements referred to in this section is
subject to the approval of the court; Provided, That
that agreement on the plea of the accused to a
lesser offense may only be revised, modified, or
annulled by the court when the same is contrary
to law, public morals, or public policy (sec. 3,
Speedy Trial Act of 1998).
Plea to a lesser offense must be for an offense
which is necessarily included in the offense
charged (sec. 4 Circular 38-98).

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 438

________________________________________________________________________________________________
Note: No plea bargaining in cases under RA
9165, sec. 23.
REQUISITES before the pre-trial agreement can
be used as evidence:
1. They are reduced to writing;
2. The pre-trial agreement is signed by the
accused and his counsel.
The requirement in sec. 2 is intended to safeguard
the right of the accused against improvident or
unauthorized agreements or admissions, which
his counsel may have entered into, or which any
person may ascribed to the accused without his
knowledge, as he may have waived his presence
at the pre-trial conference.
The omission of signature of the accused and his
counsel, as mandatorily required, renders the
stipulation of facts inadmissible in evidence (P. vs.
Marollano, 276 SCRA 84 [1997]).
Section 3. Non-appearance at pre-trial
conference. — If the counsel for the accused or
the prosecutor does not appear at the pre-trial
conference and does not offer an acceptable
excuse for his lack of cooperation, the court may
impose proper sanctions or penalties. (se. 5, cir.
38-98)
Note: the sanctions or penalty may be in the form
of reprimand, fine or imprisonment. Inasmuch as
this is similar to indirect contempt of court, the
penalty for indirect contempt may be imposed.
The accused is not the one compelled to appear,
but only the counsel of the accused or the
prosecutor. The principal reason why accused is
not included in the mandatory appearance is the
fear that to induce him is to violate his
constitutional right to remain silent.
Bar Exam Question 2011
(60) What is the consequence of the
unjustified absence of the defendant at the
pre-trial? (A) The trial court shall declare him
as in default. (B) The trial court shall
immediately render judgment against him.
(C) The trial court shall allow the plaintiff
to present evidence ex-parte. (D) The trial
court shall expunge his answer from the
record.
Section 4. Pre-trial order. — After the pre-trial
conference, the court shall issue an order reciting
the actions taken, the facts stipulated, and
evidence marked. Such order shall bind the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
parties, limit the trial to matters not disposed of,
and control the course of the action during the
trial, unless modified by the court to prevent
manifest injustice. (3)
NOTE: Thereafter, where a plea of not guilty is
entered, the accused shall have at least 15 days
to prepare for trial which shall commence within
30 days from receipt of the pre-trial order (sec.
6,Circ. 38-98).
RULE 119
Trial
TRIAL
The examination before a competent tribunal
according to the laws of the land, of the facts put
in issue in a case for the purpose of determining
such issue.
Section 1. Time to prepare for trial. — After a
plea of not guilty is entered, the accused shall
have at least fifteen (15) days to prepare for trial.
The trial shall commence within thirty (30) days
from receipt of the pre-trial order. (sec. 6, cir. 38-
98)
Note: Denial of the right to prepare for trial is a
reversible error. A trial without opportunity to
prepare for it, when granted by law whose terms
are mandatory and imperative, is no trial at all
(Montilla vs. Arellano).
Bar Exam Question 2012
41. After a plea of not guilty is entered, the
accused shall have _____ days to prepare for
trial.
a. 15;
b. 10;
c. 30;
d. None of the above.
SUGGESTED ANSWER: (a), After a plea of
not guilty is entered, the accused shall
have at least fifteen (15) days to prepare
for trial. The trial shall commence within
(30) days from receipt of the pre-trial
order. (Rule 119, Sec. 1, Rules of Court).
Section 2. Continuous trial until terminated;
postponements. — Trial once commenced shall
continue from day to day as far as practicable until
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terminated. It may be postponed for a reasonable
period of time for good cause. (2a)
The court shall, after consultation with the
prosecutor and defense counsel, set the case for
continuous trial on a weekly or other short-term
trial calendar at the earliest possible time so as to
ensure speedy trial. In no case shall the entire trial
period exceed one hundred eighty (180) days
from the first day of trial, except as otherwise
authorized by the Supreme Court. (sec. 8, cir. 38-
98).
The time limitations provided under this section
and the preceding section shall not apply where
special laws or circulars of the Supreme Court
provide for a shorter period of trial. (n)
EXAMPLE CASES WHERE TIME LIMIT NOT
APPLICABLE
1. RA 7610—Trial shall commence within 3
days from arraignment;
2. RA 4908—Complainant is about to depart
from the Philippines without definite date
of return; accused should be arraigned
without delay and trial should commence
within 3 days.
No postponement except sickness of the
accused or other grounds beyond the
court’s control;
3. Criminal cases covered by the Rules on
Summary Procedure where the penalty
imposable does not exceed 6 months
imprisonment or a fine of 1,000.00 pesos,
or both;
4. Administrative Order No. 104-96;
5. General Order No. 39, Sept. 19, 1973,
cases involving tourist or transients must
be disposed within 24 hours after filing
thereof.
REQUISITES before a trial can be put-off on
account of absence of witness:
1. The witness is material and appears to be
such to the court;
2. That the party who applies is not guilty of
neglect;
3. That the witness can be had at the time to
which the trial is deferred;
4. No similar evidence could be obtained;
5. That an affidavit showing the existence of
the above circumstances must be filed.
Remedies of the accused where a prosecuting
officer without good cause secure postponements
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
of the trial of a defendant against his protest
beyond a reasonable period of time:
1. Mandamus to compel dismissal of the
action;
2. If he is restrained of his liberty, Habeas
Corpus to obtain his freedom.
The SC adopted continuous trial system as a
mode of judicial fact finding and adjudication
conducted with speed and dispatch so that trials
are held on the scheduled dates without
postponement, the factual issues for trial well-
defined at pre-trial and the whole proceedings
terminated and ready for judgment within 90 days
from date of initial hearing, unless for meritorious
reasons an extension is permitted.
The system requires that the Presiding Judge:
1. Adhere faithfully to the session hours
prescribed by laws;
2. Maintain full control of the proceedings;
and
3. Effectively allocate and use time and court
resources to avoid court delays.
The non-appearance of the prosecution at the
trial, despite due notice, justified a provisional or
an absolute dismissal depending upon the
circumstances.
Section 3. Exclusions. — The following periods of
delay shall be excluded in computing the time
within which trial must commence:
(a) Any period of delay resulting from other
proceedings concerning the accused, including
but not limited to the following:
(1) Delay resulting from an examination of
the physical and mental condition of the
accused;
(2) Delay resulting from proceedings with
respect to other criminal charges against
the accused;
(3) Delay resulting from extraordinary
remedies against interlocutory orders;
(4) Delay resulting from pre-trial
proceedings; provided, that the delay
does not exceed thirty (30) days;
(5) Delay resulting from orders of
inhibition, or proceedings relating to
change of venue of cases or transfer from
other courts;
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(6) Delay resulting from a finding of the
existence of a prejudicial question; and
(7) Delay reasonably attributable to any
period, not exceed thirty (30) days, during
which any proceeding which any
proceeding concerning the accused is
actually under advisement.
(b) Any period of delay resulting from the absence
or unavailability of an essential witness.
For purposes of this subparagraph, an essential
witness shall be considered absent when his
whereabouts are unknown or his whereabouts
cannot be determined by due diligence. He shall
be considered unavailable whenever his
whereabouts are known but his presence for trial
cannot be obtained by due diligence.
(c) Any period of delay resulting from the mental
incompetence or physical inability of the accused
to stand trial.
(d) If the information is dismissed upon motion of
the prosecution and thereafter a charge is filed
against the accused for the same offense, any
period of delay from the date the charge was
dismissed to the date the time limitation would
commence to run as to the subsequent charge
had there been no previous charge.
(e) A reasonable period of delay when the
accused is joined for trial with a co-accused over
whom the court has not acquired jurisdiction, or,
as to whom the time for trial has not run and no
motion for separate trial has been granted.
(f) Any period of delay resulting from a
continuance granted by any court motu proprio, or
on motion of either the accused or his counsel, or
the prosecution, if the court granted the
continuance on the basis of its findings set forth in
the order that the ends of justice served by taking
such action outweigh the best interest of the public
and the accused in a speedy trial. (sec. 9, cir. 38-
98)
Section 4. Factors for granting continuance. —
The following factors, among others, shall be
considered by a court in determining whether to
grant a continuance under section 3(f) of this Rule.
(a) Whether or not the failure to grant a
continuance in the proceeding would likely
make a continuation of such proceeding
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
impossible or result in a miscarriage of justice;
and
(b) Whether or not the case taken as a whole
is so novel, unusual and complex, due to the
number of accused or the nature of the
prosecution, or that it is unreasonable to
expect adequate preparation within the
periods of time established therein.
In addition, no continuance under section 3(f) of
this Rule shall be granted because of congestion
of the court's calendar or lack of diligent
preparation or failure to obtain available witnesses
on the part of the prosecutor. (sec. 10, cir. 38-98)
Notes:
Grant of postponement subject to the
sound discretion of the court;
The lawyer should not presumed that his
request for postponement will be granted
by the court.
Section 5. Time limit following an order for new
trial. — If the accused is to be tried again
pursuant to an order for a new trial, the trial shall
commence within thirty (30) days from notice of
the order, provided that if the period becomes
impractical due to unavailability of witnesses and
other factors, the court may extend it but not to
exceed one hundred eighty (180) days from
notice of said order for a new trial. (sec. 11, cir.
38-98)
Section 6. Extended time limit. —
Notwithstanding the provisions of section 1(g),
Rule 116 and the preceding section 1, for the first
twelve-calendar-month period following its
effectivity on September 15, 1998, the time limit
with respect to the period from arraignment to trial
imposed by said provision shall be one hundred
eighty (180) days. For the second twelve-month
period, the limit shall be one hundred twenty (120)
days, and for the third twelve-month period, the
time limit shall be eighty (80) days. (sec. 7, cir. 38-
98)
Note: This is now obsolete (Ucat).
Section 7. Public attorney's duties where
accused is imprisoned. — If the public attorney
assigned to defend a person charged with a crime
knows that the latter is preventively detained,
either because he is charged with a bailable crime
but has no means to post bail, or, is charged with
a non-bailable crime, or, is serving a term of
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imprisonment in any penal institution, it shall be
his duty to do the following:
(a) Shall promptly undertake to obtain the
presence of the prisoner for trial or cause
a notice to be served on the person
having custody of the prisoner requiring
such person to so advise the prisoner of
his right to demand trial.
(b) Upon receipt of that notice, the
custodian of the prisoner shall promptly
advise the prisoner of the charge and of
his right to demand trial. If at anytime
thereafter the prisoner informs his
custodian that he demands such trial, the
latter shall cause notice to that effect to
sent promptly to the public attorney.
(c) Upon receipt of such notice, the public
attorney shall promptly seek to obtain the
presence of the prisoner for trial.
(d) When the custodian of the prisoner
receives from the public attorney a
properly supported request for the
availability of the prisoner for purposes of
trial, the prisoner shall be made available
accordingly. (sec. 12, cir. 38-98)
NOTE: Public Attorneys referred to in this section
are those attorneys of the PAO of the Department
of Justice who are assisting the accused not
financially capable to have counsel of their own.
These public attorneys enter their appearance in
behalf of the accused upon his request or that of
his relative or upon being appointed as counsel de
oficio by the court.
Section 8. Sanctions. — In any case in which
private counsel for the accused, the public
attorney, or the prosecutor.
(a) Knowingly allows the case to be set for
trial without disclosing that a necessary
witness would be unavailable for trial;
(b) Files a motion solely for delay which he
knows is totally frivolous and without merit;
(c) Makes a statement for the purpose of
obtaining continuance which he knows to be
false and which is material to the granting of a
continuance; or
(d) Willfully fails to proceed to trial without
justification consistent with the provisions
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
hereof, the court may punish such counsel,
attorney, or prosecution, as follows:
(1) By imposing on a counsel privately
retained in connection with the defense of
an accused, a fine not exceeding twenty
thousand pesos (P20,000.00);
(2) By imposing on any appointed counsel
de oficio, public attorney, or prosecutor a
fine not exceeding five thousand pesos
(P5,000.00); and
(3) By denying any defense counsel or
prosecutor the right to practice before the
court trying the case for a period not
exceeding thirty (30) days. The
punishment provided for by this section
shall be without prejudice to any
appropriate criminal action or other
sanction authorized under these rules.
(sec. 13, cir. 38-98)
Section 9. Remedy where accused is not
brought to trial within the time limit. — If the
accused is not brought to trial within the time limit
required by Section 1(g), Rule 116 and Section 1,
as extended by Section 6 of this rule, the
information may be dismissed on motion of the
accused on the ground of denial of his right of
speedy trial. The accused shall have the burden of
proving the motion but the prosecution shall have
the burden of going forward with the evidence to
establish the exclusion of time under section 3 of
this rule. The dismissal shall be subject to the
rules on double jeopardy.
Failure of the accused to move for dismissal prior
to trial shall constitute a waiver of the right to
dismiss under this section. (sec. 14, cir. 38-98)
Trial; Remedies (2013)
No.IV. At the Public Attorney's Office station
in Taguig where you are assigned, your work
requires you to act as public defender at the
local Regional Trial Court and to handle
cases involving indigents.
(A) In one criminal action for qualified theft
where you are the defense attorney, you
learned that the woman accused has been in
detention for six months, yet she has not
been to a courtroom nor seen a judge. What
remedy would you undertake to address the
situation and what forum would you use to
invoke this relief? (3%)
SUGGESTED ANSWER: Section 7, Rule 119
provides, if the public attorney assigned
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to defend a person charged with a crime
knows that the latter is preventively
detained, either because he is charged
with a bailable crime but has no means to
post bail, or, is charged with a non-
bailable crime, or, is serving a term of
imprisonment in any penal institution, it
shall be his duty to do the following: (a)
Shall promptly undertake to obtain the
presence of the prisoner for trial or cause
a notice to be served on the person having
custody of the prisoner requiring such
person to so advise the prisoner of his
right to demand trial.
(b) Upon receipt of that notice, the
custodian of the prisoner shall promptly
advise the prisoner of the charge and of
his right to demand trial. If at any time
thereafter the prisoner informs his
custodian that he demands such trial, the
latter shall cause notice to that effect to
be sent promptly to the public attorney.
Xxx Moreover, Section 1 (e), Rule 116
provides, when the accused is under
preventive detention, his case shall be
raffled and its records transmitted to the
judge to whom the case was raffled within
the three (3) days from the filing of the
information or complaint. The accused
shall be arraigned within ten (10) days
from the date of the raffle. The pre-trial
conference of his case shall be held within
ten (10) days after the arraignment. On
the other hand, if the accused is not
under preventive detention, the
arraignment shall be held within thirty
(30) days from the date the court acquires
jurisdiction over the person of the
accused. (Section 1 (g), Rule 116).
Since the accused has not been brought
for arraignment within the limit required
in the aforementioned Rule, the
Information may be dismissed upon
motion of the accused invoking his right
to speedy trial (Section 9, Rule 119( or to
a speedy disposition of cases (Section 16,
Article III, 1987 Constitution).
ALTERNATIVE ANSWER: A Petition for
Mandamus is also feasible. In People vs.
Lumanlaw, G.R. No. 164953, February 13,
2006, the Supreme Court held that “a writ
of mandamus may be issued to control the
exercise of discretion when, in the
performance of duty, there is undue delay
that can be characterized as a grave abuse
of discretion resulting in manifest
injustice. Due to the unwarranted delays
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
in the conduct of the arraignment of
petitioner, he has indeed the right to
demand – through a writ of mandamus –
expeditious action from all official tasked
with the administration of justice. Thus,
he may not only demand that his
arraignment be held but, ultimately, that
the information against him be dismissed
on the ground of the violation of his right
to speedy trial.” Ergo, a writ of mandamus
is available to the accused to compel the
dismissal of the case.
ALTERNATIVE ANSWER: The appropriate
remedy of the detained accused is to
apply for bail since qualified theft is
bailable, and she is entitled to bail before
conviction in the Regional Trial Court
(Section 4, Rule 114 of the Rules of
Criminal Procedure). [Note: unless the
aggregate value of the property stolen is
P500,000 and the above she will not be
entitled to bail as a matter of right,
because the penalty for the offense is
reclusion perpetua pursuant to
Memorandum Order No. 117
(B) In another case, also for qualified theft,
the detained young domestic helper has been
brought to court five times in the last six
months, but the prosecution has yet to
commence the presentation of its evidence.
You find that the reason for this is the
continued absence of the employer-
complainant who is working overseas. What
remedy is appropriate and before which
forum would you invoke this relief? (3%)
SUGGESTED ANSWER:
I will file a motion to dismiss the
information in the court where the case is
pending on the ground of denial of the
accused right to speedy trial (Section 9,
Rule 119; Tan vs. People, G.R. No.
173637, April 21, 2009, Third Division,
Chico-Nazario, J.). this remedy can be
invoked, at any time, before trial and if
granted will result to an acquittal. Since
the accused has been brought to Court
five times and in each instance it was
postponed, it is clear that her right to a
Speedy Trial has been violated. Moreover,
I may request the court to issue Subpoena
Duces Tecum and Ad Testificandum to the
witness, so in case he disobeys same, he
may be cited in contempt. I may also file a
motion to order the witness employer-
complainant to post bail to secure his
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appearance in court. (Section 14, Rule
119).
ALTERNATIVE ANSWER: I will move for
the dismissal of the case for failure to
prosecute. The grant of the motion will be
with prejudice unless the court says
otherwise. The Motion will be filed with
the Court where the action is pending.
C) Still in another case, this time for illegal
possession of dangerous drugs, the
prosecution has rested but you saw from the
records that the illegal substance allegedly
involved has not been identified by any of the
prosecution witnesses nor has it been the
subject of any stipulation.
Should you now proceed posthaste to the
presentation of defense evidence or consider
some other remedy? Explain the remedial
steps you propose to undertake. (3%)
SUGGESTED ANSWER: No. I will not
proceed with the presentation of defense
evidence. I will first file a motion for leave
to file demurrer to evidence within five (5)
days from the time the prosecution has
rested its case. If the Motion is granted, I
will file a demurrer to evidence within a
non-extendible period of ten (10) days
from notice on the ground of insufficiency
of evidence. In the alternative, I may
immediately file a demurrer to evidence
without leave of court (Section 23, Rule
119, Rules of Criminal Procedure). In
People vs. De Guzman, G.R. No. 186498,
March 26, 2010, the Supreme Court held
that in a prosecution for violation of the
Dangerous Drugs Act, the existence of the
dangerous drugs is a condition sine qua
non for conviction. The dangerous drug is
the very corpus delicti of the crime.
Similarly, in People vs. Sitco, G.R. No.
178202, May 14, 2010, the High Court
held that in prosecutions involving
narcotics and other illegal substances, the
substance itself constitutes part of the
corpus delicti of the offense and the fact
of its existence is vital to sustain a
judgment of conviction beyond reasonable
doubt.
(D) In one other case, an indigent mother
seeks assistance for her 14-year old son who
has been arrested and detained for malicious
mischief. Would an application for bail be the
appropriate remedy or is there another
remedy available? Justify your chosen
remedy and outline the appropriate steps to
take. (3%) SUGGESTED ANSWER: Yes. An
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
application for bail is an appropriate
remedy to secure provisional liberty of the
14-year old boy. Under the Rules, bail is a
matter of right before or even after
conviction before the Metropolitan Trial
Court which has jurisdiction over the
crime of malicious mischief. (Section 4,
Rule 114 of the Rules of Criminal
Procedure). ALTERNATIVE ANSWER:
Under R.A. 9344 or otherwise known as
the Juvenile Justice and Welfare Act of
2006 as amended by R.A. 10630, a child
in conflict with the law has the right to
bail and recognizance or to be transferred
to a youth detention home/youth
rehabilitation center. Thus:
There a child is detained, the court shall
order: (a) the release of the minor on
recognizance to his/her parents and other
suitable person; (b) the release of the child
in conflict with the law on bail; or (c) the
transfer of the minor to a youth detention
home/youth rehabilitation center. The
court shall not order the detention of a
child in a jail pending trial or hearing of
his case. The writ of habeas corpus shall
extend to all cases of illegal confinement
or detention by which any person is
deprived of his liberty, or by which the
rightful custody of any person is withheld
from the person entitled thereto (IN THE
MATTER OF THE PETITION OF HABEAS
CORPUS OF EUFEMIA E. RODRIGUEZ,
filed by EDGARDO E. VELUZ vs. LUISA R.
VILLANUEVA and TERESITA R. PABELLO,
G.R. No. 169482, January 29, 2008,
CORONA, J.).
Since minors fifteen (15) years of age and
under are not criminally responsible, the
child may not be detained to answer for
the alleged offense. The arresting
authority has the duty to immediately
release the child to the custody of his
parents or guardians or in their absence to
the child‟s nearest relative (Section 20,
republic Act 9344).
Following the hierarchy of courts, the
Petition must be filed in the Regional trial
Court having jurisdiction over the place
where the child is being detained.
[Note: R.A. 9344 is not covered by the
2013 Bar Examination Syllabus for
Remedial law].
Section 10. Law on speedy trial not a bar to
provision on speedy trial in the Constitution.
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— No provision of law on speedy trial and no rule REVERSE TRIAL

implementing the same shall be interpreted as a
bar to any charge of denial of the right to speedy
trial guaranteed by section 14(2), article III, of the
1987 Constitution. (sec. 15, cir. 38-98)
Section 11. Order of trial. — The trial shall
proceed in the following order:
(a) The prosecution shall present evidence to
prove the charge and, in the proper case, the
civil liability.
(b) The accused may present evidence to
prove his defense, and damages, if any,
arising from the issuance of a provisional
remedy in the case.
When the accused admits the act or omission
charged in the complaint or information but
interposes a lawful defense, the trial court may
allow the accused to present his defense first and
thereafter give the prosecution the opportunity to
present its rebuttal evidence.
Refusal of the trial court to reverse the order of the
trial upon demand of the accused who pleads self-
defense as a defense is not reversible error (P. vs.
Gutierrez, 302 SCRA 643).
Note: Trial of an accessory can proceed without
awaiting the result of separate charge against the
principal as long as the commission of the offense
can be duly established in evidence (Vino vs. P.
178 SCRA 626 [1989]).

(c) The prosecution and the defense may, in
that order, present rebuttal and sur-rebuttal
evidence unless the court, in furtherance of
justice, permits them to present additional
evidence bearing upon the main issue.
(d) Upon admission of the evidence of the
parties, the case shall be deemed submitted
for decision unless the court directs them to
argue orally or to submit written memoranda.
(e) When the accused admits the act or
omission charged in the complaint or
information but interposes a lawful defense,
the order of trial may be modified. (3a)
GR: The order in the presentation of evidence
must be followed. The accused may not be
required to present his evidence first before the
prosecution adduces its own proof.
EXCEPTION: Where the reverse procedure was
adopted without the objection of the defendant
and such procedure did not prejudice his
substantial rights, the defect is not a reversible
error.
Trial; Reverse Trial (2007) No.V. (b) What is
reverse trial and when may it be resorted to?
Explain briefly. (5%) SUGGESTED ANSWER:
A reverse trial is one where the defendant
or the accused present evidence ahead of
the plaintiff or prosecution and the latter
is to present evidence by way of rebuttal
to the former‟s evidence. This kind of
trial may take place in a civil case when
the defendant‟s Answer pleads new
matters by way of affirmative defense, to
defeat or evade liability for plaintiff‟s
claim which is not denied but
controverted.
In a criminal case, a reverse trial may take
place when the accused made known to
the trial court, on arraignment, that he
adduce affirmative defense of a justifying
or exempting circumstances and thus
impliedly admitting the act imputed to
him. The trial court may then require the
accused to present evidence first, proving
the requisites of the justifying or
exempting circumstance he is invoking,
and the prosecution to present rebuttal
evidence controverting the same.

A departure from the order of the trial is not

reversible error as where it was agreed upon or
not seasonably objected to, but not where the
change in the order of the trial was timely objected
by the defense.
Where the order of trial set forth under was
followed by the court to the extent of denying
prosecution of an opportunity to present
evidence, the judgment is a nullity (P.
Balisacan, 17 SCRA 1119).
Section 12. Application for examination of
witness for accused before trial. — When the
accused has been held to answer for an offense,
he may, upon motion with notice to the other
parties, have witnesses conditionally examined in
not his behalf.
the
its
The motion shall state:
vs.
(a) the name and residence of the witness;
(b) the substance of his testimony; and

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 445

________________________________________________________________________________________________
(c) that the witness is sick or infirm as to afford
reasonable ground for believing that he will
not be able to attend the trial, or resides more
than one hundred (100) kilometers from the
place of trial and has no means to attend the
same, or that other similar circumstances exist
that would make him unavailable or prevent
him from attending the trial.
The motion shall be supported by an affidavit of
the accused and such other evidence as the court
may require. (4a)
Section 13. Examination of defense witness;
how made. — If the court is satisfied that the
examination of a witness for the accused is
necessary, an order will be made directing that the
witness be examined at a specified date, time and
place and that a copy of the order be served on
the prosecutor at least three (3) days before the
scheduled examination. The examination shall be
taken before a judge, or, if not practicable, a
member of the Bar in good standing so designated
by the judge in the order, or if the order be made
by a court of superior jurisdiction, before an
inferior court to be designated therein. The
examination shall proceed notwithstanding the
absence of the prosecutor provided he was duly
notified of the hearing. A written record of the
testimony shall be taken. (5a)
Discovery; Production and Inspection (2009) No.XI.A.
The accused in a criminal case has the right to avail of
the various modes of discovery. SUGGESTED ANSWER:
TRUE. The accused has the right to move for the
production or inspection of material evidence in the
possession of the prosecution. It authorizes the
defense to inspect, copy or photograph any evidence
of the prosecution in its possession after obtaining
permission from the court (Rule 116, Sec. 10; Webb
vs. De Leon, 247 SCRA 652 [1995]). ALTERNATIVE
ANSWER: FALSE. The accused in criminal case only
has the right to avail of conditional examination of
his witness before a judge, or, if not practicable, a
member of a Bar in good standing so designated by
the judge in the order, or if the order be made by a
court of superior jurisdiction, before an inferior court
to be designated therein. (sec.12 &13, Rule 119).
Modes of discovery under civil actions does not apply
to criminal proceedings because the latter is primarily
governed by the REVISED RULES OF CRIMINAL
PROCEDURE (Vda. de Manguerravs Risos – 563 SCRA
499).
Section 14. Bail to secure appearance of
material witness. — When the court is satisfied,
upon proof or oath, that a material witness will not
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
testify when required, it may, upon motion of either
party, order the witness to post bail in such sum
as may be deemed proper. Upon refusal to post
bail, the court shall commit him to prison until he
complies or is legally discharged after his
testimony has been taken. (6a)
Note: Even if the witness has been cited to
appear before a court sitting outside of the
province in which he resides and the distance is
more than (50) now 100 km from his place of
residence by usual course of travel, he is still
bound by the subpoena. Rule 23 applies only in
civil cases (P. vs. Montejo, 21 SCRA 722).
Connect to: sec. 14, Rule 110.
Section 15. Examination of witness for the
prosecution. — When it satisfactorily appears
that a witness for the prosecution is too sick or
infirm to appear at the trial as directed by the order
of the court, or has to leave the Philippines with no
definite date of returning, he may forthwith be
conditionally examined before the court where the
case is pending. Such examination, in the
presence of the accused, or in his absence after
reasonable notice to attend the examination has
been served on him, shall be conducted in the
same manner as an examination at the trial.
Failure or refusal of the accused to attend the
examination after notice shall be considered a
waiver. The statement taken may be admitted in
behalf of or against the accused. (7a)
EXAMINATION OF EXAMINATION OF
DEFENSE WITNESS PROSECUTION
WITNESS
Conducted before any Conducted only before
judge, member of the the judge or the court
bar in good standing, or where the case is
before any inferior court pending
No right to cross- There is right to cross-
examine examine
May be made if the Cannot be made even if
witness resides more the witness resides
than 100 km from place more than 100 km from
of trial the place of trial
Note: Distance is not a valid ground to grant
conditional examination of prosecution witness.
The reason is the primacy of the right of the
accused to confront his accuser and his
witnesses.
Section 16. Trial of several accused. — When
two or more accused are jointly charged with any
offense, they shall be tried jointly unless the court,
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in its discretion and upon motion of the prosecutor
or any accused, orders separate trial for one or
more accused. (8a)
Notes: The motion for a SEPARATE trial must be
filed BEFORE the commencement of the trial and
cannot be raised for the first time on appeal. If a
separate trial is granted, the testimony of one of
the accused imputing the crime to his co-accused
is not admissible against the latter. In joint trial, it
would be admissible if the latter had opportunity
for cross-examination.
Exception: In the interest of justice, it can be
allowed even after prosecution had rested its case
(Joseph vs. Villaluz, 89 SCRA 324).
JOINT TRIAL IN THE SANDIGANBAYAN
Private individuals charged as co-principals,
accomplices, or accessories shall be tried jointly
with public officers before the proper court.
However, if the public officer is the one charged as
accomplice or accessory, the jurisdiction is with
the regular courts. Accessory follows the principal
(Totaan vs. Felix, GR NO. 81847-48, April 7,
1988).
If the circumstances made it impossible for joint
trial as in the case when the trial of the public
offenders have been concluded, the trial of the
private offenders shall proceed independently
(Bondoc vs. Sandiganbayan, 191 SCRA 254).
Separate trial is discretionary; denial is justified
when accused is not substantially prejudiced (P.
vs. Go, 88 Phil. 203).
GR: When separate trial is granted, prosecutor
should repeat and produce all evidence at each
and every trial.
Exception: If agreed by the parties not to repeat
presentation and all the accused are present an
had opportunity for cross-examination (P. vs.
Carpio, 68 Phil. 490).
Section 17. Discharge of accused to be state
witness. — When two or more persons are jointly
charged with the commission of any offense, upon
motion of the prosecution before resting its case,
the court may direct one or more of the accused to
be discharged with their consent so that they may
be witnesses for the state when, after requiring the
prosecution to present evidence and the sworn
statement of each proposed state witness at a
hearing in support of the discharge, the court is
satisfied that:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(a) There is absolute necessity for the
testimony of the accused whose
discharge is requested;
(b) The is no other direct evidence
available for the proper prosecution of the
offense committed, except the testimony
of said accused;
(c) The testimony of said accused can be
substantially corroborated in its material
points;
(d) Said accused does not appear to be
the most guilty; and
(e) Said accused has not at any time
been convicted of any offense involving
moral turpitude.
Evidence adduced in support of the discharge
shall automatically form part of the trial. If the court
denies the motion for discharge of the accused as
state witness, his sworn statement shall be
inadmissible in evidence. (9a)
Notes:
Absolute necessity of testimony (P. vs. Borja, 106
Phil. 1111)
Absolute certainty of the testimony is not required
(P. vs. CA, 124 SCRA 328).
All requisites must be complied with. Trial type
hearing on the motion is not required (P. vs. CA,
223 SCRA 479).
Additional requisites for discharge:
1. The court should require the presentation
of evidence and the sworn statement of
the proposed witness;
2. Sworn statement containing the
requirements in sec. 17, Rule 119.
The motion need not allege that all the requisites
are complied with BUT the requisites must be
proved during the hearing of the motion (Chua vs.
CA, GR NO. 103397, Aug. 28, 1996).
Absence of any of the requisites for the discharge
of a particeps criminis is a ground for objection for
his discharge, but such objection must be raised
before the discharge is ordered (P. vs. Ferrer, GR
NO. 102012, March 14, 1996).
Absolute certainty of all the requirements is not
necessary (P. vs. Padica, GR NO. 102645, April 7,
1993).
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More than one accused may be discharged (P. vs.
Bacsa, 104 Phil. 136) (P. vs. Peralta, GR NO.
121971, Oct. 16 2000).
Discharge should not be ordered before
presenting the evidence by the prosecution.
Danger is that if discharged before presentation of
evidence, the proposed witness may disappear
(Flores vs. Sandiganbayan, 124 SCRA 109).
Discharge, when there is conspiracy, is necessary
when the crime is committed secretly (P. vs.
Villamor, 110 SCRA 199 [1981]).
Testimony of a co-conspirator alone, unless given
in a straightforward manner and it contains details
which could not have been made as a result of an
afterthought, is not sufficient for conviction. Such
testimony comes from a polluted source (P. vs.
Bariquit, GR NO. 122733 Oct. 2, 2000).
Testimony of a state witness should be
carefully scrutinized and received with great
caution (P. vs. Gongora, 8 SCRA 473 [1973]).
REASON: Use of testimony of one of the accused
in a crime results in setting some guilty persons at
liberty, and in some instances, at least, makes the
state a party to the setting of a premium upon
treachery and to the grant of reward for conduct
which every honorable man instinctively recoils
with horror and disgust (US vs. Abanzado, 37 Phil.
655 [1918]).
Bar Exam Question 2013
VIII. Which among the following is a requisite
before an accused may be discharged to
become a state witness? (1%) (A) The
testimony of the accused sought to be
discharged can be substantially corroborated
on all points. (B) The accused does not
appear to be guilty. (C) There is absolute
necessity for the testimony of the accused
whose discharge is requested. (D) The
accused has not at any time been convicted
of any offense. (E) None of the above.
SUGGESTED ANSWER: (C), Under Section
17 of Rule 119 of the Rules of Criminal
Procedure, when two or more persons are
jointly charged with the commission of
any offense, upon motion of the
prosecution before resting its case, the
court may direct one or more of the
accused to be discharged with their
consent so that they may be witnesses for
the state when after requiring the
prosecution to present evidence and the
sworn statement of each proposed state
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
witness at a hearing in support of the
discharge, the court is satisfied that:
(a) There is absolute necessity for the
testimony of the accused whose discharge
is required;
(b) There is no other direct evidence
available for the proper prosecution of the
offense committed, except the testimony
of said accused; (c) The testimony of said
accused can be substantially corroborated
in its material points; (d) Said accused
does not appear to be the most guilty; and
(e) Said accused has not at any time been
convicted of any offense involving moral
turpitude. Evidence adduced in support of
the discharge shall automatically form
part of the trial. If the court denies the
motion for discharge of the accused as
state witness, his sworn statement shall
be inadmissible in evidence (People vs.
Feliciano Anabe Y Capillan, G.R> No.
179033, September 6, 2010, Carpio-
Morales, J.).
Denial of discharge, when tainted with grave
abuse of discretion, correctible by certiorari (P. vs.
CA, 131 SCRA 107 [1984]).
Erroneous or improper discharge does not affect
the acquittal of the discharged accused (P. vs.
Aniñon, GR NO. 39083, March 16, 1988).
Erroneous or improper discharge does not affect
the competency and quality of the testimony (P.
vs. Jamero, 24 SCRA 206 [1968]).
Discharge of an accused who had already
pleaded guilty but not yet sentenced was allowed
(P. vs. Ocima, 2112SCRA 646).
EFFECTS OF DISCHARGE
1. Evidence adduced in support of the
discharge shall automatically form part of
the trial;
2. If the court denies the motion to discharge
the accused as state witness, his sworn
statement shall be inadmissible in
evidence;
3. Discharge of the accused operates as an
acquittal and bar to further prosecution for
the same offense.
OTHER MODES OF DISCHARGE:
1. RA 6981 Witness Protection Program and
Benefit Act;
2. The power of the Ombudsman to grant
immunity under sec. 17, RA 6770;
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3. Immunity under PD 749; accused fails or refuses to testify against his co-
4. Immunity under EO 14-A. accused in accordance with his sworn statement
constituting the basis for the discharge. (10a)
RA 6981 RULES OF COURT NOTES: Failure to testify must refer exclusively
The offense in which It has no qualification, it to defendant’s will or fault.
the testimony is to be applies to all felonies
used is limited only to Where an accused who turns state’s evidence
grave felony on a promise of immunity but later retracts and
The immunity is The immunity is fails to keep his part of the agreement, his
granted by the DOJ granted by the court confession of his participation in the commission
The witness is The witness so of the crime is admissible as evidence against
automatically entitled to discharged must still him.
certain rights and apply for the enjoyment
benefits of said rights and Discharge from original information to amended
benefits with the DOJ information, not new information. Hence,
Prosecutor required not He is charged in the discharge from the original information is not
to include the name of court as one of the affected by the amendment of the information
the witness in the accused as stated in (P. vs. Taruc, 5 SCRA 132).
information the information
No information may The charged against Section 19. When mistake has been made in
thus filed against the him shall be dropped charging the proper offense. — When it
witness and the same shall becomes manifest at any time before judgment
operate as an acquittal that a mistake has been made in charging the
proper offense and the accused cannot be
convicted of the offense charged or any other
EFFECT OF CERTIFICATION OF THE offense necessarily included therein, the accused
SECRETARY OF JUSTICE (RA 6981): shall not be discharged if there appears good
a. If the case is not yet filed, the prosecutor cause to detain him. In such case, the court shall
is compelled not to include the witness in commit the accused to answer for the proper
the information; offense and dismiss the original case upon the
b. If the information is already filed in court, filing of the proper information. (11a)
the prosecutor shall file a motion for the
discharge of the accused as a state Connected to sec. 14, Rule 110, last par.:
witness. Under the law, it is mandatory for If it appears at any time before judgment that a
the court to grant the motion. mistake has been made in charging the proper
NOTE: This modified the ruling in Crespo offense, the court shall dismiss the original
vs. Mogul, supra, which provides that the complaint or information upon the filing of a
discharge (dismissal) of a case filed in new one charging the proper offense in
accordance with section 19, Rule 119,
court is subject to the sound discretion of provided the accused shall not be placed in
the judge. double jeopardy. The court may require the
witnesses to give bail for their appearance at
Witness; Utilized as State Witness; Procedure (2006) the trial.
As counsel of an accused charged with homicide, you
are convinced that he can be utilized as a state witness.
What procedure will you take? (2.5%) This rule is predicated on the fact that an accused
SUGGESTED ANSWER:
person has the right to be informed of the nature
As counsel of an accused charged with homicide, the
and cause of accusations against him, and to
procedure that can be followed for the accused to be convict him of an offense different from that
utilized as a state witness is to ask the Prosecutor to charged in the complaint or information would be
recommend that the accused be made a state witness. an unauthorized denial of that right (US vs.
It is the Prosecutor who must recommend and move Campo, 23 Phil. 369).
for the acceptance of the accused as a state witness.
The accused may also apply under the Witness
Remedies; Void Judgment (2004)
Protection Program.
AX was charged before the YY RTC with theft of
Section 18. Discharge of accused operates as
jewelry valued at P20.000, punishable with
acquittal. — The order indicated in the preceding
imprisonment of up to 10 years of prision mayor
section shall amount to an acquittal of the
discharged accused and shall be a bar to future
under the Revised Penal Code. After trial, he was
prosecution for the same offense, unless the convicted of the offense charged, notwithstanding that

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________________________________________________________________________________________________
the material facts duly established during the trial
showed that the offense committed was estafa,
punishable by imprisonment of up to eight years of
prision mayor under the said Code. No appeal having
been taken therefrom, said judgment of conviction
became final. Is the judgment of conviction valid? Is
the said judgment reviewable thru a special civil action
for certiorari? Reason. (5%)
SUGGESTED ANSWER:
Yes, the judgment of conviction for theft upon an
information for theft is valid because the court had
jurisdiction to render judgment. However, the
judgment was grossly and blatantly erroneous. The
variance between the evidence and the judgment of
conviction is substantial since the evidence is one for
estafa while the judgment is one for theft. The
elements of the two crimes are not the same. (Lauro
Santos v. People, 181 SCRA 487). One offense does not
necessarily include or is included in the other. (Sec. 5 of
Rule 120).
The judgment of conviction is reviewable by certiorari
even if no appeal had been taken, because the judge
committed a grave abuse of discretion tantamount to
lack or excess of his jurisdiction in convicting the
accused of theft and in violating due process and his
right to be informed of the nature and the cause of the
accusation against him, which make the judgment
void.
With the mistake in charging the proper offense, the
judge should have directed the filing of the proper
information and thereafter dismissed the original
information. (Sec. 19 of Rule 119).
Section 20. Appointment of acting prosecutor.
— When a prosecutor, his assistant or deputy is
disqualified to act due to any of the grounds stated
in section 1 of Rule 137 or for any other reasons,
the judge or the prosecutor shall communicate
with the Secretary of Justice in order that the latter
may appoint an acting prosecutor. (12a)
Section 21. Exclusion of the public. — The
judge may, motu proprio, exclude the public from
the courtroom if the evidence to be produced
during the trial is offensive to decency or public
morals. He may also, on motion of the accused,
exclude the public from the trial, except court
personnel and the counsel of the parties. (13a)
Connect to Rule on Examination of Child
Witness, section 23.
Section 22. Consolidation of trials of related
offenses. — Charges for offenses founded on the
same facts or forming part of a series of offenses
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
of similar character may be tried jointly at the
discretion of the court. (14a)
NOTE: In complex crimes, only grave and less
grave felonies may be complexed or that one
offense is a necessary means to commit the other.
Hence, there would be no complex crime in
reckless imprudence resulting to slight physical
injuries and damage to property. But they may be
tried jointly. They are founded from the same facts
(Reodica vs. CA, reiterating Lontok vs. Gorgonio,
89 SCRA 632).
In these cases, the charges may be tried jointly at
the court’s discretion. The object of consolidation
of trials is to avoid multiplicity of suits, guard
against oppression or abuse, prevent delay, clear
congested dockets, simplify the work of the trial
court, and save unnecessary cost and expenses
(Palanca vs. Querubin, 30 SCRA 730).
CONSOLIDATION OF CIVIL ACTION (not
arising from the crime) WITH CRIMINAL
ACTION
The SC sustained the order of the trial court to
consolidate a civil action (an action for recovery of
wage differential, overtime, and termination pay
plus damages) with criminal action for violation of
Minimum Wage Law. The Court held that:
“a court may order several action pending before it to be
tried together where they arise from the same act, event
or transaction, involve the same or like issues, and
depend largely or substantially on the same evidence;
provided, that:
1. The court has jurisdiction over the cases to be
consolidated;
2. Joint trial will not give one party an undue
advantage or prejudice her substantial rights of
the other parties” (Canos vs. Peralta).
See also sec. 1,Rule 31.
Section 23. Demurrer to evidence. — After the
prosecution rests its case, the court may dismiss
the action on the ground of insufficiency of
evidence (1) on its own initiative after giving the
prosecution the opportunity to be heard or (2)
upon demurrer to evidence filed by the accused
with or without leave of court.
If the court denies the demurrer to evidence filed
with leave of court, the accused may adduce
evidence in his defense. When the demurrer to
evidence is filed without leave of court, the
accused waives the right to present evidence and
submits the case for judgment on the basis of the
evidence for the prosecution. (15a)
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The motion for leave of court to file demurrer to
evidence shall specifically state its grounds and
shall be filed within a non-extendible period of five
(5) days after the prosecution rests its case. The
prosecution may oppose the motion within a non-
extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file
the demurrer to evidence within a non-extendible
period of ten (10) days from notice. The
prosecution may oppose the demurrer to evidence
within a similar period from its receipt.
The order denying the motion for leave of court to
file demurrer to evidence or the demurrer itself
shall not be reviewable by appeal or by certiorari
before judgment. (n)
Notes: Rule not applicable if prosecution has
not rested
If the demurrer is sustained by the court, the order
of dismissal is tantamount to acquittal. Hence, not
appealable.
GR: The order denying the motion for leave of
court to file demurrer to evidence or the
demurrer itself shall not be reviewable by appeal
or by certiorari before judgment.
Exception: when there is grave abuse of
discretion, certiorari may be resorted to
(Congregation of the Religious of the Virgin
Mary vs. CA, 291 SCRA 385 [1998]).
The appellants informed the court that they will
file demurrer to evidence and the court agreed
to give them time to file the same is substantial
compliance of the required leave of court (P. vs.
Ciobal, 184 SCRA 469).
Demurrer to Evidence (2009) No.XVI.A.
After the prosecution had rested and made
its formal offer of evidence, with the court
admitting all of the prosecution evidence, the
accused filed a demurer to evidence with
leave of court. the prosecution was allowed to
comment thereon. Thereafter, the court
granted the demurer, finding that the
accused could not have committed the
offense charged. If the prosecution files a
motion for reconsideration on the ground
that the court order granting the demurer
was not in accord with law and
jurisprudence, will the motion prosper?
SUGGESTED ANSWER: NO, the motion will
not prosper. With the granting of the
demurrer, the case shall be dismissed and
the legal effect is the acquittal of the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
accused. A judgment of acquittal is
immediately executor and no appeal can
be made therefrom. Otherwise the
Constitutional protection against double
jeopardy would be violated.
Demurrer to Evidence; Civil Case vs.
Criminal Case (2007) No.V. (a) Distinguish
the effects of the filing of a demurrer to the
evidence in a criminal case and its filing in a
civil case. (5%) SUGGESTED ANSWER: The
following are the distinctions in effects of
demurrer to the evidence in criminal
cases from that in civil cases:
(1) In criminal cases, demurrer to the
evidence requires leave of court,
otherwise, the accused would lose his
right to present defense evidence if filed
and denied; in civil cases, no leave of
court is required for filing such demurrer.
(2) In criminal cases, when such demurrer
is granted, the dismissal of the case is not
appealable inasmuch as the dismissal
would amount to an acquittal, unless
made by a court acting without or in
excess of jurisdiction; in civil cases, when
such demurrer is granted, the dismissal of
the case can be appealed by the plaintiff.
(3) In criminal cases, the accused loses his
right to present his defense-evidence in
the trial court when he filed the demurrer
without prior leave of court; while in civil
cases, the defendant loses his right to
present his defense-evidence only if the
plaintiff appealed such dismissal and the
case is before the appellate court already
since the case would be decide only on the
basis of plaintiff‟s evidence on record.
Demurrer to Evidence; Contract of Carriage (2004)
AX, a Makati-bound paying passenger of PBU, a
public utility bus, died instantly on board the bus on
account of the fatal head wounds he sustained as a
result of the strong impact of the collision between the
bus and a dump truck that happened while the bus was
still travelling on EDSA towards Makati. The
foregoing facts, among others, were duly established
on evidence in-chief by the plaintiff TY, sole heir of
AX, in TY’s action against the subject common carrier
for breach of contract of carriage. After TY had rested
his case, the common carrier filed a demurrer to
evidence, contending that plaintiff’s evidence is
insufficient because it did not show (1) that defendant
was negligent and (2) that such negligence was the
proximate cause of the collision. Should the court
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grant or deny defendant's demurrer to evidence?
Reason briefly. (5%)
SUGGESTED ANSWER:
No. The court should not grant defendant's
demurrer to evidence because the case is for breach
of contract of carriage. Proof that the defendant was
negligent and that such negligence was the
proximate cause of the collision is not required.
(Articles 1170 and 2201, Civil Code; (Mendoza v. Phil.
Airlines, Inc., 90 Phil. 836 [1952]; Batangas
Transportation Co. v. Caguimbal, 22 SCRA171 U
968]; Abeto v. PAL, 115 SCRA 489 [1982]; Aboitiz v.
Court of Appeals, 129 SCRA 95 [1984]).
Demurrer to Evidence; w/o Leave of Court (1998)
Facing a charge of Murder, X filed a petition for bail.
The petition was opposed by the prosecution but after
hearing the court granted bail to X. On the first
scheduled hearing on the merits, the prosecution
manifested that it was not adducing additional
evidence and that it was resting its case. X filed a
demurrer to evidence without leave of court but it was
denied by the court.
1. Did the court have the discretion to deny the
demurrer to evidence under the circumstances
mentioned above? (2%)
2. If the answer to the preceding question is in the
affirmative, can X adduce evidence in his defense after
the denial of his demurrer to evidence? [1%]
3. Without further proceeding and on the sole basis of
the evidence of the prosecution, can the court legally
convict X for Murder? (2%)
SUGGESTED ANSWER:
1. Yes. The Court had the discretion to deny the
demurrer to the evidence, because although the
evidence presented by the prosecution at the hearing
for bail was not strong, without any evidence for the
defense, it could be sufficient for conviction.
2. No. Because he filed the demurrer to the evidence
without leave. (Sec. 15, Rule 119, Rules of Criminal Procedure.)
However, the trial court should inquire as to why the
accused filed the demurrer without leave and whether
his lawyer knew that the effect of filing it without leave
is to waive the presentation of the evidence for the
accused. (People vs. Fores, 269 SCRA 62.)
3. Yes. Without any evidence from the accused, the
prima facie evidence of the prosecution has been
converted to proof beyond reasonable doubt.
ALTERNATIVE ANSWER:
If the evidence of guilt is not strong and beyond
reasonable doubt then the court cannot legally convict
X for murder.
Demurrer to Evidence; w/o Leave of Court (2001)
Carlos, the accused in a theft case, filed a demurrer to
evidence without leave of court. The court denied the
demurrer to evidence and Carlos moved to present his
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
evidence. The court denied Carlos’ motion to present
evidence and instead judgment on the basis of the
evidence for the prosecution. Was the court correct in
preventing Carlos from presenting his evidence and
rendering judgment on the basis of the evidence for
the prosecution? Why? (5%)
SUGGESTED ANSWER:
Yes, because the demurrer to the evidence was filed
without leave of court. The Rules provide that when
the demurrer to evidence is filed without leave of
court, the accused waives the right to present evidence
and submits the case for judgment on the basis of the
evidence for the prosecution. (Sec. 23 of Rule 119, Revised
Rules of Criminal Procedure)
Demurrer to Evidence; w/o Leave of Court (2004)
The information for illegal possession of firearm filed
against the accused specifically alleged that he had no
license or permit to possess the caliber .45 pistol
mentioned therein. In its evidence-in-chief, the
prosecution established the fact that the subject
firearm was lawfully seized by the police from the
possession of the accused, that is, while the pistol was
tucked at his waist in plain view, without the accused
being able to present any license or permit to possess
the firearm. The prosecution on such evidence rested
its case and within a period of five days therefrom, the
accused filed a demurrer to evidence, in sum
contending that the prosecution evidence has not
established the guilt of the accused beyond reasonable
doubt and so prayed that he be acquitted of the
offense charged. The trial court denied the demurrer
to evidence and deemed the accused as having waived
his right to present evidence and submitted the case
for judgment on the basis of the prosecution evidence.
In due time, the court rendered judgment finding the
accused guilty of the offense charged beyond
reasonable doubt and accordingly imposing on him the
penalty prescribed therefor. Is the judgment of the trial
court valid and proper? Reason. (5%)
SUGGESTED ANSWER:
Yes. The judgment of the trial court is valid. The
accused did not ask for leave to file the demurrer to
evidence. He is deemed to have waived his right to
present evidence. (Sec. 23 of Rule 119; People v. Flores,
269 SCRA 62 [1997]; Bernardo v. Court of Appeals, 278
SCRA 782 [1997]. However, the judgment is not proper
or is erroneous because there was no showing from
the proper office like the Firearms Explosive Unit of
the Philippine National Police that the accused has a
permit to own or possess the firearm, which is fatal to
the conviction of the accused. (Mallari v. Court of
Appeals &People,265 SCRA 456[1996]).
Section 24. Reopening. — At any time before
finality of the judgment of conviction, the judge
may, motu proprio or upon motion, with hearing in
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either case, reopen the proceedings to avoid a
miscarriage of justice. The proceedings shall be
terminated within thirty (30) days from the order
granting it. (n)
Connect to sec. 6 Rule 135.
Connected to sec. 7, Rule 120:
Section 7. Modification of judgment. — A judgment of
conviction may, upon motion of the accused, be
modified or set aside before it becomes final or before
appeal is perfected. Except where the death penalty is
imposed, a judgment becomes final after the lapse of
the period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or served,
or when the accused has waived in writing his right to
appeal, or has applied for probation.
RULE 120
Judgment
Section 1. Judgment definition and form. —
Judgment is the adjudication by the court that the
accused is guilty or not guilty of the offense
charged and the imposition on him of the proper
penalty and civil liability, if any. It must be written
in the official language, personally and directly
prepared by the judge and signed by him and shall
contain clearly and distinctly a statement of the
facts and the law upon which it is based. (1a)
Note: It is not necessary that the judge who tried
the case be the same judicial officer to decide it. It
is sufficient if he be appraised of the evidence
already presented by reading of the transcript of
testimonies already introduced, in the same
manner as appellate courts review evidence on
appeal (P. vs. Peralta, 237 SRA 220 [1994]).
REMEDY IF THE JUDGMENT IS NOT PUT IN
WRITING: To file a petition for mandamus to
compel the judge to put in writing the decision of
the court.
The court has the right to reprehend acts of the
accused despite his acquittal provided that it is
relevant to the issues of the case (P. vs. Meneses,
74 Phil. 119).
Section 2. Contents of the judgment. — If the
judgment is of conviction, it shall state:
(1) the legal qualification of the offense
constituted by the acts committed by the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
accused and the aggravating or mitigating
circumstances which attended its commission;
(2) the participation of the accused in the
offense, whether as principal, accomplice, or
accessory after the fact;
(3) the penalty imposed upon the accused;
and
(4) the civil liability or damages caused by
his wrongful act or omission to be recovered
from the accused by the offended party, if
there is any, unless the enforcement of the
civil liability by a separate civil action has been
reserved or waived.
In case the judgment is of acquittal, it shall state
whether the evidence of the prosecution
absolutely failed to prove the guilt of the accused
or merely failed to prove his guilt beyond
reasonable doubt. In either case, the judgment
shall determine if the act or omission from which
the civil liability might arise did not exist. (2a)
Connected to:
Art. 29, NCC. When the accused in a criminal
prosecution is acquitted on the ground that
his guilt has not been proved beyond
reasonable doubt, a civil action for damages
for the same act or omission may be
instituted. Such action requires only a
preponderance of evidence. Upon motion of
the defendant, the court may require the
plaintiff to file a bond to answer for damages
in case the complaint should be found to be
malicious.
If in a criminal case the judgment of acquittal
is based upon reasonable doubt, the court
shall so declare. In the absence of any
declaration to that effect, it may be inferred
from the text of the decision whether or not
the acquittal is due to that ground.
Otherwise, the judgment must make a finding on
the civil liability of the accused in favor of the
offended party. There appears to be no sound
reasons to require a separate civil action to still be
filed considering that the facts to be proved in the
civil case have already been established in the
criminal proceedings where the accused was
acquitted. Due process has been accorded the
accused (Padilla vs. CA, 129 SCRA 558).
REASONABLE DOUBT
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The state of the case which, after full
consideration of all evidence, leaves the mind of
the judge in such a condition that he cannot say
that he feels an abiding conviction, to a moral
certainty, of the truth of the charge.
ACQUITTAL
Finding of not guilty based on the merits, that is,
the accused is acquitted because the evidence
does not show that his guilt is beyond reasonable
doubt, or a dismissal of the case after the
prosecution has rested its case upon motion of the
accused on the ground that the evidence fails to
show beyond reasonable doubt that the accused
is guilty
It is well-settled that acquittal , in a criminal case is
immediately final and executory upon its
promulgation, and that accordingly, the state may
not seek its review without placing the accused in
double jeopardy (Barbers vs. Laguio,351 SCRA
606).
Strict compliance of the first par. of section 2. The
decision must clearly state the facts and the law
on which it is based (P. vs. Bugarin, GR NO.
110817-22, June 13, 1997).
Trial courts should not merely reproduce
everything testified to by witness (P. vs. Molina,
GR NO. 70008, April 26, 1990).
Narration of the substance of the testimony of
witness was held enough statement of facts (P.
vs. Sabijon, 94 Phil. 1047).
Trial court must make an independent assessment
of the evidence and must not solely rely on the
word of the prosecution on the suppose
insufficiency of evidence (Martinez vs. CA, 237
SCRA575 [1994]).
Express specification of the law violated not
necessary. If the conclusion is based upon some
provision of law, the sentence will be sustained
(US vs. Mendoza, 14 Phil. 198).
Alternative penalty may not be imposed. Hence,
the sentence to pay the fine of P460 or to suffer
imprisonment for 3 months is invalid (P. vs.
Egudez, 36 Phil. 860).
NOTE: This is different to subsidiary penalty for
failure to pay fine as provided as provided in art.
38 and 39, RPC.
ACQUITTAL IN A CRIMINAL CASE DOES NOT
BAR CONTINUATION OF CIVIL LIABILITY
CONNECTED THEREWITH:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
1. The acquittal is based on reasonable
doubt;
2. The decision contains a declaration that
the liability is only civil not criminal;
3. Civil liability is not derived from the
criminal act of which the accused is
acquitted (Sadio vs. RTC of Antique, 201
SCRA 744).
GR: Duty of the court to award civil liability (P. vs.
Ursua, 60 Phil. 252).
Exceptions:
1. Civil liability is waived;
2. Claim for civil liability is reserved;
3. Civil liability, when allowed by law, is
separately filed.
Failure to award civil liability is appealable
(Bernardo vs. CA, 190 SCRA 63).
When civil liability is proper, there is no need to file
separate action for its award, despite acquittal of
the accused (Interpacific Transit vs. Aviles, 186
SCRA 385).
CIVIL LIABILITY ARISING FROM CRIMES
INCLUDES:
1. Actual damages;
2. Exemplary damages;
3. Loss of earning capacity;
4. Attorney’s fees, when exemplary
damages is to be awarded or separate
civil action was filed (P. vs. Marollano, 276
SCRA 84);
5. Moral damages
6. Liability ex delictu.
The court should, however, specify the extent of
damages and not lump them altogether (P. vs.
Castillo, 261SCRA 493).
Section 3. Judgment for two or more offenses.
— When two or more offenses are charged in a
single complaint or information but the accused
fails to object to it before trial, the court may
convict him of as many offenses as are charged
and proved, and impose on him the penalty for
each offense, setting out separately the findings of
fact and law in each offense. (3a)
Bar Exam Question 2011
(66) What is the effect of the failure of the
accused to file a motion to quash an
information that charges two offenses? (A) He
may be convicted only of the more serious
offense. (B) He may in general be convicted
of both offenses. (C) The trial shall be void.
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(D) He may be convicted only of the lesser
offense.
Connected to RPC, art. 70:
Art. 70. Successive service of sentence. — When
the culprit has to serve two or more penalties, he
shall serve them simultaneously if the nature of
the penalties will so permit otherwise, the
following rules shall be observed:
In the imposition of the penalties, the order of
their respective severity shall be followed so that
they may be executed successively or as nearly as
may be possible, should a pardon have been
granted as to the penalty or penalties first
imposed, or should they have been served out.
For the purpose of applying the provisions of the
next preceding paragraph the respective severity
of the penalties shall be determined in
accordance with the following scale:
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Arresto menor,
8. Destierro,
9. Perpetual absolute disqualification,
10 Temporal absolute disqualification.
11. Suspension from public office, the right to
vote and be voted for, the right to follow a
profession or calling, and
12. Public censure.
Notwithstanding the provisions of the rule next
preceding, 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.
Such maximum period shall in no case exceed
forty years.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
In applying the provisions of this rule the duration
of perpetual penalties (pena perpetua) shall be
computed at thirty years.
Section 4. Judgment in case of variance
between allegation and proof. — When there is
variance between the offense charged in the
complaint or information and that proved, and 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. (4a)
Designation of offense in the information is not
necessarily the crime charged. Settled is the
rule that in case of variance between the
designation of the offense in the caption/title and
as alleged in the body (recital of facts) of the
complaint/information, the latter prevails (US vs.
Burns, 41 Phil. 418).
Note: keep in mind that the accused can only be
convicted of the lesser offense.
An accused cannot be convicted for the lesser
offense necessarily included in the offense
charged if at the time of the filing of the
information, the lesser offense has already
prescribed (Francisco vs. CA, 122 SCRA 538)
Section 5. When an offense includes or is
included in another. — An offense charged
necessarily includes the offense proved when
some of the essential elements or ingredients of
the former, as alleged in the complaint or
information, constitute the latter. And an offense
charged is necessarily included in the offense
proved, when the essential ingredients of the
former constitute or form a part of those
constituting the latter. (5a)
GR: If what is proved by the prosecution is an
offense which is included in the offense charged,
the accused may be convicted of the offense
proved.
Exception: Where the facts supervened after the
fling of the information which changes the nature
of the offense.
Example:
A. Offense charged necessarily includes offense
proved
Charge is acts of lasciviousness but
proved is just unjust vexation; convict the
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accused of unjust vexation, the crime
proved.
B. Offense charged is necessarily included in the
offense proved
Charge is acts of lasciviousness but
proved is attempted rape; convict the
accused of acts of lasciviousness, the
crime charged.
ADDITIONAL EXAMPLES:
 Anti-Graft includes falsification of official
and commercial documents (Pecho, vs.
Sandiganbayan);
 Willful acts includes commission of
negligent acts (Samson vs. CA, 103 Phil.
277);
 One charged of rape cannot be convicted
of qualified seduction (P. vs. Castro, 58
SCRA 473);
However, when the allegations of the
information contains allegations sufficient
to make-out a case of qualified seduction,
he should be convicted of qualified
seduction despite the charge of rape
(Gonzales vs. CA, 232 SCRA 667 [1994]).
 Simple robbery included in kidnapping
with ransom (P. vs. Puno, 219 SCRA 85);
 An accused charged with a complex crime
may be convicted of one of the
component crimes (US. Vs. Lahoylahoy,
38 Phil. 350);
 Technical malversation is not included or
does not include the crime of malversation
of public funds (Parungao vs.
Sandiganbayan, 197 SCRA173);
 Co-Principal may be convicted as
accessory even if the principal is acquitted
(Vino vs. People 178 SCRA 626);
 The fact that information indicated
marijuana leaves while laboratory report
mentioned flowering tops is not a ground
for acquittal (P. vs. Viloria, 191 SCRA
777).
Section 6. Promulgation of judgment. — The
judgment is promulgated by reading it in the
presence of the accused and any judge of the
court in which it was rendered. However, if the
conviction is for a light offense, the judgment may
be pronounced in the presence of his counsel or
representative. When the judge is absent or
outside of the province or city, the judgment may
be promulgated by the clerk of court.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
If the accused is confined or detained in another
province or city, the judgment may be
promulgated by the executive judge of the
Regional Trial Court having jurisdiction over the
place of confinement or detention upon request of
the court which rendered the judgment. The court
promulgating the judgment shall have authority to
accept the notice of appeal and to approve the bail
bond pending appeal; provided, that if the decision
of the trial court convicting the accused changed
the nature of the offense from non-bailable to
bailable, the application for bail can only be filed
and resolved by the appellate court.
The proper clerk of court shall give notice to the
accused personally or through his bondsman or
warden and counsel, requiring him to be present
at the promulgation of the decision. If the accused
tried in absentia because he jumped bail or
escaped from prison, the notice to him shall be
served at his last known address.
In case the accused fails to appear at the
scheduled date of promulgation of judgment
despite notice, the promulgation shall be made by
recording the judgment in the criminal docket and
serving him a copy thereof at his last known
address or thru his counsel.
If the judgment is for conviction and the failure of
the accused to appear was without justifiable
cause, he shall lose the remedies available in
these rules against the judgment and the court
shall order his arrest. Within fifteen (15) days from
promulgation of judgment, however, the accused
may surrender and file a motion for leave of court
to avail of these remedies. He shall state the
reasons for his absence at the scheduled
promulgation and if he proves that his absence
was for a justifiable cause, he shall be allowed to
avail of said remedies within fifteen (15) days from
notice. (6a)
Bar Exam Question 2012
13. P failed to appear at the promulgation of
judgment without justifiable cause. The
judgment convicted P for slight physical
injuries. Judgment may therefore be
promulgated in the following manner:
a. By the reading of the judgment in the
presence of only the judge.
b. By the clerk of court in the presence of P's
counsel.
c. By the clerk of court in the presence of a
representative of P.
d. By entering the judgment into the
criminal docket of the court.
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________________________________________________________________________________________________
SUGGESTED ANSWER: (d), If P fails to
appear at the promulgation of judgment
without justifiable cause, the
promulgation shall be made by recording
the judgment in the criminal docket and
serving him a copy thereof at his last
known address or thru his counsel. (Rule
120, Sec. 6, Rules of Court).
Bar Exam Question 2011
(22) The accused jumps bail and fails to
appear on promulgation of judgment where
he is found guilty. What is the consequence
of his absence? (A) Counsel may appeal the
judgment in the absence of the accused. (B)
The judgment shall be promulgated in his
absence and he loses his right of appeal.
(C) The promulgation of the judgment shall
be suspended until he is brought to the
jurisdiction of the court. (D) The judgment
shall be void.
Notes:
1. The judgment must have been rendered
and promulgated during the incumbency
of the judge who signed it;
2. The presence of counsel during
promulgation of judgment is not necessary
(Gonzales vs. Presiding Judge of Br.
1RTC of Bohol, 186 SCRA 101);
3. Presence of the accused during
promulgation is not indispensable.
Judges are required to take down notes of salient
portions of the hearing and to proceed in the
preparation of decisions without waiting for the
TSN; with or without the TSN, the 90 day period
for deciding cases should be adhered to (Lowan
vs. Moleta, 90 SCRA 579).
Judgment must be promulgated in its entirety.
Mere reading of the dispositive portion is not
sufficient (Dizon vs. Lopez, 278 SCRA 483).
Judgment; Promulgation of Judgment (1997)
X, the accused in a homicide case before the RTC.
Dagupan Cay, was personally notified of the
promulgation of judgment in his case set for 10
December 1996. On said date. X was not present as he
had to attend to the trial of another criminal case
against him in Tarlac, Tarlac. The trial court denied the
motion of the counsel of X to postpone the
promulgation.
(a) How shall the court promulgate the judgment in
the absence of the accused?
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(b) Can the trial court also order the arrest of X?
SUGGESTED ANSWER:
(a) In the absence of the accused, the promulgation
shall be made by recording the Judgment in the
criminal docket and a copy thereof served upon the
accused or counsel. (Sec. 6. third par., Rule 120)
(b) No, the trial court cannot order the arrest of X if
the judgment is one of acquittal and, in any event, his
failure to appear was with justifiable cause since he had
to attend to another criminal case against him.
Bar Exam Question 2012
58. The judgment in a criminal case may be
promulgated by the following, except by:
a. a Sandiganbayan justice in cases
involving anti-graft laws.
b. a Clerk of Court of the court which
rendered judgment.
c. an Executive Judge of a City Court if the
accused is detained in another city.
d. any judge of the court in which it was
rendered.
SUGGESTED ANSWER:
(a), The Sandiganbayan is a special court
of the same level as the Court of Appeals
(CA), and possessing all the inherent
powers of a court of justice, with
functions of a trial court. It is a collegial
court. x x x The members of the graft
court act on the basis of consensus or
majority rule. The three Justices of a
division, rather than a single judge, are
naturally expected to exert keener
judiciousness and to apply broader
circumspection in trying and deciding
cases. (Edgar Payumo et al. Vs. Hon.
Sandiganbayan et al., G.R. No. 151911,
July 25, 2011, Mendoza, J.). Thus, a
Sandiganbayan Justice alone may not
promulgate judgment in a criminal case
involving anti-graft laws. On the other
hand, a judgment in the regular court is
promulgated by reading it in the presence
of the accused and any judge of the court
in which it was rendered. When the judge
is absent or outside the province or city,
the judgment may be promulgated by the
clerk of court. if the accused is confined
or detained in another province or city,
the judgment may be promulgated by the
executive judge of the Regional Trial
Court having jurisdiction over the place of
confinement or detention upon request of
the court which rendered the judgment.
(Rule 120, Sec. 6, Rules of Court).
SEE ALSO NOTES ON DOUBLE JEOPARDY.
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Section 7. Modification of judgment. — A
judgment of conviction may, upon motion of the
accused, be modified or set aside before it
becomes final or before appeal is perfected.
Except where the death penalty is imposed, a
judgment becomes final after the lapse of the
period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or
served, or when the accused has waived in writing
his right to appeal, or has applied for probation.
(7a)
Bar Exam Question 2012
61. A judgment of conviction in a criminal
case becomes final when:
a. accused orally waived his right to appeal.
b. accused was tried in absentia and failed to
appear at the promulgation.
c. accused files an application for
probation.
d. reclusion perpetua is imposed and the
accused fails to appeal.
SUGGESTED ANSWER: (c), A judgment of
conviction in a criminal case becomes
final when the accused after the lapse of
the period for perfecting an appeal, or
when the sentence has been partially or
totally satisfied or served, or when the
accused has waived in writing his right to
appeal, or has applied for probation (Rule
120, Sec. 7, Rules of Court).
Connect to section 24, Rule 119:
Section 24. Reopening. — At any time before
finality of the judgment of conviction, the judge
may, motu proprio or upon motion, with hearing in
either case, reopen the proceedings to avoid a
miscarriage of justice. The proceedings shall be
terminated within thirty (30) days from the order
granting it.
Notes: Modification of final judgment by the trial
court was not allowed. The judgment in this case
did not include the confiscation of the money
found at the time and place of gambling.
Modification of said judgment to include
confiscation of such money is barred by double
jeopardy (US. Vs. Hart, 24 Phil. 578).
However, when there is an express reservation as
to the disposition of the money found in the pocket
of the person who already paid the fine, there is
no double jeopardy (Lim vs. Oreta, 94 Phil. 40).
IMPORTANT: It must be noted that under art. 45,
RPC, confiscation and forfeiture of the proceeds
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
or instruments of the crime are merely accessory
penalty. Hence, they are automatically deemed
included in the imposition of the principal penalty.
Art. 45, RPC. Confiscation and forfeiture of the
proceeds or instruments of the crime. — Every
penalty imposed for the commission of a
felony shall carry with it the forfeiture of the
proceeds of the crime and the instruments or
tools with which it was committed.
Such proceeds and instruments or tools shall
be confiscated and forfeited in favor of the
Government, unless they be property of a
third person not liable for the offense, but
those articles which are not subject of lawful
commerce shall be destroyed.
The trial court can validly amend the civil aspect of
its decision within 15 days from promulgation of
judgment even though the appeal had in the
meantime already been perfected by the accused
from the judgment of conviction
Section 8. Entry of judgment. — After a
judgment has become final, it shall be entered in
accordance with Rule 36. (8)
Section 2. Entry of judgments and final orders.
— If no appeal or motion for new trial or
reconsideration is filed within the time provided in
these Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of
entries of judgments. The date of finality of the
judgment or final order shall be deemed to be the
date of its entry. The record shall contain the
dispositive part of the judgment or final order and
shall be signed by the clerk, within a certificate that
such judgment or final order has become final and
executory.
The final judgment of the court is carried into
effect by the process called “mittimus”.
MITTIMUS
It is a process issued by the court after conviction
to carry out final judgment, such as commanding a
prison warden to hold the accused in accordance
with the terms of the judgment.
Section 9. Existing provisions governing
suspension of sentence, probation and parole
not affected by this Rule. — Nothing in this Rule
shall affect any existing provisions in the laws
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governing suspension of sentence, probation or
parole. (9a)
NOTE: Suspension of sentence, Probation, and
Parole are substantially discussed in separate
subject (Criminal Law Reviewer).
RULE 121
New Trial or Reconsideration
NOTE: “WRIT OF ERROR CORAM NOBIS”
A remedy under American jurisdiction whereby the
lingering effects of an erroneous conviction based
on an unconstitutional law or a sham trial is
removed or erased. Ex.:
1. Recidivism;
2. Habitual delinquency;
3. Reiteracion;
4. Moral turpitude.
NEW TRIAL
It is the rehearing of the case decided but before
judgment of conviction becomes final, whereby
errors of law or irregularities are expunged from
the record or new evidence is introduced, or both
steps are taken.
Bar Exam Question 2011
(83) What is the effect and ramification of an
order allowing new trial? (A) The court’s
decision shall be held in suspension until the
defendant could show at the reopening of
trial that it has to be abandoned. (B) The
court shall maintain the part of its judgment
that is unaffected and void the rest. (C) The
evidence taken upon the former trial, if
material and competent, shall remain in
use. (D) The court shall vacate the judgment
as well as the entire proceedings had in the
case.
A motion for new trial or reconsideration should be
filed with the trial court within 15 days from the
promulgation of judgment and interrupts the period
for perfecting an appeal from the time of its filing
until notice of the order overruling the motion shall
have been served upon the accused or his
counsel.
.Fresh period rule in Neypes vs. CA
equally applies in criminal cases (Yu vs.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Hon. Samson-Tatad, GR No. 170979,
Feb. 9, 2011).
A motion for reconsideration of the judgment may
be filed in order to correct errors of law or fact in
the judgment. It does not require further
proceedings.
Appeals; Abandonment of a Perfected Appeal (2009)
No.XI.E. The filing of a motion for the reconsideration
of the trial court’s decision results in the abandonment
of a perfected appeal. SUGGESTED ANSWER: FALSE.
The trial court has lost jurisdiction after perfection of
the appeal and so it can no longer entertain a motion
for reconsideration. ALTERNATIVE ANSWER: FALSE,
because the appeal may be perfected as to one party
but not yet perfected as to the other party who may
still file a motion for reconsideration without
abandonment of his right of appeal even though the
appeal of the case is perfected already as to the other
party.
Section 1. New trial or reconsideration. — At
any time before a judgment of conviction becomes
final, the court may, on motion of the accused or
at its own instance but with the consent of the
accused, grant a new trial or reconsideration. (1a)
NOTE: Once the appeal is perfected, the trial
steps out of the case an the appellate court steps
in. should it come to pass then that during the
pendency of the appeal, new and material
evidence, for example, has been discovered, the
accused may file a motion for new trial in the
appellate court.
The trial court can take cognizance of the motion
for reconsideration filed by the private offended
party within the period to appeal with respect to
the civil liability even the accused had already
perfected his appeal (P. vs. Ursua, 60 Phil. 252).
CASES WHEN THE TRIAL COURT LOSES
JURISDICTION OVER THE SENTENCE
BEFORE LAPSE OF 15 DAYS:
1. When the accused voluntarily submits to
the execution of the sentence;
2. When the accused perfects his appeal.
The moment appeal is perfected, the court
a quo loses jurisdiction over it, except for
correcting clerical errors.
Note: Under the civil procedure there is
such a thing called “Residual Powers of
the court”.
NEW TRIAL REOPENING OF THE
CASE
Filed after judgment is Made by the court
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rendered but before before judgment is
finality thereof rendered in the
exercise of sound
discretion
Made by the court on Does not require the
motion of the accused consent of the accused;
or at its own instance may be made by either
but with the consent of party who can
the accused thereafter present
additional evidence
Section 2. Grounds for a new trial. — The court
shall grant a new trial on any of the following
grounds:
(a) The errors of law or irregularities
prejudicial to the substantial rights of the
accused have been committed during the trial;
(b) The new and material evidence has been
discovered which the accused could not with
reasonable diligence have discovered and
produced at the trial and which if introduced
and admitted would probably change the
judgment. (2a)
Requisites for newly discovered evidence as
ground for new trial:
1. That the evidence is material;
2. Evidence is discovered after trial;
3. That the evidence could not have been
discovered and produced at the trial even
with the exercise of reasonable diligence;
4. Evidence is not merely cumulative,
corroborative, or impeaching;
5. The evidence is of such weight that if
admitted would probably change the
judgment;
6. Affidavits of witnesses by whom such
evidence is expected to be given [or duly
authenticated documents sought to be
introduced](P. vs. Dela Cruz, 2 SCRA
1119).
7. Notice to the prosecutor;
8. Hearing.
IMPORTANT: Pro forma rule is not applicable in
criminal cases (P. vs. Colmenares, 107 Phil 220).
Lost appeal cannot be retrieved by a motion for
new trial (Navarro vs. CA, 234 SCRA 639).
Mistakes of counsel in the conduct of the trial are
not grounds for a new trial. This rule is the same
whether the mistakes are result of ignorance,
inexperience, or incompetence (US vs. Umali, 15
Phil. 37).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
However, if the incompetence, ignorance, or
inexperience of counsel is so great and the error
committed as a result thereof is so serious that the
client, who otherwise has a good cause, is
prejudiced and denied his day in court, the
litigation may be re-opened to give the client a
chance to present his case.
Violation of right to counsel is a ground for new
trial (Delgado vs. CA, 145 SCRA 357).
[Right to counsel means reasonably effective
assistance].
Dismissal of appeal is set aside if lawyer is fake
(Telan vs. CA, 202 SCRA 534). But note on the
case of P. vs. Elesterio, supra.
Loss of stenographic notes after trial is not a
ground for new trial, the remedy is the
reconstitution of missing evidence (P. vs. Bocar,
97 Phil. 398).
OTHER GROUNDS FOR NEW TRIAL:
1. Section 11, Rule 124. Scope of judgment. —
The Court of Appeals may reverse, affirm, or
modify the judgment and increase or reduce
the penalty imposed by the trial court, remand
the case to the Regional Trial Court for new
trial or retrial, or dismiss the case.;
2. Power of the SC to suspend it own for the
benefit of substantial justice;
3. Recantation of witness
The GR is that recantation of witness is
frowned upon and looked upon with
disfavor because they can easily be
secured usually for monetary
consideration.
Exception: when, however, the sole basis
of conviction is the testimony of the
recanting witness, a new trial may be had
(P. vs. Bocar, supra).
Confession; Affidavit of Recantation (1998)
1 If the accused on the witness stand repeats his earlier
uncounseled extrajudicial confession implicating his
coaccused in the crime charged, is that testimony
admissible in evidence against the latter? [3%]
2 What is the probative value of a witness' Affidavit of
Recantation? [2%]
SUGGESTED ANSWER:
1. Yes. The accused can testify by repeating his earlier
uncounseled extrajudicial confession, because he can
be subjected to cross-examination.
2. On the probative value of an affidavit of
recantation, courts look with disfavor upon
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recantations because they can easily be secured from
witnesses, usually through intimidation or for a
monetary consideration, Recanted testimony is
exceedingly unreliable. There is always the probability
that it will be repudiated. (Molina vs. People. 259 SCRA
138.)
RECANTATION AFFIDAVIT OF
DESISTANCE
To renounce and To formally declare the
withdraw a prior lack of interest in the
statement formally and prosecution of the
publicly action against the
accused
Section 3. Ground for reconsideration. — The
court shall grant reconsideration on the ground of
errors of law or fact in the judgment, which
requires no further proceedings. (3a)
BERRY RULE
Burden is on the accused to proved that the
requisites for New Trial or Reconsideration is
fully satisfied (Ucat).
Section 4. Form of motion and notice to the
prosecutor. — The motion for a new trial or
reconsideration shall be in writing and shall state
the grounds on which it is based. If based on a
newly-discovered evidence, the motion must be
supported by affidavits of witnesses by whom
such evidence is expected to be given or by duly
authenticated copies of documents which are
proposed to be introduced in evidence. Notice of
the motion for new trial or reconsideration shall be
given to the prosecutor. (4a)
Note: While the rule requires that an affidavit of
merits must be attached to support a motion for
new trial based on newly discovered evidence,
yet the defect or lack of it may be cured by
testimony under oath of the defendant at the
hearing of the motion (Paredes vs. Borja 3
SCRA 495)
Section 5. Hearing on motion. — Where a
motion for a new trial calls for resolution of any
question of fact, the court may hear evidence
thereon by affidavits or otherwise. (5a)
Section 6. Effects of granting a new trial or
reconsideration. — The effects of granting a new
trial or reconsideration are the following:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(a) When a new trial is granted on the ground
of errors of law or irregularities committed
during the trial, all proceedings and evidence
affected thereby shall be set aside and taken
anew. The court may, in the interest of justice,
allow the introduction of additional evidence.
(b) When a new trial is granted on the ground
of newly-discovered evidence, the evidence
already adduced shall stand and the newly-
discovered and such other evidence as the
court may, in the interest of justice, allow to be
introduced shall be taken and considered
together with the evidence already in the
record.
(c) In all cases, when the court grants new
trial or reconsideration, the original judgment
shall be set aside or vacated and a new
judgment rendered accordingly. (6a)
NOTE: The effect of granting new trial is not to
acquit the accused of the crime of which the
judgment finds him guilty, but precisely to set
aside the judgment so that the case may be tried
de novo as if no trial had been had before.
RULE 122
Appeal
Section 1. Who may appeal. — Any party may
appeal from a judgment or final order, unless the
accused will be placed in double jeopardy. (2a)
APPEAL
It is a proceeding for review by which the whole
case is transferred to the higher court for final
determination.
An appeal is not an inherent right of a person. The
right to appeal is and always has been statutory.
Only final orders or judgments are appealable.
An order granting new trial in criminal cases is
appealable (P. vs. CA, 82 SCRA 607).
EFFECT OF AN APPEAL
An appeal in a criminal case opens the whole
case for review and this includes the review of the
penalty, indemnity, and the damages involved.
Consequently, on appeal, the appellate court may
increase the penalty, indemnity, or damages
awarded by the trial court, although the offended
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party had not appealed from such award, and the
party who sought a review is the accused.
From the judgment of conviction, two appeals may
be accordingly be taken:
1. The accused may seek review of said
judgment, as regards both action; or
2. The complainant may appeal with respect
to the civil liability, either because the
lower court has refused of failed to award
damages, or because the award is
unsatisfactory to him.
For discussion on the right of the prosecution to
appeal, see discussions on double jeopardy.
GR: A private prosecutor in a criminal case has no
authority to act for the People before the court on
appeal. It is the government’s counsel, the Solgen,
who appears in criminal cases or their incidents
before the SC. At the very least, the provincial
prosecutor himself, with the conformity of the
solgen, shall act for the People.
Exception: The civil award may be appealed by
the private prosecutor on behalf of the offended
party or his successors.
Plea of double jeopardy in certiorari is premature.
Where the validity of the orders of dismissal is
precisely the issue, the preliminary issue of
whether or not double jeopardy is available in
certiorari is premature. If the order of dismissal is
upheld, there is double jeopardy for subsequent
prosecution. If order of dismissal is invalidated,
there is no double jeopardy (P. vs. Castañeda, GR
NO. L-46882 Sept. 15, 1988).
Section 2. Where to appeal. — The appeal may
be taken as follows:
(a) To the Regional Trial Court, in cases
decided by the Metropolitan Trial Court,
Municipal Trial Court in Cities, Municipal Trial
Court, or Municipal Circuit Trial Court;
(b) To the Court of Appeals or to the Supreme
Court in the proper cases provided by law, in
cases decided by the Regional Trial Court;
and
(c) To the Supreme Court, in cases decided
by the Court of Appeals. (1a)
Remedies; Appeal to SC; Appeals to CA (2002)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
a) What are the modes of appeal to the Supreme
Court? (2%)
b) Comment on a proposal to amend Rule 122,
Section 2(b), in relation to Section 3(c), of the Revised
Rules of Criminal Procedure to provide for appeal to
the Court of Appeals from the decisions of the RTC in
criminal cases, where the penalty imposed is reclusion
perpetua or life imprisonment, subject to the right of
the accused to appeal to the Supreme Court. (3%)
SUGGESTED ANSWER:
A. The modes of appeal to the Supreme Court are:
(a) APPEAL BY CERTIORARI on pure questions of
law under Rule 45 through a petition for review
oncertiorari; and
(b) ORDINARY APPEAL in criminal cases through a
notice of appeal from convictions imposing reclusion
perpetua or life imprisonment or where a lesser
penalty is involved but for offenses committed on the
same occasion or which arose out of the same
occurrence that gave rise to the more serious offense.
(Rule 122, sec. 3) Convictions imposing the death penalty
are elevated through automatic review.
B. There is no constitutional objection to providing in
the Rules of Court for an appeal to the Court of
Appeals from the decisions of the RTC in criminal
cases where the penalty imposed is reclusion perpetua
or life imprisonment subject to the right of the accused
to appeal to the Supreme Court, because it does not
deprive the Supreme Court of the right to exercise
ultimate review of the judgments in such cases.
Section 3. How appeal taken. —
(a) The appeal to the Regional Trial Court, or
to the Court of Appeals in cases decided by
the Regional Trial Court in the exercise of its
original jurisdiction, shall be taken by filing a
notice of appeal with the court which
rendered the judgment or final order appealed
from and by serving a copy thereof upon the
adverse party.
(b) The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in
the exercise of its appellate jurisdiction shall
be by petition for review under Rule 42.
(c) The appeal to the Supreme Court in cases
where the penalty imposed by the Regional
Trial Court is death, reclusion perpetua, or life
imprisonment, or where a lesser penalty is
imposed but for offenses committed on the
same occasion or which arose out of the
same occurrence that gave rise to the more
serious offense for which the penalty of death,
reclusion perpetua, or life imprisonment is
imposed, shall be by filing a notice of appeal
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in accordance with paragraph (a) of this
section.
(d) No notice of appeal is necessary in cases
where the death penalty is imposed by the
Regional Trial Court. The same shall be
automatically reviewed by the Supreme
Court as provided in section 10 of this Rule.
(e) Except as provided in the last paragraph of
section 13, Rule 124, all other appeals to the
Supreme Court shall be by petition for review
on certiorari under Rules 45. (3a)
NOTE: Appeals falling under subsection (c) and
(d) was subsequently transferred to the CA (AM
NO. 00-5-03-SC, Oct. 15, 2004).
However, with the abolition of death penalty, there
is no more automatic appeal.
MODES OF REVIEW
The Rules recognizes 4 modes by which the
decision or final order of the court may be
reviewed by a higher tribunal, viz.:
1. Ordinary appeal;
2. Petition for review (appeal from decision
rendered on the courts appellate
jurisdiction);
3. Petition for review on certiorari (pure
questions of law-Rule 45);
4. Automatic appeal(death penalty).
Section 4. Publication of notice of appeal. — If
personal service of the copy of the notice of
appeal can not be made upon the adverse party or
his counsel, service may be done by registered
mail or by substituted service pursuant to sections
7 and 8 of Rule 13. (4a)
Section 7. Service by mail. — Service by registered
mail shall be made by depositing the copy in the post
office in a sealed envelope, plainly addressed to the
party or his counsel at his office, if known, otherwise
at his residence, if known, with postage fully prepaid,
and with instructions to the postmaster to return the
mail to the sender after ten (10) days if undelivered. If
no registry service is available in the locality of either
the senders or the addressee, service may be done
by ordinary mail.
Section 8. Substituted service. — If service of
pleadings, motions, notices, resolutions, orders and
other papers cannot be made under the two
preceding sections, the office and place of residence
of the party or his counsel being unknown, service
may be made by delivering the copy to the clerk of
court, with proof of failure of both personal service
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
and service by mail. The service is complete at the
time of such delivery.
PUBLICATION OF NOTICE OF APPEAL
If copy of the notice of appeal cannot be served
on the adverse party or his counsel, it may be
done by publication.
Service by publication is made in a newspaper
of general circulation in the vicinity once a week
for a period not exceeding 30 days (Pamaran, p.
636).
Notice of appeal must be in writing and filed with
the clerk of court (US. Vs. Tenorio, 37Phil. 7).
However verbal notice of appeal made in open
court together with the filing of the bond
constitute substantial compliance with the Rules
(P. vs. Agasang, 99 Phil. 11).
Notice of appeal by registered mail is valid
(Yangco vs. Ocampo, 57 Phil. 1).
Section 5. Waiver of notice. — The appellee may
waive his right to a notice that an appeal has been
taken. The appellate court may, in its discretion,
entertain an appeal notwithstanding failure to give
such notice if the interests of justice so require.
(5a)
Section 6. When appeal to be taken. — An
appeal must be taken within fifteen (15) days from
promulgation of the judgment or from notice of the
final order appealed from. This period for
perfecting an appeal shall be suspended from the
time a motion for new trial or reconsideration is
filed until notice of the order overruling the motion
shall have been served upon the accused or his
counsel at which time the balance of the period
begins to run. (6a)
NOTE: In computing the period to appeal, the first
day is excluded and the last day is included.
Should the last day fall on a Sunday or a legal
holiday, the period continues to run until the next
day which is neither a Sunday nor holiday (sec.
13, Revised Administrative Code).
Section 7. Transcribing and filing notes of
stenographic reporter upon appeal. — When
notice of appeal is filed by the accused, the trial
court shall direct the stenographic reporter to
transcribe his notes of the proceedings. When
filed by the People of the Philippines, the trial
court shall direct the stenographic reporter to
transcribe such portion of his notes of the
proceedings as the court, upon motion, shall
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specify in writing. The stenographic reporter shall
certify to the correctness of the notes and the
transcript thereof, which shall consist of the
original and four copies, and shall file the original
and four copies with the clerk without unnecessary
delay.
If death penalty is imposed, the stenographic
reporter shall, within thirty (30) days from
promulgation of the sentence, file with the clerk
original and four copies of the duly certified
transcript of his notes of the proceedings. No
extension of time for filing of said transcript of
stenographic notes shall be granted except by the
Supreme Court and only upon justifiable grounds.
(7a)
Section 8. Transmission of papers to appellate
court upon appeal. — Within five (5) days from
the filing of the notice of appeal, the clerk of the
court with whom the notice of appeal was filed
must transmit to the clerk of court of the appellate
court the complete record of the case, together
with said notice. The original and three copies of
the transcript of stenographic notes, together with
the records, shall also be transmitted to the clerk
of the appellate court without undue delay. The
other copy of the transcript shall remain in the
lower court. (8a)
Section 9. Appeal to the Regional Trial Courts.
— Court, or Municipal Circuit Trial Court, as the case
(a) Within five (5) days from perfection of the
appeal, the clerk of court shall transmit the
original record to the appropriate Regional
Trial Court.
(b) Upon receipt of the complete record of the
case, transcripts and exhibits, the clerk of
court of the Regional Trial Court shall notify
the parties of such fact.
(c) Within fifteen (15) days from receipt of the
said notice, the parties may submit
memoranda or briefs, or may be required by
the Regional Trial Court to do so. After the
submission of such memoranda or briefs, or
upon the expiration of the period to file the
same, the Regional Trial Court shall decide
the case on the basis of the entire record of
the case and of such memoranda or briefs as
may have been filed. (9a)
Section 10. Transmission of records in case of
death penalty. — In all cases where the death
penalty is imposed by the trial court, the records
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
shall be forwarded to the Supreme Court for
automatic review and judgment within five (5) days
after the fifteenth (15) day following the
promulgation of the judgment or notice of denial of
a motion for new trial or reconsideration. The
transcript shall also be forwarded within ten (10)
days after the filing thereof by the stenographic
reporter. (10a)
Section 11. Effect of appeal by any of several
accused. —
(a) An appeal taken by one or more of several
accused shall not affect those who did not
appeal, except insofar as the judgment of the
appellate court is favorable and applicable to
the latter;
(b) The appeal of the offended party from the
civil aspect shall not affect the criminal aspect
of the judgment or order appealed from.
(c) Upon perfection of the appeal, the
execution of the judgment or final order
appealed from shall be stayed as to the
appealing party. (11a)
Section 12. Withdrawal of appeal. —
Notwithstanding the perfection of the appeal, the
Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court in Cities, Municipal Trial
may be, may allow the appellant to withdraw his
appeal before the record has been forwarded by
the clerk of court to the proper appellate court as
provided in section 8, in which case the judgment
shall become final.
The Regional Trial Court may also, in its
discretion, allow the appellant from the judgment
of a Metropolitan Trial Court, Municipal Trial Court
in Cities, Municipal Trial Court, or Municipal Circuit
Trial Court to withdraw his appeal, provided a
motion to that effect is filed before rendition of the
judgment in the case on appeal, in which case the
judgment of the court of origin shall become final
and the case shall be remanded to the latter court
for execution of the judgment. (12a)
Section 13. Appointment of counsel de oficio
for accused on appeal. — It shall be the duty of
the clerk of the trial court, upon filing of a notice of
appeal, to ascertain from the appellant, if confined
in prison, whether he desires the Regional Trial
Court, Court of Appeals or the Supreme Court to
appoint a counsel de oficio to defend him and to
transmit with the record on a form to be prepared
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by the clerk of court of the appellate court, a
certificate of compliance with this duty and of the
response of the appellant to his inquiry. (13a)
RULE 123
Procedure in the Municipal Trial Courts
Section 1. Uniform Procedure. — The procedure
to be observed in the Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial
Courts shall be the same as in the Regional Trial
Courts, except where a particular provision applies
only to either of said courts and in criminal cases
governed by the Revised Rule on Summary
Procedure. (1a)
RULE 124
Procedure in the Court of Appeals
Section 1. Title of the case. — In all criminal
cases appealed to the Court of Appeals, the party
appealing the case shall be called the "appellant"
and the adverse party the "appellee," but the title
of the case shall remain as it was in the court of
origin. (1a)
Section 2. Appointment of counsel de oficio for
the accused. — If it appears from the record of
the case as transmitted that:
(a) the accused is confined in prison,
(b) is without counsel de parte on appeal, or
(c) has signed the notice of appeal himself,
the clerk of court of the Court of Appeals shall
designate a counsel de oficio.
An appellant who is not confined in prison may,
upon request, be assigned a counsel de oficio
within ten (10) days from receipt of the notice to
file brief and he establishes his right thereto. (2a)
Section 3. When brief for appellant to be filed.
— Within thirty (30) days from receipt by the
appellant or his counsel of the notice from the
clerk of court of the Court of Appeals that the
evidence, oral and documentary, is already
attached to the record, the appellant shall file
seven (7) copies of his brief with the clerk of court
which shall be accompanied by proof of service of
two (2) copies thereof upon the appellee. (3a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 4. When brief for appellee to be filed;
reply brief of the appellant. — Within thirty (30)
days from the receipt of the brief of the appellant,
the appellee shall file seven (7) copies of the brief
of the appellee with the clerk of court which shall
be accompanied by proof of service of two (2)
copies thereof upon the appellant.
Within twenty (20) days from receipt of the brief
of the appellee, the appellant may file a reply brief
traversing matters raised in the former but not
covered in the brief of the appellant. (4a)
Section 5. Extension of time for filing briefs. —
Extension of time for the filing of briefs will not be
allowed except for good and sufficient cause and
only if the motion for extension is filed before the
expiration of the time sought to be extended. (5a)
Section 6. Form of briefs. — Briefs shall either be
printed, encoded or typewritten in double space on
the legal size good quality unglazed paper, 330
mm. in length by 216 mm. in width. (6a)
Section 7. Contents of brief. — The briefs in
criminal cases shall have the same contents as
provided in sections 13 and 14 of Rule 44. A
certified true copy of the decision or final order
appealed from shall be appended to the brief of
appellant. (7a)
Section 8. Dismissal of appeal for
abandonment or failure to prosecute. — The
Court of Appeals may, upon motion of the
appellee or motu proprio and with notice to the
appellant in either case, dismiss the appeal if
the appellant fails to file his brief within the
time prescribed by this Rule, except where the
appellant is represented by a counsel de oficio.
The Court of Appeals may also, upon motion of
the appellee or motu proprio, dismiss the appeal if
the appellant escapes from prison or confinement,
jumps bail or flees to a foreign country during the
pendency of the appeal. (8a)
GROUNDS FOR DISMISSAL OF APPEAL:
1. Failure to file brief (in the CA) within the
reglementary period, except when
represented by counsel de oficio;
2. Escape from prison or confinement;
3. Jumping bail;
4. Flight to foreign country during the
pendency of the appeal.
NOTE: In appeals to the CA, the court can validly
dismissed the case for failure to file is brief (sec.
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8,Rule 124. However, in appeals to the RTC, the
court cannot dismiss the case for failure to file
brief or memoranda, appellate court shall decide
base on the entire record of the case (sec. 9, (c),
Rule 122).
DISMISSAL OF APPEAL; NEED OF NOTICE TO
THE APPELANT
The CA may dismiss motu proprio or on motion by
appellee an appeal for failure on the part of the
appellant to file his brief on time, BUT it must
have a notice served upon the appellant of the
action to be taken by the court before dismissing
motu proprio the appeal.
Effect of escape of accused; Abandonment of
appeal
1. If the convict escapes from prison or
confinement or refuses to surrender to the
proper authorities, jumps bail or flees to a
foreign country, he is deemed to have
abandoned his appeal and the judgment
of the court below becomes final;
2. In that case, the accused cannot be
afforded the right to appeal, unless he
voluntarily submits to the jurisdiction of the
court or is otherwise arrested within 15
days from notice of judgment against him.
Note: However, prior to the abolition of the death
penalty, if death penalty is imposed, the escape of
the accused does not relieve the SC (CA) of the
burden of automatically reviewing the case, in the
same manner that a withdrawal of appeal by a
death convict would not remove the case from he
jurisdiction of the court (P. vs. Bugnay, 128 SCRA
31)
Section 9. Prompt disposition of appeals. —
Appeals of accused who are under detention shall
be given precedence in their disposition over other
appeals. The Court of Appeals shall hear and
decide the appeal at the earliest practicable time
with due regard to the rights of the parties. The
accused need not be present in court during the
hearing of the appeal. (9a)
Section 10. Judgment not to be reversed or
modified except for substantial error. — No
judgment shall be reversed or modified unless the
Court of Appeals, after an examination of the
record and of the evidence adduced by the
parties, is of the opinion that error was committed
which injuriously affected the substantial rights of
the appellant. (10a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
GR: The findings of the judge (who actually
observed the manner the witnesses testified)
who tried the case and heard the witnesses are
not disturbed on appeal.
Exception: When it is shown that the trial court
has overlooked certain facts of substance and
value that, if considered, might affect the result
of the case (P. vs. Cabiling, 74 SCRA 285).
Trial court’s findings on the credibility of the
witnesses should not be disturbed on appeal
UNLESS substantial facts which might affect the
results of the case have been overlooked.
Bar Exam Question 2013
XII. Findings of fact are generally not
disturbed by the appellate court except in
cases __________. (1%) (A) where the issue is
the credibility of the witness (B) where the
judge who heard the case is not the same
judge who penned the decision (C) where the
judge heard several witnesses who gave
conflicting testimonies (D) where there are
substantially overlooked facts and
circumstances that, if properly
considered, might affect the result of the
case (E) None of the above. SUGGESTED
ANSWER: (D), In Miranda vs. People, G.R.
No. 176298, January 25, 2012, the
Supreme Court explained that absent any
showing that the lower courts overlooked
substantial facts and circumstances,
which if considered, would change the
result of the case, the Court should give
deference to the trial court‟s appreciation
of the facts and of the credibility of
witness.
Section 11. Scope of judgment. — The Court of
Appeals may reverse, affirm, or modify the
judgment and increase or reduce the penalty
imposed by the trial court, remand the case to the
Regional Trial Court for new trial or retrial, or
dismiss the case. (11a)
All errors, assigned or not should be reviewed
(Suy Sui vs. P., 92 Phil. 684).
Conviction for higher offense on appeal; No
double jeopardy (Lontoc vs. P., 74 Phil. 513).
HOWEVER, the conviction must be limited to
the crime charge in the information (Babanto vs.
Zosa, 120 SCRA 834).
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Section 12. Power to receive evidence — The
Court of Appeals shall have the power to try
cases and conduct hearings, receive evidence
and perform any and all acts necessary to resolve
factual issues raised in cases
(a) falling within its original jurisdiction,
(b) involving claims for damages arising from
provisional remedies, or
(c) where the court grants a new trial based
only on the ground of newly-discovered
evidence. (12a)
Section 13. Quorum of the court; certification
or appeal of cases to Supreme Court. — Three
(3) Justices of the Court of Appeals shall
constitute a quorum for the sessions of a division.
The unanimous vote of the three (3) Justices of a
division shall be necessary for the pronouncement
of a judgment or final resolution, which shall be
reached in consultation before the writing of the
opinion by a member of the division. In the event
that the three (3) Justices can not reach a
unanimous vote, the Presiding Justice shall direct
the raffle committee of the Court to designate two
(2) additional Justices to sit temporarily with them,
forming a special division of five (5) members and
the concurrence of a majority of such division shall
be necessary for the pronouncement of a
judgment or final resolution. The designation of
such additional Justices shall be made strictly by
raffle and rotation among all other Justices of the
Court of Appeals.
Whenever the Court of Appeals finds that the
penalty of death, reclusion perpetua, or life
imprisonment should be imposed in a case, the
court, after discussion of the evidence and the law
involved, shall render judgment imposing the
penalty of death, reclusion perpetua, or life
imprisonment as the circumstances warrant.
However, it shall refrain from entering the
judgment and forthwith certify the case and
elevate the entire record thereof to the Supreme
Court for review. (13a)
SECTION 13 (Amended by AM NO. 00-5-03-SC,
Oct. 15, 2004)
a. Whenever the CA finds that the penalty of
death should be imposed, the court shall
render judgment but refrain from making
an entry of judgment and forthwith certify
the case and elevate its entire record to
the SC for review;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
b. Where the judgment also imposes a
lesser penalty for offenses committed on
the same occasion or arose out of the
same occurrence that give rise to the
more severe offense for which the penalty
of death was imposed, and the accused
appeals, the appeal shall be certified for
review to the SC;
c. In case the CA imposes reclusion
perpetua, life imprisonment or a lesser
penalty, it shall render and enter judgment
imposing such penalty. The judgment may
be appealed to the CA by notice of appeal
filed with the CA.
Section 14. Motion for new trial. — At any time
after the appeal from the lower court has been
perfected and before the judgment of the Court of
Appeals convicting the appellant becomes final,
the latter may move for a new trial on the ground
of newly-discovered evidence material to his
defense. The motion shall conform with the
provisions of section 4, Rule 121. (14a)
Section 15. Where new trial conducted. —
When a new trial is granted, the Court of Appeals
may conduct the hearing and receive evidence as
provided in section 12 of this Rule or refer the trial
to the court of origin. (15a)
Section 16. Reconsideration. — A motion for
reconsideration shall be filed within fifteen (15)
days after from notice of the decision or final order
of the Court of Appeals, with copies served upon
the adverse party, setting forth the grounds in
support thereof. The mittimus shall be stayed
during the pendency of the motion for
reconsideration.
No party shall be allowed a second motion for
reconsideration of a judgment or final order. (16a)
Section 17. Judgment transmitted and filed in
trial court. — When the entry of judgment of the
Court of Appeals is issued, a certified true copy of
the judgment shall be attached to the original
record which shall be remanded to the clerk of the
court from which the appeal was taken. (17a)
Section 18. Application of certain rules in civil
to criminal cases. — The provisions of Rules 42,
44 to 46 and 48 to 56 relating to procedure in the
Court of Appeals and in the Supreme Court in
original and appealed civil cases shall be applied
to criminal cases insofar as they are applicable
and not inconsistent with the provisions of this
Rule. (18a)
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Note: The foregoing rule did not include
Annulment of Judgment (Rule 47). If the court is
without jurisdiction, the proper remedy is
certiorari and Habeas corpus.
RULE 125
Procedure in the Supreme Court
See also A.M. No. 10-4-20-SC
THE INTERNAL RULES OF THE SUPREME
COURT
Section 1. Uniform procedure. — Unless
otherwise provided by the Constitution or by law,
the procedure in the Supreme Court in original
and in appealed cases shall be the same as in the
Court of Appeals. (1a)
NOTE: A case may reach the SC in the following
manner:
1. Automatic review;
2. Ordinary appeal;
3. Petition for review on certiorari.
EFFECT OF DIRECT APPEAL TO THE
SUPREME COURT ON QUESTION OF LAW IN
CRIMINAL CASES
A direct appeal to the SC on questions of law, in
criminal cases in which the penalty imposed is not
death or life imprisonment, precludes a review of
the facts.
Cases involving both questions of law and fact
come within the jurisdiction of the CA.
Section 2. Review of decisions of the Court of
Appeals. — The procedure for the review by the
Supreme Court of decisions in criminal cases
rendered by the Court of Appeals shall be the
same as in civil cases. (2a)
GR: Finding of facts of the CA is conclusive upon
the SC.
EXCEPTIONS:
1. When the conclusion is a finding
grounded entirely on speculation,
surmises or conjectures;
2. When the inference made is manifestly
absurd, mistaken or impossible;
3. When there is grave abuse of discretion in
the appreciation of facts;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
4. When the judgment is premised on a
misapprehension of facts;
5. When the findings of facts are conflicting;
6. When the CA in making its findings went
beyond the issues of the case and the
same is contrary to the admissions of both
parties;
7. When certain material facts and
circumstances had been overlooked
which, if taken into account would alter the
result as it would give rise to reasonable
doubt to acquit the accused.
Section 3. Decision if opinion is equally
divided. — When the Supreme Court en banc is
equally divided in opinion or the necessary
majority cannot be had on whether to acquit the
appellant, the case shall again be deliberated
upon and if no decision is reached after re-
deliberation, the judgment of conviction of the
lower court shall be reversed and the accused
acquitted. (3a)
RULE 126
Search and Seizure
Section 2, art III, 1987 Const.. The right of the
people to be secure in their persons, houses,
papers, and effects against unreasonable
searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except
upon probable cause to be determined personally
by the judge after examination under oath or
affirmation of the complainant and the witnesses
he may produce, and particularly describing the
place to be searched and the persons or things to
be seized.
Crimes that may arose in violation of the
constitutional grant:
1. Trespassing--- if committed by private
individual;
2. Violation of Domicile--- if committed by
public officers;
3. Grave coercion--- when proper; search is
not in the domicile.
Compliance with the constitutional requirements
are mandatory. Presumption of regularity in the
performance of duty is not applicable in search
warrant cases.
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Note: Bill of Rights is invoked ONLY AGAINST region where the warrant shall be
the STATE and its AGENTS. enforced.

