Remedial Law Review Lecture and Recitation Notes

Table of contents

1. CIVIL PROCEDURE

2. CRIMINAL PROCEDURE

3. EVIDENCE

4. SPECIAL PROCEEDINGS

PART I: CIVIL PROCEDURE

Jurisdiction

Stuff to take note of in jurisdiction:

What is the definition of jurisdiction?

Jurisdiction over the case or the subject matter? (Subject matter jurisdiction)

Jurisdiction over the person or the defendant?

Know the rules on filing fees.

N.B. vis-à-vis for criminal cases:

Definition – the same, as conferred by law, except you have to add that venue is

jurisdictional. Territory is intertwined with jurisdiction, unlike in civil cases, where parties can

agree on venue or it can be subject to waiver.

Jurisdiction over the offense. This is essentially the same as jurisdiction over subject

matter.

Jurisdiction over the person. This is jurisdiction over the person of the accused.

Filing fees are not necessary.

What is the definition of jurisdiction?

o The power of the court to hear, try, or decide the case

o As conferred by law

How will the court know that it has jurisdiction?

o From the allegations of the complaint.

Where do you take jurisdiction over the case?

o Conferred by law as well.

o Study BP 129, amended by RA 7691.

Do not assume that RA 7691 tells all. There are other laws too.

What is the jurisdiction of the RTC?

o 1. Right/title/interest over real property, where value is: Value is > 20K (OMM), > 50K

(MM)

Claim for ejectment due to unpaid rentals of over 400K. Which has

jurisdiction?

MTC. Ejectment is always under MTC, regardless of the claim over

unpaid rentals.

Recovery of possession, not ejectment. Fair market value of property is

1.5M. The assessed value of the property is 80,000. Property is located

in MM. Which has jurisdiction?

RTC, based on assessed value (not FMV) which is over 50K.

“Recovery of possession” does not necessarily mean ejectment (ex.

Accion publiciana).

Value is determined by assessed value if it involves right, title, or

interest

Ouano case?

There was discussion whether FMV or assessed value dictates.

Assessed value wins.

o 2. Amount incapable of pecuniary estimation

Examples: rescission, reformation of contract, specific performance

Is expropriation capable of pecuniary estimation?

Expropriation is always filed with the RTC. Though the subject matter

is capable of pecuniary estimation, the action is exclusively instituted

in the RTC.

What about declaratory relief?

RTC always has jurisdiction, and the SC does not except when there

is an issue of constitutionality.

There is no such thing as determination of value; just a determination

of validity.

What about support?

Even if its amount can be determined, the law confers it to the Family

Courts.

Foreclosure of mortgage?

Two views: one says that it’s always with the RTC, because it only

covers the security of the property. The original action is always for

recovery of money.

The other view is that it must be governed by the value of the security.

o 3. Family cases/marriage

Includes support, annulment, nullity, etc.

o 4. Juvenile/agrarian case

o 5. Other claims, where claim exceeds 300K (OMM) or 400K (MM)

The original text gives lower values. When was it adjusted?

Original costs took effect March 25, 1994

1999 – adjusted OMM from 100K to 200K

2004 – adjusted both MM and OMM to 400K and 300K respectively

Always take note of the word “exceeding” so the exact amount is for the lower

court.

o 6. Probate of will, determination of inheritance – same amounts

Considering that the MTC has jurisdiction over probate cases, at times,

what if the value of the estate is 100K? Can the probate of a will be

subject to summary procedure?

No. The rules on summary procedure explicitly exclude probate

proceedings.

Note that the MTC has a number of procedures. There are ordinary

proceedings and summary proceedings, and now, small claims.

So the “not exceeding 100K (OMM) and not exceeding 200K (MM)”

only applies for summary proceedings. But it explicitly excluded

probate proceedings.

What is the jurisdiction of the MTC over small claims?

Not exceeding 100K.

o 7. Admiralty cases – same amounts

In determining the 300K/400K, can you include damages, interest, attorney’s fees,

litigation costs, etc?

o NO. Only limit the amount to the demand or the claim.

o But remember that there can be a principal action for damages, in which the amount

of damages claimed determines the amount. This is not covered by RA 7691, this is

covered by 95-9-94.

Small claims

o What is the amount?

Not exceeding 100K.

o Is there a distinction between OMM and MM in small claims?

No.

o What should be included in the 100K?

The claim itself.

Exclusive of damages

What if the principal action is for damages?

Does not apply. Actions for damages are not covered by small claims

actions, because these have to be ascertained. These are not akin to

sum-of-money cases.

o Does it cover quasi-delicts?

Yes. (Covers: fault/negligence, quasi-contract, or contract)

o What if it arises from commission of an offense?

Yes – for the civil aspect of such (fault/negligence).

Just remember that when you file a criminal case, the civil aspect is likewise

filed (unless reserved, waived, or filed ahead). So it cannot be the subject of

small claims.

o Do you need a lawyer to file the complaint? Do you need to prepare a regular

complaint.

No need for a lawyer. There is also a standard form provided.

o How will you address the problem where the claim is for sum of money not

exceeding 100K, and it is outside MM? There is an overlap here between

summary procedure and small claims procedure. Which is preferred?

This is still open for discussion, and is not yet clear.

Sir suggests that the option is upon the complainant, since there is

concurrent jurisdiction of both small claims court or court of summary

procedure.

N.B. Sec. 21 of BP 129, as amended, provides that the RTC has concurrent original

jurisdiction for:

o 1. Certiorari, prohibition, mandamus, quo warranto, habeas corpus, injunction,

enforceable within respective regions

o 2. Actions affecting ambassadors, other public ministers, and consuls

What is the MTC jurisdiction?

o Just the opposite of everything in RTC

o Then just add ejectment/unlawful detainer

What is the jurisdiction of the CA?

o It has both original and appellate jurisdiction.

o Original: habeas corpus, habeas data, certiorari, prohibition, mandamus, quo

warranto, writ of amparo, annulment of judgment

N.B. Its original jurisdiction is exclusive as regards annulment of judgment of

RTC

o Appellate: ordinary appeal (notice of appeal), petition for review, over quasi-judicial

bodies

What is the jurisdiction of the SC?

o Also both original and appellate jurisdiction.

o Original: habeas corpus, habeas data, certiorari, prohibition, mandamus, quo

warranto, writ of amparo, disciplinary actions over PLUS –

Actions against members of the Bar [concurrent with IBP];

actions against ambassadors, public ministers, consuls, etc.;

constitutionality of treaties, laws, proclamations, etc.;

declaratory relief only when there is a question of constitutionality

o Appellate:

decision of CA, decision of CTA en banc, decision of SB, decision of RTC on

pure questions of law;

REMEMBER this motherhood statement: the only way to go up to the SC is

for petition for review on certiorari (RULE 45). This applies to civil and

criminal cases, except if the penalty in a criminal case is death, RP, of life

imprisonment.

Jurisdiction over the person of the defendant:

o 1. Voluntary appearance

By submitting to the jurisdiction of the court; ex. Appearing in court or filing an

answer or filing motion for extension of time without disputing the court’s

jurisdiction

o 2. Proper service of summons

Rule 14

Filing fees:

o Rule #1: payment of filing fees is jurisdictional in civil cases

o Rule #2: how does the court determine filing fees?

You include interest, damages, attorney’s fees etc. – pay everything that you

allege for court fees

But for jurisdictional purposes, just the principal claim

o Rule #3:

Sun Insurance

Filing fees must be paid within prescriptive period or reglementary period (for

appeals or compulsory counterclaims), or else it is deemed prescribed

o Rule #4:

Alday v. FGU Insurance

Permissive counterclaims require docket fees

The claim does not arise from the principal action, but involves the

same parties. This could easily have been filed separately.

Compulsory counterclaims do not require docket fees

BUT read Korean Technologies case of 2009 – this is how you answer the

question whether compulsory counterclaims require filing fees

From nowhere, this case required that even compulsory

counterclaims have docket fees paid. Korean Technologies cited

Rule 141.

But in practice, based on an SC Resolution, the collection of filing fees

on compulsory counterclaims is suspended. This has not been lifted

yet.

Alday: Payment of filing fees for compulsory counterclaims is not

required. But you have to take note of Korean Technologies now

o Lien on the judgment?

If there are damages granted to the complainant, but there has been lack of

payment of filing fees. The payment of docket fees is a lien on the damages.

What if the claim has already ripened upon the filing of the complaint,

but by omission, but you were not able to allege it. Can this be a basis

for a lien on the judgment?

Proton Pilipinas v. Banque Nacional

There was a claim that has ripened but was not included, and there

were interests that would ripen once the action is pending.

SC said that a claim ripened during the pendency of the case, it can

be a lien on the judgment.

But if you did not allege it, the court cannot grant an award because

you did not pay docket fees.

o What is the rule on deficient or insufficient payment of filing fees?

Rivera v. Del Rosario

You have to pay full filing fees. The deficiency must not be based on the fault

of complainant. But if the fault lay on the wrong assessment of the clerk of

court, there is a chance to pay the deficiency.

Jurisdiction is not automatically lost. Clerk of court makes a deficiency

assessment.

There must be no intention to defraud.

Thornton:

o Husband filed for habeas corpus in RTC Makati to recover child from wife

o What are the two kinds of habeas corpus?

N.B.: there are two kinds of habeas corpus – custody of minors and regular

habeas corpus in the Rules of Court

o RTC Makati dismissed the case because the child was allegedly in Basilan.

o What is the effectivity of writs of habeas corpus?

N.B.: Effectivity of writ issued by regular court only enforceable in the

territorial jurisdiction. But CA and SC – everywhere.

o Filed with the CA, but was denied because the RTC (Family Courts) have original

jurisdiction over custody of minor Habeas Corpus cases.

o HELD: Can file with CA. It has jurisdiction. SC has jurisdiction, too. The CA and

SC have concurrent jurisdiction over habeas corpus cases.

o But always remember that when you talk about concurrent jurisdiction, you still have

to follow hierarchy of courts.

Herrera v. Bollas

o Ejectment case (1 year period). Filed within the proper period, but the complaint was

amended to add additional defendants beyond the 1 year period. Does the court still

have jurisdiction?

o After the lapse of the year period for ejectment, has the claim prescribed?

No. N.B. One year period is not prescriptive period. You just file action

pubiciana with the appropriate court (RTC or MTC, depending on the

assessed value), not the MTC by default (for ejectment).

o HELD: MTC still had jurisdiction for ejectment (based on original complaint.)

Oca:

o Repetition of Tijam v. Sibonghanoy – estoppel by laches. After active participation in

a case, you cannot question the court’s jurisdiction anymore.

o Went up to the SC through Rule 43 (appeal to CA from a QJA)

Usually decisions of QJA go up to the CA under Rule 43. What are the exceptions?

o 1. HLURB decisions, as provided in charter, appealable to the Office of the President

o 2. CTA decisions, under amended rules, appealable to the CTA en banc, then SC

o 3. NLRC decisions, although by a QJA, are reviewable by the CA although not under

Rule 43, but Rule 65 (GADALEJ).

o 4. OMB decisions – go to the CA, under Rule 43, for administrative cases. But if

there is GADALAEJ, go to the SC, under Rule 65.

Mijares:

o Which court has jurisdiction over enforcement of foreign judgments?

RTC, because enforcement of foreign judgments are incapable of pecuniary

estimation.

ALWAYS, regardless of amount of judgment, since it is not based on the

amount of the claim.

In this type of action, you don’t need to prove the facts again, etc.

o Marcos’s group that docket fees must be based on the value/amount of the

claim, which is up to the Billions. Is this correct?

This rule applies to money claims against an estate, but without judgment yet.

Here, there already was a judgment in DC of Hawaii.

o How do you impugn a judgment?

Lack of notice

Lack of jurisdiction

Collusion

Fraud

o What is the rule on Arbitral awards?

These must be should be enforced or recognized

An arbitral award is not a foreign judgment (Under ADR Rules)

Zamboanga Barter Goods:

o N.B. Rule 65 is not an appeal. It is a special civil action.

o Being one, RTC, CA, and SC have concurrent jurisdiction. When you discuss

concurrent jurisdiction, you cannot avoid discussing hierarchy.

o But when you talk about appeals, no need to consider hierarchy. The law already

makes a decision for you.

Actions

What are the kinds of actions?

o Civil

Protection or enforcement of a right, or prevention or redress of a wrong

Two types?

Ordinary

Special

o Criminal

Once the information is in court, only then does it become a criminal action,

that has already been prosecuted by the State through the prosecutor.

o Special proceedings

Establishes a right, status, or condition

Are civil actions always based on a cause of action?

o No.

Distinguish ordinary civil action from special civil action?

o There is Cause of Action in ordinary civil action.

o Ex. Special Civil Action – like declaratory relief does not need cause of action

Requisites of cause of action?

o 1. Right of one party

o 2. Obligation of the other to respect

o 3. Breach – MOST IMPT!

Is splitting cause of action a ground for MTD?

o No it is Res Judicata and Litis Pendentia

Can there be joinder of cause of action?

o Yes.

o BUT it is not mandatory.

Does there have to be just one breach or numerous violations?

o Numerous.

o For every cause of action, there is one breach.

o For as many breaches as there are, there are as many causes of action.

If there is a claim for sum of money, and several claims for damages (moral,

exemplary, etc.) – are there multiple causes of action?

o No. Just one, because claims for damages are incidents of the one breach (failure to

pay).

There are three promissory notes, with amounts of 50K, 100K, and 200K, and there is

just one loan. There was failure to pay. How many causes of action do you have?

o Three PNs, three causes of action.

Can there be joinder of alternative causes of action?

o Yes. Example is shipping of goods. First cause of action is based on breach of

shipping contract. In case it is void, the alternative is to sue based on quasi-delict.

If you join cause of action should it arise from the same series of transactions, or can

it be totally unrelated?

o Scenario 1: X versus Y (just two parties). Can join as many causes of action, even if

totally unrelated.

o Scenario 2: X versus ABCD (multiple defendants). Can only join the causes of

action if it complies with the rule on PERMISSIVE JOINDER (series of actions arising

from the same facts or law – Rule 3 Section 6)

Can you join ordinary civil actions with special civil actions?

o No.

Can you join two special civil actions?

o No. Because they have their own special rules.

Can you join recovery of sum of money and ejectment?

o No. Ejectment is summary proceeding, so it has its own rules.

What is the totality rule?

o When all of the claims are claims for sums of money, even if one claim falls under

the jurisdiction of the MTC but the rest may fall under the RTC, what controls is the

sum of all claims.

o But you cannot do this when not all are for sums of money.

There is a sum of money claim and recovery of property in Cavite. Can you join the

action in Cavite?

o Note: sum of money is determined by amount (personal). Recovery of property is

determined by location of the property (real).

o N.B. as well that venue is not jurisdictional in civil cases, unlike criminal cases. Note

as well that venue is waivable.

o Answer: Theoretically, you can join. But the other party is expected to file a motion

to dismiss on the ground of improper venue. FOLLOW THE GENERAL RULE: The

higher court absorbs the claim (RTC > MTC).

What is the rule on jurisdiction over counterclaims?

o In the RTC, there is no limit to the counterclaim. In the MTC, the counterclaim is

limited to the jurisdiction of the inferior court.

o What happens to the balance?

It’s lost. So it’s better to file a separate action in this scenario.

Is misjoinder of cause of action a ground for its dismissal?

o No, it will NOT cause dismissal of the principal action.

It is severed and these proceed with separately.

Although there can only be separate proceeding when there is separate filing.

o The court is not duty-bound to proceed with it, especially when it appears that it has

no jurisdiction.

What is a special civil action?

o Covered by special rules.

Parties

Who can be parties to an action?

o Natural persons

o Juridical persons

o Those authorized by law

What is the general rule?

o All those with capacity can be a party.

o For natural persons, that is the age of majority.

Can a six year old boy be a party?

o Yes, but with assistance of parent, guardian, or guardian-ad-litem.

o A minor can sue, a minor can be sued if assisted.

What is the rule on married parties?

o Sue and sued jointly.

o What are the exceptions?

Judicial separation of property

Abandonment

Exclusive property of spouses

Involving practice of profession

What if the natural person is incapacitated?

o Can sue and be sued, but must be assisted.

o What if the person becomes incapacitated (supervening incapacity), will the

case be dismissed?

No. Sec. 18 provides that the court will provide assistance.

When can we say that a juridical person has capacity?

o Duly incorporated and registered with the SEC.

[Mild segue into summons] If the defendant is a natural person, how do you serve

summons?

o Priority is personal service. It must be served to the persons, wherever he may be

found. (Ex. The “James Yap” rule – they tried serving it to him in Araneta)

o If he cannot be found, substituted service to a a) person of sufficient age and

discretion and b) residing therein. Either residence or office.

What is “sufficient age and discretion”? Recent ruling says age of

majority.

Should not be a transient. Must reside therein.

Can a foreign corporation sue and be sued?

o If it’s an isolated transaction, a foreign corporation can sue and be sued.

o If it’s doing business but not licensed, it CANNOT sue, but can be sued.

o If it’s doing business and is licensed, it can sue and be sued.

Service of summons to a domestic corporation?

o Rule 14, Sec 11

How do you serve summons to a foreign corporation?

o Resident agent – one named to receive summons

o Representatives and officers found in the Philippines (if it has a branch, for instance)

What is a non-juridical entity? What is the rule? (Ex. Toro Boys)

o No separate juridical existence.

o They can be parties, as defendants, and named as such (under the name under

which they are generally and commonly known).

o They CANNOT institute an action as a non-juridical entity. They have to institute it

individually.

How do you serve summons to a non-juridical entity?

o To anyone or person in charge of the office.

Who are those authorized by law? Give examples.

o Political parties

o Labor unions

o Archdiocese

o Estate

How do you serve summons?

o Depending on the entity – they have different rules.

Can you serve summons to a natural person in prison?

o Yes. Serve it to the warden.

For public corporations?

o Province – executive head (governor)

o City – city mayor

o Municipality – municipality mayor

Who is a real party in interest?

o A party who stands to be benefitted or prejudiced by the judgment.

Does the concept extend even to defendants and third party plaintiffs/defendants?

What about an intervener?

o The law does not limit it to plaintiffs only – it uses “party” as a generic term, so it can

encompass any party impleaded, if he will benefit or be injured.

Does this concept of real party in interest apply to all cases?

o No. The concept of real party in interest will only apply to private suits.

o Does it apply to a taxpayer suit?

No. Locus standi applies here.

o Does it apply to criminal cases?

[Not answered, but I think not]

o What is the difference from legal standing/locus standi?

This is from public suit filed by a private party. There is a broader policy

concern here, even if there can be benefit or injury as well.

o A Congressman does not believe in the act of the President, so he questions it

as part of his legislative prerogative. Is he a RPII?

No. Locus standi applies as well.

Thus, differentiate RPII from locus standi:

o Locus standi pertains to acts of government. By reason of this act, you suffered

injury.

o You do NOT use legal standing in private suits. Only in public suits.

Who is a necessary party?

o A) They are not indispensable, B) but ought to be joined if one needs complete

determination of the case.

Who is an indispensable party?

o If not impleaded, there can be no final determination.

o N.B. The codal does not use the word “complete.” So they are compulsorily joined.

What if there is a suit against joint debtors?

o The other parties not sued are necessary parties.

o Can you sue one of them only?

Yes. The court can issue a valid judgment, although not complete.

o Can you then proceed against the other one, though not impleaded at first?

Yes.

What if there is a solidary obligation, not joint? Ex. X and Y solidarily owe Z PHP

100,000. Z sues.

o [Neither necessary nor indispensable (?)]

o Can you sue X only?

Yes.

o Can there be judgment?

Yes, because the obligation is joint and several (solidary).

o Can you sue Y later on, having recovered from X?

No, because you recovered already.

o Can you sue at the same time?

Yes. The case can proceed against either, or both.

There is an action for recovery of title AND possession. X holds title; Y has

possession of the property. The action is just for recovery of title. Can you sue X?

o Yes, because X is the proper party.

Same facts. Can you sue Y for recovery of title, without suing X?

o No. Y is a mere possessor. The court cannot render judgment without impleading

X. X is an indispensable party in this case.

What is the failure of failure to implead?

o If it is a necessary party, the general rule is that failure to implead is non-prejudicial.

There is no waiver of right to implead. There is no waiver UNLESS there is an order

to implead from the court.

o If it is an indispensable party, the court should order that the indispensable party be

impleaded (Domingo). If despite this order to implead, the plaintiff did not comply,

the case should be dismissed.

o What if the court did not notice non-joinder, and thus did not order to implead

the indispensable party, and renders a decision?

The judgment is null and void.

When is there substitution of parties in a civil case? There are three.

o 1. Death

Who should die?

Any party. The law does not distinguish.

This is the most common.

o 2. Change of holder of public position (death, resignation, removal, cease to hold

position)

This is a very limited application, since it just applies to public officers.

o 3. Transfer of interest

What are the requisites of substitution by death?

o 1. A party dies

o 2. The pending action is not extinguished by reason of death (IMPT)

o Why does the law need to say this?

Because there are actions that are extinguished by death. Examples are

actions that are purely personal to the party

Give examples.

Ex. Contract for Michael Jackson to sing in a party.

Ex. Receipt of a widow of support. When she dies, the support from

widower’s estate is gone.

What is the duty of the counsel after death?

o 1. Give notice of death of the party within 30 days.

When is the 30 day period counted?

From the FACT of death, and not from the knowledge thereof.

o 2. Give names and addresses of the legal representatives

Who should be legal representatives?

Legal heirs, administrator, or executor

N.B. The law provides for legal heirs, because there is procedure to

be done before appointment of administrator or executor (ex. probate

of the will for the latter).

o 3. Court orders substitution and for the substitute to appear

There is action of A and B against C, D, and E. What if E dies?

o The counsel of E names a substitute. The court will then act accordingly.

Same facts. However, there was no successful substitution (i.e. the duties were not

complied with). What happens?

o There can be a valid judgment, but only against C and D.

o There can be no valid judgment against E.

Same facts. No substitution of E either. But C and D are incidentally, heirs of E. Can

there be a valid judgment as to C and D? Is there a need for substitution?

o There is still a need for substitution, even if C and D are already parties. That C and

D are incidentally E’s heirs as well does not change the result.

o This is the Brioso case. There is valid judgment only against C and D. It is wrong to

say that C and D automatically substitute for E. There are other heirs who are

affected by this improper “automatic” substitution.

o [Non-recitation question – what is the effect if E is necessary? If E is

indispensable?]

Relate the provisions above. If necessary, you can subsequently file a suit

against E’s heirs to complete the judgment. If indispensable, the judgment is

null and void, even against C and D.

What are the requisites for substitution of public officer?

o 1. Removal/death of public officer and appointment of successor within 30 days

unless otherwise provided

o 2. Successor adopts, continues, or threatens to continue the action sued against

o 3. There is substantial need to continue the action

Substitution is no automatic. What are needed to be done to substitute the new

public officer?

o 1. Give notice to the new public officer

o 2. Opportunity to be heard for the new officer

Mere fact that he is inclined to continue the action of the predecessor is not

enough

Give an example of transfer of interest.

o A sues B for judgment for sum of money based on contract. B assigns the contract

to C and C accepts.

o Can the case continue against B despite the transfer of interest?

Yes.

o Can the court order that C be impleaded?

Yes. But there is no substitution here. C is just joined.

o How then can there be substitution?

The court has to order a substitution, not mere impleading. BOTTOM LINE:

there has to be a court order.

In case of death of a defendant in a sum of money case, will there be substitution?

(VERY IMPORTANT)

o Section 20. It will NOT go to the heirs, but it will continue against the estate.

(Remember Succession!)

o This is the special rule against sum of money cases.

o Ratio for this?

Because you ultimately deal with the executor or administrator anyway.

But it’s wrong to say there is substitution, because the law does not mandate

it.

o This position is further supported by Rules 86 and 87.

o What are the requisites for this rule to apply?

1. The DEFENDANT must die

2. It must be a sum of money case based on contract

o What if the plaintiff dies?

The general rule will apply, even if it’s a sum of money case.

Indigents – Algura v. Local Government of Naga: Resolves the apparent conflict

between Rule 3, Sec. 21 and Rule 141, Sec. 19.

o If the indigent fits within the parameters set by Rule 141, Sec. 19, then the court

must declare him to be an indigent.

What is the Rule 141 requirement?

Gross income + family income does not exceed twice of monthly

minimum wage

And owns real property whose FMV is less or equal to PHP 300K

o If he doesn’t, he falls under Rule 3, Sec. 21 and must apply for indigent status.

(“Indigency test”) Here, the court exercises discretion as to whether you are an

indigent or not.

o So can a person owning real property with FMV of PHP 300,001 be declared an

indigent?

Yes, but under the indigency test.

If you are declared an indigent, you do not pay filing fees. But what happens when

there is a judgment?

o There is a lien, as regards filing fees.

What is the rule on stenographic notes?

o It is free. There is no lien on the judgment.

What happens when the court finds out you are not an indigent?

o The court can require you to pay.

o What if you refuse to pay?

The court can order execution.

o What if you fail to pay or ignore the execution?

The court can dismiss the case, for failure to comply with an order of the

court.

Planters v. Fertiphil:

o Planters did not pay appellate docket fees. But this was in 1992, prior to the 1997

Rules on Civil Procedure, which began the requirement of appellate docket fees.

The 1997 Rules must not apply retroactively.

Atlantic Erectors:

o Collection for sum of money over construction project over property. The plaintiff

attempted to make an annotation of lis pendens on the title of the property. HELD:

You cannot do this. This is an action in personam, not in rem, as regards the

property.

o A notice of lis pendens will only lie if it is a right, title, or interest over real property.

Outside of this, you cannot avail of a notice of lis pendens.

Diaz:

o Rule 43, up to the CA. Attached duplicate of decision, but not pleadings. This is

enough for CA to give due course to the petition.

PDIC:

o The main case is for declaratory relief (SCA). The question is whether there can be

execution of such (yes). There can also be a counterclaim, even if declaratory relief

is an SCA and the counterclaim is an ordinary action.

Tolentino v. Natanauan:

o There is no res judicata between recovery of possession and nullity of deed of sale.

o Requisites of res judicata?

A) Former judgment final

B) Court had jurisdiction

C) judgment on merits

D) Identity of parties, subject matter, causes of action

Venue

Do not make the mistake of confusing venue and jurisdiction in civil procedure. Jurisdiction

is the power given by law to hear, try, and decide cases. Knowing what court is one thing,

but knowing where to file it is different.

There was an agreement to development of a piece of land in Tanay, Rizal to become

a memorial park. The duty of the owner (living in Quezon City) of the piece of land is

to provide property. The duty of the developer (located in Pasig) is to dig up the land,

put drainages, etc. The owner of the land died, and the heirs are now substituting for

their father. They want to rescind the agreement to develop. Where do they file?

o There are two steps in venue problems. First, determine: is it a real action or a

personal action?

It’s a personal action. It involves rights and obligations of parties, although

the subject matter involves land.

o Where do you file it?

At the option of the plaintiffs. Either in their principal residence (Quezon City)

or the defendant’s (Pasig)

o Which court has jurisdiction?

RTC, because it is an action incapable of pecuniary estimation (rescission)

Aileen Marcos case:

o In cases where there are several plaintiffs and defendants, the codal provides the

word “principal” before plaintiff and defendant, so that the plaintiffs will not file the

case before far-flung or inconvenient areas.

o In this case, Aileen Marcos is filing a case to enforce a trust, and some nominees live

in Batac, Ilocos. Marcos lives in Makati. She filed in Batac.

o HELD: Should have filed in Makati, because she is the principal plaintiff.

Where do you file an action for extra-judicial foreclosure?

o Extrajudicial foreclosure of mortgage is NOT a judicial action. It’s not covered by the

Rules of Court, but Act 2135. For purposes of EJ foreclosure, it should be filed

where the property is located.

o But the mere filing and payment of fees (for multiple properties in various areas) can

be paid in one office, as long as it can be established that it covers all areas. But the

actual sale will only be done in the place where the properties are located.

What about judicial foreclosure?

o Rule 68 does not provide for venue for this SCA. But it is filed where the property is

located.

o But if it is for collection of a sum of money, file it as a personal action.

Where do you file an action for nullity of marriage?

o RTC where the plaintiff resides, where the defendant resides, or where their conjugal

home is located (special rule in Family Courts issuance)

What should be your first consideration? What is the general rule?

o Rule 4 (rules of venue) applies in general, UNLESS a specific law provides

otherwise.

On specific venues, as provided by law –

o Give an example.

Actions for Quo warranto – if the Solicitor general commences it, in can be in

the SC, CA, or RTC of Manila

o What if you want to file an action for perpetuation of testimony?

This is covered by Rule 24 (deposition before action or pending appeal).

Special rule: Place of residence of any expected adverse party or defendant

o What about adoption?

Where the prospective adoptive parents reside

o What about probate?

Where the deceased last resided at his time of death

o Writ of habeas corpus on residence of minors?

General rule: RTC where the minor is supposed to be found

Thornton: But if unknown or cannot be found, in the CA or SC

Can the parties stipulate on venue?

o Yes, they can.

o In an ejectment case, the property is located in Cebu. Plaintiff resides in

Makati, defendant in QC. Where do you file it?

In the MTC of Cebu. Residence in general does not matter.

o What if I file it in Makati?

Yes.

But what will you expect?

Motion to dismiss on the ground of wrong venue, coming from the

defendant.

But what if there was no motion to dismiss, and in the answer, there

was no allegation of improper venue?

There is waiver on the rules of venue.