Section 1. Search warrant defined. — A search However, if the criminal action has already been
warrant is an order in writing issued in the name of filed, the application shall only be made in the
the People of the Philippines, signed by a judge court where the criminal action is pending. (n)
and directed to a peace officer, commanding him
to search for personal property described therein NOTE: The rule on forum shopping is not
and bring it before the court. (1) applied in the application for search warrant
(Kenneth Roy Savage vs. Judge Taypin, GR
WARRANT OF SEARCH WARRANT NO. 134217, May 11, 2000).
ARREST
Probable cause that a Probable cause that the However, under the Intellectual Property Code,
crime has been objects, in connection if offense subject of the search is violation of
committed and the to a specific offense, of intellectual property rights, certification is
person sought to be the search warrant is required.
arrested is probably found in the place
guilty thereof sought to be searched Search Warrant; Application; Venue (2012)
Issued, generally, when May issue even without No.VI. A PDEA asset/informant tipped the
a case is filed in court a pending case in court PDEA Director Shabunot that a shabu
The judge must Judge must personally laboratory was operating in a house at Sta.
personally evaluate the examine the Cruz, Laguna, rented by two (2) Chinese
records of the case and complainant and the nationals, Ho Pia and Sio Pao. PDEA Director
the report of the witnesses under oath in Shabunot wants to apply for a search
prosecutor (no need for the form of searching warrant, but he is worried that if he applies
personal examination of questions and answers for a search warrant in any Laguna court,
the complainant and their plan might leak out. (a) Where can he
witnesses file an application for search warrant? (2%)
Not subject to 10 days Lifetime of 10 days SUGGESTED ANSWER: PDEA Director
lifetime from issue Shabunot may file an application for
search warrant in any court within the
Bar Exam Question 2011 judicial region where the crime was
(50) Which of the following MISSTATES a committed. (Rule 126, Sec.2[b]).
requisite for the issuance of a search ALTERNATIVE ANSWER: PDEA Director
warrant? (A) The warrant specifically Shabunot may file an application for
describes the place to be searched and the search warrant before the Executive Judge
things to be seized. (B) Presence of probable and Vice Executive Judges of the Regional
cause. (C) The warrant issues in connection Trial Courts of Manila or Quezon Cities.
with one specific offense. (D) Judge (A.M. No. 99-10-09-SC, January 25, 2000).
determines probable cause upon the
affidavits of the complainant and his (b) What documents should he prepare in his
witnesses. application for search warrant? (2%)
SUGGESTED ANSWER: He should prepare
a petition for issuance of a search warrant
Section 2. Court where application for search and attach therein sworn statements and
warrant shall be filed. — An application for affidavits.
search warrant shall be filed with the following:
(c) Describe the procedure that should be
a) Any court within whose territorial taken by the judge on the application. (2%)
jurisdiction a crime was committed. SUGGESTED ANSWER: The judge must,
before issuing the warrant, examine
personally in the form of searching
b) For compelling reasons stated in the
application, any court within the judicial questions and answers, in writing and
region where the crime was committed if under oath, the complainant and the
the place of the commission of the crime witnesses he may produce on facts
is known, or any court within the judicial personally known to them and attach to
the record their sworn statements,
together with the affidavits submitted.

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 469

 ________________________________________________________________________________________________
(Rule 126, Sec.5, Rules of Court). if the
judge is satisfied of the existence of facts
upon which the application is based or
that there is probable cause to believe
that they exist, he shall issue the warrant,
which must be substantially in the form
prescribed by the Rules. (Rule 126, Sec.6,
Rules of Court).
Suppose the judge issues the search warrant
worded in this way:
PEOPLE OF THE PHILIPPINES Plaintiff
-versus- Criminal Case
No. 007 for
Violation of R.A.
9165
Ho Pia and Sio Pao, Accused.
TO ANY PEACE OFFICER
Greetings: It appearing to the satisfaction of
the undersigned after examining under oath
PDEA Director shabunot that there is
probable cause to believe that violations of
Section 18 and 16 of R.A. 9165 have been
committed and that there are good and
sufficient reasons to believe that Ho Pia and
Sio Pao have in their possession or control, in
a two (2) door apartment with an iron gate
located at Jupiter St., Sta. Cruz, Laguna,
undetermined amount of "shabu" and drug
manufacturing implements and
paraphernalia which should be seized and
brought to the undersigned, You are hereby
commanded to make an immediate search, at
any time in the day or night, of the premises
above described and forthwith seize and take
possession of the abovementioned personal
property, and bring said property to the
undersigned to be dealt with as the law
directs. Witness my hand this 1st day of
March, 2012. (signed) Judge XYZ
(d) Cite/enumerate the defects, if any, of the
search warrant. (3%)
SUGGESTED ANSWER: (1) The search
warrant failed to particularly describe the
place to be searched and the things to be
seized (Rule 126, Sec.4, Rules of Court).
(2) The search warrant commanded the
immediate search, at any time in the day
or night. The general rule is that a search
warrant must be served in the day time
(Rule 126, Sec.8, Revised Rules on
Criminal Procedure), or that portion of the
twenty-four hours in which a man‟s
person and countenance are
distinguishable (17 C.J. 1134). By way of
exception, a search warrant may be made
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
at night when it is positively asserted in
the affidavit that the property is on the
person or in the place ordered to be
searched (Alvares vs. CFI of Tayabas, 64
Phil. 33). There is no showing that the
exception applies.
(e) Suppose the search warrant was served
on March 15, 2012 and the search yielded
the described contraband and a case was
filed against the accused in RTC, Sta. Cruz,
Laguna and you are the lawyer of Sio Pao
and Ho Pia, what will you do? (3%)
SUGGESTED ANSWER: If I were the lawyer
of Sio Pao and Ho Pia, I would file a
Motion to Quash the search warrant for
having been served beyond its period of
validity. (Rule 126, Sec. 14, Rules of
Court). A search warrant shall be valid
only for ten (10) days from its date.
Thereafter, it shall be void. (Rule 126,
Sec.10, Revised Rules of Court).
(f) Suppose an unlicensed armalite was found
in plain view by the searchers and the
warrant was ordered quashed, should the
court order the return of the same to the
Chinese nationals? Explain your answer.
(3%) SUGGESTED ANSWER: No, the court
should not order the return of the
unlicensed armalite because it is
contraband or illegal per se. (PDEA vs.
Brodett, G.R. No. 196390, September 28,
2011). The possession of an unlicensed
armalite found in plain view is mala
prohibita. The same should be kept in
custodial legis.
Section 3. Personal property to be seized. — A
search warrant may be issued for the search and
seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other
proceeds, or fruits of the offense; or
(c) Used or intended to be used as the
means of committing an offense. (2a)
Note: The rule does not require that the property
to be seized should be owned by the person
against whom the search warrant is directed. It
may or may not be owned by him.
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In search incidental to an arrest even without a
warrant the person arrested may be searched for:
1. Dangerous weapons;
2. Anything which may be used as proof of
the commission of an offense.
Section 4. Requisites for issuing search
warrant. — A search warrant shall not issue
except upon probable cause in connection with
one specific offense to be determined personally
by the judge after examination under oath or
affirmation of the complainant and the witnesses
he may produce, and particularly describing the
place to be searched and the things to be seized
which may be anywhere in the Philippines. (3a)
REQUISITES: (clue words)
1. Issued upon probable cause;
2. Probable cause determined by the judge;
3. Personal examination, under oath or
affirmation, of the applicant and the
witnesses, in the form of searching
questions and answers;
4. Particular description of the property to be
seized;
5. Particular description of the place, or
persons to be searched;
6. Issued for one specific offense;
7. It must be served within 10 days from
issue.
PROBABLE CAUSE (in search and seizure
cases)
It refers to the facts and circumstances which
could lead a reasonable , discreet and prudent
man to believe that the property subject of an
offense is in the place sought to be searched.
Affidavits of complainant and his witnesses is not
sufficient for the issuance of search warrant.
Judge should take the depositions of the
witnesses and the complainant and attached them
to the record of the case (Mata vs. Bayona, 128
SCRA 388).
Certification of absence of license to possess,
from the Firearms and Explosives Division of the
PNP, is needed in the application for search
warrant for illegal possession of firearms.
In case of firearms search, there must be a sketch
where such firearm is located (Ucat).
Search Warrant; Motion to Quash (2005)
Police operatives of the Western Police District,
Philippine National Police, applied for a search
warrant in the RTC for the search of the house of Juan
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Santos and the seizure of an undetermined amount of
shabu. The team arrived at the house of Santos but
failed to find him there. Instead, the team found
Roberto Co. The team conducted a search in the
house of Santos in the presence of Roberto Co and
barangay officials and found ten (10) grams of shabu.
Roberto Co was charged in court with illegal
possession of ten grams of shabu. Before his
arraignment, Roberto Co filed a motion to quash the
warrant on the following grounds
(a) it was not the accused named in the search warrant;
and (b) the warrant does not describe the article to be
seized with sufficient particularity. Resolve the motion
with reasons. (4%)
SUGGESTED ANSWER:
The motion to quash should be denied. The name of
the person in the search warrant is not important. It is
not even necessary that a particular person be
implicated (Mantaring v. Roman, A.M. No. RTJ-93-904,
February 28, 1996), so long as the search is conducted in
the place where the search warrant will be served.
Moreover, describing the shabu in an undetermined
amount is sufficiently particular. (People v. Tee, G.R.
Nos. 140546-47, January 20, 2003)
WHO MAY QUESTION THE VALIDITY OF
SEARCH AND SEIZURE
Well settled is the rule that the legality of a seizure
can be contested only by the party whose rights
have been impaired thereby, and that the
objection to an unlawful search and seizure is
purely personal and cannot be availed of by third
parties.
REMEDIES FROM AN UNLAWFUL SEARCH:
1. A motion to quash the search warrant;
2. A motion to suppress as evidence the
objects illegally taken;
3. Repliven, if the objects are legally
possessed.
Note: The remedies are alterative. If a motion to
quash is denied, a motion to suppress cannot be
availed subsequently.
Where the search warrant is a patent nullity,
certiorari lies to nullify the same.
The illegality of the search does not call for the
return of the things seized, the possession of
which is prohibited by law. However, those
personalties seized in violation of the
constitutional immunity whose possession is not
per se illegal or unlawful ought to be returned to
their rightful owner or possessor.
Any evidence obtained in violation of the
constitutional immunity against unreasonable
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searches and seizures are inadmissible for any
purpose in any proceeding (sec. 2, art. III, 1987
Const.).
However, they may be used against the person
violating the constitutional grant against
unreasonable searches and seizures.
General warrants (without particular description
of the things to be seized) are void.
Note: However, that search warrant is severable.
The general description of some objects does not
render the entire warrant void. Things particularly
described can still be sustained while those
generally described may just be cut-off from the
warrant (Uy vs. BIR, Oct. 20, 2000).
There is particular description of the thing to
be seized when: (PARTICULARITY TEST)
1. The description is as specific as
circumstances will allow;
 However, particular description of
caliber or type of weapon is not
necessary
Mathematical certainty of the grams of
shabu subject of the search warrant is not
necessary
2. When it expresses a conclusion of fact by
which the warrant officer may be guided;
or
3. When the things described are limited to
those which bear a direct relation to the
offense for which the warrant is issued.
“MULTI-FACTOR BALANCING TEST” in
determining probable cause:
One which require the officer to weigh the manner
and intensity of the interference on the right of the
people, the gravity of the crime committed, and
the circumstances attending the incident.
Section 5. Examination of complainant; record.
— The judge must, before issuing the warrant,
personally examine in the form of searching
questions and answers, in writing and under oath,
the complainant and the witnesses he may
produce on facts personally known to them and
attach to the record their sworn statements,
together with the affidavits submitted. (4a)
NOTE: An application for search warrant is
heard ex parte. It is neither a trial nor a part of
the trial. The examination or investigation, which
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
must be under oath may not be in public. It may
even be held in the secrecy of the chambers. It
must be under oath and in writing.
Section 6. Issuance and form of search
warrant. — If the judge is satisfied of the
existence of facts upon which the application is
based or that there is probable cause to believe
that they exist, he shall issue the warrant, which
must be substantially in the form prescribed by
these Rules. (5a)
NOTE: The search warrant must be in writing
and must contain such particulars as name of
the person against whom it is directed, the
offense for which it was issued, the place to be
search and the specific things to be seized.
Search warrant cannot issue against diplomatic
officers (WHO vs. Aquino, 48 SCRA
242).[Diplomatic/Sovereign Immunity]
Bar Exam Question 2012
99. A certificate against Forum-Shopping is
not required in:
a. petitions for probate of will.
b. application for search warrant.
c. complaint-in-intervention.
d. petition for Writ of Kalikasan.
SUGGESTED ANSWER: (b), A certification
against forum shopping is not required in
an application for search warrant. The
Rules of Court, require only initiatory
pleading to be accompanied with a
certificate of non-forum shopping
omitting any mention of “applications” as
in Supreme Court No. 04-94. Hence, the
absence of such certification will not
result in the dismissal of the application
for search warrant. (Savage vs. Judge A.B.
Taypin, G.R. No. 134217, May 11, 2000).
Section 7. Right to break door or window to
effect search. — The officer, if refused
admittance to the place of directed search after
giving notice of his purpose and authority, may
break open any outer or inner door or window of a
house or any part of a house or anything therein to
execute the warrant or liberate himself or any
person lawfully aiding him when unlawfully
detained therein. (6)
KNOCK AND ANNOUNCE PRINCIPLE
Generally, officers implementing a search warrant
must announce their presence, identify
themselves to the accused and the persons who
rightfully have possession of the premises to be
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searched, and to show to them the search warrant
to be implemented by them and to explain to them
said warrant in a language or dialect known and
understood by them.
Unannounced intrusion into the premises is
permissible only when:
1. The person whose premises or is entitled
to the possession thereof refuses, upon
demand to open it;
2. When such person in the premises knew
the identity of the officers and of their
authority;
3. When the officers are justified, in the
honest belief that there is an imminent
peril to life or limb;
4. When those in the premises, aware of the
presence of someone outside, are then
engage in activities which justifies the
officers to believe that an escape or
destruction of evidence is imminent
(Vallejo vs. CA, GR NO. 156413, April 14,
2004).
Art. 129, RPC. Search warrants maliciously
obtained and abuse in the service of those
legally obtained. — In addition to the liability
attaching to the offender for the commission
of any other offense, the penalty of arresto
mayor in its maximum period to prision
ceeding P1,000 pesos shall be imposed upon
any public officer or employee who shall
procure a searcorreccional in its minimum
period and a fine not exch warrant without just
cause, or, having legally procured the same,
shall exceed his authority or use unnecessary
severity in executing the same.
Section 8. Search of house, room, or premise
to be made in presence of two witnesses. —
No search of a house, room, or any other premise
shall be made except in the presence of the lawful
occupant thereof or any member of his family or in
the absence of the latter, two witnesses of
sufficient age and discretion residing in the same
locality. (7a)
REASON: In order to insure that the execution
of the warrant will be fair and reasonable, and in
order to insure that the officer conducting the
search shall not exceed his authority or use
unnecessary severity in executing the search
warrant, as well as for the protection of the
officers against unjust accusations of planting
evidence.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Art. 130, RPC. Searching domicile without
witnesses. — The penalty of arresto mayor in its
medium and maximum periods shall be imposed
upon a public officer or employee who, in cases
where a search is proper, shall search the
domicile, papers or other belongings of any
person, in the absence of the latter, any member
of his family, or in their default, without the
presence of two witnesses residing in the same
locality.
Section 9. Time of making search. — The
warrant must direct that it be served in the day
time, unless the affidavit asserts that the property
is on the person or in the place ordered to be
searched, in which case a direction may be
inserted that it be served at any time of the day or
night. (8)
Section 10. Validity of search warrant. — A
search warrant shall be valid for ten (10) days
from its date. Thereafter it shall be void. (9a)
NOTE: While under sec. 10 search warrant has
a validity of 10 days, nevertheless, it cannot be
used everyday of said period and once articles
have been seized under said warrant, it cannot
be used again for another search and seizure,
EXCEPT when the search conducted on one
day was interrupted, in which case the same
may be continued under the same warrant the
following day if not beyond the 10 day period
(Uy Kheytin vs. Villareal, 42 Phil. 886).
Bar Exam Question 2012
11. The validity of a search warrant is days:
a. 15;
b. 30;
c. 60;
d. 120.
SUGGESTED ANSWER: NO CORRECT
ANSWER. The Committee recommends
that the examinee be given a full credit for
any answer to the question. Validity of a
Search Warrant.- A search warrant shall be
valid for ten (10) days from its date.
Thereafter, it shall be void. (Rule 126, Sec.
10, Rules of Court).
Bar Exam Question 2012
44. Which of the following is true?
a. Summons expires after 5 days from issue.
b. Writ of Execution expires after 10 days
from issue.
c. Search Warrant expires after 20 days from
issue.
d. Subpoena expires after 30 days from issue.
SUGGESTED ANSWER:
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NO CORRECT ANSWER. The Committee
recommends that the examinee be given
full credit for any answer to the question.
ALTERNATIVE ANSWER: (c), According to
the Committee, this it the most logical
answer because search warrant expires 10
days after its issuance.
Section 11. Receipt for the property seized. —
The officer seizing property under the warrant
must give a detailed receipt for the same to the
lawful occupant of the premises in whose
presence the search and seizure were made, or in
the absence of such occupant, must, in the
presence of at least two witnesses of sufficient
age and discretion residing in the same locality,
leave a receipt in the place in which he found the
seized property. (10a)
NOTE: The person searched or found in the
area searched may not be compelled to sign
the receipt, otherwise, his right against self
incrimination is violated.
Section 12. Delivery of property and
inventory thereof to court; return and
proceedings thereon. — (a) The officer must
forthwith deliver the property seized to the
judge who issued the warrant, together with a
true inventory thereof duly verified under oath.
(b) Ten (10) days after issuance of the search
warrant, the issuing judge shall ascertain if the
return has been made, and if none, shall
summon the person to whom the warrant was
issued and require him to explain why no
return was made. If the return has been made,
the judge shall ascertain whether section 11 of
this Rule has been complied with and shall
require that the property seized be delivered
to him. The judge shall see to it that
subsection (a) hereof has been complied with.
(c) The return on the search warrant shall be
filed and kept by the custodian of the log book
on search warrants who shall enter therein the
date of the return, the result, and other actions
of the judge.
A violation of this section shall constitute contempt
of court.(11a)
Section 13. Search incident to lawful arrest. —
A person lawfully arrested may be searched for
dangerous weapons or anything which may have
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
been used or constitute proof in the commission of
an offense without a search warrant. (12a)
WHEN MAY THERE BE A SEARCH WITHOUT A
WARRANT:
1. In times of war, within the area of military
operation (exceptional circumstances);
2. As an incident of a lawful arrest subject
to the following requisites:
a. Arrest must be lawful;
b. Search and search and seizure
must be contemporaneous with
the arrest;
c. Search must be within the
permissible area or within the
immediate control of the accused;
3. Under plain view doctrine—prohibited
articles open to eye and hand;
REQUISITES:
a) Prior valid intrusion based on the
valid warrantless arrest in which
the police are legally present in
the pursuit of their official
functions;
b) The evidence is inadvertently
discovered;
c) Evidence is immediately apparent
without any further search;
d) Apparent illegality of the
evidence.
Search & Seizure; Plain View (2008)
No.IX. The search warrant authorized the
seizure of “undetermined quantity of shabu.”
During the service of the search warrant, the
raiding team also recovered a kilo of dried
marijuana leaves wrapped in newsprint. The
accused moved to suppress the marijuana
leaves as evidence for the violation of Section
11 of the Comprehensive Dangerous Drugs
Act of 2002 since they were not covered by
the search warrant. The State justified the
seizure of the marijuana leaves under the
“plain view” doctrine. There was no indication
of whether the marijuana leaves were
discovered and seized before or after the
seizure of the shabu. If you are the judge,
how would you rule on the motion to
suppress? SUGGESTED ANSWER: The
“plain view” doctrine cannot be invoked
because the marijuana leaves were
wrapped in newsprint and there was no
evidence as to whether the marijuana
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leaves were discovered and seized before
or after the seizure of the shabu. If they
were discovered after the seizure of the
shabu, then the marijuana could not have
been seized in plain view (CF. Peo vs. Mua,
G.R. No. 96177, 27 January 1997). In any
case, the marijuana should be confiscated
as a prohibited article.
4. Consented search; subject to the
following :
a. There is a right;
b. There must be knowledge of the
existence of the right;
c. There must be intent to waive
such right.
Note: Silence and lack of
objection is not tantamount to
consent.
5. When it is pursuant to some inspection
as mandated by law—like:
a) Fire safety inspection;
b) Sanitary inspection;
c) Visitorial Power of the Regional
Director, under the Labor Code.
6. Under the Tariff and Customs Code for
purposes of enforcing customs and tariff
laws;
Except: Dwelling house.
7. Search and seizures of vessels and
aircraft;
Note: Routinary airport inspection under
RA 6235.
8. Search of moving vehicle;
a. Extensive search—when there is
probable cause;
b. Routinary search--- mere visual
search (checkpoint search)
9. Search by private individuals/institution
a) Malls;
b) Department stores.
10. Stop and Frisk Rule (Terry Doctrine)
Terry vs. Ohio, 392 US 1
11. Search of an office computer assigned to
a government employee.
The search of office computer, where
personal files were stored and used by the
government employer as evidence against
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the respondent in an administrative case
(misconduct), was held reasonable by SC
under the circumstances. There was no
violation of the constitutional right to
privacy as guaranteed by section 2, Article
III of the Constitution. (Pollo vs.
Constantino-David, GR No. 181881, Oct.
18, 2011, En Banc).
Search & Seizure; Warrantless Search
(2010)
No.VII. As Cicero was walking down a dark
alley one midnight, he saw an "owner-type
jeepney" approaching him. Sensing that the
occupants of the vehicle were up to no good,
he darted into a corner and ran. The
occupants of the vehicle − elements from the
Western Police District − gave chase and
apprehended him. The police apprehended
Cicero, frisked him and found a sachet of
0.09 gram of shabu tucked in his waist and a
Swiss knife in his secret pocket, and detained
him thereafter. Is the arrest and body-search
legal? (3%) SUGGESTED ANSWER: The
arrest and body-search was legal. Cicero
appears to be alone „walking down the
dark alley” and at midnight. There
appears probable cause for the policemen
to check him, especially when he darted
into a corner (presumably also dark) and
run under such circumstance.
Although the arrest came after the body-
search where Cicero was found with shabu
and a Swiss knife, the body-search is legal
under the “Terry search” rule or the “stop
and frisk” rule. And because the mere
possession, with animus, of dangerous
drug (the shabu) is a violation of the law
(R.A. 9165), the suspect is in a continuing
state of committing a crime while he is
illegally possessing the dangerous drug,
thus making the arrest tantamount to an
arrest in flagrante: so the arrest is legal
and correspondingly, the search and
seizure of the shabu and the concealed
knife may be regarded as incident to a
lawful arrest.
ALTERNATIVE ANSWER: No, the arrest
and the body-search were not legal. In this
case, Cicero did not run because the
occupants of the vehicle identified
themselves as police officers. He darted
into the corner and ran upon the belief
that the occupants of the vehicle were up
to no good. Cicero‟s act of running does
not show any reasonable ground to believe
that a crime has been committed or is
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about to be committed for the police
officers to apprehend him and conduct
body search. Hence, the arrest was illegal
as it does not fall under any of the
circumstances for a valid warrantless
arrest provided in Sec. 5 of Rule 113 of
the Rules of Criminal Procedure.
Section 14. Motion to quash a search warrant
or to suppress evidence; where to file. — A
motion to quash a search warrant and/or to
suppress evidence obtained thereby may be filed
in and acted upon only by the court where the
action has been instituted. If no criminal action has
been instituted, the motion may be filed in and
resolved by the court that issued the search
warrant. However, if such court failed to resolve
the motion and a criminal case is subsequent filed
in another court, the motion shall be resolved by
the latter court. (n)
REMEDIES AGAINST SEARCH WARRANT
1. If not yet enforced--- Motion to Quash the
warrant;
2. If already served--- Motion to Suppress
Evidence; if denied;
3. Object to it during the formal offer of the
evidence during trial.
Bar Exam Question 2012
79. When a Motion to Quash search warrant
is denied, the best remedy is:
a. appeal the denial order.
b. file a motion to suppress evidence.
c. file an injunction suit.
d. file a certiorari petition.
SUGGESTED ANSWER: (b), When a motion
to quash search warrant is denied, the
best remedy is to file a motion to suppress
evidence since they are alternative and
not cumulative remedies. (Regalado,
Remedial law Compendium, 2004 Edition,
Tenth Edition, page 662). ALTERNATIVE
ANSWER: (d), In Santos vs. Pryce gases
Inc. G.R. No. 165122, November 23, 2007,
the Supreme Court held that the special
civil action for certiorari is the proper
recourse in assailing the quashal of the
search warrant. The Trial court‟s
unwarranted reversal of its earlier finding
of probable cause constituted grave abuse
of discretion. Hence, the Supreme Court
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
had allowed direct recourse to it or even
to the Court of Appeals via a special civil
action for certiorari from a trial court‟s
quashal of search warrant.
More SUBSTANTIAL DISCUSSIONS on search
and seizure are found in the Political Law
Review.
RULE 127
Provisional Remedies in Criminal Cases
Section 1. Availability of provisional remedies.
— The provisional remedies in civil actions,
insofar as they are applicable, may be availed of
in connection with the civil action deemed
instituted with the criminal action. (1a)
KINDS OF PROVISIONAL REMEDIES:
1. Attachment (Rule 57);
2. Injunction (Rule 58);
3. Receivership (Rule 59);
4. Repliven (Rule 60);
5. Support pendente lite (Rule 61).
Section 2. Attachment. — When the civil action is
properly instituted in the criminal action as
provided in Rule 111, the offended party may have
the property of the accused attached as security
for the satisfaction of any judgment that may be
recovered from the accused in the following
cases:
(a) When the accused is about to abscond
from the Philippines;
(b) When the criminal action is based on a
claim for money or property embezzled or
fraudulently misapplied or converted to
the use of the accused who is a public
officer, officer of a corporation, attorney,
factor, broker, agent, or clerk, in the
course of his employment as such, or by
any other person in a fiduciary capacity, or
for a willful violation of duty;
(c) When the accused has concealed,
removed, or disposed of his property, or is
about to do so; and
(d)When the accused resides outside the
Philippines. (2a)
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Bar Exam Question 2013

XVII. When is attachment improper in
criminal cases? (1%) (A) When the accused is
about to abscond from the Philippines. (B)
When the criminal action is based on a claim
for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a broker, in the
course of his employment as such. (C) When
the accused is about to conceal, remove, or
dispose of his property. (D) When the
accused resides outside the jurisdiction of
the trial court. SUGGESTED ANSWER:
(D), Under Section 2 of Rule 127, when the
civil action is properly instituted in the
criminal action as provided in Rule 111,
the offended party may have the property
of the accused attached as security for the
satisfaction of any judgment that may be
recovered from the accused in the
following cases: (a) When the accused is
about to abscond from the Philippines; (b)
When the criminal action is based on a
claim for money or property embezzled or
fraudulently misapplied or converted to
the use of the accused who is a public
officer, officer of a corporation, attorney,
factor, broker, agent, or clerk, in the
course of his employment as such, or by
any other person in a fiduciary capacity,
or for a wilful violation of duty; (c) When
the accused has concealed, removed, or
disposed of his property, or is about to do
so; and (d) When the accused resides
outside the Philippines.

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 477

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Legislative facts and adjudicative facts.

SUGGESTED ANSWER:
Legislative facts refer to facts mentioned in a statute or
Rules 128-134 in an explanatory note, while adjudicative facts are
REVISED RULES ON EVIDENCE facts found in a court decision.

Every question involves the relationship between

AS AMENDED PER RESOLUTION the factum probans and the factum probandum.

FACTUM PROBANDUM
ADOPTED ON MARCH 14, 1989
It is the ultimate fact sought to be established. It
refers to the proposition:
PART IV a) The elements of the crime;
b) The elements of the cause of action.
RULES OF EVIDENCE
It may be ascertained in the:
1. Pleadings submitted by the parties;
2. Pre-trial order;
3. Issues tried with their express or implied
RULE 128 consent (sec. 5, Rule 10).

General Provisions NOTE: Generally, if a fact is admitted, there is no

more factum probandum because there is no fact
in issue. However, the Rules do not fix a standard
in ascertaining the probandum. It depends upon
Section 1. Evidence defined. — Evidence is the the nature of the case presented before the
means, sanctioned by these rules, of ascertaining courts.
in a judicial proceeding the truth respecting a
matter of fact. (1) In criminal cases, for instance, even if the accused
enters a plea of guilty to a capital offense, the
court must conduct a summary hearing to conduct
SOURCES:
a searching inquiry into the voluntariness and full
1. Rules of Court;
comprehension of the consequences of his plea
2. Constitution;
and for the prosecution to prove the guilt of the
3. Special laws (e.g. Anti-Wiretapping Act);
accused and the precise degree of culpability
4. Revised Penal Code;
(sec. 3, Rule 116).
5. Civil Code;
6. Jurisprudence.
In special proceedings for the probate of a will,
even if no person appears to contest the
allowance thereof, the court is still required to
PROOF EVIDENCE
grant allowance only if the will is proved to have
The probative effect of
been executed as required by law (sec. 5, Rule
evidence and is the
76).
conviction or It is the medium or
persuasion of the mind means by which a fact
FACTUM PROBANS
resulting from the is proved or disproved
It is the material evidencing the proposition. It is
consideration of the
the fact by which the factum probandum is
evidence. established.
There is proof only
because of evidence Admissibility or inadmissibility of the evidence is
Effect Cause determined in accordance with the law in force at
the time the evidence is presented. Therefore,
NOTE: “TRUTH” does not necessarily means there is no vested rights in the rules on evidence.
“actual truth” but only legal truth. The reason is Evidence otherwise inadmissible under the law at
sec. 34, Rule 132. That is, the court may cannot the time the action accrued, may be received in
consider evidence NOT formally offered (Review evidence provided that it is admissible under the
Lecture). law in force at the time of the trial.
Facts; Legislative Facts vs. Adjudicative Facts (2004) Factum probandum Factum Probans

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 478

________________________________________________________________________________________________
Proposition to be Material evidencing the
established proposition
Conceived of as Conceived of for
hypothetical; that practical purposes as
which one party existent, and is offered
affirms and the other as such for the
denies consideration of the
court
NOTE: While it is true that the confessions of the
appellant were made without the benefit of
counsel, they are still admissible in evidence
because the appellant failed to make a timely
objections before trial(P. vs. Samus, GR NO.
135957-58, SEPT. 27, 2002). Rules of Exclusion
are not SELF-EXECUTORY.
CLASSIFICATION OF EVIDENCE
A. Depending on its ability to establish the fact
in dispute, evidence may be:
1. Direct Evidence--- evidence which
proves the fact in dispute without the aid
of inference or presumption.
2. Circumstantial Evidence--- proof of fact
or facts from which , taken either singly or
collectively, the existence of particular
fact in dispute may be inferred as
necessary or probable consequence.
Note: Circumstantial evidence is evidence of
relevant facts.
Direct evidence and circumstantial evidence are at
par in weight of evidence.
Note: According to Atty. Ucat, circumstantial
evidence is sometimes the best evidence because
it cannot lie, it cannot be rehearsed or be a
product of an afterthought.
B. Depending on the degree of its value in
establishing a disputed fact:
1. Prima Facie Evidence--- evidence which
suffices for the proof of a particular fact
until contradicted by other evidence.
Note: it is by itself sufficient to establish
the factum probandum if no evidence to
the contrary appears.
2. Conclusive Evidence--- evidence which
is incontrovertible or one which the law
does not allow to be contradicted. It is
insurmountable evidence.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
3. Corroborative Evidence--- evidence
which is of different kind and character as
that already given and tends to prove the
same proposition.
4. Cumulative Evidence--- evidence which
is of the same kind and character as that
already given and tends to prove the
same proposition.
C. Depending upon its weight and
acceptability:
1. Primary or Best Evidence--- evidence
which affords the greatest certainty of the
fact in question.
2. Secondary or Substitutionary
Evidence--- evidence which is inferior to
primary evidence and admissible only in
the absence of the latter.
D. Depending on its nature:
1. Object Evidence--- evidence addressed
to the senses of the court and is capable
of being exhibited to be examined or
viewed by the court. Also known as
autoptic preference or real or physical
evidence.
NOTE: Physical evidence speaks more
eloquently than a hundred witnesses (P.
vs. Pabillo, GR NO. 122103, Nov. 4,
2003).
2. Documentary Evidence--- supplied by
written instruments or derived from
conventional symbols ad letters by which
ideas are represented on material
substances.
3. Testimonial Evidence--- is a verbal or
oral evidence which consists of the
narration or deposition by one who has
observed or has personal knowledge of
that to which he is testifying.
4. Positive Evidence--- where the witness
affirms that a fact did or did not occur. It is
entitled greater weight since the witness
represents of his personal knowledge the
presence or absence of a fact.
5. Negative Evidence--- where the witness
states that he did not see or know of the
occurrence of a fact and there is total
disclaimer of personal knowledge.
E. Depending on its quality:
479
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Section 2. Scope. — The rules of evidence shall

1. Relevant Evidence--- if it has a relation to be the same in all courts and in all trials and
the fact in issue as to induce a belief in its hearings, except as otherwise provided by law or
existence or non-existence. these rules. (2a)

Note: A simple test of relevancy is the INSTANCES WHERE THE RULES OF

ability of the evidence to persuade or if it EVIDENCE DO NOT STRICTLY APPLY TO
can be of help to the fact-finder. JUDICIAL ROCEEDINGS:

2. Material Evidence--- evidence which
tends to prove the fact in issue, and
determined by the rules of substantive law
and pleading.
3. Admissible Evidence--- if it is relevant to
the issue and not excluded by law or the
Rules.
 Relevancy
 Competency
4. Credible Evidence--- if it is not only
admissible but believable and used by the
court in deciding a case.
 Evidence is credible if it is worthy
of belief.
Admissibility; Object or Real Evidence (1994)
At the trial of Ace for violation of the Dangerous
Drugs Act, the prosecution offers in evidence a
photocopy of the marked P100.00 bills used in the
“buy-bust” operation. Ace objects to the introduction
of the photocopy on the ground that the Best
Evidence Rule prohibits the introduction of
secondary evidence in lieu of the original. a) Is the
photocopy real (object) evidence or documentary
evidence? b) Is the photocopy admissible in evidence?
SUGGESTED ANSWER:
a) The photocopy of the marked bills is real (object)
evidence not documentary evidence, because the
marked bills are real evidence.
b) Yes, the photocopy is admissible in evidence,
because the best evidence rule does not apply to object
or real evidence.
1. In civil cases covered by the Revised Rule
on Summary Procedure since there is no
trial;
NOTE: However, the rule on burden of
proof was applied in ejectment cases
since ejectment is a possessory action,
the plaintiff must show a right of
possession that is present or immediate in
the property sought to be recovered.
Unless established, the defendant will
prevail (C&S Fishfarm Corp. vs. CA, GR
NO. 122720, Dec. 16, 2002).
2. Rules of Summary Procedure in criminal
cases where witnesses submit their
affidavits and counter-affidavits, subject
only to cross-examination, re-direct, re-
cross and recall;
3. Agrarian cases.
OTHERS
The rules of evidence does not apply to
probation board
CTA
SEC
Immigration cases
LA/NLRC
CAR

Admissibility of Weight of evidence Section 3. Admissibility of evidence. —

evidence Evidence is admissible when it is relevant to the
Pertains to the ability issue and is not excluded by the law of these
of the evidence to be Pertains to the effect of rules. (3a)
allowed and evidence admitted
accepted subject to RELEVANT---has a logical connection with the
its relevancy and fact in issue or if it establishes directly or indirectly
competence the existence or non-existence of the facts in
Substantive essence issue. Relevancy is determined by logic and
or characteristic The probative value of common sense.
feature of evidence evidence which the
as would make it court may give after Component of Relevant Evidence:
worthy of complying with the
consideration by the rules of relevancy and a. Materiality--- whether the evidence is
court before its competency offered upon a matter properly in issue;
admission

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 480

________________________________________________________________________________________________
whether it is directed toward a fact within
the range of allowable controversy.
b. Probativeness--- the tendency of the
evidence to establish the proposition that
it is offered to prove.
Degree of Probativeness—To be relevant,
it need not be conclusive. The evidence
must merely help a little.
COMPETENT--- if not excluded by law or the
Rules. Competency is determined by the
constitution and the laws.
The general rule is evidence having rational
probative value are admissible, EXCEPT some
specific rule (law, const.) forbids their admission.
Evidence even though relevant should be
excluded if its probative value is substantially
outweighed by the risk that its admission will
cause:
1. Undue/unfair prejudice;
2. confusion of the issues;
3. undue delay or waste of time;
4. mislead the trier of fact; and
5. needless presentation of cumulative
evidence.
RULES OF EXCLUSIONARY
EXCLUSION RULES
Governed by the rules Commonly used for
on evidence evidence excluded by
the constitution
SCOPE OF EXCLUSIONARY RULES (rights
protected)
1. right against unreasonable search and
seizure;
2. right to privacy and inviolability of
communication;
3. right of a person under investigation of an
offense;
4. right against self-incrimination.
Statutory rules of exclusion
NIRC, §201, as amended by RA
8424
Sec. 201. Effect of Failure to Stamp Taxable
Document. — An instrument, document or paper
which is required by law to be stamped and which
has been signed, issued, accepted or transferred
without being duly stamped, shall not be
recorded, nor shall it or any copy thereof or any
record of transfer of the same be admitted or
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
used in evidence in any court until the requisite
stamp or stamps shall have been affixed thereto
and cancelled.
No notary public or other officer authorized
to administer oaths shall add his jurat or
acknowledgment to any document subject to
documentary stamp tax unless the proper
documentary stamps are affixed thereto and
cancelled.
Failure to stamp a document required by law to be
stamped shall render the document inadmissible
in any court until the requisite stamp or stamps
shall have been affixed thereto and cancelled
(§201 NIRC). This is an absolute inadmissibility.
General Banking Act of 2000,
RA 8791, §55.1 (b)
Sec. 55. Prohibited Transactions. -
55.1. No director, officer, employee, or agent
of any bank shall –
(b) Without order of a court of competent
jurisdiction, disclose to any unauthorized person
any information relative to the funds or
properties in the custody of the bank belonging to
private individuals, corporations, or any other
entity: Provided, That with respect to bank
deposits, the provisions of existing laws shall
prevail;
Elements of the exclusion:
director, officer, employee, or agent of any bank
disclosure to unauthorized person
information relative to the funds or properties in
the custody of the bank belonging to private
individuals, corporations, or any other entity
without a court order
de Leon: Note that this provision covers only
property in the custody of the bank other than
bank deposits. For bank deposits, RA 1405
governs. Note also that the provision does not
state the nature of the inadmissibility. I submit that
it is a rule of absolute inadmissibility.
RA 1405: Law on Secrecy of
Bank Deposits
Sec. 2. All deposits of whatever nature with
banks or banking institutions in the Philippines
including investments in bonds issued by the
Government of the Philippines, its political
subdivisions and its instrumentalities, are hereby
481
________________________________________________________________________________________________
considered as of an absolutely confidential nature
and may not be examined, inquired or looked into
by any person, government official, bureau or
office, except upon written permission of the
depositor, or in cases of impeachment, or upon
order of a competent court in cases of bribery or
dereliction of duty of public officials, or in cases
where the money deposited or invested is the
subject matter of the litigation.
GR: All deposits of whatever nature with banks or
banking institutions in the Philippines including
investments in bonds issued by the Government
of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an
absolutely confidential nature and may not be
examined, inquired or looked into by any person,
government official, bureau or office.
Exceptions:
written permission of the depositor
impeachment, or
order of a competent court in cases of
bribery or
dereliction of duty of public officials, or
where the money deposited or invested is the
subject matter of the litigation.
de Leon: I submit that this is a rule of absolute
inadmissibility.
RA 4200: Wire-tapping
Sec. 1. It shall be unlawful for any
person, not being authorized by all the parties to
any private communication or spoken word, to
tap any wire or cable, or by using any other
device or arrangement, to secretly overhear,
intercept, or record such communication or
spoken word by using a device commonly known
as a dictaphone or dictagraph or detectaphone or
walkie-talkie or tape recorder, or however
otherwise described:
It shall also be unlawful for any person, be he
a participant or not in the act or acts penalized in
the next preceding sentence, to knowingly
possess any tape record, wire record, disc record,
or any other such record, or copies thereof, of
any communication or spoken word secured
either before or after the effective date of this
Act in the manner prohibited by this law; or to
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
replay the same for any other person or persons;
or to communicate the contents thereof, either
verbally or in writing, or to furnish transcriptions
thereof, whether complete or partial, to any
other person: Provided, That the use of such
record or any copies thereof as evidence in any
civil, criminal investigation or trial of offenses
mentioned in section 3 hereof, shall not be
covered by this prohibition.
Unlawful acts:
any person, not being authorized by all the parties
to any private communication or spoken word,
to tap any wire or cable, or by using any other
device or arrangement, to secretly overhear,
intercept, or record such communication or
spoken word by using a device commonly
known as a dictaphone or dictagraph or
detectaphone or walkie-talkie or tape
recorder, or however otherwise described:
any person to knowingly possess any tape record,
wire record, disc record, or any other such
record, or copies thereof, of any
communication or spoken word secured in the
manner prohibited by this law; or
any person to replay the same for any other
person or persons
any person to communicate the contents thereof,
either verbally or in writing, or
any person to furnish transcriptions thereof,
whether complete or partial, to any other
person:
The use of such record or any copies thereof as
evidence in any civil, criminal investigation or trial
of offenses mentioned in section 3 hereof, shall
not be covered by this prohibition.
Sec. 2. Any person who willfully or
knowingly does or who shall aid, permit, or cause
to be done any of the acts declared to be
unlawful in the preceding section or who violates
the provisions of the following section or of any
order issued thereunder, or aids, permits, or
causes such violation shall, upon conviction
thereof, be punished xxx.
Sec. 3. Nothing contained in this Act,
however, shall render it unlawful or punishable
for any peace officer, who is authorized by a
written order of the Court, to execute any of the
acts declared to be unlawful in the two preceding
sections in cases involving the crimes of treason,
espionage, provoking war and disloyalty in case of
482
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war, piracy, mutiny in the high seas, rebellion,
conspiracy and proposal to commit rebellion,
inciting to rebellion, sedition, conspiracy to
commit sedition, inciting to sedition, kidnapping
as defined by the Revised Penal Code, and
violations of Commonwealth Act No. 616,
punishing espionage and other offenses against
national security: Provided, That such written
order shall only be issued or granted upon written
application and the examination under oath or
affirmation of the applicant and the witnesses he
may produce and a showing: (1) that there are
reasonable grounds to believe that any of the
crimes enumerated hereinabove has been
committed or is being committed or is about to
be committed: Provided, however, That in cases
involving the offenses of rebellion, conspiracy and
proposal to commit rebellion, inciting to
rebellion, sedition, conspiracy to commit sedition,
and inciting to sedition, such authority shall be
granted only upon prior proof that a rebellion or
acts of sedition, as the case may be, have actually
been or are being committed; (2) that there are
reasonable grounds to believe that evidence will
be obtained essential to the conviction of any
person for, or to the solution of, or to the
prevention of, any of such crimes; and (3) that
there are no other means readily available for
obtaining such evidence.
xxx
Conditions for valid wiretapping:
any peace officer
authorized by a written order of the Court
in cases involving the crimes of treason,
espionage, provoking war and disloyalty in
case of war, piracy, mutiny in the high seas,
rebellion, conspiracy and proposal to commit
rebellion, inciting to rebellion, sedition,
conspiracy to commit sedition, inciting to
sedition, kidnapping, espionage and other
offenses against national security:
Sec. 4. Any communication or spoken word,
or the existence, contents, substance, purport,
effect, or meaning of the same or any part
thereof, or any information therein contained
obtained or secured by any person in violation of
the preceding sections of this Act shall not be
admissible in evidence in any judicial, quasi-
judicial, legislative or administrative hearing or
investigation.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Information obtained in violation of the anti-
wiretapping act is absolutely inadmissible.
Ramirez v. CA, 248 SCRA 590 (1995) Even a
person privy to a communication who records his
private conversation with another without the
knowledge of the latter violates the anti-
wiretapping act. The recording is inadmissible in
evidence.
Note: An extension telephone line cannot be
placed in the same category as a dictapone,
dictagraph or other devices enumerated in sec. 1
of RA 4200 as the use thereof cannot be
considered as tapping the wire or cable of a
telephone line (Gaanan vs. CA, 145 SCRA 112).
DOCTRINE OF THE “FRUIT OF THE
POISONOUS TREE”
The doctrine posits that all evidence (the fruit)
derived from an illegal search (the poisonous tree)
must be suppressed.
KINDS OF ADMISSIBILITY
1. MULTIPLE--- Evidence that is plainly
relevant and competent for two or more
purposes will be received if it satisfies all
the requirements prescribed by law in
order that it may be admissible for the
purpose for which it is presented, even if it
does not satisfy the other requisites for its
admissibility for other purposes.
Note: for instance, evidence that the
general reputation of the accused for
truth, honesty or integrity is bad is
inadmissible to prove that he committed
the crime charged but it may be
admissible to impeach his credibility as a
witness.
2. CONDITIONAL--- Evidence which appear
to be immaterial is admitted by the court
subject to the condition that its
connection with another or other facts
subsequently to be proved will be
established.
3. CURATIVE--- Evidence otherwise
improper is admitted to contradict
improper evidence presented or
introduced by the other party, to cure,
contradict or neutralize such improper
evidence (fighting fire with fire).
483
________________________________________________________________________________________________
Offer of Evidence; Fruit of a Poisonous
Tree (2010)
No. VIII. Dominique was accused of
committing a violation of the human Security
Act. He was detained incommunicado,
deprived of sleep, and subjected to water
torture. He later allegedly confessed his guilt
via an affidavit. After trial, he was acquitted
on the ground that his confession was
obtained through torture, hence,
inadmissible as evidence. In a subsequent
criminal case for torture against those who
deprived him of sleep and subjected him to
water torture. Dominique was asked to testify
and to, among other things, identify his
above said affidavit of confession. As he was
about to identify the affidavit, the defense
counsel objected on the ground that the
affidavit is a fruit of a poisonous tree. Can
the objection be sustained? Explain. (3%)
SUGGESTED ANSWER: No, the objection
may not be sustained on the ground
stated, because the affiant was only to
identify the affidavit which is not yet
being offered in evidence. The doctrine of
the poisonous tree can only be invoked by
Domingo as his defense in the crime of
Violation of Human Security Act filed
against him but not by the accused
torture case filed by him.
In the instant case, the presentation of
the affidavit cannot be objected to by the
defense counsel on the ground that is a
fruit of the poisonous tree because the
same is used in Domingo‟s favor.
Offer of Evidence; Fruit of a Poisonous
Tree (2009) No.VI. Arrested in a buy-bust
operation, Edmond was brought to the police
station where he was informed of his
constitutional rights. During the
investigation, Edmond refused to give any
statement. However, the arresting officer
asked Edmond to acknowledge in writing that
six (6) sachets of “shabu” were confiscated
from him. Edmond consented and also
signed a receipt for the amount of P3,000,
allegedly representing the “purchase price of
the shabu.” At the trial, the arresting officer
testified and identified the documents
executed and signed by Edmond. Edmond’s
lawyer did not object to the testimony. After
the presentation of the testimonial evidence,
the prosecutor made a formal offer of
evidence which included the documents
signed by Edmond. Edmond’s lawyer object
to the admissibility of the document for being
the fruit of the poisoned tree. Resolve the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
objection with reasons. (3%) SUGGESTED
ANSWER:
The objection to the admissibility of the
documents which the arresting officer
asked Edmond to sign without the benefit
of counsel, is well-taken. Said documents
having been signed by the accused while
under custodial investigation, imply an
“admission” without the benefit of
counsel, that the shabu came from him
and that the P3,000,00 was received by
him pursuant to the illegal selling of the
drugs. Thus, it was obtained by the
arresting officer in clear violation of Sec.
12 (3), Art. III of the 1987 Constitution,
particularly the right to be assisted by
counsel during custodial investigation.
Moreover, the objection to the
admissibility of the evidence was timely
made, i.e., when the same is formally
offered.
Admissibility (1998)
The barangay captain reported to the police that X was
illegally keeping in his house in the barangay an
Armalite M16 rifle. On the strength of that
information, the police conducted a search of the
house of X and indeed found said rifle. The police
raiders seized the rifle and brought X to the police
station. During the investigation, he voluntarily signed
a Sworn Statement that he was possessing said rifle
without license or authority to possess, and a Waiver
of Right to Counsel.
During the trial of X for illegal possession of firearm,
the prosecution submitted in evidence the rifle. Sworn
Statement and Waiver of Right to Counsel, individually
rule on the admissibility in evidence of the:
1. Rifle; [2%]
2. Sworn Statement; and [2%1
3. Waiver of Right to Counsel of X. [1%]
SUGGESTED ANSWER:
1. The rifle is not admissible in evidence because it was
seized without a proper search warrant. A warrantless
search is not justified. There was time to secure a
search warrant. (People us. Encinada G.R. No. 116720,
October 2. 1997 and other cases)
2. The sworn statement is not admissible in evidence
because it was taken without informing him of his
custodial rights and without the assistance of counsel
which should be independent and competent and
preferably of the choice of the accused. (People us.
Januario, 267 SCRA 608.)
3. The waiver of his right to counsel is not admissible
because it was made without the assistance of counsel
of his choice. (People us. Gomez, 270 SCRA 433.)
484
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Admissibility (2002)
Acting on a tip by an informant, police officers
stopped a car being driven by D and ordered him to
open the trunk. The officers found a bag containing
several kilos of cocaine. They seized the car and the
cocaine as evidence and placed D under arrest.
Without advising him of his right to remain silent and
to have the assistance of an attorney, they questioned
him regarding the cocaine. In reply, D said, “I don’t
know anything about it. It isn’t even my car.” D was
charged with illegal possession of cocaine, a prohibited
drug. Upon motion of D, the court suppressed the use
of cocaine as evidence and dismissed the charges
against him. D commenced proceedings against the
police for the recovery of his car. In his direct
examination, D testified that he owned the car but had
registered it in the name of a friend for convenience.
On cross-examination, the attorney representing the
police asked, “After your arrest, did you not tell the
arresting officers that it wasn’t your car?” If you were
D’s attorney, would you object to the question? Why?
(5%)
SUGGESTED ANSWER:
Yes, because his admission made when he was
questioned after he was placed under arrest was in
violation of his constitutional right to be informed of
his right to remain silent and to have competent and
independent counsel of his own choice. Hence, it is
inadmissible in evidence. [Constitution, Art. III, sec. 12; R.A.
7438 (1992), sec, 2; People v. Mahinay, 302 SCRA 455].
ALTERNATIVE ANSWER:
Yes, because the question did not lay the predicate to
justify the cross-examination question.
Admissibility (2004)
Sgt. GR of WPD arrested two NPA suspects, Max and
Brix, both aged 22, in the act of robbing a grocery in
Ermita. As he handcuffed them he noted a pistol
tucked in Max's waist and a dagger hidden under Brix's
shirt, which he promptly confiscated. At the police
investigation room, Max and Brix orally waived their
right to counsel and to remain silent. Then under oath,
they freely answered questions asked by the police
desk officer. Thereafter they signed their sworn
statements before the police captain, a lawyer. Max
admitted his part in the robbery, his possession of a
pistol and his ownership of the packet of shabu found
in his pocket.
Brix admitted his role in the robbery and his
possession of a dagger. But they denied being NPA hit
men. In due course, proper charges were filed by the
City Prosecutor against both arrestees before the MM
RTC.
May the written statements signed and sworn to by
Max and Brix be admitted by the trial court as
evidence for the prosecution? Reason. (5%)
SUGGESTED ANSWER:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
No. The sworn written statements of Max and Brix
may not be admitted in evidence, because they were
not assisted by counsel. Even if the police captain
before whom they signed the statements was a lawyer,
he was not functioning as a lawyer, nor can he be
considered as an independent counsel. Waiver of the
right to a lawyer must be done in writing and in the
presence of independent counsel. (People v. Mahinay, 302
SCRA 455 11999]; People v. Espiritu, 302 SCRA 533 [1999]).
Section 4. Relevancy; collateral matters. —
Evidence must have such a relation to the fact in
issue as to induce belief in its existence or non-
existence. Evidence on collateral matters shall not
be allowed, except when it tends in any
reasonable degree to establish the probability or
improbability of the fact in issue. (4a)
Collateral matter
It refers to facts other than the fact in issue.
Collateral facts – matters other than facts in
issue and which are offered as a basis merely for
inference as to the existence or non-existence of
the facts in issue
RULE 129
What Need Not Be Proved
NOTE: The following facts need not be proved:
1. Those which the court may properly take
judicial notice of (Rule 129);
2. Those which are judicially admitted;
3. Those which are conclusively presumed;
4. Those disputably presumed but
uncontradicted.
JUDICIAL NOTICE
Cognizance of certain facts which judges may
properly take and act upon without proof. They are
based on consideration of expediency and
convenience for it displaces the necessity for
evidence on a settled matter. It may be mandatory
or discretionary.
A judge is not justified in refusing to take judicial
notice of a fact which is not within his knowledge
or memory if the fact in question is one which is he
proper subject of judicial cognizance.
Object of judicial notice:
To save time, labor and expense in securing and
introducing evidence on matters which is the
proper subject of judicial notice
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Judicial notice cannot fill-in the missing element
of a crime.
Section 1. Judicial notice, when mandatory. —
A court shall take judicial notice, without the
introduction of evidence, of:
1. the existence and territorial extent of
states, their political history, forms of
government and symbols of nationality,
2. the law of nations,
3. the admiralty and maritime courts of the
world and their seals,
4. the political constitution and history of the
Philippines,
5. the official acts of legislative, executive
and judicial departments of the
Philippines,
6. the laws of nature,
7. the measure of time, and
8. the geographical divisions. (1a)
NOTES:
THE LAW OF NATIONS
The law of nations which is the subject of judicial
notice is the law which regulates the relations of
the dominant powers of the earth. It is the
compilation of rules which by common consent of
mankind have acquiesced in as law.
FOREIGN MUNICIPAL LAWS
GR: They must be proved as any other fact. They
do not proved themselves nor can courts take
judicial notice of them. They must be alleged and
proved.
They may be evidenced by an official publication
thereof or by a copy attested by the officer having
legal custody of the record. Or his deputy, and
accompanied with a certificate that such officer
has the custody thereof.
The certificate may be made by a secretary of an
embassy or legation, consul general, consul, vice-
consul and consular agent or by any officer in the
foreign service of the Philippines stationed in a
foreign country in which the record is kept,
authenticated by the seal of the office.
Bar Exam Question 2011
(81) Which of the following matters is NOT A
PROPER SUBJECT of judicial notice?
(A) Persons have killed even without motive.
(B) Municipal ordinances in the
municipalities where the MCTC sits. (C)
Teleconferencing is now a way of conducting
business transactions. (D) British law on
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
succession personally known to the
presiding judge.
Bar Exam Question 2012
80. A court may take judicial notice of:
a. the Twitter account of President Aquino.
b. a Committee Report issued by the
Congressional Committee on Labor
Relations.
c. the effects of taking aspirin everyday.
d. the arbitral award issued by International
Court of Arbitration.
SUGGESTED ANSWER: (b), A court shall
take judicial notice, without the
introduction of evidence, of the existence
and territorial extent of states, their
political history, forms of government and
symbols of nationality, the law of nations,
the admiralty and maritime courts of the
world and their seals, the political
constitution and history of the
Philippines, the official acts of the
legislative, executive, and judicial
departments of the Philippines, the laws
of nature, the measure of time, and the
geographical divisions. (Rule 129, Sec. 1,
Rules of Court).
EXCEPTIONS TO THE RULE:
1. Foreign law accepted by the government;
2. Common law.
DOCTRINE OF PROCESSUAL PRESUMPTION
It is that doctrine which lays down the presumption
that the foreign law is the same as the law of the
forum. It arises if the foreign law, though properly
applicable, is either not alleged, or if alleged, is not
proved before a competent court.
NOTE: When the parties in a case agree on what
the foreign law provides, these are admissions of
fact which other parties and the court are made to
rely upon. Hence, they are in estoppel to
subsequently take a contrary position (Phil.
Commercial and Industrial Bank vs. Escolin, et
al.).
The mere personal knowledge of the judge is not
the judicial knowledge of the court. Judicial
cognizance is taken only of those matters which
are “commonly known”. A fact may be of judicial
notice and not of the judge’s personal knowledge
and vice versa. The rule refers to facts which
ought to be known to judges because of their
judicial functions
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Section 2. Judicial notice, when discretionary.
— A court may take judicial notice of matters
which:
1. are of public knowledge,
2. or are capable to unquestionable
demonstration,
3. or ought to be known to judges because
of their judicial functions. (1a)
Judicial Notice of Facts
This is measured by general knowledge of the
same facts. A fact generally recognized or known
when its existence or operation is accepted by the
public without qualification or contention.
TEST OF NOTORIETY: Whether the fact involve
is notoriously or publicly known as to make it
proper to accept its existence without proof.
Tabuena v. CA, 196 SCRA 650 (1991) As a
general rule courts are not authorized to take
judicial notice, in the adjudication of cases
pending before them, of the contents of the
records of other cases, even when such cases
have been tried or are pending in the same court,
and notwithstanding the fact that both cases may
have been heard or are actually pending before
the same judge.
However, exceptions are:
1. when in the absence of objection, and as
a matter of convenience to all parties, a
court may properly treat all or any part of
the original record of a case filed in its
archives as read into the record of a case
pending before it, when, with the
knowledge of the opposing party,
reference is made to it for that purpose,
by name and number or in some other
manner by which it is sufficiently
designated; or when the original record of
the former case or any part of it, is
actually withdrawn from the archives by
the court's direction, at the request or with
the consent of the parties, and admitted
as a part of the record of the case then
pending;
2. When the present action is closely
interrelated to another case pending
between the same parties;
3. Where the interest of public in
ascertaining the truth is of paramount
importance;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
4. In cases seeking to determine what is
reasonable exercise of discretion or
whether or not the previous ruling is
applicable in a case under consideration.
NOTE: These exceptions are applicable only
when the case referred to or the original or part
thereof are actually withdrawn from the archives
and admitted as part of the record of the case then
pending.
Judicial Notice of Municipal Ordinances
Inferior courts should take judicial notice of
municipal or city ordinances in force within their
territorial jurisdiction.
The RTC should take judicial notice of municipal
ordinances only when:
1. They are expressly authorized by a
statute;
2. On appeals of decisions of inferior courts
when such court had taken notice of a
municipal ordinance.
3. It may also take discretionary judicial
notice under sec. 2.
RULES BEFORE THE APPELLATE COURTS
1. The appellate court is without authority to
take notice or to take into consideration
the judicial records of a case previously
decided by the trial court upon which said
court did not have the opportunity to pass;
2. An appellate court cannot consult the
records in another case to ascertain a fact
not shown by the records of the case
before it, but could go to its other
decisions for the law that is determinative
of or applicable to the case under review;
3. The SC can also take judicial notice of its
records in a previous case in connection
with the conduct of litigant or witness in a
similar matter;
4. Lower courts, from the CA down to the
lowest level must take judicial notice of
decisions of the SC, as they are duty
bound to know the rulings of the highest
tribunal and to apply them in the
adjudication of cases, they being part of
the legal system.
Judicial Notice; Evidence (2005)
Explain briefly whether the RTC may, motu proprio, take
judicial notice of: (5%)
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1. The street name of methamphetamine hydro-
chloride is shabu.
SUGGESTED ANSWER:
The RTC may motu proprio take judicial notice of the
street name of methamphetamine hydrochloride is
shabu, considering the chemical composition of shabu.
(People v. Macasling, GM, No. 90342, May 27, 1993)
2. Ordinances approved by municipalities under
its territorial jurisdiction;
SUGGESTED ANSWER:
In the absence of statutory authority, the RTC may not
take judicial notice of ordinances approved by
municipalities under their territorial jurisdiction, except
on appeal from the municipal trial courts, which took
judicial notice of the ordinance in question. (U.S. v.
Blanco, G.R, No. 12435, November 9,1917; U.S. v.
Hernandez, G.R. No. 9699, August 26, 1915)
3. Foreign laws;
SUGGESTED ANSWER:
The RTC may not generally take judicial notice of
foreign laws (In re Estate of Johnson, G.R. No. 12767,
November 16, 1918; Fluemer v. Hix, G.R. No. 32636,
March 17, 1930), which must be proved like any other
matter of fact (Sy Joe Lieng v. Sy Quia, G.R. No. 4718,
March 19, 1910) except in a few instances, the court in
the exercise of its sound judicial discretion, may take
notice of foreign laws when Philippine courts are
evidently familiar with them, such as the Spanish Civil
Code, which had taken effect in the Philippines, and
other allied legislation. (Pardo v. Republic, G.R. No.
L2248 January 23, 1950; Delgado v. Republic, G.R. No.
L2546, January .28, 1950)
4. Rules and Regulations issued by quasijudicial
bodies implementing statutes;
SUGGESTED ANSWER:
The RTC may take judicial notice of Rules and
Regulations issued by quasi-judicial bodies
implementing statutes, because they are capable of
unquestionable demonstration (Chattamal v. Collector of
Customs, G.R. No. 16347, November 3,1920), unless the
law itself considers such rules as an integral part of the
statute, in which case judicial notice becomes
mandatory.
5. Rape may be committed even in public places.
SUGGESTED ANSWER:
The RTC may take judicial notice of the fact that rape
may be committed even in public places. The "public
setting" of the rape is not an indication of consent.
(People v. Tongson, G.R. No. 91261, February 18, 1991)
The Supreme Court has taken judicial notice of the
fact that a man overcome by perversity and beastly
passion chooses neither the time, place, occasion nor
victim. (People v, Barcelona, G.R. No. 82589, October 31,
1990)
Judicial Notice; Evidence; Foreign Law (1997)
a) Give three instances when a Philippine court can
take judicial notice of a foreign law. b) How do you
prove a written foreign law? c) Suppose a foreign law
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
was pleaded as part of the defense of defendant but no
evidence was presented to prove the existence of said
law, what is the presumption to be taken by the court
as to the wordings of said law"?
SUGGESTED ANSWER:
(a) The three instances when a Philippine court can
take judicial notice of a foreign law are: (1) when the
Philippine courts are evidently familiar with the foreign
law (Moran. Vol. 5, p. 34, 1980 edition); (2) when the foreign
law refers to the law of nations (Sec. 1 of Rule 129) and (3)
when it refers to a published treatise, periodical or
pamphlet on the subject of law if the court takes
judicial notice of the fact that the writer thereof is
recognized in his profession or calling as expert on the
subject (Sec. 46. Rule 130).
(b) A written foreign law may be evidenced by an official
publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and
accompanied. If the record is not kept in the Philippines,
with a certificate that such officer has the custody, if the
office in which the record is kept is in a foreign country, the
certificate may be made by a secretary of the embassy or
legation, consul general, consul, vice-consul, or consular
agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office
(Sec. 24, Rule 132, Zalamea v. CA, 228 SCRA 23).
(c) The presumption is that the wordings of the
foreign law are the same as the local law. (Northwest
Orient Airlines v. Court of Appeals, 241 SCRA 192; Moran,
Vol. 6. page 34, 1980 edition; Lim v. Collector of Customs,
36 Phil. 472). This is known as the PROCESSUAL
PRESUMPTION.
Section 3. Judicial notice, when hearing
necessary. — During the trial, the court, on its
own initiative, or on request of a party, may
announce its intention to take judicial notice of any
matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal,
the proper court, on its own initiative or on request
of a party, may take judicial notice of any matter
and allow the parties to be heard thereon if such
matter is decisive of a material issue in the case.
(n)
Section 4. udicial admissions. — An admission,
verbal or written, made by the party in the course
of the proceedings in the same case, does not
require proof. The admission may be contradicted
only by showing that it was made through palpable
mistake or that no such admission was made. (2a)
NOTE: Lack of jurisdiction over the subject matter
cannot be admitted because jurisdiction is
conferred by law and cannot be subject of the
stipulation or admission of the parties.
488
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Judicial admissions are always conclusive upon

Judicial admissions may be made in: the admitter and does not require formal offer in
evidence
1. The pleadings filed by the parties;
2. In the course of the trial either by verbal or Facts alleged in the party’s pleadings are deemed
written manifestations or stipulations; admissions of that party and are binding upon it,
3. In other stages of judicial proceedings as but this is not an absolute and inflexible rule. An
in the pre-trial of the case; answer is a mere statement of which the party
4. Admissions obtained through depositions, filing it expects to prove, but it is not evidence
written interrogatories or request for (Atillo vs. CA, 266 SCRA 596).
admissions.
Admissions in affirmative defenses are merely
hypothetical
Bar Exam Question 2011
Judicial admissions made in one case are
(35) Which of the following admissions made
admissible at the trial of another case provided
by a party in the course of judicial they are proved and are pertinent to the issue
proceedings is a judicial admission? (A) involve in the latter. UNLESS:
Admissions made in a pleading signed by the 1. The said admissions were made only for
party and his counsel intended to be filed. (B) purposes of the first case, as in the case
An admission made in a pleading in another of implied admissions and their effects
case between the same parties. (C) under Rule 26;
Admission made by counsel in open court. 2. The same were withdrawn with the
(D) Admissions made in a complaint permission of the court therein;
superseded by an amended complaint. 3. The court deems it proper to relieve the
party therefrom.
Instances of Judicial admissions
Q: Is self-serving rule applicable to judicial
the genuineness and due execution of an admissions?
actionable document copied or attached to a
pleading, when the other party fails to A: No. The self-serving rule which prohibit the
specifically deny under oath (Rule 8 §8); admission or declaration of a witness in his favor
material allegations in the complaint, when the applies only to extra-judicial admissions. If the
other party fails to specifically deny it (Rule 8 declaration is made in open court, such is raw
§11); evidence, it is not self-serving. It is admissible
because the witness may be cross-examined on
admissions in superseded pleadings, when that matter. However, whether it will be credible or
offered in evidence (Rule 10 §8); not is a matter of appreciation on the part of the
act, declaration, or omission of a party as to a court.
relevant fact (Rule 130 §26);
ADMISSIONS IN ADMISSIONS IN
implied admission of guilt in an offer of CIVIL CASES CRIMINAL CASES
compromise by the accused in criminal cases, Admission during the
except quasi-offenses and those allowed by Admission in a arraignment may be
law to be compromised (Rule 130 §27); pleading which has withdrawn at any time
admission by silence (Rule 130 §32). been withdrawn or before the judgment of
superseded by an conviction becomes final,
amended pleading but such plea of guilty later
are considered withdrawn is not admissible
Judicial admissions in pleadings later extra-judicial against the accused who
amended admission made the plea.
Admissions in a pleading which had been It is not even considered
withdrawn or superseded by an amended extra-judicial admission
pleading, although filed in the same case, are
considered extra-judicial admissions. The original
pleading must be proved by the party who relies RULE 130
thereon by formally offering it in evidence (Torres
vs. CA, July 31, 1984)

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 489

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Rules of Admissibility
A. OBJECT (REAL) EVIDENCE
Section 1. Object as evidence. — Objects as
evidence are those addressed to the senses of the
court. When an object is relevant to the fact in
issue, it may be exhibited to, examined or viewed
by the court. (1a)
This is the evidence of the highest order.
This is also known as a real evidence,
demonstrative evidence, physical
evidence, and autoptic preference.
REAL EVIDENCE DEMONSTRATIVE
EVIDENCE
Tangible object that Tangible evidence that
played some actual role merely illustrates a
in the matter that gave matter of importance in
rise to the litigation the litigation
REAL EVIDENCE may be:
1. Direct Evidence--- it can prove directly
the fact for which it is offered.
E.g. In a physical injury case, the
direct real evidence of disfiguring
injury would be the exhibition of
the injury itself to the court.
2. Circumstantial Evidence--- facts about
the object are proved as the basis for an
inference that other facts are true.
E.g. In a paternity case, a baby
may be shown and his
appearance compared with that of
the alleged father, if they look
alike, the court may draw an
inference that the parental
relationship exists.
REQUISITES OF OBJECT EVIDENCE:
1. The object must be relevant to the fact in
issue;
2. The object must be authenticated before it
is admitted;
3. The object must not be hearsay;
4. The object must not be privileged;
5. It must met any additional requirement set
by law.
PURPOSE OF AUTHENTICATION
1. To prevent the introduction of an object
different from the one testified about;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
2. To insure that there has been no
significant changes in the object’s
condition.
OCULAR INSPECTION OR “VIEW”
The court can go to the place where the object is
located, when the object evidence cannot be
brought to the court [see also sec. 21 (4) to (6),
RA 9165]. Unless bulky, the ocular inspection can
be conducted in the court where the evidence is
brought.
VIEW PART OF THE TRIAL
The inspection or view outside the courtroom
should be made in the presence of the parties or
at least with the previous notice to them in order
that they may see the object to be viewed. Such
inspection is part of the trial, inasmuch as
evidence is thereby being received. The parties
are entitled to be present at any stage of the trial,
and consequently they are entitled to be at least
notified of the time and place set for the view.
Read sec. 21 of RA 9165, on the chain of
custody of the seized prohibited drug. Refer to
the Criminal Law Reviewer. (see. Table)
Chain of Custody (2012) No.II.A. (a) Discuss
the "chain of custody" principle with respect
to evidence seized under R.A. 9165 or the
Comprehensive Dangerous Drugs Act of
2002. (5%) SUGGESTED ANSWER:
In prosecutions involving narcotics and
other illegal substances, the substance
itself constitutes part of the corpus delicti
of the offense and the fact of its existence
is vital to sustain a judgment of
conviction beyond reasonable doubt. The
chain of custody requirement is essential
to ensure that doubts regarding the
identity of the evidence are removed
through the monitoring and tracking of
the movements of the seized drugs from
the accused, to the police, to the forensic
chemist, and finally to the court. (People
vs. Sitco, G.R. No. 178202, May 14, 2010,
Velasco, Jr. J.). Ergo, the existence of the
dangerous drug is a condition sine qua
non for conviction. (People vs. De Guzman
Y Danzil, G.R. No. 186498, March 26,
2010 Nachura J.). The failure to establish,
through convincing proof, that the
integrity of the seized items has been
adequately preserved through an
unbroken chain of custody is enough to
engender reasonable doubt on the guilt of
an accused (People vs. De Guzman Y
Danzil). Nonetheless, non-compliance with
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the procedure shall not render void and
invalid the seizure and custody of the
drugs when:
(1) such non-compliance is attended by
justifiable grounds; and (2) the integrity
and the evidentiary value of the seized
items are properly preserved by the
apprehending team. There must be proof
that these two
(2) requirements were met before such
non-compliance may be said to fall within
the scope of then proviso. (People vs. Dela
Cruz, G.R. No. 177222, October 29, 2008,
570 SCRA 273).
ALTERNATIVE ANSWER:
Crucial in proving chain of custody is the
marking of the seized drugs or other
related items immediately after they are
seized from the accused. Marking after
seizure is the starting point in the
custodial link, thus, it is vital that the
seized contraband are immediately
marked because succeeding handlers of
the specimens will use the markings as
reference. Thus, non-compliance by the
apprehending/buy-bust team with Sec.21
of R.A. 9165 is not fatal as long as there is
justifiable ground therefor, and as long as
the integrity and the evidentiary value of
the confiscated/seized items are properly
preserved by the apprehending
officer/team. (People vs. Mantalaba, G.R.
No. 186227, July 20, 2011).
Bar Exam Question 2011
(32) Arvin was caught in flagrante delicto
selling drugs for P200,000.00. The police
officers confiscated the drugs and the money
and brought them to the police station where
they prepared the inventory duly signed by
police officer Oscar Moreno. They were,
however, unable to take pictures of the items.
Will this deficiency destroy the chain of
custody rule in the drug case? (A) No, a
breach of the chain of custody rule in drug
cases, if satisfactorily explained, will not
negate conviction. (B) No, a breach of the
chain of custody rule may be offset by
presentation in court of the drugs. (C) Yes,
chain of custody in drug cases must be
strictly observed at all times to preserve the
integrity of the confiscated items. (D) Yes,
compliance with the chain of custody rule in
drug cases is the only way to prove the
accused’s guilt beyond reasonable doubt.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Bar Exam Question 2012
52. PDEA agents conducted a search on a
house abandoned by its owners in Quezon
City. The search, in order to be valid, must
be made in the presence of:
a. any relative of the owner of the house.
b. the Director of the PDEA and a member of
the media.
c. the Barangay Chairman and a Barangay
Tanod.
d. any elected Quezon City official.
SUGGESTED ANSWER:
(d), Under the “chain of custody”
principle, the apprehending team having
initial custody and control of the drugs
shall, immediately after seizure and
confiscation, physically inventory and
photograph the same in the presence of
the accused or the person/s from whom
such items were confiscated and/or seized
or his/her representative or counsel, a
representative from media and the DOJ,
and any elected public official who shall
be required to sign the copies of the
inventory and be given a copy thereof.
(Sec. 21(1), RA 9165).
Limitations against the use of real evidence
may be classified into:
1. Inherent Limitation--- When the object is
relevant to the fact in issue, it may be exhibited to,
examined or viewed by the court.
Thus, it excludes:
a. Irrelevant evidence;
b. Illegally obtained evidence.
2. Non-inherent Limitations--- Relevant
evidence may be excluded on the ground that
although relevant and authentic, its probative
value is exceeded by its prejudicial effect such as
the following:
a. Indecency and impropriety;
b. Undue prejudice;
c. Offensive to sensibilities;
d. Inconvenience and unnecessary expense.
NOTE: But when the exhibition is necessary to the
ends of justice, notions of decency and delicacy of
feeling will not be allowed to prevail. Evidence
may be received in chambers.
Admissibility; Private Document (2005)
May a private document be offered, and admitted in
evidence both as documentary evidence and as object
evidence? Explain.
SUGGESTED ANSWER:
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Yes, it can be considered as both documentary and
object evidence. A private document may be offered
and admitted in evidence both as documentary
evidence and as object evidence. A document can also
be considered as an object for purposes of the case.
Objects as evidence are those addressed to the senses
of the court. (Sec. 1, Rule 130, Rules of Court) Documentary
evidence consists of writings or any material
containing letters, words, numbers, figures, symbols or
other modes of written expressions, offered as proof
of their contents. (Sec. 2, Rule 130, Rules of Court) Hence, a
private document may be presented as object evidence
in order to 'establish certain physical evidence or
characteristics that are visible on the paper and
writings that comprise the document.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 06-11-5-SC
(2 October 2007)
RULE ON DNA EVIDENCE
RESOLUTION
Acting on the recommendation of the Chairperson
and Members of the Subcommittee on Evidence
submitting for the Court’s consideration and
approval the proposed Rule on DNA Evidence, the
Court Resolved to APPROVE the same.
This Resolution shall take effect on October 15,
2007 following its publication in a newspaper of
general circulation.
October 2, 2007.
RULE ON DNA EVIDENCE
SECTION 1. Scope. – This Rule shall apply
whenever DNA evidence, as defined in Section 3
hereof, is offered, used, or proposed to be offered
or used as evidence in all criminal and civil actions
as well as special proceedings.
Sec. 2. Application of other Rules on Evidence.
– In all matters not specifically covered by this
Rule, the Rules of Court and other pertinent
provisions of law on evidence shall apply.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Sec. 3. Definition of Terms. – For purposes of
this Rule, the following terms shall be defined as
follows:
a. “Biological sample” means any organic
material originating from a person’s body,
even if found in inanimate objects, that is
susceptible to DNA testing. This includes
blood, saliva and other body fluids,
tissues, hairs and bones;
b. “DNA” means deoxyribonucleic acid,
which is the chain of molecules found in
every nucleated cell of the body. The
totality of an individual’s DNA is unique for
the individual, except identical twins;
c. “DNA evidence” constitutes the totality of
the DNA profiles, results and other genetic
information directly generated from DNA
testing of biological samples;
d. “DNA profile” means genetic information
derived from DNA testing of a biological
sample obtained from a person, which
biological sample is clearly identifiable as
originating from that person;
e. “DNA testing” means verified and
credible scientific methods which include
the extraction of DNA from biological
samples, the generation of DNA profiles
and the comparison of the information
obtained from the DNA testing of
biological samples for the purpose of
determining, with reasonable certainty,
whether or not the DNA obtained from two
or more distinct biological samples
originates from the same person (direct
identification) or if the biological samples
originate from related persons (kinship
analysis); and
f. “Probability of Parentage” means the
numerical estimate for the likelihood of
parentage of a putative parent compared
with the probability of a random match of
two unrelated individuals in a given
population.
Sec. 4. Application for DNA Testing Order. –
The appropriate court may, at any time, either
motu proprio or on application of any person who
has a legal interest in the matter in litigation, order
a DNA testing. Such order shall issue after due
hearing and notice to the parties upon a showing
of the following:
a. A biological sample exists that is relevant
to the case;
b. The biological sample: (i) was not
previously subjected to the type of DNA
testing now requested; or (ii) was
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previously subjected to DNA testing, but
the results may require confirmation for
good reasons;
c. The DNA testing uses a scientifically valid
technique;
d. The DNA testing has the scientific
potential to produce new information that
is relevant to the proper resolution of the
case; and
e. The existence of other factors, if any,
which the court may consider as
potentially affecting the accuracy of
integrity of the DNA testing.
This Rule shall not preclude a DNA testing,
without need of a prior court order, at the behest
of any party, including law enforcement agencies,
before a suit or proceeding is commenced.
Sec. 5. DNA Testing Order. – If the court finds
that the requirements in Section 4 hereof have
been complied with, the court shall –
a. Order, where appropriate, that biological
samples be taken from any person or
crime scene evidence;
b. Impose reasonable conditions on DNA
testing designed to protect the integrity of
the biological sample, the testing process
and the reliability of the test results,
including the condition that the DNA test
results shall be simultaneously disclosed
to parties involved in the case; and
c. If the biological sample taken is of such an
amount that prevents the conduct of
confirmatory testing by the other or the
adverse party and where additional
biological samples of the same kind can
no longer be obtained, issue an order
requiring all parties to the case or
proceedings to witness the DNA testing to
be conducted.
An order granting the DNA testing shall be
immediately executory and shall not be
appealable. Any petition for certiorari initiated
therefrom shall not, in any way, stay the
implementation thereof, unless a higher court
issues an injunctive order. The grant of DNA
testing application shall not be construed as an
automatic admission into evidence of any
component of the DNA evidence that may be
obtained as a result thereof.
Sec. 6. Post-conviction DNA Testing. – Post-
conviction DNA testing may be available, without
need of prior court order, to the prosecution or any
person convicted by final and executory judgment
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
provided that (a) a biological sample exists, (b)
such sample is relevant to the case, and (c) the
testing would probably result in the reversal or
modification of the judgment of conviction.
Note: Connect with sec. 10 of this Rule.
Sec. 7. Assessment of probative value of DNA
evidence. – In assessing the probative value of
the DNA evidence presented, the court shall
consider the following:
a. The chain of custody, including how the
biological samples were collected, how
they were handled, and the possibility of
contamination of the samples;
b. The DNA testing methodology, including
the procedure followed in analyzing the
samples, the advantages and
disadvantages of the procedure, and
compliance with the scientifically valid
standards in conducting the tests;
c. The forensic DNA laboratory, including
accreditation by any reputable standards-
setting institution and the qualification of
the analyst who conducted the tests. If the
laboratory is not accredited, the relevant
experience of the laboratory in forensic
casework and credibility shall be properly
established; and
d. The reliability of the testing result, as
hereinafter provided.
The provisions of the Rules of Court concerning
the appreciation of evidence shall apply
suppletorily.
Admissibility; DNA Evidence (2010) No.IX.
In a prosecution for rape, the defense relied
on Deoxyribonucleic Acid (DNA) evidence
showing that the semen found in the private
part of the victim was not identical with that
of the accused’s. As private prosecutor, how
will you dispute the veracity and accuracy of
the results of the DNA evidence? (3%)
SUGGESTED ANSWER: As a private
prosecutor, I shall try to discredit the
results of the DNA test by questioning and
possibly impugning the integrity of the
DNA profile by showing a flaw/error in
obtaining the biological sample obtained;
the testing methodology employed; the
scientific standard observed; the forensic
DNA laboratory which conducted the test;
and the qualification, training and
experience of the forensic laboratory
personnel who conducted the DNA testing.
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Admissibility; DNA Evidence (2009)
No.I.[a] The Vallejo standard refers to
jurisprudential norms considered by the
court in assessing the probative value of DNA
evidence. SUGGESTED ANSWER: TRUE. In
People vs. Vallejo, 382 SCRA 192 (2002), it
was held that in assessing the probative
value of DNA evidence, courts should
consider among other things, the
following data: how the samples were
collected, how they were handled, the
possibility of contamination of the
samples, whether the proper standards
and procedures were followed in
conducting the tests and the qualification
of the analyst who conducted tests.
Sec. 8. Reliability of DNA Testing
Methodology. – In evaluating whether the DNA
testing methodology is reliable, the court shall
consider the following:
a. The falsifiability of the principles or
methods used, that is, whether the theory
or technique can be and has been tested;
b. The subjection to peer review and
publication of the principles or methods;
c. The general acceptance of the principles
or methods by the relevant scientific
community;
d. The existence and maintenance of
standards and controls to ensure the
correctness of data generated;
e. The existence of an appropriate reference
population database; and
f. The general degree of confidence
attributed to mathematical calculations
used in comparing DNA profiles and the
significance and limitation of statistical
calculations used in comparing DNA
profiles.
Sec. 9. of DNA Testing Results. – In evaluating
the results of DNA testing, the court shall consider
the following:
a. The evaluation of the weight of matching
DNA evidence or the relevance of
mismatching DNA evidence;
b. The results of the DNA testing in the light
of the totality of the other evidence
presented in the case; and that
c. DNA results that exclude the putative
parent from paternity shall be conclusive
proof of non-paternity. If the value of the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Probability of Paternity is less than 99.9%,
the results of the DNA testing shall be
considered as corroborative evidence. If
the value of the Probability of Paternity is
99.9% or higher there shall be a
disputable presumption of paternity.
Sec. 10. Post-conviction DNA Testing –
Remedy if the Results Are Favorable to the
Convict. – The convict or the prosecution may file
a petition for a writ of habeas corpus in the court
of origin if the results of the post-conviction DNA
testing are favorable to the convict. In the case the
court, after due hearing finds the petition to be
meritorious, it shall reverse or modify the judgment
of conviction and order the release of the convict,
unless continued detention is justified for a lawful
cause.
A similar petition may be filed either in the Court of
Appeals or the Supreme Court, or with any
member of said courts, which may conduct a
hearing thereon or remand the petition to the court
of origin and issue the appropriate orders.
Bar Exam Question 2012
86. C, a convict, was able to get favorable
results of a post-conviction DNA testing
showing that C could not have committed the
crime. To gain freedom, C may:
a. file a petition for Writ of Habeas Corpus
before the court of origin.
b. apply for full pardon.
c. file a Motion to annul judgment of
conviction on the ground of fraud.
d. file a Motion for new trial under Rule 121.
SUGGESTED ANSWER: (a), The convict or
the prosecution may file a petition for a
writ of habeas corpus in the court of origin
if the results of the post-conviction DNA
testing are favourable to the convict. In
case the court, after due hearing, finds the
petition to be meritorious, it shall reverse
or modify the judgment of conviction and
order the release of the convict, unless
continued detention is justified for a
lawful cause. A similar petition may be
filed either in the Court of Appeals or the
Supreme Court, or with any member of
said courts, which may conduct a hearing
thereon or remand the petition to the
court of origin and issue the appropriate
orders. (Sec.10, Rule on DNA Evidence).
Sec. 11. Confidentiality. – DNA profiles and all
results or other information obtained from DNA
testing shall be confidential. Except upon order of
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the court, a DNA profile and all results or other
information obtained from DNA testing shall only
be released to any of the following, under such
terms and conditions as may be set forth by the
court:
a. Person from whom the sample was taken;
b. Person from whom the sample was taken;
c. Lawyers of private complainants in a
criminal action;
d. Duly authorized law enforcement
agencies; and
e. Other persons as determined by the court.
Whoever discloses, utilizes or publishes in any
form any information concerning a DNA profile
without the proper court order shall be liable for
indirect contempt of the court wherein such DNA
evidence was offered, presented or sought to be
offered and presented.
Where the person from whom the biological
sample was taken files a written verified request to
the court that allowed the DNA testing for the
disclosure of the DNA profile of the person and all
results or other information obtained from the DNA
testing, the same may be disclosed to the persons
named in the written verified request.
Sec. 12. Preservation of DNA Evidence. The
trial court shall preserve the DNA evidence in its
totality, including all biological samples, DNA
profiles and results or other genetic information
obtained from DNA testing. For this purpose, the
court may order the appropriate government
agency to preserve the DNA evidence as follows:
a. In criminal cases:
i. for not less than the
period of time that any
person is under trial for an
offense; or
ii. in case the accused is
serving sentence, until
such time as the accused
has served his sentence;
a. In all other cases, until such time as the
decision in the case where the DNA
evidence was introduced has become
final and executory.
The court may allow the physical destruction of a
biological sample before the expiration of the
periods set forth above, provided that:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
a. A court order to that effect has been
secured; or
b. The person from whom the DNA sample
was obtained has consented in writing to
the disposal of the DNA evidence.
Sec. 13. Applicability to Pending Cases. Except
as provided in Section 6 and 10 hereof, this Rule
shall apply to cases pending at the time of its
effectivity.
Sec. 14. Effectivity. This Rule shall take effect on
October 15, 2007, following publication in a
newspaper of general
B. DOCUMENTARY EVIDENCE
Section 2. Documentary evidence. —
Documents as evidence consist of writing or any
material containing letters, words, numbers,
figures, symbols or other modes of written
expression offered as proof of their contents. (n)
NOTE: A document may constitute object
evidence depending upon the purpose for which
the document is tendered. If it is produced without
regard to the message which it contains, it is
treated as real, not documentary evidence. In
such case, the best evidence rule does not apply.
1. Best Evidence
Section 3. Original document must be
produced; exceptions. — When the subject of
inquiry is the contents of a document, no evidence
shall be admissible other than the original
document itself, except in the following cases:
(a) When the original has been lost or
destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
(b) When the original is in the custody or
under the control of the party against
whom the evidence is offered, and the
latter fails to produce it after reasonable
notice;
NOTE: Even in criminal cases,
there must still be a request for
the production of the document
even if it be in the possession of
the accused and if he refuses to
produce it invoking his right
against self-incrimination, then
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secondary evidence may be terms of a document and requires the document’s

introduced (P. vs. Bomping, 48 production without having aim to establish its
Phil. 887). terms.

(c) When the original consists of It refers merely to the proof of what are the
numerous accounts or other documents contents of the document and not as proof of the
which cannot be examined in court truth of the facts stated therein.
without great loss of time and the fact
sought to be established from them is only It does not apply where there is no bona fide
the general result of the whole; and dispute on the contents of the documents and no
useful purpose would be served by its production.
Secondary evidence may consist
Note: Best evidence does not mean superior
of summary of the voluminous
evidence.
documents or records (Herrera).
Compañia Maritima v. Allied Free
“Laying the Basis”
Workers Union, 77 SCRA 24
The act of laying the foundation before accepting
(1977) – voluminous character of
or introducing the secondary evidence.
accounts must be established,
and it must be made available to
NOTE: In addition to the Best Evidence Rule, if
the adverse party before parole;
the document contains a material alteration, the
audit made by or testimony of
private auditor is inadmissible as offeror must account for the alteration (sec. 31,
proof of original record or books Rule 132) and if a portion of the document is
introduced by a party, the adverse party can
of accounts; auditor’s opinion not
inquire on, or introduce the remaining portions of
admissible; best evidence on cost
of equipment are sales invoices the document [Theory of Indivisibility of the
not testimony of an auditor. Evidence—sec. 17, Rule 132].

PURPOSES:
(d) When the original is a public record in
the custody of a public officer or is 1. To Prevent Fraud
recorded in a public office. (yy2a)
If a party is in possession of such
Secondary evidence may consist evidence and withholds it, and
of a certified true copy of the seeks to substitute inferior
document and official publication evidence in its place, the
thereof (Herrera). presumption naturally arises that
the better evidence is withheld for
BEST EVIDENCE RULE [aka Original Evidence fraudulent purposes which its
Rule](sec. 3) production would expose and
The specific evidentiary requirement applicable to defeat.
documentary evidence.
2. To Exclude Uncertainties In the Contents
BER Requisites: of the Document.
1) There must be a document;
2) The subject of the inquiry is the contents The best evidence rule accepts
of the document. the document itself as the best
evidence of its contents, because
No evidence shall be received which is merely it is certain; and rejects a copy
substitutionary in its nature so long as the original thereof, because of the
evidence can be had. It is mandatory that the uncertainty of its contents caused
original copy be presented in court. In other by the hazards of faulty
words, secondary evidence of its contents cannot duplication, or an oral description
be admitted until the non-production of the original thereof, because of the
has been satisfactorily accounted for. uncertainty caused by frailties of
human recollection.
The original evidence must be produced whenever
its contents are the subject of the inquiry. It In a criminal case of falsification
excludes testimony designed to establish the of a document, it is indispensable

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 496

________________________________________________________________________________________________
that the judge have before him
the document alleged to have
been falsified in order that he may
find whether or not the crime was
actually committed.
The original is in the hands of the
defendant and he fails to produce
them in the court upon demand of
the prosecutor, certified copies of
said documents may be
presented by the prosecution and
admissible in evidence, on the
principle that secondary evidence
are admissible whenever the
primary evidence is not
obtainable.
People v. Tandoy, 192 SCRA 28 (1990) The best
evidence rule does not apply to the marked money
in a buy bust operation because the inquiry is not
on the contents of the marked bill, but merely its
existence.
Section 4. Original of document. —
(a) The original of the document is 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.
(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 likewise
equally regarded as originals. (3a)
NOTE: A copy of the original document may not
be used without accounting for the original copies.
It must appear that all copies have been lost or
destroyed or cannot be produced before
secondary evidence can be given of by anyone.
The Rule of Duplicate Original
When the document is in two or more copies
executed at or about the same time, with identical
contents, all such copies are considered originals.
It may be introduced in evidence without
accounting for the non-production of other copies.
Best Evidence Rule (1997)
When A loaned a sum of money to B. A typed a single
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
copy of the promissory note, which they both signed
A made two photo (xeroxed) copies of the promissory
note, giving one copy to B and retaining the other
copy. A entrusted the typewritten copy to his counsel
for safekeeping. The copy with A's counsel was
destroyed when the law office was burned. a) In an
action to collect on the promissory note, which is
deemed to be the "original" copy for the purpose of
the "Best Evidence Rule"? b) Can the photocopies in
the hands of the parties be considered "duplicate
original copies"? c) As counsel for A, how will you
prove the loan given to A and B?
SUGGESTED ANSWER:
(a) The copy that was signed and lost is the only
"original" copy for purposes of the Best Evidence
Rule. (Sec. 4 [b] of Rule 130).
(b) No, They are not duplicate original copies because
there are photocopies which were not signed (Mahilum
v. Court of Appeals, 17 SCRA 482 ), They constitute
secondary evidence. (Sec. 5 of Rule 130).
(c) The loan given by A to B may be proved by
secondary evidence through the xeroxed copies of the
promissory note. The rules provide that when the
original document is lost or destroyed, or cannot be
produced in court, the offerer, upon proof of its
execution or existence and the cause of its
unavailability without bad faith on his part, may prove
its contents by a copy, or by a recital of its contents in
some authentic document, or by the testimony of
witnesses in the order stated. (Sec. 5 of Rule 130).
2. Secondary Evidence
Section 5. When original document is
unavailable. — When the original document has
been lost or destroyed, or cannot be produced in
court, the offeror, upon proof of its execution or
existence and the cause of its unavailability
without bad faith on his part, may prove its
contents by a copy, or by a recital of its contents in
some authentic document, or by the testimony of
witnesses in the order stated. (4a)
NOTE: The order does not apply where the law
specifically provides for the class or quantum of
secondary evidence to establish the contents of
the document (DEFINITE EVIDENTIARY RULE).
E.g. proof required in case the holographic will is
lost.
The EXECUTION of a document may be proven
by:
1. Any person who executed the document;
2. Any person before whom the execution
was acknowledged;
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3. Any person who was present and saw it
executed and delivered;
4. Any person who after its execution and
delivery, saw it and recognized the
signatures;
5. Any person to whom the parties to the
instrument previously confessed the
execution thereof.
The LOSS of a document may be proven by:
1. Any person who knew the fact of loss;
2. Anyone who has made a sufficient
examination in the place/s where the
document or papers of similar character
are usually kept by the persons in whose
custody the documents lost was and has
been unable to find it;
3. Anyone who has made investigation
which is sufficient to satisfy the court that
the instrument was indeed lost.
The CONTENTS of a document may be proven
by:
1. Any person who signed the document;
2. Any person who read it;
3. Any person who heard it read knowing it,
or being proved from other sources, the
document so read was the one in
question;
4. Any person who was present when the
contents of the document were talked
over between the parties thereto to such
an extent as to give him reasonably full
information as to its contents;
5. Any person to whom the parties to the
instrument have confessed or stated the
contents thereof.
To prove loss, get affidavits of loss from all the
people who possibly has a copy of the original,
e.g. Notarized Deed of Sale
a) Vendor
b) vendee
c) notary public
d) clerk of the court which gave the notary
public commission
e) Bureau of Archives
Requisites for admission of secondary
evidence, according to grounds
(a) the original has been lost or destroyed, or
cannot be produced in court
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
a) prove execution or existence
b) prove cause of unavailability without
bad faith of the offeror
c) proof of contents in the following order
1) copy
2) recital of its contents in
3) some authentic document, or
4) testimony of witnesses
(b) the original is in the custody or under the
control of the adverse party
a) adverse party had reasonable notice
to produce the original (Subpoena
duces tecum)
b) proof of the original’s existence
c) adverse party fails to produce the
original
d) proof of contents in the following order
1) copy
2) recital of its contents in
3) some authentic document, or
4) testimony of witnesses
(c) the original consists of numerous accounts or
other documents which cannot be examined
in court without great loss of time and the fact
sought to be established from them is only the
general result of the whole; and
(d) the original is a public record in the custody of
a public officer or is recorded in a public office
– contents may be proved by a certified copy
issued by the public officer in custody thereof
CASES:
de Vera v Aguilar, 218 SCRA 602 (1983) In case
of loss of the original of a document, the order of
proof is as follows; 1) existence of the original, 2)
its due execution, 3) loss, and 4) its contents.
Failure to prove loss of all the originals without
fault of the offeror renders secondary evidence
inadmissible.
Vda. de Corpus v. Brabangco, (C.A.) 59 O.G.
8262 (1963)– when the existence of a document is
proven, the court should allow the lost document
to be proven by parole; testimony of a witness
need not be verbatim.
Remedy; Lost Documents; Secondary Evidence (1992)
498
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Ajax Power Corporation, a utility company, sued in the
RTC to enforce a supposed right of way over a
property owned by Simplicio. At the ensuing trial, Ajax
presented its retired field auditor who testified that he
know for a fact that a certain sum of money was
periodically paid to Simplicio for some time as
consideration for a right of way pursuant to a written
contract. The original contract was not presented.
Instead, a purported copy, identified by the retired
field auditor as such, was formally offered as part of
his testimony. Rejected by the trial court, it was finally
made the subject of an offer of proof by Ajax. Can
Ajax validly claim that it had sufficiently met its burden
of proving the existence of the contract establishing its
right of way? Explain,
SUGGESTED ANSWER:
No. Ajax had not sufficiently met the burden of
proving the existence of the written contract because.
It had not laid the basis for the admission of a
purported copy thereof as secondary evidence. Ajax
should have first proven the execution of the original
document and its loss or destruction. (Sec. 5 of Rule 130)
Section 6. When original document is in
adverse party's custody or control. — If the
document is in the custody or under the control of
adverse party, he must have reasonable notice to
produce it. If after such notice and after
satisfactory proof of its existence, he fails to
produce the document, secondary evidence may
be presented as in the case of its loss. (5a)
NOTE: It is not necessary to show that the
original is in the actual possession of the
adverse party. It is enough that the
circumstances are such as to indicate that the
writing is in his possession.
If there is failure to produce the original despite
reasonable notice, the adverse party is
afterwards forbidden to produce the document in
order to contradict the other party’s copy or
evidence of its contents or it may also be
regarded as judicial admission in advance of the
correctness of the first party’s evidence. It also
gives rise to the presumption of suppression of
evidence
Section 7. Evidence admissible when original
document is a public record. — When the
original of document is in the custody of public
officer or is recorded in a public office, its contents
may be proved by a certified copy issued by the
public officer in custody thereof. (2a)
NOTE: Connect this to Rule 132, sections 23 to
27.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Municipality of Victorias v. CA, 149 SCRA 32
(1987)
Facts: In action to recover land, a party failed to
produce the deed of sale, but presented only a
Certificate from the Archives Division of the
Bureau of Records Management of an entry in a
Notarial register.
Held: Certificate is admissible. Where the
original has been lost or destroyed, the offeror
may prove its contents by a recital of its
contents in some authentic document or by
testimony of witnesses. The Certificate is one
such authentic document.
Section 8. Party who calls for document not
bound to offer it. — A party who calls for the
production of a document and inspects the same
is not obliged to offer it as evidence. (6a)
Republic of the Philippines
SUPREME COURT
Manila
A.M. No. 01-7-01-SC July 17, 2001
RULES ON ELECTRONIC EVIDENCE
Acting on the Memorandum dated 18 June 2001
of the Committee on the Revision of the Rules of
Court to Draft the Rules on E-Commerce Law
[R.A. No. 8792] submitting the Rules on Electronic
Evidence for this Court's consideration and
approval, the Court Resolved to APPROVED the
same.
The Rules on Electronic Evidence shall apply to
cases pending after their effectivity. These Rules
shall take effect on the first day of August 2001
following their publication before the 20th of July in
two newspapers of general circulation in the
Philippines
17th July 2001.
RULES ON ELECTRONIC EVIDENCE
Rule 1
COVERAGE
Section 1. Scope. – Unless otherwise provided
herein, these Rules shall apply whenever an
electronic document or electronic data message,
as defined in Rule 2 hereof, is offered or used in
evidence.
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Section 2. Cases covered. – These Rules shall
apply to all civil actions and proceedings, as well
as quasi-judicial and administrative cases.
Note: Criminal actions are not included based on
the rules. However recent decision of the
Supreme Court has expanded the Coverage of the
Rules on Electronic Evidence – under A.M. No.
01-7-01-SC and the rules shall apply to all criminal
and civil actions and proceedings, as well as
quasi-judicial and administrative cases. (People
of the Philippines v. Enojas, GR. No. 204894,
March 10, 2014)
Section 3. Application of other rules on evidence.
– In all matters not specifically covered by these
Rules, the Rules of Court and pertinent provisions
of statutes containing rules on evidence shall
apply.
Rule 2
DEFINITION OF TERMS AND CONSTRUCTION
Section 1. Definition of terms. – For purposes of
these Rules, the following terms are defined, as
follows:
(a) "Asymmetric or public cryptosystem"
means a system capable of generating a
secure key pair, consisting of a private
key for creating a digital signature, and a
public key for verifying the digital
signature.
(b) "Business records" include records of
any business, institution, association,
profession, occupation, and calling of
every kind, whether or not conducted for
profit, or for legitimate or illegitimate
purposes.
(c) "Certificate" means an electronic
document issued to support a digital
signature which purports to confirm the
identity or other significant characteristics
of the person who holds a particular key
pair.
(d) "Computer" refers to any single or
interconnected device or apparatus,
which, by electronic, electro-mechanical
or magnetic impulse, or by other means
with the same function, can receive,
record, transmit, store, process, correlate,
analyze, project, retrieve and/or produce
information, data, text, graphics, figures,
voice, video, symbols or other modes of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
expression or perform any one or more of
these functions.
(e) "Digital signature" refers to an
electronic signature consisting of a
transformation of an electronic document
or an electronic data message using an
asymmetric or public cryptosystem such
that a person having the initial
untransformed electronic document and
the signer's public key can accurately
determine:
i. whether the transformation was
created using the private key that
corresponds to the signer's public
key; and
ii. whether the initial electronic
document had been altered after
the transformation was made.
(f) "Digitally signed" refers to an electronic
document or electronic data message
bearing a digital signature verified by the
public key listed in a certificate.
(g) "Electronic data message" refers to
information generated, sent, received or
stored by electronic, optical or similar
means.
(h) "Electronic document" refers to
information or the representation of
information, data, figures, symbols or
other modes of written expression,
described or however represented, by
which a right is established or an
obligation extinguished, or by which a fact
may be proved and affirmed, which is
received, recorded, transmitted, stored,
processed, retrieved or produced
electronically. It includes digitally signed
documents and any print-out or output,
readable by sight or other means, which
accurately reflects the electronic data
message or electronic document. For
purposes of these Rules, the term
"electronic document" may be used
interchangeably with "electronic data
message".
(i) "Electronic key" refers to a secret code
which secures and defends sensitive
information that crosses over public
channels into a form decipherable only
with a matching electronic key.
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(j) "Electronic signature" refers to any
distinctive mark, characteristic and/or
sound in electronic form, representing the
identity of a person and attached to or
logically associated with the electronic
data message or electronic document or
any methodology or procedure employed
or adopted by a person and executed or
adopted by such person with the intention
of authenticating, signing or approving an
electronic data message or electronic
document. For purposes of these Rules,
an electronic signature includes digital
signatures.
(k) "Ephemeral electronic
communication" refers to telephone
conversations, text messages, chatroom
sessions, streaming audio, streaming
video, and other electronic forms of
communication the evidence of which is
not recorded or retained.
(l) "Information and communication
system" refers to a system for generating,
sending, receiving, storing or otherwise
processing electronic data messages or
electronic documents and includes the
computer system or other similar devices
by or in which data are recorded or stored
and any procedure related to the
recording or storage of electronic data
messages or electronic documents.
(m) "Key pair" in an asymmetric
cryptosystem refers to the private key and
its mathematically related public key such
that the latter can verify the digital
signature that the former creates.
(n) "Private key" refers to the key of a key
pair used to create a digital signature.
(o) "Public key" refers to the key of a key
pair used to verify a digital signature.
Section 2. Construction. – These Rules shall be
liberally construed to assist the parties in obtaining
a just, expeditious, and inexpensive determination
of cases.
The interpretation of these Rules shall also take
into consideration the international origin of
Republic Act No. 8792, otherwise known as the
Electronic Commerce Act.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Rule 3
ELECTRONIC DOCUMENTS
Section 1. Electronic documents as functional
equivalent of paper-based documents. –
Whenever a rule of evidence refers to the term
writing, document, record, instrument,
memorandum or any other form of writing, such
term shall be deemed to include an electronic
document as defined in these Rules.
Admissibility; Electronic Evidence (2003)
a) State the rule on the admissibility of an electronic
evidence. b) When is an electronic evidence regarded
as being the equivalent of an original document under
the Best Evidence Rule? 4%
SUGGESTED ANSWER:
(a) Whenever a rule of evidence refers to the term
writing, document, record, instrument, memorandum
or any other form of writing, such term shall be
deemed to include an electronic document as defined
in these Rules.
(Sec. 1 of Rule 3, Rules of Electronic Evidence effective August 1, 2001).
An electronic document is admissible in evidence if it
complies with the rules on admissibility prescribed by
the Rules of Court and related laws and is
authenticated in the manner prescribed by these Rules.
(Sec. 2 of Rule 3, Id.). The authenticity of any private
electronic document must be proved by evidence that
it had been digitally signed and other appropriate
security measures have been applied. (Sec. 2 of Rule 5, Id.).
(b) An electronic document shall be regarded as the
equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable by
sight or other means, shown to reflect the data
accurately. (Sec. 1 of Rule 4)
Actions; Hold Departure Order (2010) No.
XVIII. While window-shopping at the mall on
August 4, 2008, Dante lost his organizer
including his credit card and billing
statement. Two days later, upon reporting the
matter to the credit card company, he
learned that a one-way airplane ticket was
purchased online using his credit card for a
flight to Milan in mid- August 2008. Upon
extensive inquiry with the airline company,
Dante discovered that the plane ticket was
under the name of one Dina Meril. Dante
approaches you for legal advice.
(a) What is the proper procedure to prevent
Dina from leaving the Philippines? (2%)
SUGGESTED ANSWER: I would advise:
(1) The filing of an appropriate criminal
action cognizable by the RTC against Dina
and the filing in said criminal action a
Motion for the issuance of a Hold
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Departure Order; (2) thereafter, a written
request with the Commissioner of the
Bureau of Immigration for a Watch List
Order pending the issuance of the Hold
Departure Order should be filed; (3) then,
the airline company should be requested
to cancel the ticket issued to Dina.
(b) Suppose an Information is filed against
Dina on August 12, 2008 and she is
immediately arrested. What pieces of
electronic evidence will Dante have to secure
in order to prove the fraudulent online
transaction? (2%) SUGGESTED ANSWER:
He will have to present (a) his report to
the bank that he lost his credit card (b)
that the ticket was purchased after the
report of the lost and (c) the purchase of
one-way ticket. Dante should bring an
original (or an equivalent copy) printout
of: 1) the online ticket purchase using his
credit card; 2) the phone call log to show
that he already alerted the credit card
company of his loss; and 3) his credit card
billing statement bearing the online ticket
transaction.
Section 2. Admissibility. – An electronic document
is admissible in evidence if it complies with the
rules on admissibility prescribed by the Rules of
Court and related laws and is authenticated in the
manner prescribed by these Rules.
Section 3. Privileged communication. – The
confidential character of a privileged
communication is not lost solely on the ground
that it is in the form of an electronic document.
Rule 4
BEST EVIDENCE RULE
Section 1. Original of an electronic document.
– An electronic document shall be regarded as the
equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable
by sight or other means, shown to reflect the data
accurately.
Note: A facsimile transmission is not considered
as an electronic evidence under the Electronic
Commerce Act (MCC Industrial vs. Sangyong
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Corp., cited in Torres vs. Pagcor, GR No. 193531,
Dec. 14, 2011).
Best Evidence Rule; Electronic Evidence
(2009)
No.XI. [d] An electronic evidence is the
equivalent of an original document under the
Best Evidence Rule if it is a printout or
readable by sight or other means, shown to
reflect the data accurately. SUGGESTED
ANSWER: TRUE. This statement is
embodied in Sec. 1, Rule 4 of A.m. No. 01-
7-01-SC, re: Rules on Electronic Evidence.
Section 2. Copies as equivalent of the
originals. – When a document is in two or more
copies executed at or about the same time with
identical contents, or is a counterpart produced by
the same impression as the original, or from the
same matrix, or by mechanical or electronic re-
recording, or by chemical reproduction, or by other
equivalent techniques which accurately
reproduces the original, such copies or duplicates
shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or
duplicates shall not be admissible to the same
extent as the original if:
(a) a genuine question is raised as to the
authenticity of the original; or
(b) in the circumstances it would be unjust
or inequitable to admit the copy in lieu of
the original.
Rule 5
AUTHENTICATION OF ELECTRONIC
DOCUMENTS
Section 1. Burden of proving authenticity. –
The person seeking to introduce an electronic
document in any legal proceeding has the burden
of proving its authenticity in the manner provided
in this Rule.
Section 2. Manner of authentication. – Before
any private electronic document offered as
authentic is received in evidence, its authenticity
must be proved by any of the following means:
(a) by evidence that it had been digitally
signed by the person purported to have
signed the same;
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(b) by evidence that other appropriate
security procedures or devices as may be
authorized by the Supreme Court or by
law for authentication of electronic
documents were applied to the document;
or
(c) by other evidence showing its integrity
and reliability to the satisfaction of the
judge.
Bar Exam Question 2012
47. A private electronic document's
authenticity may be received in evidence
when it is proved by:
a. evidence that it was electronically
notarized.
b. evidence that it was digitally signed by
the person who purportedly signed the
same.
c. evidence that it contains electronic data
messages.
d. evidence that a method or process was
utilized to verify the same.
SUGGESTED ANSWER:
(b), Before any private electronic
document is offered as authentic is
received in evidence, its authenticity
must be proved by evidence that it had
been digitally signed by the person
purported to have signed the same. (Rule
5, Sec. 2(a), Rules on Evidence).
Section 3. Proof of electronically notarized
document. – A document electronically notarized
in accordance with the rules promulgated by the
Supreme Court shall be considered as a public
document and proved as a notarial document
under the Rules of Court.
Rule 6
ELECTRONIC SIGNATURES
Section 1. Electronic signature. – An electronic
signature or a digital signature authenticated in the
manner prescribed hereunder is admissible in
evidence as the functional equivalent of the
signature of a person on a written document.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 2. Authentication of electronic signatures.
– An electronic signature may be authenticated in
any of the following manner:
(a) By evidence that a method or process
was utilized to establish a digital signature
and verify the same;
(b) By any other means provided by law;
or
(c) By any other means satisfactory to the
judge as establishing the genuineness of
the electronic signature.
Section 3. Disputable presumptions relating to
electronic signatures. – Upon the authentication of
an electronic signature, it shall be presumed that:
(a) The electronic signature is that of the
person to whom it correlates;
(b) The electronic signature was affixed by
that person with the intention of
authenticating or approving the electronic
document to which it is related or to
indicate such person's consent to the
transaction embodied therein; and
(c) The methods or processes utilized to
affix or verify the electronic signature
operated without error or fault.
Section 4. Disputable presumptions relating to
digital signatures. – Upon the authentication of a
digital signature, it shall be presumed, in addition
to those mentioned in the immediately preceding
section, that:
(a) The information contained in a
certificate is correct;
(b) The digital signature was created
during the operational period of a
certificate;
(c) No cause exists to render a certificate
invalid or revocable;
(d) The message associated with a digital
signature has not been altered from the
time it was signed; and,
(e) A certificate had been issued by the
certification authority indicated therein.
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Rule 7
EVIDENTIARY WEIGHT OF ELECTRONIC
DOCUMENTS
Section 1. Factors for assessing evidentiary
weight. – In assessing the evidentiary weight of an
electronic document, the following factors may be
considered:
(a) The reliability of the manner or method
in which it was generated, stored or
communicated, including but not limited to
input and output procedures, controls,
tests and checks for accuracy and
reliability of the electronic data message
or document, in the light of all the
circumstances as well as any relevant
agreement;
(b) The reliability of the manner in which
its originator was identified;
(c) The integrity of the information and
communication system in which it is
recorded or stored, including but not
limited to the hardware and computer
programs or software used as well as
programming errors;
(d) The familiarity of the witness or the
person who made the entry with the
communication and information system;
(e) The nature and quality of the
information which went into the
communication and information system
upon which the electronic data message
or electronic document was based; or
(f) Other factors which the court may
consider as affecting the accuracy or
integrity of the electronic document or
electronic data message.
Section 2. Integrity of an information and
communication system. – In any dispute involving
the integrity of the information and communication
system in which an electronic document or
electronic data message is recorded or stored, the
court may consider, among others, the following
factors:
(a) Whether the information and
communication system or other similar
device was operated in a manner that did
not affect the integrity of the electronic
document, and there are no other
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
reasonable grounds to doubt the integrity
of the information and communication
system;
(b) Whether the electronic document was
recorded or stored by a party to the
proceedings with interest adverse to that
of the party using it; or
(c) Whether the electronic document was
recorded or stored in the usual and
ordinary course of business by a person
who is not a party to the proceedings and
who did not act under the control of the
party using it.
Rule 8
BUSINESS RECORDS AS EXCEPTION TO THE
HEARSAY RULE
Section 1. Inapplicability of the hearsay rule. –
A memorandum, report, record or data compilation
of acts, events, conditions, opinions, or diagnoses,
made by electronic, optical or other similar means
at or near the time of or from transmission or
supply of information by a person with knowledge
thereof, and kept in the regular course or conduct
of a business activity, and such was the regular
practice to make the memorandum, report, record,
or data compilation by electronic, optical or similar
means, all of which are shown by the testimony of
the custodian or other qualified witnesses, is
excepted from the rule on hearsay evidence.
Section 2. Overcoming the presumption. – The
presumption provided for in Section 1 of this Rule
may be overcome by evidence of the
untrustworthiness of the source of information or
the method or circumstances of the preparation,
transmission or storage thereof.
Rule 9
METHOD OF PROOF
Section 1. Affidavit evidence. – All matters
relating to the admissibility and evidentiary weight
of an electronic document may be established by
an affidavit stating facts of direct personal
knowledge of the affiant or based on authentic
records. The affidavit must affirmatively show the
competence of the affiant to testify on the matters
contained therein.
Section 2. Cross-examination of deponent. – The
affiant shall be made to affirm the contents of the
affidavit in open court and may be cross-examined
as a matter of right by the adverse party.
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Rule 10
EXAMINATION OF WITNESSES
Section 1. Electronic testimony. – After summarily
hearing the parties pursuant to Rule 9 of these
Rules, the court may authorize the presentation of
testimonial evidence by electronic means. Before
so authorizing, the court shall determine the
necessity for such presentation and prescribe
terms and conditions as may be necessary under
the circumstances, including the protection of the
rights of the parties and witnesses concerned.
Section 2. Transcript of electronic testimony. –
When examination of a witness is done
electronically, the entire proceedings, including the
questions and answers, shall be transcribed by a
stenographer, stenotypist or other recorder
authorized for the purpose, who shall certify as
correct the transcript done by him. The transcript
should reflect the fact that the proceedings, either
in whole or in part, had been electronically
recorded.
Section 3. Storage of electronic evidence. – The
electronic evidence and recording thereof as well
as the stenographic notes shall form part of the
record of the case. Such transcript and recording
shall be deemed prima facie evidence of such
proceedings.
Rule 11
AUDIO, PHOTOGRAPHIC, VIDEO, AND
EPHEMERAL EVIDENCE
Section 1. Audio, video and similar evidence. –
Audio, photographic and video evidence of events,
acts or transactions shall be admissible provided it
shall be shown, presented or displayed to the
court and shall be identified, explained or
authenticated by the person who made the
recording or by some other person competent to
testify on the accuracy thereof.
Section 2. Ephemeral electronic
communications. – Ephemeral electronic
communications shall be proven by the testimony
of a person who was a party to the same or has
personal knowledge thereof. In the absence or
unavailability of such witnesses, other competent
evidence may be admitted.
A recording of the telephone conversation or
ephemeral electronic communication shall be
covered by the immediately preceding section.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
If the foregoing communications are recorded or
embodied in an electronic document, then the
provisions of Rule 5 shall apply.
Bar Exam Question 2012
46. Under the Rules of Electronic Evidence,
"ephemeral electronic conversation" refers to
the following, except:
a. text messages;
b. telephone conversations;
c. faxed document;
d. online chatroom sessions;
SUGGESTED ANSWER:
(c), An “ephemeral electronic
communication” refers to telephone
conversations, text messages, chatroom
sessions, streaming audio, streaming
video, and other electronic forms of
communications, the evidence of which is
not recorded or retained (Sec.1(k), Rule 2).
A facsimile transmission is not considered
as an electronic evidence under the
Electronic Commerce Act. In MCC
Industrial Sales Corporation vs. Ssangyong
Corporation, the Supreme Court
concluded that the terms “electronic data
message” and “electronic document,: as
defined under the Electronic Commerce
Act of 2000, do not include facsimile
transmission. Accordingly, a facsimile
transmission cannot be considered as
electronic evidence. It is not the
functional equivalent of an original under
the Best Evidence Rule and is not
admissible as electronic evidence. (Torres
vs. PAGCOR, G.R. No. 193531, December
14, 2011).
Rule 12
EFFECTIVITY
Section 1. Applicability to pending cases. – These
Rules shall apply to cases pending after their
effectivity.
Section 2. Effectivity. – These Rules shall take
effect on the first day of August 2001 following
their publication before the 20th of July 2001 in
two newspapers of general circulation in the
Philippines.
3. Parol Evidence Rule
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Section 9. Evidence of written agreements. —
When the terms of an agreement have been
reduced to writing, it is considered as containing
all the terms agreed upon and there can be,
between the parties and their successors in
interest, no evidence of such terms other than the
contents of the written agreement.
However, a party may present evidence to modify,
explain or add to the terms of written agreement if
he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or
imperfection in the written agreement;
(b) The failure of the written agreement to
express the true intent and agreement of
the parties thereto;
(c) The validity of the written agreement;
or
(d) The existence of other terms agreed to
by the parties or their successors in
interest after the execution of the written
agreement.
The term "agreement" includes wills. (7a)
Parol Evidence Rule (2001)
Pedro filed a complaint against Lucio for the recovery
of a sum of money based on a promissory note
executed by Lucio. In his complaint, Pedro alleged that
although the promissory note says that it is payable
within 120 days, the truth is that the note is payable
immediately after 90 days but that if Pedro is willing,
he may, upon request of Lucio give the latter up to 120
days to pay the note. During the hearing, Pedro
testified that the truth is that the agreement between
him and Lucio is for the latter to pay immediately after
ninety day’s time. Also, since the original note was
with Lucio and the latter would not surrender to Pedro
the original note which Lucio kept in a place about one
day’s trip from where he received the notice to
produce the note and in spite of such notice to
produce the same within six hours from receipt of
such notice, Lucio failed to do so. Pedro presented a
copy of the note which was executed at the same time
as the original and with identical contents. a) Over the
objection of Lucio, will Pedro be allowed to testify as
to the true agreement or contents of the promissory
note? Why? (2%) b) Over the objection of Lucio, can
Pedro present a copy of the promissory note and have
it admitted as valid evidence in his favor? Why? (3%)
SUGGESTED ANSWER:
a) Yes, because Pedro has alleged in his complaint that
the promissory note does not express the true intent
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
and agreement of the parties. This is an exception to
the parol evidence rule. [Sec. 9(b) of Rule 130, Rules of Court]
b) Yes, the copy in the possession of Pedro is a
duplicate original and with identical contents. [Sec. 4(b) of
Rule 130]. Moreover, the failure of Lucio to produce the
original of the note is excusable because he was not
given reasonable notice, as requirement under the
Rules before secondary evidence may be presented.
(Sec. 6 of Rule 130, Rules of Court)
Note: The promissory note is an actionable document and
the original or a copy thereof should have been attached to
the complaint. (Sec. 7 of Rule 9, 1997 Rules of Civil Procedure). In
such a case, the genuineness and due execution of the note,
if not denied under oath, would be deemed admitted.
(Sec. 8 of Rule 9, 1997 Rules of Civil Procedure)
Bar Exam Question 2012
51. The Parole Evidence Rule applies to:
a. subsequent agreements placed on issue.
b. written agreements or contractual
documents.
c. judgment on a compromise agreement.
d. will and testaments.
SUGGESTED ANSWER:
(b), The parol evidence rule, embodied in
Section 9, Rule 130 of the Rules of Court
holds that when the terms of an
agreement have been reduced into writing,
it is considered as containing all the terms
agreed upon and there can be, between
the parties and their successors-in-
interest, no evidence of such terms other
than the contents of the written
agreement. (Leighton Contractors Phils.
Inc., vs. CNP industries, Inc., G.R. No.
160972, March 9, 2010). Evidently, parol
evidence only applies to written
agreements or contractual documents.
ALTERNATIVE ANSWER: (d), Parol
Evidence Rule applies because the term
“Agreement” includes wills. (Rule 130,
Sec. 9(e), Rules of Court).
NOTE: This section is the Parol Evidence Rule.
PURPOSE:
1. To give stability to a written agreement;
2. To remove the temptation and possibility
of perjury;
3. To prevent possible fraud.
REQUISITES FOR THE APPLICABILITY OF
THE RULE:
1. There must be a valid contract;
2. The terms of the agreement must be
reduced to writing;
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3. The dispute is between the parties and
their successors in interest; and
4. There is dispute as to the terms of the
agreement.
When no timely objection is made to the
admission of parol evidence and when the motion
to strike out said evidence came too late and if the
other party against whom such evidence was
presented cross-examined the witness who
testified in respect to the contract, said party will
[not?] be understood to have waived the benefits
of the law. Parol evidence under those facts is
competent and admissible (Abrenica vs. Gonda,
34 Phil. 739).
Art. 1403 and 1405 Civil Code
Art. 1403. The following contracts are
unenforceable, unless they are ratified:
xxx
(2) Those that do not comply with the Statute
of Frauds as set forth in this number. In the
following cases an agreement hereafter made
shall be unenforceable by action, unless the
same, or some note or memorandum, thereof, be
in writing, and subscribed by the party charged,
or by his agent; evidence, therefore, of the
agreement cannot be received without the
writing, or a secondary evidence of its contents:
(a) An agreement that by its terms is not to
be performed within a year from the making
thereof;
(b) A special promise to answer for the debt,
default, or miscarriage of another;
(c) An agreement made in consideration of
marriage, other than a mutual promise to marry;
(d) An agreement for the sale of goods,
chattels or things in action, at a price not less
than five hundred pesos, unless the buyer accept
and receive part of such goods and chattels, or
the evidences, or some of them, of such things in
action or pay at the time some part of the
purchase money; but when a sale is made by
auction and entry is made by the auctioneer in his
sales book, at the time of the sale, of the amount
and kind of property sold, terms of sale, price,
names of the purchasers and person on whose
account the sale is made, it is a sufficient
memorandum;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(e) An agreement of the leasing for a longer
period than one year, or for the sale of real
property or of an interest therein;
(f) A representation as to the credit of a third
person.
Art. 1405. Contracts infringing the Statute of
Frauds, referred to in No. 2 of article 1403, are
ratified by the failure to object to the
presentation of oral evidence to prove the same,
or by the acceptance of benefit under them.
Evidence Aliunde (Extrinsic Evidence)
It is that which is excluded under the Parol
Evidence Rule. It a refer to testimonial, real, or
documentary evidence.
Note: The rule applies only to INTEGRATED
AGREEMENTS,. Thus, unless the written
instrument was intended by both parties as the
final and exclusive memorial of their dealings, the
rule does not apply.
THEORY OF INTEGRATION OF JURAL ACTS
Under this theory, previous acts and
contemporaneous transactions of the parties are
deemed integrated and merged in the written
instrument which they have executed. When the
parties have reduced their agreement to writing, it
is presumed that they have made the writing the
ONLY repository and memorial of the truth,
and whatever is not found in the writing must be
understood to have been waived or abandoned.
Exception: COLLATERAL ORAL AGREEMENT
It is a contract made prior of contemporaneous
with another agreement and if it is oral and not
inconsistent with the written contract, it is
admissible within the exception to the parol
evidence rule.
An agreement is collateral when it meets the
following requirements:
1. It is not a part of the integrated written
agreement in any way;
2. It is not inconsistent with the written
agreement in any way, including both the
express and implied provisions of the
written agreement;
3. It is not closely connected with the
principal transaction as to form a part and
parcel thereof.
NOTE: Parol evidence rule does not apply when
collateral oral agreement refers to separate and
distinct subjects.
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Reason: The parties to a contract cannot be
presumed to have embodied in a single writing all
the agreements which they have on different
subjects.
Cases:
Canuto v. Mariano, 37 Phil. 840 (1918) – parol
may be introduced to prove subsequent
agreement regardless of how soon such
agreement was made.
Yu Tek & Co. v. Gonzales, 29 Phil. 384 (1915) –
Parol evidence inadmissible to incorporate
additional contemporaneous conditions which are
not mentioned at all in the writing, unless there is
fraud or mistake.
Land Settlement & Development Corp. v. Garcia
Plantation, 7 SCRA 750 (1963) – exception to
PER may be put in issue in answer to
counterclaim; when operation of contract made to
depend upon occurrence of an event, which for
that reason is a condition precedent, such may be
established by parol evidence, since if it is proven,
there will be no contract.
Maulini v. Serrano, 28 Phil. 640 (1914) – PER
does not apply where the purpose of parol
evidence is to show that no written contract ever
existed.
PNB v. Seeto, 91 Phil. 756 (1952) – assurances
made by an indorser that the drawer has funds,
which assurances induced bank to cash the
check, are admissible in evidence.
Woodhouse v. Halili, 93 Phil. 526 (1953) –
Inducement by fraud may be proved by parol
because it goes into the validity of the agreement.
Robles v. Lizarraga, 50 Phil. 387 (1927) – parol
may be received regardless of whether the written
agreement contains any reference to the collateral
agreement and whether the action is at law or in
equity even if it deals with related matters.
Lechugas v. CA, 143 SCRA 335 (1986) – PER not
applicable where suit is between one of the parties
to the document and 3rd persons; PER does not
apply and may not be invoked by either party to
the litigation against the other, where at least one
of the parties to the suit is not party or privy to the
written agreement and does not base a claim on
the instrument; both parties to the agreement must
be parties to the suit.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Inciong v. CA, 257 SCRA 578 (1996) – PER does
not specify that the agreement be a public
document; need not be in any particular form or
signed by the parties; fraud must be corroborated.
4. Interpretation Of Documents
The following are pertinent provisions of the NCC:
INTERPRETATION OF CONTRACTS
Art. 1370. If the terms of a contract are clear and
leave no doubt upon the intention of the
contracting parties, the literal meaning of its
stipulations shall control.
If the words appear to be contrary to the evident
intention of the parties, the latter shall prevail
over the former. (1281)
Art. 1371. In order to judge the intention of the
contracting parties, their contemporaneous and
subsequent acts shall be principally considered.
(1282)
Art. 1372. However general the terms of a
contract may be, they shall not be understood to
comprehend things that are distinct and cases
that are different from those upon which the
parties intended to agree. (1283)
Art. 1373. If some stipulation of any contract
should admit of several meanings, it shall be
understood as bearing that import which is most
adequate to render it effectual. (1284)
Art. 1374. The various stipulations of a contract
shall be interpreted together, attributing to the
doubtful ones that sense which may result from
all of them taken jointly. (1285)
Art. 1375. Words which may have different
significations shall be understood in that which is
most in keeping with the nature and object of the
contract. (1286)
Art. 1376. The usage or custom of the place shall
be borne in mind in the interpretation of the
ambiguities of a contract, and shall fill the
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omission of stipulations which are ordinarily
established. (1287)
Art. 1377. The interpretation of obscure words or
stipulations in a contract shall not favor the party
who caused the obscurity. (1288)
Art. 1378. When it is absolutely impossible to
settle doubts by the rules established in the
preceding articles, and the doubts refer to
incidental circumstances of a gratuitous contract,
the least transmission of rights and interests shall
prevail. If the contract is onerous, the doubt shall
be settled in favor of the greatest reciprocity of
interests.
If the doubts are cast upon the principal object of
the contract in such a way that it cannot be
known what may have been the intention or will
of the parties, the contract shall be null and void.
(1289)
Art. 1379. The principles of interpretation stated
in [Rule 123 of] the Rules of Court shall likewise
be observed in the construction of contracts.
Section 10. Interpretation of a writing according
to its legal meaning. — The language of a writing
is to be interpreted according to the legal meaning
it bears in the place of its execution, unless the
parties intended otherwise. (8)
Section 11. Instrument construed so as to give
effect to all provisions. — In the construction of
an instrument, where there are several provisions
or particulars, such a construction is, if possible, to
be adopted as will give effect to all. (9)
Section 12. Interpretation according to
intention; general and particular provisions. —
In the construction of an instrument, the intention
of the parties is to be pursued; and when a
general and a particular provision are inconsistent,
the latter is paramount to the former. So a
particular intent will control a general one that is
inconsistent with it. (10)
Section 13. Interpretation according to
circumstances. — For the proper construction of
an instrument, the circumstances under which it
was made, including the situation of the subject
thereof and of the parties to it, may be shown, so
that the judge may be placed in the position of
those whose language he is to interpret. (11)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 14. Peculiar signification of terms. —
The terms of a writing are presumed to have been
used in their primary and general acceptation, but
evidence is admissible to show that they have a
local, technical, or otherwise peculiar signification,
and were so used and understood in the particular
instance, in which case the agreement must be
construed accordingly. (12)
Section 15. Written words control printed. —
When an instrument consists partly of written
words and partly of a printed form, and the two are
inconsistent, the former controls the latter. (13)
Section 16. Experts and interpreters to be used
in explaining certain writings. — When the
characters in which an instrument is written are
difficult to be deciphered, or the language is not
understood by the court, the evidence of persons
skilled in deciphering the characters, or who
understand the language, is admissible to declare
the characters or the meaning of the language.
(14)
Section 17. Of Two constructions, which
preferred. — When the terms of an agreement
have been intended in a different sense by the
different parties to it, that sense is to prevail
against either party in which he supposed the
other understood it, and when different
constructions of a provision are otherwise equally
proper, that is to be taken which is the most
favorable to the party in whose favor the provision
was made. (15)
Note: Capital Insurance v. Sadang, 21 SCRA
1183 (1967) – doubt resolved against one who
prepared the document
Section 18. Construction in favor of natural
right. — When an instrument is equally
susceptible of two interpretations, one in favor of
natural right and the other against it, the former is
to be adopted. (16)
Section 19. Interpretation according to usage.
— An instrument may be construed according to
usage, in order to determine its true character.
(17)
INTRINSIC OR LATENT AMBIGUITY
It is when the writing on its face appears clear and
unambiguous but there are collateral matters or
circumstances which make the meaning uncertain.
EXTRINSIC OF PATENT AMBIGUITY
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It is when the ambiguity is apparent on the face of
the writing itself and requires something to be
added in order to ascertain the meaning of the
words used.
Parol evidence cannot be used to ratify or
supplement a void contract.
INTERMEDIATE AMBIGUITY
It is where the ambiguity consists in the use of
equivocal words designating the person or subject
matter, parol evidence of collateral or extrinsic
matter may be introduced for the purpose of aiding
the court in arriving at the meaning of the
language used. (this kind of ambiguity result from
the use of words susceptible of two [or more]
interpretation, like dollars, tons, etc).
NOTE: INTRINSIC and INTERMEDIATE
ambiguities are curable by evidence Aliunde or
extraneous evidence. PATENT ambiguity cannot
be cured by evidence Aliunde.
NOTE: Parol evidence rule is not applicable to a
mere receipt, unless that the receipt can qualify as
a valid and enforceable contract.
Hence, a receipt being given for the payment of
rent due on the lease, parol evidence is
admissible to show that the payment as made by
note (Peralta, citing Cruz vs. CA, 192 SCRA 209).
RULE ON CONDITIONAL AGREEMENTS
1. CONDITIONS PRECEDENT--- It may be
established by parol evidence because
there is no varying of the terms of the
written contract by extrinsic agreement for
the reason that there is no contract in
existence, there is nothing to which to
apply the excluding rule.
2. CONDITIONS SUBSEQUENT--- It may
not be established by parol evidence.

PRINCIPLE OF “FALSA DEMONSTRARIO NON PAROL EVIDENCE BEST EVIDENCE

NOCET CUM DE CORPORE CONSTAT” RULE RULE
False description does not injure or vitiate a Presupposes that the Contemplates a
document, provided that the thing or person original is available in situation where the
intended has once been sufficiently described. court original is not available
in court and/or there is
Where there are two description in a dispute as to whether
deed, the one as it were superadded to said writing is the
the other and one description being original
complete and sufficient in itself and the Prohibits the varying of Prohibits the
other which is subordinate and the terms of a written introduction of
superadded is incorrect, the incorrect agreement substitutionary
description or feature of circumstance of evidence in lieu of the
description is rejected as surplasage. original document
regardless of whether
Parol evidence is admissible to prove mistake in or not it varies the
the execution of a written agreement. contents of the original
REASON: It would be unjust and iniquitous to Can be invoked only Can be invoked by any
allow enforcement of a written instrument which when the controversy is party to an action
does not reflect or disclose the real meeting of the between the parties to regardless of whether
minds of the parties. the written agreement, or not such party
their privies or any participated or not in
party directly affected the writing involved
ELEMENTS OF MISTAKE: thereby
1. It should be of fact; With the exception of Applies to all kinds of
2. It should be mutual or common to both wills, applies only to writing
parties to the instrument; and documents which are
3. It should be alleged and proved by clear contractual in nature
and convincing evidence. No issue as to the Issue is contents of a
contents of a writing writing
The ground that the written agreement fails to Parol evidence is Secondary evidence is
express the true intent of the parties can only be offered offered
invoked when the contract is literally ambiguous or
obscure in its terms and that the contractual
intention of the parties cannot be understood from
the mere reading of the instrument.
C. TESTIMONIAL EVIDENCE

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1. Qualification of Witnesses
Section 20. Witnesses; their qualifications. —
Except as provided in the next succeeding
section, all persons who can perceive, and
perceiving, can make their known perception to
others, may be witnesses.
Religious or political belief, interest in the outcome
of the case, or conviction of a crime unless
otherwise provided by law, shall not be ground for
disqualification. (18a)
NOTE: As a GR, every person who takes the
witness stand is presumed to possess the
qualifications of a witness (Presumption of
competency).
Exception: The following shall be prima evidence
the one is of unsound mind:
1. The fact that a person has been recently
found to be of unsound mind by a court of
competent jurisdiction;
2. That one is an inmate of an asylum for the
insane.
REASON: Insanity is presumed to continue as a
state of mind if it has once existed until the
contrary is shown. Thus the burden of proof is on
the party offering him to show his competency.
The rule on conviction
As a general rule, conviction of a crime does not
necessarily disqualify a person to be a witness.
Exceptions:
1. A person convicted of falsification of a
document, perjury or false testimony is
disqualified from being a witness to a will
(art. 821, NCC);
2. A person seeking to become a state
witness must not have been convicted of
an offense involving moral turpitude (Rule
119, sec. 17 [e]).
Bar Exam Question 2011
(39) Considering the qualifications required of
a would-be witness, who among the following
is INCOMPETENT to testify? (A) A person
under the influence of drugs when the event
he is asked to testify on took place.
(B) A person convicted of perjury who will
testify as an attesting witness to a will.
(C) A deaf and dumb. (D) A mental retardate.
THE FOLLOWING CANNOT BE WITNESSES:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Those persons who, under the law, labor under:
A. ABSOLUTE DISQUALIFICATION
1. Disqualification by reason of mental
incapacity or immaturity (sec. 21);
2. Disqualification by reason of marriage
(sec. 22).
B. RELATIVE DISQUALIFICATION
1. Disqualification by reason of death or
insanity of adverse party (Dead Man’s
Statute, sec. 23);
2. Disqualification on the ground of
privileged communication (sec. 24).
Q: May an attorney be a witness of his own client?
A: Yes. When a lawyer is a witness for his client,
he should leave the trial of the case to other
counsel, except as to merely formal matters.
TEST OF COMPETENCY
Whether the individual has sufficient
understanding to appreciate the nature and
obligation of an oath and sufficient capacity to
observe and describe the facts in regard to which
he is called to testify.
A witness is presumed to be competent. The
objection to the competency may be raised at any
time during the examination or cross-examination;
but it should be made as soon as the facts tending
to show incompetency are discovered.
VOIR DIRE EXAMINATION
It is a preliminary examination conducted by the
trial judge where the witness is duly sworn to
answer as to his competency to give or hear
evidence
CITIZEN’S TESTIMONIAL DUTY
As a general rule, every competent person may be
compelled to bear testimony in the administration
of the laws by the duly constituted courts in of the
country. This can only be invoked by the state
after adequate notice is given, thru subpoena.
Witnesses subpoenaed by the court are duty
bound to appear and testify, EXCEPT:
1. Chief Executive;
2. Judges of Superior Courts;
3. Members of Congress during sessions;
4. Ambassadors;
5. Consuls and other diplomatic officials
when there is a treaty holding them
exempt;
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6. Witness who resides more than 100 km.
away from his residence to the place
where he is to testify by ordinary course of
travel, or a detention prisoner if no
permission of the court in which his case
is pending was obtained (Rule 21, sec.
10).
THE RULE ON EXAMINATION OF CHILD
WITNESS
AM NO. 00-4-07-SC
Republic of the Philippines
SUPREME COURT
Manila
A.M. NO. 004-07-SC November 21, 2000
RULE ON EXAMINATION OF A CHILD
WITNESS
Section 1. Applicability of the Rule. - Unless
otherwise provided, this Rule shall govern the
examination of child witnesses who are victims of
crime, accused of a crime, and witnesses to crime.
It shall apply in all criminal proceedings and non-
criminal proceedings involving child witnesses.
Section 2. Objectives. - The objectives of this
Rule are to create and maintain an environment
that will allow children to give reliable and
complete evidence, minimize trauma to children,
encourage children to testify in legal proceedings,
and facilitate the ascertainment of truth.
Section 3. Construction of the Rule. - This Rule
shall be liberally construed to uphold the best
interests of the child and to promote maximum
accommodation of child witnesses without
prejudice to the constitutional rights of the
accused.
Section 4. Definitions. -
(a) A "child witness" is any person who at the
time of giving testimony is below the age of
eighteen (18) years. In child abuse cases, a child
includes one over eighteen (18) years but is found
by the court as unable to fully take care of himself
or protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a
physical or mental disability or condition.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(b) "Child abuse" means physical, psychological,
or sexual abuse, and criminal neglect as defined
in Republic Act No. 7610 and other related laws.
(c) "Facilitator" means a person appointed by the
court to pose questions to a child.
(d) "Record regarding a child" or "record" means
any photograph, videotape, audiotape, film,
handwriting, typewriting, printing, electronic
recording, computer data or printout, or other
memorialization, including any court document,
pleading, or any copy or reproduction of any of the
foregoing, that contains the name, description,
address, school, or any other personal identifying
information about a child or his family and that is
produced or maintained by a public agency,
private agency, or individual.
(e) A "guardian ad litem" is a person appointed by
the court where the case is pending for a child
who is a victim of, accused of, or a witness to a
crime to protect the best interests of the said child.
(f) A "support person" is a person chosen by the
child to accompany him to testify at or attend a
judicial proceeding or deposition to provide
emotional support for him.
(g) "Best interests of the child" means the
totality of the circumstances and conditions as are
most congenial to the survival, protection, and
feelings of security of the child and most
encouraging to his physical, psychological, and
emotional development. It also means the least
detrimental available alternative for safeguarding
the growth and development of the child.
(h) "Developmental level" refers to the specific
growth phase in which most individuals are
expected to behave and function in relation to the
advancement of their physical, socio-emotional,
cognitive, and moral abilities.
(i) "In-depth investigative interview" or "disclosure
interview" is an inquiry or proceeding conducted
by duly trained members of a multidisciplinary
team or representatives of law enforcement or
child protective services for the purpose of
determining whether child abuse has been
committed.
Bar Exam Question 2012
49. Under the Rules on Examination of a
child witness, a child witness is one:
a. who is 18 years of age or below at the time
of testifying.
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b. who is below 18 years of age at the time of
the incident/crime to be testified on.
c. who is below 18 years of age at the time
of the giving of testimony.
d. who is 18 years of age in child abuse
cases.
SUGGESTED ANSWER: (c), A “child
witness” is any person who at the time of
giving testimony is below the age of
eighteen (18) years. (Sec.4, Rules on
Examination of a Child Witness).
Section 5. Guardian ad litem. -
(a) The court may appoint a guardian ad litem for
a child who is a victim of, accused of, or a witness
to a crime to promote the best interests of the
child. In making the appointment, the court shall
consider the background of the guardian ad litem
and his familiarity with the judicial process, social
service programs, and child development, giving
preference to the parents of the child, if qualified.
The guardian ad litem may be a member of the
Philippine Bar. A person who is a witness in any
proceeding involving the child cannot be
appointed as a guardian ad litem.
(b) The guardian ad litem:
(1) Shall attend all interviews, depositions,
hearings, and trial proceedings in which a
child participates;
(2) Shall make recommendations to the court
concerning the welfare of the child;
(3) Shall have access to all reports,
evaluations, and records necessary to
effectively advocate for the child, except
privileged communications;
(4) Shall marshal and coordinate the delivery
of resources and special services to the child;
(5) Shall explain, in language understandable
to the child, all legal proceedings, including
police investigations, in which the child is
involved;
(6) Shall assist the child and his family in
coping with the emotional effects of crime and
subsequent criminal or non-criminal
proceedings in which the child is involved;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(7) May remain with the child while the child
waits to testify;
(8) May interview witnesses; and
(9) May request additional examinations by
medical or mental health professionals if there
is a compelling need therefor.
(c) The guardian ad litem shall be notified of all
proceedings but shall not participate in the trial.
However, he may file motions pursuant to sections
9, 10, 25, 26, 27 and 31(c). If the guardian ad
litem is a lawyer, he may object during trial that
questions asked of the child are not appropriate to
his developmental level.
(d) The guardian ad litem may communicate
concerns regarding the child to the court through
an officer of the court designated for that purpose.
(e) The guardian ad litem shall not testify in any
proceeding concerning any information,
statement, or opinion received from the child in the
course of serving as a guardian ad litem, unless
the court finds it necessary to promote the best
interests of the child.
(f) The guardian ad litem shall be presumed to
have acted in good faith in compliance with his
duties described in sub-section (b).
Section 6. Competency. - Every child is
presumed qualified to be a witness. However, the
court shall conduct a competency examination of
a child, motu proprio or on motion of a party, when
it finds that substantial doubt exists regarding the
ability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or
appreciate the duty to tell the truth in court.
(a) Proof of necessity. - A party seeking a
competency examination must present proof of
necessity of competency examination. The age of
the child by itself is not a sufficient basis for a
competency examination.
(b) Burden of proof. - To rebut the presumption of
competence enjoyed by a child, the burden of
proof lies on the party challenging his
competence.
(c) Persons allowed at competency examination.
Only the following are allowed to attend a
competency examination:
(1) The judge and necessary court personnel;
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(2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the child;
and
(5) The defendant, unless the court
determines that competence can be fully
evaluated in his absence.
(d) Conduct of examination. - Examination of a
child as to his competence shall be conducted
only by the judge. Counsel for the parties,
however, can submit questions to the judge that
he may, in his discretion, ask the child.
(e) Developmentally appropriate questions. -
The questions asked at the competency
examination shall be appropriate to the age and
developmental level of the child; shall not be
related to the issues at trial; and shall focus on the
ability of the child to remember, communicate,
distinguish between truth and falsehood, and
appreciate the duty to testify truthfully.
(f) Continuing duty to assess competence. - The
court has the duty of continuously assessing the
competence of the child throughout his testimony.
Section 7. Oath or affirmation. - Before
testifying, a child shall take an oath or affirmation
to tell the truth.
Section 8. Examination of a child witness. -
The examination of a child witness presented in a
hearing or any proceeding shall be done in open
court. Unless the witness is incapacitated to
speak, or the question calls for a different mode of
answer, the answers of the witness shall be given
orally.
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 this Rule.
Section 9. Interpreter for child. -
(a) When a child does not understand the English
or Filipino language or is unable to communicate
in said languages due to his developmental level,
fear, shyness, disability, or other similar reason,
an interpreter whom the child can understand and
who understands the child may be appointed by
the court, motu proprio or upon motion, to interpret
for the child.
(b) If a witness or member of the family of the child
is the only person who can serve as an interpreter
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
for the child, he shall not be disqualified and may
serve as the interpreter of the child. The
interpreter, however, who is also a witness, shall
testify ahead of the child.
(c) An interpreter shall take an oath or affirmation
to make a true and accurate interpretation.
Section 10. Facilitator to pose questions to
child. -
(a) The court may, motu proprio or upon motion,
appoint a facilitator if it determines that the child is
unable to understand or respond to questions
asked. The facilitator may be a child psychologist,
psychiatrist, social worker, guidance counselor,
teacher, religious leader, parent, or relative.
(b) If the court appoints a facilitator, the respective
counsels for the parties shall pose questions to
the child only through the facilitator. The questions
shall either be in the words used by counsel or, if
the child is not likely to understand the same, in
words that are comprehensible to the child and
which convey the meaning intended by counsel.
(c) The facilitator shall take an oath or affirmation
to pose questions to the child according to the
meaning intended by counsel.
Section 11. Support persons. -
(a) A child testifying at a judicial proceeding or
making a deposition shall have the right to be
accompanied by one or two persons of his own
choosing to provide him emotional support.
(1) Both support persons shall remain within
the view of the child during his testimony.
(2) One of the support persons may
accompany the child to the witness stand,
provided the support person does not
completely obscure the child from the view of
the opposing party, judge, or hearing officer.
(3) The court may allow the support person to
hold the hand of the child or take other
appropriate steps to provide emotional
support to the child in the course of the
proceedings.
(4) The court shall instruct the support
persons not to prompt, sway, or influence the
child during his testimony.
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(b) If the support person chosen by the child is
also a witness, the court may disapprove the
choice if it is sufficiently established that the
attendance of the support person during the
testimony of the child would pose a substantial
risk of influencing or affecting the content of the
testimony of the child.
(c) If the support person who is also a witness is
allowed by the court, his testimony shall be
presented ahead of the testimony of the child.
Section 12. Waiting area for child witnesses. -
The courts are encouraged to provide a waiting
area for children that is separate from waiting
areas used by other persons. The waiting area for
children should be furnished so as to make a child
comfortable.
Section 13. Courtroom environment. - To create
a more comfortable environment for the child, the
court may, in its discretion, direct and supervise
the location, movement and deportment of all
persons in the courtroom including the parties,
their counsel, child, witnesses, support persons,
guardian ad litem, facilitator, and court personnel.
The child may be allowed to testify from a place
other than the witness chair. The witness chair or
other place from which the child testifies may be
turned to facilitate his testimony but the opposing
party and his counsel must have a frontal or profile
view of the child during the testimony of the child.
The witness chair or other place from which the
child testifies may also be rearranged to allow the
child to see the opposing party and his counsel, if
he chooses to look at them, without turning his
body or leaving the witness stand. The judge need
not wear his judicial robe.
Nothing in this section or any other provision of
law, except official in-court identification
provisions, shall be construed to require a child to
look at the accused.
Accommodations for the child under this section
need not be supported by a finding of trauma to
the child.
Section 14. Testimony during appropriate
hours. - The court may order that the testimony of
the child should be taken during a time of day
when the child is well-rested.
Section 15. Recess during testimony. -
The child may be allowed reasonable periods of
relief while undergoing direct, cross, re-direct, and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
re-cross examinations as often as necessary
depending on his developmental level.
Section 16. Testimonial aids. - The court shall
permit a child to use dolls, anatomically-correct
dolls, puppets, drawings, mannequins, or any
other appropriate demonstrative device to assist
him in his testimony.
Section 17. Emotional security item. - While
testifying, a child shall be allowed to have an item
of his own choosing such as a blanket, toy, or doll.
Section 18. Approaching the witness. - The
court may prohibit a counsel from approaching a
child if it appears that the child is fearful of or
intimidated by the counsel.
Section 19. Mode of questioning. - The court
shall exercise control over the questioning of
children so as to (1) facilitate the ascertainment of
the truth, (2) ensure that questions are stated in a
form appropriate to the developmental level of the
child, (3) protect children from harassment or
undue embarrassment, and (4) avoid waste of
time.
The court may allow the child witness to testify in
a narrative form.
Bar Exam Question 2012
3. A narrative testimony is usually objected
to but the court may allow such testimony if:
a. it would expedite trial and give the
court a clearer understanding of the
matters related;
b. the witness is of advanced age;
c. the testimony relates to family genealogy;
d. the witness volunteers information not
sought by the examiner.
SUGGESTED ANSWER: (a), There is no
legal principle which prevents a witness
from giving his testimony in a narrative
form if he is requested to do so by
counsel. A witness may be allowed to
testify by narration if it would be the best
way of getting at what he knew or could
state concerning the matter at issue. It
would expedite the trial and would
perhaps furnish the court a clearer
understanding of matters related as they
occurred. (People vs. Calixto, G.R. No.
92355, January 24, 1991).
ALTERNATIVE ANSWER: (b), The Rules
allow persons of tender age to testify in a
narrative form because they cannot cope
with the technicalities of examination of
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witnesses. The same rule should
applied to witnesses of advance age.
Section 20. Leading questions. - The court may
allow leading questions in all stages of
examination of a child if the same will further the
interests of justice.
Section 21. Objections to questions. -
Objections to questions should be couched in a
manner so as not to mislead, confuse, frighten, or
intimidate the child.
Section 22. Corroboration. - Corroboration shall
not be required of a testimony of a child. His
testimony, if credible by itself, shall be sufficient to
support a finding of fact, conclusion, or judgment
subject to the standard of proof required in
criminal and non-criminal cases.
Section 23. Excluding the public. - When a child
testifies, the court may order the exclusion from
the courtroom of all persons, including members
of the press, who do not have a direct interest in
the case. Such an order may be made to protect
the right to privacy of the child or if the court
determines on the record that requiring the child to
testify in open court would cause psychological
harm to him, hinder the ascertainment of truth, or
result in his inability to effectively communicate
due to embarrassment, fear, or timidity. In making
its order, the court shall consider the
developmental level of the child, the nature of the
crime, the nature of his testimony regarding the
crime, his relationship to the accused and to
persons attending the trial, his desires, and the
interests of his parents or legal guardian. The
court may, motu proprio, exclude the public from
the courtroom if the evidence to be produced
during trial is of such character as to be offensive
to decency or public morals. The court may also,
on motion of the accused, exclude the public from
trial, except court personnel and the counsel of the
parties.
Section 24. Persons prohibited from entering
and leaving courtroom. - The court may order
that persons attending the trial shall not enter or
leave the courtroom during the testimony of the
child.
Section 25. Live-link television testimony in
criminal cases where the child is a victim or a
witness. -
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
be (a) The prosecutor, counsel or the guardian ad
litem may apply for an order that the testimony of
the child be taken in a room outside the courtroom
and be televised to the courtroom by live-link
television.
Before the guardian ad litem applies for an order
under this section, he shall consult the prosecutor
or counsel and shall defer to the judgment of the
prosecutor or counsel regarding the necessity of
applying for an order. In case the guardian ad
ltiem is convinced that the decision of the
prosecutor or counsel not to apply will cause the
child serious emotional trauma, he himself may
apply for the order.
The person seeking such an order shall apply at
least five (5) days before the trial date, unless the
court finds on the record that the need for such an
order was not reasonably foreseeable.
(b) The court may motu proprio hear and
determine, with notice to the parties, the need for
taking the testimony of the child through live-link
television.
(c) The judge may question the child in chambers,
or in some comfortable place other than the
courtroom, in the presence of the support person,
guardian ad litem, prosecutor, and counsel for the
parties. The questions of the judge shall not be
related to the issues at trial but to the feelings of
the child about testifying in the courtroom.
(d) The judge may exclude any person, including
the accused, whose presence or conduct causes
fear to the child.
(e) The court shall issue an order granting or
denying the use of live-link television and stating
the reasons therefor. It shall consider the following
factors:
(1) The age and level of development of the
child;
(2) His physical and mental health, including
any mental or physical disability;
(3) Any physical, emotional, or psychological
injury experienced by him;
(4) The nature of the alleged abuse;
(5) Any threats against the child;
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(6) His relationship with the accused or
adverse party;
(7) His reaction to any prior encounters with
the accused in court or elsewhere;
(8) His reaction prior to trial when the topic of
testifying was discussed with him by parents
or professionals;
(9) Specific symptoms of stress exhibited by
the child in the days prior to testifying;
(10) Testimony of expert or lay witnesses;
(11) The custodial situation of the child and
the attitude of the members of his family
regarding the events about which he will
testify; and
(12) Other relevant factors, such as court
atmosphere and formalities of court
procedure.
(f) 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.
(g) If the court orders the taking of testimony by
live-link television:
(1) The child shall testify in a room separate
from the courtroom in the presence of the
guardian ad litem; one or both of his support
persons; the facilitator and interpreter, if any;
a court officer appointed by the court; persons
necessary to operate the closed-circuit
television equipment; and other persons
whose presence are determined by the court
to be necessary to the welfare and well-being
of the child;
(2) The judge, prosecutor, accused, and
counsel for the parties shall be in the
courtroom. The testimony of the child shall be
transmitted by live-link television into the
courtroom for viewing and hearing by the
judge, prosecutor, counsel for the parties,
accused, victim, and the public unless
excluded.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(3) If it is necessary for the child to identify the
accused at trial, the court may allow the child
to enter the courtroom for the limited purpose
of identifying the accused, or the court may
allow the child to identify the accused by
observing the image of the latter on a
television monitor.
(4) The court may set other conditions and
limitations on the taking of the testimony that it
finds just and appropriate, taking into
consideration the best interests of the child.
(h) 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 as provided
in section 31(b).
Witness; Examination of a Child Witness; via Live-Link
TV (2005) When may the trial court order that the
testimony of a child be taken by live-link television?
Explain.
SUGGESTED ANSWER:
The testimony of a child may 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 of a kind which
would impair the completeness or truthfulness of the
testimony of the child. (See Sec. 25, Rule on Examination of a
Child Witness).
Section 26. Screens, one-way mirrors, and
other devices to shield child from accused. -
(a) The prosecutor or the guardian ad litem may
apply for an order that the chair of the child or that
a screen or other device be placed in the
courtroom in such a manner that the child cannot
see the accused while testifying. Before the
guardian ad litem applies for an order under this
section, he shall consult with the prosecutor or
counsel subject to the second and third
paragraphs of section 25(a) of this Rule. The court
shall issue an order stating the reasons and
describing the approved courtroom arrangement.
(b) If the court grants an application to shield the
child from the accused while testifying in the
courtroom, the courtroom shall be arranged to
enable the accused to view the child.
Section 27. Videotaped deposition. -
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(a) The prosecutor, counsel, or guardian ad litem
may apply for an order that a deposition be taken
of the testimony of the child and that it be
recorded and preserved on videotape. Before the
guardian ad litem applies for an order under this
section, he shall consult with the prosecutor or
counsel subject to the second and third
paragraphs of section 25(a).
(b) 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.
(c) The judge shall preside at the videotaped
deposition of a child. Objections to deposition
testimony or evidence, or parts thereof, and the
grounds for the objection shall be stated and shall
be ruled upon at the time of the taking of the
deposition. The other persons who may be
permitted to be present at the proceeding are:
(1) The prosecutor;
(2) The defense counsel;
(3) The guardian ad litem;
(4) The accused, subject to sub-section (e);
(5) Other persons whose presence is
determined by the court to be necessary to
the welfare and well-being of the child;
(6) One or both of his support persons, the
facilitator and interpreter, if any;
(7) The court stenographer; and
(8) Persons necessary to operate the
videotape equipment.
(d) The rights of the accused during trial,
especially the right to counsel and to confront and
cross-examine the child, shall not be violated
during the deposition.
(e) 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 which the
deposition is conducted. In case of exclusion of
the accused, the court shall order that the
testimony of the child be taken by live-link
television in accordance with section 25 of this
Rule. If the accused is excluded from the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
deposition, it is not necessary that the child be
able to view an image of the accused.
(f) The videotaped deposition shall be preserved
and stenographically recorded. The videotape and
the stenographic notes shall be transmitted to the
clerk of the court where the case is pending for
safekeeping and shall be made a part of the
record.
(g) The court may set other conditions on the
taking of the deposition that it finds just and
appropriate, taking into consideration the best
interests of the child, the constitutional rights of
the accused, and other relevant factors.
(h) The videotaped deposition and stenographic
notes shall be subject to a protective order as
provided in section 31(b).
(i) If, at the time of trial, the court finds that the
child is unable to testify for a reason stated in
section 25(f) of this Rule, or is unavailable for any
reason described in section 4(c), Rule 23 of the
1997 Rules of Civil Procedure, the court may
admit into evidence the videotaped deposition of
the child in lieu of his testimony at the trial. The
court shall issue an order stating the reasons
therefor.
(j) After the original videotaping but before or
during trial, any party may file any motion for
additional videotaping on the ground of newly
discovered evidence. The court may order an
additional videotaped deposition to receive the
newly discovered evidence.
Section 28. Hearsay exception in child abuse
cases. - A statement made by a child describing
any act or attempted act of child abuse, not
otherwise admissible under the hearsay rule, may
be admitted in evidence in any criminal or non-
criminal proceeding subject to the following rules:
(a) Before such hearsay statement may be
admitted, its proponent shall make known to the
adverse party the intention to offer such statement
and its particulars to provide him a fair opportunity
to object. If the child is available, the court shall,
upon motion of the adverse party, require the child
to be present at the presentation of the hearsay
statement for cross-examination by the adverse
party. When the child is unavailable, the fact of
such circumstance must be proved by the
proponent.
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(b) In ruling on the admissibility of such hearsay
statement, the court shall consider the time,
content and circumstances thereof which provide
sufficient indicia of reliability. It shall consider the
following factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant
child;
(3) Whether more than one person heard the
statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the
relationship between the declarant child and
witness;
(6) Cross-examination could not show the lack
of knowledge of the declarant child;
(7) The possibility of faulty recollection of the
declarant child is remote; and
(8) The circumstances surrounding the
statement are such that there is no reason to
suppose the declarant child misrepresented
the involvement of the accused.
(c) The child witness shall be considered
unavailable under the following situations:
(1) Is deceased, suffers from physical infirmity,
lack of memory, mental illness, or will be
exposed to severe psychological injury; or
(2) Is absent from the hearing and the
proponent of his statement has been unable
to procure his attendance by process or other
reasonable means.
(d) When the child witness is unavailable, his
hearsay testimony shall be admitted only if
corroborated by other admissible evidence.
Section 29. Admissibility of videotaped and
audiotaped in-depth investigative or
disclosure interviews in child abuse cases. -
The court may admit videotape and audiotape in-
depth investigative or disclosure interviews as
evidence, under the following conditions:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(a) The child witness is unable to testify in court on
grounds and under conditions established under
section 28 (c).
(b) The interview of the child was conducted by
duly trained members of a multidisciplinary team
or representatives of law enforcement or child
protective services in situations where child abuse
is suspected so as to determine whether child
abuse occurred.
(c) The party offering the videotape or audiotape
must prove that:
(1) the videotape or audiotape discloses the
identity of all individuals present and at all
times includes their images and voices;
(2) the statement was not made in response
to questioning calculated to lead the child to
make a particular statement or is clearly
shown to be the statement of the child and not
the product of improper suggestion;
(3) the videotape and audiotape machine or
device was capable of recording testimony;
(4) the person operating the device was
competent to operate it;
(5) the videotape or audiotape is authentic
and correct; and
(6) it has been duly preserved.
The individual conducting the interview of the child
shall be available at trial for examination by any
party. Before the videotape or audiotape is offered
in evidence, all parties shall be afforded an
opportunity to view or listen to it and shall be
furnished a copy of a written transcript of the
proceedings.
The fact that an investigative interview is not
videotaped or audiotaped as required by this
section shall not by itself constitute a basis to
exclude from evidence out-of-court statements or
testimony of the child. It may, however, be
considered in determining the reliability of the
statements of the child describing abuse.
Section 30. Sexual abuse shield rule. -
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(a) Inadmissible evidence. - The following
evidence is not admissible in any criminal
proceeding involving alleged child sexual
abuse:
(1) Evidence offered to prove that the
alleged victim engaged in other sexual
behavior; and
(2) Evidence offered to prove the sexual
predisposition of the alleged victim.
(b) Exception. - Evidence of specific
instances of sexual behavior by the alleged
victim to prove that a person other than the
accused was the source of semen, injury, or
other physical evidence shall be admissible.
A party intending to offer such evidence must:
(1) File a written motion at least fifteen
(15) days before trial, specifically
describing the evidence and stating the
purpose for which it is offered, unless the
court, for good cause, requires a different
time for filing or permits filing during trial;
and
(2) Serve the motion on all parties and the
guardian ad litem at least three (3) days
before the hearing of the motion.
Before admitting such evidence, the court must
conduct a hearing in chambers and afford the
child, his guardian ad litem, the parties, and their
counsel a right to attend and be heard. The motion
and the record of the hearing must be sealed and
remain under seal and protected by a protective
order set forth in section 31(b). The child shall not
be required to testify at the hearing in chambers
except with his consent.
Section 31. Protection of privacy and safety. -
(a) Confidentiality of records. - Any record
regarding a child shall be confidential and kept
under seal. Except upon written request and order
of the court, a record shall only be released to the
following:
(1) Members of the court staff for
administrative use;
(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem;
(5) Agents of investigating law enforcement
agencies; and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(6) Other persons as determined by the court.
(b) Protective order. - Any videotape or
audiotape of a child that is part of the court record
shall be under a protective order that provides as
follows:
(1) Tapes may be viewed only by parties, their
counsel, their expert witness, and the
guardian ad litem.
(2) No tape, or any portion thereof, shall be
divulged by any person mentioned in sub-
section (a) to any other person, except as
necessary for the trial.
(3) No person shall be granted access to the
tape, its transcription or any part thereof
unless he signs a written affirmation that he
has received and read a copy of the protective
order; that he submits to the jurisdiction of the
court with respect to the protective order; and
that in case of violation thereof, he will be
subject to the contempt power of the court.
(4) Each of the tape cassettes and transcripts
thereof made available to the parties, their
counsel, and respective agents shall bear the
following cautionary notice:
"This object or document and the contents
thereof are subject to a protective order
issued by the court in (case title) , (case
number) . They shall not be examined,
inspected, read, viewed, or copied by any
person, or disclosed to any person, except as
provided in the protective order. No additional
copies of the tape or any of its portion shall be
made, given, sold, or shown to any person
without prior court order. Any person violating
such protective order is subject to the
contempt power of the court and other
penalties prescribed by law."
(5) No tape shall be given, loaned, sold, or
shown to any person except as ordered by the
court.
(6) Within thirty (30) days from receipt, all
copies of the tape 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.
(7) This protective order shall remain in full
force and effect until further order of the court.
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(c) 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.
(d) Publication of identity contemptuous. -
Whoever publishes or causes to be published
in any format the name, address, telephone
number, school, or other identifying
information of a child who is or is alleged to be
a victim or accused of a crime or a witness
thereof, or an immediate family of the child
shall be liable to the contempt power of the
court.
(e) Physical safety of child; exclusion of
evidence. - A child has a right at any court
proceeding not to testify regarding personal
identifying information, including his name,
address, telephone number, school, and other
information that could endanger his physical
safety or his family. The court may, however,
require the child to testify regarding personal
identifying information in the interest of justice.
(f) Destruction of videotapes and
audiotapes. - Any videotape or audiotape of a
child produced under the provisions of this
Rule or otherwise made part of the court
record shall be destroyed after five (5) years
have elapsed from the date of entry of
judgment.
(g) Records of youthful offender. - Where a
youthful offender has been charged before
any city or provincial prosecutor or before any
municipal judge and the charges have been
ordered dropped, all the records of the case
shall be considered as privileged and may not
be disclosed directly or indirectly to anyone for
any purpose whatsoever.
Where a youthful offender has been charged and
the court acquits him, or dismisses the case or
commits him to an institution and subsequently
releases him pursuant to Chapter 3 of P. D. No.
603, all the records of his case shall also be
considered as privileged and may not be disclosed
directly or indirectly to anyone except to determine
if a defendant may have his sentence suspended
under Article 192 of P. D. No. 603 or if he may be
granted probation under the provisions of P. D.
No. 968 or to enforce his civil liability, if said
liability has been imposed in the criminal action.
The youthful offender concerned shall not be held
under any provision of law to be guilty of perjury or
of concealment or misrepresentation by reason of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
his failure to acknowledge the case or recite any
fact related thereto in response to any inquiry
made to him for any purpose.
"Records" within the meaning of this sub-section
shall include those which may be in the files of the
National Bureau of Investigation and with any
police department or government agency which
may have been involved in the case. (Art. 200, P.
D. No. 603)
Section 32. Applicability of ordinary rules. -
The provisions of the Rules of Court on
deposition, conditional examination of witnesses,
and evidence shall be applied in a suppletory
character.
Section 33. Effectivity. - This Rule shall take
effect on December 15, 2000 following its
publication in two (2) newspapers of general
circulation.
Section 21, ROC. Disqualification by reason of
mental incapacity or immaturity. — The
following persons cannot be witnesses:
(a) Those whose mental condition, at the time
of their production for examination, is such
that they are incapable of intelligently making
known their perception to others;
(b) Children whose mental maturity is such as
to render them incapable of perceiving the
facts respecting which they are examined and
of relating them truthfully. (19a)
People v. de Jesus, 129 SCRA 4 (1984) – even
though feeble minded, there is no showing that
she could not convey her ideas by words or signs
___ competent; even if she had difficulty
comprehending the questions
People v. Salomon, 229 SCRA 402 (1993) – being
mental retardate is not per se a disqualification;
although speech was slurred, testimony was
positive, clear, plain and unambiguous
People v. Mendoza, G.R. No. 113791, Feb. 2,
1996 – any child, regardless of age, can be a
witness as long as he meets the qualifications for
competency: observation, recollection, and
communication
Section 22. Disqualification by reason of
marriage. — During their marriage, neither the
husband nor the wife may testify for or against the
other without the consent of the affected spouse,
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except in a civil case by one against the other, or because it is considered a crime against the wife.
in a criminal case for a crime committed by one When an offense directly attacks, or directly
against the other or the latter's direct descendants impairs the conjugal relation, it comes within the
or ascendants. (20a) exception to the marital disqualification rule.
People v. Castañeda, 88 SCRA 562 (1979) The
PURPOSE: wife can testify against the husband in a case for
To obviate perjury and to prevent domestic falsification of the wife’s signature in public
disunity and unhappiness. documents to sell share of wife in conjugal
REQUISITES: property because it is a crime committed by the
1. The spouse for or against whom the husband against the wife.
testimony is offered is a party to the case;
2. That the spouses are legally married Lezama v Rodriguez, 23 SCRA 1166 (1968) Wife
(includes voidable marriage); who is a co-defendant of her husband in a case of
3. Testimony is offered during the existence collusive fraud, where their interests are not
of the marriage; separate, can not be examined as a hostile
4. Case is not one against the other. witness by the adverse party.
People v. Francisco, 78 Phil. 694 (1947) – when
the husband imputes crime against wife, he
Disqualification by Disqualification by waives the marital disqualification rule.
REASON OF REASON OF
MARRIAGE (sec. 23) MARITAL
PRIVILEGED (sec. 24 Privilege Communication (1998)
[a]) C is the child of the spouses H and W. H sued his wife
Can be invoked only Can be claimed W for judicial declaration of nullity of marriage under
when one of the whether or not the other Article 36 of the Family Code. In the trial, the
spouses is a party to spouse is a party to the following testified over the objection of W: C, H and
the case case D, a doctor of medicine who used to treat W. Rule on
Applies only if marriage Can be claim even if W's objections which are the following:
is still existing when the after the marriage is 1. H cannot testify against her because of the rule on
testimony is offered dissolved marital privilege; [1%]
Constitutes a total Applies only to 2. C cannot testify against her because of the doctrine
prohibition for or confidential
on parental privilege; and [2%]
against the spouse of communications
3. D cannot testify against her because of the doctrine
the witness between the spouses
of privileged communication between patient and
The objection would be
physician. [2%]
raised on the ground of The married person is SUGGESTED ANSWER:
marriage. The married on the stand but the 1. The rule of marital privilege cannot be invoked in
witness would not be objection of the the annulment case under Rule 36 of the Family Code
allowed to take the privileged is raised because it is a civil case filed by one against the other,
stand at all because of when confidential (Sec. 22 , Rule 130. Rules of Court.)
the disqualification. marital communication 2. The doctrine of parental privilege cannot likewise be
Even if the testimony is is inquired into invoked by W as against the testimony of C, their
for or against the child. C may not be compelled to testify but is free to
objecting spouse, the testify against her. (Sec. 25. Rule 130. Rules of Court; Art. 215,
spouse cannot testify Family Code.)
3. D, as a doctor who used to treat W, is disqualified to
NOTE: The disqualification does not apply where testify against W over her objection as to any advice or
an offense directly attacks or directly and vitally treatment given by him or any information which he
impairs the conjugal relations. may have acquired in his professional capacity. (Sec. 24
[c], Rule 130. Rules of Court.)
When there is separation between the spouses, ALTERNATIVE ANSWER:
the marital disqualification rule is sometimes not If the doctor's testimony is pursuant to the
strictly applied (Review Lecture). requirement of establishing the psychological
incapacity of W, and he is the expert called upon to
REASON: Identity of interest disappears. testify for the purpose, then it should be allowed.
(Republic vs. Court of Appeals and Molina, 26S SCRA
Ordoño v. Daquigan, 62 SCRA 270 (1975) The 198.)
wife can therefore testify against her husband in
such a case for rape against her daughter Privilege Communication; Marital Privilege (1989)