Remember Rule 9, Section 1. This is the general rule on waivers and objections on

grounds not raised in an answer or MTD. Failure to raise these grounds in MTD or answer

is a waiver. Exceptions:

o 1. Lack of jurisdiction over the subject matter

o 2. Litis pendentia

o 3. Res judicata

o 4. Statute of limitations

What is the distinction that you have to make as to stipulations?

o If there are no words of exclusivity, then it is only an additional venue.

o If there are words of exclusivity (ex. “can only be filed in Cebu, waiving all other

venues”), then you can only file it there.

o (PBCom v. Lim is an example of a case with restrictive words)

In this case, the stipulation on venue in the principal agreement (PN) applies

to the accessory contract, which is the surety agreement – which cannot exist

without the prior agreement.

What if there was no Motion to Dismiss and no answer filed? Apparently, the

defendant did not notice the improper venue, or he decided to waive it. Can the judge

later motu propio dismiss the case after noticing that the venue is wrong?

o No, he cannot motu propio dismiss the case on the ground of improper venue.

(Gumabon)

Distinguish between wrong venue and lack of jurisdiction (ex. wrongly filing an ejectment

case in the MTC.) Here, while the rules on summary procedure include MTD as a prohibited

pleading, an exception is lack of jurisdiction (contra. wrong venue).

What is the local version of forum non conveniens?

o Prohibited forum shopping (Read Bank of America)

Summary procedure

1. Filing of the complaint

o In summary procedure, after filing the complaint, what can the court do?

A) Dismiss the case outright

B) Issue summons

o What is the responsive pleading?

Answer.

Can you file a MTD?

In general, no. It is a prohibited pleading.

When do you file the answer?

10 days, not the usual 15.

o Can the plaintiff file a reply?

No. It’s also a prohibited pleading.

o What if there is no answer?

The plaintiff can file a motion for the court to render judgment.

A motion to declare the defendant in default is a prohibited pleading. Just

ask the court to render judgment.

o After the filing of the last pleading, move on to next stage.

2. Preliminary conference.

o Take note, in SP, it is NOT pre-trial but preliminary conference.

o When does the court set this?

Period of 30 days.

o What happens here?

The parties can compromise, identify issues, etc.

o Can the court render a judgment based on what was presented in the

preliminary conference?

Yes, the court can, if it is convinced at this point in time.

o Assuming there is no judgment in steps 1 and 2, move to the next step…

3. Submission of judicial affidavits or position papers

o Is there a hearing in summary proceeding or trial?

No hearing, no trial.

o Within how many days do you submit affidavits?

Within 10 days

o Can the court render judgment?

General rule: 30 days from the filing of the last pleading

NOT submission for resolution, but submission of the last pleading

Exception: 15 days, if the court asks for further clarificatory documents

What are the prohibited pleadings?

o 1. MTD

Except lack of jurisdiction over subject matter

Or failure to refer to lupon

o 2. Reply

o 3. Bill of particulars

o 4. MR or MNT

o 5. Petition for relief from judgment

o 6. Motion to declare in default

o 7. Third party complaint

o 8. Memoranda

o 9. Dilatory motions for postponement

Does this cover motion for cancellation of hearing?

If is not dilatory. But be careful with this, because the judge has to

determine first if it is dilatory.

o 10. Motion for extension of time

o 11. Petition for certiorari, mandamus, prohibition against interlocutory orders of the

court

o 12. Interventions

Jalique v. Dandan:

o This is a case where the respondents filed a joint counter affidavit in an ejectment

case, rather than a response. The MTC decided in favor of plaintiff. RTC affirmed.

CA moved to have the case remanded to MTC for re-hearing.

o HELD: Valid action by CA. The court interpreted the rules on summary proceeding

liberally here, because there was presence of a responsive pleading anyway and

there was challenge of the material allegations of fact in the complaint. So the MTC

should have considered it.

Bonifacio v. Bellosillo

o The judge was sanctioned here, because there was no answer, and instead of

promulgating judgment, he still called for a preliminary conference.

Pascual v. Jovellanos

o The defendant filed a Motion to Strike Out instead of an answer, which was, in

reality, a motion to dismiss. The judge should not have granted this.

Boy v. CA:

o May the MTC pass upon questions of ownership in an ejectment case?

YES, only provisionally and for the purpose of resolving forcible

entry/unlawful detainer cases. This is a power granted by BP 129.

Macasaet v. Macasaet:

o In the preliminary conference, representatives appeared on behalf of the original

parties (as attorneys-in-fact). This special authorization is a valid cause for someone

else to appear in the plaintiff’s or defendant’s behalf.

o What happens when the plaintiff is absent in preliminary conference?

Case is dismissed

o What happens when the defendant does not appear?

As if he didn’t file an answer. The court can render judgment.

o What is the stopgap?

Have an explanation OR send a representative

o Where does this rule come from?

Provision on authorization does not appear in the rules on summary

procedure. But the SC applied to Rule 70 suppletorily, the rules of Rule 18

on pretrial and appearance by representative.

Small claims

What should a plaintiff file?

o 1. Statement of claim

o 2. Together with certificate of non forum shopping

o 3. Authentic copies of document from which the action stems from (actionable

documents)

Who signs the statement of claim?

o The claimant. No need for the lawyer.

o [Atty. Salvador: maybe this special rule is for bar flunkers to practice, because the

claimant still needs to file certain documents he may not know how to execute]

What happens after?

o Court files notice for defendant to submit response

o Defendant has 10 days to file a response

o What are the formal requirements?

There is already a form provided for the plaintiff and defendant to fill in.

They just need to attach documents.

o Can there be a counterclaim in a small claim action?

Yes. As long as within jurisdiction of the court, and arising from the same

transaction, and does not require joinder of third parties.

And then? [review/cross-check these rules]

o The parties can decide for amicable settlement or judicial dispute resolution (JDR)

o Can a claimant apply as an indigent litigant?

Yes. (Aldura)

o Will there be presentation of evidence?

Yes, but it is not a strict and formal trial. You can only present the evidence

attached to the claims.

o Is there a preliminary conference?

None mentioned.

o Do the parties have to appear?

Yes, or at least their representatives. Failure for the plaintiff to appear leads

to dismissal without prejudice of the claim. Failure for the defendant to

appear has the same effect as not filing a response.

What happens after JDR?

o In a multi-sala court, the executive judge refers to the pairing judge for hearing and

decision within 5 working days from referral

o In a single sala court: Pairing judge hears and decides the case in the court of origin

within 5 working days from referral by JDR judge

Are there prohibited pleadings?

o Same as summary procedure

o Except in MTD, only lack of jurisdiction over the SM is the exception. Failure to refer

to the lupon is not an exception.

Can it be appealed?

o No. By express provision, it is final and executory.

o What then, is the remedy?

Rule 65 (petition for certiorari) – because there is no plain, adequate, speedy

remedy

Pleadings

What must be in the complaint?

o Claims a cause of action

o Must contain allegations – brief and concise statement of ultimate facts, devoid of

evidentiary matters

You can also allege as to fraud, mistake, malice, illegality, condition of the

mind, etc.

As to matters of fraud, how must it be alleged?

o With particularity

As for mistake, how must it be alleged?

o With particularity

If it’s a condition of the mind (malice, intent, knowledge, etc.)?

o Generally

You can also base your claim on an actionable document. How to do you allege it?

o 1. You can attach or append the document

To show the court that this is where your cause of action arises

o 2. You can reproduce the contents of the document in the pleading en toto

(But in practice, just always append anyway)

How do you deny an allegation under an actionable document?

o Specifically denied, under oath

o What is the exception to the oath requirement?

1) When the adverse party is not a party to the instrument

2) When there is an order for inspection and it is refused

What is the effect of failure to specifically deny under oath an actionable document?

o It is an admission ONLY as to the genuineness and due execution of the actionable

document

But what about the rights and obligations of the parties arising from that document?

o It is up to the court to determine it.

What is the period to file an answer?

o 15 days after service of summons

o Could it be 30 days after receipt of summons?

For foreign corporation and service is done to government official designated

by law

What are the defenses available in answer?

o 1) Affirmative defense

If you only hypothetically admit, without raising any defense, what

happens?

In this case, there is no more issue. This will lead to a judgment on

the pleadings (Rule 34)

This occurs when the answer does not tender an issue or admits the

material allegations

o 2) Negative defense

Specific denial of facts alleged essential to the cause of action.

What are the kinds of specific denial?

1) general denial

2) specific denial

3) disavowal of knowledge (lack of knowledge and belief to form a

specific denial)

Is the counterclaim or cross-claim in a separate pleading?

o No.

What is a compulsory counterclaim?

o Arises out of the transaction constituting subject matter of the action

What is a permissive counterclaim?

o Arising from an event unrelated.

What is the period to answer a counterclaim?

o 10 days

o (In practice, you only answer a permissive counterclaim. In practice, a compulsory

counterclaim is not answered.)

What is a cross claim?

o Made against a person/party on the same side.

Can there be a counterclaim defendant cross claim?

o Yes. The counterclaim defendant is the original plaintiff. He can file a cross claim

against a co-party.

Is there a period to answer a cross claim?

o 10 days

Do you need leave of court to file a counter or cross claim?

o No, whether it be a permissive/compulsory counterclaim or a cross claim, no.

For a third party complaint, do you need leave of court?

o Yes. You cannot just file a third party complaint.

o Who is usually the third party plaintiff?

The defendant in the main case, who feels that he should file a complaint

against someone that court has yet to acquire jurisdiction from.

This is the reason why there is need for leave of court. You need to have the

third party impleaded.

Why would you want a third party complaint?

To contribute or indemnify

o Classic case: car crash a hit b hit c. C sued B. B sued A

for indemnification.

Subrogation

Any other similar ground

o What is the period to answer a third party complaint?

15 days, because it is treated as an entirely new complaint

Is the reply a mandatory pleading?

o No.

What is the period to file a reply?

o 10 days.

What do you do in a reply?

o To controvert the new matters raised in the answer

What is the effect of failure to file a reply?

o All new matters stated in the answer are deemed controverted

o What is the reason for this?

[Didn’t answer]

What happens after answer, etc?

o Pre-trial

Three important things:

o Signature, verification, and CNFS

What is the effect of a lawyer affixing his signature in a pleading?

o Indicates that he has read the pleading, and to the best of his knowledge, the

information is correct

o And that the filing of the same is not for the purposes of delay

There are some pleadings that are left unsigned. What happens?

o It has no legal effect at all.

o Is there a way to cure it?

If counsel can show it is due to mere inadvertence and not for delay

o Will the court just give effect to the pleading or will it still require actual

signing?

[Didn’t answer]

If a lawyer changes his address, what is his duty?

o Inform the court. Failure to do so may lead to disciplinary action.

What are the contents of the verification?

o That the affiant has read the pleading and the allegations are true. (Based on

“personal knowledge,” not “information and belief” or “knowledge, information and

belief”)

Must it be under oath?

o Yes.

Is it mandatory?

o No. Only when the law requires you to verify.

o Give examples:

Rule 45 (Petition for review on certiorari)

Rule 65 (Petition for certiorari)

Rules 57-61 (Provisional remedies)

Is it jurisdictional?

o No. Failure to attach is not fatal.

o But why do the SC and CA dismiss cases for failure to attach verification?

Although it can be cured, the court may dismiss a pleading for failure to

comply with procedural requirements.

Who signs the verification?

o The party filing the pleading.

Can the lawyer sign it?

o General rule, no. Unless there is some compelling reason.

o For example, the party’s father is to be buried on the day of filing of the petition – the

court allowed it.

o Also, the distance of the petition from the counsel (ex. the petitioner is in the USA

and the counsel is in Manila, and there are only 15 days to file.)

Can a minor sign?

o Must be assisted.

Can a married person sign by himself or herself?

o One spouse is enough, but only if there is common interest. (N.B. but see note

below)

For co-owners or those in the same residence?

o Signature of one is enough if there is common interest. (N.B. but see note below)

TAKE NOTE: The key when it comes to multiple parties, all of them have to sign. However,

if there is a common interest among the parties, a signature of a number of them may be

enough.

o BUT in practice, do not take chances.

CNFS:

When is a CNFS required?

o For a complaint for other initiatory pleading

o So a compulsory counterclaim does not require a CNFS

What about a juridical entity? Who can sign?

o [Anyone, as long as authorized by a board resolution]

What are the contents of the form?

o Plaintiff/principal party shall certify under oath that he has not filed a similar

complaint involving the same issues in another court, tribunal, QJ agency

o If there is any other pending claim, provide status

o If he learns about similar action, report fact within 5 days to the court

Why does the law require that it is the party that signs?

o Because it is only the party, and not even the lawyer, that knows whether there is

another action.

For those with no separate juridical existence, who signs?

o All the parties, since there is no juridical personality.

What is the effect of absence of CNFS? (Note: non-compliance is different from absence)

o It will be dismissed. It can be re-filed because it is without prejudice.

Can it be amended to cure?

o No, the defect cannot be cured by an amendment. Just re-file.

What is the effect of non-compliance? (Note: this occurs when there is a CNFS, but you

did not respect your commitment under the CNFS)

o Indirect contempt (Failure to comply with order or process of court)

o Administrative and criminal cases (since you lied under oath)

o Dismissal of the case

What if there is willful and deliberate forum shopping?

o (Meaning, it’s not only false, but you also deliberately disregard it)

o Dismiss the case with prejudice

What kind of dismissal?

Summary dismissal – cannot contest

o Placed in direct contempt without opportunity

BPI v. CA

o There was a CNFS filed in the first place. What was not attached was the board

resolution showing the authority of the Vice President to sign the CNFS on behalf of

the company. This authorization was submitted on the MR.

o NOTE: There was a valid CNFS. There was liberal interpretation of this provision

for these reasons.

Donato

o Here, the lawyer signed the verification, not the party. This was validly excused by

the court since the party was in the US, and could not sign the pleading in time given

the 15 day period. There was physical impossibility.

o BUT as a general rule, the lawyer cannot sign.

Young v. Seng

o There was no forum shopping, because the first case was dismissed due to lack of

cause of action. When a case is dismissed because of that, it is without prejudice,

and that party can file the same case again.

o Failure to disclose this fact is not a violation of the CNFS.

OSM Shipping

o Requires a duplicate original or CTC for the decision being appealed (here, NLRC

decision) and not the prior one (Labor Arbiter in this case)

Tan v. Kaakbay

o No need for a CNFS for a compulsory counterclaim

New Sampaguita

o There was no forum shopping here, because the first case questioned whether there

can be a writ of execution when the parties agreed to compromise in the first place,

when the court dismissed the initial case. The second case was whether the court

approved the compromise agreement in the first place. These are different.

Solar

o Is the rule on personal service mandatory?

Yes. The rule is priority is by personal service. If you cannot do it by

personal service, you can do it by registered mail, but you have to make an

explanation.

o In this case, it was made by registered mail and there was no explanation. For this

reason, the decision of the court to allow it was based on its reasonable discretion.

BUT this is not the rule.

Musa

o What are the material dates here?

Period only commences to run from date of receipt of the decision

Date of filing of the MR

Date of receipt of denial of the MR

Amendments and supplements

There is amendment for civil cases and there is amendment for criminal cases.

For civil cases, amendment may either be:

o 1) As a matter of right

o 2) With leave of court

When is it a matter right?

o Before an answer or within 10 days of service of reply

o What do you need to file?

NOTICE to amend

When do you need leave of court?

o After an answer has been made

o What do you need to file?

Motion to amend

For criminal cases, the reference point is not an answer. Instead, it is plea.

Before plea, can you amend?

o Yes, whether as to matter of form or substance

After plea, can you still amend?

o Yes, but only as to matters of form, for as long as it will not prejudice the rights of the

accused

Don’t forget that last bit!

o What is the test when it will prejudice the rights of the accused, even if it’s a

matter of form?

If the original defense of the accused will not change.

What is “amendment to conform to evidence”?

o This is section 5 of Rule 10

o Allegations are found in the body of the complaint/answer. What is alleged must be

proven.

o If the evidence you presented went beyond the allegations, you may file a motion to

amend the pleading to conform to evidence

There are two kinds of amendments to conform to evidence. What are these?

o First kind – no objection on the part of the other party. For this reason, it will be

allowed even after judgment.

o Second kind – if the other party objects, the amendment is left to the sound

discretion of the court.

Can you amend a complaint when it originally has no cause of action?

o If in the first place there is no cause of action, no amendment will cure such an

absence.

o Can the court order an amendment even if there is no application to amend?

1. Yes, if it is a mere formal (typo) amendment

2. For bill of particulars, the court can either order compliance OR an

amendment

3. Motion to dismiss – the court can either grant, deny, or order an

amendment

There was an amendment of an original complaint, which was the basis for the

issuance of summons. If the original complaint is amended and that is granted by the

court, is there a need for issuance of new summons?

o No, if you already lawfully obtained jurisdiction over the defendant through summons

or voluntary appearance.

o It is a question of jurisdiction over the person, not a question of amendment.

o HOWEVER, if there are additional defendants, new summons must be served to

them.

What is a supplemental pleading?

o A pleading filed in addition to a prior one that has been filed, pursuant to new

transactions, occurrences, or events that have arisen.

o Can there be a supplemental complaint?

Yes

o Can there be a supplemental answer?

Yes

o Can there be a supplemental reply?

Yes

o Can there be a supplemental petition?

Yes

So what is the general rule?

o You can file a supplemental pleading as long as there are new transactions,

occurrences, or events that occur after the filing of the first pleading.

o What is the exception?

Usually you cannot do this to the Supreme Court, because you cannot file

something to it unless it asked for it. You would be asked to explain why you

are submitting such.

What is the difference between amendments and supplements?

o Amendments pertain to events, transactions, or occurrences that exist during the

filing of the original pleading, but were not placed in the pleading. There was just an

omission.

May be filed without leave of court (before responsive pleading)

o For supplements, the events, transactions, or occurrence only arose after the filing of

the original pleading.

Always with leave of court

Default

N.B. 1: What is the rule on objections?

o General rule: all objections on grounds not raised in an answer or motion to dismiss

are deemed waived.

o What are the exceptions?

1. Lack of jurisdiction over SM

2. Res judicata

3. Litis pendentia

4. Prescription

o What is the fifth exception provided by jurisprudence?

5. Lack or absence of cause of action

This is different from Rule 16 (that the pleading states no cause of

action)

N.B. 2: What is the rule on failure to allege a counterclaim?

o Any compulsory counterclaim or cross claim not set-up: barred forever

o In special proceedings – a claim against the estate must be made in the period

provided for in the notice. Otherwise it will be forever barred. What is the

exception?

If there was a suit started by the estate against you, the claim can be raised

as a counterclaim.

N.B. 3: How many kinds of default do we have?

o 1. In actions in rem, there is a general order of default.

There are no defendants, so notice is made to the public that all oppositors

have to come forward and object. Otherwise, forever barred.

o 2. Failure to attend during pre-trial

Called “as in default” in the 1964 Rules of Court

If the defendant fails to attend, the plaintiff can present evidence ex parte

When do you know when a party is in default?

o 1. Did not file responsive pleading

o 2. There is proof of such failure

You have to show the return

How can you set aside an order of default?

o 1) File a motion on any of these grounds:

1. Fraud

2. Accident

3. Mistake

4. Excusable negligence

o 2) It has to be under oath

o 3) State that you have a meritorious defense, without necessarily giving an answer

o What kind of fraud is needed?

Extrinsic fraud.

o Is the fraud needed here the same fraud needed for motion for new trial,

petition for relief from judgment, and motion for annulment of judgment?

YES. For all of these, you need extrinsic fraud.

How do you set aside an order of “as in default” [or allowance for plaintiff to present

evidence ex parte for the plaintiff]?

o Saguid: Remedy is to file an MR or relief from order of default also on the ground of

FAME

o Do you have to add that you have a meritorious defense?

No need. You’re already in pre-trial.

Can there be partial default?

o Yes.

o In a case where you file a case against A, B, C, D, and E. E did not file an

answer, while A to D did. Will A to D be allowed to present evidence?

Yes.

o Will E be allowed to present evidence?

No. He is in default.

o Can A to D’s evidence be used against E or in favor of E?

Yes. In fact, E can still win the case along with the others.

Can the court render a judgment after an order of default, without presentation of

evidence ex parte?

o Yes. This is a new provision introduced only in the 1997 Rules of Civil Procedure.

o This has not been asked in the Bar examination yet. So be careful.

Where can there be no order of default?

o 1. Nullification/annulment/legal separation

o Can there be default in Summary Procedure?

No. When there is failure to file answer, there can be judgment rendered by

court.

o 2. Certiorari, Prohibition, etc. Some SCAs require a comment, so there can be no

declaration of default

Are there SCAs where there can be declaration of default?

Yes, like interpleader where the special rules are deficient so there is

suppletory application of the ROC

Cerezo v. Tuazon:

o Order of default – failure to submit an answer, so the defendant is declared in default

o Judgment by default – after the defendant is given notice of the court processes, the

court renders a decision without hearing defendant’s defense, which he lost

o Remedy for an order of default?

Motion to set aside or lift an order of default based on FAME (under oath, and

you have to show you have a good defense)

SSS v. Chavez: This must be accompanied by a verification (under oath),

affidavit of merit (that you have a good defense), and notice of hearing. If this

is missing, the motion is lost.

o Remedy for a judgment by default?

MR or MNT (FAME) within period for filing an appeal

After the reglementary period (i.e. when there is entry of judgment) Petition

for relief from judgment

6 months from entry of judgment AND within 60 days from knowledge

If there is GADALEJ, Rule 65 certiorari

Remington Steel:

o When there are multiple defendants, even if one has already answered, you may

amend the complaint as a matter of right as to the other – since there is no defense

yet that would be affected or altered by the amendment.

Philippine Export and Foreign Loans:

o When it is a dismissal without prejudice, appeal is not a remedy. Your remedy is to

re-file a case or file for a petition for certiorari.

o Amendment to conform to evidence – What if it was not allowed, but the evidence

was proven, can there be a valid judgment based on that evidence?

Yes. It is valid, even if it is not consistent with what was alleged.

Bill of particulars

Can there be Bill of Particulars in criminal cases?

o Yes. Rule 116, Sec. 9.

Only four things to remember in BOP:

o 1. What is the definition of BOP?

o 2. What is the period to file a BOP?

o 3. What is the action taken by the court in BOP?

o 4. What is the consequence of failure to comply with order to file a BOP?

When you file for a BOP, what do you want to achieve?

o A more definite statement of facts that appear in the complaint that are not averred

with sufficient particularity

o You are to identify the defects and the details desired.

Can you file a motion for BOP after an answer has been filed?

o No more, because issues have already been joined.

What is the effect of filing a motion for BOP on the period?

o The period is interrupted upon filing, but you always have at least five days to file the

answer after.

Deadline to file an answer is in 15 days. You received the complaint December 1.

You filed a motion on December 5. How many days do you have?

o TWELVE, not eleven. You don’t count the day causing the interruption. [VERY

IMPT]

o This is the same way you count a motion to dismiss.

[Same facts] If you filed a motion for bill of particulars on December 14, the motion is

interrupted. How many days do you have?

o You still have Five days.

What action can the court take on a BOP if you fail to comply?

o 1. Motion to strike out

o 2. The case can be dismissed (Virata v. SB) – Rule 17, Sec 3: non-compliance with

court order

What if the person fails to file an answer in the time left?

o Will be declared in default

Service and summons

Filing

What are the modes of filing?

o 1. Personal

o 2. Registered mail

Can there be filing by ordinary mail?

o None. Because here there is no way the court can find out when you filed it.

o But there can be service by ordinary mail.

What are the requirements for personal and registered mail?

o PERSONAL: Stamped, dated, and signed by the clerk of court.

o REGISTERED MAIL: Pay for registry receipt and you have to accomplish a return

card

What is the proof that you personally filed?

o Primary: if the pleading is found in the records of the court.

o If it does not appear, you can present the received copy

What is your proof of registered mail filing?

o Registry receipt

o Affidavit of the person mailing

o Return card

Service

What are the modes of service?

o 1. Personal

o 2. Registered mail

o 3. Ordinary mail

What does rule 14 cover?

o 1. Covers party serving to another party,

o 2. party serving to court,

o 3. and the court itself serving notices (section 9)

If the person to whom you are serving is not available, then how do you file

substituted service?

o Delivery to the clerk of court with proof of failure of both personal service and service

by mail.

o There should be proof of both failure of personal service and service by mail.

o [This is different from substituted service of summons]

How do you prove service by ordinary mail?

o Affidavit

What is completeness of personal service?

o Actual delivery

What is completeness of registered mail?

o Actual receipt or 5 days after notice of postmaster

o whichever comes first

What about ordinary mail?

o 10 days after mailing

What are the proofs of personal service?

o Written acknowledgement

o Affidavit of the person serving

o Official return of server

This refers to service by the court

What are the proofs of registered mail?

o Registry receipt

o Return card

What are the proofs of ordinary mail?

o Affidavit of person serving

What if I used registered mail, but I got back the return card ALONG WITH the

document itself (showing it is unclaimed). What do you do to prove delivery?

o You have to file the return card plus the unclaimed document, plus before you file,

secure a certification from the post office.

Take note that a return card is required by law to be filed, but in practice, we do not.

What is the priority of service?

o Personal service is always preferred

o What is the effect of filing by registered mail?

Put an explanation why you did not serve it through personal service

o What if you don’t comply?

As if the pleading was not filed.

Service of pleadings should be made to whom?

o To the counsel, if the party is represented by counsel.

What if service was made to a security guard on the ground floor of a condominium

building and your office is on the 3oth floor?

o You cannot. You have to serve it to counsel.

What is Lis Pendens?

o In an action involving right, title, or interest over a property, you annotate it on the

title of the property.

I file a case in the bureau of lands to declare null and void a title. Can this be subject

to a notice of Lis Pendens?

o No. This is a quasi-judicial action. Notice of lis pendens only applies to judicial

cases, not quasi-judicial. (Heir of Lopez)

Atlantic Erectors: You can only apply for Lis Pendens if the property is the subject of the

action.

o Can you put a notice of lis pendens in a partition case?

Yes.

Do you need court approval to effect a notice of Lis Pendens?

o Not at all. Just send a memorandum to the ROD, even without court involvement.

When do you need court approval?

o When you intend to cancel the notice.

o Grounds:

1) purpose is to molest other party

2) no need for the notice to protect the rights of the parties who caused it

Payongayong:

o Priority of service is ALWAYS personal. If you cannot do it personally, you give an

explanation

o Same as filing – priority is personal. Otherwise, you give an explanation.

United Pulp:

o Hypothetical – There is a principal who is out of the Philippines, and he

designates X as his attorney-in-fact. Can X sign the certification against non-

forum shopping?

In general, he cannot. But in this special case, he can, because the principal

is out of the country.

o What is the test?

Mere representation is not enough. There must be a specific authorization

and clear authority given in the SPA that he can sign the CNFS.

Summons

Can personal service and substituted service work simultaneously?

o No. Personal service first, and this is the priority. You cannot have these

simultaneously.

Where?

o WHEREVER HE IS FOUND. Always remember the James Yap rule.

What are the requirements for substituted service? Under what circumstances?

o Only if personal service is IMPOSSIBLE.

o Proof of this: defendant cannot be served summons after all efforts have been

exhausted.

Is there a set of standards given by law on how many times you have to

try to serve?

A case says that it must be at least three times on two different days.

o There has to be an explanation.

o Where will the explanation appear?

In the sheriff’s return

Summons must be served within reasonable time. What do you mean by this?

o For the sheriff, 15-30 days according to jurisprudence. After the 30th day, the court

will require the sheriff to submit the return.

o Why is this important?

If you file a complaint and you don’t see to it that the summons is served,

your complaint can be dismissed for failure to prosecute.

What is alias summons?

o If the original summons has been lost or the original summons was returned to court,

unserved.

o Then you can apply for alias summons.

When do you talk about suitable age or discretion, to what kind of substituted service

does this apply?

o To service at the residence.

When you talk about suitable age or discretion for substituted service, what do you

mean?

o There is nothing in the law that says there must be age of majority but from Manotoc

to Pascual, there is consistent jurisprudence that it must be age of majority.

Who must it be? Could it be a house helper?

o She or he must reside therein. This must concur with “suitable age or discretion.”

So these are two elements.

o A visitor or a transient cannot receive summons. But a house helper can.

For offices, to whom must it be served?

o To a a) competent person b) in charge.

o Can a middle manager the same rank as Mr. X receive summons for Mr. X?

He must be in charge of receiving summons in the office.

o What does “in charge” mean?

In charge of the office. President or manager.

For corporations, what is the special rule?

o President, General Manager, Managing Partner, Corporate Secretary, Corporate

Treasurer, In-house Counsel

o Memorize this. It is a closed list.

But for personal cases of an individual, will the office receive it for you?

Can substituted service be served on non-residents?

o No. None as a general rule. You cannot do substituted service to a non-resident.

o [Sec. 15 does not talk about this situation. Sec. 15 talks about non-resident and

cannot be found.]

o Is there an exception?

Yes, but it’s very narrow. But there must a a) resident spouse b) who was

previously appointed as attorney-in-fact.

In Secs. 14, 15, and 16: how can summons be done?

o By publication.

Distinguish.

o Section 14: Defendant is unknown or his whereabouts are unknown.

How do you do this?

Just publish.

Do you even have to try personal service?

No need for personal service (since you don’t know him or where he

is).

In what kind of case?

Whatever kind of action, whether in rem or in personam – you can do

it by publication, as clarified by the SC.

Not just in rem or quasi in rem anymore.

How does publication in 14 differ from 15 and 16?

In 14, ONLY publication is needed. It does not require service by

registered mail in the last known address.

o Section 15: Extra-territorial service

Against who?