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 522

________________________________________________________________________________________________
Ody sued spouses Cesar and Baby for a sum of money
and damages. At the trial, Ody called Baby as his first
witness. Baby objected, joined by Cesar, on the ground
that she may not be compelled to testify against her
husband. Ody insisted and contended that after all, she
would just be questioned about a conference they had
with the barangay captain, a matter which is not
confidential in nature. The trial court ruled in favor of
Ody. Was the ruling proper? Will your answer be the
same if the matters to be testified on were known to
Baby or acquired by her prior to her marriage to
Cesar? Explain.
SUGGESTED ANSWER:
No. Under the Rules on Evidence, a wife cannot be
examined for or against her husband without his
consent, except in civil cases by one against the other,
or in a criminal case for a crime committed by one
against the other. Since the case was filed by Ody
against the spouses Cesar and Baby, Baby cannot be
compelled to testify for or against Cesar without his
consent. (Lezama vs. Rodriguez, 23 SCRA 1166).
The answer would be the same if the matters to be
testified on were known to Baby or acquired by her
prior to her marriage to Cesar, because the marital
disqualification rule may be invoked with respect to
testimony on any fact. It is immaterial whether such
matters were known to Baby before or after her
marriage to Cesar.
Privilege Communication; Marital Privilege (2000)
Vida and Romeo are legally married. Romeo is charged
to court with the crime of serious physical injuries
committed against Selmo, son of Vida, 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? (3%) b) Will
your answer be the same if Vida’s testimony
is offered in a civil case for recovery of personal
property filed by Selmo against Romeo? (2%)
SUGGESTED ANSWER:
(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 latter’s
direct descendants or ascendants. (Sec, 22, Rule 130). The
case falls under this exception because Selma is the
direct descendant of the spouse Vide.
(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 Vida’s spouse, Romeo.
Privilege Communication; Marital Privilege (2004)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
XYZ, an alien, was criminally charged of promoting
and facilitating child prostitution and other sexual
abuses under Rep. Act No. 7610. The principal witness
against him was his Filipina wife, ABC. Earlier, she
had complained that XYZ's hotel was being used as a
center for sex tourism and child trafficking. The
defense counsel for XYZ objected to the testimony of
ABC at the trial of the child prostitution case and the
introduction of the affidavits she executed against her
husband as a violation of espousal confidentiality and
marital privilege rule. It turned out that DEF, the
minor daughter of ABC by her first husband who was
a Filipino, was molested by XYZ earlier.
Thus, ABC had filed for legal separation from XYZ
since last year. May the court admit the testimony and
affidavits of the wife, ABC, against her husband, XYZ,
in the criminal case involving child prostitution?
Reason. (5%)
SUGGESTED ANSWER:
Yes. The court may admit the testimony and affidavits of the
wife against her husband in the criminal case where it
involves child prostitution of the wife's daughter. It is not
covered by the marital privilege rule. One exception thereof
is where the crime is committed by one against the other or
the latter's direct descendants or ascendants. (Sec. 22, Rule 130).
A crime by the husband against the daughter is a crime
against the wife and directly attacks or vitally impairs the
conjugal relation. (Ordono v. Daquigan, 62 SCRA 270 [1975]).
Privilege Communication; Marital Privilege (2006)
Leticia was estranged from her husband Paul for more
than a year due to his suspicion that she was having an
affair with Manuel their neighbor. She was temporarily
living with her sister in Pasig City. For unknown
reasons, the house of Leticia's sister was burned, killing
the latter. Leticia survived. She saw her husband in the
vicinity during the incident. Later he was charged with
arson in an Information filed with the Regional Trial
Court, Pasig City. During the trial, the prosecutor
called Leticia to the witness stand and offered her
testimony to prove that her husband committed arson.
Can Leticia testify over the objection of her husband
on the ground of marital privilege? (5%)
ALTERNATIVE ANSWER:
No, Leticia cannot testify over the objection of her
husband, not under marital privilege which is inapplicable
and which can be waived, but she would be barred under
Sec. 22 of Rule 130, which prohibits her from testifying
and which cannot be waived (Alvarez v. Ramirez, G.R.
No. 143439, October 14, 2005).
ALTERNATIVE ANSWER:
Yes, Leticia may testify over the objection of her
husband. The disqualification of a witness by reason of
marriage under Sec. 22, Rule 130 of the Revised Rules
of Court has its exceptions as where the marital
relations are so strained that there is no more harmony
to be preserved. The acts of Paul eradicate all major
aspects of marital life. On the other hand, the State has
523
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an interest in punishing the guilty and exonerating the
innocent, and must have the right to offer the
testimony of Leticia over the objection of her husband
(Alvarez v. Ramirez, G.R. No. 143439, October 14, 2005).
Privilege Communication (2013) No.IX. For
over a year, Nenita had been estranged from
her husband Walter because of the latter’s
suspicion that she was having an affair with
Vladimir, a barangay kagawad who lived in
nearby Mandaluyong. Nenita lived in the
meantime with her sister in Makati. One day,
the house of Nenita’s sister inexplicably
burned almost to the ground. Nenita and her
sister were caught inside the house but
Nenita survived as she fled in time, while her
sister tried to save belongings and was
caught inside when the house collapsed.
As she was running away from the burning
house, Nenita was surprised to see her
husband also running away from the scene.
Dr. Carlos, Walter’s psychiatrist who lived
near the burned house and whom Walter
medically consulted after the fire, also saw
Walter in the vicinity some minutes before
the fire. Coincidentally, Fr. Platino, the
parish priest who regularly hears Walter’s
confession and who heard it after the fire,
also encountered him not too far away from
the burned house. Walter was charged with
arson and at his trial, the prosecution moved
to introduce the testimonies of Nenita, the
doctor and the priest-confessor, who all saw
Walter at the vicinity of the fire at about the
time of the fire. (A) May the testimony of
Nenita be allowed over the objection of
Walter? (3%) SUGGESTED ANSWER:
No. Nenita may not be allowed to testify
against Walter. Under the Marital
Disqualification Rule, during their
marriage, neither the husband nor the
wife may 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 latter‟s direct descendants or
ascendants (Section 22, Rule 130, Rules
on Evidence). The foregoing exceptions
cannot apply since it only extends to a
criminal case of one spouse against the
other or the latter‟s direct ascendants or
descendants. Clearly, Nenita is not the
offended party and her sister is not her
direct ascendant or descendant for her to
fall within the exception.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
ALTERNATIVE ANSWER: Yes. Nenita may
be allowed to testify against Walter. It is
well settled that the marital
disqualification rule does not apply when
the marital and domestic relations
between spouses are strained.
In Alvarez vs. Ramirez, G.R. No. 143439,
October 14, 2005, the Supreme Court
citing People vs. Castaneda, 271 SCRA
504, held that the act of private
respondent in setting fire to the house of
his sister-in-law Susan Ramirez, Knowing
fully well that his wife was there, and in
fact with the alleged intent of injuring the
latter, is an act totally alien to the
harmony and confidences of marital
relation which the disqualification
primarily seeks to protect. The criminal
act complained of had the effect of
directly and vitally impairing the conjugal
relation. It underscored the fact that the
marital and domestic relations between
her and the accused-husband have become
so strained that there is no more
harmony, peace or tranquillity to be
preserved. Hence, the identity is non-
existent. In such a situation, the security
and confidences of private life which the
law aims to protect are nothing but ideals
which through their absence, merely leave
a void in the unhappy home. Thus, there
is no reason to apply the Marital
Disqualification Rule.
(B) May the testimony of Dr. Carlos, Walter’s
psychiatrist, be allowed over Walter’s
objection? (3%) SUGGESTED ANSWER: Yes.
The testimony of Walter‟s psychiatrist
may be allowed. The privileged
communication contemplated under Sec.
24 (c) Rule 130 of the Rules on Evidence
involves only persons authorized to
practice medicine, surgery or obstetrics. It
does not include a Psychiatrist. Moreover,
the privileged communication applies only
in civil cases and not in a criminal case
for arson.
Besides, the subject of the testimony of
Dr. Carlos was not in connection with the
advice or treatment given by him to
Walter, or any information he acquired in
attending to Walter in a professional
capacity. The testimony of Dr. Carlos is
limited only to what he perceived at the
vicinity of the fire and at the time of the
fire.
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(C) May the testimony of Fr. Platino, the
priest-confessor, be allowed over Walter’s
objection? (3%) SUGGESTED ANSWER: Yes.
The Priest can testify over the objection
of Walter. The disqualification requires
that the same were made pursuant to a
religious duty enjoined in the course of
discipline of the sect or denomination to
which they belong and must be
confidential and penitential in character,
e.g., under the seal of confession (Sec. 24
(d) Rule 130, Rules on Evidence). Here, the
testimony of Fr. Platino was not
previously subject of a confession of
Walter or an advice given by him to Walter
in his professional character. The
Testimony was merely limited to what Fr.
Platino perceived “at the vicinity of the
fire and at about the time of the fire.”
Hence, Fr. Platino may be allowed to
testify.
Privilege Communication; Marital
Privilege (2010) No. I. On March 12, 2008,
Mabini was charged with Murder for fatally
stabbing Emilio. To prove the qualifying
circumstance of evident premeditation, the
prosecution introduced on December 11,
2009 a text message, which Mabini’s
estranged wife Gregoria had sent to Emilio on
the eve of his death, reading: “Honey,
pa2tayin u ni Mabini. Mtgal n nyang plano
i2. Mg ingat u bka ma tsugi k.”
(A) A subpoena ad testificandum was served
on Gregoria for her to be presented for the
purpose of identifying her cellphone and the
tex message. Mabini objected to her
presentation on the ground of marital
privilege. Resolve. SUGGESTED ANSWER:
The objection should be sustained on the
ground of the marital disqualification rule
(Rule 130, Sec. 22), not on the ground of
the “marital privilege” communication
rule (Rule 130, Sec. 24). The marriage
between Mabini and Gregoria is still
subsisting and the situation at bar does
not come under the exceptions to the
disqualification by reason of marriage.
(B) Suppose Mabini’s objection in question A
was sustained. The prosection thereupon
announced that it would be presenting
Emilio’s wife Graciana to identify Emilio’s
cellphone bearing Gregoria’s text message.
Mabini objected again. Rule on the objection.
(2%) SUGGESTED ANSWER: The objection
should be overruled. The testimony of
Graciana is not covered by the said
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
marital disqualification rule because she is
not the wife of Mabini. Besides, Graciana
will identify only the cellphone as that of
her husband Emilio, not the messages
therein which to her are hearsay.
(C) If Mabini’s objection in question B was
overruled, can he object to the presentation
of the text message on the ground that it is
hearsay? (2%) SUGGESTED ANSWER: No,
Gregoria‟s text message in Emilio‟s
cellphone is not covered by the hearsay
rule because it is regarded in the rules of
evidence as independently relevant
statement: the text message is not to
prove the truth of the fact alleged therein
but only as to the circumstances of
whether or not premeditation exists.
(C) Suppose that shortly before expired,
Emilio was able to send a text message to his
wife Graciana reading “Nasaksak ako. D na
me makahinga. Si Mabini ang may gawa
ni2.” Is this message admissible as a dying
declaration? Explain. (3%) SUGGESTED
ANSWER: Yes, the text message is
admissible as a dying declaration since
the same came fdrom the victim who
“shortly” expired and it is in respect of
the cause and circumstance of his death.
The decisive factor that the message was
made and sent under consciousness of an
impending death, is evidently attendant
from the victim‟s statement: “D na me
makahinga” and the fact that he died
shortly after he sent the text message.
However, cellphone messages are regarded
as electronic evidence, and in a recent
case (Ang vs. Court of Appeals et al., GR
NO. 182835, April 20, 2010), the Supreme
Court ruled that the Rules on Electronic
Evidence applies only to civil actions,
quasi-judicial proceedings and
administrative proceeding, not to criminal
actions.
Note: (Rules on electronic evidence is now
applicable in criminal cases – Genesis)
ALTERNANTIVE ANSWER: No, the text
message is not admissible as a dying
declaration because it lacks indication
that the victim was under consciousness
of an impending death. The statement “D
na me makahinga” is still unequivocal in
the text message sent that does not imply
consciousness of forth-coming death.
525
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MARRYING THE WITNESS
An accused can effectively “seal the lips” of a
witness by marrying the witness. As long as valid
marriage is in existence at the time of the trial, the
witness spouse cannot be compelled to testify
even where the crime charge is against the
witness person and even though the marriage was
entered into for the express purpose of
suppressing the testimony.
WHO MAY OBJECT:
It is ONLY the spouse-party and not the other
spouse who is offered as a witness.
This is a testimonial disqualification, as opposed
to the testimonial privilege of ascendants and
descendants (Rule 130 §25). Hence, the witness
has no say whether the objection is to be raised or
not. The holder of the privilege is the spouse-
litigant. When the spouse-litigant consents to the
testimony, the spouse-witness must testify
whether he wants to or not.
Section 23. Disqualification by reason of death
or insanity of adverse party. — Parties or
assignor of parties to a case, or persons in whose
behalf a case is prosecuted, against an executor
or administrator or other representative of a
deceased person, or against a person of unsound
mind, upon a claim or demand against the estate
of such deceased person or against such person
of unsound mind, cannot testify as to any matter of
fact occurring before the death of such deceased
person or before such person became of unsound
mind. (20a)
DEADMAN’S STATUTE/THE RULE ON
SURVIVING PARTIES
REQUISITES:
1. The witness is a party or assignor of a
party to a case or persons on whose
behalf the case is prosecuted;
2. The action is against the executor or
administrator or other representative of
the deceased person or a person of
unsound mind;
3. The subject matter of the action is a claim
against the estate of such deceased
person or person of unsound mind;
4. The testimony refers to any matter of fact
which occurred before the death of such
deceased person or before such person
became of unsound mind.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Incompetency applies whether the deceased died
before or after the commencement of the action
against him if at the time the testimony is given he
was already dead and cannot disprove it.
NOTE: Only the parties are barred, but the
witnesses other than that of the parties can testify.
ASSIGNOR (under this section)
It pertains to the assignor of a cause of action
which has already arisen and not assignor of a
right before any cause of action accrued.
Admissibility; Death of Adverse Party (2007) No.II. (a)
The surviving parties rule bars Maria from testifying for
the claimant as to what the deceased Jose had said to
her, in a claim filed by Pedro against the estate of Jose.
(3%) SUGGESTED ANSWER: False. The said rule bars
only parties-plaintiff and their assignors, or persons
prosecuting a claim against the estate of a deceased;
it does not cover Maria who is a mere witness.
Furthermore, the disqualification is in respect of any
matter of fact occurring before the death of said
deceased (Sec. 23, Rule 130, Rules of Court, Razon v.
Intermediate Appellate Court, 207 SCRA 234 [1992]).
It is Pedro who filed the claim against the estate of
Jose.
MARITAL
DEAD MAN’S DISQUALIFICATION
STATUTE RULE
Only partial
disqualification as the
witness is not It is a complete and
completely disqualified absolute disqualification
but is only prohibited
from testifying on the
matters specified
therein
Applies only to a civil Applies to civil or
case or special criminal case, subject
proceeding over the only to the exceptions
estate of the deceased provided therein
or insane person
PURPOSE: It is designed to close the lips of the
party plaintiff when death has permanently closed
the lips of the party defendant in order to remove
from the surviving party the temptation to give
false testimony and the possibility of fictitious
claims against the deceased.
MATTERS PROHIBITED
Matters occurring in the presence and within the
hearing of decedent to which he might testify of
his personal knowledge if he where alive.
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FACTS FAVORABLE TO THE DECEASED ARE
NOT PROHIBITED
Inasmuch as the statutes are designed to protect
the interest of a deceased or insane person, they
do not exclude testimonies which are favorable to
the representative of such person.
DEAD MAN’S STATUTE DOES NOT APPLY IN
THE FOLLOWING:
1. Testimonies of mere witnesses who are
not party plaintiffs, nor their assignors, nor
persons in whose behalf the case is
prosecuted;
2. If the plaintiff is the executor or
administrator or other representative of
the deceased or person of unsound mind;
3. In an action against a partnership;
4. If the person or persons mentioned under
the rule files a counterclaim;
5. When the testimony refers to fraudulent
transactions committed by the persons
mentioned in the rule, provided that fraud
has been clearly established by other
evidence;
6. When there is waiver;
7. When the testimony of a plaintiff refers to
the non-occurrence of a fact because in
that case, the plaintiff does not testify on
the occurrence of a fact but of its non-
occurrence;
8. In cadastral cases since there is neither
plaintiff nor defendant;
9. Testimony on the possession by witness
of a written instrument made by the
deceased, as such fact exists even after
the decedent’s demise.
CASES:
Razon v. IAC, 207 SCRA 234 (1992) The dead
man’s statute does not apply where the case is
filed by the estate. Besides, cross-examination of
the witness is a waiver of the privilege.
Reyes v. Wells, 54 Phil 102 (1929) If the witness
sought to be disqualified is not the plaintiff (e.g.
disinterested 3rd party), the dead man’s statute is
not applicable.
Guerrero v. St. Clare’s Realty, 124 SCRA 553
(1983) Mere witnesses not parties to the case are
not disqualified by the dead man’s statute.
Furthermore, the rule requires that the defendant
must be the estate. It does not apply where the
heirs are being sued in their individual capacities.
“Representatives” are only those who, like the
executor, one sued in their representative, not
personal, capacity
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Abraham v. Recto-Kasten, 4 SCRA 298 (1962) A
cross-examination of the disqualified witness is a
waiver of the dead man’s privilege, even if there
was a continuing objection.
Lichauco v. Atlantic Gulf, 84 Phil. 330 (1949) This
in effect ruled that the Dead Man’s statute can not
be invoked against a plaintiff-corporation. Interest
no longer disqualifies a witness.
Officers/stockholder of corporation may testify in a
case filed against the estate of a deceased by the
corporation
Escolin: In an action where the administrator is the
plaintiff, the defendant may testify on facts
occurring prior to the death of the decedent.
Tongco v. Vianzon, 50 Phil 698 (1927) – action
must be brought against the estate, not by the
estate, to be covered under the dead man’s
statute
Escolin: If there is no instrument evidencing the
claim, it would be difficult to prove the claim in the
estate proceeding because of the dead man’s
statute. However, if there is such an instrument, it
is not barred by the dead man’s statute (Neibert v.
Neibert)
Goñi v. CA, 144 SCRA 222 (1986) – heirs of a
deceased are “representatives” within the ambit of
the dead man’s statute; waived by defendant if he
files counterclaim against plaintiff; adverse party
may testify to transactions or communications with
deceased which were made with an agent of such
person if the agents is still alive and can testify as
long as it is confined to the transactions
Section 24. Disqualification by reason of
privileged communication. — The following
persons cannot testify as to matters learned in
confidence in the following cases:
(a) The husband or the wife, during or
after the marriage, cannot be examined
without the consent of the other as to any
communication received in confidence by
one from the other during the marriage
except in a civil case by one against the
other, or in a criminal case for a crime
committed by one against the other or the
latter's direct descendants or ascendants;
REQUISITES:
1. There was a valid marital relation;
2. The privileged is invoked with
respect to a confidential
information between the spouses
during said marriage; and
527
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3. The spouse against whom the
evidence is offered has not given
his/her consent to such testimony.
NOTE: There is presumption of
confidentiality on all communication
between husband and wife.
Communication overheard by third
persons without the knowledge of the
spouses is still confidential but third party
is not disqualified to testify. Note, that the
testimony of the 3rd person may be
hearsay and may not be admitted.
However, it may be admitted for the
purpose of or as an evidence of the fact
that said spouse confided to the other
spouse about certain matter [Independent
Relevant Statement].
Where there is collusion and voluntary
disclosure to third party, the latter
becomes an agent and cannot testify.
Communication in furtherance of fraud
and crime is not privileged.
(b) An attorney cannot, without the
consent of his client, be examined as to
any communication made by the client to
him, or his advice given thereon in the
course of, or with a view to, professional
employment, nor can an attorney's
secretary, stenographer, or clerk be
examined, without the consent of the
client and his employer, concerning any
fact the knowledge of which has been
acquired in such capacity;
REQUISITES:
1. Witness is a lawyer;
2. There is an attorney-client
relationship;
3. The privileged is invoked with
respect to a confidential
communication between them in
the course of professional
employment;
4. The client has not given consent
to the attorney’s testimony
thereon; or if the attorney’s
secretary, stenographer, or clerk
is sought to be examined, that
both the client and the attorney
have not given their consent
thereto.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
PURPOSE: To encourage full disclosure
by client to his attorney of all pertinent
matters so as to further the administration
of justice.
TEST: Whether the communications are
made to the attorney with a view of
obtaining from him professional
assistance or advice regardless of
whether there is a pending or merely
impending litigation or any litigation.
Attorney-Client Privilege DOES NOT
APPLY to communications which are:
1. Intended to be made public;
2. Intended to be communicated to
others;
3. Received from 3rd persons not
acting as agents or in behalf of
the client;
4. Intended for an unlawful purpose;
5. Made in the presence of third
parties who are strangers to the
attorney-client relationship.
GR: A lawyer may not invoke the privilege
and refuse to divulge the name or identity
of his client.
EXCEPTIONS:
1. Where a strong possibility exists
that revealing the client’s name
would implicate the client in the
very activity for which he sought
the lawyer’s advice;
2. Where disclosure would open the
client to civil liability;
3. Where the prosecutors have no
case against the client, unless by
revealing the client’s name, the
said name would furnish the
missing link that would form the
chain of testimony necessary to
convict an individual for a crime
(Regala vs. Sandiganbayan, 262
SCRA 122).
WORK-PRODUCT RULE
The court cannot demand that the
prepared draft of a lawyer regarding a
case be produced in court.
Privilege Communication; Lawyer-Client
(2008)
528
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No.XIV. On August 15, 2008, Edgardo
committed estafa against Petronilo in the
amount of P3 Million. Petronilo brought his
complaint to the National Bureau of
Investigation, which found that Edgardo had
visited his lawyer twice, the first time on
August 14, 2008 and the second on August
16, 2008; and that both visits concerned the
swindling of Petronilo. During the trial of
Edgardo, the RTC issued a subpoena ad
testificandum to Edgardo’s lawyer for him to
testify on the conversations during their first
and second meetings. May the subpoena be
quashed on the ground of privileged
communication? Explain fully. (4%)
SUGGESTED ANSWER:
Yes, the mantle of privileged
communication based on lawyer-client
relationship protects the communication
between a lawyer and his client against
any adverse party as in this case. The
subpoena requiring the lawyer to testify
can be quashed on the ground of
privileged communication (See Regala v.
Sandiganbayan, GR No. 105938, 20
September 1996). Sec. 24 (b) Rule 130
provides that an attorney cannot, without
the consent of his client be examined in
any communication made to him by his
client to him, or his advice given thereon,
including his secretary, stenographer,
clerk concerning any fact the knowledge
of which has been acquired in such
capacity. However, where the subject
matter of the communication involves the
commission of the crime, in which the
lawyer himself is a participant or
conspirator, then the same is not covered
by the privilege. Moreover, if the
substance of the communication can be
established by independent evidence, the
lawyer maybe compelled to testify.
Privilege Communication; Lawyer-Client
(2008) No.XX. A tugboat owned by Speedy
Port Service, Inc. (SPS) sank in Manila Bay
while helping tow another vessel, drowning
five (5) crews in the resulting shipwreck. At
the maritime board inquiry, the four (4)
survivors testified. SPS engaged Atty. Ely to
defend it against potential claims and to sue
the company owning the other vessel for
damages to tug. Ely obtained signed
statements from the survivors. He also
interviewed other persons, in some instance
making memoranda. The heirs of the five (5)
victims filed an action for damages against
SPS. Plaintiffs’ counsel sent written
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
interrogatories to Ely, asking whether
statements of witnesses were obtained; if
written copies were to be furnished; if oral,
the exact provision were to be set forth in
detail. Ely refused to comply, arguing that
the documents and information asked are
privileged communication. Is the contention
tenable? Explain (4%)
SUGGESTED ANSWER: Yes, the lawyer-
client privilege covers any communication
made by the client to the lawyer, or the
lawyer‟s advice given thereon in the
course of, or with a view to professional
employment. The documents and
information sought were gathered and
prepared pursuant to the engagement of
Ely as a lawyer for the company (Air
Philippines Corporation v. Pennswell, Inc.,
GR No. 172835, 13 December 2007). Sec.
5, Rule 25 of the Rules of Court provides
that interrogatories may relate to any
matter that can be required into under
Sec. 2, Rule 23 o depositions and
discovery refers to privileged confidential
communications under Sec. 24, Rule 130.
(c) A person authorized to practice
medicine, surgery or obstetrics cannot in a
civil case, without the consent of the
patient, be examined as to any advice or
treatment given by him or any information
which he may have acquired in attending
such patient in a professional capacity,
which information was necessary to
enable him to act in capacity, and which
would blacken the reputation of the
patient;
REQUISITES:
1. Witness is a person authorized to
practice medicine, surgery, or
obstetrics;
2. The physician is authorized to
practice medicine, surgery or
obstetrics;
3. The information was acquired or
the advice or treatment was given
by him in his professional capacity
for the purpose of treating or
curing the patient;
4. The information, advice or
treatment, if revealed, would
blacken the reputation of the
patient; and
5. The privilege is invoked in a civil
case whether the patient is a
party thereto or not.
529
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PURPOSE: It is intended to facilitate and
make safe full and confidential disclosure
by the patient to the physician of all facts,
circumstances and symptoms
untrammeled by apprehension of their
subsequent and enforced disclosure and
publication on the witness stand to the
end that the physician may form a correct
opinion and enabled safely and
efficaciously to treat his patient.
WHEN IS PHYSICIAN IS ACTING IN HIS
PROFESSIONAL CAPACITY
It is when he attends to his patient for
curative, preventive or palliative treatment.
Note: It is essential that at the time the
communication were made the
professional relationship of patient and
physician existed.
WHEN PRIVILEGE DOES NOT APPLY:
1. Where the communication is not
given in confidence;
2. The communication is NOT
relevant to the professional
employment;
3. The communication was made for
an unlawful purpose;
4. The information was intended to
be made public;
5. There was waiver of privilege
either by provision of law or
contract;
Waivers of the physician-patient
privilege, Rule 28, Sec. 3 and 4
Sec. 3. Report of findings. — If
requested by the party examined, the party
causing the examination to be made shall
deliver to him a copy of a detailed written
report of the examining physician setting out
his findings and conclusions. After such
request and delivery, the party causing the
examination to be made shall be entitled upon
request to receive from the party examined a
like report of any examination, previously or
thereafter made, of the same mental or
physical condition. If the party examined
refuses to deliver such report, the court on
motion and notice may make an order
requiring delivery on such terms as are just,
and if a physician fails or refuses to make such
a report the court may exclude his testimony if
offered at the trial. (3a)
Sec. 4. Waiver of privilege. — By
requesting and obtaining a report of the
examination so ordered or by taking the
deposition of the examiner, the party examined
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
waives any privilege he may have in that action
or any other involving the same controversy,
regarding the testimony of every other person
who has examined or may thereafter examine
him in respect of the same mental or physical
examination.
Dentist, pharmacist or nurses are
disqualified if acting as agents.
TEST: Whether the 3rd person was an agent
of the doctor in a professional capacity.
SCOPE OF PROHIBITION
It applies not only to communication but also
to opinions or prescription.
Not all information obtained
confidentially by the physician from
the patient and necessary for his
treatment are within the privilege. The
information held to be privileged is
that would blacken he reputation of
the patient.
NOTE: It is only the tenor of the
communication by patient to the doctor that is
privileged. Hence, the fact of communication,
the date and frequency of consultation with
the doctor are excluded (Lim vs. CA, 214
SCRA 273 [1992]).
DURATION OF PROHIBITION
It continues after the death but it may be waived
by the personal representative of the decedent.
Lim v. CA, 214 SCRA 273 (1992) The physician-
patient privilege is not violated by permitting
physician to give expert testimony regarding
hypothetical facts.
Krohn v. CA, 233 SCRA 146 (1994) Non-physician
testimony on a medical psychologist’s report is not
covered by the physician patient privilege. This is
hearsay but there was no objection.
(d) A minister or priest cannot, without the
consent of the person making the
confession, be examined as to any
confession made to or any advice given
by him in his professional character in the
course of discipline enjoined by the
church to which the minister or priest
belongs;
REQUISITES:
1. Witness is a minister or priest;
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2. The confession must have been
made to the priest in his
professional capacity in the
course of discipline enjoined by
the church to which he belongs;
3. The communications made were
confidential and penitential in
character.
NOTE: It is respect for religious order and
the confessor that adheres to the divine
concept of atonement which spawned the
privilege.
Its rationale is to allow and encourage
individuals to fulfill their religious,
emotional or other needs by protecting
confidential disclosures to religious
practitioners (Peralta, Jr.)
(e) A public officer cannot be examined
during his term of office or afterwards, as
to communications made to him in official
confidence, when the court finds that the
public interest would suffer by the
disclosure. (21a)
REQUISITES:
1. Witness is a public officer;
2. The communication was given to
the public officer in confidence;
3. The communication was given
during the term of office of the
public officer;
4. Public interest would suffer by the
disclosure of the communication.
NOTES on sec. 24 in general: WHO MAY
ASSERT PRIVILEGE:
1. Holder of the privilege;
2. Authorized person; and
3. Persons to whom privileged
communication is made.
We apply the privileged communication to both
civil and criminal cases EXCEPT as to the doctor-
patient privilege, which is applicable only in civil
cases
Unless waived, the disqualification under sec. 24
remains even after the various relationships
therein have ceased to exist.
Note that the wording of the (law) Rule is to the
effect that “(someone) may not be examined
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
without the consent of (another).” The (law) Rule
does not say that one can not testify or be
examined over the objection of another. The
wording of the (law) Rule is to the effect that an
objection of the other party in the privileged
communication is not necessary for the privilege
to hold. Consent of the other party in the privileged
communication is an act that needs to be proved
for the testimony to be admitted. This is not to say
that failure of a such a party to object will never
render such testimony admissible. This is to say
that where the other party to the privileged
communication is not a litigant in the case, and
privileged communication is offered in evidence
without the consent of such party, the litigant
against whom the testimony is offered may object
to its admission on the ground of privileged
communication. Where the other party in the
privileged communication is a litigant, then his
failure to object will be taken as a consent to the
testimony or a waiver of a privilege.
OTHER PRIVILEGED MATTERS
1. The guardian ad litem shall not testify in
any proceeding concerning any
information, statement, or opinion
received from the child in the course of
serving as such, unless the court finds it
necessary to promote the best interest of
the child (sec. 5(e), Rule on the
Examination of Child Witness);
2. Editors may not be compelled to disclose
the source of published news;
(a) Newsman’s Privilege
RA 53 as amended by RA 1477
Sec. 1. Without prejudice to his liability
under the civil and criminal laws, the
publisher, editor, columnist or duly accredited
reporter of any newspaper, magazine or
periodical of general circulation cannot be
compelled to reveal the source of any news-
report or information appearing in said
publication which was related in confidence to
such publisher, editor or reporter unless the
court or a House or committee of Congress
finds that such revelation is demanded by the
security of the State.
3. Voters may not be compelled to disclose
whom they voted for;
4. Trade secrets;
5. Bank deposits under RA 1405 (subject to
some exceptions);
Note that the privilege applies only to
bank deposits. As to other property being
held by a bank, bank personnel may be
531
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examined upon order of a court (Sec. 55.1
[d], RA 8791, General Banking Act of
2000).
6. Informer’s privilege--- the Prosecutor may
not be compelled to present an informer to
protect his identity and when his testimony
would be merely cumulative and
corroborative (Herrera, p. 363).
2. Testimonial Privilege
Section 25. Parental and filial privilege. — No
person may be compelled to testify against his
parents, other direct ascendants, children or other
direct descendants. (20a)
REASON for the rule: To preserve family
cohesion.
Notes: There is no distinction between legitimate
or illegitimate relations.
Note that this is a testimonial privilege, not a
testimonial disqualification, found in §22-24 of
Rule 130 [careful not to be confused in the
multiple use of the word “privilege”]. Here, the
witness is the holder of the privilege and has the
power to invoke or waive the privilege. The
relative against whom he is testifying can not
invoke nor waive the privilege. However this must
be construed in the light of Art. 215 of the Family
Code
Art. 215. No descendant shall be compelled, in a
criminal case, to testify against his parents and
grandparents, except when such testimony is
indispensable in a crime against the descendant or
by one parent against the other.
Hence, a descendant may be compelled to testify
in a criminal case where
the descendant-witness himself is the victim, or
the descendant-witness’s parent commits a crime
against the descendant-witness’s other
parent.
Note that an ascendant may not be compelled to
testify even if it is a crime by the descendant
against the ascendant-witness. The ascendant-
witness may testify voluntarily though.
The filial privilege is personal to the witness. The
court may not invoke it for the witness (Review
Lecture).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
3. Admissions and Confessions
NOTE: Section 26 to 33 speak of
EXTRAJUDICIAL admissions and confessions.
Section 26. Admission of a party. — The act,
declaration or omission of a party as to a relevant
fact may be given in evidence against him. (22)
ADMISSION
It refers to any extrajudicial statement or conduct
by a party to the present litigation that is
inconsistent with a position the party presently
takes.
Admissibility; Admission of Guilt (2008)
No. XVI. The mutilated cadaver of a woman
was discovered near a creek. Due to
witnesses attesting that he was the last
person seen with the woman when she was
still alive, Carlito was arrested within five
hours after the discovery of the cadaver and
brought to the police station. The crime
laboratory determined that the woman had
been raped. While in police custody, Carlito
broke down in the presence of an assisting
counsel orally confessed to the investigator
that he had raped and killed the woman,
detailing the acts he had performed up to his
dumping of the body near the creek. He was
genuinely remorseful. During the trial, the
state presented the investigator to testify on
the oral confession of Carlito. Is the oral
confession admissible in evidence of guilt?
(4%) SUGGESTED ANSWER: The
declaration of the accused expressly
acknowledging his guilt, in the presence of
assisting counsel, may be given in
evidence against him and any person,
otherwise competent to testify as a
witness, who heard the confession is
competent to testify as to the substance
to what he heard and understood it. What
is crucial here is that the accused was
informed of his right to an attorney and
that what he says may be used in evidence
against him. As the custodial confession
was given in the presence of an assisting
counsel, Carlito is deemed fully aware of
the consequences of his statements
(People v. Silvano, GR No. 144886, 29
April 2002).
RULE 129, Sec. 4 RULE 130, Sec. 26
Judicial admission Extra-judicial admission
In the course of a
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proceeding in the same Out of court declaration present claims and

case defenses.
Does not require proof Requires proof It is not necessary that It is competent only
Conclusive upon the Rebuttable the declarant be a party when the declarant or
admitter to the action, it is someone indentified in
Admissible even if self- Admissible only if admissible to an action interest is a party to the
serving disserving where his declaration is action
Subject to cross- Not subject to cross- relevant
examination examination. May be admitted Used only against party
against himself or admitting.
RULE ON ADMISSIONS successor in interest
The act, declaration or omission of a party as to a and against third
relevant fact may be given in evidence against person
him. Flight of an accused after the commission of the
crime is evidence of guilt (Adame vs. CA, GR NO.
REASON: It is fair to presume that they 139830, Nov. 21, 2002).
correspond with the truth and it is his fault if they
do not. REASON: The wicked flee, even when no man
pursueth; but the righteous are as bold as a lion.
Therefore, if the act, declaration or omission is in
his favor, it is NOT an admission. However, the fact that the accused did not flee
from the scene of the crime is not sufficient ground
SELF-SERVING DECLARATION to exculpate a person from liability.
It refers to one which has been made
extrajudicially by the party to favor his interest. It is In an administrative complaint against a lawyer for
not admissible in evidence because they are his negligence in the performance of duties as
inherently untrustworthy and would open the door counsel, respondent’s failure to file a answer
to fraud and fabrication of testimony. despite notice from the IBP amounts to admission
of the allegations therein (Pilapil vs. Carillo, AC.
ADMISSION CONFESSION No. 5843, Jan. 14, 2003).
Statement of facts Statement of facts
which do not involve an which involves an ADOPTIVE ADMISSION
acknowledgement of acknowledgement of It is one where a party by words of conduct
guilt guilt voluntarily adopts or ratifies another’s statement.
May be made by 3rd Can be made by the
persons party himself Doctrine of Adoptive Admission (2009) No.I.D. Under
Express or implied Always express the doctrine of adoptive admission, a third party’s
statement becomes the admission of the party
embracing or espousing it. SUGGESTED ANSWER:
DELARATION ADMISSIONS TRUE. The effect or consequence of the admission
AGAINST INTEREST will bind also the party who adopted or espoused the
Exception to the Covered by the hearsay same, as applied in Estrada vs. Desierto, 356 SCRA
hearsay rule and rule 108 [2001]\. An adoptive admission is a party‟s
admissible reaction to a statement or action by another person
Secondary evidence Primary evidence and when it is reasonable to treat the party‟s reaction as
and admissible only if admissible even if the an admission of something stated or implied by the
the declarant is already declarant is available other person.
dead or unable to as a witness
testify
Section 27. Offer of compromise not
Must have been made Ma be made at any
admissible. — In civil cases, an offer of
before the controversy time, before or during
compromise is not an admission of any liability,
trial
and is not admissible in evidence against the
The fact asserted in the Need not be considered offeror.
declaration must have by the declarant as
been at the time it was opposed to his interest
made so far contrary to at the time when made, In criminal cases, except those involving quasi-
the declarant’s own it is enough if it is offenses (criminal negligence) or those allowed by
interest. inconsistent with his law to be compromised, an offer of compromised

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 533

________________________________________________________________________________________________
by the accused may be received in evidence as an
implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted
offer of a plea of guilty to lesser offense, is not
admissible in evidence against the accused who
made the plea or offer.
An offer to pay or the payment of medical, hospital
or other expenses occasioned by an injury is not
admissible in evidence as proof of civil or criminal
liability for the injury. (24a)
NOTES:
GR: In CIVIL CASES, an offer of compromise is
not an admission of any liability, and is not
admissible in evidence against the offeror.
EXCEPTION: It is when such offer is clearly not
only to buy peace but amounts to an admission of
liability, the offered compromise being directed
only to the amount paid (El Varadero de Manila
vs. Insular Lumber, 46 Phil. 176).
REASON: It is the policy of the law to favor
settlement of disputes, to foster compromises and
to promote peace.
Bar Exam Question 2012
70. Which of the following statements is not
accurate?
a. A plea of guilty later withdrawn is
admissible in evidence against the
accused who made the plea.
b. An unaccepted offer of a plea of guilty to a
lesser offense is inadmissible in evidence
against the accused.
c. An offer to pay or payment of medical
expenses arising from injury is not evidence
or proof of civil/criminal liability for the
Injury.
d. In civil cases, an offer of compromise by
the accused is admissible as an implied
admission of guilt.
SUGGESTED ANSWERS: (a), A plea of
guilty later withdrawn is not admissible in
evidence against the accused who made
the plea (Rule 130, Sec. 27, Rules of
Court). (d), In civil cases, an offer of
compromise is not an admission of any
liability, and is not admissible in evidence
against the offeror. (Rule 130, Sec.27,
Rules of Court).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
GR: In CRIMINAL CASES, an offer of
compromise by the accused may be received in
evidence as an implied admission of guilt.
EXCEPTIONS:
1. Those involving quasi-offenses (criminal
negligence);
2. Those cases falling under the
Katarungang Pambarangay Law;
3. Plea of guilty later withdrawn;
4. An unaccepted offer of plea bargaining;
5. An offer to pay or payment of medical,
hospital or other expenses occasioned by
n injury;
6. Those expressly allowed by law to be
compromised (Tax cases not involving
fraud and not yet filed in court).
An offer of compromise that may be considered an
implied admission need not be made by the
accused himself. It may be made by his counsel,
or relatives, provided it is made with the consent
of the accused or with his knowledge and he does
not stop it.
US v. Torres, 34 Phil. 994 (1916) – offer of
compromise in criminal cases inadmissible when
accused shows that it was made not under a
consciousness of guilt, but merely to avoid
inconvenience of imprisonment or for some other
reason; in this case, the law allowed compromise,
thus the offer to compromise is not admitted
People v. Godoy, 250 SCRA 676 (1995) – offer to
compromise made by a person other than the
accused is inadmissible if the accused repudiated
the actions of such person by raising the trial
court’s admission of evidence of such offer as an
error.
People v. de Guzman, 265 SCRA 228 (1996) –
the offer to compromise made by a person other
than the accused was admitted in evidence
because the accused failed to repudiate such acts
by raising the trial court’s admission of evidence
on such offer as an error.
People v. Yparriguirre, 268 SCRA 35 (1997) –
whether a complaint has been filed or not is
irrelevant as to the admissibility of an offer to
compromise.
Admissibility; Offer to Settle; Implied
Admission of Guilt (2008) No.VIII. Bembol
was charged with rape. Bembol’s father,
Ramil, approached Artemon, the victim’s
father, during the preliminary investigation
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and offered P1 Million to Artemon to settle
the case. Artemon refused the offer. (A)
During trial, the prosecution presented
Artemon to testify on Ramil’s offer and
thereby establish and implied admission of
guilt. Is Ramil’s offer to settle admissible in
evidence? (3%) SUGGESTED ANSWER: Yes,
the offer to settle by the father of the
accused, is admissible in evidence as an
implied admission of guilt. (Peo v.
Salvador, GR No. 136870-72, 28 January
2003)
ALTERNATIVE ANSWER: No, Under Sec.
27, Rule 130 of the Rules of Court, it is
the offer of compromise by the accused
that may be received in evidence as an
implied admission of guilt. The testimony
of Artemon would cover the offer of Ramil
and not an offer of the accused himself.
(Peo v. Viernes, GR Nos. 136733-35, 13
December 2001)
(B) During the pretrial ,Bembol personally
offered to settle the case for P1 Million to the
private prosecutor, who immediately put the
offer on record in the presence of the trial
judge. Is Bembol’soffer a judicial admission of
his guilt. (3%) SUGGESTED ANSWER: Yes,
Bembol‟s offer is an admission of guilt
(Sec. 33 Rule 130). If it was repeated by
the private prosecutor in the presence of
judge at the pretrial the extrajudicial
confession becomes transposed into a
judicial confession. There is no need of
assistance of counsel. (Peo v. Buntag, GR
No. 123070, 14 April 2004).
GOOD SAMARITAN RULE
An offer to pay or payment of medical, hospital
and other expenses occasioned by the injury is
not admissible in evidence as proof of civil and
criminal liability for the injury.
REASON: It is to encourage the giving of
charitable and meritorious aid to the victims of
accidental harm plus a concern that such payment
may have been prompted solely by humanitarian
motives.
OFFER OF ORDINARY
COMPROMISE ADMISSION
The proposal is
tentative and any The intention is
statement made in apparently to admit
connection with it is liability
hypothetical
To buy peace and in To seek to buy or
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
contemplation of mutual secure relief against a
concessions liability recognized as
such.
Although a judicial or extrajudicial amicable
settlement does not bear the court ‘s approval, the
agreement can become a source of rights and
obligation between the parties (Iloilo Traders
Finance Inc. vs. Heirs of Soriano, GR NO.
149683, June 16, 2003).
Admissibility; Offer to Pay Expenses (1997)
A, while driving his car, ran over B. A visited B at the
hospital and offered to pay for his hospitalization
expenses. After the filing of the criminal case against A
for serious physical injuries through reckless
imprudence. A's insurance carrier offered to pay for
the injuries and damages suffered by B. The offer was
rejected because B considered the amount offered as
inadequate. a) Is the offer by A to pay the
hospitalization expenses of B admissible in evidence?
b) Is the offer by A's insurance carrier to pay for the
injuries and damages of B admissible in evidence?
SUGGESTED ANSWER:
(a) The offer by A to pay the hospitalization expenses
of B is not admissible in evidence to prove his guilt in
both the civil and criminal cases. (Rule 130, Sec. 27, fourth
par.).
(b) No. It is irrelevant. The obligation of the insurance
company is based on the contract of insurance and is
not admissible in evidence against the accused because
it was not offered by the accused but by the insurance
company which is not his agent.
Section 28. Admission by third party. — The
rights of a party cannot be prejudiced by an act,
declaration, or omission of another, except as
hereinafter provided. (25a)
Bar Exam Question 2011
(43) Ben testified that Jaime, charged with
robbery, has committed bag-snatching three
times on the same street in the last six
months. Can the court admit this testimony
as evidence against Jaime? (A) No, since
there is no showing that Ben witnessed the
past three robberies. (B) Yes, as evidence of
his past propensity for committing robbery.
(C) Yes, as evidence of a pattern of criminal
behavior proving his guilt of the present
offense. (D) No, since evidence of guilt of a
past crime is not evidence of guilt of a
present crime.
The Principle of RES INTER ALIOS ACTA
ALTERI NOCERE NO DEBET (Things done
between strangers ought not to injure those who
are not parties to it).
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1st PART is section 28.
Exceptions to 1st part are: (vicarious admissions)
1. Sec. 29;
2. Sec. 30;
3. Sec. 31;
4. Sec. 32.
2nd PART is section 34.
Section 29. Admission by co-partner or agent.
— The act or declaration of a partner or agent of
the party within the scope of his authority and
during the existence of the partnership or agency,
may be given in evidence against such party after
the partnership or agency is shown by evidence
other than such act or declaration. The same rule
applies to the act or declaration of a joint owner,
joint debtor, or other person jointly interested with
the party. (26a)
REQUISITES: (clue words)
1. Act or declaration is within the scope of
authority;
2. During existence of partnership or agency;
3. Partnership or agency is shown by other
evidence.
Ormachea v. Trillana, 13 Phil 194 (1909)
Discharge of a debt given by a managing partner,
2 years after the partnership had been dissolved
does not qualify as a partner’s admission and can
not prejudice or bind the other partners.
Section 30. Admission by conspirator. — The
act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given
in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such
act of declaration. (27)
Bar Exam Question 2011
(53) Henry testified that a month after the
robbery Asiong, one of the accused, told him
that Carlos was one of those who committed
the crime with him. Is Henry’s testimony
regarding what Asiong told him admissible in
evidence against Carlos? (A) No, since it is
hearsay. (B) No, since Asiong did not make
the statement during the conspiracy. (C)
Yes, since it constitutes admission against a
co-conspirator. (D) Yes, since it part of the
res gestae.
NOTE: It refers to an extrajudicial declaration of a
conspirator, and not his testimony given on the
stand which is subject to cross-examination.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
REQUISITES:
1. Conspiracy is proved by evidence other
than the admission itself;
2. That the admission relates to the
conspiracy itself;
3. That it has been made while the declarant
was engaged in carrying out the
conspiracy; and
4. The object of the conspiracy has not been
consummated.
Take note of the Doctrine of Interlocking
Confessions (Testimonies).
People v. Sumayo, 70 SCRA 488 (1976) Where
the extra-judicial confessions of the accused are
consistent in many material details and manifest
amazing consistency and accuracy in the
narration of events and of facts which could not
have been known to the police investigators if the
same were not voluntarily given by the accused,
such statements are admissible against the
accused on the doctrine of interlocking
confessions.
de Leon: The value of the doctrine of interlocking
confessions is when a confession is inadmissible
against one accused (e.g. obtained without
counsel), but it is nevertheless admissible against
the other co-accused. The confession of one may
be used against another to produce evidence of
guilt beyond reasonable doubt.
People v. Alegre, 94 SCRA 109 (1979) – absent
independent evidence of conspiracy, extra-judicial
confession of the accused is not admissible
against others
People v. Raquel, 265 SCRA 248 (1996) – extra-
judicial confession of accused can not be used to
implicate co-accused unless repeated in open
court.
Section 31. Admission by privies. — Where one
derives title to property from another, the act,
declaration, or omission of the latter, while holding
the title, in relation to the property, is evidence
against the former. (28)
PRIVIES
It refers to those who have mutual or successive
relationship to the same rights of property or
subject matter such as personal representatives,
heirs, devisees, legatees assigns, voluntary
grantees, or judgment creditors or purchasers
from them with notice to facts.
The declarant was so situated that his interest
were such that he would not have made the
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admission to the prejudice of his title or
possession unless they were true. The declarant
need not be presented as witness, his statement
may be proved by those who have knowledge of
them.
REQUISITES:
1. There must be privity between the party
and the declarant;
2. The declarant as predecessor (previous
holder) in interest made the declaration
while holding title to the property; and
3. The admission relates to the property.
Section 32. Admission by silence. — An act or
declaration made in the presence and within the
hearing or observation of a party who does or
says nothing when the act or declaration is such
as naturally to call for action or comment if not
true, and when proper and possible for him to do
so, may be given in evidence against him. (23a)
REQUISITES:
1. He must have heard or observed the act
or declaration of the other person;
2. He must have the opportunity to deny it;
3. He must have understood the statement;
4. He must have an interest to the object,
such that he would naturally have done
so, if the statement was not true;
5. The facts were within his knowledge;
6. The fact admitted or the inference to be
drawn from his silence is material to the
issue.
Qui tacet consentire videtur: He who is silent
appears to consent.
Note: this rule does not prevail over the right of
the accused to remain silent and to be presumed
innocent until the contrary is proved beyond
reasonable doubt.
People v. Paragsa, 84 SCRA 105 (1978) Failure
by a supposed rape victim to rebut sweetheart
defense based on testimonial evidence may be
taken against her.
DOCTRINE OF ADOPTIVE ADMISSION
An adoptive admission is a party’s reaction to a
statement or action by another person when it is
reasonable to treat the party’s reaction as an
admission of something stated or implied by the
other person (Estrada vs. Desierto, 356 SCRA
108). In this case, Estrada’s admission was based
on the diary of Angara.
NO IMPLIED ADMISSION IN:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
1. Allegations of unliquidated damages;
2. Allegations which are not material to the
cause of action;
3. Conclusion of fact/law;
4. In case of usury;
5. If defendant has not filed an answer is
declared in default.
Section 33. Confession. — The declaration of an
accused acknowledging his guilt of the offense
charged, or of any offense necessarily included
therein, may be given in evidence against him.
(29a)
CONFESSION
It is a categorical acknowledgement of guilt made
by an accused in a criminal case, without any
exculpatory statement or explanation.
If the accused admits having committed the act in
question but alleges a justification therefor, the
same is merely an admission.
There can also be confession of judgment in a civil
case where the party expressly admits his liability.
Exceptions: no confession of judgment in)
1. In legal separation (art. 60, FC);
2. Declaration of nullity of marriage (art. 48,
FC);
3. Annulment of marriage (art. 48, FC).
JUDICIAL CONFESSION
It is one made by the accused before a court in
which the case is pending and in the course of
legal proceedings therein and, by itself, can
sustain a conviction.
Exception: in capital offenses.
REASON: The court must conduct hearing in
order to determine that the accused has full
knowledge of the consequences of his plea and
for the prosecution to prove the precise degree of
culpability of the accused (Rule 116, sec. 3).
EXTRA-JUDICIAL CONFESSIONS
It is one made in any other place or occasion and
cannot sustain a conviction unless its
voluntariness is proven and corroborated by
corpus delicti.
REQUISITES FOR EXTRA-JUDICIAL
CONFESSIONS TO BE ADMISSIBLE:
1. Made by the defendant;
2. Confession must involve an express and
categorical acknowledgment of guilt;
3. The confession must have been given
voluntarily;
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4. The confession must be intelligently
made, the accused realizing the
importance or legal significance of his act;
5. There must have been no violation of the
constitutional rights of the accused;
6. It must be in writing (under RA 7438).
Rights of the Accused; Miranda Rights
(2010) No.XI. X was arrested for the alleged
murder of a 6-year old lad. He was read his
Mirandarights immediately upon being
apprehended. In the course of his detention,
X was subjected to three hours of non-stop
interrogation. He remained quiet until, on the
3rd hour, he answered "yes" to the question
of whether "he prayed for forgiveness for
shooting down the boy." The trial court,
interpreting X’s answer as an admission of
guilt, convicted him. On appeal, X’s counsel
faulted the trial court in its interpretation of
his client’s answer, arguing that X invoked
his Miranda rights when he remained quiet
for the first two hours of questioning. Rule on
the assignment of error. (3%) SUGGESTED
ANSWER:
The assignment of error invoked by X‟s counsel is
impressed with merit since there has been no express
waiver of X‟s Miranda Rights. In order to have a valid
waiver of the Miranda Rights, the same must be in
writing and made in the presence of his counsel. The
uncounselled extrajudicial confession of X being
without a valid waiver of his Miranda Rights, is
inadmissible, as well as any information derived
therefrom.
GR: An extrajudicial confession is admissible only
against the confessor. It is incompetent evidence
against co-accused for being hearsay and
because of the res inter alios acta rule.
EXCEPTIONS: (when admissible against co-
defendants)
1. If the co-defendants impliedly acquiesced
in or adopted said confession;
2. Interlocking confessions—if the accused
persons voluntarily and independently
executed identical confession without
collusion, and corroborated by other
evidence;
3. Where the accused admitted the facts
stated by the confessant after being
appraised of such confession;
4. If they are charged as co-conspirator of
the crime which was confessed by one of
the accused and said confession is used
only as corroborating evidence;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
5. Where the confession is used as
circumstantial evidence to show the
probability of participation by the co-
conspirator;
6. When the confessant testified for his co-
defendant;
7. Where the conspirators extrajudicial
admission is corroborated by other
evidence on the record.
4. Previous Conduct as Evidence
Section 34. Similar acts as evidence. —
Evidence that one did or did not do a certain thing
at one time is not admissible to prove that he did
or did not do the same or similar thing at another
time;
but it may be received to prove:
1. a specific intent or knowledge;
2. identity,
3. plan,
4. system,
5. scheme,
6. habit,
7. custom or usage,
8. and the like. (48a)
NOTE: This is the 2nd part of the res inter alios
acta rule.
This is also referred to as Propensity Rule
US v. Evangelista, 24 Phil 453 (1913) In a trial for
arson, the prosecution may prove that the
accused had attempted to set fire to the house on
the day previous to the burning alleged in the
information, for the purpose of showing the intent
of the accused in subsequently setting fire to the
house. Where a person is charged with the
commission of a specific crime, testimony may be
received of the other similar acts committed about
the same time, only for the purpose of
establishing the criminal intent of the accused.
Offer of Evidence; res inter alios acta (2003)
X and Y were charged with murder. Upon application
of the prosecution, Y was discharged from the
Information to be utilized as a state witness. The
prosecutor presented Y as witness but forgot to state
the purpose of his testimony much less offer it in
evidence. Y testified that he and X conspired to kill the
victim but it was X who actually shot the victim. The
testimony of Y was the only material evidence
establishing the guilt of X. Y was thoroughly
538
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crossexamined by the defense counsel. After the
prosecution rested its case, the defense filed a motion
for demurrer to evidence based on the following
grounds.
(a) The testimony of Y should be excluded because its
purpose was not initially stated and it was not formally
offered in evidence as required by Section 34, Rule 132
of the Revised Rules of Evidence; and
(b) Y’s testimony is not admissible against X pursuant
to the rule on “res inter alios acta”. Rule on the motion
for demurrer to evidence on the above grounds. (6%)
SUGGESTED ANSWER:
The demurrer to the evidence should be denied
because: a) The testimony of Y should not be excluded
because the defense counsel did not object to his
testimony despite the fact that the prosecutor forgot to
state its purpose or offer it in evidence. Moreover, the
defense counsel thoroughly crossexamined Y and thus
waived the objection.
b) The res inter alios acta rule does not apply because Y
testified in open court and was subjected to cross
examination.
Section 35. Unaccepted offer. — An offer in
writing to pay a particular sum of money or to
deliver a written instrument or specific personal
property is, if rejected without valid cause,
equivalent to the actual production and tender of
the money, instrument, or property. (49a)
5. Testimonial Knowledge
Section 36. Testimony generally confined to
personal knowledge; hearsay excluded. — A
witness can testify only to those facts which he
knows of his personal knowledge; that is, which
are derived from his own perception, except as
otherwise provided in these rules. (30a)
REASON FOR EXCLUDING HEARSAY
It is not subject to the test of truth because there is
no opportunity for cross-examination. In other
words, the witness cannot swear as to the truth
beyond what was told him, heard or read. Also this
will be a violation of the constitutional right to
confrontation.
HEARSAY RULE
CLASSIFICATION OF OUT OF COURT
STATEMENTS
1. HEARSAY--- Those which are considered as
hearsay and therefore inadmissible. This occurs
when the purpose for introducing the out of court
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
statement is to prove the truth of the facts
asserted therein.
2. NON-HEARSAY--- Admissible. This occurs
when the purpose for introducing the statement is
not to prove the truth of the facts asserted therein
but only the making of the statements and are
admissible in evidence when the making of the
statement is relevant. These are so-called
INDEPENDENT RELEVANT STATEMENTS.
3. EXCEPTIONS TO THE HEARSAY RULE---
Those which are hearsay but are considered as
exceptions to the hearsay rule and are therefore
admissible. These are sec. 37 to 47 of Rule 130.
HEARSAY EVIDENCE
Two concepts of hearsay evidence: Any evidence,
whether oral or documentary, is hearsay if its
probative value is not based on the personal
knowledge of the witness but on the knowledge of
some other person not on the witness stand
(Regalado, p. 736).
Hearsay evidence also includes all assertions
which have not been subject of cross-examination
by the adverse party at the trial in which they are
being offered against him (Herrera, vol. V., p.564).
Note: It is the loss of the opportunity to cross-
examine and not the loss of cross-examination
itself which makes an assertion hearsay evidence.
Hearsay Rule (2007) No.III. (a) What is the
hearsay rule? (5%) SUGGESTED ANSWER:
The hearsay rule is a rule of evidence to
the effect that a witness can testify only
to those facts which he knows of his own
knowledge or derived from his own
perceptions, except as otherwise provided
in the rules of court (Rule 130, Sec. 36
Rules of Court). (b) In relation to the hearsay
rule, what do the following rules of evidence
have in common? (5%) (1) The rule on
statements that are part of the res gestae. (2)
The rule on dying declarations. (3) The rule
on admissions against interest. SUGGESTED
ANSWER: The rules on the evidence
specified in the question asked, have in
common the following: (1) The evidence
although hearsay, are allowed by the Rules
as exceptions to the hearsay rule;
(2) The facts involved are admissible in
evidence for reasons of necessity and
trustworthiness; and
(3) The witness is testifying on facts which
are not of his own knowledge or derived
from his own perception
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Bar Exam Question 2011
(89) To prove the identity of the assailant in a
crime of homicide, a police officer testified
that, Andy, who did not testify in court,
pointed a finger at the accused in a police
lineup. Is the police officer’s testimony
regarding Andy's identification of the accused
admissible evidence? (A) Yes, since it is based
on his personal knowledge of Andy’s
identification of the accused. (B) Yes, since it
constitutes an independently relevant
statement. (C) No, since the police had the
accused identified without warning him of his
rights. (D) No, since the testimony is
hearsay.
Bar Exam Question 2011
(96) To prove that Susan stabbed her
husband Elmer, Rico testified that he heard
Leon running down the street, shouting
excitedly, "Sinasaksak daw ni Susan ang
asawa niya! (I heard that Susan is stabbing
her husband!)" Is Leon's statement as
narrated by Rico admissible? (A) No, since
the startling event had passed. (B) Yes, as
part of the res gestae. (C) No, since the
excited statement is itself hearsay. (D) Yes,
as an independently relevant statement.
Hearsay Evidence (2002)
Romeo is sued for damages for injuries suffered by the
plaintiff in a vehicular accident. Julieta, a witness in
court, testifies that Romeo told her (Julieta) that he
(Romeo) heard Antonio, a witness to the accident, give
an excited account of the accident immediately after its
occurrence. Is Julieta’s testimony admissible against
Romeo over proper and timely objection? Why? (5%)
SUGGESTED ANSWER:
No, Julieta’s testimony is not admissible against
Romeo, because while the excited account of Antonio,
a witness to the accident, was told to Romeo, it was
only Romeo who told Julieta about it, which makes it
hearsay.
Hearsay Evidence vs. Opinion Evidence (2004)
Hearsay evidence and opinion evidence.
SUGGESTED ANSWER:
Hearsay evidence consists of testimony that is not
based on personal knowledge of the person testifying,
(see Sec. 36, Rule 130), while opinion evidence is expert
evidence based on the personal knowledge skill,
experience or training of the person testifying (Sec. 49,
Id.) and evidence of an ordinary witness on limited
matters (Sec. 50, Id.).
NON-HUMAN EVIDENCE
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Testimony of a witness as to statements made by
non-human declarant (machines, etc) does not
violate the rule against hearsay. The law permits
so-called non-human evidence on the ground that
machines and animals, unlike humans, lack a
conscious motivation to tell falsehood and
because the workings of machines can be
explained by human witnesses who are subject to
cross-examination by opposing counsel (Herrera,
p. 581).
6. Exceptions To The Hearsay Rule
1. Dying Declaration;
2. Declaration Against Interest;
3. Act or Declaration About Pedigree;
4. Family Refutation or Tradition Regarding
Pedigree;
5. Common Reputation;
6. Res Gestae;
7. Entries in the Ordinary Course of
Business;
8. Entries in Official Records;
9. Commercial Lists;
10. Learned Treatises;
11. Testimony or Deposition at Former
Proceeding.
Sec. 28 of the Rule on Examination of Child
Witness provides for another exception to the
hearsay rule. Hearsay testimony of a child witness
describing any act or attempted act of sexual
abuse may now be admitted in any criminal
proceeding, subject to certain pre-requisites and
the right to cross-examination by the adverse
party.
REASON: They are admissible by reason of
necessity and trustworthiness.
Hearsay evidence not objected to may be
admissible, but, whether objected or not, has no
probative value and as opposed to direct and
primary evidence, the latter always prevails.
Bar Exam Question 2011
(90) In which of the following cases is the
testimony in a case involving a deceased
barred by the Survivorship Disqualification
Rule or Dead Man Statute? (A) Testimony
against the heirs of the deceased
defendant who are substituted for the
latter.
(B) The testimony of a mere witness who is
neither a party to the case nor is in privity
with the latter. (C) The testimony of an
540
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oppositor in a land registration case filed by
the decedent’s heirs. (D) The testimony is
offered to prove a claim less than what is
established under a written document signed
by the decedent.
Hearsay; Exception; Dead Man Statute (2001)
Maximo filed an action against Pedro, the
administrator of the estate of deceased Juan, for the
recovery of a car which is part of the latter’s estate.
During the trial, Maximo presented witness Mariano
who testified that he was present when Maximo and
Juan agreed that the latter would pay a rental of
P20,000.00 for the use of Maximo’s car for one month
after which Juan should immediately return the car to
Maximo. Pedro objected to the admission of Mariano’s
testimony. If you were the judge, would you sustain
Pedro’s objection? Why? (5%)
SUGGESTED ANSWER:
No, the testimony is admissible in evidence because
witness Mariano who testified as to what Maximo and
Juan, the deceased person agreed upon, is not
disqualified to testify on the agreement. Those
disqualified are parties or assignors of parties to a case,
or persons in whose behalf a case is prosecuted,
against the administrator or Juan’s estate, upon a claim
or demand against his estate as to any matter of fact
occurring before Juan’s death. (Sec. 23 of Rule 130)
Hearsay; Exception; Dying Declaration (1998)
Requisites of Dying Declaration. [2%)
SUGGESTED ANSWER:
The requisites for the admissibility of a dying
declaration are: (a) the declaration is made by the
deceased under the consciousness of his impending
death; (b) the deceased was at the time competent as
a witness; (c) the declaration concerns the cause and
surrounding circumstances of the declarant's death;
and (d) the declaration is offered in a (criminal) case
wherein the declarant's death is the subject of
inquiry.
(People vs. Santos, 270 SCRA 650.)
ALTERNATIVE ANSWER:
The declaration of a dying person, made under the
consciousness of an impending death, may be received
in any case wherein his death is the subject of Inquiry,
as evidence of the cause and surrounding
circumstances of such death. (Sec. 37 of Rule 13O.)
Hearsay; Exception; Res Gestae; Opinion of Ordinary
Witness (2005)
Dencio barged into the house of Marcela, tied her to a
chair and robbed her of assorted pieces of jewelry and
money. Dencio then brought Candida, Marcela's maid,
to a bedroom where he raped her. Marcela could hear
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Candida crying and pleading: "Huwag! Maawa ka sa
akin!" After raping Candida, Dencio fled from the
house with the loot. Candida then untied Marcela and
rushed to the police station about a kilometer away
and told Police Officer Roberto Maawa that Dencio
had barged into the house of Marcela, tied the latter to
a chair and robbed her of her jewelry and money.
Candida also related to the police officer that despite
her pleas, Dencio had raped her. The policeman
noticed that Candida was hysterical and on the verge
of collapse. Dencio was charged with robbery with
rape. During the trial, Candida can no longer be
located. (8%)
a) If the prosecution presents Police Officer Roberto
Maawa to testify on what Candida had told him,
would such testimony of the policeman be hearsay?
Explain.
SUGGESTED ANSWER:
No. The testimony of the policeman is not hearsay. It
is part of the res gestae. It is also an independently
relevant statement. The police officer testified of his
own personal knowledge, not to the truth of Candida's
statement, i.e., that she told him, despite her pleas,
Dencio had raped her. (People v. Gaddi,G.R. No. 74065,
February 27,1989)
b) If the police officer will testify that he noticed
Candida to be hysterical and on the verge of
collapse, would such testimony be considered as
opinion, hence, inadmissible? Explain.
SUGGESTED ANSWER:
No, it cannot be considered as opinion, because he
was testifying on what he actually observed. The last
paragraph of Sec. 50, Rule 130, Revised Rules of
Evidence, expressly provides that a witness may testify
on his impressions of the emotion, behavior, condition
or appearance of a person.
Hearsay; Exceptions (1999)
a) Define hearsay evidence? (2%) b) What are the
exceptions to the hearsay rule? (2%)
SUGGESTED ANSWER:
. Hearsay evidence may be defined as evidence that
consists of testimony not coming from personal
knowledge (Sec. 36, Rule 130, Rules of Court). Hearsay
testimony is the testimony of a witness as to what he
has heard other persons say about the facts in issue.
. The exceptions to the hearsay rule are:
dying declaration, declaration against interest, act or
declaration about pedigree, family reputation or
tradition regarding pedigree, common reputation, part
of the res gestae, entries in the course of business,
entries in official records, commercial lists and the like,
learned treatises, and testimony or deposition at a
former proceeding. (37 to 47, Rule 13O, Rules of Court)
Hearsay; Exceptions; Dying Declaration (1999)
The accused was charged with robbery and homicide.
541
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The victim suffered several stab wounds. It appears
that eleven (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 down 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? Explain.(2%)
SUGGESTED ANSWER:
Yes. The statement is admissible as a dying declaration
if the victim subsequently died and his 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 v. Viovicente, 286 SCRA 1)
INDEPENDENT RELEVANT STATEMENTS
An out of court declaration while having
certain characteristic of hearsay evidence
is not actually cases of hearsay but is
original evidence.
These are statements which are relevant
independently, whether they are true or
not. It is also called as the apparent
hearsay.
Independent relevant statement can later
on be connected by the testimony of other
eye-witness. This is used to save the a
question which is objected on the ground
of being hearsay (Ucat).
Prob. A and B are brothers. A is working abroad
and he regularly sent money to B. Upon A’s
instruction, B bought a parcel of land and
constructed a residential house thereon using A’s
money. The land is declared for taxation
purposes in the name of B. Before A went home,
B, who was then old, donated the land and the
house to C, his close friend who was then living
with B in the residential house. Thereafter, B died.
Upon his return and upon knowing of the donation,
A filed an action against C for the recovery of the
land and the house constructed thereon on the
ground that the donation was void because B was
not the owner of the land and the house
constructed thereon. During the trial, W, also a
friend of B, testified for A and declared that B told
him (W) that the source of the money which he
used in buying the land and in the construction of
the house was A. Through counsel, C moved that
W’s testimony be stricken of the record on the
ground that the same is hearsay. Resolve.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Ans. Motion denied. W’s testimony is an
independent relevant statement which is one of
the recognized exceptions to the hearsay rule.
While it is true that the testimony of a witness
regarding a statement made by another person, if
intended to establish the truth of the fact asserted
in the statement, is clearly hearsay evidence, it is
otherwise if the purpose of placing the statement
in the record is merely to establish the fact that the
statement was made or the tenor of such
statement. Regardless of the truth or falsity of a
statement, when the fact that it has been made is
relevant, the hearsay rule does not apply and the
statement may be shown. As a matter of fact,
evidence as to the making of the statement is
not secondary but primary, for the statement
itself may constitute a fact in issue, or be
circumstantially relevant as to the existence of
such a fact. For this reason, the statement
attributed to B regarding the source of the funds
used to purchase the subject property related to
the court by W is admissible if only to establish the
fact that such statement was made and the tenor
thereof. (Republic v. Heirs of Felipe Alejaga, Sr.,
441 Phil. 656, 672 (2002)
Bar Exam Question 2011
(38) To prove payment of a debt, Bong
testified that he heard Ambo say, as the
latter was handing over money to Tessie, that
it was in payment of debt. Is Bong’s
testimony admissible in evidence? (A) Yes,
since what Ambo said and did is an
independently relevant statement. (B) No,
since what Ambo said and did was not in
response to a startling occurrence. (C) No,
since Bong’s testimony of what Ambo said
and did is hearsay. (D) Yes, since Ambo‟s
statement and action, subject of Bong‟s
testimony, constitutes a verbal act.
Hearsay; Inapplicable (2009) No.XIII. [b]
Blinded by extreme jealousy, Alberto shot his
wife, Betty, in the presence of his sister,
Carla. Carla brought Betty to the hospital.
Outside the operating room, Carla told
Domingo, a male nurse, that it was Alberto
who shot Betty. Betty died while undergoing
emergency surgery. At the trial of the
parricide charges filed against Alberto, the
prosecutor sought to present Domingo as
witness, to testify on what Carla told him.
The defense counsel objected on the ground
that Domingo’s testimony is inadmissible for
being hearsay. Rule on the objection with
reasons. (3%)
542
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SUGGESTED ANSWER:
Objection overruled. The disclosure
received by Domingo and Carla may be
regarded as independently relevant
statement which is not covered by the
hearsay rule; hence admissible. The
statement may be received not as
evidence of the truth of what was stated
but only as to the tenor thereof and the
occurrence when it was said,
independently of whether it was true or
false. (People v. Cloud, 333 Phil. 30 [1996];
People v. Malibiran, et al., G.R. No.
178301, April 24, 2009).
ALTERNATIVE ANSWER: Objection
sustained. The disclosure made by Carla
has no other probative value except to
identify who shot Betty. Its tenor is
irrelevant to the incident, and the same
was made not to a police investigator of
the occurrence but to a nurse whose
concern is only to attend to the patient.
Hence, the disclosure does not qualify as
independently relevant statement and
therefore, hearsay. The nurse is
competent to testify only on the condition
of Betty when rushed to the Hospital but
not as to who caused the injury. The
prosecution should call on Carla as the
best witness to the incident.
Bar Exam Question 2012
32. When caught, X readily admitted to the
Forestry Ranger that he cut the trees. Such a
statement may be admitted and is not
necessarily hearsay because:
a. it is a judicial admission of guilt.
b. it shows the statement was true.
c. it will form part of the circumstantial
evidence to convict.
d. it proves that such a statement was
made.
SUGGESTED ANSWER:
(d), The statement of X may be admitted
under the concept of independently
relevant statement, or statements which
are on the very facts in issue or those
which are circumstantial evidence thereof.
It is offered in evidence only to prove the
tenor thereof, or the fact that such a
statement was made, and not to prove the
truth of the facts asserted therein. Hence,
the hearsay rule does not apply. (People
vs. Gaddi, 170 SCRA 649).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Testimony; Independent Relevant Statement (1999)
A overheard B call X a thief. In an action for
defamation filed by X against B, is the testimony of A
offered to prove the fact of utterance i.e., that B called
X a thief, admissible in evidence? Explain. (2%)
SUGGESTED ANSWER:
Yes. The testimony of A who overheard B call X a
thief is admissible in evidence as an independently
relevant statement. It is offered in evidence only to
prove the tenor thereof, not to prove the truth of the
facts asserted therein. Independently relevant
statements include statements which are on the very
facts in issue or those which are circumstantial
evidence thereof. The hearsay rule does not apply.
(See People vs. Gaddi, 170 SCRA 649)
Hearsay; Inapplicable (2003)
X was charged with robbery. On the strength of a
warrant of arrest issued by the court, X was arrested by
police operatives. They seized from his person a
handgun. A charge for illegal possession of firearm
was also filed against him. In a press conference called
by the police, X admitted that he had robbed the
victim of jewelry valued at P500,000.00.
The robbery and illegal possession of firearm cases
were tried jointly. The prosecution presented in
evidence a newspaper clipping of the report to the
reporter who was present during the press conference
stating that X admitted the robbery. It likewise
presented a certification of the PNP Firearms and
Explosive Office attesting that the accused had no
license to carry any firearm. The certifying officer,
however, was not presented as a witness. Both pieces
of evidence were objected to by the defense. (6%) a) Is
the newspaper clipping admissible in evidence against
X? b) Is the certification of the PNP Firearm and
Explosive Office without the certifying officer
testifying on it admissible in evidence against X?
SUGGESTED ANSWER:
(a) Yes, the newspaper clipping is admissible in
evidence against X. regardless of the truth or falsity
of a statement, the hearsay rule does not apply and
the statement may be shown where the fact that it is
made is relevant. Evidence as to the making of such
statement is not secondary but primary, for the
statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such
fact. (Gotesco Investment Corporation vs. Chatto, 210
SCRA 18 [1992]) (b) Yes, the certification is admissible
in evidence against X because a written statement
signed by an officer having the custody of an official
record or by his deputy that after diligent search no
record or entry of a specified tenor is found to exist in
the records of his office, accompanied by a certificate
as above provided, is admissible as evidence that the
records of his office contain no such record or entry.
(Sec. 28 of Rule 132).
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2 CLASSES OF INDEPENDENT RELEVANT
STATEMENT:
1. Those which are the very fact in issue;
2. Those statements which are
circumstantial evidence of the fact in
issue. It includes the following:
a) Statement of a person showing
his state of mind, that is, his
mental condition, knowledge,
belief, intention, ill will and other
emotions;
b) Statements of a person which
show his physical condition as
illness and the like;
c) Statements of a person from
which an inference may be made
as to the state of mind of another,
that is, knowledge, belief, motive,
good/bad faith of the later;
d) Statements which may identify the
date, place and person in
question;
e) Statements showing the lack of
credibility of a witness.
Section 37. Dying declaration. — The declaration
of a dying person, made under the consciousness
of an impending death, may be received in any
case wherein his death is the subject of inquiry, as
evidence of the cause and surrounding
circumstances of such death. (31a)
Note: the ante mortem statements after the mortal
wound has been inflicted under the belief that
death is certain, stating the facts concerning the
cause of and circumstances surrounding the
attack.
REQUISITES:
1. That death is imminent and the declarant
is conscious of such fact;
2. That the declaration refers to the cause
and the surrounding circumstances of
such death;
3. That the declaration relates to the facts
which the declarant is competent to
testify;
4. That the declaration is offered in a case
wherein the declarant’s death is the
subject of the inquiry;
5. That the statement is complete in itself (P.
vs. DeJoya, 203 SCRA 343).
Note: To be complete in itself does not
mean that the declaration must recite
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
everything that constituted the res gestae
of the subject of his statement, but that his
statement of any given fact should be a
full expression of all he intended to say as
conveying his meaning in respect to such
fact.
REASONS FOR ADMISSION:
1. Necessity--- It is because the declarant’s
death renders impossible his taking the
witness stand.
2. Trustworthiness--- Maxim: Truth sits on
the lips of a dying man. At point of
death, every motive for falsehood is
silenced. The mind is induced by the most
powerful consideration to speak the truth.
There must be a settled, hopeless expectation that
death is at hand. It is sufficient that he believe
himself in imminent danger of death at the time of
such declaration.
Determination of consciousness of impending
death:
1. Utterances;
2. Circumstances—That at the time of
making the declaration, the declarant did
not expect to survive the injury from which
he actually died;
3. Actual character and seriousness of his
wounds;
4. By his conduct.
A dying declaration may be oral or written or made
by signs which could be interpreted and testified to
by a witness thereto.
Dying declaration favorable to the accused are
admissible.
Dying declaration may also be regarded as part of
res gestae as they were made soon after the
startling occurrence without the opportunity for
fabrication or concoction.
Dying declaration is not considered confidential
communication between spouses.
A dying declaration may be attacked on the
ground that any of the requisites for its
admissibility are not present and the same may be
impeached in the same manner testimony of any
other witness on the stand.
Bar Exam Question 2012
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29. X was shot by Y in the course of a
robbery. On the brink of death, X told W, a
barangay tanod, that it was Y who shot and
held him up. In
the trial for robbery with homicide, X's
declaration can be admitted only as a dying
declaration:
a. to prove robbery.
b. to prove homicide.
c. to prove robbery and homicide.
d. to prove the "corpus delicti".
SUGGESTED ANSWER:
(b), a dying declaration is admissible as
evidence if the following circumstances
are present: (a) it concerns the cause and
the surrounding circumstances of the
declarant‟s death; (b) it is made when
death appears to be imminent and the
declarant is under a consciousness of
impending death; (c) the declarant would
have been competent to testify had he or
she survived; and (d) the dying declaration
is offered in a case in which the subject of
inquiry involves the declarant‟s death.
(People vs. Jay Mandy Maglian, G.R. No.
189834, March 30, 2011, Velasco, Jr., J.).
Clearly, the dying declaration can only be
offered in a case in which the subject of
inquiry involves the declarant‟s death,
and necessarily the same can only be
admitted to prove the cause and the
surrounding circumstances of such death.
Be that as it may, the dying declaration
may be offered as part of the res gestae in
the crime of robbery.
ALTERNATIVE ANSWER: (c), The former
rule was that dying declaration was
inadmissible only in criminal prosecutions
for homicide, murder or parricide wherein
the declarant victim (People vs. Lara, 54
Phil. 96). As amended, the Rule now
provides for such admissibility in any case
as long as the requisites concur.
(Regalado, Remedial Law Compendium,
Vol.II, 2008 Edition, Page 781).
Section 38. Declaration against interest. — The
declaration made by a person deceased, or
unable to testify, against the interest of the
declarant, if the fact is asserted in the declaration
was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in
his position would not have made the declaration
unless he believed it to be true, may be received
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
in evidence against himself or his successors in
interest and against third persons. (32a)
Bar Exam Question 2011
(88) Which of the following is NOT
REQUIRED of a declaration against interest
as an exception to the hearsay rule? (A) The
declarant had no motive to falsify and
believed such declaration to be true. (B) The
declarant is dead or unable to testify. (C) The
declaration relates to a fact against the
interest of the declarant. (D) At the time he
made said declaration he was unaware
that the same was contrary to his
aforesaid interest.
Bar Exam Question 2011
(46) In which of the following situations is the
declaration of a deceased person against his
interest NOT ADMISSIBLE against him or his
successors and against third persons? (A)
Declaration of a joint debtor while the debt
subsisted. (B) Declaration of a joint owner in
the course of ownership. (C) Declaration of a
former co-partner after the partnership
has been dissolved. (D) Declaration of an
agent within the scope of his authority.
REQUISITES:
1. Declarant is dead or unable to testify;
2. Relates to a fact against the interest of the
declarant;
3. That at the time the declaration is made,
he was aware that the same was contrary
to his interest; and
4. That the declarant had no motive to falsify
and he believed such declaration to be
true.
REASONS FOR ADMISSION
1. Necessity--- such declarations are the
only mode of proof available.
2. Trustworthiness--- persons do not make
statements that are disadvantageous to
themselves without substantial reason to
believe that the statements are true. Self-
interest induces men to be cautious in
saying anything against themselves. In
other words, we can trust a man when he
speaks against his interest.
INTEREST COVERED
Proprietary, penal, pecuniary and penal.
It is essential that at the time of the statement, the
declarant’s interest affected thereby should be
actual, real or apparent not merely contingent,
future or unconditional; otherwise, the declaration
would not in reality be against interest
545
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bibles or other family books or charts, engravings

If the declarant is still alive and available as a on rings, family portraits and the like, may be
witness, his declaration would be admissible only received as evidence of pedigree. (34a)
as an admission against himself or privies or if he
testifies, his statement against interest which now NOTE: Family reputation or tradition in respect to
he denies would be admissible against him as a one’s pedigree may be established:
prior inconsistent statement in some instances.
1. Through testimony in open court of a
Viacrusis v. CA, 44 SCRA 176 (1972) Previous witness who must be a member of the
recognition of ownership in another by a party in family either by consanguinity or affinity;
possession of property in dispute is admission 2. Through entries in:
against interest which may be received even a. Family Bible;
against 3rd persons. b. Family books or charts;
c. Engravings on rings;
People v. Toledo, 51 Phil. 825 (1928) Declaration d. Family portraits and the like.
against interest, as an exception to the hearsay
rule, covers not only pecuniary interest, but also The reputation between the declarant and the
penal interest. person subject of the inquiry must be legitimate,
unless the issue is the legitimacy itself.
Admission by Declaration against
privies interest People v. Alegado, 201 SCRA 37 (1991)
One of 3 exceptions Exception to hearsay Testimony of a witness and the witness’
to res inter alios acta grandfather as to the date of birth and age of the
Evidence against the Evidence against even witness is evidence on family tradition which is
successor in interest the declarant, his admissible as an exception to hearsay.
of the admitter successor in interest,
or 3rd persons
Ferrer v. de Inchausti, 38 Phil 905 (1918) Entries
Admitter need not be Declarant is dead or
in family bibles or other family books or charts,
dead or unable to unable to testify
engravings on rings, family portraits and the like,
testify
to be admissible as an evidence of pedigree, need
Relates to title to Relates to any interest NOT be proven to have been made at the same
property time as the occurrence of the events documented.
Admission need not Declaration must be
be against the against the interest of
admitter’s interest the declarant Section 39 Section 40
Act or declaration about Family reputation or
pedigree tradition regarding
pedigree
Section 39. Act or declaration about pedigree.
Witness need not be a Witness is a member of
— The act or declaration of a person deceased, or
member of the family the family
unable to testify, in respect to the pedigree of
Relation of the The witness himself is
another person related to him by birth or marriage,
declarant and the the one to whom the
may be received in evidence where it occurred
person subject of the facts relates. It is not
before the controversy, and the relationship
inquiry must be necessary for him to
between the two persons is shown by evidence
established by establish by
other than such act or declaration. The word
independent evidence independent evidence
"pedigree" includes relationship, family genealogy,
his relationship to the
birth, marriage, death, the dates when and the
family
places where these facts occurred, and the names
Testimony is about Testimony is about
of the relatives. It embraces also facts of family
what declarant, who is family reputation or
history intimately connected with pedigree. (33a)
dead, or unable to tradition covering
testify, has said matters of pedigree
Section 40. Family reputation or tradition concerning the
regarding pedigree. — The reputation or tradition pedigree of the
existing in a family previous to the controversy, in declarant’s family
respect to the pedigree of any one of its members,
may be received in evidence if the witness Admissibility; Proof of Filiation; Action of Partition (2000)
testifying thereon be also a member of the family,
either by consanguinity or affinity. Entries in family

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 546

________________________________________________________________________________________________
Linda and spouses Arnulfo and Regina Ceres were
coowners of a parcel of land. Linda died intestate and
without any issue. Ten (10) persons headed by Jocelyn,
claiming to be the collateral relatives of the deceased
Linda, filed an action for partition with the RTC
praying for the segregation of Linda’s ½ share,
submitting in support of their petition the baptismal
certificates of seven of the petitioners, a family bible
belonging to Linda in which the names of the
petitioners have been entered, a photocopy of the
birth certificate of Jocelyn, and a certification of the
local civil registrar that its office had been completely
razed by fire. The spouses Ceres refused to partition
on the following grounds: 1) the baptismal certificates
of the parish priest are evidence only of the
administration of the sacrament of baptism and they
do not prove filiation of the alleged collateral relatives
of the deceased; 2) entry in the family bible is hearsay;
3) the certification of the registrar on non-availability
of the records of birth does not prove filiation: 4) in
partition cases where filiation to the deceased is in
dispute, prior and separate judicial declaration of
heirship in a settlement of estate proceedings is
necessary; and 5) there is need for publication as real
property is involved. As counsel for Jocelyn and her
co-petitioners, argue against the objections of the
spouses Ceres so as to convince the court to allow the
partition. Discuss each of the five (5) arguments briefly
but completely. (10%)
SUGGESTED ANSWER:
(1) The baptismal certificate can show filiation or
prove pedigree. It is one of the other means allowed
under the Rules of Court and special laws to show
pedigree. (Trinidad v. Court of Appeals, 289 SCRA 188
[1998]; Heirs of ILgnacio Conti v. Court of Appeals, 300
SCRA 345 [1998]).
(2) Entries in the family bible may be received as
evidence of pedigree. (Sec. 40, Rule 130, Rules of Court).
(3) The certification by the civil registrar of the
nonavailability of records is needed to justify the
presentation of secondary evidence, which is the
photocopy of the birth certificate of Jocelyn. (Heirs of
Ignacio Conti v. Court of Appeals, supra.)
(4) Declaration of heirship in a settlement proceeding
is not necessary. It can be made in the ordinary action
for partition wherein the heirs are exercising the right
pertaining to the decedent, their predecessor-ininterest,
to ask for partition as co-owners (Id.)
(5) Even if real property is involved, no publication is
necessary, because what is sought is the mere
segregation of Linda’s share in the property. (Sec. 1 of
Rule 69; Id.)
Section 41. Common reputation. — Common
reputation existing previous to the controversy,
respecting facts of public or general interest more
than thirty years old, or respecting marriage or
moral character, may be given in evidence.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Monuments and inscriptions in public places may
be received as evidence of common reputation.
(35)
MATTERS OF PUBLIC MATTERS OF
INTEREST GENERAL INTEREST
Matters common to all Matters common only to
citizens of the state or a single community or
to the entire people to a considerable
number of persons
forming part of the
community
Common Reputation
It is the definite opinion of the community in which
the fact to be proved is known or exists. It means
the general or substantially undivided reputation,
as distinguished from a partial or qualified one,
although it need not be unanimous.
As a general rule, the reputation of a person
should be that existing in the place of his
residence, it may also be that existing in the place
where he is best known.
CHARACTER--- means that which a person really
is.
REPUTATION--- is that which he is reputed to be.
EVIDENCE OF NEGATIVE GOOD REPUTE
Where the foundation proof shows that the
witness was in such position that he would have
heard reports derogatory to one’s character, the
reputation may be predicated on the absence of
reports of bad reputation or of the fact that the
witness had heard nothing against the person.
Section 42. Part of res gestae. — Statements
made by a person while a starting occurrence is
taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof,
may be given in evidence as part of res gestae.
So, also, statements accompanying an equivocal
act material to the issue, and giving it a legal
significance, may be received as part of the res
gestae. (36a)
RES GESTAE
It literally means things done; it includes the
circumstances, facts, and declarations incidental
to the main fact or transaction necessary to
illustrate its character and also includes acts,
words or declaration which are closely connected
therewith as to constitute part of the transaction.
TWO TYPES OF RES GESTAE
547
________________________________________________________________________________________________

4. Verbal act must be contemporaneous with

1. SPONTAENOUS STATEMENTS the equivocal act.
Statements made by a person while a
startling occurrence is taking place or RES GESTAE in
immediately prior or subsequent thereto connection with a DYING
with respect to the circumstances thereof; homicidal act DECLARATION
May be made by the Can be made only by
2. VERBAL ACTS killer himself after or the victim
Statements accompanying an equivocal during the killing or that
act material to the issue and giving it a of a 3rd person
legal significance. May precede, Made only after the
accompany, or be homicidal attack was
REQUISITES FOR ADMISSIBILITY OF made after the committed
SPONTAENOUS STATEMENTS: homicidal attack was
1. There must be a startling occurrence; committed
2. The statement must relate to the Justification in the Trustworthiness is
circumstances of the startling occurrence; continuity of statement based upon its being
3. The statement must be spontaneous. given in awareness of
impending death
REASON FOR ADMISSIBILITY:
1. Necessity--- natural and spontaneous
statements are more convincing than the SPONTAENOUS VERBAL ACTS
testimony of the same person on the STATEMENTS
stand. The res gestae is the The res gestae is the
2. Trustworthiness--- The statement is startling occurrence equivocal act
made instinctively. The facts speaking Statements may be Verbal acts must be
thru the party not the party talking about made prior, or contemporaneous or
the facts. immediately after the accompany the
startling occurrence equivocal act
It is essential that they should have been caused
by something startling enough to cause nervous
excitement. The declarant must be a witness to
the event to which the utterance relates. He must Section 43. Entries in the course of business.
have personally observed the facts. — Entries made at, or near the time of
transactions to which they refer, by a person
People v. Putian, 74 SCRA 133 (1976) A deceased, or unable to testify, who was in a
declaration made by a person immediately after position to know the facts therein stated, may be
being wounded, pointing out or naming his received as prima facie evidence, if such person
assailant, may be considered as part of the res made the entries in his professional capacity or in
gestae and is admissible in evidence. A statement the performance of duty and in the ordinary or
was given sometime after the stabbing while the regular course of business or duty. (37a)
declarant was undergoing treatment at a medical
clinic, where he had no time to concoct a NOTE: This is otherwise known as the SHOP-
falsehood or to fabricate a malicious charge BOOK RULE.
against the accused and no motive has been
shown as to why he would frame-up the accused
would render the statement admissible as a part of REQUISITES:
the res gestae. 1. That the entrant made the entry in his
professional capacity or in the
Note: What the law distrusts is not the after performance of a duty;
speech but the after thought. 2. That the entry was made in the ordinary
course of business or duty;
REQUISITES FOR THE ADMISSIBLITY OF 3. The entries must have been made at or
VERBAL ACTS: near the time of the transaction to which
1. The act or occurrence must be equivocal; they relate;
2. Verbal acts must characterized or explain 4. The entrant must have been in a position
the equivocal act; to know the facts stated in the entries;
3. Equivocal acts must be relevant to the 5. The entrant must be deceased or unable
issue; to testify.

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 548

________________________________________________________________________________________________
The law does not fix the precise moment when the
entries should be made. It is sufficient if the entry
was made within a reasonable time so that it may
appear to have taken place while the memory of
the facts was unimpaired.
HOW REGULARITIES IN THE ENTRIES
PROVED
It may be proved by the form in which they appear
in the corresponding book.
There is no overriding necessity of bringing into
courts all the clerk or employees who individually
made the entries in a long account. It is sufficient
that the person who supervises them testify that:
1. The account was prepared under his
supervision and
2. The entries were regularly entered in the
ordinary course of business (Regalado, p.
751).
Section 44. Entries in official records. — Entries
in official records made in the performance of his
duty by a public officer of the Philippines, or by a
person in the performance of a duty specially
enjoined by law, are prima facie evidence of the
facts therein stated. (38)
REQUISITES FOR ADMISSIBILTY OF OFFICIAL
ENTRIES:
1. That it was made by the public officer in
the performance of his duty or by another
person in the performance of a duty
specially enjoined by law; and
2. The public officer or the other person had
sufficient knowledge of the facts stated by
him which must have been acquired by
him personally or through official
information.
REASON FOR ADMISSION
1. Necessity--- practical impossibility of
requiring the official’s attendance as a
witness to testify to the enumerable
transactions occurring in the course of
duty.
2. Trustworthiness--- there is a treatise, periodical or pamphlet on a subject of
presumption of regularity in the
performance of official duty.
It is not essential for the officer making the official
statement to have a personal knowledge of the
facts stated by him, it being sufficient that the
official information was acquired by officers who
prepared the reports from the persons who not
only have personal knowledge of the facts but
must have the duty to give such statements for the
record.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
It is well-settled that entries in the police blotter
should not be given due significance or probative
value as they are not conclusive evidence of the
truth of their contents but merely of the fact that
they were recorded. Hence, they do not constitute
conclusive proof (P. vs. Cabrera, Jr. GR NO.
138266, April 30, 2003).
Section 45. Commercial lists and the like. —
Evidence of statements of matters of interest to
persons engaged in an occupation contained in a
list, register, periodical, or other published
compilation is admissible as tending to prove the
truth of any relevant matter so stated if that
compilation is published for use by persons
engaged in that occupation and is generally used
and relied upon by them therein. (39)
REQUISITES:
1. Statements of matters of interest to
persons engaged in an occupation;
2. The statement must be contained in a list,
register, periodical or other published
compilation;
3. The compilation is published for the use of
persons engaged in that occupation;
4. Is generally relied upon by them.
REASON FOR ADMISSIBLITY
1. Necessity--- because of usual
inaccessibility of the persons responsible
for the compilation of matters contained in
the list, register, periodical or other
published compilation and tremendous
inconvenience it would cause to the court
if it would issue summons to numerous
individuals.
2. Trustworthiness--- they have no motive
to deceive and they further realize that
unless the list, register, periodical or other
published compilation are prepared with
care and accuracy, their work will have no
commercial or probative value
Section 46. Learned treatises. — A published
history, law, science, or art is admissible as
tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a
witness expert in the subject testifies, that the
writer of the statement in the treatise, periodical or
pamphlet is recognized in his profession or calling
as expert in the subject. (40a)
REASON FOR ADMISSION:
549
________________________________________________________________________________________________
1. Necessity--- even if such person is legally
procurable, the expense is frequently
disproportionate.
2. Trustworthiness--- learned writers have
no motive to misrepresent. He is aware
that his work will be carefully scrutinized
by the learned members of his profession
and that he shall be subject to criticisms
and ultimately rejected as an authority on
the subject matter if his conclusions are
found to be invalid.
Section 47. Testimony or deposition at a former
proceeding. — The testimony or deposition of a
witness deceased or unable to testify, given in a
former case or proceeding, judicial or
administrative, involving the same parties and
subject matter, may be given in evidence against
the adverse party who had the opportunity to
cross-examine him. (41a)
NOTE: In case of De Leon vs. People, 210 SCRA
151, the court allows the admission of testimonies
during preliminary investigation as produced and
admitted during the trial when the witness died
before trial of the case.[ This ruling is criticized-
Ucat; precisely because there is no right to cross-
examination during the Preliminary Investigation]
7. Opinion Rule
Section 48. General rule. — The opinion of
witness is not admissible, except as indicated in
the following sections. (42)
OPINION
An inference or conclusion drawn from facts
observed.
GR: Ordinary witness must give the facts and not
their inferences, conclusions or opinions (sec 48).
EXCEPTION: Section 50.
REASON: It is for the court to form an opinion
concerning the facts in proof of which evidence is
offered.
Witness must testify to facts within their
knowledge and may not state their opinions.
Opinion Rule (1994)
At Nolan’s trial for possession and use of the
prohibited drug, known as “shabu:, his girlfriend Kim,
testified that on a particular day, he would see Nolan
very prim and proper, alert and sharp, but that three
days after, he would appear haggard, tired and overly
nervous at the slightest sound he would hear. Nolan
objects to the admissibility of Kim’s testimony on the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
ground that Kim merely stated her opinion without
having been first qualified as expert witness. Should
you, as judge, exclude the testimony of Kim?
SUGGESTED ANSWER:
No. The testimony of Kim should not be excluded.
Even though Kim is not an expert witness, Kim may
testify on her impressions of the emotion, behavior,
condition or appearance of a person. (Sec.50,lastpar.Rule
130).
Section 49. Opinion of expert witness. — The
opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he
shown to posses, may be received in evidence.
(43a)
EXPERT EVIDENCE
It refers to the testimony of one possessing, in
regard to a particular subject or department of
human activity, knowledge which is not usually
acquired by other persons.
TEST: Whether the opinion called for, will aid the
fact finder in resolving an issue.
An expert witness may base his opinion either on
the first-hand knowledge of the facts or on the
basis of hypothetical questions where the facts
presented to him hypothetically and on the
assumption that they are true, formulates his
opinion on the hypothesis.
EXPERT EVIDENCE ADMISSIBLE ONLY IF:
1. The matter to be testified requires
expertise;
2. The witness has been qualified as an
expert.
HOW TO PRESENT AN EXPERT WITNESS:
1. Introduce and qualify the witness;
2. Let him give his factual testimony if he has
knowledge of the facts;
3. Begin the hypothetical question by asking
him to assume certain facts to be true;
4. Conclude the question, by, first asking
that expert if he has an opinion to a
certain point assuming that these facts are
true and secondly, asking him, after he
has answered affirmatively, to give his
opinion on the point;
5. After he has stated his opinion, ask him to
give his reasons.
Hypothetical questions may be asked of an expert
witness to elicit his opinion. The courts, however,
are not necessarily bound by the expert’s findings.
HYPOTHETICAL QUESTION
550
________________________________________________________________________________________________

A proper hypothetical question places before the

expert witness assumed facts which have been
proved. It then calls for an opinion based thereon
(Herrera, p. 794).
Hypothetical question must include only facts that
are supported by evidence (Francisco, p. 352).
In truth, that which we call opinion is fact. The
impression or conclusion is the sum of what he
saw and its final analysis, the offer is to prove fact
and not an opinion.
8. Character Evidence

Bar Exam Question 2011

Section 51. Character evidence not generally
(30) In a case, the prosecutor asked the admissible; exceptions: —
medical expert the question, "Assuming that
the assailant was behind the deceased before
(a) In Criminal Cases:
he attacked him, would you say that
treachery attended the killing?" Is this
hypothetical question permissible? (A) No, (1) The accused may prove his
since it asks for his legal opinion. (B) Yes, good moral character which is
but conditionally, subject to subsequent pertinent to the moral trait
proof that the assailant was indeed behind involved in the offense charged.
the deceased at that time. (C) Yes, since
hypothetical questions may be asked of an (2) Unless in rebuttal, the
expert witness. (D) No, since the medical prosecution may not prove his
expert has no personal knowledge of the fact. bad moral character which is
pertinent to the moral trait
involved in the offense charged.
Section 50. Opinion of ordinary witnesses. —
The opinion of a witness for which proper basis is (3) The good or bad moral
given, may be received in evidence regarding — character of the offended party
may be proved if it tends to
(a) the identity of a person about whom establish in any reasonable
he has adequate knowledge; degree the probability or
improbability of the offense
charged.
(b) A handwriting with which he has
sufficient familiarity; and
Note: However, the following are
exceptions of (3) above:
(c) The mental sanity of a person with
whom he is sufficiently acquainted.
1. Proof of bad character of
the victim in a murder
The witness may also testify on his impressions case is not admissible if
of the emotion, behavior, condition or appearance the crime is committed
of a person. (44a) through treachery and
premeditation; and
Ordinary Opinion Evidence 2. In prosecution for rape,
That which is given by a witness who is of ordinary evidence of complainant’s
capacity and who has by opportunity acquired a past sexual conduct,
particular knowledge which is outside the limits of opinion thereof or of
common observation and which may be of value his/her reputation shall
in elucidating a matter under consideration. not be admitted unless,
and only to the extent that
Shorthand Rendering of Facts the court finds that such
This is also known as “Instantaneous evidence is material and
Conclusion of the Mind” (Herrera, p. 827). relevant to the case
(Rape Shield, RA 8505,
The memory may retain no single detail indeed. sec. 6) [sexual abuse
One may never have recognized a single detail shield rule].
yet the appearance of the man may have left upon
the mind an indelible impression as to his physical (b) In Civil Cases:
and mental condition.

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 551

________________________________________________________________________________________________
Evidence of the moral character of a party
in civil case is admissible only when
pertinent to the issue of character involved
in the case.
(c) In the case provided for in Rule 132,
Section 14, (46a, 47a)
Character Evidence; Bad Reputation (2010) No.XII. In
a prosecution for murder, the prosecutor asks accused
Darwin if he had been previously arrested for violation
of the Anti- Graft and Corrupt Practices Act. As defense
counsel, you object. The trial court asks you on what
ground/s. Respond. (3%) SUGGESTED ANSWER: The
objection is on the ground that the fact sought to be
elicited by the prosecution is irrelevant and
immaterial to the offense under prosecution and
trial. Moreover, the Rules do not allow the
prosecution to adduce evidence of bad moral
character of the accused pertinent to the offense
charged, except on rebuttal and only if it involves a
prior conviction by final judgment (Rule 130, Sec. 51,
Rules of Court).
Character Evidence (2002)
D was prosecuted for homicide for allegedly beating
up V to death with an iron pipe.
A. May the prosecution introduce evidence that V had
a good reputation for peacefulness and nonviolence?
Why? (2%)
B. May D introduce evidence of specific violent acts
by V? Why? (3%)
SUGGESTED ANSWER:
A. The prosecution may introduce evidence of the
good or even bad moral character of the victim if it
tends to establish in any reasonable degree the
probability or improbability of the offense charged.
[Rule 130, sec. 51 a (3)]. In this case, the evidence is not
relevant.
B. Yes, D may introduce evidence of specific violent
acts by V. Evidence that one did or did not do a
certain thing at one time is not admissible to prove
that he did or did not do the same or a similar thing at
another time; but it may be received to prove a specific
intent or knowledge, identity, plan, system, scheme,
habit, custom or usage, and the like. (Rule 130, sec. 34).
Bar Exam Questions 2013
V. Character evidence is admissible
__________. (1%) (A) in criminal cases – the
accused may prove his good moral
character if pertinent to the moral trait
involved in the offense charged (B) in
criminal cases – the prosecution may prove
the bad moral character of the accused to
prove his criminal predisposition (C) in
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
criminal cases under certain situations, but
not to prove the bad moral character of the
offended party (D) when it is evidence of the
good character of a witness even prior to his
impeachment as witness (E) In none of the
given situations above.
SUGGESTED ANSWER: (A), Under Section
51, Rule 130 of the Rules of Court, the
accused may prove his good moral
character which is pertinent to the moral
trait involved in the offense charged.
(Section 51 (a) (1) Rule 130, Rules on
Evidence).
NOTE: In both criminal and civil cases, the bad
moral character of a witness may always be
proved by either party (sec. 11, Rule 132 but not
evidence of his good moral character, unless such
character has been impeached (sec. 14).
Specific conduct of a party exhibiting character is
not allowed to prove the character of such person
for three reasons:
1. Undue prejudice;
2. Unfair surprise;
3. Confusion of issues (Francisco, . 373).
II. Which of the following is admissible? (1%)
(A) The affidavit of an affiant stating that he
witnessed the execution of a deed of sale but
the affiant was not presented as a witness in
the trial. (B) The extra judicial admission
made by a conspirator against his co-
conspirator after the conspiracy has ended.
(C) The testimony of a party‟s witness
regarding email messages the witness
received from the opposing party. (D) The
testimony of a police officer that he had
been told by his informants that there
were sachets of shabu in the pocket of the
defendant. (E) None of the above.
SUGGESTED ANSWERS: (C), (D), or (E) (C),
The E-mail messages are considered
electronic data message or electronic
document under the Rules on Electronic
Evidence and therefore admissible as
evidence. The terms “electronic data
message” and “electronic document” are
defined in the Rules on Electronic
Evidence. Thus:
(g) “Electronic data message” refers to
information generated, sent, received or
stored by electronic, optical or similar
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means. (h) “Electronic document” refers
to information or the representation of
information, data, figures, symbols or
other modes of written expression,
described or however represented, by
which a right is established or an
obligation extinguished, or by which a fact
may be proved and affirmed, which is
received, recorded, transmitted, stored,
processed, retrieved or produced
electronically. It includes digitally signed
documents and any printout or output,
readable by sight or other means, which
accurately reflects the electronic data
message or electronic document. For
purposes of these Rules, the term
“electronic document” may be used
interchangeably with “electronic data
message” (Section 1, (g), (h) Rule 2, AM
No. 01-7-01-SC, Rules on Electronic
Evidence).
In MCC Industrial Sales Corporation vs.
Ssangyong Corporation, G.R. No. 170633,
the Supreme Court held that R.A. No.
8792, otherwise known as the Electronic
Commerce Act of 2000, considers an
electronic data message or an electronic
document as functional equivalent of a
written document for evidentiary
purposes. The Rules on Electronic
Evidence regards an electronic document
as admissible in evidence if it complies
with the rules on admissibility prescribed
by the Rules of Court and related laws,
and is authenticated in the manner
prescribed by the said Rules. An electronic
document is also the equivalent of an
original document under the Best
Evidence Rule, if it is a printout or output
readable by sight or other means, shown
to reflect the data accurately. (D), If the
testimony is being offered for the purpose
of establishing that such statements were
made, then the testimony is admissible as
independent relevant statement. The
Doctrine on independent relevant
statement holds that conversations
communicated to a witness by a third
person may be admitted as proof,
regardless of their truth or falsity, that
they were actually made (Republic vs.
Heirs of Alejaga Sr., G.R. No. 146030,
December 3, 2002).
The doctrine of independently relevant
statements is an exception to hearsay
rule. It refers to the fact that such
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
statements were made is relevant, and the
truth or falsity thereof is immaterial. The
hearsay rule does not apply: hence, the
statements are admissible as evidence.
Evidence as to the making of such
statement is not secondary but primary,
for the statement itself may constitute a
fact in issue or be circumstantially
relevant as to the existence of such a fact.
The witness who testifies thereto is
competent because he heard the same, as
this is a matter of fact derived from his
own perception, and the purpose is to
prove either that the statement was made
or the tenor thereof (People vs. Malibiran,
G.R. No. 178301, April 24, 2009, Austri-
Martinez, J.). (E), The problem does not
clearly provide the purposes for which the
evidence under (C) and (D) are being
offered. Moreover, all of the choices above
cannot be admitted to prove the truth of
the contents thereof for the reason that
the evidence is not competent. For letter
(A), the affiant is not presented, and hence
hearsay. Letter (B), the admission was
made after the termination of the
conspiracy and extrajudicial, hence there
is no application of the Res Inter Alios
Acta rule. Letter (C) is also not allowed as
under the Electronic Evidence Rule, the
output readable by sight is the best
evidence to prove the contents thereof.
Letter (D) is hearsay since the affiant does
not have personal knowledge.
Bar Exam Question 2011
(75) Character evidence is admissible (A) in
criminal cases, the accused may prove his
good moral character if pertinent to the
moral trait involved in the offense
charged. (B) in criminal cases, the
prosecution may prove the bad moral
character of the accused to prove his criminal
predisposition.
(C) in criminal cases, the bad moral character
of the offended party may not be proved. (D)
when it is evidence of the good character of a
witness even prior to impeachment.
RULE 131
Burden of Proof and Presumptions
Section 1. Burden of proof. — Burden of proof is
the duty of a party to present evidence on the
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facts in issue necessary to establish his claim or
defense by the amount of evidence required by
law. (1a, 2a)
PROOF
It refers to the establishment of a requisite degree
of belief in the mind of the trier of fact as to the
fact in issue.
Burden of Proof vs. Burden of Evidence (2004)
Distinguish Burden of proof and burden of evidence.
SUGGESTED ANSWER:
Burden of proof is the duty of a party to present
evidence on the facts in issue necessary to establish his
claim or defense by the amount of evidence required
by law. (Sec. 1 of Rule 131), while burden of evidence is the
duty of a party to go forward with the evidence to
overthrow prima facie evidence established against
him. (Bautista v. Sarmiento, 138 SCRA 587 [1985]).
admits, generally, all the allegations in the
complaint.
B. Criminal Cases
The burden of proof is with the prosecution
because of the presumption of innocence.
The burden of proof as to the guilt of the accused
must be borne by the prosecution. It is required
that courts determine first if the evidence of the
prosecution has at least established a prima facie
case before considering the evidence of the
defense.
If the prosecution does not have a prima facie
case, it is futile to waste time in considering the
evidence presented by the defense. Should the
prosecution succeed in establishing a prima facie
case against the accused, the burden is shifted
upon the accused to prove otherwise.

TWO SEPARATE BURDENS IN BURDEN OF Under the Speedy Trial Act, if the accused
PROOF is not brought to trial within the time
1. Burden of going forward--- that of required, the information shall be
producing evidence. dismissed on motion of the accused. In
2. Burden of persuasion--- the burden of this case, the burden of proof of
persuading the trier of fact that the supporting the motion is with the accused
burdened party must prevail. (sec. 13, RA 8493).

“He who asserts, not the one who denies , DEGREE OF PROOF THAT SATISFIES THE
must prove.” BURDEN OF PROOF
A. CIVIL CASES
UPON WHOM BURDEN OF PROOF RESTS: Preponderance of evidence.

A: Civil Cases B. CRIMINAL CASES

1. Plaintiff has the burden of proof to show
the truth of his allegations if defendant TO SUSTAIN PRELIMINARY ISSUANCE
raises negative defenses; CONVICTION INVESTIGATION OF
2. Defendant has the burden of proof if he WARRANT
raises affirmative defenses on the OF ARREST
complaint of the plaintiff. Evidence of Engenders a will Probable
guilt beyond founded belief of cause;
NOTE: In a civil case, the plaintiff is compelled to reasonable the fact of the That there is
allege affirmative assertions in his complaint. doubt commission of a reasonable
When he alleges a cause of action, he will be crime ground to
forced to allege that he has a right and such right believe that
is violated by the defendant. Thus he has the duty the accused
to prove the existence of this affirmative has
allegations. committed
an offense
When the defendant files and answer and sets out
a purely negative defense and no evidence is
presented by both parties, it is the defendant who C. ADMINISTRATIVE CASES
will win the case since the plaintiff has not Substantial evidence.
presented the quantum of evidence required by
law. On the other hand, if the defendant sets up
an affirmative defense, if there is no evidence HEIRARCHY OF EVIDENCE
presented by both sides, it is the defendant who
will lose the case. Affirmative defense virtually 1. Proof beyond reasonable doubt;

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________________________________________________________________________________________________

2. Clear and convincing evidence;
3. Preponderance of evidence;
4. Substantial evidence.
Burden of Evidence
It is the logical necessity of a party during a
particular time of the trial to create a prima facie
case in his favor or to destroy that created against
him by presenting evidence.
In both civil and criminal cases, the burden of
evidence lies on the party who asserts an
affirmative allegations.
The plaintiff has to prove his affirmative
allegations in the complaint and the defendant to
prove the affirmative allegations in his
counterclaim and affirmative defenses.
B. CRIMINAL CASES:
The prosecution has to prove its affirmative
allegations in the information/complaint regarding
the elements as well as the attendant
circumstances while the defense has to prove its
affirmative allegations regarding the existence of
justifying or exempting circumstances, absolutory
causes or mitigating circumstances.

PRINCIPLE OF NEGATIVING AVERMENTS

BURDEN OF PROOF BURDEN OF
EVIDENCE GR: Negative averments need not be proved,
Does not shift and Shifts from party to whether in a civil or criminal action.
remains throughout the party depending upon
entire case exactly the exigencies of the EXCEPTION: Where such negative allegation is
where the pleadings case in the course of an essential part of the cause of action or defense
originally placed it the trial in a civil case, or are essential ingredients of the
Generally determined offense in a criminal case or defense thereto.
Generally determined by the developments of
by the pleadings filed the trial, or by the HOWEVER, in civil cases, even if the negative
by the party provisions of allegation is an essential part of the cause of
substantive law or action or defense, such negative allegation does
procedural rules which not have to be proved if it is only for the purpose
may relieve the party of denying the existence of a document which
from presenting should properly be in the custody of the adverse
evidence on the facts party.
alleged
In a criminal case, the rule is that if the subject of
the negative averment inheres in the offense as
Preponderance vs. Substantial Evidence (2003) an essential ingredient thereof; the prosecution
Distinguish preponderance of evidence from has the burden of proving the same. In view,
substantial evidence. 4% however, of the difficult office of proving a
SUGGESTED ANSWER: negative allegation, the prosecution, under such
PREPONDERANCE OF EVIDENCE means that circumstance, need to do no more than make a
the evidence as a whole adduced by one side is prima facie case from best evidence obtainable
superior to that of the other. This is applicable in civil (P. vs. Quebral, 68 Phil. 564).
cases. (Sec. 1 of Rule 133; Municipality of Moncada v.
Cajuigan, 21 Phil, 184 [1912]).
SUBSTANTIAL EVIDENCE is that amount of
relevant evidence which a reasonable mind might PRESUMPTIONS
accept as adequate to justify a conclusion. This is An inference as to the existence or non-existence
applicable in case filed before administrative or of a fact which courts are permitted to draw from
quasijudicial bodies. (Sec. 5 of Rule 133) the proof of other facts.
Note however that not all cases falling under
administrative process requires substantial evidence as A presumption shifts the burden of going forward
enough to support a decision; e.g. dismissal of judges with evidence. It imposes on the party against
under Office of Court Administrator requires proof of whom it is directed the burden of going forward
guilt beyond reasonable doubt and also court personnels - with evidence to meet or rebut the presumption.
Genesis)
EFFECT OF A LEGAL PRESUMPTION UPON
UPON WHOM BURDEN OF EVIDENCE RESTS THE BURDEN OF PROOF AND BURDEN OF
EVIDENCE.
A. CIVIL CASES: It does not shift the burden of proof. It remains
where it is, but the presumption, the one who has

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________________________________________________________________________________________________

the burden is relieved from the time being, from (b) The tenant is not permitted to deny the
introducing evidence in support of his averment title of his landlord at the time of
because stands in place of evidence. commencement of the relation of landlord
and tenant between them. (3a)
NOTE: “Presumptions are like bats of law flitting in
the twilight, but disappearing in the sunshine of This is ESTOPPEL BY DEED.
actual facts” (Wigmore).
Statutory provisions on Estoppel:
CLASSIFICATION OF PRESUMPTIONS:

1. PRESUMPTION (juris) OF LAW--- It is a Art. 1431. Through estoppel an admission or

deduction which the law directs to be representation is rendered conclusive upon the
made from particular facts. person making it, and cannot be denied or
2. PRESUMPTION (hominis) OF FACT--- It disproved as against the person relying thereon.
is a deduction which reason draws from
facts proved without an express direction
from the law to that effect. Art. 1432. The principles of estoppel are hereby
adopted insofar as they are not in conflict with
PRESUMPTIONS OF PRESUMPTIONS OF the provisions of this Code, the Code of
LAW FACT Commerce, the Rules of Court and special laws.
Certain inference must Discretion is vested in
be made whenever the the tribunal as to the Art. 1433. Estoppel may be in pais or by deed.
facts appear which drawing of inference
furnish the basis of the
inference Art. 1434. When a person who is not the owner of
Reduced to fix rules Derived wholly and a thing sells or alienates and delivers it, and later
and form part of the directly from the the seller or grantor acquires title thereto, such
system of jurisprudence circumstances of the title passes by operation of law to the buyer or
particular case by
grantee.
means of common
experience of man
Art. 1435. If a person in representation of another
PRESUMPTION OF LAW MAY BE DIVIDED sells or alienates a thing, the former cannot
INTO: subsequently set up his own title as against the
1. CONCLUSIVE PRESUMPTION (juris et buyer or grantee.
de jure)--- Which is a presumption of law
that is not permitted to be overcome by
proof to the contrary. Art. 1436. A lessee or a bailee is estopped from
2. DISPUTABLE PRESUMPTIONS (juris asserting title to the thing leased or received, as
tantum)--- It is that which the law permits against the lessor or bailor.
to be overcome or contradicted by proofs
to the contrary; otherwise the same Art. 1437. When in a contract between third
remains satisfactory.
persons concerning immovable property, one of
them is misled by a person with respect to the
Section 2. Conclusive presumptions. — The
following are instances of conclusive ownership or real right over the real estate, the
presumptions: latter is precluded from asserting his legal title or
interest therein, provided all these requisites are
(a) Whenever a party has, by his own present:
declaration, act, or omission, intentionally
and deliberately led another to believe a (1) There must be fraudulent representation or
particular thing true, and to act upon such
belief, he cannot, in any litigation arising
wrongful concealment of facts known to the party
out of such declaration, act or omission, estopped;
be permitted to falsify it:
(2) The party precluded must intend that the
This is ESTOPPEL IN PAIS. other should act upon the facts as
misrepresented;

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________________________________________________________________________________________________
(3) The party misled must have been unaware of
the true facts; and
(4) The party defrauded must have acted in
accordance with the misrepresentation.
Art. 1438. One who has allowed another to
assume apparent ownership of personal property
for the purpose of making any transfer of it,
cannot, if he received the sum for which a pledge
has been constituted, set up his own title to
defeat the pledge of the property, made by the
other to a pledgee who received the same in
good faith and for value.
Art. 1439. Estoppel is effective only as between
the parties thereto or their successors in interest.
SOME OTHER CONCLUSIVE PRESUMPTIONS:
1. Under the Torrens System, registration is
conclusive notice to the whole world of
acts or dealings respecting the land;
2. Upon publication of laws, there is
conclusive presumption that everybody
knows the law. Hence, ignorance of the
law excuses no one from compliance
therewith.
3. Art. 167,FC. The child shall be considered
legitimate although the mother may have
declared against its legitimacy or may have
been sentenced as an adulteress.
Bar Exam Question 2012
71. Under the Rules on Evidence, the
following is a conclusive presumption and
therefore cannot be contradicted by evidence.
a. A person intends the ordinary
consequences of his voluntary act.
b. Official duty has been regularly performed.
c. A tenant cannot deny his landlord's title
during the tenancy period.
d. A writing is truly dated.
SUGGESTED ANSWER: (c), 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 (Rule
131, Sec.2, Rules of Court).
Section 3. Disputable presumptions. — The
following presumptions are satisfactory if
uncontradicted, but may be contradicted and
overcome by other evidence:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(a) That a person is innocent of crime or
wrong;
(b) That an unlawful act was done with an
unlawful intent;
(c) That a person intends the ordinary
consequences of his voluntary act;
(d) That a person takes ordinary care of his
concerns;
(e) That evidence willfully suppressed would
be adverse if produced;
(f) That money paid by one to another was
due to the latter;
(g) That a thing delivered by one to another
belonged to the latter;
(h) That an obligation delivered up to the
debtor has been paid;
(i) That prior rents or installments had been
paid when a receipt for the later one is
produced;
(j) That a person found in possession of a
thing taken in the doing of a recent wrongful
act is the taker and the doer of the whole act;
otherwise, that things which a person
possess, or exercises acts of ownership over,
are owned by him;
(k) That a person in possession of an order on
himself for the payment of the money, or the
delivery of anything, has paid the money or
delivered the thing accordingly;
(l) That a person acting in a public office was
regularly appointed or elected to it;
(m) That official duty has been regularly
performed;
(n) That a court, or judge acting as such,
whether in the Philippines or elsewhere, was
acting in the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised
in a case were laid before the court and
passed upon by it; and in like manner that all
matters within an issue raised in a dispute
submitted for arbitration were laid before the
arbitrators and passed upon by them;
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(p) That private transactions have been fair
and regular;
(q) That the ordinary course of business has
been followed;
(r) That there was a sufficient consideration
for a contract;
(s) That a negotiable instrument was given or
indorsed for a sufficient consideration;
(t) That an endorsement of negotiable
instrument was made before the instrument
was overdue and at the place where the
instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was
received in the regular course of the mail;
(w) That after an absence of seven years, it
being unknown whether or not the absentee
still lives, he is considered dead for all
purposes, except for those of succession.
The absentee shall not be considered dead
for the purpose of opening his succession till
after an absence of ten years. If he
disappeared after the age of seventy-five
years, an absence of five years shall be
sufficient in order that his succession may be
opened.
The following shall be considered dead for all
purposes including the division of the estate
among the heirs:
(1) A person on board a vessel lost during
a sea voyage, or an aircraft with is
missing, who has not been heard of for
four years since the loss of the vessel or
aircraft;
(2) A member of the armed forces who
has taken part in armed hostilities, and
has been missing for four years;
(3) A person who has been in danger of
death under other circumstances and
whose existence has not been known for
four years;
(4) If a married person has been absent
for four consecutive years, the spouse
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
present may contract a subsequent
marriage if he or she has well-founded
belief that the absent spouse is already
dead. In case of disappearance, where
there is a danger of death the
circumstances hereinabove provided, an
absence of only two years shall be
sufficient for the purpose of contracting a
subsequent marriage. However, in any
case, before marrying again, the spouse
present must institute a summary
proceedings as provided in the Family
Code and in the rules for declaration of
presumptive death of the absentee,
without prejudice to the effect of
reappearance of the absent spouse.
(x) That acquiescence resulted from a belief
that the thing acquiesced in was conformable
to the law or fact;
(y) That things have happened according to
the ordinary course of nature and ordinary
nature habits of life;
(z) That persons acting as copartners have
entered into a contract of co-partnership;
(aa) That a man and woman deporting
themselves as husband and wife have
entered into a lawful contract of marriage;
(bb) That property acquired by a man and a
woman who are capacitated to marry each
other and who live exclusively with each other
as husband and wife without the benefit of
marriage or under void marriage, has been
obtained by their joint efforts, work or industry.
(cc) That in cases of cohabitation by a man
and a woman who are not capacitated to
marry each other and who have acquire
properly through their actual joint contribution
of money, property or industry, such
contributions and their corresponding shares
including joint deposits of money and
evidences of credit are equal.
(dd) That if the marriage is terminated and
the mother contracted another marriage
within three hundred days after such
termination of the former marriage, these
rules shall govern in the absence of proof to
the contrary:
(1) A child born before one hundred eighty
days after the solemnization of the
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subsequent marriage is considered to
have been conceived during the former
marriage, provided it be born within the
three hundred days after the termination
of the former marriage.
(2) A child born after one hundred eighty
days following the celebration of the
subsequent marriage is considered to
have been conceived during such
marriage, even though it be born within
the three hundred days after the
termination of the former marriage. [ART.
168, FC]
(ee) That a thing once proved to exist
continues as long as is usual with things of the
nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book,
purporting to be printed or published by public
authority, was so printed or published;
(hh) That a printed or published book,
purporting to contain reports of cases
adjudged in tribunals of the country where the
book is published, contains correct reports of
such cases;
(ii) That a trustee or other person whose duty
it was to convey real property to a particular
person has actually conveyed it to him when
such presumption is necessary to perfect the
title of such person or his successor in
interest;
(jj) That except for purposes of succession,
when two persons perish in the same
calamity, such as wreck, battle, or
conflagration, and it is not shown who died
first, and there are no particular circumstances
from which it can be inferred, the survivorship
is determined from the probabilities resulting
from the strength and the age of the sexes,
according to the following rules:
1. If both were under the age of fifteen
years, the older is deemed to have
survived;
2. If both were above the age sixty, the
younger is deemed to have survived;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
3. If one is under fifteen and the other
above sixty, the former is deemed to have
survived;
4. If both be over fifteen and under sixty,
and the sex be different, the male is
deemed to have survived, if the sex be the
same, the older;
5. If one be under fifteen or over sixty, and
the other between those ages, the latter is
deemed to have survived.
(kk) That if there is a doubt, as between two or
more persons who are called to succeed each
other, as to which of them died first, whoever
alleges the death of one prior to the other,
shall prove the same; in the absence of proof,
they shall be considered to have died at the
same time. (5a) [ART. 43, NCC]
P. vs. Padiernos, 69 SCRA 484 (1976) Mere
non-presentation of a written statement of a
witness to the police which she allegedly did not
sign, does not give rise to the presumption that it
"contained declarations disastrous to the
prosecution case". The presumption that
suppressed evidence is unfavorable does not
apply where the evidence was at the disposal of
both the defense and the prosecution through
use of compulsory processes, e.g. subpoena
duces tecum.
People vs. Pablo, 213 SCRA 1 (1992) The
presumption that evidence willfully suppressed
would be adverse if produced does not apply
when the testimony of the witness is merely
corroborative. Neither does it apply in cases
where the witness, as in this case, is available to
the accused because then, the evidence would
have the same weight against one party as
against the other. Mere failure to present the
poseur-buyer in a buy-bust operation is not
suppression of evidence.
Section 4. No presumption of legitimacy or
illegitimacy. — There is no presumption of
legitimacy of a child born after three hundred days
following the dissolution of the marriage or the
separation of the spouses. Whoever alleges the
legitimacy or illegitimacy of such child must prove
his allegation. (6) [ART. 169, FC]
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RULE 132
Presentation of Evidence
A. EXAMINATION OF WITNESSES
Section 1. Examination to be done in open
court. — The examination of witnesses presented
in a trial or hearing shall be done in open court,
and under oath or affirmation. Unless the witness
is incapacitated to speak, or the questions calls for
a different mode of answer, the answers of the
witness shall be given orally. (1a)
HOW ORAL EVIDENCE GIVEN--- It is usually
given orally in open court. Therefore, generally,
testimonies of witnesses cannot be presented in
affidavits.
However, affidavits are used in lieu testimonies
may be given under the Rules on Summary
Procedure.
PURPOSE: It is to enable the court to judge the
credibility of the witness’ manner of testifying, their
intelligence and their appearance.
Testimony of witnesses shall be given under oath
or affirmation.
TWO-FOLD PURPOSE REQUIRING WITNESS
TO BE SWORN:
1. By affecting the conscience of the witness
to compel him to speak the truth;
2. If he willfully falsifies the truth, that he may
be punished for his perjury.
The right to have the witness sworn may be
waived, if a party fails to object to the taking of
testimony without the administration of an oath, he
will be deemed to have waived his objection.
QUESTIONS PROPOUNDED TO THE WITNESS
MUST:
1. Not be indefinite or uncertain;
2. Be relevant;
3. Not be argumentative;
4. Not call for a conclusion of law;
5. Not call for opinion or hearsay evidence;
6. Not call for illegal answer;
7. Not call for self-incriminating testimony;
8. Not be leading;
9. Not be misleading;
10. Not tend to degrade the reputation of
witness;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
11. Not be repetitious;
12. Not call for a narration.
Section 2. Proceedings to be recorded. — The
entire proceedings of a trial or hearing, including
the questions propounded to a witness and his
answers thereto, the statements made by the
judge or any of the parties, counsel, or witnesses
with reference to the case, shall be recorded by
means of shorthand or stenotype or by other
means of recording found suitable by the court.
A transcript of the record of the proceedings made
by the official stenographer, stenotypist or
recorder and certified as correct by him shall be
deemed prima facie a correct statement of such
proceedings. (2a)
Section 3. Rights and obligations of a witness.
— A witness must answer questions, although his
answer may tend to establish a claim against him.
However, it is the right of a witness:
(1) To be protected from irrelevant,
improper, or insulting questions, and from
harsh or insulting demeanor;
(2) Not to be detained longer than the
interests of justice require;
(3) Not to be examined except only as to
matters pertinent to the issue;
(4) Not to give an answer which will tend
to subject him to a penalty for an offense
unless otherwise provided by law; or
(5) Not to give an answer which will tend
to degrade his reputation, unless it to be
the very fact at issue or to a fact from
which the fact in issue would be
presumed. But a witness must answer to
the fact of his previous final conviction for
an offense. (3a, 19a)
Right of the witness to be free from violence.
The action of the judge in seizing the witness by
the shoulder and turning him about (to look to the
judge) was unwarranted and an interference with
that freedom from unlawful personal violence to
which every witness is entitled while giving the
testimony in court, which his attorney had the right
to protest and to demand that the incident be
made of record (In Re: Aguas).
Scope of right against self-incrimination
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1. No person shall be compelled to be a
witness against himself;
2. The rule may be invoked in any court of
proceeding;
3. The rule only covers testimonial
compulsion.
Rationale against testimonial compulsion:
The court may not extract from the defendant’s
own lips and against his will an admission of his
guilt.
When act is TESTIMONIAL:
If it explicitly or implicitly relate a factual assertion
or discloses information.
When is there compulsion:
It is present only if a witness has asserted right to
refuse to disclose self-incriminating information
and this refusal has been overridden.
Forced Re-enactment
It comes within the ban since prohibition against
testimonial compulsion extend to those
communicative in nature.
RIGHTS OF A DEFENDANT
He has the right to be exempt from being a
witness against himself, cannot be compelled to
testify or produce evidence in the criminal case in
which he is the accused or one of the accused, he
cannot be compelled to do so even by subpoena
or order of the court. He cannot be required either
for the prosecution, for co-accused or even for
himself.
A ordinary witness or a party in a civil action
An ordinary witness may be compelled to testify
by subpoena, having only the right to refuse to
answer a particular incriminating question at the
time it is put to him.
Limitation if a witness is party in a civil action
Before the plaintiff could compel the defendant to
be a witness, the plaintiff must first prove that he
has submitted written interrogatories to the
defendant (Rule 25, sec.6)
The exception under no. 4 refers to immunity
statutes wherein the witness is granted immunity
from criminal prosecution for offenses admitted in
his testimony, e.g. under sec. 8, RA 1379, THE
LAW PROVIDING FOR FORFEITURE OF
ILLEGALLY ACQUIRED PROPERTY; and under
PD 749, in prosecutions for bribery and graft.
CLASSIFICATION OF IMMUNITY STATUTES
1. Use Immunity--- Only prohibits the use of
witness compelled testimony and its fruit
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
in any matter in connection with the
criminal prosecution of the witness. It
does not render a witness immune from
prosecution.
2. Transactional Immunity--- Grants
immunity to the witness from prosecution
for an offense to which the compelled
testimony relates.
RA 6981(WITNESS PROTECTION, SECURITY,
AND BENEFIT ACT)
Who ay be admitted (sec. 3):
Any person who has witnessed or has knowledge
or information on the commission of a crime and
has testified or is testifying or about to testify
before any judicial or quasi-judicial body, or before
any investigating authority, may be admitted to the
program.
Provided, that:
1. The offense in which his testimony will be
used is a grave felony as defined under
the RPC or its equivalent in special laws;
2. His testimony can be corroborated in
material points;
3. He or any member of his family within the
second degree of consanguinity or affinity
is subjected to threats to his life or bodily
injury;
4. He is not a law enforcement officer.
STATE WITNESS
It refers to a person who has participated in the
commission of the crime and desires to be a state
witness for the state shall be admitted to the
program whenever the following circumstances
are present:
1. The offense in which his testimony will be
used is a grave felony as defined under
the RPC or its equivalent in special laws;
2. Absolute necessity of the testimony;
3. There is no direct evidence available for
the proper prosecution of the offense
committed;
4. His testimony can be substantially
corroborated in its material points;
5. He does not appear to be the most
guilty;
6. He has not at any time been convicted of
an offense involving moral turpitude
(sec. 10).
Sworn Statement--- Before any person is admitted
to the program, he shall execute a sworn
statement describing in detail the manner the
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offense was committed and his participation
therein (sec. 11).
Bar Exam Question 2011
(91) The prosecution moved for the discharge
of Romy as state witness in a robbery case it
filed against Zoilo, Amado, and him. Romy
testified, consistent with the sworn statement
that he gave the prosecution. After hearing
Romy, the court denied the motion for his
discharge. How will denial affect Romy? (A)
His testimony shall remain on record. (B)
Romy will be prosecuted along with Zoilo
and Amado. (C) His liability, if any, will be
mitigated.
(D) The court can convict him based on his
testimony.
If the application is denied, said sworn statement
and other testimony given in support of said
application shall not be admissible in evidence.
Admission to the program shall entitle such
witness to immunity from criminal prosecution for
the offenses in which his testimony will be given
and used (sec. 12)
Failure without just cause of the witness to testify
when lawfully required to do so, shall be
prosecuted for contempt. If he testifies falsely or
evasively, he shall be liable for perjury. His
immunity shall be removed and he shall be
subjected to criminal prosecution (sec. 13).
Q. Point out that circumstance, if any, where a
person may be immune from prosecution of a
crime although he is not discharged from the
complaint or information to be utilized as a state
witness or he is not given the benefit under RA
6981 (Witness Protection, Security and Benefit
Act).
Ans. Any person who has violated Secs. 7, 11,
12, 14, 15 and 19, Art. II of RA 9165, who
voluntarily gives information about any violation
of Secs. 4, 5, 6, 8, 10, 13 and 16, Art. II of RA
9165 (STUDY the foregoing SECTIONS) as well
as any violation of the offenses mentioned if
committed by a drug syndicate, of any
information leading to the whereabouts, identifies
and arrest of all of any of the members thereof (of
the SYNDICATE), and who willingly testifies
against such persons as described above, shall be
EXEMPTED from prosecution or punishment for
the offense with reference to which his/her
information or testimony were given, and may
plead or prove the giving of such information and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
testimony in bar of such prosecution Provided,
That the following conditions concur:
(1) The information AND testimony are
necessary for the conviction of the
persons (members of a drug
SYNDICATE) described above;
(2) Such information and testimony are not
yet in the possession of the State;
(3) Such information and testimony can be
corroborated on its material points;
(4) The informant or witness has not been
previously convicted of a crime involving
moral turpitude, except when there is no
other direct evidence available for the
State other than the information and
testimony of said informant or witness;
(5) The informant or witness shall strictly and
faithfully comply without delay, any
condition or undertaking, reduced into
writing, lawfully imposed by the State as
further consideration for the grant of
immunity from prosecution and
punishment;
(6) The informant or witness does not appear
to be most guilty for the offense with
reference to which his/her information or
testimony were given; and
(7) There is no direct evidence available for
the State except for the information and
testimony of the said informant or witness.
Comments: (Ucat)
a. Even where the informant has been previously
convicted of a crime involving moral turpitude, he
is still qualified to be a witness “when there is no
other direct evidence available for the State other
than the information and testimony of said
informant or witness”.
b. (1) The meaning of the clause “shall be
exempted from prosecution OR punishment”. It is
believed that even where the informant is not
excluded from the information or he is not
discharged to be utilized as a state witness,
should he testify for the prosecution against his
co-accused, even if, after the trial, he is convicted
together with his co-accused, the penalty
imposed against him shall not be executed.
This is the meaning of IMMUNITY FROM
PUNISHMENT.
b. (2) Under the 2000 Rules of Criminal
Procedure, if an accused testifies against his co-
accused without first being discharged to be
utilized as a State Witness, he is only a
prosecution witness without the benefit of Sec. 18,
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Rule 119 “Discharge of accused operates as
acquittal”. However, the act of an accused in
testifying against his co-accused is treated as a
mitigating circumstance under Art. 13 (10)
“analogous” mitigating circumstance, i. e.,
analogous to a voluntary plea of guilty.
.Section 4. Order in the examination of an
individual witness. — The order in which the
individual witness may be examined is as follows;
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent. (4)
Section 5. Direct examination. — Direct
examination is the examination-in-chief of a
witness by the party presenting him on the facts
relevant to the issue. (5a)
Trial Practice Tips: Do not ask a question,
whether on direct or cross-examination that
you do not know the answer of the witness
(Ucat).
On cross-examination, do not ask a why, how,
or can you explain….
Bar Exam Question 2012
65. Immediately after the witness had been
sworn in to testify, without any formal offer of
his testimony, Atty. A started asking
questions on direct examination to the
witness. The court may still consider his
testimony if:
a. the formal offer is done after the direct
testimony.
b. the opposing counsel did not object.
c. the witness is an expert witness.
d. the opposing counsel offered to stipulate
on the testimony given.
SUGGESTED ANSWER: (b), While it is true
that Atty. A failed to offer the questioned
testimony when he called the witness on
the stand, the opposing counsel waived
this procedural error by failing to object at
the appropriate time i.e., when the ground
for objection became reasonably apparent
the moment the witness was called to
testify without any prior offer having been
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
made by the proponent. (Catuira vs. Court
of Appeals, G.R. No. 105813, September
12, 1994).
Section 6. Cross-examination; its purpose and
extent. — Upon the termination of the direct
examination, the witness may be cross-examined
by the adverse party as to any matters stated in
the direct examination, or connected therewith,
with sufficient fullness and freedom to test his
accuracy and truthfulness and freedom from
interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue. (8a)
CROSS-EXAMINATION
It is the most reliable and effective way known to
test the credibility and accuracy of testimony.
PURPOSES OF CROSS-EXAMINATION
1. To discredit the witness;
2. To discredit the testimony of the witness;
3. To clarify certain matters;
4. To elicit information from a witness.
Scope and limits of cross-examination
1. ENGLISH RULE--- Where a witness is
called to testify to a particular fact, he
becomes a witness for all purposes and
may be fully cross-examined upon all
matters material to the issue, the
examination not being confined to the
matters inquired about in the direct
examination.
2. AMERICAN RULE--- It restricts cross-
examination to facts and circumstances
which are connected with the matters that
have been sated in the direct examination
of the witness.
Under the Philippine jurisdiction, we follow the two
rules, specifically under the following instances.
In GENERAL, we follow the English Rule, which
allows cross-examination to elicit all important
facts bearing upon the issue (sec. 6), but this does
not mean that a party by so doing is making the
witness his own in accordance with section 5.
We follow the American rule as to the ACCUSED
or a HOSTILE WITNESS, who may only be cross-
examined on matters covered by the direct
examination.
DOCTRINE OF INCOMPLETE TESTIMONY
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When cross-examination cannot be done or
completed due to causes attributable to the party
who offered the witness, the incomplete testimony
is rendered incompetent and should be stricken
from the record.
Where however, the prosecution witness was
extensively cross-examined on the material points
and thereafter failed to appear and cannot be
produced despite a warrant for his arrest, the
testimony offered may be admissible with respect
to the points covered by the cross-examination (P
vs. Gorospe, GR NO. 51513, May, 15, 1984).
de la Paz, Jr. v. IAC, 154 SCRA 65 (1987)Where
a party has had the opportunity to cross-examine
a witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and
the testimony given on direct examination of the
witness will be received or allowed to remain in
the record. Implied waiver of the right of cross-
examine may take various forms, as long as the
party was given the opportunity to confront and
cross-examine an opposing witness but failed to
take advantage of it reasons attributable to himself
alone. Repeated absences, and/or unjustified
motions for postponement of the hearing in which
the witness is scheduled to be cross-examined
until the witness passed away is a waiver of the
right to cross-examine.
Fulgado v. CA, 182 SCRA 81 (1990) The right of a
party to confront and cross-examine opposing
witnesses in a judicial litigation, be it criminal, civil,
or administrative, is a fundamental right which is
part of due process. The right is not to an actual,
but a mere opportunity to cross-examine. Failure
of the adverse party to move to schedule the
hearing for the cross-examination of a witness
before he died or migrated abroad (the imminence
of which the adverse party was aware) is a waiver
of such right. The burden is on the party wishing to
exercise the right to cross-examination, not
necessarily the plaintiff, to schedule the hearing.
Bar Exam Question 2012
92. Witness A was examined on direct
examination by the prosecutor. The defense
counsel however employed dilatory tactics
and was able to secure numerous
postponements of A's cross examination. A
suffered a stroke and became incapacitated.
His uncompleted testimony may therefore be:
a. ordered stricken from the record.
b. allowed to remain in the record.
c. held in abeyance until he recovers.
d. not be given any probative weight.
SUGGESTED ANSWER: (a), The
uncompleted testimony of A should be
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
ordered stricken from the record because
A has not been cross-examined by the
defense. Consequently, it stands to reason
that the striking out of the A‟s testimony
altogether wiped out the required
authentication for the prosecution‟s
exhibits. They become inadmissible unless
the court, in its discretion, reopens the
trial upon a valid ground and permits the
rectification of the mistakes. (Spouse Dela
Cruz vs. Papa, G.R. No. 185899, December
8, 2010).
ALTERNATIVE ANSWER: (b), The
uncompleted testimony of A should be
allowed to remain on the record since it
was due to the fault of the defense that
they were not able to exercise their right
to cross-examine the witness. The defense
should be penalized for employing dilatory
tactics which resulted in the witness‟
eventual incapacity to testify.
GR: A party who voluntarily offers the testimony of
a witness in the case is bound by the testimony of
said witness.
EXCEPTIONS:
A party is not bound when calling the following:
1. Adverse party;
2. Hostile witness;
3. Unwilling witness;
4. Witnesses required by law to be
presented (e.g. Witnesses of a Notarial
will).
HOSTILE WITNESS
A witness may be considered as unwilling or
hostile only if so declared by the court upon
adequate showing of:
1. His adverse interest;
2. Unjustified reluctance to testify;
3. His having misled the party into calling
him to the witness stand.
Section 7. Re-direct examination; its purpose
and extent. — After the cross-examination of the
witness has been concluded, he may be re-
examined by the party calling him, to explain or
supplement his answers given during the cross-
examination. On re-direct-examination, questions
on matters not dealt with during the cross-
examination, may be allowed by the court in its
discretion. (12)
PURPOSE: To prevent injustice to the witness
and the party who has called him by affording an
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opportunity to the witness to explain or amplify
the testimony which he has given on cross-
examination or to explain any apparent
contradiction or inconsistency in his statements,
an opportunity which is not ordinarily afforded
during his cross-examination.
The witness may be allowed to reaffirm or
explain his statements, their meaning or import
and to minimize or destroy discrediting
tendencies.
NOTE: If in the exercise of discretion, the court
admits a new matter in re-examination or if
explanation of the answer given is necessary,
he court may permit a re-cross examination
Witness; Examination of Witnesses (1997)
a) Aside from asking a witness to explain and
supplement his answer in the cross-examination, can
the proponent ask in re-direct examination questions
on matters not dealt with during cross-examination?
b) Aside from asking the witness on matters stated in
his re-direct examination, can the opponent in his re-
cross-examination ask questions on matters not dealt
with during the re-direct?
c) After plaintiff has formally submitted his evidence,
he realized that he had forgotten to present what he
considered an important evidence. Can he recall a
witness?
SUGGESTED ANSWER:
(a) Yes, on redirect examination, questions on matters
not dealt with during the cross-examination may be
allowed by the court in its discretion. (Sec. 7 of Rule 132).
(b) Yes, the opponent in his re-cross-examination may
also ask questions on such other matters as may be
allowed by the court in its discretion. (Sec. 8. Rule 132).
(c) Yes, after formally submitting his evidence, the
plaintiff can recall a witness with leave of court. The
court may grant or withhold leave in its discretion as
the interests of justice may require. (Sec. 9. Rule 132).
Section 8. Re-cross-examination. — Upon the
conclusion of the re-direct examination, the
adverse party may re-cross-examine the witness
on matters stated in his re-direct examination, and
also on such other matters as may be allowed by
the court in its discretion. (13)
PURPOSE: It is to overcome the other party’s
attempt to rehabilitate a witness or to rebut
damaging evidence brought out on re-direct
examination.
It is not a matter of right on re-cross examination
for counsel to touch matters not brought on the
re-direct examination of the witness.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Re-cross examination is limited to new matters
brought out on the re-direct examination of the
witness and also on such other matters as may
be allowed the court in it’s discretion.
Section 9. Recalling witness. — After the
examination of a witness by both sides has been
concluded, the witness cannot be recalled without
leave of the court. The court will grant or withhold
leave in its discretion, as the interests of justice
may require. (14)
Section 10. Leading and misleading questions.
— A question which suggests to the witness the
answer which the examining party desires is a
leading question. It is not allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty in getting direct
and intelligible answers from a witness who is
ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an
officer, director, or managing agent of a public
or private corporation or of a partnership or
association which is an adverse party.
A misleading question is one which assumes as
true a fact not yet testified to by the witness, or
contrary to that which he has previously stated. It
is not allowed. (5a, 6a, and 8a)
People v. Salomon, 229 SCRA 403 (1994) A
mental retardate is not for this reason alone
disqualified from being a witness. As in the case of
other witnesses, acceptance of his testimony
depends on its nature and credibility or, otherwise
put, the quality of his perceptions and the manner
he can make them known to the court. In the case
before us, the trial court noted that although
Sylvia's speech was slurred and it was necessary
at times to ask her leading questions, "her
testimony was positive, clear, plain, coherent and
credible." Her mental condition did not vitiate her
credibility.
REASON FOR ALLOWING LEADING
QUESTIONS ON CROSS-EXAMINATION
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The witness is not the cross-examining party’s
witness. He is expected to be adverse or hostile to
the cross-examiner. He is not expected to
cooperate.
For exception no. 3 and 4
The party producing the said witness may
interrogate him by leading questions and
contradict him in all respect as if he had been
called by the adverse party. There is no need of a
preliminary showing of hostility before leading
questions can be asked.
GR: Misleading Questions are not allowed.
EXCEPTION: When waived (no objection made);
Only one counsel should be allowed to examine a
witness in a single stage. However, the other
counsel may make objection to the testimony.
REASONS:
1. To protect the witness from undue and
confusing interrogation;
2. To secure system and brevity by giving
the control of the interrogation to a single
hand.
When is a question Preliminary:
It is when the question does not touch on any of
the issues.
NOTE: A question that merely suggest a subject
without suggesting an answer or a specific thing is
not a leading question.
Section 11. Impeachment of adverse party's
witness. — A witness may be impeached by the
party against whom he was called,
1. by contradictory evidence,
2. by evidence that his general reputation for
truth, honesty, or integrity is bad, or
3. by evidence that he has made at other
times statements inconsistent with his
present, testimony,
but not by evidence of particular wrongful acts,
except that it may be shown by the examination of
the witness, or the record of the judgment, that he
has been convicted of an offense. (15)
NOTE: To impeach a witness means to discredit
the witness’ testimony. It is a fundamental right on
cross-examination. Since the witness’ credibility is
always at issue, it is never beyond the permissible
scope of cross-examination.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
OTHER MODES OF IMPEACHMENT aside fro
sec. 11:
1. by involving him on cross-examination in
contradiction;
2. by showing the impossibility or
improbability of his testimony;
3. by proving action or conduct of the
witness inconsistent with his testimony;
4. by showing bias, interest or hostile feeling
against the adverse party.
NOTE: The impeachment is limited to bad
reputation and the bad reputation must be for lack
of veracity and does not extend to bad reputation
for lack of morals (E.g. You may discredit a
witness because he is a well-known liar but not if
he is a well-known womanizer.
The fact that a witness has been impeach does
not mean that his testimony will be stricken or
disregarded.
CONTRADICTORY EVIDENCE
It refers to other testimony of the same witness, or
other evidence presented by him in the same
case, but not the testimony of another witness.
While prior inconsistent statements refer to
statements oral or documentary, made by the
witness sought to be impeached on occasion
other than the trial which he is testifying.
Section 12. Party may not impeach his own
witness. — Except with respect to witnesses
referred to in paragraphs (d) and (e) of Section 10,
the party producing a witness is not allowed to
impeach his credibility.
A witness may be considered as unwilling or
hostile only if so declared by the court upon
adequate showing of his adverse interest,
unjustified reluctance to testify, or his having
misled the party into calling him to the witness
stand.
The unwilling or hostile witness so declared, or the
witness who is an adverse party, may be
impeached by the party presenting him in all
respects as if he had been called by the adverse
party, except by evidence of his bad character. He
may also be impeached and cross-examined by
the adverse party, but such cross-examination
must only be on the subject matter of his
examination-in-chief. (6a, 7a)
Reason: By calling the witness, the party certifies
to his credibility.
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Exceptions to sec. 12:
1. Witnesses required by law;
In the probate of a will, if the will is
contested, the law requires that
the proponent should present all
the attesting witnesses to the will
if they are still alive. If any or all of
them testify against the due
execution of the will or do not
remember having attested to it or
are otherwise of doubtful
credibility, the proponent can start
impeaching these witnesses.
2. Witness is an adverse party;
3. Witness is an unwilling or hostile witness.
REASON: Without the exceptions, the party
calling the witness will be at the mercy of a
TREACHEROUS witness.
Section 13. How witness impeached by
evidence of inconsistent statements. — Before
a witness can be impeached by evidence that he
has made at other times statements inconsistent
with his present testimony, the statements must
be related to him, with the circumstances of the
times and places and the persons present, and he
must be asked whether he made such statements,
and if so, allowed to explain them. If the
statements be in writing they must be shown to
the witness before any question is put to him
concerning them. (16)
THE PROCESS OF IMPEACHMENT
TWO different stages:
1. The facts discrediting the witness or his
testimony may be elicited from the witness
upon cross-examination;
2. The facts discrediting the witness are
proved by extrinsic evidence( the adverse
party in rebuttal proves by another witness
or documentary evidence the facts
discrediting the testimony of the witness
under attack.
A witness is impeached by prior inconsistent
statements by “laying the predicate”:
1. By confronting him with such statements,
with the circumstances under which they
were made;
2. By asking him whether he made such
statements;
3. By giving him the chance to explain the
inconsistency.
It is universally accepted that unless a ground is
thus laid upon cross-examination, evidence of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
contradictory statements are not admissible to
impeach a witness.
The rule that the attention of the witness be called
to the time, place and circumstances, does not
apply where the impeaching evidence is in writing.
The writing must be shown to the witness so that
he may read it or it may be read to him. He must
be asked if wrote it or signed it and if he admits
this, his attention must be called to the
inconsistencies.
REASONS FOR LAYING THE PREDICATE
1. To avoid unfair surprise to the adverse
party;
2. To save time, as an admission of the
witness may take the extrinsic proof
unnecessary; and
3. To give the witness, in fairness to him, a
chance to explain the discrepancy.
It shall be the duty of the party trying to impugn
the testimony of a witness by means of prior or for
that matter, subsequent inconsistent statements,
whether oral or in writing, to give the witness a
chance to reconcile his conflicting declaration
such that it is only when no reasonable
explanation is given by him that he shall be
deemed impeached.
EFFECT OF WITNESS DENIAL OF MAKING
STATEMENT
If the witness denies making the prior statement or
says that he does not remember making it, the
other party should call in rebuttal a witness to
prove that such statement has in fact been made
(Herrera).
Prior inconsistent statement of a witness which is
admissible as independent evidence may be
shown without laying the predicate (E. g. Where
said testimony contains admission against
interest. The admission is presented as original
independent evidence. This must be offered in
evidence-in- chief and not on rebuttal).
LAYING THE LAYING THE
PREDICATE FOUNDATION OR
BASIS
Refers to a situation
Refers only to where an evidence
impeachment of a which is otherwise
witness through prior incompetent will be
inconsistent statement introduced in evidence
because it falls under
the exceptions to the
rule on exclusion.
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Note: Under the Best Evidence Rule, if a party
desires to introduce secondary evidence, he must
first prove that the writing was duly executed and
that the original has been lost or destroyed.
Without first laying the foundation, secondary
evidence will not be admitted by the court.
Witness; Examination of Witnesses (2002)
Is this question on direct examination objectionable:
“What happened on July 12, 1999”? Why? (2%)
SUGGESTED ANSWER:
The question is objectionable because it has no basis,
unless before the question is asked the proper basis is
laid.
Section 14. Evidence of good character of
witness. — Evidence of the good character of a
witness is not admissible until such character has
been impeached. (17)
Section 15. Exclusion and separation of
witnesses. — On any trial or hearing, the judge
may exclude from the court any witness not at the
time under examination, so that he may not hear
the testimony of other witnesses. The judge may
also cause witnesses to be kept separate and to
be prevented from conversing with one another
until all shall have been examined. (18)
Section 16. When witness may refer to
memorandum. — A witness may be allowed to
refresh his memory respecting a fact, by anything
written or recorded by himself or under his
direction at the time when the fact occurred, or
immediately thereafter, or at any other time when
the fact was fresh in his memory and knew that
the same was correctly written or recorded; but in
such case the writing or record must be produced
and may be inspected by the adverse party, who
may, if he chooses, cross examine the witness
upon it, and may read it in evidence. So, also, a
witness may testify from such writing or record,
though he retain no recollection of the particular
facts, if he is able to swear that the writing or
record correctly stated the transaction when
made; but such evidence must be received with
caution. (10a)
A. PRESENT RECOLLECTION REVIVED
REVIVAL OF PRESENT TESTIMONY
A witness may be allowed to
refresh his memory respecting a
fact, by anything written or
recorded by himself or under his
direction at the time when the fact
occurred, or immediately
thereafter, or later so long as the
fact was fresh in his memory and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
he knew that it was correctly
recorded.
NOTE: The evidence is still testimonial in
character. The memorandum will not be
considered as documentary evidence.
B. PAST RECOLLECTION RECORDED
REVIVAL OF PAST RECOLLECTION
A witness may also testify from
such writing or record, though he
retains no recollection of
particular facts, if he is able to
swear that the writing or record
correctly stated the transaction
when made, but such evidence
must be received with caution.
NOTE: Since there is complete loss of recollection
or memory on the part of the witness, then it is the
memorandum itself that will serve as the evidence.
It will now be considered documentary evidence.
PRESENT PAST
RECOLLECTION RECOLLECTION
REVIVED RECORDED
Memory is obscure but Recollection is zero
there is still memory
The main evidence is The main evidence is
the testimony of the the memorandum
witness
The witness simply Witness must swear
testifies that the that the writing correctly
memorandum is states the transaction
correctly written by him
or under his direction;
no need to swear
The memorandum from which the witness may be
permitted to refresh his memory need not be an
original writing. It is sufficient if it is shown that the
witness knows the copy to be a true one, and his
memory refreshed thereby enables him to testify
from his own recollection of the facts, independent
of his confidence of the accuracy of the copy.
Memorandum (1996)
X states on direct examination that he once knew the
facts being asked but he cannot recall them now.
When handed a written record of the facts he testifies
that the facts are correctly stated, but that he has never
seen the writing before. Is the writing admissible as
past recollection recorded? Explain,
SUGGESTED ANSWER:
No, because for the written record to be admissible as
past recollection recorded. It must have been written
or recorded by X or under his direction at the time
when the fact occurred, or immediately thereafter, or
at any other time when the fact was fresh in his
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memory and he knew that the same was correctly Note: A public document can be received in
written or recorded. (Sec. 16 of Rule 132) But in this case X evidence without giving any proof of their due
has never seen the writing before. execution and authenticity.

Section 17. When part of transaction, writing or Note: Defective notarization does not necessarily
record given in evidence, the remainder, the nullify or render void ab initio the parties’
remainder admissible. — When part of an act, transaction, nor ipso facto invalidate the Deed of
declaration, conversation, writing or record is Sale (Abellana vs. P., GR No. 174654, Aug. 17,
given in evidence by one party, the whole of the 2011).
same subject may be inquired into by the other,
and when a detached act, declaration, PUBLIC PRIVATE
conversation, writing or record is given in WRITING WRITING
evidence, any other act, declaration, conversation, A public A private
writing or record necessary to its understanding document is writing must be
may also be given in evidence. (11a) admissible in proved relative
As to
authenticity evidence to its due
Note: this section enunciates the doctrine of without further execution and
indivisibility of evidence. proof of its genuineness
genuineness before it may
Section 18. Right to inspect writing shown to and due be received in
witness. — Whenever a writing is shown to a execution evidence
witness, it may be inspected by the adverse party. A public Private writing
(9a) instrument is binds only the
As to persons evidence parties who
B. AUTHENTICATION AND PROOF OF bound against 3rd executed it or
DOCUMENTS persons, of the their privies, in
fact which so far as due
gave rise to its execution and
AUTHENTICATION due execution date of the
It means the process of PROVING the due and to the date document are
execution and genuineness of the document. of the latter concern
Certain
DOCUMENT
transactions
It is a deed, instrument, or other duly authorized
As to validity must be in
paper by which something is proved, evidenced or
of certain public
set forth.
transaction instrument,
other wise they
Section 19. Classes of Documents. — For the will not be
purpose of their presentation evidence, given any
documents are either public or private. validity

Public documents are: Section 20. Proof of private document. —

(a) The written official acts, or records of
the official acts of the sovereign authority,
official bodies and tribunals, and public
officers, whether of the Philippines, or of a
foreign country;
Before any private document offered as authentic
is received in evidence, its due execution and
authenticity must be proved either:
(a) By anyone who saw the document
executed or written; or

(b) Documents acknowledged before a (b) By evidence of the genuineness of the

notary public except last wills and signature or handwriting of the maker.
testaments; and
Any other private document need only be
(c) Public records, kept in the Philippines, identified as that which it is claimed to be. (21a)
or private documents required by law to
be entered therein.
Bar Exam Question 2012
All other writings are private. (20a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 569
________________________________________________________________________________________________
66. A private document may be considered as
evidence when it is sequentially:
a. marked, identified, authenticated.
b. identified, marked and offered in evidence.
c. marked, identified, authenticated and
offered in evidence.
d. marked, authenticated and offered in
evidence.
SUGGESTED ANSWER:
(c), Before any private document is offered
as authentic is received in evidence, its
due execution and authenticity must be
proved. (Rule 132, Sec. 20). The private
document must be marked during the pre-
marking of exhibits. It must be identified
and authenticated by a witness, and
thereafter offered, as the court shall not
consider any evidence which has not been
formally offered. (Rule 132, Sec. 34). In
addition, the private document must also
be admitted by the court in order to be
considered as evidence.
Buñag v. CA, 158 SCRA 299 (1988) The
authenticity and due execution of a private
document is not proven by testimony that the party
thumbmarked it. The circumstances of the
presence of the witness during the execution must
be related. There must be proof that the party
understood it, considering he was illiterate (implied
from the thumbmarking). There must be showing
that the document was duly read, explained and
translated to the illiterate party.
NOTE: The following are private writings which
may be admitted in evidence without previous
proof of its authenticity and due execution:
1. When the genuineness and due execution
of the document is admitted by the
adverse party;
a. Failure to deny under oath an
actionable document;
b. Request for admission is not
answered.
2. When such genuineness and due
execution is immaterial to the issue;
3. When the document is an ANCIENT
DOCUMENT (sec. 21).
4. When it is offered as not authentic.
NOTE: The ancient document rule applies only if
there are no other witnesses to determine
authenticity.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
In addition to the modes of authenticating a private
document under section 20, American
jurisprudence also gives the Doctrine of Self-
Authentication, that is, where the facts in writing
could only have been known by the writer; and
also the rule of authentication by adverse
party, that is , where the reply of the adverse
party refers to and affirms the sending to him and
his receipt of the letter in question, a copy of which
the proponent is offering as evidence (Regalado).
Section 21. When evidence of authenticity of
private document not necessary. — Where a
private document is more than thirty years old, is
produced from the custody in which it would
naturally be found if genuine, and is unblemished
by any alterations or circumstances of suspicion,
no other evidence of its authenticity need be
given. (22a)
NOTE: This is the ancient document rule.
An ancient document is said to be in proper
custody if it is in the place in which and under the
care of the person with whom it would naturally
be.
REASON: The fact of it s coming from the natural
and proper place tends to remove presumptions of
fraud and strengthen the belief of its genuineness.
Bartolome v. IAC, 183 SCRA 102 (1990) Where
the offeror’s witness testified that the document
had a missing 4th page, the document can not
qualify as an ancient document because it is
blemished by alteration or circumstance of
suspicion. An incomplete document is akin to an
altered document, more so if the missing page
contains the signature of the parties to the
document. Proof of the document’s authenticity
and due execution is therefore necessary.
By merely producing the document, it establishes
prima facie it own authentication. The burden then
shifts to the adverse party to prove that the
document is not what it purports to be or other
wise not authentic.
Section 22. How genuineness of handwriting
proved. — The handwriting of a person may be
proved by any witness who believes it to be the
handwriting of such person because he has seen
the person write, or has seen writing purporting to
be his upon which the witness has acted or been
charged, and has thus acquired knowledge of the
handwriting of such person. Evidence respecting
570
________________________________________________________________________________________________
the handwriting may also be given by a
comparison, made by the witness or the court,
with writings admitted or treated as genuine by the
party against whom the evidence is offered, or
proved to be genuine to the satisfaction of the
judge. (23a)
METHODS OF AUTHENTICATION:
1. Testimony of the purported writer;
2. The testimony of a witness who has seen
the writer sign his name or actually made
the writing whether the witness attested
the instrument or not;
3. The testimony of a witness who is familiar
with the hand-writing. Thus, under this
rule, the genuineness of a handwriting
may be proved:
a. By any witness who believes it to
be the hand writing of such
person because he has seen the
person write or has seen writing
purporting to be his upon which
the witness has acted or been
charged;
b. By comparison made by the
witness or the court, with the
writings admitted or treated as
genuine by the party, against
whom the evidence is offered, or
proved to be genuine to the
satisfaction of the judge.
Handwriting experts not mandatory
Handwriting experts while probably useful are not
indispensable in examining or comparing
handwriting.
Weight of expert testimony
It depends upon the assistance he may afford in
pointing out the distinguishing marks,
characteristics and discrepancies in and between
the genuine and false specimens of writings which
would ordinarily escape notice or detection by an
untrained observer.
Section 23. Public documents as evidence. —
Documents consisting of entries in public records
made in the performance of a duty by a public
officer are prima facie evidence of the facts therein
stated. All other public documents are evidence,
even against a third person, of the fact which gave
rise to their execution and of the date of the latter.
(24a)
Section 24. Proof of official record. — The
record of public documents referred to in
paragraph (a) of Section 19, when admissible for
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
any purpose, may be evidenced by an official
publication thereof or by a copy attested by the
officer having the legal custody of the record, or by
his deputy, and accompanied, if the record is not
kept in the Philippines, with a certificate that such
officer has the custody. If the office in which the
record is kept is in foreign country, the certificate
may be made by a secretary of the embassy or
legation, consul general, consul, vice consul, or
consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign
country in which the record is kept, and
authenticated by the seal of his office. (25a)
PROOF OF OFFICIAL RECORD
1. Domestic Record—it may be evidenced by:
a. An official publication; or
b. A copy thereof attested by the officer
having the custody of the record or his
deputy, with a certificate that such officer
has the custody.
2. Foreign Record—it may be evidenced by:
a. An official publication; or
b. A copy thereof attested by the officer
having the custody of the record or his
deputy, accompanied by a certificate of
the secretary of the embassy or legation,
consul general, consul, vice-consul or
consular agent or foreign service officer
and with a seal of his office.
Pacific Asia Overseas v. NLRC, 161 SCRA 122
(1988) To be enforceable, the foreign judgment
must be proven as a public document of a written
official act or record of an act of an official body or
tribunal of a foreign country. The offeror must
submit an attestation issued by the proper foreign
official having legal custody of the original
judgment that the copy is a faithful reproduction of
the original, which attestation must be
authenticated by a Philippine Consular officer
having jurisdiction in that country.
Zalamea v. CA, 228 SCRA 23 (1993) Foreign laws
do not prove themselves nor can the courts take
judicial notice of them. Like any other fact, they
must be alleged and proved. Written law may be
evidenced by an official publication thereof or by a
copy attested by the officer having the legal
custody of the record, or by his deputy, and
accompanied with a certificate that such officer
has custody. The certificate may be made by a
secretary of an embassy or legation, consul
general, consul, vice-consul, or consular agent or
by any officer in the foreign service of the
Philippines stationed in the foreign country in
which the record is kept, and authenticated by the
571
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seal of his office. Mere testimony of a witness is
not sufficient to prove foreign law.
Section 25. What attestation of copy must
state. — Whenever a copy of a document or
record is attested for the purpose of evidence, the
attestation must state, in substance, that the copy
is a correct copy of the original, or a specific part
thereof, as the case may be. The attestation must
be under the official seal of the attesting officer, if
there be any, or if he be the clerk of a court having
a seal, under the seal of such court. (26a)
Section 26. Irremovability of public record. —
Any public record, an official copy of which is
admissible in evidence, must not be removed from
the office in which it is kept, except upon order of
a court where the inspection of the record is
essential to the just determination of a pending
case. (27a)
Section 27. Public record of a private
document. — An authorized public record of a
private document may be proved by the original
record, or by a copy thereof, attested by the legal
custodian of the record, with an appropriate
certificate that such officer has the custody. (28a)
Section 28. Proof of lack of record. — A written
statement signed by an officer having the custody
of an official record or by his deputy that after
diligent search no record or entry of a specified
tenor is found to exist in the records of his office,
accompanied by a certificate as above provided, is
admissible as evidence that the records of his
office contain no such record or entry. (29)
Section 29. How judicial record impeached. —
Any judicial record may be impeached by
evidence of:
(a) want of jurisdiction in the court or judicial
officer,
(b) collusion between the parties, or
(c) fraud in the party offering the record, in
respect to the proceedings. (30a)
Section 30. Proof of notarial documents. —
Every instrument duly acknowledged or proved
and certified as provided by law, may be
presented in evidence without further proof, the
certificate of acknowledgment being prima facie
evidence of the execution of the instrument or
document involved. (31a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
NOTE: GR: A document acknowledged before a
notary public becomes a public instrument.
Hence, its execution and authenticity need not
be proved as in a private writing.
EXCEPTION: Notarial Wills.
Section 31. Alteration in document, how to
explain. — The party producing a document as
genuine which has been altered and appears to
have been altered after its execution, in a part
material to the question in dispute, must account
for the alteration. He may show that:
1. the alteration was made by another,
without his concurrence, or
2. was made with the consent of the parties
affected by it, or
3. was otherwise properly or innocently
made, or
4. that the alteration did not change the
meaning or language of the instrument.
If he fails to do that, the document shall not be
admissible in evidence. (32a)
Section 32. Seal. — There shall be no difference
between sealed and unsealed private documents
insofar as their admissibility as evidence is
concerned. (33a)
Section 33. Documentary evidence in an
unofficial language. — Documents written in an
unofficial language shall not be admitted as
evidence, unless accompanied with a translation
into English or Filipino. To avoid interruption of
proceedings, parties or their attorneys are directed
to have such translation prepared before trial.
(34a)
Pacific Asia Overseas v. NLRC, 161 SCRA 122
(1988) A document written in an unofficial
language should be translated into either English
or Filipino. The translator should be identified
either as an official interpreter of the court, or as a
competent translator of both languages. The
translation should be either sworn to as an
accurate translation of the original, or agreed upon
by the parties.
People v. Monleon, 74 SCRA 263 (1976)
Affidavits written in an unofficial language and not
accompanied with a translation are inadmissible in
evidence.
C. OFFER AND OBJECTION
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Formal offer of evidence
Objections: grounds—immaterial or irrelevant
Sustained: evidence Overruled: evidence
offered will not be will be allowed to be
allowed to be presented presented in court
in court
Remedy of offeror: Presentation of
tender of excluded evidence offered
evidence
Objections to presentation on grounds of
general or specific grounds
Sustained: question Overruled: questions
posed will not be will be allowed
permitted. E.g.
misleading, revise
question, or tender of
excluded evidence
Section 34. Offer of evidence. — The court shall
consider no evidence which has not been formally
offered. The purpose for which the evidence is
offered must be specified. (35)
Why purpose of offer must be specified
To determine whether that piece of
evidence should be admitted or not.
Because such evidence may be
admissible for several purposes under the
doctrine of multiple admissibility, or may
be admissible for only one purpose and
not for another, otherwise the other party
cannot interpose the proper objection.
Evidence submitted for one purpose may
not be considered for other purpose by
the judge.
NOTE: Where the evidence is inadmissible for the
purpose stated in the offer, it must be rejected,
though the same may be admissible for another
purpose. The reason is that the adverse party is
prevented from objecting to the admissibility
thereof on grounds other than those available to
meet the stated purpose.
In the case of Mata Vda. De Onate vs. CA, the
court allowed evidence not formally offered to be
admitted and considered by the trial court
provided the following requirements are present:
1. The same must have been duly identified
by testimony duly recorded;
2. The same must have been incorporated to
the records of the case.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Philippine Bank of Commerce v. CA, 195 SCRA
567 (1991) Where the genuineness and due
execution of documents of an instrument attached
to a complaint are deemed admitted by failure to
specifically deny it under oath, such instruments
are considered as evidence although they were
not formally offered.
Tabuena v. CA, 196 SCRA 650 (1991) Mere fact
that a document is marked as an exhibit does not
mean it has been offered as evidence. Marking at
the pre-trial was only for the purpose of identifying
them at that time. However, if an exhibit has been
duly identified by testimony duly recorded and has
itself been incorporated into the records (i.e.
recital of the contents of the exhibit).
Section 35. When to make offer. — As regards
the testimony of a witness, the offer must be made
at the time the witness is called to testify.
Documentary and object evidence shall be offered
after the presentation of a party's testimonial
evidence. Such offer shall be done orally unless
allowed by the court to be done in writing. (n)
Offer of Evidence (1997)
A trial court cannot take into consideration in deciding
a case an evidence that has not been "formally
offered". When are the following pieces of evidence
formally offered?
(a) Testimonial evidence
(b) Documentary evidence
(c) Object evidence
SUGGESTED ANSWER:
(a) Testimonial evidence is formally offered at the time
the witness is called to testify. (Rule 132. Sec. 35, first par.).
(b) Documentary evidence is formally offered after the
presentation of the testimonial evidence. (Rule 132, Sec.
35, second par.).
(c) The same is true with object evidence. It is also
offered after the presentation of the testimonial
evidence.
Offer of Evidence; Testimonial & Documentary (1994)
What is the difference between an offer of testimonial
evidence and an offer of documentary evidence?
SUGGESTED ANSWER:
An offer of testimonial evidence is made at the time he
witness is called to testify, while an offer of
documentary evidence is made after the presentation
of a party’s testimonial evidence. (Sec. 35, Rule 132).
Offer of Evidence; Failure to Offer (2007)
No.VII. (b) G files a complaint for recovery of
possession and damages against F. In the
course of the trial, G marked his evidence but
his counsel failed to file a formal offer of
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evidence. F then presented in evidence tax
declarations in the name of his father to
establish that his father is a co-owner of the
property. The court ruled in favor of F, saying
that G failed to prove sole ownership of the
property in the face of F’s evidence. Was the
court correct? Explain briefly. (5%)
SUGGESTED ANSWER: No, the trial court
is not correct in ruling in favor of F. Tax
Declaration are not by themselves
evidence of ownership; hence, they are
not sufficient evidence to warrant a
judgment that F‟s father is a co-owner of
the property. Plaintiff‟s failure to make a
formal offer of his evidence may mean a
failure to prove the allegations in his
complaint. However, it does not
necessarily result in a judgment awarding
co-ownership to the defendant. While the
court may not consider evidence which is
not offered, the failure to make a formal
offer of evidence is a technical lapse in
procedure that may not be allowed to
defeat substantive justice. In the interest
of justice, the court can require G to offer
his evidence and specify the purpose
thereof.
IMPLIED OFFER
Every time a question is asked of a witness, there
is an implies automatic offer of the evidence
sought to be elicited by the question, if there is
any objection to the question, the same must be
raised immediately; otherwise there is a waiver.
Therefore, oral evidence is always being offered
twice:
1. Before the witness testifies;
2. Every time a question is asked of him.
PROCEDURE BEFORE DOCUMENTARY AND
OBJECT EVIDENCE CAN BE CONSIDERED BY
THE COURT:
1. Marking;
2. Identification;
3. Authentication;
4. Formal offer;
5. If the evidence is excluded, an offer of
proof (tender of excluded evidence).
Authentication and identification can be dispensed
with if there is a stipulation on the due execution
and genuineness of a private document.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
STAGES IN THE PRESENTATION OF
DOCUMENTARY
1. IDENTIFICATION
By identification is meant proof that the
document being presented is the same
one offered by the witness in his
testimony.
2. MARKING
All exhibits should be marked to facilitate
their identification. The marking may be
done at the pre-trial or during trial.
The plaintiff and the prosecution use
capital letters (A, B, C, etc) and the
accused use Arabic numbers (1, 2, 3, etc).
If the exhibit is presented in connection
with an affidavit, like in support or in
opposition to a motion to dismiss, the
words “motion to dismiss”, should be
added after the letter or number.
3. AUTHENTICATION
The proof of the document’s due
execution and genuineness if the purpose
is to show that it is genuine or the proof of
its forgery, if the purpose is to show that
the document is a forgery.
4. INSPECTION
Under section 18, Rule 132, whenever a
writing is shown to a witness, it may be
inspected by the adverse party.
5. FORMAL OFFER
After the termination of the testimonial
evidence, the proponent will then make a
formal offer and state the purpose for
which the document is presented.
6. OBJECTIONS
The objection to the introduction or
presentation of the document shall be
made when it is formally offered in
evidence.
There is a distinction between identification of
documentary evidence and formal offer of
documentary evidence as an exhibit.
1. In identification of documentary
evidence, the same is done in the course
of the trial and is accompanied by the
marking of the evidence as an exhibit.
2. In formal offer of evidence as an
exhibit, the same is done when the party
has presented his testimonial evidence.
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NOTE: The mere fact that a particular document is
identified and marked as an exhibit does not mean
that it will be or has been offered as part of the
evidence of the party. The party may decide to
formally offer it if it believes that this will advance
his cause, or it may decide not to do so at all.
Section 36. Objection. — Objection to evidence
offered orally must be made immediately after the
offer is made.
Objection to a question propounded in the course
of the oral examination of a witness shall be made
as soon as the grounds therefor shall become
reasonably apparent.
An offer of evidence in writing shall be objected to
within three (3) days after notice of the unless a
different period is allowed by the court.
In any case, the grounds for the objections must
be specified. (36a)
CLASSIFICATION OF OBJECTIONS:
1. General Objection—It does not go
beyond declaring that the evidence as
immaterial, incompetent, irrelevant or
inadmissible; in other words, it does not
specify the specific grounds for objection
(also known as a Broadside Objection).
2. Specific Objection—It states why or how
the evidence is irrelevant or incompetent.
Example: Objection to the question being
leading.
Requirements to exclude inadmissible
evidence:
1. One has to object to the evidence;
2. The objection must be timely made;
3. The grounds for the objection must be
specified.
Reasons why objection must be specified:
1. So that the judge may understand the
question raised and that the adversary
may have an opportunity to remedy the
defect, if possible.
2. To make a proper record for the reviewing
court in case of appeal.
NOTE: As a rule, failure to specify the grounds for
the objection is in effect a waiver of the objection.
Every other objection which is not particularly
stated is to be considered abandoned, except
where the evidence could not have been legally
admitted for any purpose whatever.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
When the evidence is excluded upon a mere
general objection, the ruling will be upheld, if any
ground in fact existed for the exclusion. It will be
assumed, in the absence of any request by the
opposing party or the court to make the objection
definite, that the ruling was placed upon the right
ground.
Catuira v. CA, 236 SCRA 398 (1994) Failure to
object upon the time a witness is called to testify
on the ground that there was no formal offer of the
testimony is a waiver of the objection. Objection
on such ground after the witness has testified is
too late.
Interpacific Transit, Inc. v. Aviles, 186 SCRA 385
(1990) Objection to documentary evidence must
be made at the time it is formally offered (i.e. when
the party rests its case) as an exhibit and not
before. Objection prior to that time (e.g.
identification of the evidence) is premature. Mere
identification and marking is not equivalent to a
formal offer of the evidence. A party may decide to
not offer evidence already identified and marked.
Admissibility; Objections (1997)
What are the two kinds of objections? Explain each
briefly. Given an example of each.
SUGGESTED ANSWER:
Two kinds of objections are: (1) the evidence being
presented is not relevant to the issue; and (2) the
evidence is incompetent or excluded by the law or the
rules, (Sec. 3, Rule 138). An example of the first is when
the prosecution offers as evidence the alleged offer of
an Insurance company to pay for the damages suffered
by the victim in a homicide case. (See 1997 No. 14).
Examples of the second are evidence obtained in
violation of the Constitutional prohibition against
unreasonable searches and seizures and confessions
and admissions in violation of the rights of a person
under custodial Investigation.
ALTERNATIVE ANSWERS:
1) Specific objections: Example: parol evidence and
best evidence rule General Objections: Example:
continuing objections (Sec. 37 of Rule 132).
2) The two kinds of objections are: (1) objection to a
question propounded in the course of the oral
examination of the witness and (2) objection to an
offer of evidence in writing. Objection to a question
propounded in the course of the oral examination of a
witness shall be made as soon as the grounds therefor
shall become reasonably apparent otherwise, it is
waived. An offer of objection in writing shall be made
within three (3) days after notice of the offer, unless a
different period is allowed by the court. In both
instances the grounds for objection must be specified.
An example of the first is when the witness is being
cross-examined and the cross examination is on a
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matter not relevant. An example of the second is that
the evidence offered is not the best evidence.
Section 37. When repetition of objection
unnecessary. — When it becomes reasonably
apparent in the course of the examination of a
witness that the question 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. (37a)
NOTE: This is known as the Rule on Continuing
Objections
Section 38. Ruling. — The ruling of the court must
be given immediately after the objection is made,
unless the court desires to take a reasonable time
to inform itself on the question presented; but the
ruling shall 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.
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. (38a)
Hearsay Evidence; Objection (2012) No.VII.
(a) Counsel A objected to a question posed by
opposing Counsel B on the grounds that it
was hearsay and it assumed a fact not yet
established. The judge banged his gavel and
ruled by saying "Objection Sustained". Can
Counsel 8 ask for a reconsideration of the
ruling? Why? (5%) SUGGESTED ANSWER:
Yes, Counsel B may ask the Judge to
specify the ground‟s relied upon for
sustaining the objection and thereafter
move its reconsideration thereof. (Rule
132, Sec.38, Rules of Court).
Section 39. Striking out answer. — Should a
witness answer the question before the adverse
party had the opportunity to voice fully its objection
to the same, and such objection is found to be
meritorious, the court shall sustain the objection
and order the answer given to be stricken off the
record.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
On proper motion, the court may also order the
striking out of answers which are incompetent,
irrelevant, or otherwise improper. (n)
MODES OF EXCLUDING INADMISSIBLE
EVIDNCE
1. Objection when the evidence is formally
offered;
2. Motion to strike out;
a. When the witness prematurely
answered the question before the
adverse party had the opportunity
to voice out fully its objection;
b. When the answer is
unresponsive,
c. When answer is incompetent.
Irrelevant, or improper;
d. Uncompleted testimonies where
there is no opportunity for cross-
examination;
e. Conditionally admitted evidence
not later substantiated.
Bar Exam Question 2011
(42) During trial, plaintiff offered evidence
that appeared irrelevant at that time but he
said he was eventually going to relate to the
issue in the case by some future evidence.
The defendant objected. Should the trial
court reject the evidence in question on
ground of irrelevance? (A) No, it should
reserve its ruling until the relevance is
shown. (B) Yes, since the plaintiff could
anyway subsequently present the evidence
anew. (C) Yes, since irrelevant evidence is not
admissible. (D) No, it should admit it
conditionally until its relevance is shown.
Section 40. Tender of excluded evidence. — If
documents or things offered in evidence are
excluded by the court, the offeror may have the
same attached to or made part of the record. If the
evidence excluded is oral, the offeror may state for
the record the name and other personal
circumstances of the witness and the substance of
the proposed testimony. (n)
NOTE: When an attorney is not allowed by the
court to present testimony which he thinks is
competent, material and necessary to prove his
case, he must make an offer of proof. This is the
method of properly preserving the record to the
end that the question may be saved for the
purpose of review (Caraig, P.337).
PURPOSES:
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1. To inform the court what is expected to be 4. SUBSTANTIAL EVIDENCE

proved;
2. So that the appellate court may determine Required to reach a conclusion in an
from the record whether the proposed administrative proceedings or to establish
evidence is competent. a fact before administrative/quasi-judicial
bodies.
OFFER OF Such relevant evidence as a reasonable
PROOF/TENDER OF OFFER OF PROOF mind might accept as adequate to support
EXCLUDED a conclusion.
EVIDENCE
It refers to testimonial, Administrative Proceedings (2005)
documentary or object Regional Director AG of the Department of Public
Only resorted to if evidence that are Works and Highways was charged with violation of
admission is refused by presented or offered in Section 3(e) of Republic Act No. 3019 in the Office of
the court for purposes court by a party so that the Ombudsman. An administrative charge for gross
of review on appeal the court can consider misconduct arising from the transaction subject matter
his evidence when it of said criminal case was filed against him in the same
comes to the office. The Ombudsman assigned a team composed of
preparation of the investigators from the Office of the Special Prosecutor
decision. and from the Office of the Deputy Ombudsman for
the Military to conduct a joint investigation of the
criminal case and the administrative case. The team of
investigators recommended to the Ombudsman that
RULE 133 AG be preventively suspended for a period not
exceeding six months on its finding that the evidence
Weight and Sufficiency of Evidence of guilt is strong. The Ombudsman issued the said
order as recommended by the investigators. AG
NOTES: HEIRARCHY OF EVIDENTIARY moved to reconsider the order on the following
VALUES grounds: (a) the Office of the Special Prosecutor had
exclusive authority to conduct a preliminary
1. PROOF BEYOND REASONABLE DOUBT investigation of the criminal case; (b) the order for his
preventive suspension was premature because he had
It is required for conviction of the accused yet to file his answer to the administrative complaint
in a criminal case. and submit countervailing evidence; and (c) he was a
That which is the logical and inevitable career executive service officer and under Presidential
result of the evidence on record, exclusive Decree No. 807 (Civil Service Law), his preventive
of any other consideration, of the moral suspension shall be for a maximum period of three
certainty of the guilt of the accused or that months. Resolve with reasons the motion of
degree of proof which produces a respondent AG. (5%)
conviction in an unprejudiced mind. SUGGESTED ANSWER:
The motion should be denied for the following
2. CLEAR AND CONVINCING EVIDENCE reasons:
1 The Office of the Special Prosecutor does not
This is adduced to overcome a prima facie have exclusive authority to conduct a preliminary
case or a disputable presumption. investigation of the criminal case but it participated in
That degree of proof which will produce in the investigation together with the Deputy
the mind of the trier of facts a firm belief or Ombudsman for the Military who can handle cases of
conviction as to the allegations sought to civilians and is not limited to the military.
be established. 2 The order of preventive suspension need not wait for
the answer to the administrative complaint and the
3. PREPONDERANCE OF EVIDENCE submission of countervailing evidence. (Garcia v. Mojica,
G.R. No. 13903, September 10, 1999) In Vasquez case, G.R. No.
The degree of proof required in civil 110801, April 6, 1995, the court ruled that preventive
cases. suspension pursuant to Sec. 24 of R.A. No. 6770
That which is of greater weight or more (Ombudsman Act of 1989), shall continue until
convincing than that which is offered in termination of the case but shall not exceed six (6)
opposition to it. months, except in relation to R.A. No, 3019 and P.D.
No. 807. As a career executive officer, his preventive