Against a defendant that does not reside in the Philippines and is not

found in the Philippines.

In what subject matter?

1. Involving personal status of the defendant

2. Property of non-resident defendant

3. Property is attached

4. Where defendant has actual or contingent interest over property

What are the modes of service?

1. Personal service outside the Philippines

2. Publication AND service by registered mail in his last known

address

o N.B. Both must concur. Take note of this.

3. Other modes deemed applicable by the court

o Section 16: Temporarily absent

Can he be a resident of the Philippines?

Yes. But he’s just temporarily absent.

What is the length of time needed here?

None provided

How do you do serve summons?

Any of those in Sec. 15.

Add: Substituted service, if there is impossibility and there are

earnest efforts to serve.

What is the purpose of summons?

o So the court can peg a date when it acquired jurisdiction over the person.

What is the proof of service of summons?

o Sheriff’s return.

Note the rules on:

o Provinces

o Prisons

What is the rule on voluntary appearance?

o It is not equivalent to summons, but if there is voluntary appearance, summons can

be dispensed with.

What is the rule on Motions to Dismiss?

o If you file a Motion to Dismiss, even if you join other grounds other than lack of

jurisdiction, you are not deemed to have submitted to the jurisdiction of the court.

o Old rule: you have to separate the MTD based on lack of jurisdiction.

Maximo v. Montalban:

o In this case, his residence is known and he is just temporarily absent. So substituted

service is not proper.

Samarino v. Ralu:

o Here, the sheriff did not prove that facts and circumstances that would allow

substituted service (repeated failure to personally serve, etc.) – it must be shown in

the sheriff’s return

Ancheta:

o There are only a few remedies when the judgment is already final and executory.

Here, the petitioner filed a petition to annul the judgment based on lack of

jurisdiction over the person (because “lack of jurisdiction” is used, it can cover both

lack of jurisdiction over both SM and the person).

Gomez v. CA:

o Does it mean that if you are talking about an in rem action you can venture on trying

to serve it personally?

You can still do personal service, in case you find him somewhere in the

Philippines by chance.

o Section 14 before limits itself to in rem or quasi in rem. It now extends likewise to

actions in personam.

Motions

What is a motion?

o It seeks relief, but not a pleading.

o It does not raise a claim, nor does it raise defenses in an answer.

o Does a motion to dismiss take the nature of an answer?

No, because it will not lead to a joinder of issues

What does EVERY motion need to have?

o A notice of hearing.

o Directed to whom?

To parties.

But also give notice to the clerk of court (even if the provision does not say it),

because he schedules the hearings.

o Absence of a notice of hearing has what effect?

The motion becomes a mere scrap of paper.

When must notice be given?

o The motion must be filed in court and served to the other party at least three days

before the date of hearing. (Three day notice rule)

What is the ten day rule?

o The hearing itself must be scheduled no later than 10 days from the filing of the

motion

Ex. you file it December 6. The last date you can set the hearing for is

December 16.

o Understand this along with the three day rule.

What is the Omnibus Motion rule?

o Include all grounds available; or else, it is deemed waived.

o What are these exceptions?

1. Lack of subject matter jurisdiction

2. Res judicata

3. Litis pendentia

4. Statute of limitations

What is motion day?

o Friday afternoon.

o If it is a holiday, set it on the next working day

o Is this mandatory?

Yes. But some judges apply the rule liberally.

But since 2008, this rule has been applied strictly.

Motion to dismiss

What are the kinds of dismissal in Civil Procedure?

o 1. There is a motion to dismiss in Rule 16, prompted by defendant. – MOST

COMMON

o 2. But there is also a motion to dismiss in Rule 17, filed by the very same plaintiff

who filed.

Rule 17 also covers failure to prosecute, which is another form of motion to

dismiss.

o 3. Demurrer to evidence

What are the grounds in Rule 16?

o 1. Lack of J over the SM

How do you determine subject matter jurisdiction?

It is the law that confers the right to hear, try, and decide a case

The most common source is RA 7691 amending BP 129

o 2. Lack of J over the defendant

Look again into proper service of summons

Or voluntary appearance

o 3. Improper venue

Fall back to Rule 4, or special rule under law

o 4. No legal capacity to sue

Minor – age of majority

Corporation – must be duly registered with SEC

Attorney in fact – look into scope of authority

o 5. Pleading Asserting the Claim States no COA (PACS-COA)

Does not go into the falsity or truthfulness of the claim

The pleading does not appear to state a COA

o 6. Res judicata

What are the elements?

1. Final judgment

2. J over SM and person

3. Judgment on merits

4. Identity of parties, SM, cause of action

o 7. Litis pendentia

Same as RJ, but without

o 8. Prescription

o 9. Failure to comply with condition precedent

Ex. Failure to refer to Katarungang pambarangay

Is this waivable?

o YES. Because it is not jurisdictional.

Ex. Earnest efforts to compromise

Ex. Exhaustion of administrative remedies

Does this fall under this ground?

o Some commentators say yes. But some say failure to

exhaust must fall under PACS-COA

o 7. PWEA (Payment, waiver, extinguishment, or abandonment)

o 8. Unenforceable under Statute of Frauds

Of all these grounds, if the court dismisses, can it be re-filed?

o ALL

o Except – [F,H,I]

1. Prescription

2. Unenforceable under Statute of Frauds

3. Res judicata

4. Extinguish of claim or demand (PWEA)

When can you file a MTD?

o Within the reglementary period. Fifteen days.

How do you count a period?

o Just remember the rule on interruption. [Read up Bill of Particulars portion.]

There was MTD filed on basis of lack of J over the defendant. The court, instead of

dismissing the action, dismissing the MTD, or ordering amendment of the complaint,

filed alias summons. Is this grave abuse of discretion?

o There was none. Instead of dismissing the case and waiting for re-filing, the court

issued alias summons which will produce the same effect.

Preliminary hearing of the affirmative defenses. What is this?

o You can file an answer, and the court has discretion to hold preliminary hearing of

your affirmative defenses and use it to dismiss the complaint. Thus, an answer can

be treated as a MTD.

This is a new feature of the 1997 Rules of Court. This has never been asked

in the Bar.

o What is the reason for this new rule?

Note: a MTD is not a prohibited pleading, but when it issues summons, the

court persuades parties not to file an MTD, but to file an answer with an

affirmative defense.

o Why is such court attitude?

Because issues will be joined, and pre-trial sets in where parties can

compromise.

o What is the difference between filing a MTD and an answer?

There is no preliminary hearing of defenses in a MTD.

If the court mistakenly denies your MTD, what is your remedy?

o Petition for certiorari on Rule 65 based on GADALEJ.

o Does this petition for certiorari suspend the main proceedings?

No. Even if there is a pending petition for certiorari, the main proceedings will

not be suspended unless you obtain a TRO.

o The Eternal Gardens rule, which has been repeatedly abused, invoking judicial

courtesy here, does not apply anymore.

o Can the Court of Appeals dismiss the case if it feels the RTC committed

GADALEJ? Or should it only remand?

The court, subject to its discretion, can either dismiss or remand it. There is

no hard and fast rule.

Dismissal of Actions

What are the ways by which a plaintiff can dismiss a case?

o Filing a notice of dismissal any time before the answer is served. Dismissal is a

matter of right.

o What happens to the counterclaim?

There is no counterclaim yet, because there is no answer.

o Can this case be re-filed?

Yes.

What is the exception?

Dismissed a second time under this section.

What if there is already an answer? – See Pingga case

o File a motion for dismissal.

o What happens to the counterclaim, if there is?

It does not get dismissed. Pingga limits the dismissal to the complaint, not

the counterclaim. This abandoned BA Finance rule.

Does this rule cover both permissive and compulsory counterclaim?

Yes.

This is why the provision says that within 15 days, the party would

have to manifest its willingness to prosecute it in the same action;

otherwise it will be prosecuted in a separate action.

Pre-trial

When is pre-trial conducted?

o Rule 18 Sec 1 does not say, it just says that the ex parte motion by the plaintiff to

move the case for pre-trial must be done “promptly”

o BUT the 2004 guidelines say it must be within 5 days after the last pleading has

been filed

What if the plaintiff fails to move for pre-trial?

o The 1997 rules are silent. Before, dismissal was the consequence, for failure to

comply with Rules of Court. But this is not the consequence anymore, because of

the 2004 rules, which gives a specific outcome.

o 2004 rules: DUTY OF THE CLERK OF COURT to move for pre-trial.

Before actual pre-trial, a few days before, what happens?

o Preliminary conference before the clerk of court. It will be recorded and will form part

of the pre-trial record.

o They explore possibility of compromise, etc.

o This is almost like a mini pre-trial.

Expect two dates in one notice –

o One setting the preliminary conference

o One setting the pre-trial itself

On the first day of pre-trial – what is the order of the day?

o The court issues an order referring the case to a court-annexed mediator. Forward

the records to him.

o You have to pay fees for a mediator.

o For the time-being, the pre-trial proceedings are suspended.

o What is the period for suspension?

30-60 days.

But in the same order, the court will say that if within this period, there is no

compromise, there will be resumption of pre-trial on a later day.

What if there is inability to compromise?

o Records returned to court. The court will resume pre-trial.

o The Judge with all “tact, patience, and impartiality,” endeavor to arrive at a

settlement of the dispute

Confers with each party as to what is acceptable as a compromise at the

present stage

Judge talks to parties and their counsel separately

Judge talks to only parties

[stepped out]

What do you need to submit at pre-trial?

o Pre-trial brief.

o What if you fail to submit a PTB?

Same effect as if you didn’t appear at pre-trial.

Request for admissions: Rule 129 Section 4 – Judicial Notice:

o No need for introduction of evidence

o You want an admission to abbreviate the proceedings

o You are submitting just proposals. If accepted by the other party, it becomes an

admission.

Issues – to be submitted for resolution

Documentary and testimonial evidence to be presented:

o “One day examination of witness rule” – if you can direct, cross, re-direct, and re-

cross a witness in one day, do so. (This is in the guidelines, not in the Rules of

Court.)

o Submit the most important evidence first.

o Evidence will be pre-marked.

What is the effect of failure to pre-mark?

You can no longer present the evidence if you failed to pre-mark it.

Unless the court allows you in the interest of justice, or if newly

discovered.

o What if you fail to name the witness in court?

You cannot present the witness anymore.

What are the other contents of the brief that you may put?

o Referral to Commissioners

o Explore possibility of compromise

o Possibility of judgment on pleadings or summary judgment

o Avail of deposition/modes of discovery

How do you avoid consequences of absence?

o According to the provision, if there is a good excuse for absence, the consequence

will not vest. You can also authorize someone to appear on his behalf in pre-trial.

What happens next?

o Pre-trial order is issued by the court.

DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL

o What if it is a criminal case and the prosecution is absent. What happens?

It will be re-scheduled.

o What if the accused is absent?

The prosecution CANNOT present evidence ex-parte because it will violate

the accused person’s right to confront witnesses.

o RULE 118. TAKE NOTE OF THIS. THIS IS THE DIFFERENCE BETWEEN

CRIMINAL AND CIVIL PRE-TRIAL.

o For an admission of the accused to take effect against him, what must be

done?

It must be in writing and signed, by both the counsel and accused.

No such requirement in civil admissions in pre-trial.

Judicial Dispute Resolution

o In the past, the JDR process only applies in Makati. Now it also applies in QC and

Manila.

o The judge here is both a mediator and a conciliator and an independent evaluator.

o Unless the parties consent to continue with the JDR judge, it is mandatory that there

will be a new raffle – and the new judge who will hear, try, and decide the case is the

trial judge

o This step happens when the Clerk of Court receives the Mediator’s Report of a

“not settled mediation”

o Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf

Intervention

What is the concept of intervention?

o A third party takes part in a case between other parties

o Because he has a legal interest in the subject matter of the case or he will be

adversely affected by distribution/disposition of property in custody of the court

What does the court look at?

o Legal interest of the intervener

o 1) Such intervention will not unduly delay or prejudice the proceedings of the parties

o 2) Or if the right of the intervener can be protected in a separate action

When can you intervene?

o You can intervene any time before rendition of judgment in the trial court

o There is nothing in the rules talking about intervention in the Appellate Court. But the

court can exercise discretion to allow intervention in the Appellate Courts.

After judgment, can there still be intervention?

o As a rule, no.

o But if the rule is an indispensable party, the court will allow intervention even after

judgment.

Can there be a complaint intervention or answer in intervention, or a complaint

against either/all of the original parties?

o Yes, for all.

Nordic:

o There was a mortgage over a vessel to secure a loan. There was a default in the

payment. For this reason, there was an Extra-judicial foreclosure. While the petition

was there, there was a subsequent case filed.

o There was a complaint filed by the crew members of the vessel against the vessel in

RTC Manila (sum of money case).

o The mortgagee sought to intervene in the sum of money case, because it held a

Preferred Ship Mortgage.

o HELD: No legal interest, no cause of action. There must be a personal cause of

action in order to intervene. Here, the mortgagee had no interest in the sum of

money case. And in this case, the mortgagee can protect its rights in the foreclosure

case.

Subpoena

Types of subpoena?

o Ad testificandum: appear and testify

o Duces tecum: appear and bring with him the documents or things

N.B. Must appear too. Cannot just mail or send.

Who can issue a subpoena?

o 1. Court where witness must attend

o 2. Court where deposition is taken

o 3. Officer/body conducting investigation

o 4. Any justice of CA/SC in any case/investigation pending

Can the OMB issue a subpoena?

o Yes.

Can the office of the prosecutor issue?

o Yes.

Is the receipt of a subpoena by a respondent in a case filed before the office of the

prosecutor necessary for the office to acquire jurisdiction over the respondent?

o No. It is totally irrelevant. Preliminary investigation before the Office of the

Prosecutor is a statutory right, not constitutional right. You can altogether dispense

with it, or waive it. It is not essential for DP.

o There is an express provision in Rule 112(D) that says failure to receive the

subpoena will not bar the prosecutor from issuing a resolution. It is not imperative.

Can a regular court judge subpoena a convict?

o The judge examines if it is for a valid purpose

o For those under death/RP/Life and confined: must be authorized by the SC to appear

under subpoena

Heart of the rule on subpoena is in Section 4 (Quashing a subpoena)

o How do you quash a subpoena as testificandum?

1. Witness is not bound thereby

What is an example of this?

o If the witness is not qualified. Ex the witness is the spouse of

the person he/she is testifying against

2. Witness fees and kilometrage allowed by the Rules were not tendered

Witness must live within 100 KM of the place where hearing is

conducted

You can also be arrested to compel you

o How do you quash a subpoena duces tecum?

1. Unreasonable and oppressive

2. Relevancy of the books, documents, etc. does not appear

3. Failure to tender the costs of production

4. Kilometrage/witness fees Not in the duces tecum part but you need

the witness to appear too

5. Failure to describe with particularity N.B. not in the rules

Can the clerk of court issue a subpoena in the absence of a judicial action? (Note, this

is not referring to investigation by a quasi-judicial body.)

o No.

Depositions (Rule 23)

What can be subject of deposition?

o Any matter, as long as not privileged

o AND relevant

o What do you mean by not privileged?

When the witness is disqualified (e.g. attorney-client, physician-patient,

penitent-priest, husband-wife, public office in related to State)

Ayala Land applied section one (see Modes notes). It explained how to commence

depositions.

o Can a judge before whom the action is pending take depositions?

Yes. (Ayala Land)

o Before whom should deposition be taken?

If in the Philippines, 1. Judge, 2. Notary public, 3. Any party authorized to

administer oath, 4. The parties by agreement/stipulation

In foreign country, 1. Embassy, legation, consular officer/agent 2. One

authorized by commission or letters rogatory, 3. Stipulation of parties

o Dulay v. Dulay – A brother duped his brother; both are Filipinos. One brother is a

naturalized American, and applied for the latter’s naturalization. The US government

approved it. The later, once there, was made the trustee of the deposits of the

former. He spent the money. Filed case in Philippines. Took deposition of bank

manager in US. The local court communicated the request with foreign authority

(letters rogatory – communication by one judicial authority to another – to follow the

rules of the latter). This is distinguished by commission – where a person is

appointed commissioner; the deposition is governed by Philippine rules.

o In this case, the court of Boston ignored the letters rogatory, so they applied for

deposition before a notary public. The local court refused to accept, requiring a

consular certification.

o The court here allowed because the letters were ignored and there was no consular

office in Boston, so they allowed deposition before NY notary.

When is there need for leave of court?

o Whether an answer has been filed or not. When there is an answer, you do not need

leave of court, just notice. When there is no answer yet, you need leave of court.

o Contrast with amendments: You need leave of court after answer; before answer,

you just need notice.

What is the process to take deposition?

o Rule 23, Sections 19-21.

o Who does the recording?

A stenographer, clerk, secretary – under the direction and supervision of the

officer

o Then?

The deponent examines it and signs it

Can signing be waived?

Yes.

o After the signature, what next?

The officer certifies it first

Then files it in court with indication that it is authentic and complete

If the procedure is not followed, what will happen? What is the consequence?

o A party can file a motion to suppress deposition because the procedure was not

followed

o What is the Ayala doctrine?

The rules can be relaxed because the deposition was taken before the judge

in the main case. The judge knows it’s authentic and complete by personal

knowledge.

What are the uses of deposition?

o 1. Impeach testimony of witness

[For prior inconsistent statements]

o 2. Against other party (or officer of corporation that is another party) – for any

purpose

o 3. Used in place of oral testimony if the deponent:

A) Lives more than 100 KM from the place of trial except if the absence was

procured by the party, or out of the Philippines

B) Is dead

C) Unable to attend to due age, sickness, imprisonment, etc.

D) Cannot compel attendance of witness through subpoena

E) Exceptional circumstances

Can a subpoena be issued by reason of deposition taking to make sure the deponent

comes?

o Yes. Rule 21, Sec. 5

Can a deposition of a deceased person be presented in court? Is this not hearsay?

o It can be presented, as long as it was subjected to cross examine. It is hearsay, but

it can be submitted.

o Is cross examination a necessity?

Yes. This is necessary to exempt it from the hearsay rule.

If you take a deposition, are you compelled to present it in court?

o No.

If you use a part of a deposition, can the rest be presented?

o Yes.

Always distinguish between “take” and “use.”

Who are disqualified to be deposition officers? [Memorize; this has not yet been asked]

o 1. Sixth degree of consanguinity from party/employees

o 2. Sixth degree of consanguinity counsel of parties/employees

o 2. Financially interested in the action

Re: irregularities on taking of deposition. What is the general rule on

errors/irregularities on taking depositions?

o General rule is that it is waivable

o What is the exception?

Relevance or competency of evidence failure to object is not a waiver

Unless a timely objection could have obviated the defect

When is the period to object?

o The same as the period to file the responsive pleading.

o So to question direct: 10 days (period to file cross)

o To question cross: 5 days (period to file re-direct)

o To question re-direct: 3 days (period to file re-cross)

Can you take deposition even after pre-trial?

o Yes.

o Do you need to reserve?

No need, even if you do not reserve it during pre-trial. Jonathan Landoil

If you take a deposition of a person, do you still have to present the person as a

witness?

o You still have to present him in court, in general. Depositions cannot take the place

of actual physical testimony in court.

o If you fail to cross examine the witness in the deposition, can you still cross-

examine him in court?

Yes, you definitely can! Sabio

What are the consequences for non-compliance with order for deposition?

o Can it be dismissed?

Yes, the court can dismiss. There can even be a judgment by default

However, in the old case of Arellano, the court dismissed the case due to

refusal to be subjected to deposition. But the SC said it was wrong. In this

case though, the matter subject to deposition is an incidental matter only, not

the main issue of the case.

Bottom line: it IS a possible result, but fall back on materiality of the matter

Can the court regulate the deposition? (Ex. excluding certain matters)

o Yes.

Can the other party oppose the taking of a deposition?

o Yes.

o Under what grounds?

“Annoy, embarrass, oppress” memorize these words

It is irrelevant

Depositions before action or pending appeal

What is perpetuation of testimony?

o See below

If there is no pending case can you take a deposition?

o No. You file a case for the perpetuation of a testimony

o So you file a case for the purpose of perpetuating a testimony

What is the special rule on venue here?

o Place where the expected adverse party resides

When could you apply for deposition pending appeal?

o Before judgment becomes final

o There is a pending case for certiorari, can you take a deposition pending

appeal?

No, certiorari is not an appeal

Interrogatories to parties

Distinguish Rules 23 and 25:

o Rule 23 – Party or a witness, or any person for that matter

o Rule 25 – Interrogatories to PARTIES. Always to parties.

How must the questions be answered?

o Rule 23 – there is direct, cross, re-direct, and re-cross

o Rule 25 – Just one set of questions to be answered by the other party

Re: time to answer

o Rule 23 – no fixed time to answer, because what dictates the period is the officer

(since they have to appear before the officer)

o Rule 25 – 15 days from service thereof

Are the uses of the depositions the same?

o Between Rule 23 and 25, the same

What is the effect of failure to serve written interrogatories to parties?

o You cannot compel the adverse party to testify if you did not serve written

interrogatories

o Can you call the adverse party to the witness stand?

YES! In general, YES. The answer is in Rule 132, Sec. 12

It is different if you call on the witness the accused himself (in a criminal case)

Request for admission

What is a request for admission?

o 1. Requesting to the other party that he admit the genuineness of any

material/relevant document

What else do you need to do?

Attach the document so it can be examined

Does an admission cover the contents of the document?

No, just the genuineness – so you do not have to prove it exists and it

is genuine

The contents can be up for contentions

Case: There was a pre-trial. One party submitted a list of equipment, and

wanted the other party to accept it. The other party said it was incomplete,

and asked that the first party prepare a new list to submit to the court within X

days. Instead of submitting it to court, the first party submitted a request for

admission to the other party. Instead of answering, the second party kept

quiet. HELD: It was an implied admission.

o 2. Or truth of any material and relevant matter

The admission must be directed to whom?

o The adverse party (Not the counsel – it must be served to the other party) (Duque)

o But the party’s counsel may answer (Larada)

What if the other party fails to respond?

o Considered an implied admission

Who will suffer the cost?

o The other party who refused to admit, if it is eventually proven to be genuine or true

o But in the meantime, advanced by the party requesting

Producing or inspection of things/documents

What do you apply for?

o Request that a party produce and permit inspection of documents, papers, objects,

other tangible things

o OR to allow entrance into a place under control of the latter and allow inspections,

etc.

Is production of documents the same as subpoena duces tecum?

o No.

Is production required for presentation of secondary evidence?

o Yes, apart from a mode of discovery, it can be a preparatory act to present

secondary evidence. If you require production and the other party refuses or says it

is lost, then you can produce secondary evidence.

o But there is need for request to produce

o So if you get a request to produce but it is targeted to a specific document, most

likely it is for secondary evidence

You applied for production of books/papers/documents, and you are allowed to

examine. Are you bound to present it as your evidence?

o No, you’re not required. It is a mode of discovery – a way of discovering evidence. If

you like what you see, you still have to go through the process of presenting it in

court.

N.B. Under 2004 guidelines, it is the duty of the judge to issue an order to the parties to

avail of Modes of Discovery under Rules 23, 25-27

Physical and mental examination

So limited in its use that even the 2004 guidelines do not include it

When can you apply for this?

o Mental or physical condition is in controversy

This is the only mode of discovery where the court can motu propio issue it. The other

modes, you have to apply for.

What is required?

o 1. Also upon motion

o 2. And with good cause shown

When can it be done?

o When the physical or mental condition of a party is in controversy

o Ex. Guardianship, Physical Injuries,

What does “in controversy” mean?

o It has to be one of the main issues of the case, not just a side matter.

o It does not have to be the only issue, but it has to be in issue.

What is the consequence if the copy of the examination is given to the party

examined?

o There is a waiver of the privilege

o That requesting party can now also ask for previous or subsequent examination on

the same matters of the requested party

o It must refer to the same condition. So if the examination was on the other party’s

head for mental examination, she can only ask for similar reports on the mental

condition of that party.

What if the requested party refuses?

o The court may make an order for delivery of the report

o If by chance, that other party’s physicians were allowed to testify, their testimonies

can be excluded.

What is the effect of the requested party requesting for a copy of the report made or

taking the deposition of the examining physician?

He waives any privilege in that action or another action involving the same controversy, as

regards testimony of other examining persons, whether before or after

N.B. Privilege of doctor-patient only applies to civil case, not criminal case

Consequences of non-compliance

If there is refusal to answer, what are the consequences?

o 1. The case can be dismissed if he is plaintiff

o 2. If the defendant, judgment by default

o 3. Pleadings can be stricken out

o 4. Held in contempt

He can be arrested

When does arrest as a consequence not apply?

Request for physical or mental examination

Segue: deposition in other proceedings

Can you use modes of discovery in criminal actions?

o Yes.

Can you use modes of discovery in special proceedings?

o Yes.

o Special proceedings do not provide for an answer. But the general principle of

suppletory application (Rule 72, Sec. 2).

Is there criminal deposition?

o There is a Rule 119. Use it instead of Rule 23. Rule 119 talks about a pending

criminal action, but it is not yet trial.

o You can call witnesses even before trial and obtain their testimony.

o But there is distinction between conditional examination of witnesses for the

prosecution and condition examination for accused.

For prosecution – examination before trial can only be done in the court

where the action is pending because the law wants it to be harder for

prosecution.

For the accused, it should be made before either any judge, before any

member of the Bar (good standing, etc.), any inferior court designated or

appointed by a superior court.

o But the law does not say it’s deposition. But it’s akin to such, according to Supreme

Court decision.

Does physical and mental examination as a mode of discovery apply in criminal trial?

o It’s inherent.

Trial

Both civil and criminal procedures will not provide for conduct in examination of a witness.

Where is it found? Evidence.

What is the order of presentation of evidence?

o 1. Plaintiff, to support complaint

o 2. Defendant, present defense

o 3. Third party, and so on

o 4. Parties faced with counter or cross claim, present defense

o 5. Rebutting evidence

Can it be reversed?

o Yes, it can, if there is an affirmative defense.

o Plaintiff in the usual and ordinary course of things presents before the defendant.

o [Check for midterms: can there be reverse order if it is a civil case?]

Can there be judgment without trial?

o When parties agree on facts

o [spaced out]

What are the grounds for cancellation of hearing (actually, postponement)?

o 1. His presence is indispensable and illness is excusable

N.B. it does not say the party must be indispensable; just his presence

o 2. Absence of evidence, and the evidence is material and cannot be procured

despite due diligence

Who can receive evidence?

o Generally, the judge

o Exception: to the clerk of court – delegated authority to receive evidence

1. There are default proceedings

2. Ex parte

Examples of ex parte proceedings?

o Default

o Application of indigent

o “As in” default [did not appear during PT]

3. Parties agree in writing

Can an adoption case proceeding be delegated to the clerk of court for reception of

evidence?

o No.

o Always with the judge

Can a clerk of court issue a subpoena?

o Yes, if it is a subpoena ad testificandum. If it is a subpoena duces tecum, there must

be order by court.

Can the clerk of court resolve objections raised in an ex parte proceeding?

o No.

o Just note the objections, and forward to the judge.

o The other party is not there – who will object?

Well, the clerk of court just has to note it down if clearly objectionable.

Cf Trial by commissioner

Who is a commissioner?

o Person authorized by the court to

o Ex. auditor, referee, examiner

Any matter can be referred to the commissioner, when?

o If the parties consent. ANY MATTER.

But if the parties do not agree, what can be referred to the commissioner?

o 1. Requires examination of long account

o 2. Taking of account necessary for court’s information for court to render

judgment/execute it

o 3. Question of fact arising from motion

Can a commissioner issue a subpoena?

o Yes.

o Can he issue a subpoena duces tecum?

Yes, as long as within the order of reference (his authority)

Can he resolve objections?

o Yes.

o N.B. this distinguishes him from a clerk of court

When are commissioners mandatory?

o Expropriation mandatory in second stage

o Partition only optional

If the parties stipulate how the property will be partitioned, there is no need to

go to the second stage where commissioners are required

Report of a commissioner is not a judgment. It only aids the court. What are the

options of the court?

o It may adopt, modify, or reject the report

What is the rule on objections?

o 10 days from filing of report, parties can object to the findings of the report

o BUT, must make it before the commissioner during proceedings, if these can be

made by then – otherwise, will not be considered by the court

Who shoulders the cost?

o The losing party, in general. But the court may apportion

Can the commissioner punish non-compliance with contempt?

o No. It’s the court that appointed the commissioner that can do that.

Consolidation

What is the difference between consolidation and joinder?

o In consolidation, the cases are already pending; in joinder, the cases are just being

filed

There was a case where the court allowed for the consolidation of cases in two different

judicial regions – even when it was not even an issue in the case!

Demurrer to evidence

When do you apply for demurrer?

o In civil, when plaintiff has completed presentation of evidence

o In criminal, when the prosecution rests its case

o When is this exactly?

After formal offer of evidence

Do you need leave of court?

o In civil cases, no need for leave of court.

o But if you file leave, is it okay?

Nothing really wrong, but you’re just delaying your case.

o In criminal cases, can you file demurrer without leave of court?

Yes, but if it is denied, the consequences are serious.

If there is no leave, and demurrer is denied accused waives the right to

present evidence

If there is leave of court, and demurrer is denied accused can still present

evidence

What is your remedy of the losing party defendant if the demurrer is granted? (civil)

o Can still appeal, because demurrer is a final disposition of a case.

If your demurrer is denied, what do you do? (civil)

o You can submit evidence, and continue until judgment.

o Can you file for an MR of the denial?

Yes, you can file. As long as there is an order, you can file an MR. You can

even file it to a judgment, although it is not a prerequisite for appeal.

o If the MR is denied, what can you do?

File certiorari

But in criminal demurrer, can you file for certiorari after denial of the MR?

o You cannot appeal a denial or file for certiorari until final disposition of the case.

Dayap: Criminal demurrer. What is the effect of dismissal in a criminal case?

o It amounts to an acquittal. This is not a dismissal without prejudice. You cannot re-

file.

o But is it reviewable by appeal?

No. It is an acquittal. Double jeopardy has set in.

o But is it reviewable by another mode?

Petition for Certiorari (Rule 65)

Salazar: Demurrer to evidence takes the nature of a motion to dismiss. If he files it without

leave of court, he waives his right to present evidence and he submits the case for

submission purely on the evidence presented by prosecution.

o If the demurrer is granted and the accused is acquitted, can the accused

adduce evidence on the civil aspect of the case?

Despite the acquittal, the court can still hear the case as to the civil aspect,

unless there is a declaration that the fact from which the civil liability would

arise does not exist.

So if the accused was not able to present evidence in the civil aspect, it is a

void judgment.

Radio Wealth: Civil demurrer. What is the consequence of a reversal by the higher

court, after the initial granting of a demurrer?

o The defendant cannot adduce evidence anymore. The court will render judgment on

the available evidence.

o This effect does not apply to criminal cases

P v. Cachola: N.B. In a bar exam, demurrer was once coined as “motion to dismiss on the

ground of insufficiency of evidence.” This case used the very same terms.

Judgment on the pleadings

When is there judgment on the pleadings?

o 1. The answer fails to tender an issue

o 2. Or the answer admits the material allegations of the adverse party’s pleading

What do the “material allegations” mean in the second ground?

o It means the cause of action

o See the next section on Summary Judgment as to what the difference is with that

concept

Who files a motion for judgment on the pleadings?

o The plaintiff, always

Can there be partial judgment on the pleadings on this ground?

o No. It’s ALWAYS a full judgment on the pleadings.

o N.B. This is different from summary judgment, where there can be partial or

complete summary judgments.

Can the defendant file a motion for judgment on the pleadings?

o Based on a counterclaim.

If you’re the plaintiff, when can you file a motion for judgment on the pleadings?

o After the defendant files an answer.

o Can it be during pre-trial?

Yes under Rule 18, Section 2g.

But as a rule of strategy, file it upon first chance to do so.

o Can you file a motion for judgment on the pleadings after pre-trial?

Yes. But this is really belated.

If you’re the defendant, when can you file?

o Anytime.

Can the court motu propio render a judgment on the pleadings without motion of the

parties?

o No. It must always be upon application.

o Very important: But during pre-trial, the judge may prompt the parties during pre-

trial to have judgment on the pleadings (Rule 18). But it’s still, ultimately with the

parties’ consent. So in the end, the judge still cannot grant it on his own.

Summary judgment

What is summary judgment?

o There is no genuine issue as to a material fact. Memorize this phrase.

What is the difference between this and “the answer does not tender an issue”?

o There is no issue as to a material fact (note: not on the issues)

But can you have a summary judgment based on a tort?

o No. Because damages here are unliquidated, and the court has to hear the case.

When can there be summary judgment?

o Declaratory relief

o Liquidated sum of money or action to recover a debt

The court could rely on documents, papers, affidavits, depositions.

o Ex. X wants to make it appear that he does not owe Y anything, but there is a

document where he admits the obligation. Y must file motion for summary judgment

and attach the document.

Wood Tech v. Equitable: Gives distinction of JOP and SJ. On SJ, there could be an issue,

but it is ostensibly sham or fictitious. In JOP, the answer does not tender an issue, or it

admits the material allegations on the claim. There is no dispute.

Promissory note with no date when it is due and demandable. X owes Y 500K. Y

sues X. X claims “it’s not yet due!” Is this something that would lead to summary

judgment or judgment on the pleadings?

o Summary judgment; although there appears to be an issue (X made an issue out of

nothing). It is ostensible, but it’s actually sham or fictitious.

o Cannot lead to judgment on the pleadings, because there was no admission of

material claims.

Judgments

What is immutability of judgments?

o General rule: judgments are immutable; they cannot be modified once final and

executory

What are the exceptions?

o 1. Nunc pro tunc

antedated judgment, when delay or error is due to the court’s fault

o 2. Clerical or typographical errors

o 3. Void judgments

o 4. But some judgments cannot really obtain finality – like support

Is the judge required to take notes during course of hearing in order to be able to

render valid judgment?

o No.

Is it required that the judge who heard the case is the same who renders the

decision?

o No. But the judge must personally review it. He must have authority [missed this]

Is filing of memoranda by the parties (after the trial, after submission of evidence)

required/mandatory?

o It is not mandatory. It is not essential.

o Non-submission is not fatal.

What is a separate judgment?

o If there are many claims, the court can render judgment on one, and the action

proceeds with regard to other claims

o Ex. In expropriation – there are two judgments:

1. Authority to expropriate

2. Just compensation

o Ex. Summary judgment (one case has several judgments – summary as to the one

with no genuine issue, and trial over the ones with genuine issue)

What is the difference between a separate judgment from a several judgment?

o Several refers to parties, separate refers to claims

Can the court render a judgment to a non-juridical entity?

o Judgment will be against the members, not the entity itself

Motion for reconsideration

Is an MR a prerequisite to appeal?

o No.

In a case involving summary procedure, is MR allowed?

o No, it is a prohibited pleading

How many days to file?

o 15 days

o Can it be extended?

Cannot be extended

This rule has never been changed. You cannot file an extension on an MR

o So what’s the remedy?

Some lawyers suggest filing a supplement. But actually, there must be a new

event or fact that arises to do this. So this is dangerous.

How long must an MR be resolved?

o Within 30 days

Can there be a partial MR?

o Yes, when the court finds that the MR affects only a part of the judgment (ex. just

one of the issues).

Distinguish an MR from an MNT.

o The grounds are different. In MNT, the grounds are FAME and newly discovered

evidence.

What fraud is needed here?

Extrinsic fraud.

What is mistake?

Mistake of fact in good faith

If there’s a mistake of law, the remedy is an MR, not MNT

What is newly discovered evidence?

1. It must be material

2. It was not available during trial despite exercise of due diligence

3. If considered by the court, it could later/change the result

o What are the grounds for MR?

1. Evidence not sufficient to support the judgment

2. Excessive damages

3. Decision contrary to law

What is the fresh period rule?

o Neypes: After denial of an MR, the period returns to 15 days

Does the Neypes ruling apply to other kinds of appeal?

o Rules 40 and 41 (ordinary appeal) – covered by Neypes ruling

o Rule 42 (petition for review) – no need for Neypes ruling, because the provision itself

provides for it

o Rule 43 (review of QJA) – no need as well

o Rule 45 (petition for review on certiorari) – 15 day period for MR is counted already

in the period to file an appeal

o N.B. So the Neypes ruling is only targeted to Rules 40 and 41 (ordinary appeal)

How many times can you file an MR?

o Just once

How many times for a MNT?

o Can be multiple, as long as on grounds not existing when the first MNT was filed

What is the effect of granting an MNT?

o There will be a trial de novo.

o The evidence so far presented may be used in the new trial without retaking

Can there be MNT in the appellate court?

o Yes, but with different rules and only to the Court of Appeals (not all appellate

courts).

o Rule 53 covers MNT in the CA. So that MNT is different from the MNT here. The

MNT in the Court of Appeals only has one ground: newly discovered evidence.

o There are different periods as well –

In the MNT in trial court: 15 days from judgment

In the CA: for as long as it’s an active case (no need to wait for a judgment in

the CA)

Is there a MNT in the SC?

o Rule 56 –

o As a rule, an MNT cannot be entertained in the SC.

o But it is left with the sound discretion of the court if it feels that it should do it in the

interest of justice.

Petition for relief

How many kinds of petition for relief do we have?

o 1. From judgment

o 2. From denial of appeal

Where do you file it?

o From judgment: before the court that rendered judgment, not before the appellate

court

o From denial of appeal:

A lawyer forgot to file an appeal on time. He filed late, and it was denied. What do

you apply for?

o Cannot use petition for relief from denial of appeal, because there is no ground

o You file an MR.

o Why?

You file a petition for relief from denial of appeal if you were prevented from

filing it. Here, he was not.

What is the time period for filing petition for relief?

o Within 60 days from knowledge from the judgment of order (count from entry of

judgment)

o BUT NOT more than 6 months after entry of judgment/order

o N.B. both periods must apply

The sixty days can only move around the six months. If you found out the

day before six months expire, you are left with one day, not 60 days.

Can you file a petition for relief from judgment when there is still an available remedy

of MR, MNT, or appeal?

o No. As long as there are still available reliefs, you cannot resort to petition for relief

from judgment. Take note, that there must be entry of judgment, which means if

there is no final judgment yet, you can still do an MR/MNT/appeal.

Where else does FAME apply?

o 1. MNT

o 2. Petition for relief from judgment/denial of appeal

o 3. Motion to reconsider order of court in pre-trial declaring that the plaintiff can

present evidence ex parte due to failure of the defendant to appear in pre-trial

o 4. Motion to lift order of default

What are the grounds for annulment of judgment (Rule 47)?

o 1. Extrinsic fraud

Prescribes 4 years from time of discovery

o 2. Lack of jurisdiction (covers both SM and person)

N.B. This is the only provision that uses lack of jurisdiction both ways

Mr. X died, leaving an estate. Juan claims to be the sole heir. The estate court

adjudicated the entire estate in favor of Juan. Judgment became final and executory.

After 2 months, the rest of the heirs who learned of the judgment came forward and

filed a motion to set aside the judgment. Court denied the motion to set aside the

judgment. So they went to the CA on an annulment of judgment. (N.B. a petition for

annulment of judgment is an original action; it is not an appeal. You file this for a decision of

the MTC, to the RTC and for a decision of the RTC, to the CA.) Did they use the proper

remedy for filing petition for annulment of judgment in the CA and not petition for

relief to the court that issued the judgment? (Alaban v. CA)

o Petition for relief.

o 1. Although section one states that only a party may file a petition for relief from

judgment, it is an action in rem. It requires publication, so the heirs have been

notified and deemed as parties.

o 2. The learned of the judgment 2 months (60 days) from learning of the judgment.

So the proper remedy is petition for relief, since it falls within the period.

Execution

When is execution a matter of right?

o Judgment is final and executory USUAL CASE

Ex. period appeal has already lapsed

When is execution a matter of discretion?

o For good reasons, when t is not yet final and executory

o Execution of several, separate, or partial judgment

Which court issues the writ of execution?

o Court that rendered judgment

o RTC issued a decision, it was appealed to the CA, then to the SC. Who issues

the writ of execution?

The RTC – the court of original jurisdiction

o Are there instances wherein the writ will be issued by an appellate court, or a

court other than that of original jurisdiction?

In the interest of justice, you can apply to the appellate court. But the general

rule is that it is still the court that rendered the decision.

o Can the CA issue a writ of execution, other than in this instance?

When it exercises original jurisdiction.

Where do you file a motion for execution?

o File it in the court that rendered the judgment.

o Can it be filed with the appellate court?

Same with above.

Do you need to file a bond to apply for discretionary execution?

o The obligor need to file a supersedeas bond to stay discretionary execution; but the

obligee does not need to file a supersedeas bond to apply for discretionary

execution.

o What does the obligee need to present then?

Proof showing good reason

o What are examples when discretionary execution vest?

1. Perishable goods

2. Old age + sickness [?]

Intramuros: Discusses when the judgment becomes final and executory. A final judgment

or order is one that finally disposes of a case. This is the only thing that could be subject to

execution.

What is the difference between discretionary execution and execution pending

appeal?

o They are the same. And both require good reasons.

Should the writ of execution conform to the dispositive portion?

o Execution must conform to the dispositive portion. What is reproduced in the writ is

the dispositive portion of the judgment. (Intramuros)

Is a full blown trial required for a motion for execution?

o No.

Can execution pending appeal be applied for to the TC after the appeal has been

perfected?

o For as long as the TC has jurisdiction over the case.

o See Rule 41. [This includes execution pending appeal, provisional remedies, etc.]

Do you need a bond to stay a writ of execution that was issued as a matter of right?

o No. You cannot stay it anymore – even with a bond. It’s a matter of right.

o What is the exception?

Get an injunction or TRO, claiming GADALEJ.

What are the judgments not stayed by appeal?

o Injunction, receivership, accounting, support, other judgments saying it’s immediately

executory

Can an MR stay a motion for execution?

o The provision only says “an appeal” can stay a judgment… theoretically, jurisdiction

is still with the court of original jurisdiction.

o But there is no clear answer.

In an ejectment case, which court issues the order of demolition?

o The court of original jurisdiction, i.e. the MTC

o What is the exception?

Mina: Discretionary execution can be entertained by the RTC.

Who has to make reports?

o The sheriff, on any matter of execution, esp. the conduct of such.

Is a motion for execution indispensable before the court can execute?

o Yes, even for those immediately executory in nature.

o Cagayan de Oro: A lawful levy for execution is needed before there can be a sale

can be effected.

o Can the court motu propio issue a writ of execution?

OCA v. Corpuz: Court on its own, cannot issue a writ of execution without

motion of another party

What is revival of judgment by an independent action?

o If you went beyond 5 years from entry of judgment, but are still within the prescriptive

period, you can file an independent action to execute.

When can you file a motion for execution?

o Within 5 years from entry of judgment

After lapse of period of ten years, can you still revive it?

o No.

o Is it always ten years?

YES. This is the flat prescriptive period for judgments.

Death after judgment:

o If the judgment oblige dies, then the executor/administrator applies for execution

o If the judgment obligor dies, and judgment is for recovery of real/personal property –

there is a lien over his property

o What if levy has already been effected?

Proceed to sale of the property to satisfy the judgment.

o What if the judgment is for money, not property?

File a claim against the estate

Section 8: Contents.

o Do the contents have to always be there?

No. Only to the extent applicable.

Money judgments

o Payment must be in what form?

In cash.

o Payment must be made to whom?

To the judgment obligee, if available

What if he is not available?

To his representative

What if he is not available?

To the sheriff

o Can payment be effected not by cash (Ex. check or PN)?

Certified bank check is allowed

Or any other form of payment acceptable to the latter

o What if there is no cash?

Go to

Levy on real or personal property

o What will be disposed first?

Choice of judgment obligor

If he doesn’t make a choice, personal property is prioritized over real property

o What if there is no property?

Go to

Garnishment

o Custodian of the funds/deposit/royalty has to make a report.

o How many days to report?

5 days from receipt of notice. The custodian/manager has 5 days to report if

there is money.

o What does the court do next?

It issues an order requiring transfer of funds.

o Can you garnish without prior demand of payment?

No.

Specific acts

o If the court requires the obligor to do something, but he refuses, what

happens?

The court can require another person to perform it.

o If the other person does not comply?

The court may consider that it has been DEEMED complied with.

Give an example.

The court orders that there must be execution of deed of sale in favor

of Y, done by X. X refuses. The court orders Z to perform it. Z

refuses. The court will deem it complied with. This deed of sale will

be forwarded to the Register of Deeds or whoever/whatever office

o Can an order for demolition be given along with the writ of execution?

No. It is punitive in nature, so there must be a hearing.

o When can there be contempt?

ONLY applies for special judgment, and there is refusal to comply.

What are the properties exempt from judgment?

o Family home, homestead, and the land

If you mortgaged your Family Home, will it still be exempt from

execution?

[See last sentence?]

What are homestead lands?

Public lands given to people giving them a chance to cultivate

o Libraries of professionals not beyond 300K

o Furniture for the family not beyond 100K

o Beasts of burden (up to 3)

o Tombstones

What about mausoleums?

No.

o [Among others]

When can you apply for a motion for execution?

o Section 14. This also tells you the life of the writ.

o What is the life of the writ?

5 years, before it expires.

Sec. 15-34:

o Important parts:

Requirements of sale

Certificates of sale

Redemption

Redemption period

Who will be in possession of the property sold in public sale

Who will be entitled to fruits/profits of the property

What if after participating in the sale, you are unable to take possession of

the property – remedies

o What are the requirements for sale?

TWO NOTICE REQUIREMENT: one to the judgment obligor, one to the

public

Public – posting in conspicuous places, or even by publication

What if it is a perishable good or personal property?

Perishable goods – within reasonable time (no strict timeframe)

Personal property – at least 5 days notice

Real property – within 20 days

o N.B. not “at least”

What if the assessed value of the real property exceeds 50,000,

what is needed?

o There must be publication

Should you notify the judgment obligor?

Perishable goods – just notice before the sale

In all cases, notice at least 3 days before the sale

What time must the sale be?

9 am to 2 pm, and it must be in the office of the Clerk of Court. But

usually, it is done outside the hall of justice

What if it is personal property capable of delivery?

It must be done in the place where the property is located

o Is a certificate of sale mandatory for personal properties capable of manual

delivery?

No, it is not.

For real properties, you need a certificate of sale.

What are the contents of a certificate of sale?

1. Particular description of the real property sold

2. Price paid for each distinct parcel or lot

3. Whole price paid

4. Statement that right of redemption expires 1 year from the date of

registration of the certificate of sale

registered with the ROD

o Can you redeem personal property sold on public sale?

No. Personal properties cannot be redeemed, only real properties.

Who can redeem?

The judgment obligor can redeem

Who else?

Those who have interest on the property, either by credit,

encumbrance (redemptioners)

What is the distinction?

Judgment obligor always has a period of 1 year, non-extendable

Once the judgment obligor redeems, no further redemption is allowed.

Redemptioners may redeem, but it may again be redeemed from

them within 60 days by another redemptioner

What about the redemptioners?

o Their rights were never extinguished. It still exists, over the

property.

If the judgment obligor does not redeem, can the redemptioners

redeem beyond the 1 year period?

o No. This is the view sir subscribes to, even if some

commentators say there can be endless redemption beyond

the 1 year period in 60 day intervals. But sir said that after 1

year, the last redemptioner gets the property.

o Who has possession during redemption period?

Obligor.

o Who is entitled to fruits and profits?

Obligor.

N.B. The obligor cannot change the nature of the property during the period.

He must not modify it.

o How must redemption be made?

It must be willingness and intention coupled with tender of payment.

Willingness and intention without tender is not enough.

Case: The redemptioner wanted to redeem in installments, and not full

payment. This was held to be invalid.

Beyond the redemption period, can it still be redeemed?

It is not anymore redemption as contemplated by law; just a

contractual arrangement between the redemptioner and whoever

purchased the property.

Amount subject to sale + interest + taxes, if before the one year

period; however, after the period is over, the amount can be dictated

by the parties freely.

o I purchased property in a public sale, but someone with a better interest came

forward, so I wasn’t able to get possession and transfer of the property. But I

already parted with my money, and paid the sheriff. What should I do?

1. You can recover its value in the same action or separate action

2. You can have the judgment revived in the name of the purchaser – he

steps into the shoes of the judgment obligee.

In this case, he can execute – just like any other judgment obligee.

[So if he cannot pay, he can levy, and if not, he can garnish.]

In execution, you need to remember the word “satisfaction.” Sections 44 and 45 have this

end in mind. The books of the case will not be closed, even if you won, if judgment has not

yet been fully satisfied.

What are the remedies of the judgment obligee is the writ of execution as returned

shows that the judgment has not been satisfied?

o 1. Call the judgment obligor and have him examined in court, through subpoena

o 2. Call on the stand the debtor of the judgment obligor to be examined in court,

through subpoena

What if in the course of examination, we find that he owes the obligor?

He can then be charged.

o 3. Pay directly to the sheriff, and the sheriff issues a proper receipt

o 4. Amortization payments

o 5. Court appoints a receiver

Akin to the provisional remedy on receivership

This is the only provisional remedy that can be given by the court even after

judgment

The reason: to preserve the property.

o 6. If it is later discovered that the obligor has an interest over a property, the court

can order a sale

The property must be within the place in which proceedings are had

o 7. If person who has possession of the property of the obligor refuses to recognize

the title of the obligor, the obligee could ask for an order to have the property sold for

a period of 120 days. If there is sale within this period, the obligee (!) will be the one

penalized (odd).

What are the 3 scenarios to show full satisfaction?

o 1. The writ of execution has been returned to court

Every 30 days, the sheriff has to report on the status of the writ

o 2. Written acknowledgement of the judgment obligee or counsel

o 3. When there is an endorsement on the face of the records of the case

Even if the other party does not consent, but the court believes that it has been satisfied, the

court may enter that it has been satisfied.

What are the effects of domestic judgment? (MEMORIZE)

o 1. As against a specific thing, condition/status/relationship of a person – conclusive

upon it

Where a will has been probated, is death of the party conclusive?

It’s only presumed

o 2. Res judicata

Baretto v. CA: Two aspects of RJ – 1. judgment bars the prosecution of the

same claim, demand, or cause of action, 2. Precludes the re-litigation of a

particular fact or issue in another action between the same parties in a

different claim or cause of action

o 3. Preclusion of issues/conclusiveness of judgment

As to other litigation actually and necessarily included therein

What are the effects of foreign judgment?

o 1. Conclusive as a specific thing

o 2. Presumptive evidence of rights between parties

How do you enforce foreign judgments?

o 1. File a verified petition in the RTC

o 2. There was jurisdiction of the court over the subject matter and over the parties

o 3. Prove the law of that jurisdiction

How do you impugn that foreign judgment?

o 1. Want of jurisdiction/notice to party

o 2. Collusion

o 3. Fraud

o 4. Clear mistake of law/fact

How about foreign arbitral awards?

o You file an action for recognition. It is not a foreign judgment.

Appeals

[*NOTE for Bar review: check your Appellate Practice notes. They’re better, for these sections]

What are the three modes of appeal?

o 1. Ordinary appeal (Rules 40 and 41)

o 2. Petition for review

o 3. Petition for review on certiorari

What are the ordinary appeals?

o Notice of appeal

o Record on appeal

When is there record on appeal?

o Multiple appeals

o Special proceedings

What are the periods?

o Notice of appeal – 15 days

o Record on appeal – 30 days

Can you extend the period of 15 days?

o Not extendable

o But if you file an MR and it is denied, following Neypes, you get a fresh period

Can you extend the period of 30 days?

o No

o Except when there is an authorized alteration or modification of the record

Where do you file a notice of or record on appeal if you are in the MTC going up to the

RTC?

o MTC. Always on the court that issued the judgment.

What is a record on appeal?

o It’s a sequential compilation of the pleadings, orders, etc. of the judge.

o Unlike a notice of appeal, which is just a statement when you received the decision,

that you paid appeal docket fees within period, and you intend to appeal

If you go from the MTC to the RTC, what is the process?

o Take note that the RTC is an appellate court here.

o Parties file a memorandum to the RTC. The RTC will not reexamine the evidence

and witnesses.

In Rule 41, the court of original jurisdiction is the RTC, and the appellate court is the

CA. Why is it also an ordinary appeal?

o Because it’s only been decided on once, and will be reviewed for the first time.

o As opposed to Petition for Review – this deals with cases that have been twice

decided on.

What is the procedure in the CA?

o Filing of appellant’s and appellee’s brief. The procedure is found in Rule 44, not 41.

Period for filing of briefs?

o 45 days, appellant’s brief

o 45 days, appellee’s brief

o 20 days, for reply

o N.B. For the MTC RTA ordinary appeal, the periods for the memoranda are 15

days and 15 days, respectively

When does the court of original jurisdiction totally lose jurisdiction, during appeal?

o When all the periods for appeal have expired

o Or when all the parties have appealed in due time

What are the two kinds of petition for review?

o Rule 42

o Rule 43 (quasi judicial agencies)

o What about petition for review of the decisions of the Prosecutor?

It is technically not a petition for review because it is for criminal procedure,

and is in the executive branch

When does Rule 42 apply?

o There is denial in the MTC, and then denial in the RTC, and then it goes up to the

CA through Petition for Review.

o What about summary proceedings in the MTC?

When you lose in the MTC, you cannot file an MR. BUT you can appeal to

the RTC, then petition for review to the CA.

o What about small claims in the MTC?

You cannot MR or appeal a small claims decision. It is final and executory.

But if there is GADALEJ, you can go up to through a petition for certiorari.

When does Rule 43 apply?

o When the body with original jurisdiction is a quasi-judicial agency

What are the periods?

o Same for Rule 42 and 43 – 15 days

o Can you ask for an extension?

Yes, you can ask for one during the reglementary period.

o Can you ask for a second extension?

General rule is that no further extensions are allowed, except for the most

compelling reasons.

What are the requirements of a Rule 42?

o 1. It must be verified – MEMORIZE

o 2. Attach a copy of the decision or a duplicate original

o 3. Affidavit of material dates (date of receipt of decision, date of filing of MR, date of

denial of MR)

o 4. Parties, issues, grounds relied upon, errors, explanation if service is other than

personal

o What are some of the causes that will dismiss your case?

1. If the jurat does not comply with the requirements of the notarial law

2. Failure to attach registry receipt

What are the requirements of a Rule 43?

o SAME, but you attach all certified true copies

o Why?

Because it came from a QJA. So the court will not be able to verify if the

issued resolutions, etc. are genuine

Is the enumeration in Rule 43 of QJAs exclusive?

o No.

o Can the decision of the Office of the President be reviewed by the CA?

Yes.

o Can the decision of the HLURB be reviewed by the CA?

No. By express provision, it must go through the President before the CA.

o NLRC by the CA?

Yes, but under Rule 65, not 43

o DARAB by the CA?

Yes.

o CTA by the CA?

No. It must be CTA en banc, then SC.

The only way to go up to the SC is through Petition for Review on Certiorari.

o Except: In a criminal case where the punishment is Life Imprisonment, Death, or RP

you go to the SC through Ordinary Appeal

Petition for Review on certiorari – what is the period?

o 15 days.

o Can there be extension?

ONLY ONE extension for 30 days, for good reason

o I asked only for an initial extension of 15 days. But I realized I needed more

time. Can I ask for the last 15?

NOPE. You only get one extension.

Rules 44-56 – CA

How is jurisdiction acquired over persons for original cases filed in CA?

o Service of order/resolution or voluntary submission to the court’s jurisdiction

o What does service of order or resolution mean?

Akin to Rule 13 service

o What if there was an effort to serve and it was not received? Is the court

deemed to have acquired jurisdiction?

No. There must be proper service of the resolution or order. Not like

summons, but the same as Rule 13.

Can the CA conduct a hearing?

o For original cases, yes. This is why the CA requires hearings or arguments for

certiorari, annulment of judgment, mandamus, prohibition, quo warranto.

o N.B. Annulment of judgment is an original action seeking annulment of judgment of

an RTC decision.

Can you seek an annulment of judgment of an MTC decision?

Yes. You file annulment in the RTC.

Can you seek an annulment of judgment of a CA decision?

No. Fall back to the usual rule that you can only go up to the SC

through Rule 45.

o Can the justices hear the case?

Yes. Alternatively, it can ask the RTC to receive evidence.

Preliminary conference is the equivalent of pre-trial in the CA. Whether it is an original or

appealed case, the CA can set it for preliminary conference.

o What is the effect if the appellant is absent here?

The appeal will be dismissed. This is provided in Rule 50.

Rule 50 enumerates grounds for dismissal of appeals.

Browse through this.

Ex. paid docket fees outside of reglementary period, even if you filed

the appeal within the period; failed to file within the reglementary

period

Ex. failure to file an appellant’s brief

o Can the parties stipulate on the facts?

Yes, if it is an original action, or there is a grant of new trial on the ground for

newly discovered evidence

(Note: newly discovered evidence is the only ground for the CA; FAME is not

included)

Oral arguments: what do I need to know?

o 1. Only original cases are argued in court; not appealed cases

But if the CA feels that there is a need for the parties to ventilate their

arguments through oral discussion, then it can do it in its discretion.

o 2. Do you hear motions in the CA?

While for trial courts, motions will be heard, except those that will not

prejudice the rights of the other party.

BUT in the Court of Appeals, motions in the CA need not be heard (same

with the SC)

Comply with minimum requirements of Rule 44 and 50.

o What if you don’t have an assignment of errors?

Your appeal will be dismissed.

o What if you don’t comply with court circulars?

Dismissed.

Rule 51 – provision on judgment. (For trial courts, it is Rule 36.)

<spaced out>

Can you file an MR in the appellate court?

o Yes. Rule 52.

o Same period (15 days)

o Same three grounds – except that the period to resolve in the CA (90 days) is longer

than the TC (30 days)

Can you file a MNT in the CA?

o Yes.

o In the TC, grounds are FAME and newly discovered evidence

o In the CA, the only ground is newly discovered evidence

o Periods?

TC – reglementary period within receipt of adverse decision

CA – from the time appeal is perfected and as long as the CA has jurisdiction

Rule 56 – Supreme Court

Remember Sec. 1 and 3. Memorize the cases that will be originally filed in the SC.

What are the cases that can be originally filed in the SC?

o Certiorari, prohibition, mandamus, quo warranto, disciplinary actiosn against

members of the Bar/bench, against ambassadors, consuls, other public ministers,

etc.

But if you file a case against a member of the Bench, it will be referred to the

Court Administration. If against a member of the Bar, it will be referred to the

IBP.

o Found in the Constitution: Constitutionality of law, treaty, ordinance, tax imposition,

EO, etc.

What do you need to follow for original cases?

o Rule 46 – original cases

o PLUS: Rule 48 (preliminary conference), Rule 49 (oral argument), Rule 51

(judgment), Rule 52 (MR)

o Is there a MNT?

No.