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 577

________________________________________________________________________________________________
suspension under the Civil Service Law may only be
for a maximum period of three months. The period of
the suspension under the Anti-Graft Law shall be the
same pursuant to the equal protection clause. (Garcia
v. Mojica, G.R. No. 13903, September 10, 1999; Layno v.
Sandiganbayan, G.R. No. L-65848, May 21, 1985)
Bar Exam Question 2011
(21) 008-997-0001 In which of the following
instances is the quantum of evidence
ERRONEOUSLY applied? (A) in Writ of
Amparo cases, substantial evidence. (B) to
satisfy the burden of proof in civil cases,
preponderance of evidence. (C) to overcome a
disputable presumption, clear and
convincing evidence. (D) to rebut the
presumptive validity of a notarial
document, substantial evidence.
Note: Evidence to be believed must not only come
from a credible witness but must also be credible
in itself.
EQUIPOISE RULE
Where the evidence of the parties in a criminal
case is evenly balanced, the constitutional
presumption of innocence should tilt the scales in
favor of the accused.
EQUIPONDERANCE OF EVIDENCE (RULE)
In civil cases, when there is balance in the
evidence of the plaintiff and the defendant, as a
rule defendant wins. Plaintiff must proved his
allegations by preponderance of evidence.
HOWEVER, when the defendant interposes an
affirmative defense, and the evidence is evenly
balanced, [it is suggested] plaintiff wins. The
affirmative defense shifted the burden of proof to
the defendant. Besides, by raising affirmative
defense, the defendant is deemed to have
admitted the material allegations in the complaint.
Section 1. Preponderance of evidence, how
determined. — In civil cases, the party having
burden of proof must establish his case by a
preponderance of evidence. In determining where
the preponderance or superior weight of evidence
on the issues involved lies, the court may
consider:
1. all the facts and circumstances of the
case,
2. the witnesses' manner of testifying, their
intelligence, their means and opportunity
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
of knowing the facts to which there are
testifying,
3. the nature of the facts to which they
testify,
4. the probability or improbability of their
testimony,
5. their interest or want of interest, and
6. also their personal credibility so far as the
same may legitimately appear upon the
trial.
The court may also consider the number of
witnesses, though the preponderance is not
necessarily with the greater number. (1a)
NOTE: In order to have the evidence which bears
on the issue preponderate in his favor, a party
must have presented in support of his contention
proof which appears to have overcome opposing
presumptions as well as opposing evidence.
POSITIVE NEGATIVE
TESTIMONY TESTIMONY
It is when the witness It is when the witness
affirms that a fact did or states that he did not
did not occur see or know of the
occurrence of a fact
Of greater weight that Is of lesser weight than
the other positive testimony
REASON WHY POSITIVE TESTIMONY IS OF
GREATER WEIGHT
He who denies a certain fact may not remember
exactly the circumstances on which he basis his
denial.
Section 2. Proof beyond reasonable doubt. —
In a criminal case, the accused is entitled to an
acquittal, unless his guilt is shown beyond
reasonable doubt. Proof beyond reasonable doubt
does not mean such a degree of proof, excluding
possibility of error, produces absolute certainty.
Moral certainly only is required, or that degree of
proof which produces conviction in an
unprejudiced mind. (2a)
Note: Prosecution must present evidence that is
strong enough to convince the court that the
prisoner must be punished not because he cannot
proved that he is innocent but because it has
proved that he was guilty.
For the accused, it is enough that he is able to
prove his defenses by preponderance of evidence
since it will create a reasonable doubt as to his
guilt. Thus, whenever there is a reasonable doubt
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as to is guilt, the accused is entitled to an
acquittal.
ALIBI
One of the weakest defenses because of the
facility with which it can be fabricated, just like a
mere denial (P. vs. Esperanza, GR No. 139217-
24, June 27, 2003).
It must be established by positive, clear and
satisfactory evidence.
REQUISITES:
1. showing that the accused is not only
somewhere else;
2. but that it was impossible for him to be at
the place of the crime at the time of its
commission.
MOTIVE
The rule is well-settled that the prosecution need
not prove motive on the part of the accused when
the latter has been positively identified as the
author of the crime.
It becomes relevant only when the accused sas
not been positively identified and proof thereof
becomes essential only when the evidence of the
commission of the crime is purely circumstantial or
inconclusive.
OUT OF COURT IDENTIFICATION: The SC has
held that on the admissibility and reliability of out-
of-court identification of suspects, courts have
adopted the “TOTALITY OF CIRCUMSTANCES
TEST” which utilizes the following factors:
1. the witness’s opportunity to view the
criminal at the time of the crime;
2. the witness’s degree of attention at that
time;
3. the accuracy of any prior description given
by the witness;
4. the level of certainty that the witness
demonstrated at the identification;
5. the length of time between the crime and
the identification;
6. the suggestiveness of the identification
procedure.
When the identity of the appellant is not
established beyond reasonable doubt, acquittal
necessarily follows. Conviction for the crime rests
on the strength of the prosecution’s evidence,
never on the weakness of that of the defense.
In every criminal prosecution, the People must
prove:
1. the commission of the crime; and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
2. the participation of the accused as the
perpetrator or one of the perpetrators.
The 2nd requisite means that the accused must
properly be identified. Cursory identification does
not suffice to convict the accused. There must be
positive identification made with moral certainty as
to the person of the offender (P. vs. Maguing, GR
No. 144090, June 26, 2003).
Eyewitness identification is often decisive of the
conviction or acquittal of the accused.
Identification of an accused through mug shots is
one of the established procedures in pinning down
criminals. However, to avoid charges of
impermissible suggestion, there should be nothing
in the photograph that would focus attention on a
single person (P. vs. Villena, GR no. 140066, Oct.
14, 2002).
A police line-up is merely a part of the
investigation process by police investigators to
ascertain the identity of the offenders or confirm
their identification by a witness to the crime. Police
officers are not obliged to assemble a police line-
up as a condition sine qua non to prove identity of
the offender. If on the basis of the evidence on
hand, police officers are certain of the identity of
the offender, they need not require a police line-up
(Tapdasan, Jr. vs. P. GR No. 141344, Nov. 21,
2002
RES IPSA LOQUITOR (the thing speaks for itself)
It is the maxim for the rule that the fact of the
occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a
presumption of negligence, or make out a
plaintiff’s prima facie case, and present a question
of fact for the defendant to meet with explanation.
The doctrine is simply a recognition of postulate
that as a matter of common knowledge and
experience, the very nature of certain types of
occurrences may justify an inference of
negligence on the part of the person who controls
the instrumentality causing the injury, in the
absence of some explanation by him. However, it
does not dispense with the requirement of proof of
negligence.
RULE ON PARTIAL CREDIBILITY
Falsus in uno, Falsus in omnibus (False in one
thing, false in everything).
If the testimony of a witness on a material
issue is willfully false and given with an
intention to deceive, the court may
disregard all the witness’ testimony.
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This is not a mandatory rule of evidence but is
applied by the court in its discretion.
IMPORTANT:
1. Deals only with weight of evidence and
not a positive rule of law;
2. The witness’ false or exaggerated
statements on other matters shall not
preclude the acceptance of such evidence
as is relieved from sign of falsehood;
3. The court may accept and reject portions
of the witness’ testimony depending on
the inherent credibility thereof.
The credibility of witness is best determined by the
trial judge, who has the direct opportunity to
observe and evaluate their demeanor on the
witness stand. The trial court’s finding of fact will
not be disturbed on appeal, unless there is a clear
showing that it plainly overlooked matters of
substance which, if considered, might affect the
result of the review (P. vs. Pacuancuan, GR NO.
144589, June 16, 2003).
In rape cases, the lone testimony of the offended
party, if free from serious and material
contradictions, is sufficient to sustain a conviction
(P. vs. Esperanza, supra).
REASON: No young Filipina of decent repute
would undergo the expense, trouble,
inconvenience of a public trial, exposing herself to
public shame and ridicule; suffer scandal and
embarrassment and humiliation of a public trial
and publicly admitting that she was criminally
abused unless it is the truth (P. vs Avero, 165
SCRA 130).
The sole, uncorroborated testimony of an accused
who turned state witness suffice to convict his co-
accused if it is given in unhesitatingly and in a
straightforward manner and is full of details which
by their nature could not have been the result of
deliberate afterthought, otherwise, it needs
corroboration, the presence or lack of which may
ultimately decide the case of the prosecution and
the fate of the accused (P. vs. Sunga, GR No.
126029, march 27, 2003).
Bar Exam Question 2012
60. Correctly complete the sentence: A lone
witness ---
a. is credible only if corroborated.
b. is never credible.
c. may be believed even if not
corroborated.
d. is always credible.
SUGGESTED ANSWER: (c), The testimony
of a lone prosecution witness, as long as it
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
is credible and positive, can prove the
guilt of the accused beyond reasonable
doubt. (People vs. Layson, G.R. No.
105689, February 23, 1994). Thus, a lone
witness may be believed even if not
corroborated.
Section 3. Extrajudicial confession, not
sufficient ground for conviction. — An
extrajudicial confession made by an accused,
shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus delicti. (3)
CORPUS DELICTI
In its legal sense, refers to the fact of the
commission of the crime, not to the physical body
of the deceased or to the ashes of the burned
building or as in the case of smuggled cigarettes.
The corpus delicti may be proven by the credible
testimony of a sole witness, not necessarily by
physical evidence such as the aforementioned
(Rimorin vs. P. GR No. 146481, April, 30 2003).
The identity of the accused is not an element of
the corpus delicti.
Admissibility; Admission of Guilt (2008)
No. XVI. The mutilated cadaver of a woman
was discovered near a creek. Due to
witnesses attesting that he was the last
person seen with the woman when she was
still alive, Carlito was arrested within five
hours after the discovery of the cadaver and
brought to the police station. The crime
laboratory determined that the woman had
been raped. While in police custody, Carlito
broke down in the presence of an assisting
counsel orally confessed to the investigator
that he had raped and killed the woman,
detailing the acts he had performed up to his
dumping of the body near the creek. He was
genuinely remorseful. During the trial, the
state presented the investigator to testify on
the oral confession of Carlito. Is the oral
confession admissible in evidence of guilt?
(4%) SUGGESTED ANSWER: The
declaration of the accused expressly
acknowledging his guilt, in the presence of
assisting counsel, may be given in
evidence against him and any person,
otherwise competent to testify as a
witness, who heard the confession is
competent to testify as to the substance
to what he heard and understood it. What
is crucial here is that the accused was
informed of his right to an attorney and
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that what he says may be used in evidence
against him. As the custodial confession
was given in the presence of an assisting
counsel, Carlito is deemed fully aware of
the consequences of his statements
(People v. Silvano, GR No. 144886, 29
April 2002).
Section 4. Circumstantial evidence, when
sufficient. — Circumstantial evidence is sufficient
for conviction if:
(a) There is more than one circumstances;
(b) The facts from which the inferences
are derived are proven; and
(c) The combination of all the
circumstances is such as to produce a
conviction beyond reasonable doubt. (5)
REASON for admission:
It is due to necessity, especially in a criminal case.
If only direct evidence is allowed, very few
convictions could be had. Besides circumstantial
evidence is based on sound rational grounds of
everyday logic.
Bar Exam Question 2011
(37) Cindy charged her husband, George,
with bigamy for a prior subsisting marriage
with Teresa. Cindy presented Ric and Pat,
neighbors of George and Teresa in Cebu City,
to prove, first, that George and Teresa
cohabited there and, second, that they
established a reputation as husband and
wife. Can Cindy prove the bigamy by such
evidence? (A) Yes, the circumstantial
evidence is enough to support a conviction
for bigamy. (B) No, at least one direct
evidence and two circumstantial evidence are
required to support a conviction for bigamy.
(C) No, the circumstantial evidence is not
enough to support a conviction for
bigamy.
(D) No, the circumstantial evidence cannot
overcome the lack of direct evidence in any
criminal case.
Circumstantial evidence is sometimes the best
evidence. Circumstantial evidence cannot lie or be
a product of deliberate afterthought which is a
possibility in a testimony of an ordinary witness
(Ucat).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Direct proof of previous agreement is not
necessary to prove conspiracy as it may be
deducted from the acts of the perpetrators before,
during and after the commission of the crime
which are indicative of a common design,
concerted action and concurrence of sentiments
(Serrano v. CA, GR No. 123896, June 25, 2003).
Admissibility; Offer to Marry; Circumstantial Evidence
(1998)
A was accused of having raped X. Rule on the
admissibility of the following pieces of evidence:
1 an offer of A to marry X; and (3%]
2 a pair of short pants allegedly left by A at the crime
which the court, over the objection of A, required him
to put on, and when he did, it fit him well. [2%]
SUGGESTED ANSWER:
1. A's offer to marry X is admissible in evidence as an
Implied admission of guilt because rape cases are not
allowed to be compromised. (Sec. 27 of Rule 13O;
People vs. Domingo, 226 SCRA 156.)
2. The pair of short pants, which fit the accused well,
is circumstantial evidence of his guilt, although
standing alone it cannot be the basis of conviction.
The accused cannot object to the court requiring him
to put the short pants on. It is not part of his right
against self-incrimination because it is a mere physical
act.
Section 5. Substantial evidence. — In cases filed
before administrative or quasi-judicial bodies, a
fact may be deemed established if it is supported
by substantial evidence, or that amount of relevant
evidence which a reasonable mind might accept
as adequate to justify a conclusion. (n)
Section 6. Power of the court to stop further
evidence. — The court may stop the introduction
of further testimony upon any particular point
when the evidence upon it is already so full that
more witnesses to the same point cannot be
reasonably expected to be additionally persuasive.
But this power should be exercised with caution.
(6)
Section 7. Evidence on motion. — When a
motion is based on facts not appearing of record
the court may hear the matter on affidavits or
depositions presented by the respective parties,
but the court may direct that the matter be heard
wholly or partly on oral testimony or depositions.
(7)
RULE 134
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Perpetuation of Testimony
Section 1. Petition. — A person who desires to
perpetuate his own testimony or that of another
person regarding any matter that may be
cognizable in any court of the Philippines, may file
a verified petition in the court of the province of the
residence of any expected adverse party.
Section 2. Contents of petition. — The petition
shall be entitled in the name of the petitioner and
shall show:
(a) that the petitioner expects to be a party to an
action in a court of the Philippines by is presently
unable to bring it or cause it to be brought;
(b) the subject matter of the expected action and
his interest therein;
(c) the facts which he desires to establish by the
proposed testimony and his reasons for desiring to
perpetuate it;
(d) the names of a description of the persons he
expects will be adverse parties and their
addresses so far as known; and
(e) the names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each, and shall ask
for an order authorizing the petitioner to take the
depositions of the persons to be examined named
in the petition for the purpose of perpetuating their
testimony.
Section 3. Notice and service. — The petitioner
shall thereafter serve a notice upon each person
named in the petition as an expected adverse
party, together with a copy of a petition, stating
that the petitioner will apply to the court, at a time
and place named therein, for the order described
in the petition. At least twenty (20) days before
the date of hearing the notice shall be served in
the manner provided for service of summons.
Section 4. Order of examination. — If the court is
satisfied that the perpetuation of the testimony
may prevent a failure or delay of justice, it shall
make an order designating or describing the
persons whose deposition may be taken and
specifying the subject matter of the examination,
and whether the depositions shall be taken upon
oral examination or written interrogatories. The
depositions may then be taken in accordance with
Rule 24 before the hearing.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 5. Reference to court. — For the
purpose of applying Rule 24 to depositions for
perpetuating testimony, each reference therein to
the court in which the action is pending shall be
deemed to refer to the court in which the petition
for such deposition was filed.
Section 6. Use of deposition. — If a deposition to
perpetuate testimony is taken under this rule, or if,
although not so taken, it would be admissible in
evidence, it may be used in any action involving
the same subject matter subsequently brought in
accordance with the provisions of Sections 4 and
5 of Rule 24.
Section 7. Depositions pending appeal. — If an
appeal has been taken from a judgment of the
Regional Trial Court or before the taking of an
appeal if the time therefor has not expired, the
Regional Trial Court in which the judgment was
rendered may allow the taking of depositions of
witnesses to perpetuate their testimony for use in
the event of further proceedings in the said court.
In such case the party who desires to perpetuate
the testimony may make a motion in the said
Regional Trial Court for leave to take the
depositions, upon the same notice and service
thereof as if the action was pending therein.
The motion shall show:
(a) the name and the addresses of the persons to
be examined and the substance of the testimony
which he expects to elicit from each; and
(b) the reason for perpetuating their testimony.
If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the
depositions to be taken, and thereupon the
depositions may be taken and used in the same
manner and under the same conditions as are
prescribed in these rules for depositions taken in
actions pending in the Regional Trial Court. (7a)
Rule 135
POWERS AND DUTIES OF COURTS AND
JUDICIAL OFFICERS
RULE 135
Powers and Duties of Courts and Judicial
Officers
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Section 1. Courts always open; justice to be
promptly and impartially administered. —
Courts of justice shall always be open, except on
legal holidays, for the filing of any pleading, motion
or other papers, for the trial of cases, hearing of
motions, and for the issuance of orders or
rendition of judgments. Justice shall be impartially
administered without unnecessary delay.
Judicial Autonomy & Impartiality (2003)
In rendering a decision, should a court take into
consideration the possible effect of its verdict upon
the
political stability and economic welfare of the nation?
4%
SUGGESTED ANSWER:
No, because a court is required to take into
consideration only the legal issues and the evidence
admitted in the case. The political stability and
economic welfare of the nation are extraneous to the
case. They can have persuasive influence but they are
not the main factors that should be considered in
deciding a case. A decision should be based on the law,
rules of procedure, justice and equity. However, in
exceptional cases the court may consider the political
stability and economic welfare of the nation when
these
are capable of being taken into judicial notice of and
are relevant to the case.
Sec 2. Publicity of proceedings and records. —
The sitting of every court of justice shall be public,
but any court may, in its discretion, exclude the
public when the evidence to be adduced is of such
nature as to require their exclusion in the interest
of morality or decency. The records of every court
of justice shall be public records and shall be
available for the inspection of any interested
person, at all proper business hours, under the
supervision of the clerk having custody of such
records, unless the court shall, in any special
case, have forbidden their publicity, in the interest
of morality or decency.
Section 3. Process of superior courts enforced
throughout the Philippines. — Process issued
from a superior court in which a case is pending to
bring in a defendant, or for the arrest of any
accused person, or to execute any order or
judgment of the court, may be enforced in any part
of the Philippines.
Section 4. Process of inferior courts. — The
process of inferior courts shall be enforceable
within the province where the municipality or city
lies. It shall not be served outside the boundaries
of the province in which they are comprised
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
except with the approval of the judge of first
instance of said province, and only in the following
cases:
(a) When an order for the delivery of personal
property lying outside the province is to be
complied with;
(b) When an attachment of real or personal
property lying outside the province is to be
made;
(c) When the action is against two or more
defendants residing in different provinces; and
(d) When the place where the case has been
brought is that specified in a contract in writing
between the parties, or is the place of the
execution of such contract as appears
therefrom.
Writs of execution issued by inferior courts may be
enforced in any part of the part of the Philippines
without any previous approval of the judge of first
instance.
Criminal process may be issued by a justice of the
peace or other inferior court, to be served outside
his province, when the district judge, or in his
absence the provincial fiscal, shall certify that in
his opinion the interest of justice require such
service.
Section 5. Inherent powers of court. — Every
court shall have power:
(a) To preserve and enforce order in its
immediate presence;
(b) To enforce order in proceedings before it,
or before a person or persons empowered to
conduct a judicial investigation under its
authority;
(c) To compel obedience to its judgments,
orders and processes, and to the lawful orders
of a judge out of court, in a case pending
therein;
(d) To control, in furtherance of justice, the
conduct of its ministerial officers, and of all
other persons in any manner connected with a
case before it, in every manner appertaining
thereto;
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(e) To compel the attendance of persons to
testify in a case pending therein;
(f) To administer or cause to be administered
oaths in a case pending therein, and in all
other cases where it may be necessary in the
exercise of its powers;
(g) To amend and control its process and
orders so as to make them conformable to law
and justice;
(h) To authorize a copy of a lost or destroyed
pleading or other paper to be filed and used
instead of the original, and to restore, and
supply deficiencies in its records and
proceedings.
opportunity given for argument to the parties or
their counsel, it shall be lawful for him to prepare
and sign his decision in said case anywhere within
the Philippines. He shall send the same by
registered mail to the clerk of the court where the
case was heard or argued to be filed therein as of
the date when the same was received by the
clerk, in the same manner as if he had been
present in court to direct the filing of the judgment.
If a case has been heard only in part, the
Supreme Court, upon petition of any of the parties
to the case and the recommendation of the
respective district judge, may also authorize the
judge who has partly heard the case, if no other
judge had heard the case in part, to continue
hearing and to decide said case notwithstanding
his transfer or appointment to another court of
equal jurisdiction.

Section 6. Means to carry jurisdiction into

effect. — When by law jurisdiction is conferred on
a court or judicial officer, all auxiliary writs,
processes and other means necessary to carry it
into effect may be employed by such court or
officer; and if the procedure to be followed in the
exercise of such jurisdiction is not specifically
pointed out by law or by these rules, any suitable
process or mode of proceeding may be adopted
which appears comfortable to the spirit of the said
law or rules.

Section 7. Trials and hearings; orders in

chambers. — All trials upon the merits shall be
conducted in open court and so far as convenient
in a regular court room. All other acts or
proceeding may be done or conducted by a judge
in chambers, without the attendance of the clerk or
other court officials.

Section 8. Interlocutory orders out of province.

— A judge of first instance shall have power to
hear and determine, when within the district
though without his province, any interlocutory
motion or issue after due and reasonable notice to
the parties. On the filing of a petition for the writ of
habeas corpus or for release upon bail or
reduction of bail in any Court of First Instance, the
hearings may be had at any place in the judicial
district which the judge shall deem convenient.

Section 9. Signing judgments out of province.

— Whenever a judge appointed or assigned in
any province or branch of a Court of First Instance
in a province shall leave the province by transfer
or assignment to another court of equal
jurisdiction, or by expiration of his temporary
assignment, without having decided a case totally
heard by him and which was argued or an

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 584

________________________________________________________________________________________________
ANNEXES
BONUS ITEMS
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 08-8-7-SC November 21, 2000
RE: THE RULE OF PROCEDURE FOR SMALL
CLAIMS CASES
RESOLUTION
Acting on the recommendation of the Chairperson,
Technical Working Group, Committee on Revision
of the Rules of Court, submitting for the
consideration and approval of the Court the
proposed "The Rule of Procedure for Small
Claims Cases," the Court Resolved to APPROVE
the same.
The Rule shall take effect on October 01, 2008
following its publication two (2) newspaper of
general circulation.
September 9, 2008
RULE OF PROCEDURE FOR SMALL CLAIMS
CASES
Section 1. Title. - This Rule shall be known as "
The Rule of Procedure for Small Claims Cases."
NATURE OF SMALL CLAIMS CASES
1. Personal action
2. Action in personam
3. Summary
Section 2. Scope. - This Rule shall govern the
procedure in actions before the Metropolitan trial
Courts, Municipal Trial Courts in Cities, Municipal
Trial Courts and Municipal Circuit Trial Courts for
payment of money where the value of the claim
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
does not exceed One Hundred Thousand Pesos
(P100,000.00) exclusive of interest and costs.
Section 3. Definiton of Terms. - For purposes of
this Rule:
(a) Plaintiff - refers to the party who
initiated a small claims action. The term
includes a defendant who has filed a
counterclaim against plaintiff;
(b) Defendant - is the party against whom
the plaintiff has filed a small claims action.
The term includes a plaintiff against whom
a defendant has filed a claim, or a person
who replies to the claim;
(c) Person - is an individual, corporation,
partnership, limited liability partnership,
association, or other juridical entity
endowed with personality by law;
(d) Individual - is a natural person;
(e) Motion - means a party's request,
written or oral, to the court for an order
action. It shall include an informal written
request to the court, such as a letter;
(f) Good cause - means circumstances
sufficient to justify the requested order or
other action, as determined by the judge;
and
(g) Affidavit - means a written statement
or declaration of facts that are shown or
affirmed to be true.
Section 4. Applicability - The Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal
Trial Courts, and Municipal Circuit Trial Courts
shall apply this Rule in all actions which are; (a)
purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment or
reimbursement of sum of money, and (b) the civil
aspect of criminal action, or reserved upon the
filing of the criminal action in court, pursuant to
Rule of 111 of the Revised Rules of Criminal
Procedure.
These claims or demands may be;
(a) For money owned under any of the
following;
1. Contract of Lease;
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2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage;
(b) For damages arising from any of the
following;
1. Fault or negligence;
2. Quasi-contract; or
3. Contract;
(c) The enforcement of a barangay
amicable settlement or an arbitration
award involving a money claim covered by
this Rule pursuant to Sec. 417 of Republic
Act 7160, otherwise known as the Local
Government Code of 1991.
Bar Exam Questions 2013
IV. A Small Claims Court __________. (1%)
(A) has jurisdiction over ejectment actions (B)
has limited jurisdiction over ejectment
actions (C) does not have any jurisdiction
over ejectment actions (D) does not have
original, but has concurrent, jurisdiction over
ejectment actions (E) has only residual
jurisdiction over ejectment actions
SUGGESTED ANSWER: (C), Under Section
4 of A.M. No. 8-8-7-SC, Rules of Procedure
of Small Claims, Small claims court shall
have jurisdiction over all actions which
are: (a) purely civil in nature where the
claim or relief prayed for by the plaintiff is
solely for payment or reimbursement of
sum of money, and (b) the civil aspect of
criminal actions, either filed before the
institution of the criminal action, or
reserved upon the filing of the criminal
action in court, pursuant to Rule 111 of
the Revised Rules of Criminal Procedure.
It does not include ejectment actions.
Moreover, the action allowed under the
Rules on Small claims refers only to
money under a lease contract. It does not
necessarily refer to an ejectment suit.
At any rate, Section 33 of Batas Pambansa
Blg 129, as amended by Section 3 of R.A>
7691, as well as Section 1, Rule 70 of the
Rules of Court, clearly provides that
forcible entry and unlawful detainer cases
fall within the exclusive jurisdiction of the
Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts
(Estel vs. Recaredo Diego, Sr. And
Recaredo Diego, Jr., G.R. No. 174082,
January 16, 2012, Peralta, J.).
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Bar Exam Question 2012
97. The Rule on Small Claims is applicable
to:
a. claims for unpaid rentals of P 100,000 or
less, with prayer for ejectment.
b. enforcement of a barangay amicable
settlement involving a money claim of P
50,000 after one (1) year from date of
settlement.
c. action for damages arising from a quasi-
delict amounting to P 100,000.
d. action to collect on a promissory note
amounting to P 105,000 where plaintiff
expressly insists in recovering only P 1
00,000.
SUGGESTED ANSWER: (c), The Rule on
Small Claims shall be applied in all actions
which are: (a) purely civil in nature where
the claim or relief prayed for by the
plaintiff is solely for payment or
reimbursement of sum of money, and (b)
the civil aspect of criminal actions, either
filed before the institution of the criminal
action, or reserved upon the filing of the
criminal action in court, pursuant to Rule
111 of the Revised Rules of Criminal
Procedure. These claims or demands may
be for damages arising from fault or
negligence. (Sec. 4, A.M. No. 08-8-7-SC,
The Rule of Procedure for Small Claims
Cases).
Section 5. Commencement of Small Claims
Action. - A small claims action is commenced by
filing with the court an accomplished and verified
Statement of Claim (Form 1 - SCC) in duplicate,
accompanied by a Certification of Non-forum
Shopping (Form 1-A,SCC), and two (2) duly
certified photocopies of the actionable document/s
subjects of the claim, as well as the affidavits of
witnesses and other evidence to support the
claim. 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 described in this Rule, is necessary to
initiate a small claims action.
Section 6. Joinder of Claims - Plaintiff may join
in a single statement of claim one or more
separate small claims against a defendant
provided that the total amount claimed, exclusive
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of interest and costs, does not exceed
P100,00.00.
Section 7. Affidavits - The affidavits submitted
under this Rule shall state only facts of direct
personal knowledge of the affiants which are
admissible in evidence.
A violation of this requirement shall subject the
party, and the counsel who assisted the party in
the preparation of the affidavits, if any, to
appropriate disciplinary action. The inadmissible
affidavit(s) or portion(s) thereof shall be expunged
from the record.
Small Claims (2013)
No.X. As a new lawyer, Attorney Novato
limited his practice to small claims cases,
legal counseling and the notarization of
documents. He put up a solo practice law
office and was assisted by his wife who
served as his secretary/helper. He used a
makeshift hut in a vacant lot near the local
courts and a local transport regulatory
agency. With this practice and location, he
did not have big-time clients but enjoyed
heavy patronage assisting walk-in clients. (A)
What role can Attorney Novato play in small
claims cases when lawyers are not allowed to
appear as counsel in these cases? (3%)
SUGGESTED ANSWER: Atty. Novata may
provide legal assistance to his clients by
giving counselling and guidance in the
preparation and accomplishment of the
necessary documents and Affidavits to
initiate or defend a small claims action
including the compilation and
notarization of the aforementioned
documents, if necessary.
(B) What legal remedy, if any, may Attorney
Novato pursue for a client who loses in a
small claims case and before which tribunal
or court may this be pursued? (4%)
SUGGESTED ANSWER:
Atty. Novata may file a petition for
Certiorari under Rule 65 of the Rules of
Court before the RTC since a decision in
small claims cases is final and
unappealable (Sec. 23, A.M. No. 8-8-7 SC,
Rules of Procedure for Small Claims
Cases). The petition for certiorari should
be filed before the RTC conformably to the
Principle of judicial Hierarchy.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 8. Payment of Filing Fees. - The plaintiff
shall pay the docket and other legal fees
prescribed under Rule 141 of the Revised Rules of
Court, unless allowed to litigate as an indigent.
A claim filed with a motion to sue as indigent
(Form 6-SCC) shall be referred to the Executive
Judge for immediate action in case of multi-sala
courts, or to the Presiding Judge of the court
hearing the small claims case. If the motion is
granted by the Executive Judge, the case shall be
raffled off or assigned to the court designated to
hear small claims cases. If the motion is denied,
the plaintiff shall be given five (5) days within
which to pay the docket fees, otherwise, the case
shall be dismissed without prejudice. In no case
shall a party, even if declared an indigent, be
exempt from the payment of the P1,000.00 fee for
service of summons and processes in civil cases.
Section 9. Dismissal of the Claim. - After the
court determines that the case falls under this
Rule, it may, from an examination of the
allegations of the Statement of Claim and such
evidence attached thereto, by itself, dismiss the
case outright of any of the grounds apparent from
the Claim for the dismissal of a civil action.
Section 10. Summons and Notice of Hearing -
If no ground for dismissal is found, the court shall
forthwith issue Summons (Form 2-SCC) on the
day of receipt of the Statement of Claim, directing
the defendant to submit a verified Response.
The court shall also issue a Notice (Form 4-SCC)
to both parties, directing them to appear before it
on a specific date and time for hearing, with a
warning that no unjustified postponement shall be
allowed, as provided in Section 19 of this Rule.
The summons and notice to be served on the
defendant shall be accompanied by a copy of the
Statement of Claim and documents submitted by
plaintiff, and a copy of the Response (Form 3-
SCC) to be accomplished by the defendant. The
Notice shall contain an express prohibition against
the filing of a motion to dismiss or any other
motion under Section 14 of this Rule.
Section 11. Response - The defendant shall file
with the court and serve on the plaintiff a duly
accomplished and verified Response within a non
- extendible period of ten (10) days from receipt of
summons. The Response shall be accompanied
by certified photocopies of documents, as well as
affidavits of witnesses and other evidence in
support thereof. No evidence shall be allowed
during the hearing which was not attached to or
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submitted together with the Response, unless
good cause is shown for the admission of
additional evidence.
Bar Exam Question 2011
(8) Which of the following precepts forms part
of the rules governing small claims? (A)
Permissive counterclaim is not allowed.
(B) The court shall render its decision within
3 days after hearing. (C) Joinder of separate
claims is not allowed. (D) Motion to declare
defendant in default is allowed.
Section 12. Effect of Failure to File Response -
Should the defendant fail to file his response
within the required period, the court by itself shall
render judgment as may be warranted by the facts
alleged in the Statement of claim limited to what is
prayed for. The court however, may, in its
discretion, reduce the amount of damages for
being excessive or unconscionable.
Bar Exam Question 2012
10. A defendant who fails to file a timely
Answer or responsive pleading will not be
declared in default in:
a. probate proceedings where the estate is
valued at P 1 00,000;
b. forcible entry cases;
c. collection case not exceeding P
100,000;
d. violation of rental law.
SUGGESTED ANSWERS:
(b), Under the Rules on Summary
Procedure, if the defendant fails to file an
Answer to the complaint within a period of
Ten (10) days from receipt thereof, the
court may motu propio, or on motion of
the plaintiff, render judgment as may be
warranted by the facts alleged in the
complaint and limited to what is prayed
for therein. (Sec.6, Revised Rules of
Summary Procedure). There is no
declaration of default under the Rules on
Summary Procedure. (c), A collection case
not exceeding P100,000.00 is governed by
the Law on Small Claims which does not
vest the Court the power and authority to
declare a defendant in default.
Section 13. Counterclaims Within the
Coverage of this Rule - If at the time the action is
commenced, the defendant possesses a claim
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
against the plaintiff that (a) is within the coverage
of this rule, exclusive of interest and costs; (b)
arises out of the same transaction or event that is
the subject matter of the plaintiff's claim; (c) does
not require for its adjudication the joinder of third
parties; and (d) is not the subject of another
pending action, the claim shall be filed as a
counterclaim in the response; otherwise, the
defendant shall be barred from suit on the
counterclaim.
The defendant may also elect to the file a
counterclaim against the plaintiff that does not
arise out of the same transaction or occurrence ,
provided that the amount and nature thereof are
within the coverage of this Rule and the
prescribed docket and the other legal fees are
paid.
Section 14. Prohibited Pleadings and Motions -
The following pleadings, motions, and petitions
shall not be allowed in the cases covered by this
Rule:
(a) Motion to dismiss the compliant except on
the ground of lack of jurisdiction;
(a) is already removed by later
amendment of the Rule.
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file
pleadings, affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.
Section 15. Availability of Forms; Assistance
by Court Personnel. - The Clerk of Court or other
personnel shall provide such assistance as may
be requested by a plaintiff or a defendant
regarding the availability of forms and other
information about the coverage, requirements as
well as procedure for small claims cases.
Section 16. Appearance. - the parties shall
appear at the designated date of hearing
personally or through a representative authorized
under a Special Power of Attorney (Form 5-SCC )
to enter into an amicable settlement, to submit of
Judicial Dispute Resolution (JDR) and to enter into
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stipulations or admissions of facts and of
documentary exhibits
Section 17. Appearance of Attorneys Not
Allowed. - No attorney shall appear in behalf of or
represent a party at the hearing, unless the
attorney is the plaintiff or defendant.
If the court determines that a party cannot properly
present his/her claim or defense and needs
assistance, the court may, in its discretion, allow
another individual who is not an attorney to assist
that party upon the latter's consent.
Section 18. Non-appearance of Parties. -
Failure of the plaintiff to appear shall be cause for
the dismissal of the claim without prejudice. The
defendant who appears shall be entitled to
judgment on a permissive counterclaim.
Failure of the defendant to appear shall have the
same effect as failure to file a Response under
Section 12 of this Rule. This shall not apply where
one of two or more defendants who are sued
under a common cause of action and have
pleaded a common defense appears at the
hearing.
Failure of both parties to appear shall cause the
dismissal with prejudice of both the claim and
counterclaim.
Section 19. Postponement When Allowed. - A
request for postponement of a hearing may be
granted only upon proof of the physical inability of
the party to appear before the court on the
scheduled date and time. A party may avail of only
one (1) postponement.
Section 20. Duty of the Court. - At the beginning
of the court session, the judge shall read aloud a
short statement explaining the nature, purpose
and the rule of procedure of small claims cases.
Section 21. Judicial Dispute Resolution. - At
the hearing, the judge shall conduct Judicial
Dispute Resolution (JDR) through mediation,
conciliation, early neutral evaluation, or any other
mode of JDR. Any settlement (Form 7-SCC) or
resolution (Form 8-SCC) of the dispute shall be
reduced into writing, signed by the parties and
submitted to the court for approval (Form 12-
SCC).
Section 22. Failure of JDR. - If JDR fails and the
parties agree in writing (Form 10-SCC) that the
hearing of the case shall be presided over by the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
judge who conducted the JDR, the hearing shall
so proceed in an informal and expeditious manner
and terminated within one (1) day.
Absent such agreement, (a) in case of a multi-sala
court , the case shall, on the same day, be
transmitted (Form 11-SCC) to the Office of the
Clerk of Court for immediate referral by the
Executive Judge to the pairing judge for hearing
and decision within five (5) working days from
referral; and (b) in case of single sala court, the
pairing judge shall hear and decide the case in the
court of origin within five (5) working days from
referral by the JDR judge.
Section 23. Decision. - After the hearing, the
court shall render its decision on the same day,
based on the facts established by the evidence
(Form 13-SCC). The decision shall immediately be
entered by the Clerk of Court in the court docket
for civil cases and a copy thereof forthwith served
on the parties.
The decision shall be final and unappealable.
Note: The remedy is Rule 65.
Section 24. Execution. - If the decision is
rendered in favor of the plaintiff, execution shall
issue upon motion (Form 9-SCC).
Section 25. Applicability. of the Rules of Civil
Procedure - The Rules of Civil procedure shall
apply suppletorily insofar as they are not
inconsistent with this rule.
Section 26. Effectivity. - This Rule shall take
effect on October 01, 2008 for the pilot courts
designated to apply the procedure for small claims
cases following its publication in two newspaper of
general circulation.
Republic of the Philippines
SUPREME COURT
Manila
A.M. No. 09-6-8-SC
RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES
RESOLUTION
Acting on the recommendation of the Chairperson
of the Sub-committee on the Rules of Procedure
589
________________________________________________________________________________________________
for Environmental Cases submitting for this Courts
consideration and approval
the proposed Rules of Procedure for
Environmental Cases, the Court Resolved to
APPROVE the same.
These Rules shall take effect within fifteen (15)
days following its publication once in a newspaper
of general circulation.
April 13, 2010.
RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES
PART I
RULE 1
GENERAL PROVISIONS
Section 1.Title. These Rules shall be known as
"The Rules of Procedure for Environmental
Cases."
Section 2.Scope. These Rules shall govern the
procedure in civil, criminal and special civil actions
before the Regional Trial Courts, Metropolitan
Trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts and Municipal Circuit Trial
Courts involving enforcement or violations of
environmental and other related laws, rules and
regulations such as but not limited to the following:
(a) Act No. 3572, Prohibition Against Cutting of
Tindalo, Akli, and Molave Trees;
(b) P.D. No. 705, Revised Forestry Code;
(c) P.D. No. 856, Sanitation Code;
(d) P.D. No. 979, Marine Pollution Decree;
(e) P.D. No. 1067, Water Code;
(f) P.D. No. 1151, Philippine Environmental Policy
of 1977;
(g) P.D. No. 1433, Plant Quarantine Law of 1978;
(h) P.D. No. 1586, Establishing an Environmental
Impact Statement System Including Other
Environmental Management Related Measures
and for Other Purposes;
(i) R.A. No. 3571, Prohibition Against the Cutting,
Destroying or Injuring of Planted or Growing
Trees, Flowering Plants and Shrubs or Plants of
Scenic Value along Public Roads, in Plazas,
Parks, School Premises or in any Other Public
Ground;
(j) R.A. No. 4850, Laguna Lake Development
Authority Act;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(k) R.A. No. 6969, Toxic Substances and
Hazardous Waste Act;
(l) R.A. No. 7076, Peoples Small-Scale Mining
Act;
(m) R.A. No. 7586, National Integrated Protected
Areas System Act including all laws, decrees,
orders, proclamations and issuances establishing
protected areas;
(n) R.A. No. 7611, Strategic Environmental Plan
for Palawan Act;
(o) R.A. No. 7942, Philippine Mining Act;
(p) R.A. No. 8371, Indigenous Peoples Rights Act;
(q) R.A. No. 8550, Philippine Fisheries Code;
(r) R.A. No. 8749, Clean Air Act;
(s) R.A. No. 9003, Ecological Solid Waste
Management Act;
(t) R.A. No. 9072, National Caves and Cave
Resource Management Act;
(u) R.A. No. 9147, Wildlife Conservation and
Protection Act;
(v) R.A. No. 9175, Chainsaw Act;
(w) R.A. No. 9275, Clean Water Act;
(x) R.A. No. 9483, Oil Spill Compensation Act of
2007; and
(y) Provisions in C.A. No. 141, The Public Land
Act; R.A. No. 6657, Comprehensive Agrarian
Reform Law of 1988; R.A. No. 7160, Local
Government Code of 1991; R.A. No. 7161, Tax
Laws Incorporated in the Revised Forestry Code
and Other Environmental Laws (Amending the
NIRC); R.A. No. 7308, Seed Industry
Development Act of 1992; R.A. No. 7900, High-
Value Crops Development
Rules of Procedure for Environmental Cases Act;
R.A. No. 8048, Coconut Preservation Act; R.A.
No. 8435, Agriculture and Fisheries Modernization
Act of 1997; R.A. No. 9522, The Philippine
Archipelagic Baselines Law; R.A. No. 9593,
Renewable Energy Act of 2008; R.A. No. 9637,
Philippine Biofuels Act; and other existing laws
that relate to the conservation, development,
preservation, protection and utilization of the
environment and natural resources.
Bar Exam Question 2012
37. The Director of the BFAR launches an
intensified campaign against illegal fishpen
operators situated in Laguna de Bay. The
illegal fishpen operators file a Section 3 (e),
R.A. 3019 (causing undue injury or benefit)
case against the BFAR Director before the
Sandiganbayan. The Director's best remedy
before Sandiganbayan is:
a. file a Motion to Quash based on lack of
jurisdiction over the person.
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b. file a Motion to Quash for non-exhaustion
of administrative remedies.
c. file a Motion to Dismiss because the
complaint is a SLAPP suit.
d. move for suspension of proceedings
because of a pre-judicial question.
SUGGESTED ANSWER:
(c), The Director of the BFAR may file an
answer interposing as a defense that the
case is a Strategic Lawsuit Against Public
Participation (SLAPP) and attach
supporting documents, affidavits, papers
and other evidence; and, by way of
counterclaim, pray for damages,
attorney‟s fees and costs of suit. The
Director who is seeking the dismissal of
the case must prove by substantial
evidence that his acts for the enforcement
of environmental law are legitimate action
for the protection, preservation and
rehabilitation of the government. The
party filing the action assailed as a SLAPP
shall prove by preponderance of evidence
that the action is not a SLAPP and is a
valid claim. (Rule 6, Sec. 2, A.M. No. 09-6-
8-SC, Rules of Procedure for
Environmental Cases).
Bar Exam Question 2012
75. The MTC, acting as an Environmental
Court, has original
and exclusive jurisdiction over the following,
except:
a. criminal offenses punishable under the
Chain Saw Act (R.A. 9175)
b. violation of the NIPAS Law (R.A. 7586)
c. violation of the Mining Laws
d. violation of Anti-Pollution Laws
SUGGESTED ANSWER:
(a), The Metropolitan Trial Court (MTC)
exercises exclusive original jurisdiction
over all offenses punishable with
imprisonment not exceeding six (6) years
irrespective of the amount of fine. (BP
129, Sec. 32). Relative thereto, R.A. 9175
or otherwise known as the Chain Saw Act
of 2002, penalizes any person who found
to be in possession of a chain saw and
uses the same to cut trees and timber in
forest land or elsewhere except as
authorized by the Department with
imprisonment of six (6) years and one (1)
day to eight (8) years or a fine of not less
than Thirty thousand pesos (P30,000.00)
but not more than fifty thousand pesos
(P50,000.00) or both at the discretion of
the court. Clearly, the court which has
jurisdiction over violations of the Chain
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Saw Act is the Regional Trial Court, and
not the MTC, acting as an Environmental
Court.
Section 3.Objectives. - The objectives of these
Rules are:
(a) To protect and advance the constitutional
right of the people to a balanced and healthful
ecology;
(b) To provide a simplified, speedy and
inexpensive procedure for the enforcement of
environmental rights and duties recognized
under the Constitution, existing laws, rules
and regulations, and international
agreements;
(c) To introduce and adopt innovations and
best practices ensuring the effective
enforcement of remedies and redress for
violation of environmental laws; and
(d) To enable the courts to monitor and exact
compliance with orders and judgments in
environmental cases.
Section 4.Definition of Terms. -
(a) By-product or derivatives means any part
taken or substance extracted from wildlife, in raw
or in processed form including stuffed animals and
herbarium specimens.
(b) Consent decree refers to a judicially-approved
settlement between concerned parties based on
public interest and public policy to protect and
preserve the environment.
(c) Continuing mandamus is a writ issued by a
court in an environmental case directing any
agency or instrumentality of the government or
officer thereof to perform an act or series of acts
decreed by final judgment which shall remain
effective until judgment is fully satisfied.
(d) Environmental protection order (EPO) refers
to an order issued by the court directing or
enjoining any person or government agency to
perform or desist from performing an act in order
to protect, preserve or rehabilitate the
environment.
(e) Mineral refers to all naturally occurring
inorganic substance in solid, gas, liquid, or any
intermediate state excluding energy materials
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such as coal, petroleum, natural gas, radioactive
materials and geothermal energy.
(f) 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.
(g) Strategic lawsuit against public
participation (SLAPP) refers to an action whether
civil, criminal or administrative, brought against
any person, institution or any government agency
or local government unit or its officials and
employees, with the intent to harass, vex, exert
undue pressure or stifle any legal recourse that
such person, institution or government agency has
taken or may take in the enforcement of
environmental laws, protection of the environment
or assertion of environmental rights.
(h) Wildlife means wild forms and varieties of flora
and fauna, in all developmental stages including
those which are in captivity or are being bred or
propagated.
PART II
CIVIL PROCEDURE
RULE 2
PLEADINGS AND PARTIES
Section 1. Pleadings and motions allowed.
The pleadings and motions that may be filed are
complaint, answer which may include compulsory
counterclaim and cross-claim, motion for
intervention, motion for discovery and motion for
reconsideration of the judgment.
Motion for postponement, motion for new trial and
petition for relief from judgment shall be allowed in
highly meritorious cases or to prevent a manifest
miscarriage of justice.
Section 2.Prohibited pleadings or motions. The
following pleadings or motions shall not be
allowed:
(a) Motion to dismiss the complaint;
(b) Motion for a bill of particulars;
(c) Motion for extension of time to file
pleadings, except to file answer, the extension
not to exceed fifteen (15) days;
(d) Motion to declare the defendant in default;
(e) Reply and rejoinder; and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(f) Third party complaint.
Section 3.Verified complaint. The verified
complaint shall contain the names of the parties,
their addresses, the cause of action and the reliefs
prayed for.
The plaintiff shall attach to the verified complaint
all evidence proving or supporting the cause of
action consisting of the affidavits of witnesses,
documentary evidence and if possible, object
evidence. The affidavits shall be in question and
answer form and shall comply with the rules of
admissibility of evidence.
The complaint shall state that it is an
environmental case and the law involved. The
complaint shall also include a certification against
forum shopping. If the complaint is not an
environmental complaint, the presiding judge shall
refer it to the executive judge for re-raffle.
Section 4. Who may file. Any real party in
interest, including the government and juridical
entities authorized by law, may file a civil action
involving the enforcement or violation of any
environmental law.
Section 5.Citizen suit. Any Filipino citizen in
representation of others, including minors or
generations yet unborn, may file an action to
enforce rights or obligations under environmental
laws. Upon the filing of a citizen suit, the court
shall issue an order which shall contain a brief
description of the cause of action and the reliefs
prayed for, requiring all interested parties to
manifest their interest to intervene in the case
within fifteen (15) days from notice thereof. The
plaintiff may publish the order once in a
newspaper of a general circulation in the
Philippines or furnish all affected barangays
copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A.
No. 9003 shall be governed by their respective
provisions.
Section 6.Service of the complaint on the
government or its agencies. - Upon the filing of
the complaint, the plaintiff is required to furnish the
government or the appropriate agency, although
not a party, a copy of the complaint. Proof of
service upon the government or the appropriate
agency shall be attached to the complaint.
Section 7.Assignment by raffle. - If there is only
one (1) designated branch in a multiple-sala court,
the executive judge shall immediately refer the
case to said branch. If there are two (2) or more
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designated branches, the executive judge shall
conduct a special raffle on the day the complaint is
filed.
Section 8.Issuance of Temporary
Environmental Protection Order (TEPO). - If it
appears from the verified complaint with a prayer
for the issuance of an Environmental Protection
Order (EPO) that the matter is of extreme urgency
and the applicant will suffer grave injustice and
irreparable injury, the executive judge of the
multiple-sala court before raffle or the presiding
judge of a single-sala court as the case may be,
may issue ex parte a TEPO effective for only
seventy-two (72) hours from date of the receipt of
the TEPO by the party or person enjoined. Within
said period, the court where the case is assigned,
shall conduct a summary hearing to determine
whether the TEPO may be extended until the
termination of the case.
The court where the case is assigned, shall
periodically monitor the existence of acts that are
the subject matter of the TEPO even if issued by
the executive judge, and may lift the same at any
time as circumstances may warrant.
The applicant shall be exempted from the posting
of a bond for the issuance of a TEPO.
Section 9.Action on motion for dissolution of
TEPO. - The grounds for motion to dissolve a
TEPO shall be supported by affidavits of the party
or person enjoined which the applicant may
oppose, also by affidavits.
The TEPO may be dissolved if it appears after
hearing that its issuance or continuance would
cause irreparable damage to the party or person
enjoined while the applicant may be fully
compensated for such damages as he may suffer
and subject to the posting of a sufficient bond by
the party or person enjoined.
Section 10.Prohibition against temporary
restraining order (TRO) and preliminary
injunction. - 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.
Section 11. Report on TEPO, EPO, TRO or
preliminary injunction. - The judge shall report
any action taken on a TEPO, EPO, TRO or a
preliminary injunction, including its modification
and dissolution, to the Supreme Court, through the
Office of the Court Administrator, within ten (10)
days from the action taken.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 12.Payment of filing and other legal
fees. - The payment of filing and other legal fees
by the plaintiff shall be deferred until after
judgment unless the plaintiff is allowed to litigate
as an indigent. It shall constitute a first lien on the
judgment award.
For a citizen suit, the court shall defer the payment
of filing and other legal fees that shall serve as
first lien on the judgment award.
Section 13.Service of summons, orders and
other court processes. - The summons, orders
and other court processes may be served by the
sheriff, his deputy or other proper court officer or
for justifiable reasons, by the counsel or
representative of the plaintiff or any suitable
person authorized or deputized by the court
issuing the summons.
Any private person who is authorized or deputized
by the court to serve summons, orders and other
court processes shall for that purpose be
considered an officer of the court.
The summons shall be served on the defendant,
together with a copy of an order informing all
parties that they have fifteen (15) days from the
filing of an answer, within which to avail of
interrogatories to parties under Rule 25 of the
Rules of Court and request for admission by
adverse party under Rule 26, or at their discretion,
make use of depositions under Rule 23 or other
measures under Rules 27 and 28.
Should personal and substituted service fail,
summons by publication shall be allowed. In the
case of juridical entities, summons by publication
shall be done by indicating the names of the
officers or their duly authorized representatives.
Section 14.Verified answer. - Within fifteen (15)
days from receipt of summons, the defendant shall
file a verified answer to the complaint and serve a
copy thereof on the plaintiff. The defendant shall
attach affidavits of witnesses, reports, studies of
experts and all evidence in support of the defense.
Affirmative and special defenses not pleaded shall
be deemed waived, except lack of jurisdiction.
Cross-claims and compulsory counterclaims not
asserted shall be considered barred. The answer
to counterclaims or cross-claims shall be filed and
served within ten (10) days from service of the
answer in which they are pleaded.
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Section 15.Effect of failure to answer. - Should
the defendant fail to answer the complaint within
the period provided, the court shall declare
defendant in default and upon motion of the
plaintiff, shall receive evidence ex parte and
render judgment based thereon and the reliefs
prayed for.
RULE 3
PRE-TRIAL
Section 1.Notice of pre-trial. - Within two (2)
days from the filing of the answer to the
counterclaim or cross-claim, if any, the branch
clerk of court shall issue a notice of the pre-trial to
be held not later than one (1) month from the filing
of the last pleading.
The court shall schedule the pre-trial and set as
many pre-trial conferences as may be necessary
within a period of two (2) months counted from the
date of the first pre-trial conference.
Section 2.Pre-trial brief. - At least three (3) days
before the pretrial, the parties shall submit pre-trial
briefs containing the following:
(a) A statement of their willingness to enter into an
amicable settlement indicating the desired terms
thereof or to submit the case to any of the
alternative modes of dispute resolution;
(b) A summary of admitted facts and proposed
stipulation of facts;
(c) The legal and factual issues to be tried or
resolved. For each factual issue, the parties shall
state all evidence to support their positions
thereon. For each legal issue, parties shall state
the applicable law and jurisprudence supporting
their respective positions thereon;
(d) The documents or exhibits to be presented,
including depositions, answers to interrogatories
and answers to written request for admission by
adverse party, stating the purpose thereof;
(e) A manifestation of their having availed of
discovery procedures or their intention to avail
themselves of referral to a commissioner or panel
of experts;
(f) The number and names of the witnesses and
the substance of their affidavits;
(g) Clarificatory questions from the parties; and
(h) List of cases arising out of the same facts
pending before other courts or administrative
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
agencies. Failure to comply with the required
contents of a pre-trial brief may be a ground for
contempt.
Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre-trial.
Section 3.Referral to mediation. - At the start of
the pre-trial conference, the court shall inquire
from the parties if they have settled the dispute;
otherwise, the court shall immediately refer the
parties or their counsel, if authorized by their
clients, to the Philippine Mediation Center (PMC)
unit for purposes of mediation. If not available, the
court shall refer the case to the clerk of court or
legal researcher for mediation.
Mediation must be conducted within a non-
extendible period of thirty (30) days from receipt of
notice of referral to mediation.
The mediation report must be submitted within ten
(10) days from the expiration of the 30-day period.
Section 4.Preliminary conference. - If mediation
fails, the court will schedule the continuance of the
pre-trial. Before the scheduled date of
continuance, the court may refer the case to the
branch clerk of court for a preliminary conference
for the following purposes:
(a) To assist the parties in reaching a settlement;
(b) To mark the documents or exhibits to be
presented by the parties and copies thereof to be
attached to the records after comparison with the
originals;
(c) To ascertain from the parties the undisputed
facts and admissions on the genuineness and due
execution of the documents marked as exhibits;
(d) To require the parties to submit the depositions
taken under Rule 23 of the Rules of Court, the
answers to written interrogatories under Rule 25,
and the answers to request for admissions by the
adverse party under Rule 26;
(e) To require the production of documents or
things requested by a party under Rule 27 and the
results of the physical and mental examination of
persons under Rule 28;
(f) To consider such other matters as may aid in
its prompt disposition;
(g) To record the proceedings in the "Minutes of
Preliminary Conference" to be signed by both
parties or their counsels;
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(h) To mark the affidavits of witnesses which shall
be in question and answer form and shall
constitute the direct examination of the witnesses;
and
(i) To attach the minutes together with the marked
exhibits before the pre-trial proper.
The parties or their counsel must submit to the
branch clerk of court the names, addresses and
contact numbers of the affiants.
During the preliminary conference, the branch
clerk of court shall also require the parties to
submit the depositions taken under Rule 23 of the
Rules of Court, the answers to written
interrogatories under Rule 25 and the answers to
request for admissions by the adverse party under
Rule 26. The branch clerk of court may also
require the production of documents or things
requested by a party under Rule 27 and the
results of the physical and mental examination of
persons under Rule 28.
Section 5.Pre-trial conference; consent decree.
- The judge shall put the parties and their counsels
under oath, and they shall remain under oath in all
pre-trial conferences.
The judge shall exert best efforts to persuade the
parties to arrive at a settlement of the dispute. The
judge may issue a consent decree approving the
agreement between the parties in accordance with
law, morals, public order and public policy to
protect the right of the people to a balanced and
healthful ecology.
Evidence not presented during the pre-trial, except
newly-discovered evidence, shall be deemed
waived.
Section 6.Failure to settle. - If there is no full
settlement, the judge shall:
(a) Adopt the minutes of the preliminary
conference as part of the pre-trial proceedings and
confirm the markings of exhibits or substituted
photocopies and admissions on the genuineness
and due execution of documents;
(b) Determine if there are cases arising out of the
same facts pending before other courts and order
its consolidation if warranted;
(c) Determine if the pleadings are in order and if
not, order the amendments if necessary;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(d) Determine if interlocutory issues are involved
and resolve the same;
(e) Consider the adding or dropping of parties;
(f) Scrutinize every single allegation of the
complaint, answer and other pleadings and
attachments thereto, and the contents of
documents and all other evidence identified and
pre-marked during pre-trial in determining further
admissions;
(g) Obtain admissions based on the affidavits of
witnesses and evidence attached to the pleadings
or submitted during pre-trial;
(h) Define and simplify the factual and legal issues
arising from the pleadings and evidence.
Uncontroverted issues and frivolous claims or
defenses should be eliminated;
(i) Discuss the propriety of rendering a summary
judgment or a judgment based on the pleadings,
evidence and admissions made during pre-trial;
(j) Observe the Most Important Witness Rule in
limiting the number of witnesses, determining the
facts to be proved by each witness and fixing the
approximate number of hours per witness;
(k) Encourage referral of the case to a trial by
commissioner under Rule 32 of the Rules of Court
or to a mediator or arbitrator under any of the
alternative modes of dispute resolution governed
by the Special Rules of Court on Alternative
Dispute Resolution;
(l) Determine the necessity of engaging the
services of a qualified expert as a friend of the
court (amicus curiae); and
(m) Ask parties to agree on the specific trial dates
for continuous trial, comply with the one-day
examination of witness rule, adhere to the case
flow chart determined by the court which shall
contain the different stages of the proceedings up
to the promulgation of the decision and use the
time frame for each stage in setting the trial dates.
Section 7.Effect of failure to appear at pre-trial.
- The court shall not dismiss the complaint, except
upon repeated and unjustified failure of the plaintiff
to appear. The dismissal shall be without
prejudice, and the court may proceed with the
counterclaim.
If the defendant fails to appear at the pre-trial, the
court shall receive evidence ex parte.
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Section 8.Minutes of pre-trial. - The minutes of
each pre-trial conference shall contain matters
taken up therein, more particularly admissions of
facts and exhibits, and shall be signed by the
parties and their counsel.
Section 9.Pre-trial order. - Within ten (10) days
after the termination of the pre-trial, the court shall
issue a pre-trial order setting forth the actions
taken during the pre-trial conference, the facts
stipulated, the admissions made, the evidence
marked, the number of witnesses to be presented
and the schedule of trial. Said order shall bind the
parties, limit the trial to matters not disposed of
and control the course of action during the trial.
Section 10.Efforts to settle. - The court shall
endeavor to make the parties agree to
compromise or settle in accordance with law at
any stage of the proceedings before rendition of
judgment.
RULE 4
TRIAL
Section 1.Continuous trial. - The judge shall
conduct continuous trial which shall not exceed
two (2) months from the date of the issuance of
the pre-trial order.
Before the expiration of the two-month period, the
judge may ask the Supreme Court for the
extension of the trial period for justifiable cause.
Section 2.Affidavits in lieu of direct
examination. - In lieu of direct examination,
affidavits marked during the pre-trial shall be
presented as direct examination of affiants subject
to cross-examination by the adverse party.
Section 3.One-day examination of witness rule.
- The court shall strictly adhere to the rule that a
witness has to be fully examined in one (1) day,
subject to the court’s discretion of extending the
examination for justifiable reason. After the
presentation of the last witness, only oral offer of
evidence shall be allowed, and the opposing party
shall immediately interpose his objections. The
judge shall forthwith rule on the offer of evidence
in open court.
Witness; Examination of Witness (2009)
No.1.[b] The One-Day Examination of witness
Rule abbreviates court proceedings by having
a witness fully examined in only one day
during trial. SUGGESTED ANSWER:
TRUE. Par. 5(i) of Supreme Court A.M. No.
03-1-09-SC requires that a witness has to
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
be fully examined in one (1) day only. This
rule shall be strictly adhered to subject to
the court‟s discretion during trial on
whether or not to extend the direct
and/or cross-examination for justifiable
reasons. On the last hearing day allotted
for each party, he is required to make his
formal offer of evidence after the
presentation of his last witness and the
opposing party is required to immediately
interpose his objection thereto.
Thereafter, the judge shall make the
ruling on the offer of evidence in open
court. However, the judge has the
discretion to allow the offer of evidence in
writing in conformity with Section 35,
Rule 132. ALTERNATIVE ANSWER: FALSE.
This rule is not absolute: it will still allow
the trial judge the discretion whether to
extend the direct and/or cross
examination for justifiable reasons or not.
The exercise of this discretion may still
result in wrangling as to the proper
exercise of the trial court‟s discretion,
which can delay the proceedings.
Section 4.Submission of case for decision;
filing of memoranda. - After the last party has
rested its case, the court shall issue an order
submitting the case for decision.
The court may require the parties to submit their
respective memoranda, if possible in electronic
form, within a non-extendible period of thirty (30)
days from the date the case is submitted for
decision.
The court shall have a period of sixty (60) days to
decide the case from the date the case is
submitted for decision.
Section 5.Period to try and decide. - The court
shall have a period of one (1) year from the filing
of the complaint to try and decide the case. Before
the expiration of the one-year period, the court
may petition the Supreme Court for the extension
of the period for justifiable cause.
The court shall prioritize the adjudication of
environmental cases.
RULE 5
JUDGMENT AND EXECUTION
Section 1.Reliefs in a citizen suit. - If warranted,
the court may grant to the plaintiff proper reliefs
which shall include the protection, preservation or
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rehabilitation of the environment and the payment
of attorneys fees, costs of suit and other litigation
expenses. It may also require the violator to
submit a program of rehabilitation or restoration of
the environment, the costs of which shall be borne
by the violator, or to contribute to a special trust
fund for that purpose subject to the control of the
court.
Section 2. Judgment not stayed by appeal. -
Any judgment directing the performance of acts for
the protection, preservation or rehabilitation of the
environment shall be executory pending appeal
unless restrained by the appellate court.
Section 3.Permanent EPO; writ of continuing
mandamus. - In the judgment, the court may
convert the TEPO to a permanent EPO or issue a
writ of continuing mandamus directing the
performance of acts which shall be effective until
the judgment is fully satisfied.
The court may, by itself or through the appropriate
government agency, monitor the execution of the
judgment and require the party concerned to
submit written reports on a quarterly basis or
sooner as may be necessary, detailing the
progress of the execution and satisfaction of the
judgment. The other party may, at its option,
submit its comments or observations on the
execution of the judgment.
Section 4.Monitoring of compliance with
judgment and orders of the court by a
commissioner. - The court may motu proprio, or
upon motion of the prevailing party, order that the
enforcement of the judgment or order be referred
to a commissioner to be appointed by the court.
The commissioner shall file with the court written
progress reports on a quarterly basis or more
frequently when necessary.
Section 5. Return of writ of execution. - The
process of execution shall terminate upon a
sufficient showing that the decision or order has
been implemented to the satisfaction of the court
in accordance with Section 14, Rule 39 of the
Rules of Court.
RULE 6
STRATEGIC LAWSUIT AGAINST PUBLIC
PARTICIPATION
Section 1.Strategic lawsuit against public
participation (SLAPP). - A legal action filed to
harass, vex, exert undue pressure or stifle any
legal recourse that any person, institution or the
government has taken or may take in the
enforcement of environmental laws, protection of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the environment or assertion of environmental
rights shall be treated as a SLAPP and shall be
governed by these Rules.
Section 2. SLAPP as a defense; how alleged. -
In a SLAPP filed against a person involved in the
enforcement of environmental laws, protection of
the environment, or assertion of environmental
rights, the defendant may file an answer
interposing as a defense that the case is a SLAPP
and shall be supported by documents, affidavits,
papers and other evidence; and, by way of
counterclaim, pray for damages, attorney’s fees
and costs of suit.
The court shall direct the plaintiff or adverse party
to file an opposition showing the suit is not a
SLAPP, attaching evidence in support thereof,
within a non-extendible period of five (5) days from
receipt of notice that an answer has been filed.
The defense of a SLAPP shall be set for hearing
by the court after issuance of the order to file an
opposition within fifteen (15) days from filing of the
comment or the lapse of the period.
Section 3.Summary hearing. - The hearing on
the defense of a SLAPP shall be summary in
nature. The parties must submit all available
evidence in support of their respective positions.
The party seeking the dismissal of the case must
prove by substantial evidence that his act for the
enforcement of environmental law is a legitimate
action for the protection, preservation and
rehabilitation of the environment. The party filing
the action assailed as a SLAPP shall prove by
preponderance of evidence that the action is not a
SLAPP and is a valid claim.
Section 4.Resolution of the defense of a
SLAPP. - The affirmative defense of a SLAPP
shall be resolved within thirty (30) days after the
summary hearing. If the court dismisses the
action, the court may award damages, attorney’s
fees and costs of suit under a counterclaim if such
has been filed. The dismissal shall be with
prejudice.
If the court rejects the defense of a SLAPP, the
evidence adduced during the summary hearing
shall be treated as evidence of the parties on the
merits of the case. The action shall proceed in
accordance with the Rules of Court.
PART III
SPECIAL CIVIL ACTIONS
RULE 7
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WRIT OF KALIKASAN
Section 3.Where to file. - The petition shall be
Section 1.Nature of the writ. - The writ is a filed with the Supreme Court or with any of the
remedy available to a natural or juridical person, stations of the Court of Appeals.
entity authorized by law, people’s organization,
Section 4. No docket fees. - The petitioner shall
non-governmental organization, or any public
be exempt from the payment of docket fees.
interest group accredited by or registered with any
government agency, on behalf of persons whose
Section 5.Issuance of the writ. - Within three (3)
constitutional right to a balanced and healthful
days from the date of filing of the petition, if the
ecology is violated, or threatened with violation by
petition is sufficient in form and substance, the
an unlawful act or omission of a public official or
court shall give an order: (a) issuing the writ; and
employee, or private individual or entity, involving
(b) requiring the respondent to file a verified return
environmental damage of such magnitude as to
as provided in Section 8 of this Rule. The clerk of
prejudice the life, health or property of inhabitants
court shall forthwith issue the writ under the seal
in two or more cities or provinces.
of the court including the issuance of a cease and
desist order and other temporary reliefs effective
NATURE OF THE WRIT
until further order.
1) Preliminary Mandatory Injunction;
2) Preliminary Prohibitory Injunction;
Section 6. How the writ is served. - The writ
3) Special Civil Action
shall be served upon the respondent by a court
officer or any person deputized by the court, who
Section 2.Contents of the petition. - The verified
shall retain a copy on which to make a return of
petition shall contain the following:
service. In case the writ cannot be served
personally, the rule on substituted service shall
(a) The personal circumstances of the petitioner;
apply.
(b) The name and personal circumstances of the
Section 7.Penalty for refusing to issue or serve
respondent or if the name and personal
the writ. - A clerk of court who unduly delays or
circumstances are unknown and uncertain, the
refuses to issue the writ after its allowance or a
respondent may be described by an assumed
court officer or deputized person who unduly
appellation;
delays or refuses to serve the same shall be
punished by the court for contempt without
(c) The environmental law, rule or regulation
prejudice to other civil, criminal or administrative
violated or threatened to be violated, the act or
actions.
omission complained of, and the environmental
damage of such magnitude as to prejudice the life,
Section 8.Return of respondent; contents. -
health or property of inhabitants in two or more
Within a non-extendible period of ten (10) days
cities or provinces.
after service of the writ, the respondent shall file a
verified return which shall contain all defenses to
(d) All relevant and material evidence consisting of
show that respondent did not violate or threaten to
the affidavits of witnesses, documentary evidence,
violate, or allow the violation of any environmental
scientific or other expert studies, and if possible,
law, rule or regulation or commit any act resulting
object evidence;
to environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants
(e) The certification of petitioner under oath that:
in two or more cities or provinces.
(1) petitioner has not commenced any action or
filed any claim involving the same issues in any
All defenses not raised in the return shall be
court, tribunal or quasi-judicial agency, and no
deemed waived.
such other action or claim is pending therein; (2) if
there is such other pending action or claim, a
The return shall include affidavits of witnesses,
complete statement of its present status; (3) if
documentary evidence, scientific or other expert
petitioner should learn that the same or similar
studies, and if possible, object evidence, in
action or claim has been filed or is pending,
support of the defense of the respondent.
petitioner shall report to the court that fact within
five (5) days therefrom; and
A general denial of allegations in the petition shall
be considered as an admission thereof.
(f) The reliefs prayed for which may include a
prayer for the issuance of a TEPO.