For appealed cases to the Supreme court, what is the mode?

o Rule 45 – the only way to go up to the Supreme Court

o PLUS: Rule 48 (preliminary conference), Rule 51 (judgment), Rule 52 (MR)

o Is there oral argument?

No.

Rule 57 – attachment

Manguila: citing Davao Light and Power. Question is when should jurisdiction over

the defendant vest?

o Distinguish between issuance and implementation of the writ of attachment – to

determine when jurisdiction is needed over the defendant.

o Remember you could file an attachment will the initiatory pleading and apply for it ex

parte. You can also apply for it upon motion.

o To answer the question: there are three stages for attachment –

1. Court issues order granting application

2. Writ of attachment issues pursuant to the order

3. Implementation of the writ

FOR THE FIRST TWO STAGES, jurisdiction over the defendant is not yet

required because it is an ex parte application. However, when you are

implementing the writ, you need jurisdiction over the defendant.

o Thus, how can the writ be implemented?

You have to get jurisdiction over the defendant first.

o Summons should be served prior to, or contemporaneous with the order (for

implementation). Contemporaneous is better.

o Summons belatedly served does not cure fatal defect in the enforcement of the writ.

Either personal or substituted service.

Grounds for attachment? MEMORIZE

o 1. Any claim for money or damages except moral/exemplary, if the claim arises from

an obligation (law, contract, quasi-contract, delict, quasi-delict) AND defendant is

about to depart with intent to defraud

What if claim is recovery for sum of money only?

No. You could only apply for attachment if the defendant is about to

depart with intent to defraud.

o 2. Embezzlement/abuse of trust by one with a fiduciary relationship

For all intents and purposes, this is estafa

o 3. Action to recover property and there is willful fraudulent concealment of the

property

o 4. Fraud in contracting the obligation or fraud in the performance thereof – most

asked ground

First: If not for the fraud, the other party would not have entered into the

transaction

Second: In the manner of the performance, it was fraudulent

o 5. Action against a person who removes/conceals property

Unlike (3), this is directed against a person

o 6. Defendant is a non-resident

Fraud not required here, because he can leave at any time

How do you discharge an attachment?

o 1. Most common: post a counter-bond

When do you post a counter-bond?

Can be posted after enforcement of the writ.

You cannot anticipate its enforcement.

o 2. Improper, irregular, or excessive attachment

What is “improper”?

Grounds are not present in the case

What is “irregular”?

Wrong process.

When can this be raised?

ANYTIME, even before enforcement.

Can you recover damages?

o Yes, Section 20 – if there is improper, irregular, or excessive attachment.

o Section 20 applies to all provisional remedies except support pendent lite.

o Where can you apply for it?

In the trial court; during or after trial.

You can apply for it within reglementary period, or when appeal has been

perfected. AS LONG AS it is pending, and not yet final and executory.

o Yu v. Ngo: Evidence required for wrongful attachment. When there is wrongful

attachment, defendant may recover actual damages, without need of proof of bad

faith. When there is malicious attachment, defendant may recover actual, moral, and

exemplary damages.

o What is the scope of the award of actual damages from attachment?

1. With best evidence obtainable, fact of loss or injury

2. Amount thereof

o Can actual damages cover unrealized profits?

Yes. But the amount must be supported by independent evidence of mean

income of the business undertaken.

o How do you prove moral/exemplary damages?

Prove that the wrongful attachment was with malice or bad faith.

o How about attorney’s fees?

Generally, attorney’s fees cannot be awarded when moral or exemplary

damages are not granted.

Exception: when a party incurs expenses to lift wrongfully issued writ of

attachment.

Metro Ink: Referred to Section 1d of Rule 57. It must be shown that the debtor intended to

defraud the creditor by contracting the debt. The fraud must be related to the execution of

the agreement and must have been the reason that induced the party to give consent.

o If the writ of attachment is issued for a ground that is also the cause of action of the

plaintiff, the only way to dissolve it is to post a counter bond.

o If you post a counter bond, does this waive any further claim for damages

arising from wrongful attachment?

No.

Rural Bank of Sta. Barbara: A motion to release property from attachment was treated as

a third party claim (can also be found in Rule 57, Sec. 14). Works as the same manner as a

third party claim, except for one difference: [READ THIS CASE TO CLARIFY]

o Usually, in execution – The applicant posted a bond when he applied for a writ of

attachment (to cover whatever damages defendant will suffer due to attachment) By

reason of a third party claim, with no bond, the process will be suspended. Now it is

the burden of the applicant to post another bond to cover the third party’s damages.

o In attachment – more or less the same procedure. The third party claim suspends

the attachment procedure. But the right of the third party claimant in execution in

attachment could be vindicated in the same or in a separate action. In execution, it

could only be done in a separate action.

o Why?

Because in execution, the judgment is already final.

o In Rural Bank, a motion was filed to release property from attachment, giving

affidavit of title to the sheriff. The court said that the filing of the motion can be

deemed the same as a third party claim (because 3P claim must be filed with sheriff).

It can also be treated as a form of intervention.

Case: Levy on attachment duly registered takes preference over a prior unregistered sale.

The preference created by attachment is not defeated by the subsequent registration (to the

attachment) of a prior sale, because attachment is a proceeding in rem.

Magaling v. Ong: Irregular and improper issuance of attachment. When the attachment is

challenged for being illegally or improperly issued, there must be a hearing.

o The hearing embraces the right to present evidence, and also the establishment of

rights of other parties.

o Mere filing of opposition is not equivalent to a hearing. Absence of a hearing does

not discharge attachment.

o The discharge of an attachment, whether through counterbond or irregular, improper,

or excessive – can only be done through hearing.

Security case: Two ways to secure discharge of attachment. 1) Party whose property or

his representative has been attached can post a security. 2) Said party can show that the

attachment has been improperly or irregularly issued. Mere posting of counter bond does

not discharge the attachment. There should be a specific resolution for the discharge.

Contents of affidavit for attachment?

o 1. Cause of action

o 2. Statement that the grounds apply

o 3. There is no sufficient security

What if the court renders a judgment and there is a previous attachment, duly

registered, what will the subject of execution?

o If there is money duly garnished or obtained through sale of perishable goods, the

money will be applied.

o If not sufficient, use real or personal property that has been attached. But these

properties have to be sold on public sale. Procedure is consistent with Rule 39.

What if the properties attached are not sufficient to satisfy the judgment?

o Court proceeds with ordinary execution to cover the balance.

Rule 58 - Injunction

N.B. Rule 58 has been amended on Dec 2007. It was amended alongside Rules 41 and 65.

What was affected by the amendment?

o Rule 48, Sec. 5. [Discussed later on]

Bacolod City v. Labayo: Can there be a principal action for injunction?

o Yes. There could be a principal action for injunction. There is a distinction made in

this case between principal action and preliminary injunction:

o Principal action – seeks a judgment for a final injunction which is separate and

distinct from

o Preliminary injunction – object is just to preserve status quo

Greenfield, Dela Cruz v. DECS: What are the requisites for a PI?

o 1. A clear and unmistakable right

o 2. The right has been violated, and invasion has been material and substantial

o 3. There is an urgent and permanent necessity for the writ to prevent serious

damage

Types of PI?

o 1. Preliminary injunction to prohibit or stop (status quo ante)

o 2. Preliminary mandatory injunction – an injunction which requires you to do

something or perform something that you do not ordinarily want to perform, in order

to maintain the status quo

Estares: A writ of PI based only on initial and incomplete evidence – is this allowed?

What kind of evidence is required?

o You don’t need to present your entire case. Only a sampling of evidence is needed,

to give the court an idea to justify why you need to obtain the PI.

Can a judge issue a PI without a notice and hearing?

o No. It’s an absolute no. (Dela Paz)

Can the court issue a TRO without notice and hearing?

o Today, yes. (This is the amendment)

o If great and irreparable injury, court can issue a TRO ex parte (without notice and

hearing) for 20 days.

When stations where there is an executive judge, or the presiding judge of a single-sala

court, there can be an issuance of a 72-hour TRO ex parte – if the matter is of extreme

urgency and the applicant will suffer grave injustice and irreparable injury

Can an injunction have an effect if enforced outside the judicial district? (ex.

enforced in Makati and Mandaluyong, and the judge is stationed in Marawi)

o No. A writ can only be issued in the judicial region.

What is the purpose of the bond?

o To protect the person against whom the writ of injunction has been issued

o The posting of a bond in connection with PI does not operate to relieve the party

obtaining the injunction from paying damages – the bond only gives additional

protection in favor of the defendant

o So Rule 57, Sec 20 also applies here. Read above, on the rule re: damages.

A court issued a writ of PI. What is the duty of the court in relation to the main case?

o The main case has to be decided within 6 months or else the judge can be

disciplined by the court. This is a new provision.

Aquino: Dissolution of the injunction, even if it was obtained in good faith, it amounts to a

determination that it was wrongfully obtained. A right of action against the bond accrues.

Garcia: Posting of a bond is a condition sine qua non to issue a writ of PI.

Borromeo: Where the parties stipulated in their credit agreement, PN, contract, etc., that

the mortgagee has the right to foreclose in case of default, this defeats any future claim for

the issuance of a PI.

SC Circular (2007): On issuance of PI on extrajudicial and judicial foreclosure cases.

o 1. Today it is not enough to say that you have paid the amount. Mere allegation of

payment without showing actual payment is not basis for issuance of PI.

o 2. Mere claim/allegation that the interest is unconscionable or excessive does not

justify issuance of the PI unless the legal interest is paid.

What is a Status quo order?

o It is not a preliminary injunction. Minimum requirements of TRO/injunction do not

apply to status quo orders.

o It can be applied in TC or appellate court. A status quo order can be issued without

a bond, or without a fixed term.

o BUT in the SC Circular (2007): requirements for TRO must apply to status quo

orders if issued for judicial or extrajudicial foreclosure of mortgage.

Can the court require you to post a bond for a TRO?

o Yes.

What are the two kinds of TRO?

o 72 hour TRO – can only be issued by executive judge of a multi-sala court, or

presiding judge of single sala court

Without notice and hearing

Can these 3 days become 20 days?

Yes, after raffle and it is assigned to a regular court judge, who can

now conduct a summary hearing to determine w/n it must extend the

TRO from 3 to 20 days.

o Normal 20 day TRO – issued by a regular court judge after raffle

Without notice and hearing

Great and irreparable injury

Can a 20 day TRO be extended?

No, it automatically expires w/ or w/o a period.

Unless you obtain a preliminary injunction

Can a preliminary injunction be issued without notice and hearing??

o No. NEVER. There must always be notice and hearing.

o The hearing is always summary in nature whether TRO or preliminary injunction.

If you file a petition for certiorari against the PI, does it suspend the main case?

o No, it does not. This is an amendment introduced in 2007.

o Can you extend the period by which you can file a petition for certiorari (60

days)?

No more.

Before the 2007 amendment, you can ask for a 15 day extension. This was

removed already.

How can you dissolve a writ of PI?

o Is insufficiency a ground to dissolve a PI?

NO. It just a ground to deny, not to dissolve

o 1. File affidavits showing there is no reason for the PI

o 2. File a counterbond + an affidavit showing that he will suffer more damage than

applicant will

Is a counterbond enough?

No

Is the statement enough?

No

Rule 59 – Receivership

The only provisional remedy that can be applied for post-judgment and even if it is already

final and executory.

Grounds:

o 1. Property is in danger of being lost

o 2. Property is in danger of being wasted/dissipated

Or Stipulation in a mortgage contract and the security in the mortgage is not

enough to cover the value of the application

o 3. Preserve property during pendency of appeal, dispose of it according to judgment,

aid execution if execution unsatisfied, carry judgment into effect

o 4. Other reasons the court finds convenient

Requires a bond

How do you dissolve the bond?

o 1. Show no cause

o 2. Post a counterbond

Rule 60 – Replevin

Can property held as evidence in criminal case be subject to a writ of replevin?

o Superlines: NO. In the affidavit of the affiant, the property is not subject of custodia

legis, execution, or attachment. The deprivation, to be validly subject to replevin,

must be illegal or unlawful.

o Property can be said to be in custodia legis, not only when it is in official custody, but

if it pursuant to a legal order in a case

Can one quash a writ of replevin?

o Of course, it may be quashed or dissolved

o How do you dissolve?

1. If you want to regain immediately custody or possession, you just simply

post a counter-bond

[take note of this]

2. Attack the sufficiency of the replevin

Here, you cannot effect an immediate release

What is the value of the bond?

o THIS IS THE ONLY PROV REM WHERE THE BOND/COUNTER BOND IS

DOUBLE THE VALUE OF THE PROPERTY.

What are the contents of the affidavit?

o Memorize this for the bar

o 1. The applicant is the owner of the thing

o 2. Property is wrongfully detained

o 3. Property is not lawfully taken

o 4. The fair market value of the property

When can replevin be applied for?

o You can only apply for this AT ANY TIME BEFORE AN ANSWER.

o For the other provisional remedies, you can apply anytime while the action is

pending (or for receivership, even after)

What is your remedy after an answer is filed?

o You file an attachment, but the effects are different.

o What are the differences?

1. In replevin, the property subject of the action is taken. In attachment,

properties, whether real or personal are attached to secure the judgment

2. In replevin, when the writ is served, the sheriff takes possession, and

delivers it to the applicant (unless a counterbond is filed within 5 days). In

attachment, personal property is taken by the sheriff and delivered to the

court; for real property, the sheriff annotates at the dorsal portion of the title.

Note that the main action is recovery of possession of property. The issuance of a writ of

replevin is just a provisional remedy.

Can there be a principal action for replevin as a provisional remedy?

o No, just like everything else, it is a provisional remedy.

o BUT because of the ADR rules, you can file any provisional remedy as a main action

in aid of an arbitration clause. (!!!)

Pinggol: A replevin bond was deemed invalid because the officer who signed the bond is

without authority to do so from his company.

Danao: Can you subject to replevin a motor vehicle in custody of another court?

o No. It is in custodia legis.

Can goods under custody of an agency of the government (here, ex. Bureau of

Forestry) be subject to a writ of replevin?

o No. It is under lawful process.

In attachment and replevin, there are rules for third party claims. What are these?

o 1. Rule 39 Sec 16

o 2. Rule 57 Sec 14

o 3. Replevin

o Note that unlike execution, in attachment and replevin, a third party claimant can

vindicate his right in the same or a separate action. In Rule 39, a third party claimant

can only vindicate his right in a separate action, because judgment is final and

executory.

o What is the rule on intervention (Rule 19)?

You can intervene anytime before judgment. But this only applies to trial

courts.

What about appellate courts?

You can still intervene, but subject to the appellate court’s sound

discretion.

Rule 61 – Support pendente lite

This is the only provisional remedy that does not require a bond. The four others require a

bond. The person applying for support obviously needs money.

o N.B. For all these other provisional remedies, just follow Rule 57 Rule 23. The

general rule is you can only recover damages from a bond while the action is

pending.

o So what is the rule if you are wrongfully compelled to give support?

You don’t recover damages. You ask for reimbursement.

What if there is refusal to comply with court order to give support?

o The court can order execution.

o There are only two instances where there can be writ of execution even when there

is no final judgment:

1. Support pendente lite

2. Indigent (which the court finds that you are not an indigent and requires

you to give filing fees)

What if a person believed that he is the father and he gave support? Then, it turns

out he is not the father.

o If the action is still pending, you can apply for reimbursement in the same action.

o If there is a judgment already, you can apply for it in a separate court proceeding.

Can you dissolve support pendente lite?

o When there is no reason to give support pendente lite.

Rule 62 – Interpleader

Can there be a counterclaim in an interpleader case?

o Yes.

Stuff to remember:

o In the interpleader case, the one filing the case was not violated. There was no

breach.

o The person filing the action can either have an interest which is not in conflict with

the claiming parties, or has no interest at all.

Are there filing fees for an interpleader action?

o Yes.

o However, the applicant, not being violated nor is he a Real Party in Interest – is

entitled to a lien on the judgment award

What is the difference with intervention?

o In intervention, there is already a pending case. Here, you initiate the action.

Rule 63 – Declaratory relief

Almeda: Enumerated the requisites of declaratory relief:

o 1. Subject matter is a deed, will, contract, or other written instrument, statute, EO, or

regulation

o 2. The terms of the documents are doubtful and require judicial construction

o 3. There must have been no breach of the documents in question

o 4. Actual justiciable controversy

o 5. Ripe for judicial determination

o 6. Adequate relief is not available

Bottomline: purpose is for interpretation and determine validity. It’s not about

constitutionality.

o Also, there must be no breach

What if there is breach?

o There will be conversion to an ordinary civil action. This is the only such action that

can be converted.

Do you need to pay filing fees when it is converted?

o Yes, you need.

Which court has original jurisdiction?

o RTC.

o What if there is an allegation of unconstitutionality?

The RTC has no exclusive jurisdiction; you can file it elsewhere like the SC.

The RTC only has exclusive jurisdiction if it is a pure question of declaratory

relief

An action for declaratory relief must be dismissed if there is a pending action for unlawful

detainer.

Malana: Reiterates that declaratory relief presupposes no actual breach.

Second paragraph of Sec. 1: -- covers “other similar remedies”

o Removal of cloud

o Quieting of title

o Reformation of instrument

When can you reform?

There must be mutual mistake.

Can there be execution in a declaratory relief case?

o Yes, nothing prevents the filing of a counterclaim in a declaratory relief, and there

can be execution pursuant to this.

Rule 64 – Review of judgments and Final orders of COMELEC/COA

1. This is actually a petition for certiorari. If you file under Rule 64, it will be named a Petition

for Certiorari

2. The period to file a petition for certiorari under Rule 64 is 30 days, non-extendable.

o But the period can be interrupted, if an MR is allowed. In which case, you get the

remaining period.

3. This has a limited application; it only covers decisions by the COMELEC and COA.

NOTE: For 43 and 64, all the attachments are certified true copies. The reason is you

involve Quasi Judicial Agencies.

Rule 65 – Petition for certiorari, mandamus, prohibition

First rule of Rule 65: you do not talk about Rule 65. Second rule of Rule 65: you do not talk

about Rule 65. You have to fight on your first night.

Real first rule of Rule 65: this is not an appeal

Elements of certiorari?

o 1. GADALEJ

o 2. No plain, available, speedy ordinary remedy

What is prohibition? Should there be GADALEJ?

o Yes. The same is required – GADALEJ. No plain, available, speedy ordinary

remedy.

o It is the same as certiorari.

Certiorari – whose decision can you question?

o Judicial or QJA

Prohibition – whose decision can you question?

o Judicial, QJA, or ministerial

What is the difference between prohibition and mandamus?

o Limited to ministerial functions.

o Here, you are requiring him to perform.

Can the OMB be compelled by mandamus to file an information?

o No. It is not ministerial.

If you entered into a contract with X to build a house for you, and X received the

advance of the contract price, and X did not build the house, can you compel his

performance by mandamus?

o No; it is not ministerial. It is a contractual obligation – specific performance.

Can an OMB judgment be reviewed?

o Generally, under Rule 43.

o However, if the decision of the OMB in a criminal case is tainted with GADALEJ,

Rule 65 Certiorari can be filed with SC.

In prohibition, you cannot prohibit an act that has already been performed. It is already

moot.

Quo Warranto

Who commences an action for quo warranto?

o Liban: Generally commenced by the government.

o 1. President, directing the Sol-Gen

o 2. Sol-Gen, in the name of the government, when he has good reason to believe

o 3. Upon the relation of another person, telling the Sol-Gen to institute the action

What is the special requirement if it is upon the relation of another

person?

There must be approval by the court. If not approved by the court, the

Sol-Gen will not file.

o 4. The person instituting quo warranto in his own behalf must show that he is entitled

to the office in dispute.

This is where the person aggrieved himself files (Sec 5)

What should he show?

1. His claim

2. And that he is entitled to the office

When can you file it?

o 1. Usurpation

o 2. Public officer who does or suffers an act constituting ground to forfeit office

o 3. Association not duly incorporated

Quo warranto is also available if a government corporation has offended

against its chapter.

It is a prerogative writ, where the government can exercise its right to demand proof of what

right a person has over office

What is the venue?

o 1. RTC where respondent resides

o 2. CA

o 3. SC

o This is another example of concurrent jurisdiction

o What is the special rule?

If it is the Sol-Gen who institutes the action, it can be filed in the courts of the

City of Manila

What is the period to institute an action for quo warranto?

o One year from happening of the event

Can you recover damages from a quo warranto judgment?

o One year from entry of judgment

A person who is declared by the court to be entitled to an office should require delivery of

books, papers, documents in the possession of the usurper – if he refuses, he can be liable

for contempt.

If there is a dispute between and among the Board of Directors of a private

corporation, one group claiming that they have been usurped, is the proper remedy

quo warranto?

o No. This is an intra-corporate dispute to be filed in the regular courts (RTC) having

original jurisdiction.

Rule 67 – Expropriation

If it involves a government facility which is subject of expropriation, how much

deposit do you need to give?

o Rule 67, Sec 2 provides that for real property, it must be assessed value, in general.

If it is personal property, assessed [double check]

o Gingoyon: The government must pay at least the proffered value, not the assessed

value. (RA 8974 – the deposit for immediate possession is proffered value.)

Who can expropriate?

o National government

o LGU

o Instrumentality of government

Veluso v. Panay:

o LGUs by themselves have no inherent power of eminent domain. Thus, strictly

speaking, the power delegated to the LGUs is “inferior domain.”

o But an LGU can expropriate.

o What are the requisites before an LGU can exercise eminent domain?

1. Public use, public purpose, public welfare

2. [xxx]

3. Just compensation

4. Valid and definite offer previously made to owner but not accepted

Can a complaint for expropriation be withdrawn?

o It can be withdrawn for as long as there is no judgment yet

o Once there is an order for expropriation, it can no longer be withdrawn

Government entered property (took it) and caused demolition of improvements. But

before there was order for expropriation, the government said “huwag na lang.” Can

the government withdraw?

o Yes. But it is liable for damages.

If there a subsisting contract between government and the private person, there can be no

expropriation contrary to that contract.

Determination of just compensation is a judicial function.

NPC v. Manubay: Is traversing a lot with transmission lines, is there expropriation or

easement fees?

o There is expropriation

Mactan Cebu Airport: When you say “public purpose,” it must be the purpose stated, and

not another purpose, even if public too

o The acquisition of government of property is limited to the public purpose stated,

because it is not a simple purchase in fee simple, unlike normal purchase of

property.

Rule 68 – Foreclosure

Two kinds of foreclosure?

o Judicial foreclosure (Rule 68)

o Extrajudicial (Act 3135)

What is the diff?

o Rule 68 – you have to file a case, just like any other action; you have to pay filing

fees

o Act 3135 – you file a verified petition before the office of the clerk of court, who is the

ex-officio sheriff

When is the EJF scheduled?

After paying of incidental fees and fees for publication

What is diff between JF and execution?

o When there is award of JF, the mortgagor continues to be in possession of the

property.

o In execution, the obligor continues to be in possession of the property.

o What about Banking Law?

In Banking Law, the possession is different. If the lender is a bank and the

borrower/mortgagor is an individual – the one in possession after foreclosure

sale is the purchaser or the bank, if it purchased.

o What about Act 3135?

After foreclosure, the mortgagor still possesses.

Under the lender is a banking institution – follow the Banking law.

What is the redemption period in JF?

o Equity of redemption: period 90-120 days.

o This is just the general rule. If there is a law giving a longer period of redemption for

the mortgagor, then that prevails.

o In execution in Rule 39?

Redemption is one year.

o In Act 3135?

Redemption is one year.

o Bank as lender and mortgagor/borrower is a corporation?

90 days or registration of certificate of sale, whichever comes first.

Metrobank v. Tan:

o Involves filing of a civil case involving annulment and cancellation of an EJF sale.

o The general rule in redemption – not enough to manifest intent to redeem. It must be

accompanied by actual and simultaneous tender of payment. (This also applies

even to redemption in execution.)

What constitutes payment for purposes of redemption?

o 1. The price which the purchaser paid for the property

o 2. Interest of 1% per month on the purchase price

o 3. Amount of any assessment or taxes which the purchaser may have paid on the

property

o 4. Interest of 1% per month on such assessment

Distinguish a legal redemption from conventional redemption?

o Legal redemption is one that is within the period provided for by law.

o Conventional redemption – beyond the redemption period, and you still want to

redeem, and you would like to agree on a different price

Governed by contractual law. So the redeemer cannot insist on the

calculation above

Metrobank case:

o When the complaint to enforce a repurchase, if filed within the redemption period is

treated as an offer to redeem and will have the effect of preserving the right of

redemption.

Take note of the 2007 SC Circular re: TRO and injunction of foreclosures [discussed in Rule

58]

Different types of sale of property?

o 1. Ordinary execution sale

Governed by Rule 39

o 2. Judicial foreclosure sale

Rule 68

o 3. Extrajudicial foreclosure sale

Act 3135

What is the jurisdiction of courts in JF?

o “Any right title or interest over real property” depends on assessed value. So decide

whether it’s RTC or MTC.

Rule 69 – Partition

In the last five years, there were questions in the Bar exam, but they involved EJ partition,

not J partition.

Compare an EJP from a JP?

o JP – covered by Rule 69

You must implead all the co-owners because everyone is an indispensable

party

o EJP – covered by Rule 74

What are the two stages in JP?

o 1. Determination of existence of a co-ownership

The co-ownership is created by agreement of the parties or by operation of

law

o 2. Partition of the property

Who institutes action for JP?

o Any co-owner

What is the role of the commissioner?

o There is a need to refer the matter to a commissioner. But remember that under this

rule, it is NOT mandatory. If the parties agreed, the matter will not be referred.

Step-by-step example of JP:

o There is a co-ownership created by death (inheritance)

o An action was instituted under Rule 69.

o The provision of law does not provide for an answer. But in the absence of rules,

there is an answer. So file one.

o The pre-trial.

o Then parties can agree. If they do, there will be a judgment based on the stipulation

of the parties.

o If there is lack of agreement, refer to commissioners.

Examples of EJP:

o 1. Affidavit of self-adjudication

o 2. EJP upon a notarized public instrument

o 3. Even if there is petition for JP, but the parties agreed, it will be treated as an EJP

Needs publication

Do you need a bond?

o For JP, no.

o For EJP, yes, for personal property.

Requisites of EJP?

o 1. There is no will

o 2. There is no debt

o 3. If there are minors, there is appointment of guardians

Until what period can you contest the distribution of the estate under EJP?

o Within a period of 2 years.

Can you contest a JP?

o Paramount rights cannot be prejudiced, even if there is judgment already

Can JP cover both real and personal properties?

o Yes.

Rule 70 – Forcible entry and unlawful detainer

Distinguish.

o Forcible entry – possession by reason of force, intimidation, strategy, threat, or

stealth

o Unlawful detainer – previous lawful possession but by violation of K or expiration of

the period, it became unlawful

What is the most important allegation in FE cases?

o Prior physical possession

What is the most important requirement in UD cases?

o A demand letter is a specific requirement

o 1. There is a demand to pay unpaid rentals or comply

o 2. AND vacate

There must always be a demand to vacate

o What if the demand letter is defective?

The complaint can be dismissed. A defective demand letter is jurisdictional.

Can you touch on the question of ownership in FE and UD cases?

o But only to preliminarily determine who is entitled to possession.

o But the determination is not binding /prejudicial to future questions of ownership.

Salient portions of procedure:

o In ejectment cases, unlike ordinary cases, the court can dismiss the case outright.

o Absence of an answer will not lead to default, but a judgment of the court. No need

to declare the defendant in default.

o There is a Preliminary conference, just like summary procedure. But after

preliminary conference even without position papers, the court can render judgment

if it is already satisfied.

o Third chance to make a decision: 30 days from filing of last judicial affidavit or

position paper

How do you stay execution of the MTC decision?

o 1. File notice of appeal and pay filing fees

o 2. Post a supersedeas bond

Covers arrearages

o 3. Pay the monthly rentals before the trial court

Can you file an MR in an ejectment case?

o No, it is a prohibited pleading.

o Don’t file an MR, file a notice of appeal.

Are you entitled to a provisional remedy?

o Yes. You can apply for a TRO or preliminary mandatory injunction so you can

recover possession in the pendency of the case.

o But you have to file it within 5 days from filing of the complaint.

In the rule on property, it says 10 days.

What prevails: 5 days.

Can you appeal?

o Yes. The appeal will be elevated to the RTC.

o The decision of the RTC, once final, is executory and cannot be stayed.

o Even an appeal will not stay the execution.

o Benedicto v. CA: If you can get a preliminary injunction or TRO from the next level

court, it can be stayed.

What is the mode of appeal from RTC decision in exercise of its appellate

jurisdiction?

o Petition for review

o Can you file an MR before you file a petition for review?

Yes, because RTC is an appellate court and not subject to rules of summary

procedure.

Rule 71 – Contempt

What is direct contempt?

o An act of disrespect in the presence of, or so near the court of a judge

o It MUST be within the four corners of his office

o Ex. Refusal to take the witness stand or refuses to take an oath. Or wearing shorts

in court. Or your phone keeps ringing.

What is the nature of direct contempt?

o Direct contempt is summary. You will not be asked to explain.

Distinguish from indirect contempt.

o Contempt which is in violation of order or process of court.

Ex. failure to comply with subpoena of court.

o There is notice and hearing.

How do you charge?

o For direct contempt, there is no need to charge. You just need to disobey or

disrespect.

o For indirect contempt, there are two ways:

1. Formal charge of the judge motu propio

2. Upon a verified complaint filed and docketed separately

I have a main case pending in an RTC branch in Makati. I obtained a preliminary

injunction but the other party refused to comply. Can you file a motion for indirect

contempt in the same court that issued the injunction?

o No, a motion for indirect contempt is NOT a remedy now.

o You file a verified petition (separate case).

o After it gets raffled to another branch, you can either:

Let them proceed separately

File a motion to consolidate.

What is your remedy for direct contempt?

o It’s executory, so you can stay its execution by posting a bond.

o File a petition for certiorari or prohibition.

What is your remedy for indirect contempt?

o It’s executory, so you can stay its execution by posting a bond.

o Remedy is an appeal.

What are the penalties for direct contempt?

o If in the RTC or higher court, imprisonment up to 10 days. Fine not exceeding 2,000.

o In MTC, imprisonment not exceeding 1 day. Fine not exceeding 200.

Penalty for indirect contempt?

o RTC or up. Imprisonment not exceeding 6 months, Fine not exceeding 30,000.

o MTC not exceeding 1 month. Fine of 5,000 pesos.

What is difference between criminal and civil contempt?

o Criminal contempt disrespect of the court/judiciary

o Civil contempt violation of right of other party

o Can there be administrative contempt? See below (QJAs)

In case of absence of rules in QJA, what is the rule?

o Venue is where the contemptuous act was performed

o Rules of Court apply

PART II: CRIMINAL PROCEDURE

What is the rule on venue and jurisdiction?

o VENUE IS JURISDICTIONAL. The place of commission determines jurisdiction.

o Contrast with civil law where these are separate concepts.

o The crime of stabbing was committed in Makati; where can it be filed?

ONLY in the courts of Makati.

o What is the exception?

Transitory and continuing offenses, wherein one or more of the elements

happened in more than one venue.

Ex. Estafa, where the elements may be committed in different places (ex.

misappropriation in one place and damage in another).

Ex. BP22 either place of issue, or where the check bounced

Can an offense be committed outside the Philippines yet be filed here?

o Yes.

o 1. Exceptions under article 2 of the RPC

o 2. Under the Human Security Law (Sec. 49)

Covers acts of terrorism

Even if the act was committed outside the Philippines (ex. before a consular

or embassy of the Philippines and it was an act against an officer, or in a Phil.

Ship or airship)

Act against Philippine citizens or against a specific ethnic group.

But there can be instances where the hearings are conducted elsewhere. Is this an

exception?

o No, it’s not an exception, even if there are instances like the Ampatuan case being

heard in Manila instead of Maguindanao, or Mayor Sanchez case being heard in

Pasig instead of Laguna.

o What happened here was a mere transfer of venue. What was transferred was the

VENUE OF HEARING, but the place of institution was still the place where the crime

was committed.

o Where is this rule allowing transfer of hearing found?

Found in the Constitution, and subject to approval of the SC.

What is the jurisdiction of courts under RA 7691?

o RTC: Penalty exceeds six years imprisonment, w/n committed in MM or outside MM

does not matter at all.

Regardless of fine or accessory penalty.

o MTC: Penalty does not exceed six years imprisonment.

o What if the penalty consists of just a fine?

SC Circular 09-94

If the fine exceeds 4,000 pesos, RTC has jurisdiction.

If it does not exceed 4,000 pesos, the MTC has jurisdiction.

What is the jurisdiction of Special Agrarian Court?

o This is important because there can be a penalty for its violation.

o DAR court has exclusive jurisdiction over all matters pertaining to the DAR Law

Except to DAR’s exclusive and original jurisdiction are matters pertaining to

just compensation which goes to the courts

Also and more importantly the RTC as special Agrarian Reform Courts also

has exclusive and original jurisdiction for prosecution of all criminal cases

under the DAR Law

What is the jurisdiction of the Sandiganbayan?

o 1. The accused is at least a Salary Grade 27 employee.

o 2. And the office must be a constitutive element of the offense.

o Can you be charged of offenses following under the RPC?

Yes.

Can there be instances when you are not SG27 and still be under the SB jurisdiction?

o Yes, if there is an express provision.

o Serrano: UP Student Reagent is a public officer under the SB’s jurisdiction. She

claimed that she did not get any compensation and she was not a public officer.

While the first part of 4a only covers officials SG27 and above, the second part

covers officers whose positions may not be SG27 and higher, but who are by

express provision of law are placed under the SB.

Sec 4a(1g) gives the SB jurisdiction over officers in State-owned universities

[Student Reagent is part of the board]

What if the public officer is not SG27 but the office was a constitutive element of the

offense? Which court has jurisdiction?

o Regular courts, subject to appeal before the SB.

o Because the SB has both original and appellate jurisdiction.

What if there is one public officer falling under the SB jurisdiction and the other is

not?

o They can both be charged as co-accused under the SB if at least one is SG27.

o Esquivel v. OMB: There was a session in Sanggunian involving both a Municipal

Mayor and a Barangay Captain. The MM was charged in the SB (since he was

SG27) and the Brgy. Captain was charged as co-accused, even if he was not SG27.

HELD: Valid, because at least one of the co-accused was SG27.

What if a co-accused is a private party?

o Yes, the SB can have jurisdiction over him.

Which court has jurisdiction to file hold departure orders?

o Monejar: An MTC court CANNOT. Only an RTC can issue a hold departure order.

o Circular 39-97 – Hold Departure Orders by RTC only apply to offenses cognizable by

second level courts.

o But there are instances when the DOJ Secretary can issue a hold departure

order, right?

Yes, but this is not under the law but under the powers of the Executive.

There must be probable cause for the DOJ to issue one.

o What is the difference between a HDO and a watch list?

HDO prevents you from leaving.

Watch list – you’re only being watched, but you can leave.

What determines jurisdiction of the court?

o It is determined by the allegations in the information

o And any one of the ingredients of the offense or the offense itself must be committed

within the territorial jurisdiction of the court.

What is the concept of a prohibited second MR?

o As a rule, a second MR is a prohibited pleading.

o Padiola: Such motion is prohibited and will not be allowed except 1) for ordinarily

persuasive reasons and 2) only after express leave has been obtained.

o A wrong mode of appeal under Rule 56 will cause the dismissal of the case.

o Does dismissal of a criminal charge cover dismissal of an administrative case?

No. It does not prevent the continuation of an administrative action.

The degree of evidence is different (proof beyond reasonable doubt and

substantial evidence)

What is the jurisdiction of the OMB?

o Covers any act of malfeasance/misfeasance or omission by a public officer.

o It does not have to be in related to an office. The mere fact that you are a public

officer means that the OMB has jurisdiction.

o Is the OMB a court?

No, it’s an investigative body.

What is the difference between the powers of investigation of the OP and the OMB?

o Unlike the Office of the Prosecutor, which can only act upon an affidavit complaint,

while the OMB can investigate upon:

Own initiative, even without a formal complaint

Inquiry into acts of government

o Method of filing a complaint before the OMB is direct, informal, speedy, and

inexpensive. Just sufficient information is needed.

Which has primary jurisdiction to prosecute cases cognizable by the SB – OP or the

OMB?

o The OMB. The OMB has primary jurisdiction over cases cognizable by the SB. He

can take over at whatever stage of investigation by another prosecutor.

What is the Office of the Special Prosecutor?

o The OP is merely a component of the office of the OMB and may only act upon

authority by the OMB.

o Without authority, the OSP cannot file an information

o The OMB’s power to prosecute carries with it the power to file an information

How do you review the decisions of the OMB?

o If it is a criminal case and there is GADALEJ, you go to the SC.

o Ordinarily, it can be reviewed by the CA under Rule 43 (for QJAs).

Can a case be dismissed outright by the OMB?

o Yes, for want of palpable merit.

Can the OMB prosecute cases within the jurisdiction of regular courts?

o The powers granted to the OMB are very broad, so it can.

Who represents the people during trial?

o Office of the Prosecutor.

Who represents the people during appels?

o Solicitor general

What is controlling in determining the age of a child in conflict with the law?

o Remember, below 15 years of age, he is exempt

o 15 to below 18, exempt if without discernment

If with discernment, go through juvenile law

o What controls is NOT the age at the time of promulgation of judgment, but the age at

the time of commission of the offense.

Rule 110 – institution of criminal actions

If for purposes of jurisdiction of courts, there is no need to distinguish between MM and

Outside MM (OMM), for purposes of institution of the criminal complaint, you will have to

distinguish between MM/Chartered City (CC) and OMM.

MM/CC OMM/OCC

Requiring PI Office of the Prosecutor

Office of the Prosecutor

Not requiring PI Office of the Prosecutor

Provincial Prosecutor/MTC

Falling under Rule on summary proc. (ex. BP22)

Office of the Prosecutor

Provincial Prosecutor/MTC

So who can conduct a preliminary investigation?

o JUST the prosecutor.

The old rule which includes an MTC judge was already amended.

o And the Ombudsman.

Can there be direct filing in a Metropolitan TC (METC)?

o No. Just a MTC (Municipal Trial Court).

What is the procedure in MM, requiring PI?

o The entire Rule 112, Sec. 3

What is the procedure in MM, not requiring PI?

o Only Rule 112, Sec 3(A)

On a BP 22 case, when is the prescriptive period deemed as interrupted? Upon filing

the case in court or filing of the case before the Office of the Prosecutor?

o Note that prescription is 4 years for BP 22. When Act 3326 was passed on 4 Dec

1926, preliminary investigation was conducted by Justices of the Peace (equivalent

of MTC before), and so when it was filed with the JOP for PI, then the prescriptive

period is interrupted.

o So by filing the case with the Office of the Prosecutor, it interrupts the running of the

period.

o (It cited a case where the SEC is investigating a violation of the Securities Code, and

it was deemed to have interrupted the period.)

Who has control and supervision of a criminal case?

o The public prosecutor.

o So what are the 3-fold duties of a PP?

1. Conduct preliminary investigation

2. Prosecute a case

3. Conducting inquest proceedings, consistent with Rule 112, Sec. 6

o It means that the public prosecutor must be there during the case. If the prosecutor

is absent, the hearing will be cancelled.

o A PP cannot come to court because he needed medical attention. He was not

able to inform the court that he could not come. The accused counsel asked if

he could proceed even if the PP was absent, subject to the prosecutor’s right

to cross-examine the witness upon his return. When the PP returned, he

claimed the proceedings were null and void. The other party said that the PP

can cross-examine anyway. Who is correct?

The PP. The proceedings were null and void because he was not present.

o So even if the PP’s presence is a mere passive presence, and not an active

presence, that is fine, because everything is still under his control and direction.

What is the only exception?

o The private prosecutor can obtain a certification from the Chief of the Prosecution

Office to prosecute even in the absence of a PP. This certification lasts until the end

of the case.

What is the role of a private prosecutor?

o The private prosecutor intervenes for the private offended party. He does not

represent the people.

What is the rule on private offenses?

o Adultery and concubinage cannot just be instituted by anyone. It must be the

offended spouse. You would have to likewise implead as accused the paramour or

the partner (so both), unless either is dead. If he has condoned, pardoned, etc. the

offense.

o Applies to seduction, abduction, and acts of lasciviousness.

Who can institute a rape case?

o The minor, the victim, parents, grandparents, guardian, State in default

o The minor now can file alone, without assistance of parents (esp. when the parents

are the offender)

What about defamatory statements in connection with adultery or concubinage?

o Can only be instituted by the offended party.

When is there sufficiency of information?

o Sections 7-12 are elaborations of Section 6.

o 1. Name of the accused

Full name (first and surname)

If his full name is not known?

Can use a nickname or appellation (“Boy Singkit”)

What if there is no nickname or appellation?

Use John Doe or Jane Doe. For civil cases, you use “unknown

owner” or “unknown heir” or whatever.

o 2. Designation of the offense by statute

Ex. murder, homicide, estafa

If there is no designated name of the offense, just say “Violation of Sec. 5 and

11 of the Dangerous Drugs Law”

Recent SC decision: Even in the absence of a particular section, but the

allegation in the information shows that you know the nature of the offense,

then there is substantial compliance.

o .3. Qualifying and aggravating circumstances

Both should be alleged

If it is an aggravating circumstance, it must be alleged. If it is not

alleged but proven in trial, can it be taken against the accused?

No.

Even more reason for qualifying circumstances.

How about mitigating circumstances?

No, because it is part of the defense of the accused.

o 4. Facts or circumstances constituting the offense.

“Cause of accusation” is the equivalent of a cause of action in a civil case

The language of the information should be in a language known to the

accused.

What is the reason for this?

Rule 116 says that the accused must be properly informed of the

nature and cause of accusation against him to make a proper

arraignment and plea.

o 5. Date of commission

Do you need to provide the specific date of commission of the offense?

No need. Just an approximation is needed.

Exception: if the date is a material element of the offense.

Election offense

Infanticide

Is date a material element of the offense of rape?

No.

o 6. Place

Need to show that it is committed within the territorial jurisdiction of the court

But for offenses like trespass to dwelling, violation of domicile, election cases,

arson, etc. where the place of commission is material, you have to allege it

with particularity

o 7. Name of the offended party

Place it there, if it is known

If it is a crime against property, you describe the property so that you will

know who the offended party is

What if it is later on discovered?

It can be inserted in the information

Only one offense per information.

Is there an exception?

o Yes. If there are multiple offenses in one information and the accused fails to object,

each offense proved can be used against him.

Can you amend an information?

o Yes.

Can you substitute an information?

o Yes.

o We always remember amendment, but forget about substitution.

When can you amend or substitute?

o Whether a matter of form or substance, there can be amendment if it is before plea.

o Can you still change the substance of an information after a plea?

No.

o Can you still change a matter of form after a plea?

Yes, as long as it will not prejudice the right of the accused. Memorize this

whole phrase.

What is the test to know w/n it will prejudice the rights of the accused?

If the original defense of the accused will have to be changed due to

the change in the formal amendment.

Ex. The original case is for rape, except that in the formal

amendment, it was alleged that the age should have been 17 and not

18 due to a typo. This will prejudice the rights of the accused.

What is downgrading and exclusion?

o Downgrading is lessening the offense (ex. robbery to theft, murder to homicide,

seduction to acts of lasciviousness)

o Exclusion is removing from the information

o When must downgrading or exclusion take place?

Before plea.

o What are the requirements for exclusion or downgrading?

1. Upon motion of prosecution

2. With leave of court

3. With consent of the offended party

What is difference between exclusion before plea and discharge of the accused as

State witness?

o If exclusion no need to submit an affidavit. In discharge, you have to.

o In exclusion before plea, double jeopardy has not yet attached so you can be

charged again later on.

o In discharge as State witness, it is tantamount to an acquittal so double jeopardy

sets in.

What is substitution?

o The information will be substituted with a new one to be filed, if the prosecution

cannot prove the offense charged in the prior information

o The accused will not be released until a new information has been filed as a

substitute

Rule 111 – civil liability in criminal cases

Once a criminal action is instituted, the civil is likewise instituted

Exceptions?

o 1. Reserved

When is reservation now allowed?

BP 22 cases

When can reservation take place?

Any time before the prosecution commences with presentation of

evidence considering the circumstances of the case. Take note of the

underlined part because the timeline is not a strict rule.

o 2. Waived

o 3. Instituted ahead of the criminal case

When is there need for filing fees?

o Moral, nominal, exemplary, temperate damages require filing fees.

o Actual damages do not require filing fees.

o For BP 22, what is the rule?

For EVERYTHING claimed, even liquidated and actual damages (this is the

face value of the check).

Can you consolidate a Writ of Amparo case with a civil case?

o No.

Can you consolidate a Writ of Amparo case with an admin case?

o No.

Can you consolidate a Writ of Amparo case with a criminal case?

o Yes.

o Follow the general rule: if the civil case was instituted ahead of the criminal case, the

civil case is interrupted in whatever stage and the criminal case proceeds until

judgment.

o And there is an option to consolidate.

What are kinds of acquittal?

o 1. Based on reasonable doubt

o 2. Did not commit the crime

o 3. Purely civil

o 4. The acts from which the civil liability arises from were not committed

What is a prejudicial question?

o A criminal case will be suspended when there is a pending civil case which must be

suspended until the prejudicial question is resolved.

What are the requisites?

o 1. The civil action was filed first

o 2. The resolution of the civil action is determinative of the criminal action

Give an example of a prejudicial question.

o Can trespassing be only committed against the owner of a property?

No. {Check this} So you need not file a civil case to determine who owns the

property first.

o Theft determine first who owns the property

o Who determines whether there is a prejudicial question?

The court.

o What will be suspended?

The criminal case.

Where do you file a motion to suspend on the ground of prejudicial question?

o 1. The court

o 2. The prosecutor, conducting PI

When do you file the motion?

o Anytime before the prosecution rests is case

Can an administrative case suspend a criminal case on the ground of prejudicial

question?

o No.

Can another criminal case suspend a criminal case on the ground of prejudicial

question?

o No.

If there is an independent civil case filed before the criminal case, is the independent

civil case suspended?

o No.

If there is a criminal case filed ahead, do you need to reserve the independent civil

action?

o No. YOU DO NOT RESERVE AN INDEPENDENT CIVIL ACTION.

Can it proceed side by side with a criminal case?

o Yes.

o Compare with a reserved civil action (i.e. not independent).

It cannot proceed side by side.

What is an independent civil action?

o One that can proceed independent of a criminal case

o Arts. 31-34

o Art. 2176

Must an independent civil action be reserved?

o No need to be reserved, and it will not be suspended

If the civil action was instituted ahead of the criminal, and there was a judgment

stating that there was no civil liability, is the offended party barred from filing another

criminal action?

o No.

Preliminary investigation

What is PI?

o Where the prosecutor determines whether there is probable cause to file a case

against a respondent

Distinguish from inquest?

o Inquest is conducted by an inquest prosecutor, when one is caught under the three

exceptional circumstances provided in law

Who can conduct preliminary investigation?

o City prosecutors, and their assistants, Provincial prosecutors and their assistants

o OMB, and if they authorize the Special Prosecutor he can too

What is the procedure for PI?

o 1. After receiving affidavit-complaint, the prosecutor will determine within 10 ten days

whether there is probable cause

Raffle

Assigned to assistant prosecutor

o 2. Assistant prosecutor issues a subpoena to the respondent

o 3. The respondent will issue a counter affidavit within 10 days

In practice there can be a reply or rejoinder, but this is not provided by the

rules

o 4. Optional clarificatory hearing

o 5. Resolution

Who prepares the resolution?

The Assistant prosecutor

Is it the city prosecutor or the assistant prosecutor?

Assistant prosecutor prepares it, and then the city prosecutor

approves it

City prosecutor has discretion to dismiss the complaint, file the

information himself, or ask another assistant/State prosecutor to file it

o Regardless of recommendation

Can a resolution be issued by an assistant prosecutor even without

approval of the City prosecutor?

No.

What if the City prosecutor does not agree with the

recommendation of the assistant prosecutor?

o He has discretion to reverse it.

If the assistant prosecutor believes that there is probable cause, he prepares

a resolution AND an information. Information is filed in court and resolution

served to the parties. If he does not find that there is probable cause, he only

prepares a resolution. But regardless, no resolution can be issued without

the approval of the City or Provincial prosecutor.

Can you file a complaint with the OMB?

o Yes, and he will then investigate. He can also motu propio investigate.

o Can the NBI conduct preliminary investigation?

No (?)

Is service of a subpoena and receipt thereof necessary for the Office of the

Prosecutor to obtain jurisdiction over the respondent?

o No.

o There is still no case filed against him, just an investigation.

o Even if he does not get to file a counter affidavit, there can still be a resolution issued

against him.

X is arrested, accused of possessing illegal drugs, without a warrant. What is the

procedure?

o 1. X is taken to the police station

o 2. X can choose to apply for preliminary investigation, or have them proceed with

inquest

If X applies for preliminary investigation, what happens?

You sign a waiver of Art. 125 of RPC

Will X be released?

If he applies for bail.

Where does X apply for PI?

Before the inquest prosecutor.

Where do you apply for bail?

With the Executive Judge. (This is a “trade secret”)

What is the procedure if someone is arrested for vagrancy, without warrant?

o Note that vagrancy does not need preliminary investigation, so the information can

be directly filed with the MTC.

o Can you apply for bail?

Yes, because you were already arrested.

You were sued for slight physical injuries in MM, and it was not in flagrante delicto,

so it was on the basis of affidavit complaint. What happens?

o There is no need for preliminary investigation.

o So the prosecutor will determine probable cause, then will file the information in

court.

o Is there a need for the respondent to file a counter affidavit here, and is there

need for preliminary investigation?

No.

When are inquest proceedings applicable?

o It must be due to a warrantless arrest:

A. In flagrante delicto

B. A crime has been committed and the police officer has personal

knowledge that the person committed the crime

C. Escaped from confinement or escape

o Also, it must be for an offense that requires PI (at least 4y, 2m, 1d) Just file

affidavit-complaint to the office of the prosecutor. (Because only 3A is required)

o How do we distinguish (A) from (B)?

First kind – the arresting officer was there when the crime was committed

Second kind – the arresting officer has personal knowledge

If a person is arrested with a warrant can he be placed on inquest?

o No.

What if he was arrested for an offense for which he was previously charged, and then

he escaped from detention and he was arrested without a warrant?

o Inquest must be conducted.

How do you appeal a resolution?

o Within 15 days, file a Petition for Review to the DOJ.

o Must the petition be verified?

Yes.

o Can the period be extended?

No.

o If the DOJ decision is adverse, to where do you go?

Rule 43, to the CA

(Or Rule 65, to the CA if there was GADALEJ)

Only to the SC if it’s the OMB

(Or Office of the President if punishable by reclusion perpetua or higher)

o Can you have the DOJ review the resolution if the offense in question does not

require a PI?

No. This is clear in the circular. The offense must require, for its charging, at

least preliminary investigation OR has gone through reinvestigation.

What is reinvestigation?

There was a regular PI, and you were not satisfied with it, so one files

for a reinvestigation with the Office of the Prosecutor or in court.

This is not provided in the rules.

Do all offenses in the RTC require PI?

o Yes, because all offenses charged in the RTC exceed 6 years (and PI is for

4y,2m,1d)

Once the information is filed in court, what can the judge do?

o 1. Issue a warrant of arrest, after personally determining the existence of probable

cause

o 2. Dismiss the case for absence of probable cause

o 3. The case can call for a hearing to determine probable cause

So what are the options for a judge in an RTC case?

o Just these three.

What about the MTC? – Distinguish:

o A. Not exceeding 6y, but more than 4y,2m,1d:

See above [the three options]. So it’s like the RTC.

o B. Below 4y,2m,1d, more than 6m

Same as three above, but the issuance of the warrant is up to the discretion

of the court. If the court believes the offense is not so grave, it may not issue

a warrant and will just issue summons.

o C. Not more than 6m, falling under the rule on SP

The court cannot issue a warrant of arrest. Instead, the court requires you to

file a counter affidavit

So when does the court issue a warrant of arrest?

Only when there is failure by the accused to appear in court despite

repeated notice

What is an example of a crime involving summary procedure?

BP 22

When can you file a motion for determination of probable cause?

o After filing of information, but before the judge has acted on it

o Can you file after issuance of a warrant of arrest?

No.

Will the filing of a petition for review suspend the issuance of a warrant of arrest?

o No. The mere filing of a petition for review will not suspend the issuance of a warrant

of arrest.

o What it suspends is the arraignment.

o For how long?

60 days suspension of arraignment.

Arrest

Does the arresting officer need to show the warrant of arrest?

o 1. Inform cause of arrest

o 2. And that a warrant had been issued for his arrest

o Exception to this?

1. Flees/forcible resistance

2. Informing the accused imperils the arrest

What is the duty of the arresting officer if the arrest is without a warrant?

o 1. State authority to arrest

o 2. Cause of the arrest

o Exceptions to this?

1. Engaged in commission of the offense

2. Pursued immediately after offense

3. Flees/forcible resistance

4. Informing accused imperils arrest

What about arrest by a private person?

o 1. State cause of arrest

What are the other circumstances where there can be arrest without warrant?

o 1. Judicial bondsman may arrest him to surrender accused to court

o 2. Attempt to depart the country

o 3. Person who has been lawfully arrested and has escaped

After arrest what do you do?

o 1. Bring him to the police station

o 2. He will be incarcerated until he files for bail

What if he does not apply for bail?

He will stay in the city jail in the pendency of the case.

If it’s a non-bailable offense, it’s a different procedure.

Just wait for arraignment.

What if he applies for bail?

He is released from the city jail and he has responsibility to attend

arraignment/appear

o 3. Afterwards, there will be an arraignment

What if a person is arrested without a warrant?

o 1. Brought to the nearest police station

o 2. Inquest proceeding will be done

Brought to the Prosecutor’s Office

o 3. The inquest prosecutor can either release you or keep you in detention

When the inquest prosecutor releases you, does this mean your case is

dismissed?

No. You are released for preliminary investigation.

This just means the affidavit-complaint of the police officer used as

basis for inquest will be filed with the prosecutor as an ordinary case.

What if the prosecutor says “detain”?

You can either apply for preliminary investigation or not.

What if you apply for preliminary investigation?

o You sign a waiver of Art. 125.

o Can you then apply for bail?

Yes. You file it with the executive judge.

After waiver of 125, what is the next step?

o Go to preliminary investigation.

What if you did not ask for a preliminary investigation?

o An information can be filed

o Afterwards, there is arraignment

Bail

When does bail apply?

o Whenever there is deprivation of liberty

When is bail a matter of right?

o Before conviction, whether MTC or RTC

Except for cases punishable by RP, LI, DP

o After conviction, if MTC

When is it a matter of discretion?

o After conviction, if RTC

What are the types of bail?

o 1. Cash bond

In a cash bond, how much is deposited in court?

The full amount

Who receives it?

Municipal, city, or provincial treasurer or the CIR

Clerk of court where the case is pending

o 2. Corporate surety

Just pay the premium

o 3. Property bond

What is the most important requirement for a property bond?

The owner must be resident of the Philippines

Registration of the lien must be done within 10 days from approval of the

bond

Does the accused need to be the owner of the property?

No.

o 4. Recognition

Can you be released on your own recognizance?

Yes.

What are the stipulations in a bond?

o 1. Bond is effective upon approval and unless cancelled

o 2. Accused must appear in court if required

o 3. Failure to appear in trial is deemed a waiver

Trial can proceed in absentia

o 4. Bondman must surrender accused to the court for final judgment

<Insert Kira notes>

Rights of the accused

What is the concept of chain of custody in the DNA rule?

o Usually it’s a concept that is connected with drugs, as re: possession of seized item

from the scene of the crime

o For purposes of evidence, it is considered for tampering or authenticity of the

sample. If the sample has been tampered with, you cannot get an accurate result.

What are the ways by which a laboratory can be accredited?

o See Rules on DNA Evidence 7c

What is the rule on filiation?

o DNA results that exclude from paternity are conclusive

o If the value of probability of paternity is less than 99.9% - mere corroborative

o If the value is 99.9% or higher – it is a disputable presumption

o Why is it just a disputable presumption?

Because you can still argue that it would have been physically impossible for

one to do it, or there is no access, and that there is someone who could have

similar DNA makeup (twins, for instance).

o Differentiate corroborative from cumulative evidence?

Corroborative proving same point, but different kind and character of

evidence

Cumulative Same kind and character, proving same point

Right to be present in the course of the proceedings

o What is the consequence of his absence in the hearing?

There can be a trial in absentia if there already is arraignment and the

accused is unjustifiably absent

o When is his presence mandatory?

The general rule is the he must be present at all stages of the proceeding.

o Can this be waived?

Yes.

o Where and when should it be waived?

There should be a stipulation in the conditions of bail. So as a rule, it cannot

be waived.

o What if the private complainant is absent?

It’s fine.

The right to public trial

o General rule is that the trial is public

o When can the public be excluded?

Found in Rule 119, Sec 21.

o Does public trial include public viewing on TV or radio broadcast?

No. It opens room for lawyers to grandstand.

o Also recognized in evidence:

Speedy trial

o How many kinds of speedy trial?

1. Speedy disposition of the case (constitutional law)

2. Right to speedy trial (criminal law)

o What is the difference?

In the Crim Pro concept, you can invoke it anytime before during trial.

In Constitution, any time as long as the action is pending.

o What is the remedy for speedy trial under the Constitution?

Habeas Corpus

Because your continuous detention has no more legal basis

o What if it’s in criminal procedure?

Certiorari

Prohibition

Mandamus

o Rule 119 has a computation. How long is the maximum time between

arraignment to trial?

80 days

If you don’t follow number days, you could expect a MTD on ground of

violation of right to speedy trial

o Entire period of trial?

180 days

o But why are a lot of cases that do not commence in time, and are not

dismissed due to violation of this right?

Because of the exclusions.

o What are the exclusions?

Prejudicial question

Mental or physical condition of accused is examined

Other criminal charges

Extraordinary remedies against interlocutory order

Orders of inhibition or change of venue of cases

Absence or unavailability of an essential witness

Absent whereabouts unknown

Unavailability whereabouts known

Memorize this list. Rule 119 Sec 3.

o Cases:

In one case, Pre-trial happened after 7 years. Delay was brought about by

extraordinary remedies, like a Rule 65 pertiorari. The right to speedy trial

was invoked, but the SC said there was a valid exclusion

But as a rule, extraordinary remedies must not be entertained and will

not stop an ongoing criminal trial. Of course, there are special cases.

In another case, there were 20 postponements. The witness requested by

the prosecution was in the custody of the NBI, but did not bring the witness

in. This was reasonable delay, and the prosecution was acting in GF.

o What is “VCO”?