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Section 9.Prohibited pleadings and motions. -
The following pleadings and motions are
prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file return;
(c) Motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply; and
(h) Motion to declare respondent in default.
Section 10.Effect of failure to file return. - In
case the respondent fails to file a return, the court
shall proceed to hear the petition ex parte.
Section 11.Hearing. - Upon receipt of the return
of the respondent, the court may call a preliminary
conference to simplify the issues, determine the
possibility of obtaining stipulations or admissions
from the parties, and set the petition for hearing.
The hearing including the preliminary conference
shall not extend beyond sixty (60) days and shall
be given the same priority as petitions for the writs
of habeas corpus, amparo and habeas data.
Section 12.Discovery Measures. - A party may
file a verified motion for the following reliefs:
(a) Ocular Inspection order ; The motion must
show that an ocular inspection order is necessary
to establish the magnitude of the violation or the
threat as to prejudice the life, health or property of
inhabitants in two or more cities or provinces. It
shall state in detail the place or places to be
inspected. It shall be supported by affidavits of
witnesses having personal knowledge of the
violation or threatened violation of environmental
law.
After hearing, 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.
The order shall specify the person or persons
authorized to make the inspection and the date,
time, place and manner of making the inspection
and may prescribe other conditions to protect the
constitutional rights of all parties.
(b) Production or inspection of documents or
things order; The motion must show that a
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
production order is necessary to establish the
magnitude of the violation or the threat as to
prejudice the life, health or property of inhabitants
in two or more cities or provinces.
After hearing, 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.
The production order shall specify the person or
persons authorized to make the production and
the date, time, place and manner of making the
inspection or production and may prescribe other
conditions to protect the constitutional rights of all
parties.
Section 13.Contempt. - The court may after
hearing punish the respondent who refuses or
unduly delays the filing of a return, or who makes
a false return, or any person who disobeys or
resists a lawful process or order of the court for
indirect contempt under Rule 71 of the Rules of
Court.
Section 14.Submission of case for decision;
filing of memoranda. - After hearing, the court
shall issue an order submitting the case for
decision. The court may require the filing of
memoranda and if possible, in its electronic form,
within a non-extendible period of thirty (30) days
from the date the petition is submitted for decision.
Section 15.Judgment. - Within sixty (60) days
from the time the petition is submitted for decision,
the court shall render judgment granting or
denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are
the following:
(a) Directing respondent to permanently cease
and desist from committing acts or neglecting the
performance of a duty in violation of environmental
laws resulting in environmental destruction or
damage;
(b) Directing the respondent public official,
government agency, private person or entity to
protect, preserve, rehabilitate or restore the
environment;
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(c) Directing the respondent public official,
government agency, private person or entity to
monitor strict compliance with the decision and
orders of the court;
(d) Directing the respondent public official,
government agency, or private person or entity to
make periodic reports on the execution of the final
judgment; and
(e) Such other reliefs which relate to the right of
the people to a balanced and healthful ecology or
to the protection, preservation, rehabilitation or
restoration of the
environment, except the award of damages to
individual petitioners.
Section 16.Appeal. - Within fifteen (15) days from
the date of notice of the adverse judgment or
denial of motion for reconsideration, any party
may appeal to the Supreme Court under Rule 45
of the Rules of Court. The appeal may raise
questions of fact.
Section 17.Institution of separate actions. - The
filing of a petition for the issuance of the writ of
kalikasan shall not preclude the filing of separate
civil, criminal or administrative actions.
RULE 8
WRIT OF CONTINUING MANDAMUS
Section 1.Petition for continuing mandamus. -
When any agency or instrumentality of the
government or officer thereof unlawfully neglects
the performance of an act which the law
specifically enjoins as a duty resulting from an
office, trust or station in connection with the
enforcement or violation of an environmental law
rule or regulation or a right therein, or unlawfully
excludes another from the use or enjoyment of
such right and there is no other plain, speedy and
adequate remedy in the ordinary course of law,
the person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with
certainty, attaching thereto supporting evidence,
specifying that the petition concerns an
environmental law, rule or regulation, and praying
that judgment be rendered commanding the
respondent to do an act or series of acts until the
judgment is fully satisfied, and to pay damages
sustained by the petitioner by reason of the
malicious neglect to perform the duties of the
respondent, under the law, rules or regulations.
The petition shall also contain a sworn certification
of non-forum shopping.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Note: Writ of Continuing Mandamus originates
from India (Review Lecture)
Section 2.Where to file the petition. - The
petition shall be filed with the Regional Trial Court
exercising jurisdiction over the territory where the
actionable neglect or omission occurred or with
the Court of Appeals or the Supreme Court.
Section 3. No docket fees. - The petitioner shall
be exempt from the payment of docket fees.
Section 4.Order to comment. - If the petition is
sufficient in form and substance, the court shall
issue the writ and require the respondent to
comment on the petition within ten (10) days from
receipt of a copy thereof. Such order shall be
served on the respondents in such manner as the
court may direct, together with a copy of the
petition and any annexes thereto.
Section 5.Expediting proceedings; TEPO. - The
court in which the petition is filed may issue such
orders to expedite the proceedings, and it may
also grant a TEPO for the preservation of the
rights of the parties pending such proceedings.
Section 6.Proceedings after comment is filed. -
After the comment is filed or the time for the filing
thereof has expired, the court may hear the case
which shall be summary in nature or require the
parties to submit memoranda. The petition shall
be resolved without delay within sixty (60) days
from the date of the submission of the petition for
resolution.
Section 7.Judgment. - If warranted, the court
shall grant the privilege of the writ of continuing
mandamus requiring respondent to perform an act
or series of acts until the judgment is fully satisfied
and to grant such other reliefs as may be
warranted resulting from the wrongful or illegal
acts of the respondent. The court shall require the
respondent to submit periodic reports detailing the
progress and execution of the judgment, and the
court may, by itself or through a commissioner or
the appropriate government agency, evaluate and
monitor compliance. The petitioner may submit its
comments or observations on the execution of the
judgment.
Section 8. Return of the writ. - The periodic
reports submitted by the respondent detailing
compliance with the judgment shall be contained
in partial returns of the writ.
Upon full satisfaction of the judgment, a final
return of the writ shall be made to the court by the
respondent. If the court finds that the judgment
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has been fully implemented, the satisfaction of
judgment shall be entered in the court docket.
PART IV
CRIMINAL PROCEDURE
RULE 9
PROSECUTION OF OFFENSES
Section 1. Who may file. - Any offended party,
peace officer or any public officer charged with the
enforcement of an environmental law may file a
complaint before the proper officer in accordance
with the Rules of Court.
Section 2.Filing of the information.- An
information, charging a person with a violation of
an environmental law and subscribed by the
prosecutor, shall be filed with the court.
Section 3.Special prosecutor. - In criminal
cases, where there is no private offended party, a
counsel whose services are offered by any person
or organization may be allowed by the court as
special prosecutor, with the consent of and subject
to the control and supervision of the public
prosecutor.
RULE 10
PROSECUTION OF CIVIL ACTIONS
Section 1.Institution of criminal and civil
actions. - When a criminal action is instituted, the
civil action for the recovery of civil liability arising
from the offense charged, shall be deemed
instituted with the criminal action unless the
complainant waives the civil action, reserves the
right to institute it separately or institutes the civil
action prior to the criminal action.
Unless the civil action has been instituted prior to
the criminal action, the reservation of the right to
institute separately the civil action shall be made
during arraignment.
In case civil liability is imposed or damages are
awarded, the filing and other legal fees shall be
imposed on said award in accordance with Rule
141 of the Rules of Court, and the fees shall
constitute a first lien on the judgment award. The
damages awarded in cases where there is no
private offended party, less the filing fees, shall
accrue to the funds of the agency charged with the
implementation of the environmental law violated.
The award shall be used for the restoration and
rehabilitation of the environment adversely
affected.
RULE 11
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
ARREST
Section 1.Arrest without warrant; when lawful.
- A peace officer or an individual deputized by the
proper government agency may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing or
is attempting to commit an offense; or
(b) When an offense has just been committed, and
he has probable cause to believe based on
personal knowledge of facts or circumstances that
the person to be arrested has committed it.
Individuals deputized by the proper government
agency who are enforcing environmental laws
shall enjoy the presumption of regularity under
Section 3(m), Rule 131 of the Rules of Court when
effecting arrests for violations of environmental
laws.
Section 2. Warrant of arrest. - All warrants of
arrest issued by the court shall be accompanied
by a certified true copy of the information filed with
the issuing court.
RULE 12
CUSTODY AND DISPOSITION OF SEIZED
ITEMS, EQUIPMENT,
PARAPHERNALIA, CONVEYANCES AND
INSTRUMENTS
Section 1. Custody and disposition of seized
items. - The custody and disposition of seized
items shall be in accordance with the applicable
laws or rules promulgated by the concerned
government agency.
Section 2.Procedure. - In the absence of
applicable laws or rules promulgated by the
concerned government agency, the following
procedure shall be observed:
(a) The apprehending officer having initial custody
and control of the seized items, equipment,
paraphernalia, conveyances and instruments shall
physically inventory and whenever practicable,
photograph the same in the presence of the
person from whom such items were seized.
(b) Thereafter, the apprehending officer shall
submit to the issuing court the return of the search
warrant within five (5) days from date of seizure or
in case of warrantless arrest, submit within five (5)
days from date of seizure, the inventory report,
compliance report, photographs, representative
samples and other pertinent documents to the
public prosecutor for appropriate action.
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(c) Upon motion by any interested party, the court
may direct the auction sale of seized items,
equipment, paraphernalia, tools or instruments of
the crime. The court shall, after hearing, fix the
minimum bid price based on the recommendation
of the concerned government agency. The sheriff
shall conduct the auction.
(d) The auction sale shall be with notice to the
accused, the person from whom the items were
seized, or the owner thereof and the concerned
government agency.
(e) The notice of auction shall be posted in three
conspicuous places in the city or municipality
where the items, equipment, paraphernalia, tools
or instruments of the crime were seized.
(f) The proceeds shall be held in trust and
deposited with the government depository bank for
disposition according to the judgment.
RULE 13
PROVISIONAL REMEDIES
Section 1.Attachment in environmental cases.
- The provisional remedy of attachment under
Rule 127 of the Rules of Court may be availed of
in environmental cases.
Section 2.Environmental Protection Order
(EPO); Temporary Environmental Protection
Order (TEPO) in criminal cases. - The procedure
for and issuance of EPO and TEPO shall be
governed by Rule 2 of these Rules.
RULE 14
BAIL
Section 1. Bail, where filed. - Bail in the amount
fixed may be filed with 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.
Section 2.Duties of the court. - Before granting
the application for bail, the judge must read the
information in a language known to and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
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;
(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.
RULE 15
ARRAIGNMENT AND PLEA
Section 1.Arraignment. - The court shall set the
arraignment of the accused within fifteen (15) days
from the time it acquires jurisdiction over the
accused, with notice to the public prosecutor and
offended party or concerned government agency
that it will entertain plea-bargaining on the date of
the arraignment.
Section 2.Plea-bargaining. - On the scheduled
date of arraignment, the court shall consider plea-
bargaining arrangements. Where the prosecution
and offended party or concerned government
agency agree to the plea offered by the accused,
the court shall:
(a) Issue an order which contains the plea-
bargaining arrived at;
(b) Proceed to receive evidence on the civil aspect
of the case, if any; and
(c) Render and promulgate judgment of
conviction, including the civil liability for damages.
RULE 16
PRE-TRIAL
Section 1.Setting of pre-trial conference. - After
the arraignment, the court shall set the pre-trial
conference within thirty (30) days. It may refer the
case to the branch clerk of court, if warranted, for
a preliminary conference to be set at least three
(3) days prior to the pre-trial.
Section 2.Preliminary conference. - The
preliminary conference shall be for the following
purposes:
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(a) To assist the parties in reaching a settlement
of the civil aspect of the case;
(b) To mark the documents to be presented as
exhibits;
(c) To attach copies thereof to the records after
comparison with the originals;
(d) To ascertain from the parties the undisputed
facts and admissions on the genuineness and due
execution of documents marked as exhibits;
(e) To consider such other matters as may aid in
the prompt disposition of the case;
(f) To record the proceedings during the
preliminary conference in the Minutes of
Preliminary Conference to be signed by the
parties and counsel;
(g) To mark the affidavits of witnesses which shall
be in question and answer form and shall
constitute the direct examination of the witnesses;
and
(h) To attach the Minutes and marked exhibits to
the case record before the pre-trial proper. The
parties or their counsel must submit to the branch
clerk of court the names, addresses and contact
numbers of the affiants.
Section 3.Pre-trial duty of the judge. - During
the pre-trial, the court shall:
(a) Place the parties and their counsels under
oath;
(b) Adopt the minutes of the preliminary
conference as part of the pre-trial proceedings,
confirm markings of exhibits or substituted
photocopies and admissions on the genuineness
and due execution of documents, and list object
and testimonial evidence;
(c) Scrutinize the information and the statements
in the affidavits and other documents which form
part of the record of the preliminary investigation
together with other documents identified and
marked as exhibits to determine further
admissions of facts as to:
i. The court’s territorial jurisdiction relative to
the offense(s) charged;
ii. Qualification of expert witnesses; and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
iii. Amount of damages;
(d) Define factual and legal issues;
(e) Ask parties to agree on the specific trial dates
and adhere to the flow chart determined by the
court which shall contain the time frames for the
different stages of the proceeding up to
promulgation of decision;
(f) Require the parties to submit to the branch
clerk of court the names, addresses and contact
numbers of witnesses that need to be summoned
by subpoena; and
(g) Consider modification of order of trial if the
accused admits the charge but interposes a lawful
defense.
Section 4.Manner of questioning. - All questions
or statements must be directed to the court.
Section 5.Agreements or admissions. - All
agreements or admissions made or entered during
the pre-trial conference shall be reduced in writing
and signed by the accused and counsel;
otherwise, they cannot be used against the
accused. The agreements covering the matters
referred to in Section 1, Rule 118 of the Rules of
Court shall be approved by the court.
Section 6.Record of proceedings. - All
proceedings during the pre-trial shall be recorded,
the transcripts prepared and the minutes signed
by the parties or their counsels.
Section 7.Pre-trial order. - The court shall issue
a pre-trial order within ten (10) days after the
termination of the pre-trial, setting forth the actions
taken during the pre-trial conference, the facts
stipulated, the admissions made, evidence
marked, the number of witnesses to be presented
and the schedule of trial. The order shall bind the
parties and control the course of action during the
trial.
RULE 17
TRIAL
Section 1.Continuous trial. - The court shall
endeavor to conduct continuous trial which shall
not exceed three (3) months from the date of the
issuance of the pre-trial order.
Section 2.Affidavit in lieu of direct
examination. - Affidavit in lieu of direct
examination shall be used, subject to cross-
examination and the right to object to inadmissible
portions of the affidavit.
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Section 3.Submission of memoranda. - The
court may require the parties to submit their
respective memoranda and if possible, in
electronic form, within a non-extendible period of
thirty (30) days from the date the case is
submitted for decision.
With or without any memoranda filed, the court
shall have a period of sixty (60) days to decide the
case counted from the last day of the 30-day
period to file the memoranda.
Section 4.Disposition period. - The court shall
dispose the case within a period of ten (10)
months from the date of arraignment.
Section 5.Pro bono lawyers. - If the accused
cannot afford the services of counsel or there is no
available public attorney, the court shall require
the Integrated Bar of the Philippines to provide pro
bono lawyers for the accused.
RULE 18
SUBSIDIARY LIABILITY
Section 1.Subsidiary liability. - 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 subsidiary liable under Article 102 and
Article 103 of the Revised Penal Code.
RULE 19
STRATEGIC LAWSUIT AGAINST PUBLIC
PARTICIPATION IN CRIMINAL CASES
Section 1.Motion to dismiss. - Upon the filing of
an information in court and before arraignment,
the accused may file a motion to dismiss on the
ground that the criminal action is a SLAPP.
Section 2.Summary hearing. - The hearing on
the defense of a SLAPP shall be summary in
nature. The parties must submit all the available
evidence in support of their respective positions.
The party seeking the dismissal of the case must
prove by substantial evidence that his acts for the
enforcement of environmental law is a legitimate
action for the protection, preservation and
rehabilitation of the environment. The party filing
the action assailed as a SLAPP shall prove by
preponderance of evidence that the action is not a
SLAPP.
Section 3.Resolution. - The court shall grant the
motion if the accused establishes in the summary
hearing that the criminal case has been filed with
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
intent to harass, vex, exert undue pressure or
stifle any legal recourse that any person,
institution or the government has taken or may
take in the enforcement of environmental laws,
protection of the environment or assertion of
environmental rights.
If the court denies the motion, the court shall
immediately proceed with the arraignment of the
accused.
PART V
EVIDENCE
RULE 20
PRECAUTIONARY PRINCIPLE
Section 1.Applicability. - When there is a lack of
full scientific certainty in establishing a causal link
between human activity and environmental effect,
the court shall apply the precautionary principle in
resolving the case before it.
The constitutional right of the people to a balanced
and healthful ecology shall be given the benefit of
the doubt.
Precautionary Principle (2012) No.II.B.
What do you understand about the
"precautionary principle" under the Rules of
Procedure for Environmental Cases? (5%)
SUGGESTED ANSWER:
Precautionary principles 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. In
its essence, the precautionary principle
calls for the exercise of caution in the face
of risk and uncertainty (Sec. 4 [f], Rule 1,
Part 1, and Rule 20, A.M. No. 09-6-8-SC,
Rules of Procedure for Environment
Cases).
Section 2.Standards for application. - In
applying the precautionary principle, the following
factors, among others, may be considered: (1)
threats to human life or health; (2) inequity to
present or future generations; or (3) prejudice to
the environment without legal consideration of the
environmental rights of those affected.
RULE 21
DOCUMENTARY EVIDENCE
Section 1.Photographic, video and similar
evidence. - Photographs, videos and similar
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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 by the person who
took the same, by some other person present
when said evidence was taken, or by any other
person competent to testify on the accuracy
thereof.
Section 2.Entries in official records. - 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.
RULE 22
FINAL PROVISIONS
Section 1.Effectivity. - These Rules shall take
effect within fifteen (15) days following publication
once in a newspaper of general circulation.
Section 2.Application of the Rules of Court. -
The Rules of Court shall apply in a suppletory
manner, except as otherwise provided herein.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 02-11-10-SC March 4, 2003
RE: PROPOSED RULE ON DECLARATION OF
ABSOLUTE NULLITY OF VOID MARRIAGES
AND ANNULMENT OF VOIDABLE MARRIAGES
RESOLUTION
Acting on the letter of the Chairman of the
Committee on Revision of the Rules of Court
submitting for this Court's consideration and
approval the Proposed Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
of Voidable Marriages, the Court Resolved to
APPROVE the same.
The Rule shall take effect on March 15,
2003 following its publication in a newspaper of
general circulation not later than March 7, 2003
March 4, 2003
RULE ON DECLARATION OF ABSOLUTE
NULLITY OF VOID MARIAGES AND
ANNULMENT OF VOIDABLE MARRIAGES
Section 1. Scope - This Rule shall govern
petitions for declaration of absolute nullity of void
marriages and annulment of voidable marriages
under the Family Code of the Philippines.
The Rules of Court shall apply suppletorily.
Section 2. Petition for declaration of absolute
nullity of void marriages.
(a) Who may file. - A petition for declaration
of absolute nullity of void marriage may be
filed solely by the husband or the wife. (n)
(b) Where to file. - The petition shall be filed
in the Family Court.
(c) Imprecriptibility of action or defense. -
An Action or defense for the declaration of
absolute nullity of void marriage shall not
prescribe.
(d) What to allege. - A petition under Article
36 of Family Code shall specially allege the
complete facts showing the either or both
parties were psychologically incapacitated
from complying with the essential marital
obligations of marriages at the time of the
celebration of marriage even if such incapacity
becomes manifest only after its celebration.
The complete facts should allege the
physical manifestations, if any, as are indicative of
psychological incapacity at the time of the
celebration of the marriage but expert opinion
need not be alleged.
Section 3. Petition for annulment of voidable
marriages. -
(a) Who may file. - The following persons
may file a petition for annulment of voidable
marriage based on any of the grounds under
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article 45 of the Family Code and within the
period herein indicated:
(1) The contracting party whose parent, or
guardian, or person exercising substitute
parental authority did not give his or her
consent, within five years after attaining
the age of twenty-one unless, after
attaining the age of twenty-one, such
party freely cohabitated with the other as
husband or wife; or the parent, guardian
or person having legal charge of the
contracting party , at any time before such
party has reached the age of twenty-one;
(2) The sane spouse who had no
knowledge of the other's insanity; or by
any relative, guardian, or person having
legal charge of the insane, at any time
before the death of either party; or by the
insane spouse during the a lucid interval
or after regaining sanity, provided that the
petitioner , after coming to reason, has not
freely cohabited with the other as husband
or wife;
(3) The injured party whose consent was
obtained by fraud, within five years after
the discovery of the fraud, provided that
said party, with full knowledge of the facts
constituting the fraud, has not freely
cohabited with the other as husband or
wife;
(4) The injured party whose consent was
obtained by force, intimidation, or undue
influence, within five years from the time
the force intimidation, or undue influence
disappeared or ceased, provided that the
force, intimidation, or undue influence
having disappeared or ceased, said party
has not thereafter freely cohabited with
the other as husband or wife;
(5) The injured party where the other
spouse is physically incapable of
consummating the marriage with the other
and such incapability continues and
appears to be incurable, within five years
after the celebration of marriage; and
(6) The injured party where the other party
was afflicted with a sexually-transmissible
disease found to be serious and appears
to be incurable, within five years after the
celebration of marriage.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(b) Where to file. - The petition shall be filed
in the Family Court.
Section 4. Venue. - The Petition shall be filed in
the Family Court of the province or city where the
petitioner or the respondent has been residing for
at least six months prior to the date of filing. Or in
the case of non-resident respondent, where he
may be found in the Philippines, at the election of
the petitioner.
Section 5. Contents and form of petition. - (1)
The petition shall allege the complete facts
constituting the cause of action.
(2) it shall state the names and ages of the
common children of the parties and specify
the regime governing their property relations,
as well as the properties involved.
If there is no adequate provision in a
written agreement between the parties, the
petitioner may apply for a provisional order for
spousal support, custody and support of
common children, visitation rights,
administration of community or conjugal
property, and other matters similarly requiring
urgent action.
(3) it must be verified and accompanied by a
certification against forum shopping. The
verification and certification must be signed
personally by the petitioner. No petition may
be filed solely by counsel or through an
attorney-in-fact.
If the petitioner is in a foreign country,
the verification and certification against forum
shopping shall be authenticated by the duly
authorized officer of the Philippine embassy or
legation, consul general, consul or vice-consul
or consular agent in said country.
(4) it shall be filed in six copies. The petitioner
shall serve a copy of the petition on the Office
of the Solicitor General and the Office of the
City or Provincial Prosecutor, within five days
from the date of its filing and submit to the
court proof of such service within the same
period.
Failure to comply with any of the
preceding requirements may be a ground for
immediate dismissal of the petition.
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Section 6. Summons. - The service of summons
shall be governed by Rule 14 of the Rules of Court
and by the following rules:
(1) Where the respondent cannot be located
at his given address or his whereabouts are
unknown and cannot be ascertained by
diligent inquiry, service of summons may, by
leave of court, be effected upon him by
publication once a week for two consecutive
weeks in a newspaper of general circulation in
the Philippines and in such places as the court
may order In addition, a copy of the summons
shall be served on the respondent at his last
known address by registered mail or any other
means the court may deem sufficient.
(2) The summons to be published shall be
contained in an order of the court with the
following data: (a) title of the case; (b) docket
number; (c) nature of the petition; (d) principal
grounds of the petition and the reliefs prayed
for; and (e) a directive for the respondent to
answer within thirty days from the last issue of
publication.
Section 7. Motion to dismiss. - No motion to
dismiss the petition shall be allowed except on the
ground of lack of jurisdiction over the subject
matter or over the parties; provided, however, that
any other ground that might warrant a dismissal of
the case may be raised as an affirmative defense
in an answer.
Section 8. Answer. - (1) The respondent shall file
his answer within fifteen days from service of
summons, or within thirty days from the last issue
of publication in case of service of summons by
publication. The answer must be verified by the
respondent himself and not by counsel or
attorney-in-fact.
(2) If the respondent fails to file an answer, the
court shall not declare him or her in default.
(3) Where no answer is filed or if the answer
does not tender an issue, the court shall order
the public prosecutor to investigate whether
collusion exists between the parties.
Section 9. Investigation report of public
prosecutor. - (1) Within one month after receipt of
the court order mentioned in paragraph (3) of
Section 8 above, the public prosecutor shall
submit a report to the court stating whether the
parties are in collusion and serve copies thereof
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
on the parties and their respective counsels, if
any.
(2) If the public prosecutor finds that
collusion exists, he shall state the on the
finding of collusion within ten days from
receipt of a copy of a report The court
shall set the report for hearing and If
convinced that the parties are in collusion,
it shall dismiss the petition.
(3) If the public prosecutor reports that no
collusion exists, the court shall set the
case for pre-trial. It shall be the duty of the
public prosecutor to appear for the State
at the pre-trial.
Section 10. Social worker. - The court may
require a social worker to conduct a case study
and submit the corresponding report at least three
days before the pre-trial. The court may also
require a case study at any stage of the case
whenever necessary.
Section 11. Pre-trial. -
(1) Pre-trial mandatory. - A pre-trial is
mandatory. On motion or motu proprio, the
court shall set the pre-trial after the last
pleading has been served and filed, or upon
receipt of the report of the public prosecutor
that no collusion exists between the parties.
(2) Notice of pre-trial. - (a) The notice of pre-
trial shall contain:
(1) the date of pre-trial conference; and
(2) an order directing the parties to file
and serve their respective pre-trial briefs
in such manner as shall ensure the receipt
thereof by the adverse party at least three
days before the date of pre-trial.
(b) The notice shall be served separately on
the parties and their respective counsels as
well as on the public prosecutor. It shall be
their duty to appear personally at the pre-trial.
(c) Notice of pre-trial shall be sent to the
respondent even if he fails to file an answer.
In case of summons by publication and the
respondent failed to file his answer, notice of
pre-trial shall be sent to respondent at his last
known address.
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Section 12. Contents of pre-trial brief. - The
pre-trial brief shall contain the following:
(a) A statement of the willingness of the
parties to enter into agreements as may be
allowed by law, indicating the desired terms
thereof;
(b) A concise statement of their respective
claims together with the applicable laws and
authorities;
(c) Admitted facts and proposed stipulations of
facts, as well as the disputed factual and legal
issues;
(d) All the evidence to be presented, including
expert opinion, if any, briefly stating or
describing the nature and purpose thereof;
(e) The number and names of the witnesses
and their respective affidavits; and
(f) Such other matters as the court may
require.
Failure to file the pre-trial brief or to comply
with its required contents shall have the same
effect as failure to appear at the pre-trial under the
succeeding paragraphs.
Section 13. Effect of failure to appear at the
pre-trial. - {a) If the petitioner fails to appear
personally, the case shall be dismissed unless his
counsel or a duly authorized representative
appears in court and proves a valid excuse for the
non-appearance of the petitioner.
(b) If the respondent has filed his answer but
fails to appear, the court shall proceed with
the pre-trial and require the public prosecutor
to investigate the non-appearance of the
respondent and submit within fifteen days
thereafter a report to the court stating whether
his non-appearance is due to any collusion
between the parties. If there Is no collusion,
the court shall require the public prosecutor to
intervene for the State during the trial on the
merits to prevent suppression or fabrication of
evidence.
Section 14. Pre-trial conference. -At the pre-trial
conference, the court:
(a) May refer the issues to a mediator who
shall assist the parties in reaching an
agreement on matters not prohibited by law.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
The mediator shall render a report
within one month from referral which, for good
reasons, the court may extend for a period not
exceeding one month.
(b) In case mediation is not availed of or
where it fails, the court shall proceed with the
pre-trial conference, on which occasion it shall
consider the advisability of receiving expert
testimony and such other matters as may aid
in the prompt disposition of the petition.
Section 15. Pre-trial order. - {a) The proceedings
in the pre-trial shall be recorded. Upon termination
of the pre-trial, the court shall Issue a pre-trial
order which shall recite in detail the matters taken
up In the conference, the action taken thereon, the
amendments allowed on the pleadings, and
except as to the ground of declaration of nullity or
annulment, the agreements or admissions made
by the parties on any of the matters considered,
including any provisional order that may be
necessary or agreed upon by the parties.
(b) Should the action proceed to trial, the
order shall contain a recital of the following;
(1) Facts undisputed, admitted, and those
which need not be proved subject to
Section 16 of this Rule;
(2) Factual and legal issues to be litigated;
(3) Evidence, including objects and
documents, that have been marked and
will be presented;
(4) Names of witnesses who will be
presented and their testimonies in the
form of affidavits; and
(5) Schedule of the presentation of
evidence.
(c) The pre-trial order shall also contain a
directive to the public prosecutor to appear for
the State and take steps to prevent collusion
between the parties at any stage of the
proceedings and fabrication or suppression of
evidence during the trial on the merits.
(d) The parties shall not be allowed to raise
issues or present witnesses and evidence
other than those stated in the pre-trial order.
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The order shall control the trial of the case,
unless modified by the court to prevent
manifest injustice.
(e) The parties shall have five days from
receipt of the pre-trial order to propose
corrections or modifications.
Section 16. Prohibited compromise. - The court-
shall not allow compromise on prohibited matters,
such as the following:
(a) The civil status of persons;
(b) The validity of a marriage or of a legal
separation;
(c) Any ground for legal separation;
(d) Future support;
(e) The jurisdiction of courts; and
(f) Future legitime.
Section 17. Trial. - (1) The presiding judge shall
personally conduct the trial of the case. No
delegation of the reception of evidence to a
commissioner shall be allowed except as to
matters involving property relations of the
spouses.
(2) The grounds for declaration of absolute
nullity or annulment of marriage must be
proved. No judgment on the pleadings,
summary judgment, or confession of judgment
shall be allowed.
(3) The court may order the exclusion from the
courtroom of all persons, including members
of the press, who do not have a direct interest
in the case. Such an order may be made if the
court determines on the record that requiring a
party to testify in open court would not
enhance the ascertainment of truth; would
cause to the party psychological harm or
inability to effectively communicate due to
embarrassment, fear, or timidity; would violate
the right of a party to privacy; or would be
offensive to decency or public morals.
(4) No copy shall be taken nor any
examination or perusal of the records of the
case or parts thereof be made by any person
other than a party or counsel of a party,
except by order of the court.
Section 18. Memoranda. - The court may require
the parties and the public prosecutor, in
consultation with the Office of the Solicitor
General, to file their respective memoranda
support of their claims within fifteen days from the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
date the trial is terminated. It may require the
Office of the Solicitor General to file its own
memorandum if the case is of significant interest
to the State. No other pleadings or papers may be
submitted without leave of court. After the lapse of
the period herein provided, the case will be
considered submitted for decision, with or without
the memoranda.
Section 19. Decision. - (1) If the court renders a
decision granting the petition, it shall declare
therein that the decree of absolute nullity or
decree of annulment shall be issued by the court
only after compliance with Article 50 and 51 of the
Family Code as implemented under the Rule on
Liquidation, Partition and Distribution of
Properties.
(2) The parties, including the Solicitor General
and the public prosecutor, shall be served with
copies of the decision personally or by
registered mail. If the respondent summoned
by publication failed to appear in the action,
the dispositive part of the decision shall be
published once in a newspaper of general
circulation.
(3) The decision becomes final upon the
expiration of fifteen days from notice to the
parties. Entry of judgment shall be made if no
motion for reconsideration or new trial, or
appeal Is filed by any of the parties the public
prosecutor, or the Solicitor General.
(4) Upon the finality of the decision, the court
shall forthwith issue the corresponding decree
if the parties have no properties.
If the parties have properties, the court shall
observe the procedure prescribed in Section 21 of
this Rule.
The entry of judgment shall be registered in
the Civil Registry where the marriage was
recorded and In the Civil Registry where the
Family Court granting the petition for declaration
of absolute nullity or annulment of marriage is
located.
Section 20. Appeal. -
(1) Pre-condition. - No appeal from the
decision shall be allowed unless the appellant
has filed a motion for reconsideration or new
trial within fifteen days from notice of
judgment.
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(2) Notice of appeal. - An aggrieved party or
the Solicitor General may appeal from the
decision by filing a Notice of Appeal within
fifteen days from notice of denial of the motion
for reconsideration or new trial. The appellant
shall serve a copy of the notice of appeal on
the adverse parties.
Section 21. Liquidation, partition and distribution,
custody, support of common children and delivery
of their presumptive iegitimes. - Upon entry of the
judgment granting the petition, or, in case of
appeal, upon receipt of the entry of judgment of
the appellate court granting the petition, the
Family Court, on motion of either party, shall
proceed with the liquidation, partition and
distribution of the properties of the spouses,
including custody, support of common children
and delivery of their presumptive legitimes
pursuant to Articles 50 and 51 of the Family Code
unless such matters had been adjudicated in
previous judicial proceedings.
Section 22. Issuance of Decree of Declaration of
Absolute Nullity or Annulment of Marriage." (a)
The court shall issue the Decree after;
(1) Registration of the entry of judgment
granting the petition for declaration of
nullity or annulment of marriage in the
Civil Registry where the marriage was
celebrated and in the Civil Registry of the
place where the Family Court is located;
(2) Registration of the approved partition
and distribution of the properties of the
spouses, in the proper Register of Deeds
where the real properties are located; and
(3) The delivery of the children's
presumptive legitimes in cash, property, or
sound securities.
(b) The court shall quote in the Decree the
dispositive portion of the judgment entered
and attach to the Decree the approved deed
of partition.
Except in the case of children under Articles
36 and 53 of the Family Code, the court shall
order the Local Civil Registrar to issue an
amended birth certificate indicating the new civil
status of the children affected.
Section 23. Registration and publication of the
decree; decree as best evidence. - (a) The
prevailing party shall cause the registration of the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Decree in the Civil Registry where the marriage
was registered, the Civil Registry of the place
where the Family Court is situated, and in the
National Census and Statistics Office. He shall
report to the court compliance with this
requirement within thirty days from receipt of the
copy of the Decree.
(b) In case service of summons was made by
publication, the parties shall cause the
publication of the Decree once in a newspaper
of general circulation.
(c) The registered Decree shall be the best
evidence to prove the declaration of absolute
nullity or annulment of marriage and shall
serve as notice to third persons concerning
the properties of petitioner and respondent as
well as the properties or presumptive legitimes
delivered to their common children.
Section 24. Effect of death of a party; duty of the
Family Court or Appellate Court. - (a) In case a
party dies at any stage of the proceedings before
the entry of judgment, the court shall order the
case closed and terminated, without prejudice to
the settlement of the estate in proper proceedings
in the regular courts.
(b) If the party dies after the entry of judgment
of nullity or annulment, the judgment shall be
binding upon the parties and their successors
in interest in the settlement of the estate in the
regular courts.
Section 25. Effectlvity. - This Rule shall take
effect on March 15, 2003 following its publication
in a newspaper of general circulation not later than
March 7, 2003.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 02-11-11-SC March 4, 2003
RE: PROPOSED RULE ON LEGAL
SEPARATION
RESOLUTION
Acting on the letter of the Chairman of the
Committee on Revision of the Rules of Court
submitting for this Court's consideration and
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approval the Proposed Rule on Legal Separation,
the Court Resolved to APPROVED the same.
The Rule shall take effect on March 15,
2003 following its publication in a newspaper of
general circulation not later than March 7, 2003
March 4, 2003
RULE ON LEGAL SEPARATION
Section 1. Scope. - This Rule shall govern
petitions for legal separation under the Family
Code of the Philippines.
The Rules of Court shall apply suppletorily.
Section 2. Petition. - (a) Who may and when to
file. - (1) A petition for legal separation may be
filed only by the husband or the wife, as the case
may be within five years from the time of the
occurrence of any of the following causes:
(a) Repeated physical violence or grossly
abusive conduct directed against the
petitioner, a common child, or a child of
the petitioner;
(b) Physical violence or moral pressure to
compel the petitioner to change religious
or political affiliation;
(c) Attempt of respondent to corrupt or
induce the petitioner, a common child, or
a child of the petitioner, to engage in
prostitution, or connivance in such
corruption or inducement;
(d) Final judgment sentencing the
respondent to imprisonment of more than
six years, even if pardoned;
(e) Drug addiction or habitual alcoholism
of the respondent;
(f) Lesbianism or homosexuality of the
respondent;
(g) Contracting by the respondent of a
subsequent bigamous marriage, whether
in or outside the Philippines;
(h) Sexual infidelity or perversion of the
respondent;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(i) Attempt on the life of petitioner by the
respondent; or
(j) Abandonment of petitioner by
respondent without justifiable cause for
more than one year.
(b) Contents and form. - The petition for legal
separation shall:
(1) Allege the complete facts constituting
the cause of action.
(2) State the names and ages of the
common children of the parties, specify
the regime governing their property
relations, the properties involved, and
creditors, if any. If there is no adequate
provision in a written agreement between
the parties, the petitioner may apply for a
provisional order for spousal support,
custody and support of common children,
visitation rights, administration of
community or conjugal property, and other
similar matters requiring urgent action,
(3) Be verified and accompanied by a
certification against forum shopping. The
verification and certification must be
personally signed by the petitioner. No
petition may be filed solely by counsel or
through an attorney-in-fact. If the
petitioner is in a foreign country, the
verification and certification against forum
shopping shall be authenticated by the
duly authorized officer of the Philippine
embassy or legation, consul general,
consul or vice-consul or consular agent in
said country
(4) Be filed in six copies. The petitioner
shall, within five days from such filing,
furnish a copy of the petition to the City
or Provincial Prosecutor and the
creditors, if any, and submit to the court
proof of such service within the same
period.
Failure to comply with the
preceding requirements may be a ground
for immediate dismissal of the petition.
(c) Venue. - The petition shall be filed in the
Family Court of the province or city where the
petitioner or the respondent has been residing
for at least six months prior to the date of filing
"or in The case of a non-resident respondent,
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where he may be found in the Philippines, at
the election of the petitioner.
Section 3. Summons. - The service of summons
shall be governed by Rule 14 of the Rules of Court
and by the following rules:
(a) Where the respondent cannot be located
at his given address or his whereabouts are
unknown and cannot be ascertained by
diligent inquiry, service of summons may, by
leave of court, be effected upon him by
publication once a week for two consecutive
weeks in a newspaper of general circulation in
the Philippines and in such place as the court
may order. In addition, a copy of the summons
shall be served on respondent at his last
known address by registered mail or by any
other means the court may deem sufficient.
(b) The summons to be published shall be
contained in an order of the court with the
following data; (1) title of the case; (2) docket
number; (3) nature of the petition; (4) principal
grounds of the petition and the reliefs prayed
for, and (5) a directive for respondent to
answer within thirty days from the last issue of
publication.
Section 4. Motion to Dismiss. - No motion to
dismiss the petition shall be allowed except on the
ground of lack of jurisdiction over the subject
matter or over the parties; provided, however, that
any other ground that might warrant a dismissal of
the case may be raised as an affirmative defense
in an answer.
Section 5. Answer. - (a) The respondent shall file
his answer within fifteen days from receipt of
summons, or within thirty days from the last issue
of publication in case of service of summons by
publication. The answer must be verified by
respondent himself and not by counsel or
attorney-in-fact.
(b) If the respondent fails to file an answer, the
court shall not declare him in default.
(c) Where no answer is filed/or if the answer
does not tender an issue the court shall order
the public prosecutor to investigate whether
collusion exists between the parties.
Section 6. Investigation Report of Public
Prosecutor. - (a) Within one month after receipt of
the court order mentioned in paragraph (c) of the
preceding section, the public prosecutor shall
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
submit a report to the court on whether the parties
are in collusion and serve copies on the parties
and their respective counsels, if any.
(b) If the public prosecutor finds that collusion
exists, he shall state the basis thereof in his
report. The parties shall file their respective
comments on the finding of collusion within
ten days from receipt of copy of the report.
The court shall set the report for hearing and if
convinced that parties are in collusion,-it shall
dismiss the petition.
(c) If the public prosecutor reports that no
collusion exists, the court shall set the case
for pre-trial. It shall be the duty of the public
prosecutor to appear for the State at the pre-
trial.
Section 7. Social Worker. - The court may require
a social worker to conduct a case study and to
submit the corresponding report at least three
days before the pre-trial. The court may also
require a case study at any stage of the case
whenever necessary,
Section 8. Pre-trial. -
(a) Pre-trial mandatory.-A pre-trial is
mandatory. On motion or motu proprio, the
court shall set the pre-trial after the last
pleading has been served and filed, or upon
receipt of the report of the public prosecutor
that no collusion exists between the parties on
a date not earlier than six months from date of
the filing of the petition.
(b) Notice of Pre-trial.-(1) The notice of pre-
trial shall contain:
(a) the date of pre-trial conference; and
(b) an order directing the parties to file
and serve their respective pre-trial briefs
in such manner as shall ensure the receipt
thereof by the adverse party at least three
days before the date of pre-trial.
(2) The notice shall be served separately on
the parties and their respective counsels as
well as on the public prosecutor. It shall be
their duty to appear personally at the pre-trial.
(3) Notice of pre-trial shall be sent to the
respondent even if he fails to file an answer.
In case of summons by publication and the
respondent failed to file his answer, notice of
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pre-trial shall be sent to respondent at his last
known address.
Section 9. Contents of pre-trial brief. - The pre-
trial brief shall contain the following:
(1) A statement of the willingness of the
parties to enter into agreements as may be
allowed by law, indicating the desired terms
thereof;
(2) A concise statement of their respective
claims together with the applicable laws and
authorities;
(3) Admitted facts and proposed stipulations
of facts, as well as the disputed factual and
legal issues;
(4) All the evidence to be presented, including
expert opinion, if any, briefly stating or
describing the nature and purpose thereof;
(5) The number and names of the witnesses
and their respective affidavits; and
(6) Such other matters as the court may
require.
Failure to file the pre-trial brief or to comply
with its required contents shall have the same
effect as failure to appear at the pre-trial under the
succeeding section.
Section 10. Effect of failure to appear at the
pre-trial. - (1) If the petitioner fails to appear
personally, the case shall be dismissed unless his
counsel or a duly authorized representative
appears in court and proves a valid excuse for the
non-appearance of the petitioner.
(2) If the respondent filed his answer but fails
to appear, the court shall proceed with the
pre-trial and require the public prosecutor to
investigate the non-appearance of the
respondent and submit within fifteen days a
report to the court stating whether his non-
appearance is due to any collusion between
the parties/ If there is no collusion the court
shall require the public prosecutor to intervene
for the State during the trial on the merits to
prevent suppression or fabrication of
evidence.
Section 11. Pre-trial conference. - At the pre-trial
conference, the court may refer the issues to a
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
mediator who shall assist the parties in reaching
an agreement on matters not prohibited by law.
The mediator shall render a report within
one month from referral which, for good reasons,
the court may extend for a period not exceeding
one month.
In case mediation is not availed of or where
it fails, the court shall proceed with the pre-trial
conference, on which occasion it shall consider
the advisability of receiving expert testimony and
such other matters as may aid in the prompt
disposition of the petition.
Section 12. Pre-trial order. - (a) The proceedings
in the pre-trial shall be recorded. Upon termination
of the pre-trial, the court shall issue a pre-trial
order which shall recite in detail the matters taken
up in the conference, the action taken thereon, the
amendments allowed on the pleadings, and,
except as to the ground of legal separation, the
agreements or admissions made by the parties on
any of the matters considered, including any
provisional order that may be necessary or agreed
upon by the parties.
(b) Should the action proceed to trial, the
order shall contain a recital of the following:
(1) Facts undisputed, admitted, and those
which need not be proved subject to
Section 13 of this Rule;
(2) Factual and legal issues to be litigated;
(3) Evidence, including objects and
documents, that have been marked and
will be presented;
(4) Names of witnesses who will be
presented and their testimonies in the
form of affidavits; and
(5) Schedule of the presentation of
evidence.
The pre-trial order shall also contain
a directive to the public prosecutor to
appear for the State and take steps to
prevent collusion between the parties at
any stage of the proceedings and
fabrication or suppression of evidence
during the trial on the merits.
(c) The parties shall not be allowed to raise
issues or present witnesses and evidence
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other than those stated in the pre-trial order.
The order shall control the trial of the case
unless modified by the court to prevent
manifest injustice.
(d) The parties shall have five days from
receipt of the pre-trial order to propose
corrections or modifications.
Section 13. Prohibited compromise. - The court
shall not allow compromise on prohibited matters,
such as the following:
(1) The civil status of persons;
(2) The validity of a marriage or of a legal
separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts; and
(6) Future legitime.
Section 14. Trial. - (a) The presiding judge shall
personally conduct the trial of the case. No
delegation of the reception of evidence to a
commissioner shall be allowed except as to
matters involving property relations of the
spouses.
(b) The grounds for legal separation must be
proved. No judgment on the pleadings,
summary judgment, or confession of judgment
shall be allowed.
(c) The court may order the exclusion from the
courtroom of all persons, including members
of the press, who do not have a direct interest
in the case. Such an order may be made if the
court determines on the record that requiring a
party to testify in open court would not
enhance the ascertainment of truth; would
cause to the party psychological harm or
inability to effectively communicate due to
embarrassment, fear, or timidity; would violate
the party's right to privacy; or would be
offensive to decency
(d) No copy shall be taken nor any
examination or perusal of the records of the
case or parts thereof be made by any person
other than a party or counsel of a party,
except by order of the court.
Section 15. Memoranda. - The court may require
the parties and the public prosecutor to file their
respective memoranda in support of their claims
within fifteen days from the date the trial is
terminated. No other pleadings or papers may be
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
submitted without leave of court. After the lapse of
the period herein provided, the case will be
considered submitted for decision, with or without
the memoranda.
Section 16. Decision. - (a) The court shall deny
the petition on any of the following grounds:
(1) The aggrieved party has condoned the
offense or act complained of or has
consented to the commission of the
offense or act complained of;
(2) There is connivance in the commission
of the offense-or act constituting the
ground for legal separation;
(3) Both parties have given ground for
legal separation;
(4) There is collusion between the parties
to obtain the decree of legal separation; or
(5) The action is barred by prescription.
(b) If the court renders a decision granting the
petition, it shall declare therein that the
Decree of Legal Separation shall be issued by
the court only after full compliance with
liquidation under the Family Code.
However, in the absence of any
property of the parties, the court shall forthwith
issue a Decree of Legal Separation which
shall be registered in the Civil Registry where
the marriage was recorded and in the Civil
Registry where the Family Court granting the
legal separation is located.
(c) The decision shall likewise declare that:
(1) The spouses are entitled to live
separately from each other but the
marriage bond is not severed;
(2) The obligation of mutual support
between the spouses ceases; and
(3) The offending spouse is disqualified
from inheriting from the innocent spouse
by intestate succession, and provisions in
favor of the offending spouse made in the
will of the innocent spouse are revoked by
operation of law.
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(d) The parties, including the Solicitor General
and the public prosecutor, shall be served with
copies of the decision personally or by
registered mail. If the respondent summoned
by publication failed to appear in the action,
the dispositive part of the decision shall also
be published once in a newspaper of general
circulation.
Section 17. Appeal. -
(a) Pre-condition. - No appeal from the
decision shall be allowed unless the appellant
has filed a motion for reconsideration or new
trial within fifteen days from notice of
judgment.
(b) Notice of Appeal - An aggrieved party or
the Solicitor General may appeal from the
decision by filing a Notice of Appeal within
fifteen days from notice of denial of the motion
for reconsideration or new trial. The appellant
shall serve a copy of the notice of appeal
upon the adverse parties.
Section 18. Liquidation, partition and distribution,
custody, and support of minor children. - Upon
entry of the judgment granting the petition, or, in
case of appeal, upon receipt of the entry of
judgment of the appellate court granting the
petition, the Family Court, on motion of either
party, shall proceed with the liquidation, partition
and distribution of the properties of the spouses,
including custody and support of common
children, under the Family Code unless such
matters had been adjudicated in previous judicial
proceedings.
Section 19. Issuance of Decree of Legal
Separation. - (a) The court shall issue the Decree
of Legal Separation after:
(1) registration of the entry of judgment
granting the petition tor legal separation in
the Civil Registry where the marriage was
celebrated and in the Civil Registry where
the Family Court is located; and
(2) registration of the approved partition
and distribution of the properties of the
spouses, in the proper Register of Deeds
where the real properties are located.
(b) The court shall quote in the Decree the
dispositive portion of the judgment entered
and attach to the Decree the approved deed
of partition.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 20. Registration and publication of the
Decree of Legal Separation; decree as best
evidence. -
(a) Registration of decree.-The prevailing
party shall cause the registration of the
Decree in the Civil Registry where the
marriage was registered, in the Civil Registry
of the place where the Family Court is
situated, and in the National Census and
Statistics Office. He shall report to the court
compliance with this requirement within thirty
days from receipt of the copy of the Decree.
(b) Publication of decree.-- In case service of
summons was made by publication, the
parties shall cause the publication of the
Decree once in a newspaper of general
circulation.
(c) Best evidence.-The registered Decree
shall be the best evidence to prove the legal
separation of the parties and shall serve as
notice to third persons concerning the
properties of petitioner and respondent.
Section 21. Effect of death of a party; duty of
the Family Court or Appellate Court. - (a) In
case a party dies at any stage of the proceedings
before the entry of judgment, the court shall order
the case closed and terminated without prejudice
to the settlement of estate proper proceedings in
the regular courts.
(b) If the party dies after the entry of judgment,
the same shall be binding upon the parties
and their successors in interest in the
settlement of the estate in the regular courts.
Section 22. Petition for revocation of
donations. - (a) Within five (5) years from the
date the decision granting the petition for legal
separation has become final, the innocent spouse
may file a petition under oath the same
proceeding for legal separation to revoke the
donations in favor of the offending spouse.
(b)The revocation of the donations shall be
recorded in the Register of Deeds of Deeds in
the places where the properties are located.
(c)Alienations, liens, and encumbrances
registered in good faith. before the recording
of the petition for revocation in the registries of
property shall be respected.
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(d)After the issuance of the Decree of Legal
Separation, the innocent spouse may revoke
the designation of the offending spouse as a
beneficiary in any insurance policy even if
such designation be stipulated as irrevocable.
The revocation or change shall take effect
upon written notification thereof to the insurer.
Section 23. Decree of Reconciliation. - (a) If the
spouses had reconciled, a joint manifestation
under oath, duly signed by the spouses, may be
filed in the same proceeding for legal separation.
(b) If the reconciliation occurred while the
proceeding for legal separation is pending, the
court shall immediately issue an order
terminating the proceeding.
(c) If the reconciliation occurred after the
rendition of the judgment granting the petition
for legal separation but before the issuance of
the Decree, the spouses shall express in their
manifestation whether or not they agree to
revive the former regime of their property
relations or choose a new regime.
The court shall immediately issue a
Decree of Reconciliation declaring that the
legal separation proceeding is set aside and
specifying the regime of property relations
under which the spouses shall be covered.
(d) If the spouses reconciled after the
issuance of the Decree, the court, upon
proper motion, shall issue a decree of
reconciliation declaring therein that the
Decree is set aside but the separation of
property and any forfeiture of the share of the
guilty spouse already effected subsists, unless
the spouses have agreed to revive their
former regime of property relations or adopt a
new regime.
(e) In case of paragraphs (b), (c), and (d). if
the reconciled spouses choose to adopt a
regime of property relations different from that
which they had prior to the filing of the petition
for legal separation, the spouses shall comply
with Section 24 hereof.
(f) The decree of reconciliation shall be
recorded in the Civil Registries where the
marriage and the Decree had been registered.
Section 24. Revival of property regime or
adoption of another. -
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(a) In case of reconciliation under Section 23,
paragraph (c) above, the parties shall file a
verified motion for revival of regime of property
relations or the adoption of another regime of
property relations in the same proceeding for
legal separation attaching to said motion their
agreement for the approval of the court.
(b) The agreement which shall be verified
shall specify the following:
(1) The properties to be contributed to the
restored or new regime;
(2) Those to be retained as separate
properties of each spouse; and
(3) The names of all their known creditors,
their addresses, and the amounts owing
to each.
(c) The creditors shall be furnished with
copies of the motion and the agreement.
(d) The court shall require the spouses to
cause the publication of their verified motion
for two consecutive weeks in a newspaper of
general circulation.
(e) After due hearing, and the court decides to
grant the motion, it shall issue an order
directing the parties to record the order in the
proper registries of property within thirty days
from receipt of a copy of the order and submit
proof of compliance within the same period.
Section 25. Effectivity. - This Rule shall take
effect on March 15,2003 following its publication in
a newspaper of general circulation not later than
March 7, 2003.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 02-11-12-SC March 4, 2003
RE: PROPOSED RULE ON PROVISIONAL
ORDERS
RESOLUTION
Acting on the letter of the Chairman of the
Committee on Revision of the Rules of Court
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submitting for this Court's consideration and
approval the Proposed Rule on Provisional
Orders, the Court Resolved to APPROVED the
same.
The Rule shall take effect on March 15,
2003 following its publication in a newspaper of
general circulation not later than March 7, 2003
March 4, 2003
RULE ON PROVISIONAL ORDERS
Section 1. When Issued, - Upon receipt of a
verified petition for declaration of absolute nullity
of void marriage or for annulment of voidable
marriage, or for legal separation, and at any time
during the proceeding, the court, motu proprio or
upon application under oath of any of the parties,
guardian or designated custodian, may issue
provisional orders and protection orders with or
without a hearing. These orders may be enforced
immediately, with or without a bond, and for such
period and under such terms" and conditions as
the court may deem necessary.
Section 2. Spousal Support. - In determining
support for the spouses, the court may be guided
by the following rules:
(a) In the absence of adequate provisions
in a written agreement between the
spouses, the spouses may be supported
from the properties of the absolute
community or the conjugal partnership.
(b) The court may award support to either
spouse in such amount and for such
period of time as the court may deem just
and reasonable based on their standard of
living during the marriage.
(c) The court may likewise consider the
following factors: (1) whether the spouse
seeking support is the custodian of a child
whose circumstances make it appropriate
for that spouse not to seek outside
employment; (2) the time necessary to
acquire sufficient education and training to
enable the spouse seeking support to find
appropriate employment, and that
spouse's future earning capacity; (3) the-
duration of the marriage; (4) the
comparative financial resources of the
spouses, including their comparative
earning abilities in the labor market; (5)
the needs and obligations of each spouse;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(6) the contribution of each spouse to the
marriage, including services rendered in
home-making, child care, education, and
career building of the other spouse; (7)
the age and health of the spouses; (8) the
physical and emotional conditions of the
spouses; (9) the ability of the supporting
spouse to give support, taking into
account that spouse's earning capacity,
earned and unearned income, assets, and
standard of living; and (10) any other
factor the court may deem just and
equitable.
(d) The Family Court may direct the
deduction of the provisional support from
the salary of the spouse.
Section 3. Child Support. - The common children
of the spouses shall be supported from the
properties of the absolute community or the
conjugal partnership.
Subject to the sound discretion of the court,
either parent or both may be ordered to give an
amount necessary for the support, maintenance,
and education of the child. It shall be in proportion
to the resources or means of the giver and to the
necessities of the recipient.
In determining the amount of provisional
support, the court may likewise consider the
following factors: (1) the financial resources of the
custodial and non-custodial parent and those of
the child; (2) the physical and emotional health of
the child and his or her special needs and
aptitudes; (3) the standard of living the child has
been accustomed to; (4) the non-monetary
contributions that the parents will make toward the
care and well-being of the child.
The Family Court may direct the deduction
of the provisional support from the salary of the
parent.
Section 4. Child Custody. - In determining the
right party or person to whom the custody of the
child of the parties may be awarded pending the
petition, the court shall consider the best interests
of the child and shall give paramount
consideration to the material and moral welfare
of the child.
The court may likewise consider the
following factors: (a) the agreement of the parties;
(b) the desire and ability of each parent to foster
an open and loving relationship between the child
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and the other parent; (c) the child's health, safety,
and welfare; (d) any history of child or spousal
abuse by the person seeking custody or who has
had any filial relationship with the child, including
anyone courting the parent; (e) the nature and
frequency of contact with both parents; (f) habitual
use of alcohol or regulated substances; (g) marital
misconduct; (h) the most suitable physical,
emotional, spiritual, psychological and educational
environment; and (i) the preference of the child, if
over seven years of age and of sufficient
discernment, unless the parent chosen is unfit.
The court may award provisional custody in
the following order of preference: (1) to both
parents jointly; (2) to either parent taking into
account all relevant considerations under the
foregoing paragraph, especially the choice of the
child over seven years of age, unless the parent
chosen is unfit; (3} to the surviving grandparent, or
if there are several of them, to the grandparent
chosen by the child over seven years of age and
of sufficient discernment, unless the grandparent
is unfit or disqualified; (4) to the eldest brother or
sister over twenty-one years of age, unless he or
she is unfit or disqualified; (5) to the child's actual
custodian over twenty-one years of age, unless
unfit or disqualified; or (6) to any other person
deemed by the court suitable to provide proper
care and guidance for the child.
The custodian temporarily designated by
the" court shall give the court and the parents five
days notice of any plan to change the residence of
the child or take him out of his residence for more
than three days provided it does not prejudice the
visitation rights of the parents.
Section 5. Visitation Rights. - Appropriate
visitation rights shall be provided to the parent
who is not awarded provisional custody unless
found unfit or disqualified by the court. .
Section 6. Hold Departure Order. - Pending
resolution of the petition, no child of the parties
shall be brought out of the country without prior
order from the court.
The court, motu proprio or upon application
under oath, may issue ex-parte a hold departure
order, addressed to the Bureau of Immigration and
Deportation, directing it not to allow the departure
of the child from the Philippines without the
permission of the court.
The Family Court issuing the hold departure
order shall furnish the Department of Foreign
Affairs and the Bureau of Immigration and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Deportation of the Department of Justice a copy of
the hold departure order issued within twenty-four
hours from the time of its issuance and through
the fastest available means of transmittal.
The hold-departure order shall contain the
following information:
(a) the complete name (including the middle
name), the date and place of birth, and the
place of last residence of the person against
whom a hold-departure order has been issued
or whose departure from the country has been
enjoined;
(b) the complete title and docket number of
the case in which the hold departure was
issued;
(c) the specific nature of the case; and
(d) the date of the hold-departure order.
If available, a recent photograph of the
person against whom a hold-departure order has
been issued or whose departure from the country
has been enjoined should also be included.
The court may recall the order. motu proprio
or upon verified motion of any of the parties after
summary hearing, subject to such terms and
conditions as may be necessary for the best
interests of the child.
Section 7. Order of Protection. - The court may
issue an Order of Protection requiring any person:
(a) to stay away from the home, school,
business, or place of employment of the
child, other parent or any other party, and
to stay away from any other specific place
designated by the court;
(b) to refrain from harassing, intimidating,
or threatening such child or the other
parent or any person to whom custody of
the child is awarded;
(c) to refrain from acts of commission or
omission that create an unreasonable risk
to the health, safety, or welfare of the
child;
(d) to permit a parent, or a person entitled
to visitation by a court order or a
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separation agreement, to visit the child at
stated periods;
(e) to permit a designated party to enter
the residence during a specified period of
time in order to take persona! belongings
not contested in a proceeding pending
with the Family Court;
(f) to comply with such other orders as are
necessary for the protection of the child.
Section 8. Administration of Common
Property. - If a spouse without just cause
abandons the other or-fails to comply with his or
her obligations to the family, the court may, upon
application of the aggrieved party under oath,
issue a provisional order appointing the applicant
or a third person as receiver or sole administrator
of the common property subject to such
precautionary conditions it may impose.
The receiver or administrator may not
dispose of or encumber any common property or
specific separate property of either spouse without
prior authority of the court.
The provisional order issued by the court
shall be registered in the proper Register of Deeds
and annotated in all titles of properties subject of
the receivership or administration.
Section 9. Effectivity. - This Rule shall take effect
on March 15, 2003 following its publication in a
newspaper of general circulation not later than
March 7, 2003.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 02-1-18-SC November 24, 2009
RULE ON JUVENILES IN CONFLICT WITH THE
LAW
RESOLUTION
Acting on the recommendation of the Chairperson
and Members of the Subcommitee on Rules
Procedure for Family Courts submitting for this
Court's consideration and approval the proposed
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
revised Rule on Children in Conflict with the Law,
the Court Resolved to APPROVE the same.
This Resolution shall take effect on December 1,
2009 following its publication in two(2)
newspapers general circulation not later than
November 27, 2009.
November 24, 2009.
REVISED RULE ON CHILDREN IN CONFLICT
WITH THE LAW
Section 1. Applicability of the Rule. - This Rule
shall apply to all criminal cases involving children
in conflict with law.
A child in conflict with the law is a person who at
the time of the commission of the offense is below
eighteen (18) years old but not less than fifteen
(15) years and one (1) day old.
This Rule shall not apply to a person who at the
time of the initial contact as defined in Sec. 4 (q) of
this Rule shall have reached the age of eighteen
(18) in which case, the regular rules on criminal
procedure shall apply without prejudice to the
rights granted under Secs. 53,54,55 and 56 of this
Rule.
Bar Exam Question 2012
72. Cesar, age 16, a habitual offender, was
caught in possession of .001 grams of
marijuana. He was charged for violation of
Sec. 16 of R.A. 9165, The Comprehensive
Dangerous Drugs Law. The court which has
jurisdiction is:
a. the MTC;
b. the RTC;
c. Special Drugs Court;
d. Family Court.
SUGGESTED ANSWER:
(d), The State is mandated to safeguard
the well-being of its citizenry, particularly
children from harmful effects of dangerous
drugs on their physical and mental well-
being and to defend them against acts or
omissions detrimental to their
development and preservation. Pursuant
to this policy and the mandate Republic
Act No. 8369, also known as The Family
Courts Act of 1997, the Family Courts are
vested with exclusive jurisdiction to hear
and decide cases against minors charged
with drug-related offenses (A.M. NO. 07-8-
2-SC-2, SEC.2). The objective is to ensure
that rights of children charged with
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violation of any of the offenses under The
Comprehensive Dangerous Drugs Act of
2002 are well protected, and that their
interests and those of their family and the
community are adequately balanced. (A.M.
NO. 07-8-2-SC-2, SEC.2).
Section 2. Objective. - The objective of this Rule
is to ensure that the justice system treats every
child in conflict with the law in a manner that
recognizes and upholds human dignity and worth,
and instills in the child respect for the fundamental
rights and freedom of others. The Rule considers
the developmental age of the child and the
desirability of the child's reintegration in the
assumption of a constructive role in society in
accordance with the principles of balanced and
restorative justice.
To attain this objective, the Rule seeks:
(a) To provide child-appropriate proceedings,
including programs and services for crime
prevention, diversion, rehabilitation, re-
integration and aftercare to ensure the normal
growth and development of the child in conflict
with the law;
(b) To provide procedural rules dealing with
children in conflict with the law that take into
account their distinct circumstances, assure all
parties of a fair hearing with each party's
constitutional and statutory rights recognized
and respected, and ensure that appropriate
disposition measures are implemented by law
enforcers social services and the courts;
(c) To divert from the formal justice system
children in conflict with the law who can be
cared for or placed under community
continuum alternative programs of treatment,
training and rehabilitation in conformity with
the principles of balanced and restorative
justice;
(d) To deal with the child in a family
environment whenever possible, and to
separate the child from the parents only when
necessary for the child's welfare or in the
interest of public safety.
(e) To remove from children in conflict with the
law the stigma of criminality and criminal
behavior;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(f) to promote, facilitate and implement in
administrative and judicial proceedings
respect for the view of the child;
(g) To provide for the care, protection and
wholesome moral, mental, and physical
development of children in conflict with the
law; and
(h) To promote and protect the rights and
interest of children as zones of peace in
situations of armed conflict, but who are
alleged to be in conflict with the law. (a)
Section 3. Interpretation. - This Rule shall be
interpreted liberally to promote the best interest of
the child in conformity with Philippine laws, the
United Nations' Convention on the Rights of the
Child and relevant international treaties and
protocols.
Section 4. Definitions. - As used in this Rule,
(a) Age of criminal responsibility is the age
when a child, fifteen (15) years and one (1)
day old or above but below eighteen (18)
years of age, commits an offense with
discernment.
(b) Bail refers to the security given for the
release of the child in custody of the law,
furnished by the child, the child's parent,
guardian, or a bondsman, to guarantee the
child's appearance before the court. Bail may
be posted in a form such as corporate
security, property bond or cash deposit.
(c) Balanced and Restorative Justice is a
principle in juvenile justice that requires a
process of resolving conflicts with the
participation of the victim, the child in conflict
with the law, and the community. It seeks to
obtain reparation for the victim; reconciliation
to the victim, the child in conflict with the law,
and the community, and the reassurance that
the child in conflict with the law can be
reintegrated into society. It also enhances
public safety by involving the victim, the child
in conflict with the law, and the community in
prevention strategies. (a)
(d) Best interest of the child refers to the
totality of congenial to the survival, protection
and feelings of security of the child and most
encouraging to the child's physical,
psychological and emotional development. It
also means the least detrimental available
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alternative for safeguarding the growth and
development.
(e) Case study report is a written report on the
social case inquiry conducted by the social
worker of the local government unit or the
Department of Social Welfare and
Development or by the social worker
designated by the court on the social, cultural,
economic and legal status or condition of the
child in conflict in the law. It shall include,
among other matters, the child's development
age; educational attainment; family and social
relationships; the quality of the child's peer
group; the strengths and weaknesses of the
family; parental control; the child's attitude
towards the offense ; the harm or damage
done to others resulting from the offenses, if
any; and the attitude of the parents towards
the child's responsibility for the offense. The
social worker shall also include an initial
determination of the child's discernment in the
commission of the offense. (a)
(f) Community continuum refers to the
aftercare of a child in conflict with the law and
is a provides continuous guidance and
support to the child in conflict with the law
upon release from rehabilitation and
subsequent reintegration into society.
Community continuum for the child includes
timely release, suitable residence, food,
clothing, available employment and sufficient
means to facilitate successful reintegration in
local government unit and other appropriate
agencies. (n)
(g) Corporal punishment is any kind of
physical punishment inflicted on the body as
distinguished from pecuniary punishment or
fine.
(h) Court refers to a designated family court or
in places where there are no designated
family courts, any regional trial court hearing
family and youth cases. (a)
(i) Deprivation of Liberty refers to any form of
detention or imprisonment, or to the
placement of a child in conflict with the law in
a public or private custodial setting, from
which the child in conflict with the law is not
permitted to leave at will except by order of
any judicial or administrative authority. (a)
(j) Discernment means the capacity of the
child at the time of the commission of the
offense to understand the differences between
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
right and wrong and the consequences of the
wrongful act.
(k) Disposition conference is a meeting held
by the court with the social worker who
prepared the case study report, together with
the child in conflict with the law and the
parents or guardian ad litem, and the child's
counsel for the purpose of determining the
disposition measures appropriate to the
personal and special circumstances of the
child.
(l) Diversion refers to an alternative child-
appropriate process of determining the
responsibility and treatment of a child in
conflict with the law on the basis of the child's
social, cultural, economic psychological or
educational background without resorting to
formal court adjudication.
(m) Diversion programs refer to programs
the child in conflict the law is required to
undergo in lieu of formal court proceedings.
(n) Expedited Transfer of a Child is a
process where a child who commits an
offense is immediately brought by the
apprehending officer or private individual to a
social worker for preliminary determination of
discernment. (n)
(o) Guardian Ad Litem is a person appointed
by the court to protect the best interest of the
child. (a)
(p) In conflict with the law means take into
custody, detained, or charged with the
commission of an act defined and punished as
a crime or offense under the law, including
violations of traffic laws, rules and regulations,
and ordinances of local government units. (a)
(q) Initial contact refers to apprehension or
taking into custody of a child in conflict with
the law by law enforcement officers or private
citizens. It includes the time the child alleged
to be in conflict with the law receives a
subpoena under Section 3 (b) of Rule 112 of
the Revised Rules of Criminal Procedure or
summons under Section 6 (a) or Section 9(b)
of the same Rule in cases that do not require
preliminary investigation, or where there is no
necessity to place the child alleged to be in
conflict with the law under immediate custody.
(n)
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(r) Intake report is the initial written report
containing the personal and other
circumstances of the child in conflict with the
law prepared by the social worker assigned to
assist the child entering the justice system.
(s) Intervention programs refer to a series of
individualized treatment activities or programs
designed to address issues that caused the
child to commit an offense. These may include
counseling, skills, training, education, and
other activities that are aimed to improve and
enhance the child's psychological, emotional
and psychosocial well being. (n)
(t) Law Enforcement Officer refers to the
person in authority or an agent as defined in
Article 152 of the Revised Penal Code,
including a barangay tanod. (n)
(u) Non-Serious Offense refers to an offense
where the imposable penalty for the crime
committed is not more than six (6) years
imprisonment. (n)
(v) Probation is an alternative disposition,
ordered by the court, under which a child in
conflict with the law is released after
conviction and sentence and permitted to
remain at home or with an appropriate
custodian, subject to certain terms and
conditions imposed by the court.
(w) Recognizance is an undertaking in lieu of
a bond, assumed by a mother or father, or
appropriate guardian or custodian, or in their
absence, the nearest relative, or any
responsible member of the community to
assume custody of a child in conflict with the
law and be responsible for the appearance of
the child in court whenever required during the
pendency of the case. (a)
(x) Segregation refers to the procedure
where, upon initial contact with a child alleged
to have committed an offense, the law
enforcer places the child in a separate and
different area from adult detention prisoners,
and ensures that female children are
separated from male children. (n)
(y) Serious offense refers to an offense where
the imposable penalty for the offense
committed exceeds six (6) years
imprisonment. (a)
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(z) Status offenses refers to offenses that
discriminate only against a child, such as
curfew violations, truancy, parental
disobedience and the like. (n)
(aa) Suspended sentence is the holding in
abeyance of the service of the sentence
imposed by the court upon a finding of guilt of
the child in conflict with the law, whereby the
child undergoes rehabilitation within a fixed
period under such terms and conditions as
may be ordered by the court. (n)
(bb) Victimless Crimes refer to offenses where
there are no private offended parties. (n)
(cc) Youth detention home refers to a 24-hour
child-caring institution managed by accredited
local government units and licensed and/or
accredited non-government organizations
providing short-term residential care for
children in conflict with the law and where the
child may be physically restricted by order of
any judicial, administrative or other public
authority, and from which the child is not
permitted to leave at will, pending court
disposition of the charge or transfer to other
agencies or jurisdiction. (a)
(dd) Youth rehabilitation center refers to a 24-
hour residential care facility managed by the
Department of Social Welfare and
Development, local government units,
licensed and/or accredited non-government
organizations monitored by the Department of
Social Welfare and Development. The Center
provides care, treatment and rehabilitation
services for children in conflict with the law
under a structured therapeutic environment
through the guidance of a trained staff, where
the physical mobility of the children may be
restricted pending court disposition of their
cases. (a)
Section 5. Determination of Age. - The child in
conflict with the law shall enjoy the presumption of
minority and shall enjoy all the rights of a child in
conflict with the law until proven to be eighteen
years old or older at the time of the commission of
the offense. The age of the child shall be
determined according to the following rules:
(1) The best evidence to prove the age of a
child is an original or certified true copy of the
certificate of live birth;
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(2) In the absence of a certificate of live birth,
similar authentic documents such as
baptismal certificates and school records or
any pertinent document that shows the date of
birth of the child;
(3) In the absence of the documents under
paragraphs 1 and 2 of this section due to loss,
destruction or unavailability, the testimony of
the child, the testimony of a member of the
family related to the child by affinity or
consanguinity who is qualified to testify on
matters respecting pedigree such as the exact
age or date of birth of the child pursuant to
Sec.40, Rule 130 of the Rules on Evidence,
the testimonies of the other persons, the
physical appearance of the child and other
relevant evidence, shall suffice.
Section 6. Burden of Proof of Age. - Any person
alleging the age of the child in conflict with the law
has the burden of proving the age of such child.
If the age of the child is contested prior to the filing
of the information in court, a case for
determination of age under summary proceeding
may be filed before a court which shall render its
decision within 24 hours from receipt of the
appropriate pleadings of all the parties. (n)
In all cases involving a child, the court shall make
a categorical finding as to the age of the child.
Section 7. Exemption from Criminal Liability. -
A child fifteen years of age or under at the time of
the commission of the offense shall be exempt
from criminal liability. However, the child shall be
subjected to an intervention program as provided
for in Republic Act No. 9344 when consented to
by the child and the parents. (a)
Exemption from criminal liability does not include
exemption from civil liability which shall be
enforced in accordance with the provisions of
Article 221 of the Family Code in relation to Article
101 of the Revised Penal Code and Rule 111 of
the Revised Rules of Criminal Procedure. If the
act or omission of the child involves a quasi-delict,
Article 2180 of the Civil Code shall apply.
Section 8. Procedure for Handling Children
Exempted from Criminal Liability. - If it is
determined at the initial contact that the child is 15
years of age or below, the procedure provided in
Section 20, Republic Act No. 9344 shall be
observed as follows:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(a) The authority who had the initial contact
with the child shall immediately release the
child to the custody of the mother or father, or
the appropriate guardian or custodian, or in
their absence, the nearest relative.
(b) The authority shall immediately notify the
local social welfare and development officer of
the taking of the child into custody.
(c) The local social welfare and development
officer shall, with the consent of the child and
the person having custody over the child,
determine the appropriate intervention
programs for the child.
(d) If the child's parents, guardians or nearest
relatives cannot be located, or if they refuse to
take custody, the child may be released to any
of the following: a duly registered
nongovernmental or religious organization; a
barangay official or a member of the Barangay
Council for the Protection of Children; a local
social welfare and development officer; or,
when and where appropriate, the Department
of Social Welfare and Development.
(e) If the child has been found by the local
social welfare and development office to be
abandoned, neglected or abused by the
parents, or if the parents and the child do not
consent to or do not comply with the
prevention program, the Department of Social
Welfare and Development or the Local Social
Welfare and Development Office shall file
before the court a petition for involuntary
commitment pursuant to Presidential Decree
No. 603, otherwise known as "The Child and
Youth Welfare Code." (a)
Section 9. Procedure for Children Not Exempted
from Criminal Liability. - A child fifteen (15) years
and one (1) day old or above but below eighteen
(18) years of age at the time of the commission of
the offense shall, at the sound discretion of the
court and subject to its supervision, be released
on recognizance to the care of the willing and
responsible mother or father, or appropriate
guardian or custodian, or, in their absence, the
nearest relative. However, if the prosecution
determines that the child acted with discernment,
the child shall be proceeded against in
accordance with Secs. 25 to 29 or, in case of
diversion, Secs. 31 to 38 of this Rule.
Section 10. Determination of Discernment. -
Discernment is preliminarily determined by a
social worker and finally by the court in the case of
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a child charged with a non-serious offense. In all
other cases, discernment is determined by the
court.
The determination of discernment shall take into
account the ability of a child to understand the
moral and psychological components of criminal
responsibility and the consequences of the
wrongful act; and whether a child can be held
responsible for essentially antisocial behavior.
Section 11. Duties of a Person in Authority
Taking a Child into Custody. - Any person taking
into custody a child in conflict with the law shall:
(a) Assign an alias to the child;
(b) Ensure that the blotter details containing
the true name of the child, if any, are modified,
to reflect the alias by which the child shall be
known throughout the proceedings;
(c) Explain to the child in simple language and
in a dialect that can be understood the reason
for placing the child under custody, and the
offense allegedly committed;
(d) Advise the child of his/her constitutional
rights in a language or dialect understandable
to the child;
(e) Present proper identification to the child;
(f) Refrain from using vulgar or profane words
and from sexually harassing or abusing, or
making sexual advances on the child;
(g) Avoid displaying or using any firearm,
weapon, handcuffs or other instrument of
force or restraint, unless absolutely necessary
and only after all methods of control have
been exhausted and have failed;
(h) Avoid violence or unnecessary force and
refrain from subjecting the child to greater
restraint than is necessary for apprehension
and custody;
(i) Ensure that a body search of the child is
done only by a law enforcement officer of the
same gender as that of the child;
(j) Ensure expedited transfer of the child by
immediately, or not later than eight (8) hours
after apprehension, turning over custody of
the child to the local social welfare and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
development office or other accredited non-
government organizations;
(k) Notify the child's parents, guardians or
custodians or in their absence, the child's
nearest relative and the Public Attorney's
Office of the child's apprehension;
(l) Ensure that the child is not locked up in a
jail or detention cell during the investigation;
(m) Bring the child immediately to an available
government medical or health officer for a
thorough physical and mental examination;
(n) Ensure that should detention of the child in
conflict with the law be necessary, the
segregation of the child be secured in quarters
separate from that of the opposite sex and
adult offenders, except where a child is taken
into custody for reasons related to armed
conflict, either as combatant, courier, guide or
spy, and families are accommodated as family
units in which case, the child shall not be
separated from the family;
(o) Record all the procedures undertaken in
the initial investigation including the following:
whether handcuffs or other instruments of
restraint were used, and if so, the reason for
such use; that the parents or guardian of the
child, the Department of Social Welfare and
Development, and the Public Attorney's Office
were informed of the taking into custody of the
child and the details thereof; the measures
that were undertaken to determine the age of
child, and the precise details of the physical
and medical examination or in case of failure
to submit a child to such examination, the
reason therefore; and
(p) Ensure that all statements signed by the
child during the investigation are witnessed
and signed by the child's parents or guardian,
social worker or legal counsel in attendance.
(n)
Section 12. Rights of a Child Under Custody. -
At the custodial investigation, a child who has
been taken into custody shall have the following
rights:
(a) At the police station, to be immediately
assisted by a lawyer and a social worker who
shall make sure that the child is effectively
informed of his/her rights, as far as the child's
maturity and discernment allow;
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(b) To demand that the questioning or
interrogation take place in conditions that
respect the rights of the child and are
complaint with child-sensitive procedural
rules;
(c) To have the child's family located and
notified with dispatch;
(d) To be informed, together with the parents,
guardians or custodians or nearest relatives,
by the social welfare and development officer
of the local government unit or of the
Department of Social Welfare and
Development of the consequences of the
offense alleged to have been committed with
a view towards counseling and rehabilitation,
diversion from criminal justice system and
reparation if appropriate;
(e) To have the results of the child's medical
and dental examination kept confidential
unless otherwise ordered by the court.
Whenever medical treatment for any physical
or mental defect is necessary, to demand that
steps must be immediately taken by the
medical officer to provide the child with the
necessary and proper treatment;
(f) To have the right of privacy respected and
protected at all times, including the utilization
of all measures necessary to promote this
right, including the exclusion of the media; and
(g) While under investigation, not to be
fingerprinted or photographed in a humiliating
and degrading manner.
Section 13. Taking Custody of a Child Without
a Warrant. - The law enforcement officer or a
private person taking into custody a child in
conflict with the law without a warrant shall
observe the provisions in Sections 5, 8 and 9 of
Rule 113 of the Revised Rules of Criminal
Procedure and shall forthwith deliver the child to
the nearest police station. The child shall be
proceeded against in accordance with Section 7 of
Rule 112 of the Rules of Criminal Procedure.
Section 14. Conduct of Initial Investigation by the
Police. - The police officer conducting the initial
investigation of a child conflict with the law shall
do so in the presence of either or both of the
parents, guardian or custodian, or in their
absence, the nearest relative of the child, the
child's counsel of choice, or a lawyer from the
Public Attorney's Office, and the local social
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
welfare officer. A representative of a non-
government organization, religious group, or
member of the Barangay Council for the
Protection of Children shall be allowed to be
present at the investigation in the absence of the
parents, guardian, relative, or social welfare
officer. (a)
Section 15. Guidelines for Fingerprinting and
Photographing of the Child. - The following
guidelines shall be observed when fingerprinting
or photographing the child:
(a) The child's fingerprint and photograph files
shall be kept separate from those of adults
and shall be kept confidential. They may be
inspected by law enforcement officers only
when necessary for the effective discharge of
their duties and upon prior authority of the
court; and
(b) The fingerprint and photograph shall be
removed from the files and destroyed: (1) if
the case against the child is not filed, or is
dismissed; or (2) when the child reaches
twenty-one (21) years of age and there is no
record that the child committed an offense
after reaching eighteen (18) years of age.
Section 16. Intake Report by the Social Welfare
Officer. - Upon the taking into custody of a child in
conflict with the law, the social welfare officer
assigned to the child shall immediately undertake
a preliminary background investigation of the child
and, should a case be filed in court, submit to the
court the corresponding intake report prior to the
arraignment.
Section 17. Filing of Criminal Action. - A criminal
action may be instituted against a child in conflict
with the law by filing a complaint with the
prosecutor.
All criminal actions commenced by complaint or
information shall be prosecuted under the
direction and control of the public prosecutor
assigned to the court.
Petitions for confinement of a child drug
dependent shall be filed under Section 21 of the
Rule on Children Charged under Republic Act No.
9165. (n)
Section 18. Prosecution of Civil Action. - When a
criminal action is instituted against a child in
conflict with the law, the action for recovery of civil
liability arising from the offense charged shall be
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governed by Rule 111 of the Revised Rules of
Criminal Procedure.
Section 19. Preliminary Investigation. - As far as
consistent with this Rule, the preliminary
investigation of a child conflict with the law shall
be governed by Section 3 of Rule 112 of the
Revised Rules of Criminal Procedure. A specially
trained prosecutor shall be assigned to conduct
the inquest, preliminary investigation and
prosecution of the case involving a child in conflict
with the law. The child, on the other hand, shall be
assisted by a private lawyer or if none, a lawyer
from the Public Attorney's Office. If there is an
allegation or evidence of torture or ill-treatment of
a child in conflict with the law during custody or
detention, it shall be the duty of the prosecutor to
investigate the same. (n)
Section 20. Conduct of Preliminary Investigation.
- Preliminary investigation shall be conducted in
the following instances: (a) when the child in
conflict with the law does not qualify for diversion;
(b) when the child, the parents or guardian do not
agree to diversion as provided in Sections 27 and
28 of Republic Act No. 9344; or (c) when, after
considering the assessment and recommendation
of the social worker, the prosecutor determines
that diversion is not appropriate for the child in
conflict with the law. (n)
At the preliminary investigation, should there arise
a need for clarificatory questions to be
propounded on the child, the Rule on Examination
of a Child Witness shall apply.
Section 21. Filing of Information. - If the
investigating prosecutor finds probable cause to
hold the child in conflict with the law for trial, there
being discernment, the corresponding Resolution
and Information shall be prepared for the approval
by the provincial or city prosecutor, as the case
may be. The child and the mother or father, or
appropriate guardian or custodian, or in the
absence thereof, the nearest relative, and the
child's private counsel or lawyer from the Public
Attorney's Office shall be furnished forthwith a
copy of the approved resolution and the
Information.
The Information shall be filed with the court within
forty-five (45) days from the start of the preliminary
investigation. (n)
No Information shall be filed against a child for the
commission of the following:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(a) status offences;
(b) vagrancy and prostitution under Section
202 of the Revised Penal Code;
(c) mendicancy under Presidential Decree No.
1563; and
(d) sniffing of rugby under Presidential Decree
No. 1619.
Children taken into custody for the foregoing shall,
with their consent and that of their parents,
guardian or custodian, instead undergo
appropriate counseling and treatment program. (n)
Section 22. Duties of the Clerk of Court Upon
Receipt of information. - The Clerk of Court, upon
receipt of the Information, shall:
(1) Maintain a separate case docket or
logbook for cases involving children in conflict
with the law. Whenever possible, the Clerk of
Court shall use color coding or other method
to easily distinguish the records of children in
conflict with the law from the other case
records;
(2) Determine whether the offense charged
qualifies for diversion, that is it punishable by
imprisonment of not more than twelve (12)
years, regardless of fine, or fine alone
regardless of the amount;
(3) If the crime charged is punishable by such
imprisonment, immediately assign a
temporary case number in accordance with
Sec. 23 of this Rule and raffle off the case to a
court so that its Diversion Committee can
immediately undertake the appropriate action
under Section 33 of this Rule; and
(4) If the crime charged does not quality for
diversion because it is punishable by
imprisonment of more than twelve (12) years,
the case shall be assigned a regular criminal
case docket number raffled off to a court for
formal proceedings. (n)
Section 23. Docketing of the Case - a case that
qualifies for diversion under paragraph 3 of the
preceding Section shall not be docketed as a
regular criminal case but instead shall be assigned
a temporary case number as follows: CICL-(no.)
___- (year) ___ -D (which means diversion),
before the same is raffled off to the appropriate
court.
Section 24. Venue - Subject to the provisions of
Section 15, Rule 110 of the Revised Rules of
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Criminal Procedure, any criminal or civil action
involving a child in conflict with the law shall be
instituted and tried in the appropriate court nearest
the place where the offense was committed or
where any of its essential elements occurred.
Section 25. Released of Children on
Recognizance to the Parents, Guardian,
Custodian or Nearest Relative. - The release of a
child from a custody during the pendency of the
case involving a non-serious offense as defined in
Sec. 4 (u) of this rule may be ordered by the court
only after a hearing for that purpose, and upon
favorable recommendation of the social worker
assigned to the child, with the conformity of the
public prosecutor and the private complainant.
The child shall be released to the custody of a
willing and responsible mother or father, or
appropriate guardian or custodian or in their
absence, the nearest relative, who shall be
responsible for the child's good behavior and
appearance in court whenever required.
No child shall be ordered detained in jail pending
trial or hearing of the child's case, subject to the
provisions of this Rule. (n)
Section 26. Commitment and transfer to a youth
Rehabilitation Center. - A child charged with non-
serious offense as defined in Section 4 (u) of this
Rule, unless released on bail or recognizance,
may be transferred to a youth detention home
rehabilitation center or other appropriate facility
such as the Department of Social Welfare and
Development which shall ensure the appearance
of the child in court.
In the absence of a youth detention home
established by the local government pursuant to
Section 8 of the Family Courts Acts, in the city or
municipality where the child resides or, a local
rehabilitation center recognized by the
government in the province, city or municipality
within the jurisdiction of the court, or the
Department of Social Welfare and Development or
other appropriate local rehabilitation center, the
youth shall be placed under the care of a
provincial, city or municipality jail which shall
ensure the appearance of the child in court when
so required. (a)
Section 27. Bail as a Matter of right. - All
children in conflict with the law shall be admitted to
bail as a matter of right before final conviction of
an offense not punishable by reclusion perpetua
life imprisonment.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 28. When Bail Not a Matter of Right. -
No child charged with an offense punishable by
reclusion perpetua or life imprisonment shall be
admitted to bail when evidence of guilt is strong. In
this case, the court shall commit the to a youth
detention home or youth rehabilitation center, or in
the absence thereof, to the care of a provincial,
city or municipal jail as provided for in Section 27
of this Rule, which shall be responsible for the
appearance of the child in court whenever
required.
Section 29. Care of Child in Youth Detention
Homes or Rehabilitation Centers. - The child in
conflict with the law who has been transferred to a
youth rehabilitation center or youth detention
home shall be provided with a healthy
environment. If the child is placed under the care
of the provincial, city or municipal jail, the child
shall be provided with adequate quarters separate
from adults and prisoners of the opposite sex
depending on the age, sex, sexual lifestyle, and
such other circumstances and needs of the child.
Section 30. Case Study Report. - After the
institution of the criminal action, the social worker
assigned to the child shall immediately undertake
a social case inquiry of the child and the child's
family, the child's environment and such other
matters relevant to aid the court in the proper
disposition of the case. The report shall be
submitted to the court preferably before
arraignment. If not available at that time, the
Report must be submitted to the court as soon as
possible.
Section 31. Diversion Committee - In each court,
there shall be organized a Diversion Committee
composed of its Branch Clerk of Court as
chairperson; the prosecutor, a lawyer of the Public
Attorney's Office assigned to the court, and the
social worker assigned by the court to the child, as
members.
Section 32. Proceedings Before Arraignment -
The Diversion Committee shall determine if the
child can be diverted and referred to alternative
measures or services. Subject to pertinent
provisions of this Rule and pending determination
of diversion by the Committee, the court shall
release the child on recognizance to the parents,
guardian or custodian, or nearest relative; or if this
is not advisable, commit the child to an
appropriate youth detention home or youth
rehabilitation center which shall be responsible for
the presence of the child during the diversion
proceedings.
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If the Diversion Committee determines that
diversion is not proper, or when the child or the
private complainant object to the diversion, or
when there is failure if the diversion program if
undertaken by the child, it shall submit a report to
the court recommending that the case be
subjected to formal criminal proceedings. The
court in turn shall direct the transmittal of the
records of the case to the Office of the Clerk of
Court for the assignment of a regular criminal
docket number to the case as follows: CICL Crim.
Case No.___-___( year). The Office of the Clerk of
Court shall thereafter return the case to the court
for arraignment and formal proceedings.
Section 33. Proceeding Before the Diversion
Committee. - Upon receipt by the Committee of a
case for diversion from the Office of the Clerk of
Court, the chairperson shall call for a conference
with notice to the child, the mother or father, or
appropriate guardian or custodian, or in their
absence, the nearest relative, the child's counsel,
and the private complainant and counsel to
determine if the child can be diverted to the
community continuum instead of formal court
proceedings.
In determining whether diversion is appropriate for
the child, the Committee shall consider the
following factors:
(a) The past records, if any, involving the child
in conflict with the law;
(b) The likelihood that the child will be an
obvious threat to himself/herself and the
community;
(c) Whether the child has feeling of remorse
for the offense committed;
(d) If the child or the parent are indifferent or
hostile; and whether this will increase the
possibility of delinquent behavior; and
(f) If community-based programs for the
rehabilitation and reintegration of the child are
available.
If the Committee finds that diversion is
appropriate, it shall design a diversion program in
accordance with Section 34 of this Rule for the
consideration and approval of the court.
Should the Committee determine that diversion is
not appropriate, it shall make the corresponding
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
report and recommendation in accordance with
Section 31 of this Rule.
The Committee cannot recommend diversion in
case the child or the private complainant objects.
Section 34. Diversion programs. -The
Committee shall design a diversion program
talking into consideration the individual
characteristics and peculiar circumstances of the
child in conflict with the law. The program shall be
for a specific and definite period and may include
any or a combination of the following:
(a) Written or oral reprimand or citation;
(b) Written or oral apology;
(c) Payment of the damage caused;
(e) Payment of the cost of the proceedings;
(f) Return of the property;
(g) Guidance and supervision orders;
(h) Counseling for the child and his family;
(i) Training, seminar and lectures on (i) anger
management skills; (ii) problem-solving and/or
conflict resolution skills; (iii) values formation;
and (iv) other skills that will aid the child to
properly deal with situations that can lead to a
repetition of the offense;
(j) Participation in available community-based
programs;
(k) Work-detail program in the community; or
(l) Institutional care and custody.
The Committee shall also include in the program a
plan that will secure satisfaction of the civil liability
of the child in accordance with Sec. 2180 of the
Civil Code. Inability to satisfy the civil the liability
shall not by itself be a ground to discontinue the
diversion program of a child. On the other hand,
consent to diversion by the child or payment of
civil indemnity shall not in any way be construed
as admission of guilt and used as evidence
against the child in the event that the case is later
on returned to the court for arraignment and
conduct of formal proceedings.
The court shall act on the recommendation within
five (5) days from the termination of the hearing.
Section 36. Undertaking. - In all cases where a
child in conflict with the law is granted diversion by
the court, the child, together with the mother or
father, or appropriate guardian or custodian, or in
their absence, the nearest relative, and the child's
counsel shall sign an undertaking to comply with
their respective duties and obligation under the
terms and conditions of the express agreement by
complainant assisted by counsel to the diversion
of the child, shall be approved by and enforced
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under the supervision and control of the court. It
shall contain the following minimum principal
terms and conditions:
(a) The child shall appear before the social
worker assigned to the child by the Court that
approved the diversion program at least once
a month for evaluation of its effectiveness.
(b) The child shall faithfully comply with the
term and conditions of the program. Should
the child fail to do so, the Committee shall
report such failure to the court which shall set
a show- cause hearing with notice to the child
and private complainant. The court shall
thereafter determine whether to allow the child
to continue with the diversion program, or to
end the same and direct that the case now
undergo a formal proceeding.
Should the child be permitted by the court to
reside in a place under the jurisdiction of another
court, control and supervision over such child shall
be transferred to the appropriate court of that
place. The diversion records of the case such as
the minutes of the diversion proceedings, copy of
the undertaking, the intake and case study reports
and all other pertinent documents shall be
transmitted to the court to which jurisdiction over
the diverted child has been transferred.
Section 37. Report of Social Worker. - The court
social worker shall conduct regular monthly visit to
the child undergoing diversion proceedings and
shall submit the corresponding reports about the
status of the diverted child to the committee. At
any time before or at the end diversion period, the
committee shall file with the court of the report
recommending termination or extension of
diversion, as the case may be. The report and
recommendation shall be heard by the court within
fifteen (15) days form receipt, with notice to the
members of the Committee, the child, the mother
or father, or the appropriate guardian or custodian,
or in the absence thereof, the nearest relative, the
child's counsel, and the complainant and counsel.
The court shall thereafter determine whether the
diversion program has been full and satisfactorily
complied with
Section 38. Closure Order. - On the basis of the
report and recommendation of the Committee, the
court may:
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(a) Issue a closure order terminating the case
if it is convinced that the child has complied
satisfactorily with the diversion program; or
(b) Extend the period of diversion if it is
convinced that the child may still be
rehabilitated; or
(c) Order the case to undergo formal court
proceedings if it finds that the child has not
complied with the diversion program, is
incorrigible, or that the program is not serving
its purpose.
In case of the judicially-approved transfer of
residence of the child in conflict with the law, the
court to which supervision of the diversion
program was transferred shall make the proper
finding. IF it finds that diversion has been
successful. It shall order the closure of the case.
However, if it determines that diversion has failed
it shall return the case to the original court for
formal criminal proceedings.
Section 39. Rights of the Child in Conflict with
the Law. - In all criminal proceedings, the child in
conflict with the law shall have the following rights
which shall be respected and protected by the
court:
(a) To be presumed innocent until guilt is
proved beyond reasonable doubt;
(b) To be informed promptly and directly of the
nature and cause of the charge and if
appropriate, through the child's mother, father,
legal guardian, or appropriate custodian;
(c) To be present at every stage of the
proceedings, from arraignment to
promulgation of judgment. The child may,
however, waive presence at the trial pursuant
to the stipulations set forth in the bail bond,
unless presence at the trial is specifically
ordered by the court for purposes of
identification. The absence of the child without
justifiable cause at the trial of which there was
due notice shall be considered a waiver of the
right of the child to be present. Escape by the
child under custody shall be deemed a waiver
of the right to be present in all subsequent
hearings until custody over such child is
gained;
(d) To have legal and other appropriate
assistance in the preparation and presentation
of the child's defense; in case of a child
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arrested for reasons related to armed conflict,
to have immediate free legal assistance;
(e) If detained, to be released (I) on
recognizance to the willing and responsible
mother or father or appropriate guardian or
custodian, or in the absence thereof, the
nearest relative; (ii) on bail; or (iii) by
commitment to a youth detention home or
youth rehabilitation center,
(f) Not to be detained in a jail or transferred to
an adult facility pending trial or hearing of the
case, unless detention is used as a last resort
which must be done for the shortest time
possible, and only upon order by the court;
(g) In the case the child has been arrested for
reasons related to armed conflict, either as
combatant, courier, guide or spy:
(i) To be segregated and have separate
detention quarters from adults except
where families are accommodated as
family units;
(ii) To immediate free legal assistance in
the absence of private counsel;
(iii) To immediate notice of such arrest to
the parents, guardians or custodians or
nearest relatives of the child; and;
(iv) To be released on recognizance within
twenty-four (24) hours to the custody of
the Department of Social Welfare and
Development or any responsible member
of the community as determined by the
court.
(h) To testify as a witness in his/her own
behalf; and subject to cross-examination only
on matters covered by direct examination. The
child shall not be compelled to be a witness
against himself/herself and the child's silence
shall not in any manner prejudice him/her;
(i) To confront and cross-examine the
witnesses against him/her;
(j) To have compulsory process issued to
secure the attendance of witnesses and
production of other evidence in the child's
behalf
(k) To have speedy and impartial trial, with
legal or other appropriate assistance and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
preferable in the presence of the child's
parents or legal guardian or custodian, unless
such presence is considered not to be in the
best interest of the child taking into account
the latter's age or other peculiar
circumstances;
(l) To be accorded all the rights under the
Rule on Examination of a Child Witness;
(m) To have the child's privacy fully protected
in all stages of the proceedings; and
(n) To appeal in all cases allowed and in the
manner prescribed by law.
Section 40. Rights of Victims of Offences
Committed by Children in Conflict with the
Law. - In any case involving a child in conflict with
the law, the victim has the following rights:
(1) To be reasonably protected from the child
in conflict with the law;
(2) To timely notice of any public proceedings,
or any parole proceedings involving the crime
or of any release or escape of the child in
conflict with the law;
(3) Not to be excluded from any public
proceeding, unless the court, after receiving
any clear and convincing evidence,
determines that the testimony by the victim
would be materially altered if the victim heard
other testimony in that proceeding.
(4) To be reasonably heard at any
administrative or public proceeding involving
diversion, release, plea, suspension of
sentence and determination of disposition
measures, or any parole proceeding;
(5) To confer with the prosecutor in the case;
(6) To avail of legal assistance from the Public
Attorney's Office, Integrated Bar of the
Philippines. any other legal aid office or any
law practitioner.
(7) To be informed of the availability of
compensation from the Department of Justice
Board of Claims in accordance with the
provisions of Rep Act. No.7309.
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(8) To be entitled to support services from the
Department of Social Welfare and
Development and local government units;
(9) To be entitled to all legal remedies and
support as provided for under the Family
Code;
(10) To be informed of the rights and the
services available to victims of offenses
including the right to apply for a protection
order;
(11) To full and timely restitution as provided
in law;
(12) To proceedings that are free from
unreasonable delay; and
(13) To be treated with fairness and with
respect for the victim's dignity and privacy.
Section 41. Responsibilities of the Court. - For the
protection of the rights of the child in the conflict
with the law, the court shall have the following
responsibilities:
(1) To monitor the status of a child whose
case is pending in its court placed in a youth
detention center or other institution during the
pendency of the child's case;
(2) To receive and investigate complaints
concerning violations of the rights of the child
whose case is pending on its court;
(3) To require all professionals working for the
welfare of the child, such as barangay
captains, teachers, social workers, medical
professionals, and law enforcers, to render
regular monthly reports to the court.
(4) To order access to adequate services for
rehabilitation, counseling and other forms of
reintegration for the child;
(5) To ensure that the child who is capable of
forming his or her own views has the right to
express those views freely in all matters
affecting the child, and that such views be
accorded due weight in accordance with the
developmental age and maturity of the child;
(6) To ensure that the child, either directly or
through a representative , is provided the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
opportunity to be heard in all proceedings
affecting such child;
(7) To ensure communication at all times
between the judge and the child;
(8) To ensure that the child sits with close
family members of the child's choice during
the court proceedings;
(9) To ensure that the child can communicate
freely with counsel at all times;
(10) To ensure that the child is informed in
age-appropriate language of all stages of the
judicial proceeding affecting such child;
(11) To ensure that a child placed in a Youth
Detention Home or Youth Rehabilitation
Center or in any child facility be given
appropriate medical examination in order to
determine and put on record any evidence of
ill-treatment; to identify any physical or mental
condition requiring medical attention; and
thereafter make sure that child is provided by
adequate treatment and medical attention;
(12) To insure that a child is informed as soon
as possible of the death, serious illness or
injury of any immediate family member and be
allowed to visit the ill family member or attend
the funeral, when appropriate and advisable;
(13) To ensure if a child dies during the
pendency of the case or within six (6) months
of release, an independent inquiry is
conducted on the circumstances of the death
and a report thereof, including the child's
death certificate, be made available to the
child's mother or father , guardian, custodian
or nearest relative;
(14) When appropriate and advisable, to allow
the child temporarily leave the detention home
or rehabilitation center by means of an "out-
on-pass" order to attend special family
occasions such as Christmas and New Year
celebrations. The "out-on-pass" order shall
contain reasonable restrictions to ensure
safety, security and timely return to detention
as may be determined by the court;
(15) To allow at all times, and from the
moment of initial contact, any member of the
family or the guardian of the child to visit the
child, unless prejudicial to the latter's best
interest;
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(16) To allow the appointment of a Guardian
Ad Litem if available and advisable, to enable
the child to raise concerns and complaints
without fear or retribution; and
(17) To undertake all other appropriate
measures to ensure the promotion of the best
interest of the child and the child's eventual
reintegration in society.
Section 42. Determination of the Best Interests of
the Child. - The following factors may be
considered in determining the best interests of a
child in conflict with the law: the child's age and
sex, the child's mental and physical health, the
mental and physical health of the parents, their
lifestyle and other social factors; the emotional ties
between the parents and the child, the ability of
the parents to provide the child with food, shelter,
clothing and medical care; the established living
pattern for the child concerning school, home,
community and religious institution, quality of
schooling, the existence of other relatives who
may be in a better position to be with the child and
the child's relationship with these relatives; the
child's background, maturity and level of
understanding, sexual lifestyle and any other
characteristics and needs of the child that the
court may deem relevant.
Section 43. Arraignment and Plea. - The
provisions of Rules 116 and 117 of the Revised
Rules of Criminal Procedure shall apply to the
arraignment of the child in the conflict with the law.
The arraignment shall be scheduled within three
(3) days from the date of receipt of the complaint
or information by the court, unless a shorter period
is provided for by law.
In case the child is not assisted by a private
counsel, the court shall immediately appoint its
Public Attorney as the child's counsel de oficio.
Arraignment shall be held in chambers and
conducted by the judge by furnishing the child and
counsel a copy of the complaint or information,
reading the same in a language or dialect known
to and understand by the child, explaining the
nature and consequences of a plea of guilty or not
guilty and asking the child's plea.
Section 44. Pre-trial. - The provisions of Rule 118
of the Revised Rules of Criminal Procedure shall
govern the pre-trial of the child in conflict with the
law. Agreements or admissions made during the
pre-trial conference shall be in writing and signed
by the child, the mother, the father or duly
appointed guardian, and counsel; otherwise, the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
agreements or admissions shall not be admissible
against the child.
Whenever possible and practicable, the court shall
explore all possibilities of settlement of the case,
except its criminal aspects. Plea bargaining shall
be resorted to only as a last measure when it shall
serve the best interest of the child and the
demands of truth and restorative justice.
Section 45. Trial. - All hearings shall be
conducted in a manner conducive to the best
interest of the child and in an environment that will
allow the child to participate fully and freely in
accordance with the Rule on Examination of a
Child Witness.
Section 46. Guiding Principles in Judging the
Child. - Subject to the provisions of the Revised
Penal Code, as amended, and other special laws,
the judgment against a child in conflict with the law
shall be guided by the following principles:
(1) The judgment shall be in proportion to the
gravity of the offense, and shall consider the
circumstances and the best interest of the
child, the rights of the victim, and the needs of
society in line with the demands of balanced
and restorative justice.
(2) Restrictions on the personal liberty of the
child shall be limited to the minimum. Where
discretion is given by the law to the judge
whether the penalty to be imposed is fine or
imprisonment, the imposition of fine should be
proffered as the more appropriate penalty.
(3) No corporal punishment shall be imposed.
(4) In case of the presence of any exculpatory
evidence or doubt in the prosecution's
evidence, the doubt shall be resolved In favor
of the child.
Section 47. Promulgation of Sentence. - If. After
the trial, the court should find the child in conflict
with the law guilty beyond reasonable doubt of the
offense charged, it shall impose the proper
penalty, including any civil liability which the child
may have incurred, and promulgate the sentence
in accordance with Section 6, Rule 120 of the
Revised Rules if Criminal Procedure.
Section 48. Automatic Suspension of Sentence
and Disposition Orders. - If the child is found
guilty of the offense charged, the court, instead of
executing the judgments of conviction, shall place
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the child in conflict with the law under suspended
sentence, without need of application. Suspension
of sentence can be availed of even if the child is
already eighteen years (18) of age or more but not
above twenty-one (21) years old, at the time of the
pronouncement of guilt, without prejudice to the
child's availing of other benefits such as probation,
if qualified, or adjustment of penalty, in interest of
justice.
The benefits of the suspended sentence shall not
apply to a child in conflict with the law who has
once enjoyed suspension of sentence, but shall
nonetheless apply to one who is convicted of an
offense punishable by reclusion perpetua or life
imprisonment pursuant to the provisions of Rep.
Act No. 9346 prohibiting the imposition of the
death penalty and in lieu thereof, reclusion
perpetua, and after application of the privileged
mitigating circumstance of minority.
If the child in conflict with the law reaches
eighteen (18) years of age while under suspended
sentence, the court shall determine whether to
discharge the child in accordance with the
provisions of Republic Act 9344, or to extend the
suspended sentence for a maximum period of up
to the time the child reaches twenty-one (21)
years of age, or to order service of sentence.
Section 49. Disposition Conference. -In case of
suspended sentence, the court shall set the case
for disposition conference within fifteen (15) days
from the promulgation of sentence with notice to
the social worker of the court, the child and the
parents or guardian ad litem of the child and the
child's counsel , the victim and counsel. At the
conference, the court shall proceed to determine
and issue any or a combination of the following
disposition measures best suited to the
rehabilitation and welfare of the child:
(1) Care, guidance, and supervision of orders;
(2) Community service orders;
(3) Drug and alcohol treatment
(4) Participation in group counseling and
similar activities; and
(5) Commitment to the Youth Rehabilitation
Center of the Department of Social Welfare
and Development or other centers for children
in conflict with the law authorized by the
Secretary of the Department of Social Welfare
and Development.
Section 50. Compliance with the Disposition
Measures. - The social worker assigned to the
child shall monitor the compliance by the child in
conflict with the law with the disposition measures
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
and shall submit regularly to the court a status and
progress report on the matter. The court may set a
conference for the evaluation of such report in the
presence, if practicable, of the child, the parents or
guardian, counsel and other persons whose
presence may be deemed necessary.
Section 51. Discharge of Child Subject of
Disposition Measure. - Upon the recommendation
of the social worker assigned to the child, the
court shall, after due notice to all parties and
hearing, dismiss the case against the child who
has been issued disposition measures, even
before reaching eighteen(18) years of age, and
order a final discharge if it finds that the child has
been rehabilitated and has shown the capability to
be a useful member of the community.
If the court finds that the child (a) is incorrigible; or
(b) has not shown the capability of becoming a
useful member of society; or (c) has willfully failed
to comply with the conditions of the disposition or
rehabilitation program; (d) or the child's continued
stay in the training institution is not in the child's
best interest, the child shall be brought before the
court for execution of the judgment.
The final release of the child shall not extinguish
the civil liability. The parents and other persons
exercising parental authority over the child shall
be civilly liable for the injuries and damages
caused by the acts or omissions of the child living
in their company and under the parental authority
subject to the appropriate defenses provided by
law.
Section 52. Probation as an Alternative to
Imprisonment. - The court may, after it shall have
convicted and sentenced a child in conflict with the
law and upon application at any time, place the
child on probation if qualified, in lieu of service of
sentence taking into account the best interest of
the child.
Section 53. Credit in Service of Sentence. - The
child in conflict with the law who has undergone
preventive imprisonment shall be credited in the
service of the sentence consisting of deprivation of
liberty, with the full time during which the child has
undergone preventive imprisonment, if the child
agrees voluntarily in writing to abide by the same
or similar disciplinary rules imposed upon
convicted prisoners, except in any of the following
cases:
(1) When the child is a recidivist or has been
convicted twice or more times of any crime; or
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(2) When upon being summoned for execution
of sentence, the child failed to surrender
voluntarily.
A child who does not agree to the same
disciplinary rules imposed upon convicted
prisoners shall be credited in the service of the
sentence with four-fifths of the time during which
the child has undergone preventive imprisonment.
Whenever the child has undergone preventive
imprisonment for a period equal to or more than
the possible maximum imprisonment of the
offense charged to which the child may be
sentenced and the case is not yet terminated, the
child shall be released immediately without
prejudice to the continuation of any on-going
intervention program, and the trial thereof or the
proceeding on appeal, if the same is under review.
In case the maximum penalty to which the child
may be sentenced is destierro, the child shall be
released after thirty (30) days of preventive
imprisonment.
Any form of physical restraint imposed on the child
in conflict with the law, including community
service and commitment to a rehabilitation center,
shall be considered preventive imprisonment.
COMMENT: Sec. 53 appears to be a copy of art.
29, RPC. RA 9344, sec. 41 does not distinguish
nor qualify the kind of child in conflict with the law
for credit of service of sentence.
SEC. 41. Credit in Service of Sentence. - The
child in conflict with the law shall be credited in
the services of his/her sentence with the full time
spent in actual commitment and detention under
this Act.
Section 54. Confidentiality of Proceedings and
Record. - All proceedings and records involving
children in conflict with the law from initial contact
until final disposition of the case by the court shall
be considered privileged and confidential. The
public may be excluded from the proceedings and
pursuant to the provisions of Section 31 of the
Rule on Examination of a Child Witness, the
records shall not be disclosed directly or indirectly
to anyone by any of the parties or the participants
in the proceeding for any purpose whatsoever,
except to determine if the child may have the
sentence suspended under Section 38 of this Rule
or if the child may be granted probation under the
Probation Law, or to enforce the civil liability
imposed in the criminal action.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
The court shall employ other measures to protect
confidentiality of proceedings including non-
disclosure of records to the media, the
maintenance of a separate police blotter for cases
involving children in conflict with the law and the
adoption of a system of coding to conceal material
information, which lead to the child's identity. The
records of children in conflict with the law shall not
be used in subsequent proceedings or cases
involving the same offender as an adult.
Family Courts Act (2001)
a) How should the records of child and family cases in
the Family Courts or RTC designated by the Supreme
Court to handle Family Court cases be treated and
dealt with? (3%) b) Under what conditions may the
identity of parties in child and family cases be divulged
(2%)
SUGGESTED ANSWER:
a) The records of child and family cases in the Family
Code to handle Family Court cases shall be dealt with
utmost confidentiality. (Sec. 12, Family Courts Act of 1997) b)
The identity of parties in child and family cases shall
not be divulged unless necessary and with authority of
the judge. (Id.)
Section 55. Non-liability for Perjury or
Concealment or Misrepresentation. - Any
person who has been in conflict with the law as a
child shall not be held guilty of perjury or of
concealment or misrepresentation by reason of
failure to acknowledge the case or recite any fact
related thereto in response to any inquiry.
Section 56. Sealing of Records. - The court,
motu proprio or on application of a person who
has been adjudge a child in conflict with the law,
or if still a minor, on motion of the parents or legal
guardian, shall, upon notice to the prosecution and
after hearing, order the sealing of the records of
the case if it finds that two (2) years have elapsed
since the final discharged of the child after
suspension of sentence or probation, or from the
date of the closure order and the child has no
pending case of an offense or a crime involving
moral turpitude.
Upon entry of the order, the case shall be treated
as if it never occurred. All index references shall
be deleted and in case of inquiry, the court,
prosecution, law enforcement officers and all other
offices and agencies that dealt with the case shall
reply that no record exist with respect to the child
concerned. Copies of the order shall be sent to
these officials and agencies named in the order.
Inspection of the sealed records thereafter may be
permitted only by order of the court upon petition
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of the child who is the subject of the records or of
other proper parties.
This procedure shall be without prejudice to the
rule on destruction of video or audio tapes under
Section 31 of the Rule on the Examination of Child
Witness.
COMMENT: Notice the extent of protection given
to the child under this section. It technically
sanctions telling of a lie just to protect the interest
of the child. Now, suppose you are a law
enforcement officer and a relative asks you about
the past of a certain person who is now applying
as a family driver of your relative. Would you tell
your relative about the past of the child? Let say
he was previously convicted of rape and homicide.
Would try to protect the interest of the child or your
close relative?
Section 57. Prohibition of Labeling. - In the
conduct of proceedings from initial contact with the
child in conflict with the law to the final disposition
of the case, there shall be no branding or labeling
of the child as a young criminal, juvenile
delinquent, prostitute, vagrant, or attaching to the
child in any manner any derogatory description or
name. Likewise, no discriminatory statements,
conduct and practices shall be allowed,
particularly with respect to the child's social or
economic status, physical or mental disability or
ethnic origin.
Section 58. Contempt Powers. - A person who
directly or indirectly disobeys any order of the
court or obstruct or interferes with its proceedings
or the enforcement of its orders issued under this
Rule shall be liable for contempt of court.
Section 59. Effectivity. - This Rule as revised shall
take effect on December 1, 2009 after its
publication in two (2) newspapers of general
circulation not later than November 27, 2009.
BATAS PAMBANSA Blg. 129
AN ACT REORGANIZING THE JUDICIARY,
APPROPRIATING FUNDS THEREFOR, AND
FOR OTHER PURPOSES
PRELIMINARY CHAPTER
Section 1. Title. – This Act shall be known as
"The Judiciary Reorganization Act of 1980."
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 2. Scope. – The reorganization herein
provided shall include the Court of Appeals, the
Court of First Instance, the Circuit Criminal Courts,
the Juvenile and Domestic Relations Courts, the
Courts of Agrarian Relations, the City Courts, the
Municipal Courts, and the Municipal Circuit
Courts.
CHAPTER I
COURT OF APPEALS
Section 3. Organization. – There is hereby
created a Court of Appeals which consists of a
Presiding Justice and fifty Associate Justice who
shall be appointed by the President of the
Philippines. The Presiding Justice shall be so
designated in his appointment, and the Associate
Justice shall have precedence according to the
dates of their respective appointments, or when
the appointments of two or more of them shall
bear the same date, according to the order in
which their appointments were issued by the
President. Any member who is reappointed to the
Court after rendering service in any other position
in the government shall retain the precedence to
which he was entitled under his original
appointment, and his service in the Court shall, for
all intents and purposes, be considered as
continuous and uninterrupted. (as amended by
Exec. Order No. 33,, July 28, 1986.)
Section 4. Exercise of powers and functions. –
The Court Appeals shall exercise its powers,
functions, and duties, through seventeen (17)
divisions, each composed of three (3) members.
The Court may sit en banc only for the purpose of
exercising administrative, ceremonial, or other
non-adjudicatory functions. (as amended by Exec.
Order No. 33,.)
Section 5. Succession to Office of Presiding
Justice. – In case of a vacancy in the absence of
inability to perform the powers, functions, and
duties of his office, the associate Justice who is
first in precedence shall perform his powers,
functions, and duties until such disability is
removed, or another Presiding Justice is
appointed and has qualified.
Section 6. Who presides over session of a
division. – If the Presiding Justice is present in any
session of a division of the Court, he shall preside.
In his absence, the Associate Justice attending
such session who has precedence shall preside.
Section 7. Qualifications. – The Presiding Justice
and the Associate Justice shall have the same
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qualifications as those provided in Constitution for
Justice of the Supreme Court.
Section 8. Grouping of Divisions. – (Expressly
repealed by Section 4, Exec. Order No. 33, July
28, 1986.)
Bar Exam Question 2012
83. A decision or resolution of a division of
the Supreme Court when concurred in by
members who actually took part in the
deliberation on the issues in a case and voted
thereon, is a decision or resolution of the
Supreme Court.
a. three (3);
b. five(S);
c. eight (8);
d. ten (10).
SUGGESTED ANSWER:
(a), Cases or matters heard by a division
shall be decided or resolved with the
concurrence of a majority of the Members
who actually took part in the deliberations
on the issues in the case and voted
thereon, and in no case without the
concurrence of at least three of such
Members. When the required number is
not obtained, the case shall be decided en
banc: Provided, that no doctrine or
principle of law laid down by the court in a
decision rendered en banc or in division
may be modified or reversed except by the
court sitting en banc. (Article VIII, Sec. 4,
1987 Constitution).
Section 9. Jurisdiction. – The Court of Appeals
shall Exercise:
1. Original jurisdiction to issue writs of
mandamus, prohibition, certiorari, habeas
corpus, and quo warranto, and auxiliary writs
or processes, whether or not in aid of its
appellate jurisdiction;
2. Exclusive original jurisdiction over actions
for annulment of judgements of Regional Trial
Courts; and
3. Exclusive appellate jurisdiction over all final
judgments, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial
agencies, instrumentalities, boards or
commission, including the Securities and
Exchange Commission, the Social Security
Commission, the Employees Compensation
Commission and the Civil Service
Commission, Except those falling within the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
appellate jurisdiction of the Supreme Court in
accordance with the Constitution, the Labor
Code of the Philippines under Presidential
Decree No. 442, as amended, the provisions
of this Act, and of subparagraph (1) of the
third paragraph and subparagraph 4 of the
fourth paragraph of Section 17 of the Judiciary
Act of 1948.
The court of Appeals shall have the power to try
cases and conduct hearings, receive evidence
and perform any and all acts necessary to resolve
factual issues raised in cases falling within its
original and appellate jurisdiction, including the
power to grant and conduct new trials or Appeals
must be continuous and must be completed within
three (3) months, unless extended by the Chief
Justice. (as amended by R.A. No. 7902.)
Bar Exam Question 2011
(86) A party aggrieved by an interlocutory
order of the Civil Service Commission (CSC)
filed a petition for certiorari and prohibition
with the Court of Appeals. May the Court of
Appeals take cognizance of the petition?
(A) Yes, provided it raises both questions of
facts and law. (B) No, since the CSC
Chairman and Commissioners have the rank
of Justices of the Court of Appeals. (C) No,
since the CSC is a Constitutional
Commission. (D) Yes, since the Court of
Appeals has jurisdiction over the petition
concurrent with the Supreme Court.
Section 10. Place of holding sessions. – The
Court of Appeals shall have its permanent station
in the City of Manila. Whenever demanded by
public interest, the Supreme Court, upon its own
initiative or upon recommendation of the Presiding
Justice, may authorize a division of the Court to
hold sessions outside Manila, periodically, or for
such periods and at such places as the Supreme
Court may determine, for the purpose of hearing
and deciding cases.
Section 11. Quorum – A majority of the actual
members of the Court shall constitute a quorum
for its session en banc. Three members shall
constitute a quorum for the session of a division.
The unanimous vote of the three members of a
division shall be necessary for the pronouncement
of a decision of final resolution, which shall be
reached in consultation before the writing of the
opinion by any members of the division. In the
event that the three members do not reach a
unanimous vote, the Presiding Justice shall
request the Raffle Committee of the Court for the
designation of two additional Justice to sit
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temporarily with them, forming a special division of
five members and the concurrence of a majority of
such division shall be necessary for the
pronouncement of a decision or final resolution.
The designation of such additional Justice shall be
made strictly by raffle.
A month for reconsideration of its decision or final
resolution shall be resolved by the Court within
ninety (90) days from the time it is submitted for
resolution, and no second motion for
reconsideration from the same party shall be
entertained. (as amended by Exec. Order No. 33,
July 28, 1986.)
Section 12. Internal Rules. – The court en banc is
authorized to promulgate rules or orders
governing the constitution of the divisions and the
assignment of Appellate Justices thereto, the
distribution of cases, and other matters pertaining
to the operations of the Court of its divisions.
Copies of such rules and orders shall be furnished
by the Supreme Court, which rules and orders
shall be effective fifteen (15) days after receipt
thereof, unless directed otherwise by the Supreme
Court.
CHAPTER II
REGIONAL TRIAL COURTS
Section 13. Creation of Regional Trial Courts. –
Section 14. Regional Trial Courts.
Section 15. Qualifications. – No persons shall be
appointed Regional Trial Judge unless he is a
natural-born citizen of the Philippines, at least
thirty-five years of age, and for at least ten years,
has been engaged in the practice of law in the
Philippines or has held a public office in the
Philippines requiring admission to the practice of
law as an indispensable requisite.
Section 16. Time and duration of sessions. –
The time and duration of daily sessions of the
Regional Trial Courts shall be determined by the
Supreme Court: Provided, however, That all
motions, except those requiring immediate action,
shall be heard in the afternoon of every Friday,
unless it falls on a holiday, in which case, the
hearing shall be held on the afternoon of the next
succeeding business day: Provided, further, That
the Supreme Court may, for good reasons, fix a
different motion day in specified areas
Section 17. Appointment and assignment of
Regional Trial Judges. – Every Regional Trial
Judge shall be appointed to a region which shall
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
be his permanent station, and his appointment
shall state the branch of the court and the seat
thereof to which he shall be originally assigned.
However, the Supreme Court may assign
temporarily a Regional Trial Judge to another
region as public interest may require, provided
that such temporary assignment shall not last
longer than six (6) months without the consent of
the Regional Trial Judge concerned.
A Regional Trial Judge may be assigned by the
Supreme Court to any branch or city or
municipality within the same region as public
interest may require, and such assignment shall
not be deemed an assignment to another station
within the meaning of this section.
Section 18. Authority to define territory
appurtenant to each branch. – The Supreme Court
shall define the territory over which a branch of the
Regional Trial Court shall exercise its authority.
The territory thus defined shall be deemed to be
the territorial area of the branch concerned for
purposes of determining the venue of all suits,
proceedings or actions, whether civil or criminal,
as well as determining the Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts over the said branch may
exercise appellate jurisdiction. The power herein
granted shall be exercised with a view to making
the courts readily accessible to the people of the
different parts of the region and making the
attendance of litigants and witnesses as
inexpensive as possible.
Section 19. Jurisdiction in civil cases. –
Regional Trial Courts shall exercise exclusive
original jurisdiction:
(1) In all civil actions in which the subject of
the litigation is incapable of pecuniary
estimation;
(2) In all civil actions which involve the title to,
or possession of, real property, or any interest
therein, where the assessed value of the
property involved exceeds Twenty thousand
pesos (P20,000.00) or for civil actions in
Metro Manila, where such the value exceeds
Fifty thousand pesos (50,000.00) except
actions for forcible entry into and unlawful
detainer of lands or buildings, original
jurisdiction over which is conferred upon
Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts;
(3) In all actions in admiralty and maritime
jurisdiction where he demand or claim
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exceeds One hundred thousand pesos
(P100,000.00) or , in Metro Manila, where
such demand or claim exceeds Two hundred
thousand pesos (200,000.00);
(4) In all matters of probate, both testate and
intestate, where the gross value of the estate
exceeds One hundred thousand pesos
(P100,000.00) or, in probate matters in Metro
Manila, where such gross value exceeds Two
hundred thousand pesos (200,000.00);
(5) In all actions involving the contract of
marriage and marital relations;
(6) In all cases not within the exclusive
jurisdiction of any court, tribunal, person or
body exercising jurisdiction or any court,
tribunal, person or body exercising judicial or
quasi-judicial functions;
(7) In all civil actions and special proceedings
falling within the exclusive original jurisdiction
of a Juvenile and Domestic Relations Court
and of the Courts of Agrarian Relations as
now provided by law; and
(8) In all other cases in which the demand,
exclusive of interest, damages of whatever
kind, attorney's fees, litigation expenses, and
costs or the value of the property in
controversy exceeds One hundred thousand
pesos (100,000.00) or, in such other
abovementioned items exceeds Two hundred
thousand pesos (200,000.00). (as amended
by R.A. No. 7691*)
Jurisdiction; RTC (2009) No.II. Angelina
sued Armando before the Regional Trial
Court (RTC) of Manila to recover the
ownership and possession of two parcels of
land; one situated in Pampanga, and the
other in Bulacan. (a) May the action prosper?
Explain. SUGGESTED ANSWER:
No, the action may not prosper, because
under R.A. No. 7691, exclusive original
jurisdiction in civil actions which involve
title to, or possession of real property or
any interest therein is determined on the
basis of the assessed value of the land
involved, whether it should be P20,000 in
the rest of the Philippines, outside of the
Manila with the courts of the first level or
with the Regional Trial Court. The
assessed value of the parcel of land in
Pampanga is different from the assessed
value of the land in Bulacan. What is
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
involved is not merely a matter of venue,
which is waivable, but of a matter of
jurisdiction. However, the action may
prosper if jurisdiction is not in issue,
because venue can be waived.
ALTERNATIVE ANSWER: Yes, if the
defendant would not file a motion to
dismiss on ground of improper venue and
the parties proceeded to trial. (b) Will your
answer be the same if the action was for
foreclosure of the mortgage over the two
parcels of land? Why or why not?
SUGGESTED ANSWER: NO, the answer
would not be the same. The foreclosure
action should be brought in the proper
court of the province where the land or
any part thereof is situated, either in
Pampanga or in Bulacan. Only one
foreclosure action need be filed unless
each parcel of land is covered by distinct
mortgage contract.
In foreclosure suit, the cause of action is
for the violation of the terms and
conditions of the mortgage contract;
hence, one foreclosure suit per mortgage
contract violated is necessary.
[Note: The question is the same as 2008 Remedial Law
Bar question No.III. See Civ.Pro Venue; Real Actions]
Jurisdiction; RTC (2002)
P sued A in the RTC-Manila to recover the following
sums: (1) P200,000.00 on an overdue promissory note,
(2) P80,000.00 on the purchase price of a computer,
(3)
P150,000.00 for damages to his car and
(4) P100,000.00 for attorney’s fees and litigation
expenses. Can A move to dismiss the case on the
ground that the court has no jurisdiction over the
subject matter? Explain. (2%)
SUGGESTED ANSWER:
No, because the RTC-Manila has jurisdiction over the
subject matter. P may sue A in one complaint asserting
as many causes of action as he may have and since all
the claims are principally for recovery of money, the
aggregate amount claimed shall be the test of
jurisdiction. [Rule 2, sec. 5(d)]. The aggregate amount
claimed is P450,000.00, exclusive of the amount of
P100,000.00 for attorney’s fees and expenses of
litigation. Hence, the RTC-Manila has jurisdiction.
Jurisdiction; Incapable of Pecuniary Estimation (2000)
A brings an action in the MTC of Manila against B for
the annulment of an extrajudicial foreclosure sale of
real property with an assessed value of P50,000.00
located in Laguna. The complaint alleged prematurity
of the sale for the reason that the mortgage was not
yet due. B timely moved to dismiss the case on the
ground that the action should have been brought in
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the RTC of Laguna. Decide with reason. (3%)
SUGGESTED ANSWER:
The motion should be granted. The MTC of Manila
has
no jurisdiction because the action for the annulment of
the extrajudicial foreclosure is not capable of pecuniary
estimation and is therefore under the jurisdiction of
the RTCs. (Russell v. Vestil, 304 SCRA 738,[1999]).
However, the action for annulment is a personal action
and the venue depends on the residence of either A or
B. Hence, it should be brought in the RTC of the
placewhere either of the parties resides.
ALTERNATIVE ANSWER:
If the action affects title to or possession of real
property then it is a real action and jurisdiction is
determined by the assessed value of the property. It is
within the jurisdiction therefore of the Metropolitan
Trial Court.
SUGGESTED ANSWER:
(b) The Court could declare B in default because B did
not
obtain a writ of preliminary injunction or a temporary
restraining order from the RTC prohibiting the judge
from
proceeding in the case during the pendency of the
petition
for certiorari.
(Sec. 7 of Rule 65; Diaz v. Diaz, 331 SCRA 302 [2002].
ALTERNATIVE ANSWER:
The Court should not declare B in default inasmuch as
the jurisdiction of MTC was put in issue in the Petition
For Certiorari filed with the RTC. The MTC should
defer further proceedings pending the result of such
petition. (Eternal Gardens Memorial Park
Corporation v. Court of Appeals, 164 SCRA 421 [1988]).
Jurisdiction; MTC (2002)
P sued A and B in one complaint in the RTC-Manila,
the cause of action against A being on an overdue
promissory note for P300,000.00 and that against B
being on an alleged balance of P300,000.00 on the
purchase price of goods sold on credit. Does the
RTCManila have jurisdiction over the case? Explain.
(3%)
SUGGESTED ANSWER:
No, the RTC-Manila has no jurisdiction over the case.
A and B could not be joined as defendants in one
complaint because the right to relief against both
defendants do not arise out of the same transaction or
series of transactions and there is no common
question
of law or fact common to both. (Rule 3, sec. 6). Hence,
separate complaints will have to be files and they
would
fall under the jurisdiction of the Metropolitan Trial
Court. [Flores v. Mallare-Philipps,
144 SCRA 377 (1986)].
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 20. Jurisdiction in criminal cases. –
Regional Trial Courts shall exercise exclusive
original jurisdiction in all criminal cases not within
the exclusive jurisdiction of any court, tribunal or
body, except those now falling under the exclusive
and concurrent jurisdiction of the Sandiganbayan
which shall hereafter be exclusively taken
cognizance of by the latter.
RA 3019; Mandatory Suspension (2001)
decree or executive order can mandate that the
determination of just compensation by the executive
or legislative departments can prevail over the court's
findings (Export Processing Zone Authority v. Dulay,
G.R. No. L-59603, April 29,1987; Sees. 5 to 8 Rule 67,1997
Rules of Civil Procedure). In addition, compensation
must be paid in money (Esteban v. Onorio, A.M. No. 00-
4-166-RTC, June 29, 2001).
.
Governor Pedro Mario of Tarlac was charged with
indirect bribery before the Sandiganbayan for
accepting a car in exchange of the award of a series of
contracts for medical supplies. The Sandiganbayan,
after going over the information, found the same to be
valid and ordered the suspension of Mario. The latter
contested the suspension claiming that under the law
(Sec. 13 of R.A. 3019) his suspension is not automatic
upon the filing of the information and his suspension
under Sec. 13, R.A. 3019 is in conflict with Sec. 5 of
the Decentralization Act of 1967 (R.A. 5185).
The Sandilganbayan overruled Mario’s contention
stating that Mario’s suspension under the
circumstances is mandatory. Is the court’s ruling
correct? Why?
SUGGESTED ANSWER:
Yes. Mario’s suspension is mandatory, although not
automatic, (Sec. 13 of R.A. No. 3019 in relation to Sec. 5 of the
Decentralization Act of 1967 (R.A. No. 5185). It is mandatory
after the determination of the validity of the
information in a pre-suspension hearing. [Segovia v.
Sandiganbayan, 288 SCRA 328 (1988)]. The purpose of
suspension is to prevent the accused public officer
from frustrating or hampering his prosecution by
intimidating or influencing witnesses or tampering
with evidence or from committing further acts of
malfeasance while in office.
R.A. 3019; Pre-Suspension Hearing (2012)
No.IX.A. X, an undersecretary of DENR, was
charged before the Sandiganbayan for
malversation of public funds allegedly
committed when he was still the Mayor of a
town in Rizal. After arraignment, the
prosecution moved that X be preventively
suspended. X opposed the motion arguing
that he was now occupying a position
different from that which the Information
charged him and therefore, there is no more
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possibility that he can intimidate witnesses
and hamper the prosecution. Decide.
Suppose X files a Motion to Quash
challenging the validity of the Information
and the Sandiganbayan denies the same, will
there still be a need to conduct a pre-
suspension hearing? Explain. (5%)
SUGGESTED ANSWER:
There is no necessity for the court to
conduct pre-suspension hearing. Under
Section 13 of RA No. 3019, an incumbent
public officer against whom any criminal
prosecution under a valid information for
graft-related crime such as malversation is
pending in court, shall be suspended from
office. The word “office”, from which the
public officer charged shall be
preventively suspended, could apply to
any office, which he might currently be
holding and not necessarily the particular
office under which he was charged. The
preventive suspension of the following
public officers was sustained:
(1) a mayor, who was charged with acts
committed as a government auditor of the
Commission on Audit (Bayot vs.
Sandiganbayan, G.R. No. L-61776 to L-
61861, March 23, 1984);
(2) a public officer, who was already
occupying the office of governor and not
the position of municipal mayor that he
held previously when charged with having
violated Anti-Graft Law (Deloso vs.
Sandiganbayan, G.R. No. 86899, May 15,
1989);
(3) a Vice-Governor, whose suspension is
predicated on his acts supposedly
committed while still a member of the
Sangguniang Bayan (Libanan vs.
Sandiganbayan, G.R. No. 112386, June 14,
1994).
Thus, the DENR undersecretary can be
preventively suspended even though he
was a mayor, when he allegedly
committed malversation. Settled is the
rule that where the accused files a motion
to quash the information or challenges the
validity thereof, a show cause order of the
trial court would no longer be necessary.
What is indispensable is that the trial
court duly hear the parties at a hearing
held for determining the validity of the
information, and thereafter hand down its
ruling, issuing the corresponding order of
suspension should it uphold the validity of
the information (Luciano vs. Mariano, G.R.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
No. L-32950, July 30, 1971). Since a pre-
suspension hearing is basically a due
process requirement, when an accused
public official is given an adequate
opportunity to be heard on his possible
defenses against the mandatory
suspension under RA No. 3019, then an
accused would have no reason to complain
that no actual hearing was conducted
(Miguel vs. The Honorable Sandiganbayan,
G.R. No. 172035, July 4, 2012). In the
facts given, the DENR Undersecretary was
already given opportunity to question the
validity of the Information for
malversation by filing a motion to quash,
and yet, the Sandiganbayan sustained its
validity. There is no necessity for the
court to conduct pre-suspension hearing
to determine for the second time the
validity of the information for purpose of
preventively suspending the accused.
ALTERNATIVE ANSWER:
The argument that X should not be
suspended as he now holds an office
different from that charged in the
information is unavailing. Under Section
13(e) of RA 3019, a public officer may be
charged before the Sandiganbayan for
“causing undue injury to any party,
including the Government, or giving any
private party any unwarranted benefits,
advantage or preference in the discharge
of his official, administrative or judicial
functions through manifest partiality,
evident bad faith or gross inexcusable
negligence.” The Supreme Court has held
that Section 13 of RA 3019 is so clear and
explicit that there is hardly room for any
extended court rationalization of the law.
Preventive suspension is mandatory
regardless of the respondent‟s change in
position.
Bar Exam Question 2011
(79) The information charges PNP Chief Luis
Santos, (Salary Grade 28), with "taking
advantage of his public position as PNP Head
by feloniously shooting JOSE ONA, inflicting
on the latter mortal wounds which caused
his death." Based solely on this allegation,
which court has jurisdiction over the case?
(A) Sandiganbayan only (B) Sandiganbayan
or Regional Trial Court (C) Sandiganbayan or
Court Martial (D) Regional Trial Court only
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Section 21. Original jurisdiction in other cases. –
Regional Trial Courts shall exercise original
jurisdiction:
(1) In the issuance of writs of certiorari,
prohibition, mandamus, quo warranto, habeas
corpus and injunction which may be enforced
in any part of their respective regions; and
(2) In actions affecting ambassadors and
other public ministers and consuls.
Section 22. Appellate jurisdiction. – Regional
Trial Courts shall exercise appellate jurisdiction
over all cases decided by Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts in their respective territorial
jurisdictions. Such cases shall be decided on the
basis of the entire record of the proceedings had
in the court of origin and such memoranda and/or
briefs as may be submitted by the parties or
required by the Regional Trial Courts. The
decision of the Regional Trial Courts in such
cases shall be appealable by petition for review to
the
Court of Appeals which may give it due course
only when the petition shows prima facie that the
lower court has committed an error of fact or law
that will warrant a reversal or modification of the
decision or judgment sought to be reviewed.
NOTE: RTC cannot receive additional evidence in
the exercise of its appellate jurisdiction. The rule is
different in the CA
Section 23. Special jurisdiction to try special
cases. – The Supreme Court may designate
certain branches of the Regional Trial Courts to
handle exclusively criminal cases, juvenile and
domestic relations cases, agrarian cases, urban
land reform cases which do not fall under the
jurisdiction of quasi-judicial bodies and agencies,
and/or such other special cases as the Supreme
Court may determine in the interest of a speedy
and efficient administration of justice.
Section 24. Special Rules of Procedure. –
Whenever a Regional Trial Court takes
cognizance of juvenile and domestic relation
cases and/or agrarian cases, the special rules of
procedure applicable under present laws to such
cases shall continue to be applied, unless
subsequently amended by law or by rules of court
promulgated by the Supreme Court.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
CHAPTER III
METROPOLITAN TRIAL COURTS, MUNICIPAL
TRIAL COURTS, AND MUNICIPAL CIRCUIT
TRIAL COURTS
Section 25. Establishment of Metropolitan Trial
Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts. – There shall be created a
Metropolitan Trial Court in each metropolitan area
established by law, a Municipal Trial Court in each
of the other cities or municipalities, and a
Municipal Circuit Trial Court in each circuit
comprising such cities and/or municipalities as are
grouped together pursuant to law.
Section 26. Qualifications. – No person shall be
appointed judge of a Metropolitan Trial Court,
Municipal Trial Court, or Municipal Circuit Trial
Court unless he is a natural-born citizen of the
Philippines, at least 30 years of age, and, for at
least five years, has been engaged in the practice
of law in the Philippines, or has held a public office
in the Philippines requiring admission to the
practice of law as an indispensable requisite.
Section 27. Metropolitan Trial Courts of the
National Capital Region. –
Section 28. Other Metropolitan Trial Courts. – The
Supreme Court shall constitute Metropolitan Trial
Courts in such other metropolitan areas as may be
established by law whose territorial jurisdiction
shall be co-extensive with the cities and
municipalities comprising the metropolitan area.
Every Metropolitan Trial Judge shall be appointed
to a metropolitan area which shall be his
permanent station and his appointment shall state
branch of the court and the seat thereof to which
he shall be originally assigned. A Metropolitan
Trial Judge may be assigned by the Supreme
Court to any branch within said metropolitan area
as the interest of justice may require, and such
assignment shall not be deemed an assignment to
another station within the meaning of this section.
Section 29. Municipal Trial Courts in cities. –
Section 31. Municipal Circuit Trial Court. –
There shall be a Municipal Circuit Trial Court in
each area defined as a municipal circuit,
comprising one or more cities and/or one or more
municipalities. The municipalities comprising
municipal circuits as organized under
Administrative Order No. 33, issued on June 13,
1978 by the Supreme Court pursuant to
Presidential Decree No. 537, are hereby
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constituted as municipal circuits for purposes of
the establishment of the Municipal Circuit Trial
Courts, and the appointment thereto of Municipal
Circuit Trial Judges: Provided, however, That the
Supreme Court may, as the interests of justice
may require, further reorganize the said courts
taking into account workload, geographical
location, and such other factors as will contribute
to a rational allocation thereof, pursuant to the
provisions of Presidential Decree No. 537 which
shall be applicable insofar as they are not
inconsistent with this Act.
Every Municipal Circuit Trial Judge shall be
appointed to a municipal circuit which shall be his
official station.
The Supreme Court shall determine the city or
municipality where the Municipal Circuit Trial
Court shall hold sessions.
Section 32. Jurisdiction of Metropolitan Trial
Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts in criminal cases. – Except
in cases falling within the exclusive original
jurisdiction of Regional Trial Courts and of the
Sandiganbayan, the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial
Courts shall exercise:
(1) Exclusive original jurisdiction over all
violations of city or municipal ordinances
committed within their respective territorial
jurisdiction; and
(2) Exclusive original jurisdiction over all
offenses punishable with imprisonment not
exceeding six (6) years irrespective of the
amount of fine, and regardless of other
imposable accessory or other penalties,
including the civil liability arising from such
offenses or predicated thereon, irrespective of
kind, nature, value, or amount thereof:
Provided, however, That in offenses involving
damage to property through criminal
negligence they shall have exclusive original
jurisdiction thereof. (as amended by R.A, No.
7691)
Section 33. Jurisdiction of Metropolitan Trial
Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts in civil cases. – Metropolitan
Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over civil
actions and probate proceedings, testate and
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
intestate, including the grant of provisional
remedies in proper cases, where the value of
the personal property, estate, or amount of the
demand does not exceed One hundred
thousand pesos (P100,000.00) or, in Metro
Manila where such personal property, estate,
or amount of the demand does not exceed
Two hundred thousand pesos (P200,000.00)
exclusive of interest damages of whatever
kind, attorney's fees, litigation expenses, and
costs, the amount of which must be
specifically alleged: Provided, That where
there are several claims or causes of action
between the same or different parties,
embodied in the same complaint, the amount
of the demand shall be the totality of the
claims in all the causes of action, irrespective
of whether the causes of action arose out of
the same or different transactions;
Jurisdiction; MTC (2002)
P sued A and B in one complaint in the RTC-Manila,
the cause of action against A being on an overdue
promissory note for P300,000.00 and that against B
being on an alleged balance of P300,000.00 on the
purchase price of goods sold on credit. Does the
RTCManila have jurisdiction over the case? Explain.
(3%)
SUGGESTED ANSWER:
No, the RTC-Manila has no jurisdiction over the case.
A and B could not be joined as defendants in one
complaint because the right to relief against both
defendants do not arise out of the same transaction or
series of transactions and there is no common
question of law or fact common to both. (Rule 3, sec. 6).
Hence, separate complaints will have to be files and
they would fall under the jurisdiction of the
Metropolitan Trial Court. [Flores v. Mallare-Philipps, 144
SCRA 377 (1986)].
Jurisdiction; RTC; MeTC (2010) No.II. On
August 13, 2008, A, as shipper and
consignee, loaded on the M/V Atlantis in
Legaspi City 100,000 pieces of century eggs.
The shipment arrived in Manila totally
damaged on August 14, 2008. A filed before
the Metropolitan Trial Court (MeTC) of Manila
a complaint against B Super Lines, Inc. (B
Lines), owner of the M/V Atlantis, for
recovery of damages amounting to P167,899.
He attached to the complaint the Bill of
Lading.
(a) B Lines filed a Motion to Dismiss upon the
ground that the Regional Trial Court has
exclusive original jurisdiction over "all actions
in admiralty and maritime" claims. In his
Reply, A contended that while the action is
indeed "admiralty and maritime" in nature, it
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is the amount of the claim, not the nature of
the action, that governs jurisdiction. Pass on
the Motion to Dismiss. (3%) SUGGESTED
ANSWER: The Motion to Dismiss is
without merit and therefore should be
denied. Courts of the first level have
jurisdiction over civil actions where the
demand is for sum of money not
exceeding P300,000.00 or in Metro
Manila, P400,000.00, exclusive of interest,
damages, attorney‟s fees, litigation
expenses and costs: this jurisdiction
includes admiralty and marine cases. And
where the main cause of action is the
claim for damages, the amount thereof
shall be considered in determining the
jurisdiction of the court (Adm. Circular
No. 09-94, June 14, 1994). (b) The MeTC
denied the Motion in question A. B Lines
thus filed an Answer raising the defense that
under the Bill of Lading it issued to A, its
liability was limited to P10,000. At the pre-
trial conference, B Lines defined as one of the
issues whether the stipulation limiting its
liability to P10,000 binds A. A countered that
this was no longer in issue as B Lines had
failed to deny under oath the Bill of Lading.
Which of the parties is correct? Explain. (3%)
SUGGESTED ANSWER: The contention of
B is correct: A‟s contention is wrong. It
was A who pleaded the Bill of Lading as an
actionable document where the
stipulation limits B‟s liability to A to
P10,000.00 only. The issue raised by B
does not go against or impugn the
genuineness and due execution of the Bill
of Lading as an actionable document
pleaded by A, but invokes the binding
effect of said stipulation. The oath is not
required of B, because the issue raised by
the latter does not impugn the
genuineness and due execution of the Bill
of Lading.
(2) Exclusive original jurisdiction over cases of
forcible entry and unlawful detainer: Provided,
That when, in such cases, the defendant
raises the question of ownership in his
pleadings and the question of possession
cannot be resolved without deciding the issue
of ownership, the issue of ownership shall be
resolved only to determine the issue of
possession.
(3) Exclusive original jurisdiction in all civil
actions which involve title to, or possession of,
real property, or any interest therein where the
assessed value of the property or interest
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
therein does not exceed Twenty thousand
pesos (P20,000.00) or, in civil actions in Metro
Manila, where such assessed value does not
exceed Fifty thousand pesos (P50,000.00)
exclusive of interest, damages of whatever
kind, attorney's fees, litigation expenses and
costs: Provided, That value of such property
shall be determined by the assessed value of
the adjacent lots. (as amended by R.A. No.
7691)
Section 34. Delegated jurisdiction in cadastral
and land registration cases. – Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts may be assigned by the
Supreme Court to hear and determine cadastral or
land registration cases covering lots where there
is no controversy or opposition, or contested lots
the where the value of which does not exceed
One hundred thousand pesos (P100,000.00),
such value to be ascertained by the affidavit of the
claimant or by agreement of the respective
claimants if there are more than one, or from the
corresponding tax declaration of the real property.
Their decisions in these cases shall be appealable
in the same manner as decisions of the Regional
Trial Courts. (as amended by R.A. No. 7691)
NOTE: Thus, decision of MTCs may be directly
appealed to the SC via Rule 45 (Review Lecture).
Section 35. Special jurisdiction in certain
cases. – In the absence of all the Regional Trial
Judges in a province or city, any Metropolitan Trial
Judge, Municipal Trial Judge, Municipal Circuit
Trial Judge may hear and decide petitions for a
writ of habeas corpus or applications for bail in
criminal cases in the province or city where the
absent Regional Trial Judges sit.
Section 36. Summary procedures in special
cases. – In Metropolitan Trial Courts and
Municipal Trial Courts with at least two branches,
the Supreme Court may designate one or more
branches thereof to try exclusively forcible entry
and unlawful detainer cases, those involving
violations of traffic laws, rules and regulations,
violations of the rental law, and such other cases
requiring summary disposition as the Supreme
Court may determine. The Supreme Court shall
adopt special rules or procedures applicable to
such cases in order to achieve an expeditious and
inexpensive determination thereof without regard
to technical rules. Such simplified procedures may
provide that affidavits and counter-affidavits may
be admitted in lieu of oral testimony and that the
periods for filing pleadings shall be non-
extendible.
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Section 37. Preliminary investigation. – Section 43. Staffing pattern. –