Vexacious, capricious, oppressive

Right to confront witnesses presented against him

o Basically, can cross examine

Compulsory processes

o Can apply for subpoena ad testificandum and duces tecum

Right to modes of discovery

o Can apply modes of discovery in criminal cases.

o Rule 119, Secs. 12, 13, 15 Conditional examination of witnesses for the

prosecution/accused. This is the equivalent of Rule 23 depositions in criminal trial.

o Purposes for prosecution:

1. Sick or infirm, or unavailable

2. or the witness is about to depart.

o Purposes for accused:

1. Sick or infirm or unavailable

2. or more than 100km

o What is the difference if it will be availed of prosecution or accused?

Prosecution: ONLY in the court where the action is pending

Accused: Before any judge, member of the Bar in good standing, and if

ordered by a superior court directing an inferior court

Right to testify on his own behalf

o Can the accused testify for the prosecution?

Yes, but he can refuse

o Can a party in a criminal case be asked a question that would raise civil

liability but not criminal liability?

[Answer unclear, but since it’s purely civil, I think the witness can be

compelled]

Right to appeal

o Will be discussed below (Rule 122-125)

Arraignment

What comes first, plea or arraignment?

o Arraignment, where the information is read against him

o Can the arraignment be dispensed with? (Ex. by an accused that does not

want to hear the information)

Never. You cannot waive the arraignment.

o Can the arraignment or reading be in a language different from what the

accused knows?

No. It must be in a language known to the accused.

What about a belated arraignment? (P v. Trinidad)

o This happened when they realized that there was no arraignment. There was a

belated arraignment that was validated because the lawyer had an opportunity to

cross examine and the lawyer actively participated in the proceedings.

What are the kinds of pleas?

o 1. Plea of guilty

A. Plea of guilty to lesser offense

Until when can you do this?

o At very latest, pre-trial

o After trial, cannot plea guilty to lesser offense

B. Plea of guilty to capital offense

Punishable by death.

What is required?

o Conduct searching inquiry to see if it is voluntary and if he

understands the plea

What does it entail?

o 1. Background check (age, education, socio-economic

conditions)

o 2. Conduct of custodial investigation

o 3. Explain the nature of the offense and extenuating

circumstances to the accused

Hearing after the plea

C. Plea of guilt to a non-capital offense

Should there be a hearing?

o It’s not mandatory

D. Improvident plea

What is an improvident plea?

o Plea of guilty without fully understanding consequences of the

plea

o X pleaded guilty to homicide. He didn’t know that if he

pleaded guilty, there won’t be any hearing anymore. Can

he withdraw the improvident plea?

Yes.

When can it be withdrawn?

o Any time before judgment of conviction becomes final (after

appeal)

What are the further actions of the court in case of an

improvident plea?

o If the sole basis of conviction is the improvident plea, it is

remanded for further proceedings in the trial court. (Ex. the SC

sends it back to the RTC)

o If the conviction is supported by other evidence, the SC will

render judgment

o 2. Plea of non-guilty

A. Conditional plea

What is this equivalent to?

o It’s akin to a plea of not guilty

B. Refusal to enter a plea

The court assumes it’s not guilty

Can a representative enter a plea of not guilty?

o No. The accused must be the one to enter the plea.

[Should the accused be present during promulgation of

judgment?]

o Yes.

o Is there an exception to this rule?

Yes, for light offenses. The accused can be

represented.

C. Direct plea of not guilty

D. Say guilty but present exculpatory evidence

When is there suspension of arraignment?

o 1. Accused suffers from unsound mental condition

o 2. Prejudicial question

o 3. Petition for review pending with DOJ

Not exceed 60 days

o 4. Pending incidents:

A. Motion to quash

B. Motion for inhibition

C. Motion for bill of particulars

Can there be a bill of particulars in a criminal case?

o Yes. Apply before enter of plea.

What is required?

o Identify defects and details desired

Motion to quash

Why do you file motion to quash?

o To quash the information because it is defective or the court has no jurisdiction.

Differentiate from provisional dismissal:

o In P.D., there is no questioning of the information. In fact, it is valid and charges a

proper offense and the court has jurisdiction over the SM and the person.

What is the effect of a grant of a MTQ?

o Dismissal of the case.

o Is it always dismissal?

Court can order amendment. [No period provided.]

Amendment is a remedy, but it has a narrow application. It does not apply to

all grounds.

Can a case dismissed by a MTQ be re-filed?

o As a general rule, yes.

o It depends on the ground.

o When can it not be re-filed?

1. Prescription

2. Double jeopardy

Can a prosecution file a MTQ?

o No. The applicable remedy is substitution of information.

When a case is dismissed provisionally, what is the effect?

o The case is temporarily dismissed.

Ex. “This case is dismissed for 30 days”

o It can be revived (don’t use “re-file” because the dismissal was just provisional)

o Who will ask for provisional dismissal?

1. The prosecution

With consent of accused

If there is no consent of accused, is it a provisional dismissal?

o No. A dismissal without the consent of the accused would

lead to double jeopardy (obtains finality).

2. Or the accused

Is the prosecution’s consent required?

o No. Even without consent, it’s still a provisional dismissal. As

long as it doesn’t pass the time leading to permanence.

o When can you ask for provisional dismissal?

Any time.

For a dismissal to take effect in MTQ, do you need to wait for a lapse of time?

o There is still a period to seek a remedy after. Ex. You can file an MR.

o After this period, it can be re-filed. (Except for the two exceptional grounds.)

For a provisional dismissal to be permanent, what is the period required?

o Beyond 6 years 2 years

o 6 years or less 1 year

o When will this period begin to run?

Upon receipt of notice, by the accused (given by the code)

But this has been supplemented by Lacson: Period can only start upon

receipt of notice by the public prosecutor

Rationale: because it is the public prosecutor’s duty to revive the case

What are the grounds for a MTQ?

o 1. Facts stated do not constitute an offense

The elements of the offense are not there

But is it possible that while not constituting an offense, you can be

liable for another offense? Can this be the proper ground of a MTQ?

It’s possible. This is not a ground for a MTQ.

Ex. Charged with qualified theft, but relationship was not alleged. You

file a MTQ. The court can order an amendment to show relationship.

The court cannot quash because there is an offense alleged in the

information.

o 2. Officer who filed the information had no authority to do so.

There was a case in the Sandiganbayan. There was a motion for

reinvestigation and it was granted. The Special Prosecutor amended it

and re-filed it. Can he do that?

No. He has no authority; it is not within his powers.

Ex. a Prosecutor with authority only extending to Bulacan cannot file an

information in Makati.

If a State prosecutor is appointed as Acting city prosecutor, does he

have authority to approve/file the information prepared by the asst.

prosecutor?

Yes as long as he is properly appointed by the DOJ.

o 3. Lack of jurisdiction over the person of the accused

Accused has not voluntarily surrendered

Or Accused not arrested

o 4. More than one offense was charged in the information

How do you know if there is more than one offense?

Ex. murder – can you kill a person twice? No.

Ex. rape – you can rape someone multiple times. For instance X

raped Y five times. How many informations should you file?

o Five.

What if ten checks bounced?

o Ten informations, because each is an offense in its own.

o 5. Criminal liability has been extinguished by prescription

Recall that there is prescription of crimes and prescription of penalties.

To which does this ground apply to?

Prescription of crimes. In prescription of penalties, there is already a

judgment.

o 6. Contains averments that if were true, would constitute a legal excuse or

justification

Ex. Self-defense

o 7. Double jeopardy

What are the requisites?

1. Court of competent jurisdiction

2. Valid information

3. Plea

4. Conviction, acquittal, or dismissal without express consent of the

accused

What are examples of dismissal without the express consent of the

accused?

Ex. failure to prosecute

What about motion to dismiss prompted by the accused on the ground

of violation of right to speedy trial?

It is tantamount to an acquittal and thus leads to DJ. This is an

exception to the general rule

What about a demurrer to evidence which is granted by the court?

It is also tantamount to an acquittal and thus leads to DJ. Another

exception.

What about a motion for determination of probable cause filed by the

accused and granted by the court?

No, this is not an exception. There is no plea yet. There is no

dismissal without express consent of the accused.

Compare motion to dismiss from motion to quash.

o Re: court actions

o Motion to dismiss:

The court can grant, deny, or order an amendment

o Motion to quash:

The court could only order amendment if it’s a defect that can be corrected by

such amendment.

UNLIKE in motion to dismiss, regardless of the ground, the court has

a free hand: can grant, deny, or order amendment.

Whereas here, the court has to order an amendment before denying/granting,

on some grounds.

o Re: refilling

o Motion to dismiss:

In general, it can be re-filed.

Except:

1. Prescription

2. Unenforceable under Statute of Frauds

3. Res judicata

4. Extinguish of claim or demand (PWEA)

o Motion to quash:

In general, it can be re-filed.

Except:

1. Prescription

2. Double jeopardy

o Re: objections not raised

o Motion to dismiss:

In general, grounds not raised are waived.

Except for:

1. Lack of jurisdiction over the SM

2. Prescription

3. Litis pendentia

4. Res judicata

o Motion to quash:

In general, grounds not raised are waived.

Except for:

1. Does not constitute an offense

2. Prescription

3. Double jeopardy

4. Lack of jurisdiction over the offense

When will double jeopardy not set in?

o 1. When there is a supervening event.

o 2. Facts constituting graver charge only were discovered after a plea was entered

o 3. Plea of guilty to lesser offense was made without consent of prosecutor

Except?

For purpose of plea bargaining, the private offended party was notified

but did not appear during arraignment

And the offense is necessarily included in the offense charged

Can there be compromise?

o Basic rule: you cannot compromise criminal action

o But you can compromise the civil aspect of the case

But when you compromise the civil liability, it does not lead to the dismissal of

the criminal case

What do you need?

Affidavit of desistance by the offended party. This is as to the civil

aspect.

The prosecution has to move for the dismissal of the case

o If the prosecution moves for dismissal, does double jeopardy set in?

Check the requisites. If there is plea, double jeopardy sets in. If there is

none, double jeopardy will not.

Can the admissions of the accused be used against him in the proceedings?

o Yes, if it is in writing and signed by the accused and his counsel.

Absences and appearances:

o The rule of absences in pre-trial (in civil case) does not apply in criminal cases.

o The pre-trial will be reset.

If the witness is absent, the court can rely on compulsory processes

If the accused in absent

1. There is forfeiture of bail

2. There will be a warrant of his arrest

[Distinguish cancellation from forfeiture of bail]:

Cancellation –

o Voluntary surrender or death.

o It is automatically cancelled upon acquittal, conviction, or

dismissal of the case against him without express consent of

the accused.

Forfeiture – failure to appear

What is the procedure?

The court will order the bondsman to produce the accused within 30

days. If he fails to do so, the bail will be forfeited.

What is your remedy for forfeited bail?

Appeal

Pre-trial

Is it mandatory?

o There is pre-trial before Clerk of Court

Can there be stipulations?

o Yes

Can there be marking of documents?

o Yes

What is the order of trial?

o Prosecution

o Defense

o [fill in]

o Can it be reversed?

Yes, when there is self defense and other exculpatory defenses

Discharge of the accused as state witness – requisites?

o 1. There is no direct evidence

So for this, you have no one who can point to the perpetrator.

What is the opposite of direct evidence?

Circumstantial evidence

o 2. There is absolute necessity for the evidence

o 3. Could be corroborated in its material points

o 4. Not the most guilty

o 5. Not convicted of a crime involving moral turpitude

When can an application for discharge be made?

o Before the prosecution rests its case

o What does the applicant need to do or submit?

Submitting sworn affidavit

o What happens to the statement?

Becomes part of the evidence of prosecution

o What happens to the accused?

Becomes acquitted

o If the application is denied, what happens to the statement?

It’s inadmissible

Compare with requisites for discharge under Witness Protection Program?

o The requisites are the same.

o But the mode of application is different – you file it with the DOJ, not with the court.

(Yu v. RTC of Tagaytay)

o Does double jeopardy set in, if under WPP?

No, because there is no plea.

So he can be prosecuted afterwards (!)

When do you file a demurrer to evidence?

o Civil – after plaintiff has completed presentation of evidence

o Criminal – after the prosecution rests

Do you need leave of court?

o In criminal: you don’t need to, but there are serious consequences if you do not

secure leave.

If you file with leave of court and it’s denied, the accused can still present

evidence

If you file without leave of court and it’s denied, the accused will not be able

to present evidence – there will be a judgment

o In civil: no need for leave of court

In criminal cases, if the demurrer is denied, can you file a petition for certiorari?

o No. You cannot file a petition for certiorari. You have to wait for judgment.

What’s the effect of a grant of demurrer in a civil case?

o It’s a final disposition of the case.

o In a criminal case?

It’s a dismissal. It amounts to an acquittal.

Judgments

What should a judgment contain?

o Offense you have committed

o Penalty to be imposed

o Participation, whether principal, accomplice, accessory

o Aggravating or mitigating circumstances

o If acquitted, whether:

Complete non-liability

Reasonable doubt

Or if the facts from which the civil liability might rise from were not committed

Does the prosecution have remedy against an acquittal?

o Note than an acquittal is immediately executory.

o But if there is GADALEJ (P v. Hernandez) – you can file for certiorari

Before you challenge an acquittal this way, you have to secure consent of the

Solicitor General

And this is only for exceptional circumstances

How do you promulgate judgment?

o The accused should be present during promulgation

Except if it is a light offense

Or else he forfeits his remedies

o There is a period – within 15 days from promulgation of judgment – within this period

he has to explain why he was absent

o If he is in jail, to whom is the notice served?

The warden

o If he is out on bail?

The bondsman

o If he is at large?

Notice sent to last known address

Is there promulgation in appellate courts?

o Yes.

o When duly certified by the division, and then forwarded to the clerk of court, who will

give notice of promulgation on paper

Can a judgment be modified?

o Yes, before it is final and executory

Appeals

Is there a record of appeal on criminal cases?

o No.

Is there ordinary appeal (notice of appeal)?

o Yes.

Ordinary appeal

Criminal: X was charged with acts of lasciviousness (within MTC jurisdiction). MTC

renders judgment. Who reviews it?

o RTC, through notice of appeal filed with the MTC. (RULE 122)

o Compare/contrast with Civil:

MTC RTC, through notice of appeal. (RULE 40)

Or MTC RTC, through record of appeal (not available in criminal cases)

What is the procedure in the RTC for criminal cases, when acting as appellate court?

o Parties submit their memoranda (Rule 122, Sec 9)

o Compare/contrast with Civil:

Same. Parties submit memoranda.

Criminal: Court of original jurisdiction is the RTC, and he was convicted for homicide.

Appeal?

o Go to the Court of Appeals, through Notice of appeal filed with the RTC.

o Compare/contrast with RTC in civil action:

Go to the CA, through Notice of appeal filed with RTC. OR file a record of

appeal.

So still the same.

o What is the procedure followed by the CA in criminal cases?

File appellant’s brief (Rule 124), within 30 days

File appellee’s brief, within 30 days

Reply brief, within 20 days

o Compare/contrast with civil cases:

45/45/20 days

Petition for review

How does it reach the CA on petition for review?

o If the original case was filed in the MTC.

o MTC RTC CA

What about civil cases?

o Found in Rule 42.

o Still MTC RTC CA

Criminal: Review by the Supreme Court, if the penalty is not punished by death, life,

or reclusion perpetua: from where should it come from?

o From the CA or the SB only

o Use Rule 45, whether civil or criminal. Again, the general rule is that you cannot go

up to the SC except through petition for review on certiorari.

o In civil, from where can you come from?

RTC, CA, SB, CTA en banc, etc.

RTC, penalty is death, based on the law (although it cannot be implemented). How do

you appeal?

o There is automatic review to the Court of Appeals, even in the absence of a notice of

appeal.

o The case is with the CA. What can the CA do?

If it finds for death again, it can render judgment but not enter it.

o What happens after?

The CA will certify the case to the SC.

The penalty is life/RP. Is it covered by automatic review?

o No. You need notice of appeal. CA

o The Court of Appeals found in favor of life/RP. Can it render and enter a

decision?

Yes.

o How do you appeal this?

This is the singular instance where you file a NOTICE OF APPEAL with the

Court of Appeals.

Can there be a valid judgment even if the judge who rendered the judgment was not

the same one who heard the case?

o Yes.

Logrida v. P: Rule 122, Sec. 11 provides: even if an accused did not appeal when there are

multiple accused, and there is a favorable judgment, it could benefit the non-appealing

accused.

o However, in this case, the accused invoking this provision actually filed an appeal,

but it was dismissed due to a technicality.

When is as appeal deemed to be abandoned?

o When the accused jumps bail, escapes, or fails to file an appellant’s brief.

Counsel-de-officio:

o The general rule is the accused is given the choice to retain a counsel de parte (of

his choice)

o If he cannot afford one, the court appoints a counsel de officio

o One can be appointed during arraignment, or for the rest of the trial.

o Can a counsel de officio be named in the Court of Appeals?

Yes, when the accused signed his own appeal. Also, when he was not

assisted by counsel.

o Can the SC appoint a counsel de officio for the accused?

Yes, the SC can, but this is not provided for in the rules.

Searches and seizures

The search warrant said “an undetermined amount of shabu.” The original case was

for marijuana. Will this be enough for the police officers to conduct a search?

o Yes, even if the amount was not specified. What is required is that the object of the

search be described with particularity. Quantity is not required.

The police officer was armed with a search warrant. But before implement or

enforcing it, on plain view, he saw illegal firearms. Can there be a valid search?

o Yes. Plain view exception applies, even if there is a search warrant.

Where could you apply for a search warrant?

o You apply to the court, following the rule on territoriality.

Can it be possible to apply in a court outside of the place where the crime was

committed?

o Yes, for compelling reasons.

o What can be a compelling reason?

It’s a question of fact, but an example is when he is a public officer of that

locality and there is doubt that a search warrant can be properly applied for.

Is application for a search warrant a criminal action?

o No. It is a special judicial process.

Can it become one?

o No. You need an information because the application for a search warrant will not

evolve into an information.

Where do you file for quashal of search warrant?

o In the court wherein it was applied for if there is no case yet

o If there is a case, in the court where the case is pending

Who determined probable cause for search warrants?

o The judge. Not the prosecutor.

o Wherelse is probable cause required, apart from application for search

warrant?

Preliminary investigation

Rule 113, warrantless arrest (personal knowledge that crime has been

committed)

Warrant of arrest

Search and seizure

o What is required for the judge to do?

Personal examination and determination by the judge of the

complainant/applicant and witnesses.

It does not involve mere submission of affidavits.

Give an example of a search based on a warrant, where the place is described with

particularity.

o Ex. if it’s an apartment, you give the number of the apartment.

o What if it’s a stretch of apartments, and what was indicated is apartment B, but

what was searched was apartment C. Was there a valid search?

No.

o But was the search warrant valid?

Yes. The search warrant can be valid, but the implemented was invalid.

o There were illegal items seized from apartment C. How can you prevent these

goods from being used in a criminal trial?

Motion to suppress.

o Differentiate motion to quash from motion to suppress.

Motion to quash is before implementation of the search warrant.

Motion to suppress is after implement and before presentation in court.

What if there is no way to describe with particularity the place, esp. when it is a

province?

o It’s possible to say “kilometer 30.” But this can’t apply for cities or municipalities.

To whom must a search warrant be served?

o The lawful occupant.

o In the absence of the lawful occupant?

To a relative.

o In the absence of the occupant or relative?

To two witnesses of sufficient age and discretion residing in that locality.

When the items are seized, to whom must the receipt be given?

o To the lawful occupant or relative

o If there are two witnesses, the receipt will be left in the premises where they were

seized

What is the duty of the officer after the search?

o He should present an inventory of the items. Failure to submit inventory makes him

liable for contempt.

Dangerous Drugs Law: what are the special rules?

o The inventory must be made at the scene of the crime. (For normal crimes, it can be

done in court or police station or wherever.)

o The person must make a physical science report to track the chain of custody.

What is the rule as to search and arrest?

o The general rule is that the arrest must come before the search and seizure.

o Or, the search and seizure must be contemporaneous to arrest.

If you apply for a search warrant in QC, can it be applied outside of the territorial

jurisdiction?

o If it’s a violation of the DDL, IP code, illegal possession of firearms, illegal gambling,

heinous crimes, AML, violation of tariff and customs code.

o You have to apply before an executive judge before the City of Manila or Quezon

City. This will be effective anywhere in the Philippines.

Re: Seizure of fake goods (ex. fake Adidas) – What is the role of the private party?

o The private party can submit documents and pleadings to support the application of

the NBI.

The place of manufacture of the fake goods is in Cavite, and place of sale is in San

Juan. Where do you apply?

o Either place.

Provisional remedies

What is the general rule?

o Provisional remedies in civil procedure are applicable to criminal procedure.

What about replevin?

o Does not apply because it can only be filed before an answer, but in a criminal case,

there is no answer.

What are the grounds?

o 1. The accused is about to abscond or depart with intent to defraud

o 2. Claim for money or property that has been embezzled with abuse of trust (estafa)

o 3. Accused resides outside

o 4. Accused has concealed/removed/disposed his property

PART III: EVIDENCE

When did the Rules on Evidence take effect?

o July 1, 1989

What is evidence?

o Evidence is the means, sanctioned by the Rules, of ascertaining in a judicial

proceeding the truth respecting a matter of fact.

Not all concepts of evidence will require presentation of evidence. What are there?

o Ex. Judicial notice

o Ex. Judicial admissions

When you’re required to present evidence, there are three kinds:

o 1. Object

o 2. Documentary

o 3. Testimonial

Whether it’s object, documentary or testimonial, what is required?

o They have to pass the test of admissibility (Rule 128, Sec. 3)

When is evidence admissible?

o When it is relevant and competent

o What is relevant?

Has direct relation to the fact in issue

o What is competent?

Not excluded by the rules on evidence

o What are not competent – give examples

Those excluded by the Best Evidence Rule

Those seized without valid warrant and without a valid exception

Those violating the Parol Evidence Rule (contents in the written document

are presumed to be the repository of all the matters agreed upon by the

parties)

Differentiate direct from circumstantial evidence.

o Direct: prove a matter without need for inference or presumption

o Circumstantial: facts, from which the existence of another fact may be inferred as a

necessary or probable consequence

o When is testimonial evidence direct evidence?

When the witness was able to perceive the matter being testified upon

o Can circumstantial evidence be the basis for conviction?

Yes. As long as there is more than one circumstance and each is proven.

o Can circumstantial evidence be basis for identification?

Yes.

What is positive evidence?

o Evidence that proves something happened. (“I saw him stab person X”) or (“I did not

see him stab person X”)

What is negative evidence?

o Evidence where the witness was there, but he did not perceive anything. (“I was

there in the scene, but I did not notice anything happen.”)

What is primary evidence?

o Best available evidence to establish the fact in issue

o What is an example of primary evidence?

Best Evidence Rule

The secondary evidence here is photocopy, recital of the contents, or

testimony as to its contents.

What is weightier, physical evidence or testimonial evidence?

o Physical evidence.

Note: exceptions to the hearsay rule are not absolute. They can be contested or impugned.

o How do you destroy the exception?

Destroy the requisites.

“Ex. ‘was it audible?’ ‘was he aware that he was going to die?’”

Is there primary evidence in object evidence?

o Yes. If you want to present a car, present the actual itself.

o What is the secondary evidence?

A car of the same model, same type, etc. which will aid the court in

understanding the object involved.

Is there primary evidence in testimonial evidence?

o Yes. A person who had personal knowledge.

o What is the secondary evidence?

Hearsay. N.B. but note that the codal does not expressly tag hearsay as

secondary evidence although it is. When asked in the bar what secondary

evidence is, give the answer for documentary evidence to be sure.

What is prima facie evidence?

o That which suffices to prove a fact, until contradicted by other evidence

o But can it establish a conviction?

[not answered]

o What is the difference between prima facie evidence and disputable

presumption?

Prima facie evidence arises from a fact that would sufficiently create a

reasonable belief that an act alleged has arisen

Disputable presumption arises from Rule 131

N.B. they are the same in such that these can be controverted

What is conclusive presumption?

o It cannot be controverted

o But can you attack a fact that leads to a conclusive presumption?

Yes.

o Give an example of a conclusive presumption.

Tenant cannot deny the title of his landlord

Distinguish between preponderance of evidence and proof BRD:

o Preponderance – Court determines superior weight of evidence; for civil cases

o Proof BRD – Moral certainty, conviction will arise from an unprejudiced mind; for

criminal cases

Are the rules of evidence uniformly applied in all our courts?

o Yes.

o Trade disputes in DTI?

No.

o NLRC exercising QJ functions?

No. You don’t need best evidence available here (can use photocopies,

that’s fine)

o What does “except if otherwise provided by law”?

If otherwise provided, then the uniform application will not extend to that.

Ex. Agrarian cases

Rule 130, sec. 26/27: compromise rules are not the same in civil and criminal

cases

Character evidence: there is also difference in civil and criminal cases

Two witness rule in treason

What is relevancy?

o Has relation to fact in issue as to induce belief in its existence or non-existence

What about collateral facts?

o General rule, not relevant

o EXCEPT, when the collateral matters establish probability or improbability of the fact

in issue

o Give an example.

In rape, the accused can point to the character of the supposed victim to

prove that there is probability that the intercourse was consensual.

N.B. You can only use character evidence if there is a character trait involved

in the offense charged.

Judicial notice

When is it mandatory?

o 1. States – existence, territorial extent, political history, forms of government,

symbols of nationality

o 2. Law of nations, admiralty, maritime courts of the world, and their seals

o 3. Political constitution and history of the Philippines, official acts of legislative,

executive, judicial departments of Philippines

o 4. Laws of nature, measure of time, geographical divisions

Why are these mandatory?

o Because they have already been established. They cannot be disputed anymore.

o No need to introduce evidence anymore.

Can the court take judicial notice of rentals?

o No. The court cannot take judicial notice of factual matters.

Is the court bound to take judicial notice of municipal orders?

o The court is obliged to take judicial notice of law, but not ordinances.

o What about memorandum circulars issued by departments?

No. The court is not expected to take notice of these less important matters.

What is covered by discretionary judicial notice?

o 1. Matters of public knowledge

Examples:

Ex. death of Corazon Aquino

o 2. Capable of unquestionable demonstration

What is this?

If repeated in a regular manner, it will establish that fact.

Examples:

Mathematical computation

Statistics

Effects of poison, etc.

Do surveys fall under this?

No, because methods change, samples change, etc.

o 3. Ought to be known to judges due to their judicial function

Can a judge take judicial notice of proceedings pending in other

courts?

No.

He’s not bound to know all the cases filed.

What about pending cases in his own sala?

No.

Unless he takes the consent of the parties.

When can there be taking of judicial notice?

o During trial – on any matter and with hearing

o After trial and before judgment – same, but only on matters decisive of a material

issue in a case

o After appeal – same, but only on matters decisive of a material issue in a case

Can every matter be subject of judicial notice?

o Yes, during the hearing.

o You are not limited to the enumerations provided in law.

What is the need for a hearing?

o Propriety of taking judicial notice

There was an insurance recovery claim, dated September 2009. It was not alleged in

the claim that the loss happened on the day Ondoy struck Manila. Can the other party

request the court to take judicial notice (or can the court motu propio take judicial

notice) of this fact?

o Yes.

Judicial admissions:

o Statement made as to a fact in issue made in a pleading

o Do you need proof as to judicial admissions?

No.

o When is there a judicial admission?

When there is a pending proceeding

o What are covered?

1. Statements in pleadings (ex. complaint or answer)

2. Statements made during testimonial presentation

3. Depositions or other documents

4. Pre-trial

5. Documents submitted in court

o Can they be withdrawn?

Yes, when –

There was no intent to make such an admission

Or there was palpable mistake

Rule 130

N.B. The rules on admissibility are applicable to object, documentary, and testimonial

evidence alike.

What is object evidence?

o Those addressed to the senses of the court

An object is presented so that the court can perceive it.

What if it is immobilized ex. real property or personal properties attached?

o Ocular inspection

Is a photograph object evidence?

o [not answered]

Do you need the photographer to identify the picture?

o Yes.

o Or a person who can attest to its exactness and accuracy.

o What must be proved?

That it is an accurate representation of what happened.

As to production and circumstances under which they were produced.

Prove who operated the camera, the ability of the camera to capture the

scene, etc.

o Prove all these first before going into the contents of the photograph.

What about videos?

o Similarly, lay down the basis, before presenting the contents

What is a paraffin test?

o See definition

o Are the results conclusive?

No. It’s not 100% reliable.

Is a lie detector test 100% reliable?

o No. You can cheat it.

What is demonstrative evidence?

o Evidence that adds to or explains.

o Maps, charts, graphs, etc.

o Is it the same as demonstration?

No. Demonstration is when you ask for a re-enactment or display of how an

act was done or re: facts.

Documentary evidence

If Blitz had a tattoo saying “I love Jojo” is this documentary evidence?

o Yes.

If Blitz wrote on a shirt, saying “Good luck!” is this documentary evidence?

o Yes.

Why are these documentary evidence?

o It can be in any material, as long as it is a writing or inscription.

o What about text mesage?

Yes.

It is ephemeral evidence

What is the Best Evidence Rule?

o When the subject of inquiry is the contents of a document, no evidence is admissible

other than the original document itself

o What if all you want to establish is the existence of a document, do you need

to present the original?

No. Because it’s not the contents of the document that are in issue. You can

present a copy.

N.B. However in practice, try to always present the original.

o What is the original?

1. The one the contents of which are the subject of inquiry

Is the copy made an original just because the contents thereof

are the subject of inquiry?

o No. You still have to go to the original.

Do you need to authenticate an original document even if it

appears to be an original?

o Yes, even if it appears to be an original.