Section 38. Judgments and processes. – Section 44. Transitory provisions. –

(1) All judgments determining the merits of
cases shall be in writing, stating clearly the
facts and the law on which they were based,
signed by the Judge and filed with the Clerk of
Court. Such judgment shall be appealable to
the Regional Trial Courts in accordance with
the procedure now prescribed by law for
appeals to the Court of First Instance, by the
provisions of this Act, and by such rules as the
Supreme Court may hereafter prescribe.
(2) All processes issued by the Metropolitan
Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts, in cases falling
within their jurisdiction, may be served
anywhere in the Philippines without the
necessity of certification by the Judge of the
Regional Trial Court.
Section 45. Shari'a Courts. – Shari'a Courts to be
constituted as provided for in Presidential Decree
No. 1083, otherwise known as the "Code of
Muslim Personal Laws of the Philippines," shall be
included in the funding appropriations so provided
in this Act.
Section 46. Gratuity of judges and personnel
separated from office. –
Section 47. Repealing clause. –
Section 48. Date of Effectivity. – This Act shall
take effect immediately.
Approved: August 14, 1981

CHAPTER IV
GENERAL PROVISIONS

Section 39. Appeals. – The period for appeal

from final orders, resolutions, awards, judgments,
or decisions of any court in all cases shall be
fifteen (15) days counted from the notice of the
final order, resolution, award, judgment, or
decision appealed from: Provided however, That
in habeas corpus cases, the period for appeal
shall be forty-eight (48) hours from the notice of
the judgment appealed from.

No record on appeal shall be required to take an

appeal. In lieu thereof, the entire record shall be
transmitted with all the pages prominently
numbered consecutively, together with an index of
the contents thereof.

This section shall not apply in appeals in special

proceedings and in other cases wherein multiple
appeals are allowed under applicable provisions of
the Rules of Court.

Section 40. Form of decision in appealed cases. –

Every decision of final resolution of a court in
appealed cases shall clearly and distinctly state Republic of the Philippines
the findings of fact and the conclusions of law on SUPREME COURT
which it is based, which may be contained in the Manila
decision or final resolution itself, or adopted by
reference from those set forth in the decision, A.M. No. 10-4-20-SC
order, or resolution appealed from.
THE INTERNAL RULES OF THE SUPREME
Section 41. Salaries. COURT
Section 42. Longevity pay. –
RESOLUTION
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________________________________________________________________________________________________
Acting on the recommendation of the Sub-
committee on The Internal Rules of the Supreme
Court submitting for this Court’s consideration and
approval the purposed Internal Rules of the
Supreme Court, the Court Resolved to APPROVE
the same.
These Rules shall take effect fifteen (15) days
after publication in a newspaper of general
circulation in the Philippines.
May 4, 2010
THE INTERNAL RULES OF THE SUPREME
COURT
PART I
RULE 1
THE INTERNAL RULES
Section 1. The Internal Rules. These Rules
shall govern the internal operations of the
Supreme Court and guide its exercise of judicial
and administrative functions. They shall be cited
as The Internal Rules of the Supreme Court.
Section 2. Interpretation. The Internal Rules of
the Supreme Court shall be interpreted in
accordance with the mandates of the Supreme
Court under the Constitution, applicable laws, and
the Rules of Court to ensure a just, fair and
efficient administration of justice. Nothing in these
Rules shall be interpreted to limit the exercise of
the power and authority of the Court as provided
in the Constitution, the applicable laws, and the
Rules of Court.
Section 3. Committee on Internal Rules.
(a) A permanent Committee on Internal Rules of
the Supreme Court shall ensure, through
appropriate recommendation to the Court en banc,
that these Rules are kept current and responsive
to the needs of the Court and the public it serves;
(b) The Committee, composed mainly to Members
of the Court, shall include the Clerk of the
Supreme Court and the Chief Attorney as
permanent members, and may include other court
officials as may needed;
(c) The Committee shall collate relevant materials
from laws, the Rules of Court, and Resolutions of
the Court at the end of every year and submit to
the Court en banc an update of the Rules the
following January. It shall likewise recommend to
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the Court en banc the amendment, revision, or
deletion of any of these Rules to reflect and
achieve the objectives of justice, fairness and
efficiency;
(d) These Rules shall be posted on the Supreme
Court website.
Section 4. Amendment or suspension of the
Rules. In the interest of sound and efficient
administration of justice, and upon a majority vote
of the Court en banc, any provision of these Rules
may be amended, revised, deleted, suspended or
dispensed with in particular cases, upon such
terms as the Court en banc may decide to be just,
fair and proper.
RULE 2
THE OPERATING STRUCTURES
Section 1. Exercise of judicial and administrative
functions. The Court exercises its judicial
functions and its powers of administrative
supervision over all courts and their personnel
through the Court en banc or its Divisions. It
administers its activities under the leadership of
the Chief Justice, who may, for this purpose,
constitute supervisory or special committees
headed by individual Members of the Court or
working committees of court officials and
personnel.
Section 2. Quorum of the Court en banc. Eight
Members shall constitute a quorum of the Court.
In the absence of the Chief Justice, the most
senior Associate Justice present shall chair the
sessions of the Court.
Section 3. Court en banc matters and cases.
The Court en banc shall act on the following
matters and cases:
(a) cases in which the constitutionality or
validity of any treaty, international or executive
agreement, law, executive order, presidential
decree, proclamation, order, instruction,
ordinance, or regulation is in question;
(b) criminal cases in which the appealed
decision imposes the death penalty or
reclusion perpetua;
(c) cases raising novel questions of law;
(d) cases affecting ambassadors, other public
ministers, and consuls;
(e) cases involving decisions, resolutions, and
orders of the Civil Service Commission, the
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Commission on Elections, and the
Commission on Audit;
(f) cases where the penalty recommended or
imposed is the dismissal of a judge, the
disbarment of a lawyer, the suspension of any
of them for a period of more than one year, or
a fine exceeding forty thousand pesos;
(g) cases covered by the preceding paragraph
and involving the reinstatement in the judiciary
of a dismissed judge, the reinstatement of a
lawyer in the roll of attorneys, or the lifting of a
judge’s suspension or a lawyer’s suspension
from the practice of law;
(h) cases involving the discipline of a Member
of the Court, or a Presiding Justice, or any
Associate Justice of the collegial appellate
court;
(i) cases where a doctrine or principle laid
down by the Court en banc or by a Division
my be modified or reversed;
(j) cases involving conflicting decisions of two
or more divisions;
(k) cases where three votes in a Division
cannot be obtained;
(l) Division cases where the subject matter
has a huge financial impact on businesses or
affects the welfare of a community;
(m) Subject to Section 11 (b) of this rule, other
division cases that, in the opinion of at least
three Members of the Division who are voting
and present, are appropriate for transfer to the
Court en banc;
(n) Cases that the Court en banc deems of
sufficient importance to merit its attention; and
(o) all matters involving policy decisions in the
administrative supervision of all courts and
their personnel.
Section 4. Division cases. All cases and matters
under the jurisdiction of the Court not otherwise
provided for by law, by the Rules of Court or by
these Internal Rules to be cognizable by the Court
en banc shall be cognizable by the Divisions.
Section 5. Composition and quorum of a
Division. Unless the Court en banc decrees
otherwise, a quorum shall consist of a majority of
all Members of the Division, and an absent or a
non-participating regular Member of a Division
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
may be replaced at the request of the regular
Members by a Member designated from another
Division in order to constitute a quorum.
Section 6. Resolutions of motions for
reconsideration or clarification of an unsigned
resolution or minute resolution. Motions for
reconsideration or clarification of an unsigned
resolution or a minute resolution shall be acted
upon by the regular Division to which the ponente
belongs at the time of the filling of the motion. The
ponente is the Member to whom the Court, after
its deliberation on the merits of a case, assigns
the writing of its decision or resolution in the case.
Section 7. Resolutions of motions for
reconsideration or clarification of decisions or
signed resolutions; creation of a Special
Division. Motions for reconsideration or
clarification of a decision or of a signed resolution
shall be acted upon by the ponente and the other
Members of the Division who participated in the
rendition of the decision or signed resolution.
If the ponente or a Member of the Division who
participated in the rendition of the decision or
signed resolution has retired, is no longer a
Member of the Court, is disqualified, or has
inhibited himself or herself from acting on the
motion for reconsideration, he or she shall be
replaced through raffle by a new ponente or
Member. For this purpose, the Division that
rendered the decision or signed resolution,
including the replacement Member, shall be
constituted as a Special Division and shall
thereafter act on the motion for reconsideration
and all other pleadings, motions, and incidents.
Section 8. Composition and reorganization of a
division. The composition of each Division shall
be based on seniority as follows:
(a) First Division Chief Justice, the fourth in
seniority as working chairperson, the seventh in
seniority, the tenth in seniority, and the thirteenth
in seniority.
(b) Second Division the second in seniority as
Chairperson, the fifth in seniority, the eighth in
seniority; the eleventh in seniority, and the
fourteenth in seniority.
(c) Third Division the third in seniority as
Chairperson, the sixth in seniority, the ninth in
seniority, the twelfth in seniority, and the fifteenth
in seniority.
The Chief Justice may, however, consider factors
other than seniority in Division assignments. The
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appointment of a new Member of the Court shall (i) Committee on the Revision of the Rules
necessitate the reorganization of Divisions at the of Court;
call of the Chief Justice. (ii) Committee on Computerization and
Library;
Section 9. Effect of reorganization of Divisions on (iii) Committee on Security;
assigned cases. In the reorganization of the (iv) Bids and Awards Committees;
membership of Divisions, cases already assigned (v) Committee on Administrative
to a Member-in-Charged shall be transferred to Concerns;
the Division to which the Member-in-Charged (vi) Legislative-Executive Relations
moves, subject to the rule on the resolution of Committee;
motions for reconsideration under Section 7 of this (vii) Committee on Publication of the Court
Rule. The Member-in-Charged is the Member Systems Journal;
given the responsibility of overseeing the progress (viii) Committee on Legal Education and
and disposition of a case assigned by raffle. Bar Matters;
(ix) Committee on Retirement Program;
Section 10. Formula for assigning cases to a new (x) Committee on Public Information;
Member of the Court. The following rules shall be (xi) Judicial Reform Support Project
observed in assigning cases to a newly appointed Management Committee;
Member of the Court: (xii) Committee on Publication of the
Advanced Syllabi;
(a) the average caseload of each Member shall be (xiii) Committee on Foreign Travel;
determined by dividing the total number of (xiv) Committee on Justice on Wheels;
pending cases of all fifteen Members by fifteen; and
(xv) Committee on Gender
(b) the newly appointed Member of the Court shall Responsiveness in the Judiciary.
inherit the caseload of the Member being
replaced, and the inherited caseload, if less than The Court may create other Committees as
the average caseload as determined in (a), shall may be necessary, with the Chief Justice
be equalized with the average caseload by taking designating the Committee Chairperson and
the difference from the caseload of the incumbent Members.
Members divided among them in equal number;
(b) Subcommittees may be created by the
(c) cases submitted for decision within the last Chief Justice upon the recommendation of the
twelve months preceding the appointment of the Committee Chairperson.
new Member of the Court may be unloaded to him
or her. (c) Ad Hoc committees shall be created as the
need arises.
Section 11. Actions on cases referred to the Court
en banc. The referral of a Division case to the Section 13. Ethics Committee. In addition to the
Court en banc shall be subject to the following above, a permanent Committee on Ethics and
rules: Ethical Standards shall be established and chaired
by the Chief Justice, with the following
(a) the resolution of a Division denying a motion membership:
for referral to the Court en banc shall be final and
shall not be appealable to the Court en banc; (a) a working Vice-Chair appointed by the
Chief Justice;
(b) the Court en banc may, in the absence of
sufficiently important reasons, decline to take (b) three (3) members chosen among
cognizance of a case referred to it and return the themselves by the en banc by secret vote;
case to the Division; and and

(c) No motion for reconsideration of a resolution of (c) a retired Supreme Court Justice chosen by
the Court en banc declining cognizance of a the Chief Justice as a non-voting observer-
referral by a Division shall be entertained. consultant.

Section 12. Committees. (a) The Court shall The Vice-Chair, the Members and the retired
have the following permanent Committees, whose Supreme Court Justice shall serve for a term of
members shall be designated by the Chief Justice: one (1) year, with the election in the case of
elected Members to be held at the call of the Chief

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 647

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Justice. The Committee shall have the task of
preliminarily investigating all complaints involving
graft and corruption and violations of ethical
standards, including anonymous complaints, filed
against Members of the Court, and of submitting
findings and recommendations to the en banc. All
proceedings shall be completely confidential. The
Committee shall also monitor and report to the
Court the progress of the investigation of similar
complaints against Supreme Court officials and
employees, and handle the annual update of the
Court’s ethical rules and standards for submission
to the en banc.
Section 14. Per curiam decisions. Unless
otherwise requested by the Member assigned to
write the opinion of the Court, the decision or
resolution shall be rendered per curiam
(a) where the penalty imposed is dismissal
from service, disbarment, or indefinite
suspension in administrative cases; or
(b) in any other case by agreement of the
majority of the Members or upon request of a
Member.
Per Curiam
Of the whole court – relating to the unanimous
decision or opinion by a court of law as opposed
to one given by an individual justice.
Section 15. Form of resolution on motion for
reconsideration in cases where the vote of
Members of the Court is divided. The resolution
of motions for reconsideration, in case the opinion
of the Court en banc or Division is divided, may be
by minute resolution specifying the respective
votes of the Members.
Section 16. Filling up of Court positions in
Senate and House Electoral Tribunals.
Positions for Members of the Court in the Senate
Electoral Tribunal and the House of
Representatives Electoral Tribunal shall be
designated by the Chief Justice among the
Members of the Court in the order of seniority: The
most senior Member shall serve as chairperson of
the tribunal.
RULE 3
THE EXERCISE OF JUDICIAL FUNCTION
Section 1. The Supreme Court a court of law.
The Court is a court of law. Its primary task is to
resolve and decide cases and issues presented by
litigants according to law. However, it may apply
equity where the court is unable to arrive at a
conclusion or judgment strictly on the basis of law
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
due to a gap, silence, obscurity or vagueness of
the law that the Court can still legitimately remedy,
and the special circumstances of the case.
Section 2. The Court not a trier of facts. The
Court is not a trier of facts its role is to decide
cases based on the findings of fact before it.
Where the Constitution, the law or the Court itself,
in the exercise of its discretion, decides to receive
evidence, the reception of evidence may be
delegated to a member of the Court, to either the
Clerk of Court or one of the Division Clerks of
Court, or to one of the appellate courts or its
justices who shall submit to the Court a report and
recommendation on the basis of the evidence
presented.
Section 3. Advisory opinions proscribed. The
Court cannot issue advisory opinions on the state
and meaning of laws, or take cognizance of moot
and academic questions, subject only to notable
exceptions involving constitutional issues.
Section 4. Cases when the Court may
determine factual issues. The Court shall
respect factual findings of lower courts, unless any
of the following situations is present:
(a) the conclusion is a finding grounded
entirely on speculation, surmise and
conjecture;
(b) the inference made is manifestly mistaken;
(c) there is grave abuse of discretion;
(d) the judgment is based on a
misapprehension of facts;
(e) the findings of fact are conflicting;
(f) the collegial appellate courts went beyond
the issues of the case, and their findings are
contrary to the admissions of both appellant
and appellee;
(g) the findings of fact of the collegial
appellate courts are contrary to those of the
trial court;
(h) said findings of fact are conclusions
without citation specific evidence on which
they are based;
(i) the facts set forth in the petition as well as
in the petitioner’s main and reply briefs are not
disputed by the respondents;
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(j) the findings of fact of the collegial appellate
courts are premised on the supposed
evidence, but are contradicted by the
evidence on record; and
(k) all other similar and exceptional cases
warranting a review of the lower courts’
findings of fact.
RULE 4
THE EXERCISE OF ADMINISTRATIVE
FUNCTION
Section 1. Disciplinary cases against Court
personnel. Administrative supervision of courts
and court personnel shall be undertaken by the
court en banc, provided that, in appropriate cases,
such function may be undertaken by the Divisions.
Section 2. Assisting officers in the exercise of
administrative function. In the discharge of its
administrative functions, the Court shall be
assisted by the Office of the Clerk of Court in
administrative matters and cases involving the
Court and the collegial appellate courts, and by
the Office of the Court Administrative matters and
cases involving the lower courts.
Section 3. Administrative functions of the
Court. The administrative functions of the Court
en banc consist of , but are not limited to, the
following:
(a) the discipline of justices, judges and court
personnel, whether by en banc or by Division,
subject to matters assignable to the Divisions,
disciplinary matters involving justices, judges
and court personnel;
(b) the temporary assignment of judges to
other stations as public interest may require;
(c) the transfer of cases, from one court,
administrative area or judicial region, to
another, or the transfer of venue of the trial of
cases to avoid miscarriage of justice;
(d) the amendment, modification or revocation
of administrative orders and circulars issued
by the Court;
(e) the policy consideration and determination
of matters and issues; and
(f) matters involving the Judicial and Bar
Council (JBC) or the Philippine Judicial
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Academy (PHILJA) in the exercise of the
Court’s supervisory authority over them.
RULE 5
PRECEDENCE AND PROTOCOL
Section 1. Concept. The Chief Justice enjoys
precedence over all the other Members of the
Court in all official functions. The Associate
Justices shall have precedence according to the
order of their appointments as officially transmitted
to the Supreme Court.
Section 2. When rule on precedence is
applicable. The rule on precedence shall be
applied in the following instances:
(a) in the determination of the
Chairpersonship of the Division;
(b) in the seating arrangement of the Justices
in all official functions; and
(c) in the choice of office space, facilities,
equipment, transportation, and cottages.
Section 3. When rule on precedence is not
applicable. Precedence in rank shall not be
observed in social and other non-official functions
or be used to justify discrimination in the
assignment of cases, amount of compensation,
allowance or other forms of remuneration.
PART II
RULE 6
FILING, RECEIVING, AND PROCESSING OF
INITIATORY PLEADINGS AND APPEALS
Section 1. Governing rules of procedure in
appeals or petitions filed in the Supreme
Court. All appeals or petitions and pleadings that
initiate an application for relief shall be filed with
the Court only in accordance with the procedure
provided by the Rules of Court and other
issuances of the Court.
Section 2. Reception of pleadings and other
documents. All appeals and petitions in all types
of cases, and original records in criminal cases
shall be filed with and received by the Receiving
Section of the Docket Division of the Judicial
Records Office during office hours.
Section 3. Assessment and payment. An
initiatory pleading shall be processed pursuant to
the pertinent provisions of the Rules of Court and
issuances of the Court. The corresponding legal
fees shall then be assessed and paid.
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Section 4. Docket number and entry in
logbook. An initiatory pleading properly filed shall
be assigned a docket or G.R. (General Register)
number, which shall identify the case for record
purposes until its termination under the Rules of
Court. Any case for which no docket fee has been
paid shall be assigned an undocketed or UDK
number. All initiatory pleadings shall be entered in
the logbook of the Receiving Section.
Section 5. Case Administration System.
Pleadings, letters, resolutions, decisions, entry of
judgment, and all the relevant information
regarding any particular case identified by a G.R.
number or a UDK number shall be encoded in the
Case Administration System (CAS).
Section 6. Indexing and transmittal to Docket
Division. After the recording in the logbook and
encoding in the CAS by the Receiving Section, the
initiatory pleading shall be indexed on a card that
shall indicate such information as court of origin,
the lower court case number(s), the nature of the
case, the names of the counsel(s) for the litigants,
and the date and time of transmittal to the Docket
Division of the Judicial Records Office. The
indexing of cases shall serve as a backup record
of the receipt of a case by the Court. Thereafter,
the initiatory pleading shall be transmitted to the
Docket Division.
Section 7. Classification of cases. A court
attorney in the Docket Division shall preliminarily
classify the petitions and appeals filed as en banc
or as Division cases in accordance with law.
Section 8. Recording of cases in the main
docket book. The case shall be recorded in the
main docket book of the Docket Division, where all
pleadings, motions, communications, resolutions,
the decision, the entry of judgment, and all
relevant information on a particular case shall be
recorded by handwriting. The personnel charged
with making entries in the main docket book of the
said pleadings and other said pleadings and other
information shall affix his or her initials after such
entries.
Section 9. The rollo for each case. All original
pleadings and other documents filed under the
same docket number shall be encased in a folder
or rollo with a Court en banc-approved, color-
coded cartolina cover indicating the G.R. or UDK
number, the title of the case, the date of filing, the
date of submission for decision, and the nature of
the case. The pages of the pleadings and other
documents shall be consecutively numbered and
attached to the rollo preferably by stitching or any
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
method that ensures the integrity of the contents
of the rollo.
Section 10. Processing. A court attorney at the
Docket Division of the Judicial Records Office
shall accomplish the processing slips for all
initiatory pleadings, including motions for
extension of time to file petition. The processing
slip shall serve as the checklist of the
requirements of the Rules of Court for filing a
case, and shall inform the Court of compliance or
non-compliance by the appellant or petitioner with
such requirements, as gathered from the initiatory
pleading filed. Information provided by the
processing slip shall be reported in the initial
agenda item on the case.
Section 11. Transmittal of rollo from the
Receiving Section to the Office of the Clerk of
Court or the Division Clerk of Court. The
Judicial Records Office shall transmit all rollos to
the Office of the Clerk of Court or Division Clerk of
Court within forty-eight hours from receipt of
pleadings, documents or papers attached to them,
unless immediate transmittal is demanded by the
nature of the case. Copies of pleadings,
documents, or papers not attached to the rollo
shall be distributed by said Offices to all Members
of the Court en banc or of the Division.
RULE 7
RAFFLE OF CASES
Section 1. Raffle of cases. Every initiatory
pleading already identified by a G.R. or a UDK
number shall be raffled among the Members of the
Court. The Member-in-Charge to whom a case is
raffled, whether such case is to be taken up by the
Court en banc or by a Division, shall oversee its
progress and disposition unless for valid reason,
such as inhibition, the case has to be re-raffled,
unloaded or assigned to another Member.
Section 2. Raffle Committee. Two Raffle
Committees one for the en banc and the other for
Division cases, each to be composed of a
Chairperson and two members shall be
designated by the Chief Justice from among the
Members of the Court on the basis of seniority.
Section 3. Raffle Committee Secretariat. The
Clerk of Court shall serve as the Secretary of the
Raffle Committee. He or she shall be assisted by
a court attorney, duly designated by the Chief
Justice from either the Office of the Chief Justice
or the Office of the Clerk of Court, who shall be
responsible for (a) recording the raffle proceedings
and (b) submitting the minutes thereon to the
Chief Justice. The Clerk of Court shall make the
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result of the raffle available to the parties and their
counsels or to their duly authorized
representatives, except the raffle of (a) bar
matters; (b) administrative cases; and (c) criminal
cases where the penalty imposed by the lower
court is life imprisonment, and which shall be
treated with strict confidentiality.
Section 4. Classification of cases for raffle. The
initiatory pleadings duly docketed at the Judicial
Records Office shall be classified into en banc and
Division cases for purposes of the raffle. The Clerk
of Court shall forthwith make a report on the
classified cases to the Chief Justice.
Section 5. Schedule of regular raffle. Regular
raffle of en banc and Division cases shall be held
on Mondays and Wednesdays, respectively.
Section 6. Special raffle of cases. Should an
initiatory pleading pray for the issuance of a
temporary restraining order or an urgent and
extraordinary writ such as the writ of habeas
corpus or of amparo, and the case cannot be
included in the regular raffle, the Clerk of Court
shall immediately call the attention of the Chief
Justice or, in the latter’s absence, the most senior
Member of the Court present. The Chief Justice or
the Senior Member of the Court may direct the
conduct of a special raffle, in accordance with the
following procedure:
(a) Upon receipt of an initiatory pleading
containing a motion for the conduct of a special
raffle, the Judicial Records Office shall
immediately (I) process the pleading and (ii)
transmit a copy of it to the Office of the Clerk of
Court.
(b) The Judicial Records Office shall inform the
Clerk of Court in writing of the motion for special
raffle, and the Clerk of Court shall forthwith seek
authority to conduct the special raffle from the
Chief Justice or substitute Senior Member, as the
case may be.
(c) The special raffle shall be conducted
immediately.
(d) The Clerk of Court shall furnish the Member-in-
Charge to whom the case is raffled, the Judicial
Records Office, and the Rollo Room at the Office
of the Chief Justice, copies of the result of the
special raffle in an envelope marked "RUSH". The
Member-in-Charge shall also be furnished a copy
of the pleading. If the case is classified as a
Division case, the Clerk of Court shall furnish the
same copies to the Office of the Clerk of Court of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
the Division to which the same Member-in-Charge
belongs and to the Division Chairperson.
(e) Upon receipt of the special raffle result, the
Judicial Records Office shall immediately forward
the rollo to the Division concerned, with the word
"RUSH" clearly indicated on the rollo cover.
(f) Upon receipt of the rollo, the Clerk of Court or,
should the case be classified as a Division case,
the Division Clerk of Court shall immediately (i)
prepare the Agenda item on the specially raffled
case; and (ii) forward the rollo and a copy of the
Special Agenda to the Rollo Room, which shall
transmit the rollo to the Member-in-Charge and
distribute the Special Agenda to the Chief Justice
and the Members of the Court or to the
Chairperson and Members of the Division, as the
case may be.
(g) When the Court in recess and the urgency of
the case requires immediate action, the Clerk of
Court or the Division Clerk of Court shall
personally transmit the rollo to the Chief Justice or
the Division Chairperson for his or her action.
Section 7. Conduct of the raffle. The cases
included in a previously prepared list shall be
raffled using a reasonably acceptable random
raffle device under a system that shall ensure the
fair and equitable distribution of case load among
all Members of the Court.
Section 8. Transfer of rollos of raffled cases.
The rollos of all raffled cases shall be delivered to
the Officers of the respective Clerks of Court, for
inclusion in the next agenda of the Court en banc
or the Division.
RULE 8
INHIBITION AND SUBSTITUTE OF MEMBERS
OF THE COURT
Section 1. Grounds for inhibition. A Member of
the Court shall inhibit himself or herself from
participating in the resolution of the case for any of
these and similar reasons:
(a) the Member of the Court was the ponente of
the decision or participated in the proceedings in
the appellate or trial court;
(b) the Member of the Court was counsel, partner
or member of law firm that is or was the counsel in
the case subject to Section 3(c) of this rule;
(c) the Member of the Court or his or her spouse,
parent or child is pecuniarily interested in the
case;
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(d) the Member of the Court is related to either
party in the case within the sixth degree of
consanguinity or affinity, or to an attorney or any
member of a law firm who is counsel of record in
the case within the fourth degree of consanguinity
or affinity;
(e) the Member of the Court was executor,
administrator, guardian or trustee in the case; and
(f) the Member of the Court was an official or is
the spouse of an official or former official of a
government agency or private entity that is a party
to the case, and the Justice or his or her spouse
has reviewed or acted on any matter relating to
the case.
A Member of the Court may in the exercise of his
or her sound discretion, inhibit himself or herself
for a just or valid reason other than any of those
mentioned above.
The inhibiting Member must state the precise
reason for the inhibition.
Section 2. Motion to inhibit a Division or a
Member of the Court. A motion for inhibition
must be in writing and under oath and shall state
the grounds therefor.
A motion for inhibition of a Division or a Member of
the Court must be acted upon by the Division or
the Member of the Court concerned, as the case
may be, within ten working days from receipt
thereof except when there is an application for a
temporary restraining order, in which case the
motion must be acted upon immediately.
No motion for inhibition of a Division or a Member
of the Court shall be granted after a decision on
the merits or substance of the case has been
rendered or issued by an Division, except for a
valid or just reason such as an allegation of a graft
and corrupt practice or ground not earlier
apparent.
Section 3. Effects of inhibition. The
consequences of an inhibition of a Member of the
Court shall be governed by these rules:
(a) Whenever a Member-in-Charge of a case in a
Division inhibits himself for a just and valid reason,
the case shall be returned to the Raffle Committee
for re-raffling among the Members of the same
Division other than the Member-in-Charge of a
case, and the fifth Member of the Division chosen
by raffle among the Members of the Divisions shall
act in place of the inhibiting Member.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(b) Whenever a Member of the Division, other
than the Member-in-Charge of a case, inhibits on
any of the grounds specified in Section 1, except
paragraph (b), the case shall be decided by the
four remaining Members of the Division and
another Member of the two other Divisions chosen
by raffle to act on the case.
(c) When a Member of the Division, other than the
Member-in-Charge of a case, was counsel or
partner or member of a law firm that is or was
counsel in the case before the Division, such
Member shall inhibit himself or herself, unless the
Member was no longer a partner or member of the
law firm when it was engaged as counsel in the
case and the Member votes against the client of
such firm. In any event, the mandatory inhibition
shall case after the lapse of ten years from the
resignation or withdrawal of the Member from the
law firm, unless the Member personally handled
the case when he or she was a partner or member
of the law firm.
(d) Whenever two or more Members o the
Division, other than the Member-in-Charge of a
case, inhibit themselves from a case, they shall be
replaced by raffle by Members of the other
Divisions.
(e) A Member of the Court who inhibits, on the
grounds specified in Section 1, shall be assigned
an additional case at the next raffle of Division
cases.
Section 4. Substitution of Member. When a
Member of the Court is on leave or a vacancy
occurs in a Division, another Member from the
other Divisions shall be designated by the Chief
Justice by rotation, according to a reverse order of
seniority, to act as Member of the Division until the
regular Member reports back to work or a newly
appointed Member assumes office, as the case
may be.
RULE 9
FOLDER OF PLEADINGS, COMMUNICATIONS,
DOCUMENTS AND OTHER PAPERS IN A CASE
Section 1. The rollo of a case. The original of all
pleadings, communications, documents, and other
papers filed by the parties shall be encased in a
rollo, which shall serve as their official repository
for purposes of the case. The rollo shall be
properly and sequentially paginated by the Docket
Division of the Judicial Records Office to prevent
intercalation or detachment of a page.
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Section 2. Repository of rollos. All rollos shall
be kept in the Rollo Room in the Office of the
Chief Justice. No rollo shall be taken out except
for delivery to any following: (1) the Judicial
Records Office for attachment of a pleading,
communication, document or other papers filed;
(2) the Office of the Clerk of Court or the Office of
the Division Clerk of Court, for the preparation of
the Agenda and to the Minutes of a Court session,
as well for the attachment of the decisions or
resolutions to the rollo; (3) the Office of the
Member-in-Charge or the Office of the ponente or
writer of the decision or resolution; (4) any Office
or official charged with the study of the case.
All personnel charged with the safekeeping and
distribution of rollos shall be bound by strict
confidentiality on the identity of the Member-in-
Charge or the ponente, as well as on the integrity
of the rollos, under pain of administrative sanction
and criminal prosecution for any breach thereof.
Section 3. The expediente. - The Office of the
Clerk of Court of the Division Clerk of Court shall
provide copies of all pleadings, communications,
documents, and other papers of a case to the
Offices of the Members of the Court for the
constitution of an expediente to facilitate access
and easy reference to a case.
Section 4. Confidentiality of identify of
Member-in-Charge or ponente and of Court
actions. Personnel assigned to the Rollo Room
and all other Court personnel handling documents
relating to the raffling of cases are bound by strict
confidentiality on the identify of the Member-in-
Charge or ponente and on the actions taken on
the case.
Rollo Room personnel may release a rollo only
upon an official written request from the Chief
Judicial Staff Head or the Chief of Office of the
requesting Office. The rollo room personnel may
release a rollo only to an authorized personnel
named in the official written request. All personnel
handling the rollos are bound by the same strict
confidentiality rules.
Section 5. Consolidation of cases. The Court
may order the consolidation of cases involving
common questions of law or of act. The Chief
Justice shall assign the consolidated cases to the
Member-in-Charge to whom the case having the
lower or lowest docket number has been raffled,
subject to equalization of case load by raffle. The
Judicial Records Office shall see to it that (a) the
rollos of the consolidated cases are joined
together to prevent the loss, misplacement or
detachment of any of them; and (b) the cover of
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
each rollo indicates the G.R. or UDK number of
the case with which the former is consolidated.
The Member-in-Charge who finds after study that
the cases do not involve common questions of law
or of fact may request the Court to have the case
or cases returned to the original Member-in-
Charge.
Bar Exam Question 2011
(67) Which of the following is a correct
application of the rules involved in
consolidation of cases? (A) Consolidation of
cases pending in different divisions of an
appellate court is not allowed. (B) The court
in which several cases are pending
involving common questions of law and
facts may hear initially the principal case
and suspend the hearing in the other
cases. (C) Consolidation of cases pending in
different branches or different courts is not
permissible. (D) The consolidation of cases is
done only for trial purposes and not for
appeal.
Section 6. Reconstitution of lost rollo. When a
rollo is lost and a diligent search for it proves futile,
the personnel-in-charge of the Rollo Room shall
immediately inform the Chief Justice or the proper
Chairperson of the Division of such loss. Without
prejudice to any administrative or criminal liability
of the personnel responsible for the loss, the Chief
Justice or the Chairperson of the Division
concerned shall direct the Judicial Records Office
to reconstitute the rollo and request the counsel
and the parties to personally appear and submit,
on a specified date, legible copies of the
pleadings, communications, documents, and other
papers filed in the case, and to authenticate their
respective submissions.
The same procedure shall be observed when the
loss of a rollo occurs in the office of a Member of
the Court. The Judicial Staff Head concerned shall
immediately report the loss.
Entries in the main docket book of the Judicial
Records Office, as well as in the Case4
Administration System, shall be used for
verification purposes.
RULE 10
COURT SESSIONS AND HEARINGS
Section 1. Court sessions. The Court en banc
shall hold sessions every Tuesday. The Divisions
may meet on Monday s and Wednesdays. Special
sessions may be held whenever necessary. In
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every session, proceedings shall follow the
agenda of cases and matters to be taken up.
Actions taken during sessions shall be duly
reflected in the minutes of the proceedings.
Section 2. Confidentiality of court sessions.
Court sessions are executive in character, with
only the Members of the Court present. Court
deliberations are confidential and shall not be
disclosed to outside parties, except as may be
provided herein or as authorized by the Court.
The Chief Justice or the Division Chairperson shall
record the action or actions taken in each case for
transmittal to the Clerk of Court or Division Clerk
of Court after each session. The notes of the Chief
Justice and the Division Chairperson, which the
Clerk of Court and the Division Clerks of Court
must treat with strict confidentiality, shall be the
bases of the minutes of the sessions.
Section 3. Oral arguments. The Court may hear
any case on oral arguments upon defined issues.
The petitioner shall argue first, followed by the
respondent and the amicus curiae, if any. Rebuttal
arguments may be allowed by the Chief Justice or
the Chairperson. If necessary, the Court may
invite amicus curiae.
Section 4. Transcripts of hearings, recording
of oral arguments. Oral arguments shall be
recorded by at least two stenographers,
alternately taking stenographic notes of the
proceedings. The stenographers shall transcribe
their notes and submit the consolidated transcripts
to the Clerk of Court or the Division Clerk of Court
within twenty-four hours from the termination of
the oral arguments. The Clerk of Court or the
Division Clerk of Court shall review the transcripts
of stenographic notes, using the tape or electronic
of the hearing for verification purposes.
RULE 11
AGENDA AND MINUTES OF COURT
SESSIONS
Section 1. Agenda. The Clerk o9f Court and the
Division Clerks of Court shall ensure that all
pleadings, communications, documents, and other
papers duly filed in a case shall be reported in the
Agenda for consideration by the Court en banc or
the Division. The Agenda items for each case
shall adequately apprise the Court of relevant
matters for its consideration.
Section 2. Periods for inclusion of pleadings,
motions, and other matters in the agenda. The
Clerk of Court and the Division Clerks of Court
shall observe the following periods for the
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
inclusion of pleadings, motions, and other matters
in the agenda counted from receipt:
(a) motions for extension of time to file petitions
immediately calendared;
(b) appeals in criminal cases under Article 47 of
the Revised Penal Code, as amended, or under
Rule 122 of the Rules of Court within fifteen days;
(c) petitions under Rules 45, 64 and 65 within ten
days, unless a party asks for the issuance of a
temporary restraining order or an extraordinary
writ, immediate inclusion of the case in the
Agenda; and
(d) other pleadings within ten days.
The foregoing notwithstanding, the Chief Justice
may direct the immediate inclusion of any matter
in the agenda.
Section 3. Minutes of proceedings. The Chief
Justice or the Chairperson of the Division shall
provide the Clerk of Court or the Division Clerk of
Court his or her notes on the actions taken by the
Court. The copy of the Agenda containing the
handwritten notes of the Chief Justice or Division
Chairperson shall serve as the basis for the
preparation of the minutes of the session by the
Office of the Clerk of Court or of the Division
Clerks of Court.
Section 4. Preparation of minutes of
proceedings. Within forty-eight hours from the
time the copy of the Agenda containing the
handwritten actions of the Court is transmitted to
him or her, the Clerk of Court or the Division Clerk
of Court shall submit the draft of the minutes of the
session for the approval by the Chief Justice or
the Division Chairperson. The draft of the minutes
of a Court session shall follow the chronological
sequence of the cases in the Agenda. Excerpts of
the minutes pertaining to a particular case quoted
in a letter of the Clerk of Court or the Division
Clerk of Court to the parties, and extended
resolutions showing the actions of the Court on
the cases on agenda shall be released to the
parties only after the Chief Justice or the Division
Chairperson has approved the minutes in writing.
Section 5. Confidentiality of minutes prior to
release. The Offices of the Clerk of Court and of
the Division Clerks of Court are bound by strict
confidentiality on the action or actions taken by the
Court prior to the release of the resolutions
embodying the Court action or actions.
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A resolution is considered officially released once
the envelope containing a final copy of it
addressed to the parties has been transmitted to
the process server for personal service or to the
mailing section of the Judicial Records Office.
Only after its official release may a resolution be
made available to the public.
Section 6. Preparation of minute resolutions
and unsigned extended resolutions. A minute
resolution quoting an excerpt of the minutes of
Court sessions pertinent to a case shall be
prepared by the court attorneys in the Office of the
Clerk of Court or the Division Clerk of Court and
personally reviewed, approved, and initialled by
the Clerk of Court or the Division Clerk of Court
before submission for final approval by the Chief
Justice or the Division Chairperson. An unsigned
extended resolution may be prepared by the
Office of the Member-in-Charge or by the Office of
the Clerk of Court or Division Clerk of Court, upon
instructions of either the Chief Justice or the
Division Chairperson, who shall approve the
resolution. The Chief Justice and the Division
Chairperson shall order the Clerk of Court or the
Division of Clerk of Court to release duly approved
minute and unsigned extended resolutions.
Section 7. Form of notice of a minute
resolution. A notice of a minute resolution shall
be embodied in a letter of the Clerk of Court or the
Division Clerk of Court notifying the parties of the
action or actions taken in their case in the
following form:
(SUPREME COURT Seal)
REPUBLIC OF THE PHILIPPINES
SUPREME COURT
Manila
EN BANC/_____ DIVISION
NOTICE
Sirs/Mesdames:
Please take notice that the Court en banc/_____
Division issued a Resolution dated
______________, which reads as follows:
"G.R./UDK/A.M./A.C. NO. _________ (TITLE).
(QUOTE RESOLUTION")
Very truly yours,
(Sgd.)
CLERK OF COURT/Division Clerk of Court
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Section 8. Release of resolutions. All
resolutions shall be released within forty-eight
hours from approval of the Minutes of any session
by the Chief Justice or the Division Chairperson.
Resolutions with the following actions shall be
released immediately to the parties:
(a) directing the issuance of extraordinary writs;
(b) granting or denying motions for extension of
time to file petitions or subsequent pleadings, or
other motions of urgent nature;
(c) granting applications for a temporary
restraining order/status quo order/writ of
preliminary injunction;
(d) preventively suspending judges or court
personnel; and
(e) directing any party, the Office of the Court
Administrator, or any other official or agency to
submit a comment, a report or a recommendation
within a non-extendible period.
RULE 12
VOTING REQUIREMENTS
Section 1. Voting requirements. (a) All
decisions and actions in Court en banc cases shall
be made up upon the concurrence of the majority
of the Members of the Court who actually took part
in the deliberation on the issues or issues involved
and voted on them.
(b) All decisions and actions in Division cases
shall be made upon the concurrence of at least
three Members of the Division who actually took
part in the deliberations on the issue or issues
involved and voted on them.1
Section 2. Tie voting in the Court en banc. (a)
In civil cases, including special proceedings and
special civil actions, where the Court en banc is
equally divided in option or the necessary majority
vote cannot be had, the Court shall deliberate on it
anew. If after such deliberation still no decision is
reached, the Court shall, in an original action filed
with it, dismiss the case; in appealed cases, it
shall affirm the judgment or order appealed from.
(b) In criminal cases, when the Court en banc is
equally divided in option of the necessary majority
cannot be had, the Court shall deliberate on it
anew. If after such deliberation still no decision is
reached, the Court shall reverse the judgment of
conviction of the lower court and acquit the
accused.
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(c) When, in an administrative case against any of
the Justices of the appellate courts or any of the
Judges of the trial Courts, the impossible penalty
is dismissal and the Court en banc is equally
divided in opinion or the majority vote required by
the Constitution for dismissal cannot be had, the
Court shall deliberate on the case anew. If after
such deliberation still no decision is reached, the
Court shall dismiss the administrative case, unless
a majority vote decides to impose a lesser penalty.
(d) Where the Court en banc is equally divided in
opinion of the majority vote required by the
Constitution for annulling any treaty, international
or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation cannot be had, the Court shall
deliberate on the case anew. If such deliberation
still no decision is reached, the Court shall deny
the challenge to the constitutionally of the act.
(e) In all matters incidental to the main action
where the Court en banc is equally divided in
opinion, the relief sought shall be denied.
Section 3. Failure to obtain required votes in
Division. Where the necessary majority of three
votes is not obtained in a case in a Division, the
case shall be elevated to the Court en banc.
Section 4. Leaving a vote. A Member who goes
on leave or is unable to attend the voting on any
decision, resolution, or matter may leave his or her
vote in writing, addressed to the Chief Justice or
the Division Chairperson, and the vote shall be
counted, provided that he or she took part in the
deliberation.
RULE 13
DECISION-MAKING PROCESS
Section 1. Period for deciding or resolving
cases. The Court shall decide or resolve all
cases within twenty-four months from the date of
submission for resolution. A case shall be deemed
submitted for decision or resolution upon the filling
of the last pleading, brief, or memorandum that the
Court or its Rules require.
The Member-in-charge, assigned to oversee the
progress and disposition of a case, who is unable
to decide or resolve the oldest cases within that
period shall request the Court en banc for an
extension of the period, stating the ground for the
request. The Court shall act on the request as it
sees fit, according to the circumstances of the
case.
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
Should a Member object to the request, the Court
shall grant a final extension of thirty days within
the Member-in-Charge shall report the case for
deliberation, falling which, the case shall be re-
raffled to another Member who shall submit the
report within thirty days from assignment.
Section 2. List of cases submitted for decision
or resolution. The Clerk of Court and the
Division Clerks of Court shall maintain a system
for apprising the Court periodically, at least six
months before the last day of the twenty-four-
month period for deciding or resolving a case, of
the approach of such cut off date.
Section 3. Actions and decisions, how
reached. The actions and decisions of the Court
whether en banc or through a Division, shall be
arrived at as follows:
(a) Initial action on the petition or complaint. After
a petition or complaint has been placed on the
agenda for the first time, the Member-in-Charge
shall except in urgent cases, submit to the other
Members at least three days before the initial
deliberation in such case, a summary of facts, the
issue or issues involved, and the arguments that
the petitioner presents in support of his or her
case. The Court shall, in consultation with its
Members, decide on what action it will take.
(b) Action on incidents. The Member-in-Charge
shall recommend to the Court the action to be
taken on any incident during the pendency of the
case.
(c) Decision or Resolution. When a case is
submitted for decision or resolution, the Member-
in-Charge shall have the same placed in the
agenda of the Court for deliberation. He or she
shall submit to the other Members of the Court, at
least seven days in advance, a report that shall
contain the facts, the issue or issues involved, the
arguments of the contending parties, and the laws
and jurisprudence that can aid the Court in
deciding or resolving the case. In consultation, the
Members of the Court shall agree on the
conclusion or conclusions in the case, unless the
said Member requests a continuance and the
Court grants it.
Section 4. Continuance in deliberations. The
deliberation on a case may be adjourned to
another date to enable the Member who
requested it to further study the case; provided,
however, that the total period of continuances
shall not exceed three months from the date was
first adjourned. This rule shall likewise apply to
actions on months for reconsideration of the
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decisions and resolutions of the Court, unless a
Member, whose vote in the original decision of a
divided Court matters, is about to retire. In such a
situation, the action on the motion for
reconsideration submitted for resolution shall be
made before his or her retirement.
Section 5. Ponente or Opinion writer.
Immediately upon arriving at a conclusion
regarding the issue or issues in the case, the
Court shall assign a Member to write the opinion
of the Court. Should the majority vote of the court
on such conclusion be different from or contrary to
the conclusion arrived at by the ponente, the
writing of the new opinion shall be assigned to a
ponente chosen by the majority.
Section 6. Manner of adjudication. The Court
shall adjudicate cases as follows:
(a) By decision, when the Court disposes of
the case on its merits and its rulings have
significant doctrinal values; resolve novel
issues; or impact on the social, political, and
economic life of the nation. The decision shall
state clearly and distinctly the facts and the
law on which it is based. It shall bear the
signatures of the members who took part in
the deliberation.
(b) By signed resolution, when the Court
comprehensively resolves the motion for
reconsideration filed in the case or when a
dissenting opinion is registered against such
resolution. The signed resolution shall no
longer discuss issues resolved in the decision
and need not repeat the facts and the law
stated in it. It shall also bear the signatures of
the Members who took part in the deliberation.
(c) By unsigned resolution when the Court
disposes of the case on the merits, but its
ruling is essentially meaningful only to the
parties; has no significant doctrinal value; or is
minimal interest to the law profession, the
academe, or the public. The resolution shall
state clearly and distinctly the facts and the
law on which it is based.
(d) By minute resolution when the Court
(1) dismisses a petition filed under Rule
64 or 65 of the Rules of Court, citing as
legal basis the failure of the petition to
show that the tribunal, board or officer
exercising or quasi-judicial functions has
acted without or in excess of jurisdiction,
or with grave abuse of discretion
amounting to lack or excess of jurisdiction;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(2) denies petition filed under Rule 45 of
the said Rules, citing as legal basis the
absence of reversible error committed in
the challenged decision, resolution, or
order of the court below;
(3) Dismisses an administrative complaint,
citing as legal basis failure to show a
prima facie case against the respondent;
(4) denies a motion for reconsideration,
citing as legal basis the absence of a
compelling or cogent reason to grant the
motion, or the failure to raise any
substantial argument to support such
motion; and
(5) dismisses a petition on technical
grounds or deficiencies.
Section 7. Dissenting separate or concurring
opinion. A Member who disagrees with the
majority opinion, its conclusions, and the
disposition of the case may submit to the Chief
Justice or Division Chairperson a dissenting
opinion, setting forth the reason for such dissent.
A Member who agrees with the result of the case,
but based on different reason or reasons may
submit a separate opinion; a concurrence "in the
result" should state the reason for the qualified
concurrence. A Member who agrees with the main
opinion, but opts to express other reasons for
concurrence may submit a concurring opinion.
The dissenting, separate, or concurring opinion
must be within one week from the date the writer
of the majority opinion presents the decision for
the signature of the Members.
Section 8. Attestations and certifications on
consultations held. In cases decided by a
Division, the Division Chairperson shall issue an
attestation regarding the conduct of consultation
among its Members and the assignment of the
writing of the decision to a Member after such
consultation. In all decided cases, whether by the
Court en banc or by a Division, the Chief shall
issue a certification regarding the conduct of
consultant among the Members of the Court and
the assignment of the writing of the decision to a
Member after such consultation.
Section 9. Submission of decisions and
resolutions. The original of all decisions and
resolutions as well as separate, concurring, or
dissenting opinions shall be submitted to the Chief
Justice, accompanied by electronic copies. The
Judicial Staff Head of the Office of the ponente or
the writer of the majority opinion shall certify, in
writing, the authenticity of the electronic copies,
which shall be placed in a separately marked,
dated, and signed envelop.
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Section 10. Promulgation of decisions and
resolutions. The Clerk of Court or the Division
Clerk of Court shall promulgated every decision or
resolution within forty-eight hours from receipt of
the same from the Office of the Chief Justice,
indicating the date and hour of promulgation and
affixing his or her signature underneath such date
and hour. In the absence of the Clerk of Court, the
First Division Clerk of Court shall promulgated the
decisions of the Court en banc.
Section 11. Authentication of decisions and
resolutions. All decisions, resolutions, and other
Court issuances shall be released to the parties
concerned only after these shall have been
authenticated by the Clerk of Court of Division
Clerk of Court through a bar code at the bottom of
each page, which he or she shall personally affix,
or by other means to protect the authenticity and
integrity of such document. They shall also initial
every page of per curiam decisions, minute
resolutions, and unsigned extended resolutions.
RULE 14
HANDLING AND DISSEMINATION OF
DECISIONS AND RESOLUTIONS
Section 1. Promulgation. A decision or
resolution shall deemed promulgated on the date
it is received and acknowledged by the Clerk of
Court or Division Clerk of Court from the Office of
the Chief Justice or the Division Chairperson.
Section 2. Report of promulgation. Within
twenty-four hours from the promulgation of a
decision or resolution, the Clerk of Court or the
Division Clerk of Court shall formally inform the
Chief Justice or the Division Chairperson of such
promulgation.
Section 3. Electronic dissemination of decision
or resolution. Upon receipt of the report of
promulgation, the Chief Justice shall direct the
Chief Justice’s Staff Head to deliver immediately
the magnetic or electronic copy of the decision or
resolution to the Management Information
Systems Office (MISO).
Section 4. Responsibilities of the MISO. Upon
receipt of a copy of a promulgated decision or
resolution, the MISO shall
(a) log the date and time of receipt;
(b) format the decision or resolution in such a
way as to make it readable on the Supreme
Court website;
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
(c) scan any handwritten notes on the
signature page, such as "In the result," and
include signature page with the same
handwritten notes for posting;
(d) take note of any typographical error in the
magnetic or electronic file of the decision or
resolution, and immediately bring it to the
attention of the writer of the decision or
resolution, or the Chief Justice in case of a per
curiam decision or when the writer has ceased
to serve the Court;
(e) immediately furnish the Library with soft
copies of all decisions and resolutions for
archival purposes.
Section 5. Service and dissemination of
decisions and signed resolutions. The Clerk of
Court or the Division Clerk of Court shall see to
the service of authenticated copies of the
promulgated decision or signed resolution upon
the parties in accordance with the provisions of
the Rules of Court. The Clerk of Court of the
Division Clerk of Court shall also immediately
provide hard copies of the same to the Public
Information Office, Office of the Court
Administrator, Office of the Chief Attorney,
Philippine Judicial Academy, and the Library.
Section 6. Safekeeping of original hard copy of
decision and drafting of syllabus of each
promulgated decision. As soon as hard copies
of the decision or resolution shall have been
served on the parties and disseminated in
accordance with these Rules, the Clerk of Court or
the Division Clerk of Court shall deliver to the
Office of the Reporter (a) the original hard copy of
each signed decision or resolution for
safekeeping, and (b) a reproduction of such hard
copy for the preparation of the concise synopsis
and syllabus of each decision or resolution duly
approved by the writer of the decision or by the
Chief Justice if the writer has retired or is no
longer in the judicial service, prior to publication in
the Philippine Reports. The Office of the Reporter
shall (a) see to the secured safekeeping of original
decisions that shall be collated and bound on a
monthly basis, and (b) be responsible for the
updated publication of the Philippine Reports.
Section 7. Publication of decisions and
resolutions. A decision and signed resolution of
the Court shall be published in the Philippine
Reports, with the synopsis and syllabus prepared
by the Office of the Reporter. Other decisions and
signed resolutions not so published may also be
published in the Philippine Reports in the form of
memoranda prepared by the Office of the
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Reporter. The Public Information (PIO) may
choose and submit significant decisions and
resolutions for publication in the Official Gazette.
RULE 15
FINALITY OF DECISION AND RESOLUTIONS
Section 1. Finality of decisions and
resolutions. A decision or resolution of the Court
may be deemed final after the lapse of fifteen
days from receipt by the parties of a copy of the
same subject to the following:
(a) the date of receipt indicated on the registry
return card signed by the party-or, in case he or
she is represented by counsel, by such counsel or
his or her representative- shall be the reckoning
date for counting the fifteen-day period; and
(b) if the Judgment Division is unable to retrieve
the registry return card within fifteen days from
mailing, it shall immediately inquire from the
receiving post office on (i) the date when the
addressee received the mailed decision or
resolution; and (ii) who received the same, with
the information provided by authorized personnel
of the said post office serving as the basis for the
computation of the fifteen-day period.
Section 2. Motion for reconsideration. A c. the Supreme Court;
motion for reconsideration filed within the fifteen-
day period from receipt of a copy of the decision
or resolution shall stay the execution of such
decision or resolution unless, for good reasons
shown, the Court directs otherwise.
Section 3. Second motion for reconsideration.
The Court shall not entertain a second motion for
reconsideration, and any exception to this rule can
only be granted in the higher interest of justice
by the Court en banc upon a vote of at least two-
thirds of its actual membership. There is
reconsideration "in the higher interest of justice"
when the assailed decision is not only legally
erroneous, but is likewise patently unjust and
potentially capable of causing unwarranted and
irremediable injury or damage to the parties. A
second motion for reconsideration can only be
entertained before the ruling sought to be
reconsidered becomes final by operation of law or
by the Court’s declaration.
In the Division, a vote of three Members shall be
required to elevate a second motion for
reconsideration to the Court En Banc.
Bar Exam Question 2013
XIV. When may a party fi le a second motion
for reconsideration of a final judgment or
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
final order? (1%) (A) At anytime within 15
days from notice of denial of the first motion
for reconsideration. (B) Only in the presence
of extraordinarily persuasive reasons and
only after obtaining express leave from
the ruling court.
(C) A party is not allowed to fi le a second
motion for reconsideration of a final
judgment or final order. (D) A party is allowed
as a matter of right to fi le a second motion
for reconsideration of a judgment or final
order. (E) None of the above. SUGGESTED
ANSWER: (B), A second motion for
reconsideration is allowed but only when
there are extraordinary persuasive reasons
and only after an express leave shall have
been obtained (Suarez vs. Judge Dilag,
A.M. No. RTJ-06-2014, August 16, 2011;
League of Cities vs. COMELEC, G.R. No.
176951, June 28, 2011).
Bar Exam Question 2012
63. Under Rule 52, a Second Motion for
Reconsideration is a prohibited pleading.
However,· where may such Motion be
allowed?
a. the Sandiganbayan;
b. the Office of the President;
d. None of the above.
SUGGESTED ANSWER:
(c), Under Rule 52, a second Motion for
Reconsideration is a prohibited pleading.
However, the Supreme Court en banc may
entertain the same in the higher interest
of justice upon a vote of at least two-
thirds of its actual membership. There is
reconsideration “in the highest interest of
justice” when the assailed decision is not
only legally erroneous but is likewise
patently unjust and potentially capable of
causing unwarranted and irremediable
injury or damage to the parties. A second
motion for reconsideration can only be
entertained before the ruling sought to be
reconsidered becomes final by operation
of law or by the Court‟s declaration.
(Sec.3, Rule 15, Internal Rules of the
Supreme Court). In the Division, a vote of
three Members shall be required to elevate
to a second motion for reconsideration to
the Court En Banc. (Aliviado vs. Proctor
and Gamble Phils., Inc., et al, G.R. No.
160506, June 6, 2011, Del Castillo, J.).
RULE 16
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ENTRY OF JUDGEMENT
Section 1. Entry of judgment. The entry of
judgment covering the final decisions and
resolutions of the Court shall be made in
accordance with the Rules of Court. The date of
entry of judgment shall be the date such decision
or resolution becomes executory, unless the Court
directs its immediate execution.
Section 2. How entry of judgment is made. The
entry of judgment shall be in the form of a
certification indicating the date when the final
decision or resolution of the Court has become
executory and entered in the book of judgments.
The entry shall restate the dispositive portion of
the judgment of final resolution, and be duly
signed by the Chief of the Judicial Records Office
as the Deputy Clerk of Court. The Judicial
Records Office shall furnish the parties with a
photocopy of the entry of judgment, which shall be
authenticated by the Chief of the Judicial Records
Office in the same manner that decisions and
resolutions are authenticated.
Section 3. Time frame for entry of judgment.
Unless the Court requires an immediate entry of
judgment, the Judicial records Office shall enter
judgment within fifteen days from the expiration of
the fifteen-day reglementary period for filling a
motion for reconsideration.
Section 4. Return of case records to lower
court. The records of every decided case shall be
returned to the court where it originated for
execution of judgment on the same day that entry
of judgment is made.
RULE 17
CORRECTION OF TYPOGRAPHICAL ERRORS
IN DECISIONS AND RESOLUTIONS
Section 1. Correction of typographical errors
in decisions and resolutions. Typographical
errors discovered after the promulgation or even
after the publication of a decision or signed
resolution may be corrected as follows:
(a) The Reporter and the MISO shall, with the
authority of the writer of the decision or resolution,
make the necessary correction of typographical
errors. In per curiam decisions and in unsigned
resolutions, or when the ponente has retired,
resigned or is no longer in the judicial service, the
authority shall be given by the Chief Justice.
(b) The correction of typographical errors shall be
made by crossing out the incorrect word and
inserting by hand the appropriate correction
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer
immediately above the corrected or cancelled
word. The writer of the decision or the Chief
Justice, as the case may be, shall authenticate the
correction by affixing his or her initials and the
date or correction immediately below the
correction.
Section 2. Report of corrections made. The
Reporter and the MISO Chief shall submit to the
Court, through the Clerk of Court, a quarterly
report of cases where the decisions and
resolutions have been corrected. The Clerk of
Court shall thereafter include the report in the
Agenda of the Court en banc for confirmation of
the correction.
RULE 18
EFFECTIVITY
Section 1. Effectivity. These Rules shall take
effect fifteen (15) days after publication in a
newspaper of general circulation in the
Philippines.
INSERT PERTINENT PORTIONS OF
JUDICIARY ACT OF 1948.
INSERT ALTERNATIVE DISPUTE RESOLUTION
(RA 9285)
INSERT REVISED RULES ON SUMMARY
PROCEDURE
INSERT AM No. 03-1-09-SC
Alternative Dispute Resolution; Court
Diversion; Stages (2012)
No.VIII.B. Discuss the three (3) Stages of
Court Diversion in connection with
Alternative Dispute Resolution. (5%)
SUGGESTED ANSWER: The three stages of
diversion are Court-Annexed Mediation
(CAM), Judicial Dispute Resolution, and
Appeals Court Mediation (ACM). During
CAM, the judge refers the parties to the
Philippine Mediation Center (PMC) for the
mediation of their dispute by trained and
accredited mediators. If CAM fails, the
JDR is undertaken by the JDR judge,
acting as a mediator-conciliator-early
neutral evaluator. The third case is during
appeal, where covered cases are referred
to ACM. A.M. No. 09-6-8-SC.
Bar Exam Question 2013
X. Which among the following is not subject
to mediation for judicial dispute resolution?
(1%) (A) The civil aspect of B.P. Blg. 22 cases.
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(B) The civil aspect of theft penalized under DEC. 25, 2011
Article 308 of the Revised Penal Code. (C) 12:45 AM
The civil aspect of robbery. (D) Cases
cognizable by the Lupong Tagapamayapa
under the Katarungang Pambarangay Law.
(E) None of the above. SUGGESTED
ANSWER: (C), Under A.M. No. 04-1-12-SC-
Philja, all of the above, except for Robbery
is subject to JDR, to wit: This pilot-test
shall apply to the following cases: (1) All
civil cases, settlement of estates, and
cases covered by the Rule on Summary
Procedure, except those which by law may
not be compromised; (2) Cases cognizable
by the Lupong Tagapamayapa and those
cases that may be referred to it by the
judge under Section 408. Chapter VII of
the R.A No. 7160, otherwise known as the
1991 Local Government Code: (3) The civil
aspect of BP 22 cases; (4) The civil aspect
of quasi-offenses under Titl 14 of the
Revised Penal Code; and (5) The civil
aspect of Estafa, Libel, Theft Moreover,
robbery is considered a grave felony
punishable by imprisonment of more than
six-years (Article 294, Par. 5, Revised
Penal Code).
Under A.M. No. 11-1-6-SC-PHILJA dated
January 11, 2001, only the civil aspect of
less grave felonies punishable by
correctional penalties not exceeding six
years imprisonment are required to
undergo Court-Annexed Mediation (CAM)
and be subject of Judicial Dispute
Resolution (JDR) proceedings. Hence, the
civil aspect of robbery is not subject to
mediation or Judicial Dispute Resolution
(JDR).

NOTE: SUBSTANTIALLY COMPLETED ON:

OCTOBER 29, 2011

Saturday 5: PM

JANNYCER M. AUZA
BACHELOR OF LAWS
POB. SAN MIGUEL, BOHOL
# O9091289995

FINISHED:

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 661

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JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 662