2. Document is in two or more copies executed at or about the same time

with identical contents

Usual example is carbon copies

Computers that shoot straight through to the Xerox machine, and then

sign all

Or printing 5 copies of the same document, and then sign all

What if I print and sign one, then make my secretary produce

four copies?

o The four copies are not originals

I executed a document by 8 counterparts (ex. bills in set), signed

four here in Manila on Feb. 28 and shipped four to HK, which

were signed on Mar. 1. Are they all original, even if executed in

different dates?

o Yes, they can be regarded as originals.

o N.B. You have to stipulate in the contract (“execution by

counterparts”) that even if not executed on or about the same

time, they are all originals.

3. Entry is repeated in the regular course of business, one copied from

another at or near the time of the transaction

N.B. this refers to “entry” not “execution,” but you do not sign the

books

o Does “execution” in number 2 include formalities like notarization and affixing

signature?

It depends on what form is required from the contract.

What are the exceptions to the Best Evidence Rule?

o 1. The original has been lost, destroyed, or cannot be produced in court

Not through the fault or bad faith of the offeror

Must there be exercise of diligence?

Yes, the offeror must attempt to procure the original

In cases of loss or destruction, can you present secondary evidence?

Yes. You need to lay the basis first.

What do you need to do?

o 1. Prove that the document exists and it was duly executed

o 2. Prove cause of unavailability

The actual presentation of secondary evidence will only come after

laying the basis.

What are the types of secondary evidence that you can present?

1. Copy of the document

2. Recital of its contents in an authentic document

o Ex. Secretary’s certificate, in case of loss of the minutes

o Ex. There is a mother contract, and there is a Memorandum of

Agreement containing the basic terms

o Ex. A demand letter

o Must it be a verbatim copy or is paraphrasing fine?

Verbatim copy

3. Testimony of a witness

Must it be in this order?

Yes. Follow this order.

o 2. Original is in the adverse party’s custody or control

What are the requisites?

1. Document exists

2. There is reasonable notice to produce it given to the other party

3. There is failure to produce

Does this lead to presentation secondary evidence?

Yes

o 3. Original constitutes voluminous documents

Requisites?

1. Prove voluminous nature of the documents, which cannot be

examined in court without great loss of time

2. Provide access to the other party to the original documents

What must be proved by these documents?

The fact sought to be established must be the general result of the

whole

What if the voluminous documents are financial documents for the past

20 years, and the fact sought to proved is the profit/gain for this period?

You can present a summary because you are proving the general

result of a whole.

What do you need to present?

You just need to present a summary of the documents

When do you need to present the original?

When the contents thereof are the subject of the inquiry – no matter

how voluminous they are.

o 4. Original which is in the custody of a public officer or recorded in a public office

Can you present the original?

No, because it’s in the custody of that officer or office.

What do you present?

A certified true copy given by the public officer in custody thereof.

Give an example.

NSO Birth Certificate.

What is the Parole Evidence Rule?

o When the contents of a document are reduced to writing, it is considered as

containing all the terms agreed upon – as between the parties and their successors

in interest.

o No other evidence of such terms can be presented.

What are the exceptions?

o 1. Intrinsic ambiguity, mistake, or imperfection in the written agreement

Must it be ambiguous on its face?

No. The ambiguity must be intrinsic.

Give an example.

In a will, the testator said “I give half my property to my son Buboy.”

When the will was being probated, it turns out there were two sons

with the nickname Buboy.

What mistake is contemplated?

Mistake of fact, and the mistake was mutual

What do you do with the contract?

o Reform.

o When do you not reform?

When there was no meeting of the minds. Example, X

thought it was the property in Batangas, Y thought it

was the property in Cavite.

Give an example.

o Contract of sale of property. X thought it was Batangas, Y

thought it was Batangas. But it was actually in Cavite.

Give an example of imperfection in the written agreement?

The provision says that the offended party must pay damages, when it

fact, the offender must pay.

Another: X and Y entered into a contract of sale of property, over a

Batangas property. But the technical specifications provided were

those of the Cavite property.

o 2. The failure of the written agreement to express the true intent and agreement of

the parties

Give an example.

X approached Y, asking for money for tuition fee of his son. X said he

intended to mortgage his property. Y asked him to sign a document,

but that contract provided for an absolute sale.

o 3. Validity of the written agreement is at issue

Can a contract void on its face be made valid by presentation of

extraneous evidence?

No. This provision does not contemplate contracts that are by nature

void, to make them legal.

o 4. Existence of other terms agreed to by the parties/their successors-in-interest after

execution of the written agreement

Give an example.

There is an original contract and it was amended from a 20-year

agreement to a 10-year agreement

Testimonial evidence

Who can become witnesses?

o Those who can perceive, and in perceiving, can make their perceptions known to

others

o Two steps:

1. Perceiving

2. Making known this perception to others

How can you make your perception known to another?

o You must be able to communicate it

o Can a deaf-mute testify? A blind person?

Yes, as long as they can communicate.

Who are disqualified?

o 1. Those whose mental condition, at the time of presentation, is such that they

cannot intelligently make known their perception to others

X perceived. Then X became insane. Then X had a lucid interval during

presentation of witness. Can X testify?

Yes. The requirement is during his/her presentation.

What is the presumption?

That a witness is of sound mind.

What is the exception?

o He was publicly known as insane or committed in a mental

institution.

o 2. Children whose mental maturity makes them incapable of perceiving the facts and

relating them truthfully

Under the Child Witness Rule (CWR), who determines the competency

of the child to testify?

The judge, who conducts a competency examination

Is competency dictated by the age of the child?

o No. Mental maturity dictates, even prior to the Child Witness

Rule.

Who is a child witness under the CWR?

Accused

Victim

Witness

To what type of cases does it apply to?

“Criminal and non-criminal proceedings”

What is a comfort object/person?

One that puts the child at ease, like a doll or a pillow

Can you ask leading questions to a child?

YES.

What is the special requirement?

o Give notice to the other party

o And the judge must approve it first

Can you use live-link TV?

Yes, so the child will not be able to see the accused.

Ex. The child is in another room from the judge/accused, etc.

Who is a facilitator?

Appointed by the court to ask the questions to the child as to not

pressure/harass the child

Can depositions be taken?

Yes.

How are the documents in these proceedings treated?

Considered confidential, not open to the public

o 3. DQ by marriage (sec. 22)

What is prohibited here? What does it cover?

Any testimony, for or against the spouse, during marriage

What matters are covered?

All matters

Even confidential matters?

o Yes.

o After dissolution of the marriage, it can fall under sec. 24

(privileged communication)

What are exempted?

1. Civil case between the parties

o Does this extend to ascendants and descendants?

No.

2. Criminal case of one spouse against the other

o Does this extend to ascendants and descendants?

Yes.

Does it survive even after termination of the marriage?

No. The DQ only lasts during marriage.

Are these DQs waivable?

Yes.

o 4. “Dead man’s statute”

What is the DMS?

Party/assignors of parties/beneficiaries cannot testify as to matters of

fact occurring before the death or insanity of the other party

What must be the nature of the action?

Claim against the estate of the deceased person or a person of

unsound mind

What about documentary evidence that will prove the claim?

Not covered by DMS. This prohibition only extends to oral testimony.

o 5. Privileged communication:

See below

A. Marital privilege

o If a third party chanced upon the conversation, is it covered by the privilege?

No, the third party is not covered.

o Is there agency is privileged communication (Ex. H and W were talking and H

told a third party that the matter being discussed is disclosed)?

No, it doesn’t extend to third parties.

o Does attorney-client extend to third parties?

Yes, it can extend to the secretary, stenographer, or clerk.

B. Attorney-client

o What does it cover?

Any advice or communication in the course of or in view to professional

employment

o Differentiate in the course of and in view to?

In the course of – already retained

In view to – preparatory

o X asked advice from Atty. Y, asking what the requirements are to form a

corporation. Is this covered by the privilege?

No.

o X said that he had problems with his corporation, giving particular details,

names of incorporators, reasons, details, and what are the requirements. Is

this covered?

Yes, even if you are not eventually retained.

o Does it recognize agency?

Yes. The privilege extends to secretary, clerk, or stenographer.

o Can it be waived?

Yes.

o Note: if the relationship of the lawyer with the person is a business relationship, you

cannot invoke the privilege.

C. Doctor-patient

o Can you invoke this privilege in a criminal case?

No, even if it would blacken your reputation. The privilege only covers civil

cases.

o Who is covered?

Person must be a doctor of medicine, surgeon, or obstetrician

What if he is an optometrist?

No, because he/she is not a doctor of medicine

What if he is an ophthalmologist?

Covered

What about neurologist?

Covered

What about psychologist?

No, he must pursue further studies to be a doctor

What about psychiatrist?

Covered

What is the key?

You must be a doctor of medicine.

Who is an obstetrician?

For pregnancy

Alternative medicine practitioners and iridologists?

No.

o What are the requisites?

1. Civil case

2. Person is authorized to practice medicine, surgery, or obstetrics

3. Acquired information in his professional capacity for him to be able to give

treatment or advice

4. Disclosure of the information would tend to blacken the patient’s reputation

The privilege is only significant if you talk about a pending case

C. Priest-Penitent

o A protestant religion does not require confession through a priest. If a

protestant approaches her pastor and asks for a confession and discloses

information in the course thereof, can the pastor invoke the privilege?

No. It should be enjoined by the religious institution to which he/she belongs.

Just like a Catholic confessing to a nun – not covered by the privilege.

o What if a group requires a public confession before a crowd?

Not covered by the privilege.

o If “confession” was to simply ask for guidance from a minister, is it covered?

No.

o Should the penitent be a member of that religious institution to which the

priest belongs to?

No. The priest will not ask anyway.

D. State Secrets

o Who is the subject of the privilege?

The public office, as regards State secrets

o Is this waivable?

Yes. It should be done by the court, after application.

E. Executive privilege

o See Neri case.

o Is this waivable?

Yes, by the president.

F. Secrecy of bank deposits

G. Non-disclosre of trade secrets

H. Non-disclosure of who you voted for

I. Newsman’s privilege

o As to sources

J. Informer’s privilege

o As to identity

o You don’t need to bring to the stand an informer

K. Filial privilege

o What is this?

Nobody may be compelled to testify against a direct ascendant or

descendant

o Is this waivable?

Yes.

In a criminal case, no de no descendant may be compelled to testify against parents and

grandparents, except:

o When the testimony is indispensable in a crime against the descendant or by one

parent against the other

Admissions and confessions

What is section 26?

o The act, declaration, or confession of a relevant fact may be given in evidence

against him

What is the rule on a third party?

o As a general rule, the statement of a third party cannot be used against you, except

when it falls under the exceptions

What are exceptions?

o 1. Co-agent or partner

o 2. Co-conspirator

o 3. Privies

What are the requisites for admission of co-partner or agent?

o N.B. these are more or less the same requisites in a conspiracy

o 1. The admission should have been made during the existence of the relationship

o 2. Done within the scope of the authority

Ex. if agent, it must be covered by the agency

o 3. Common interest

o 4. The relationship is established by other evidence other than the admission

Ex. Special power of attorney, articles of partnership, etc.

Admissions of a co-conspirator – requisites?

o 1. Act/declaration relates to the conspiracy

This is common design

o 2. During the conspiracy itself

o 3. The conspiracy is established by independent evidence

Admission of privies – requisites?

o 1. Privity between the parties, where one derives title from the other

o 2. Declaration made the when the privy held the property

o 3. It must have been made as to title over the property

o Give an example:

X sold land to Y. While X holds the title to the property, he made statements

as regards his title to the land. When Y holds the land, the statements made

by X can be used against her.

Do admissions of these third parties extend to court cases? Ex. Y testified against X

on the witness stand that it was X who was in conspiracy with him.

o No, these rules do not extend to cases already in court, because there is an

opportunity to cross examine.

Is an offer of compromise admissible in evidence?

o In civil cases, an offer of compromise is not an implied admission of liability – it

cannot be admitted as evidence

o In criminal cases, it is treated as an implied admission of liability

o What is the exception for criminal cases?

When the law allows for compromise

Ex. criminal negligence

Quasi-offenses

o What about tax violations with penal sanctions?

Yes, these can be compromised.

o Is extending offer for medical assistance to the victim an implied admission?

No.

o The JDR rule in criminal cases allows compromise where (the court here in

mediation offers compromise)?

Libel

Theft

Estafa

BP 22

Criminal negligence

o What is covered by the compromise?

Only the civil liability

But in practice, once you compromise the civil liability, usually the prosecution

is no longer interested

What is admission by silence?

o X was making statements in the radio against Y, a public official. If Y does not

react to the radio caller, is this an admission by silence?

No. See requisite #1 below.

o What are the requisites?

1. Statement made in your presence or within your observation

2. Fact would have naturally called for a reaction if not true

3. To deny is proper under the circumstances

Ex. there were armed 5 men who were speaking ill about X – his

silence may simply mean that he is being prudent

Previous conduct as evidence

Mr. X and his group robbed BPI in Makati. X and his group were also suspected of

robbing BPI in Intramuros. He was caught, and a case was filed against him. If there

is a separate criminal case involving the robbery in BPI Intramuros, can the facts

surrounding the Makati BPI robbery be appreciated?

o No, not to establish a different robbery. But you can use it to establish any of the

exceptions outlined below.

o Ex. The manner in which the robbery was conducted is the same, showing a system.

Ms. Y married Mr. A. She obtained insurance. A died. She married B. She obtained

insurance. B died. She married C. She obtained insurance. C almost died due to

poisoning. Are the previous deaths admissible?

o Yes, but only to establish intent.

What is the general rule as to prior conduct?

o Generally not admissible.

o What are the exceptions?

To establish intent, knowledge, identity, plan, system, scheme, habit, custom,

or usage, and the like.

What is the rule on unaccepted offer?

o An offer in writing to pay a sum of money or deliver a written instrument/personal

property, if rejected without valid cause, is equivalent to actual production and tender

Hearsay rule and exceptions

What is the hearsay rule?

o A witness may only testify as to matters within his personal knowledge

What is independent relevant statement?

o When the statement is the fact of issue, or when the statement is circumstantial

evidence of the facts in issue.

o During Erap impeachment, his former Secretary Espiritu was placed on the

stand and was asked about matters he conversed about with Estrada. He

started talking, and there was an objection that is was hearsay. Is it hearsay?

No, it’s not hearsay. The conversation actually happened and he can testify

as to the conversation and what happened.

But as to the truthfulness of these statements, they have to be established

separately.

What are the exceptions?

o 1. Dying declaration

o 2. Declaration against interest

o 3. Act or declaration about pedigree

o 4. Family reputation or tradition regarding pedigree

o 5. Common reputation

o 6. Part of res gestae

o 7. Entries in the course of business

o 8. Entries in official records

o 9. Commercial lists, and the like

o 10. Learned treatises

o 11. Prior testimony

Declarations Reputation Entries

Dying declaration As to pedigree Course of business

Declaration against interest

Common reputation

Official record

Declaration about pedigree

Commercial lists

Res gestae Learned treatises

Dying declaration

o Requisites

1. The dying person is under the consciousness of his impending death

2. Declaration relates to the facts/circumstances pertaining to the death

3. He should eventually die

4. The recipient of the information should be competent to testify

o Does this extend to civil cases?

Yes.

As long as it pertains to the circumstances regarding his death.

o There is a dying person on the floor and he calls X. He told X to tell his wife to

handle his bank account, tell his children to manage the properties, etc. Is this

the proper subject of a dying declaration?

No. It does not cover circumstances re: his death.

o What if he doesn’t die?

It becomes part of res gestae

o What if the dying declarant made an ante-mortem statement, in writing, be

presented in evidence?

Yes, because this exception covers memoranda.

Declaration against interest

o Requisites?

1. The person is dead/unavailable

2. Made statement against his interest

3. Would not have made that statement had it not been true

o Extends to declaration against pecuniary interest, proprietary interest, criminal acts,

etc.

o Why is this reliable?

Because by human nature, nobody will make a prejudicial statement against

himself

Act or declaration about pedigree

o Requisites?

1. The person is dead/unavailable

2. Made by a person related by birth or marriage

3. Declaration was made prior to the controversy

So there is no motive to falsify

4. The relationship between the declarant and the person whose pedigree is

in question is shown by independent evidence

o Must the witness be related to the declarant?

No. He need not be.

But the relationship should be between the declarant and the person whose

pedigree is in question

Family reputation or tradition regarding pedigree

o Requisites?

1. There is controversy re: pedigree of any member of the family

2. Reputation or tradition existed prior to the controversy

3. Witness testifying must be a member of the family of that person, by

consanguinity or affinity

Or proved by family bibles, rings, etc.

o What is reputation?

How other people perceive one to be.

o Can reputation be wrong?

Yes.

This is different from character – who one really is

o Who will testify?

A member of the family by marriage or consanguinity. This is unlike

declaration about pedigree.

o What else?

Family bibles, charts, rings, engravings, etc.

Common reputation

o What are covered?

1. Public knowledge of more than 30 years

This has a partner provision in documentary evidence (“ancient

documents”)

Give an example of public knowledge of more than 30 years.

o There is a marker in the barangay disclosing information on

the founding of the barangay.

o Sometimes it can border on history, which will then become

subject to judicial notice

2. Reputation about marriage

How do you develop a reputation re: marriage?

o When people perceive them to be married. Ex. living in one

house, with children, etc. Even if this is not true.

3. Reputation as to moral character

Entries made in the regular course of business

o Requisites?

1. The person is dead/unavailable

2. Made the entry in a position to know the facts, in professional capacity

3. Entries made at or near the time of transaction

4. Done in the regular course of business

o Who is ideally the person testifying?

The one who actually made the entries. This exception only applies if he/she

is dead or unable to testify.

o Who will then testify on his/her behalf if this occurs?

Person who is also in a position to know the facts

Entries in official records

o Requisites?

1. Made by public officer or person enjoined by law to make entry

2. Made in performance of duty

3. Had sufficient knowledge of the facts, personally or through official

information

o Does the official have to be dead/unavailable?

No.

o How do you use this provision?

Secure a certified true copy, then you identify it and present it in court

When do you present the original only?

If there is issue as to its genuineness

o Reason behind this provision?

As to not waste the time of the public official

Commercial lists

o Requisites?

1. Contained in published compilation

2. Generally relied upon by these persons

3. Statements are matters of interest to these persons engaged in the

occupation

o Why can you use this listing?

It is used by the members of the profession and it is relied upon

o How do you use this?

Just present the commercial list, no need to present the writer

o Give examples

SCRA (which is not an official publication, but used and relied upon)

Buy and Sell paper NO. Because it is used, but not reliable.

Stock Market listings

Learned treatises

o Covers history, science, law, and the arts ONLY

o So it won’t cover billiards, or whatever

o How do you present?

1. Court takes judicial notice that the writer is an expert recognized in his

profession

2. Bring in an expert witness to testify that the writer is an expert in his

profession

Testimony/deposition of a witness

o Requisites?

1. Witness is dead/unable to testify

2. Identity of parties

3. Identity of issues

4. Opportunity to cross-examine prior case

Res gestae

o What are the kinds of res gestae?

A. Spontaneous statements

B. Verbal acts

o Requisites of spontaneous statements?

1. Startling occurrence

2. Spontaneous statements

3. Relating to the circumstances of the occurrence

o What is to be testified on?

His spontaneous statement

o Why is this reliable?

No time to fabricate

After 24 hours, is it still a startling occurrence?

Depends on how startled the person still is. If he was able to go out

malling already, etc., then there was time to fabricate.

o What are verbal acts?

Statements made contemporaneous to an equivocal act and characterizing it

Give an example of an equivocal act.

X handed a wad of cash to Y. This can mean anything.

Give an example of a contemporaneous act characterizing the equivocal

act.

“I am lending this to you.”

NOTE: If Y testified, it’s not hearsay because it was told to him personally. If

a third person who overheard it testified, this is when the exception applies.

Opinion rule

What is the opinion rule?

o It means that only an expert can give an opinion. An ordinary witness cannot

normally give an opinion.

What can an expert testify on?

o Skill, knowledge, expertise, or training

Is an academic degree required?

o No. Just the special skill, knowledge, expertise, or training. Unless, of course, the

knowledge or skill requires an academic degree.

There are two kinds of experts:

o 1. Expert with personal knowledge of the facts

Ex. medico-legal officer who examined a dead body

o 2. Expert with no personal knowledge, only hypothetical facts

Can an ordinary witness give an opinion?

o General rule: no.

o Exceptions:

1. Handwriting of which he has sufficient familiarity

2. Identity of which he has adequate knowledge

Not required to know the name, relationships, etc. Just as long as

you can sufficiently identify the person.

3. Mental sanity of person with whom you are acquainted with

4. Impressions on emotion, behavior, condition, appearance

Character evidence:

o Make sure you distinguish civil and criminal cases

o When is it applicable?

Only when there is a character trait in the offense charged

Ex. for murder/homicide – violence

Ex. for estafa – honesty

Ex. for rape – sexual perversity of accused

For victim, chastity

o What offenses have no character traits?

Those covered by special laws;

Ex. BP 22

Ex. illegal possession of firearms

How does character apply for criminal cases?

o Can the prosecution present the bad character of the accused?

No.

What is the exception?

On rebuttal

This comes in after defendant completes his presentation of evidence,

and is left to the discretion of the court

What about surrebutal?

o If there is rebuttal, the court will give surrebutal

o Can the accused present his good character?

Yes, if there is a character trait involved in the offense charged

o What about the victim?

You can present the good or bad moral character to establish in any

reasonable degree the probability/improbability of the offense charged

Usually applied in rape cases

What about civil cases?

o There is no distinction. As long as there is an issue of character in a case, you can

present character evidence.

Can a witness’ good or bad character be presented?

o General rule: NO.

o Exception: when the witness’ character has been impeached/impugned

Burden of proof and presumptions

Distinguish burden of proof from burden of evidence?

o Burden of proof sticks with the party from the beginning until the end.

Ex. Breach of contract for damages – burden starts with the plaintiff and ends

with the plaintiff

o Burden of evidence shifts

What is the difference between conclusive and disputable presumptions?

o Conclusive presumptions cannot be rebutted

What are the conclusive presumptions?

o 1. Estoppel in pais

This is regular estoppel

Requisties:

1. Representation

2. Lack of knowledge in the other party

3. Reliance

Similar estoppel:

Estoppel by silence

Estoppel as to question of jurisdiction

o 2. Estoppel by deed

What does “deed” mean?

It means a written document

This has a very limited application: only covers a landlord-tenant relationship

Upon signing the deed, it is a recognition of the landlord’s title. You can only

challenge it after.

What are common examples of disputable presumptions?

o 1. Presumption of innocence

When does this arise?

1. Only when charged of an offense

2. And one is an accused in that case

o 2. Presumption of regularity

When does this arise?

1. You are a public officer

2. Performing is official function

o 3. When a court renders a decision:

It acted within its jurisdiction

It passed upon all questions

o 4. On filiation

When a child is born within 300 hundred days of termination of the first

marriage AND before 180 days after the solemnization of the second

marriage it is considered to be conceived from the first marriage

When a child is born within 300 hundred days of termination of the first

marriage AND after 180 days after solemnization of the second marriage it is

considered to be conceived from the second marriage

What if the child is born after 300 days after dissolution of the

marriage?

There is no presumption

Whoever alleges legitimacy or illegitimacy must prove it

o 5. Absence

What does absence for 7 years establish?

Death, for all purposes EXCEPT succession

When does succession open?

o After 10 years

What if the person is over 75-years old?

After 5 years is enough to establish death

WhaPert are the “exceptional circumstances” that establish death in a

shorter period?

1. Vessel or aircraft goes missing and he was not heard of for 4 years

2. Person took part in armed hostilities and missing for 4 years

3. Person under danger of death in other circumstances and is

missing for 4 years

What is the rule for marriage?

Can contract subsequent marriage after absence for 4 years

What if the spouse disappeared under exceptional

circumstances?

o 2 years of absence is enough

Is declaration of presumptive death of the spouse to contract

subsequent marriage a special proceeding?

o No.

o This is a summary procedure under the Family Code

o 6. Survivorship for those who died due to calamity, wreck, battle, or conflagration

Follow what rule?

Strength and age of the sexes

For what purpose can this be used?

ANY purpose except succession

Allowed for:

Insurance

Survivorship agreements

Conduct of proceedings in the courts

What is required before witnesses testify?

o Place the witness under oath or affirmation

o Oath – imploring divine guidance

o Affirmation – for those who don’t believe in God

Whose duty is it to receive evidence?

o The judge

Can delegate to the clerk of court in certain instances

o How is it recorded?

1. By stenographer

2. By stenotype

3. By any other means of recording found suitable by the court

What questions can you NOT ask to witnesses?

o Immaterial, irrelevant, impertinent questions

o Questions that expose him to criminal liability – violates right against self-

incrimination

What if it’s only exposing him to civil liability?

You can ask the question

But not if it exposes him to criminal penalty

o Degrading or humiliating questions

What is direct examination?

o Examination-in-chief of the prosecution

o What is examination-in-chief?

One that establishes what the prosecution seeks to prove

Evidence-in-chief is what your witness will testify on in direct examination. So

if you have eight witnesses, you have eight evidences-in-chief

What is cross examination?

o 1. Test the accuracy and truthfulness of witness’ testimony

o 2. To elicit all information from the witness

What are the two ways to impeach the witness?

o 1. Prior inconsistent statement

o 2. Reputation of the witness for honesty/truth/integrity of the witness is bad

o What matters can be raised, in general?

In general, only those raised in direct

What is re-direct examination?

o Allow a witness to explain matters raised in cross-examination

What is re-cross examination?

o To examine matters raised in re-direct

Are leading questions allowed?

o As a rule, not allowed in direct examination.

o When else can you ask leading questions?

1. Cross examination

2. On preliminary matters

Ex. “Mr. X, you said a while ago you were an employee of the

petitioner corporation. Are you an employee?”

3. Witness is ignorant, child of tender years, feeble-minded, or deaf-mute

And there is some difficulty to get direct and intelligible answers

4. Unwilling or hostile witness

N.B. There must be a court declaration to make a person a hostile

witness

Who is a hostile witness?

o Adverse interest

o Unjustified reluctance to testify

o Misled the party into calling him

5. Adverse witness – adverse party or officer/director/managing agent of

juridical person who is an adverse party

What are the two kinds of memorandum?

o 1. Present recollection revived

o 2. Past recollection recorded

o When do these apply?

In both cases he knew, he was in charge, or he prepared it. That’s why he

can testify. So even if there is no independent recollection, he can testify.

o What is the purpose?

To refresh his memory

o What is the evidence?

If the witness has independent recollection, then the testimony is the

evidence.

If he has no independent recollection, the memorandum itself is the evidence.

But it must be taken with caution.

Authentication of documents

N.B. Whether public or private, the document must be authenticated.

What are the kinds of public documents?

o 1. Acts of sovereign authority

o 2. Documents duly acknowledged before a notary public except wills

Not just notarized, but must be acknowledged

o 3. Private documents recorded in a public office

Ex. affidavit of adverse claim in a R.O.D.

What are private documents?

o All other documents not falling under the prior three

How do you authenticate acts of sovereign authority?

o Certified true copy or official publication

o If it is from a foreign country?

Certification from foreign service officer

How do you authenticate a duly acknowledged document before a Notary Public?

o Certificate of acknowledgement of the document itself

o If by chance, your copy is lost, where do you go?

You could get a certified true copy from the RTC who commissioned him to

notarize documents (he submits the books to the RTC)

How do you authenticate private documents recorded in a public office?

o Can be proved by original record or a certified true copy

o Can there be a certificate of no record?

Yes.

How do you authenticate a private document?

o Genuineness of the handwriting

1. By anyone who saw the document executed or written

2. Evidence of genuineness of the signature/handwriting of the maker

What is an ancient document – requisites?

o 1. Document existing for at least 30 years

o 2. Unblemished

o 3. In the custody of one who must be with possession over it

What is alteration?

o When there is one, you have to account for it

1. There is consent

2. There is knowledge

3. Did not change the meaning

Can you impugn judicial records?

o Yes.

o How?

1. Want of jurisdiction

2. Collusion

3. Fraud

Offer of evidence

What is the rule on formal offer?

o Evidence must be offered, or else the court will not consider it as evidence

When is it made?

o After the documents as marked, and all the witnesses are presented

Is offer of testimonial evidence the same?

o It’s not, because it’s made before you present the witness

What is a continuing objection?

o Objection of the same character after the grant or denial of the same objection

o A one-time statement covering objections of the same character

o Does it have to be ruled upon by the court?

No.

What is proffer of evidence?

o This is tender of excluded evidence

o So for instance an excluded witness can still be presented through an affidavit

showing her qualifications and the substance of her testimony – so it can be

considered on appeal

Weight and sufficiency of evidence

What about administrative cases in QJAs?

o Substantive evidence

o Where else does this standard apply?

Investigations in the workplace

QJAs that proceed like the NLRC

Circumstantial evidence

o Can it be a basis of conviction?

Yes

There should be more than one circumstance

And when taken together, they form proof beyond reasonable doubt

o Can it be the basis of identification?

Yes

Can the judge stop the presentation of evidence?

o Yes, if the judge feels there is no more need for additional evidence;

PART IV: SPECIAL PROCEEDINGS

Jurisprudence

What is the jurisdiction of the probate court?

o It has limited jurisdiction

o Determination of whether the property must be included in the inventory is included

here.

Conveyance of a property by a decedent in his lifetime – requisites?

o All interested parties need to be notified

o To cause approval of conveyance

Who determines the titles of real properties included as part of the estate?

o A probate court may hear and pass upon questions of ownership when its purpose is

to determine w/n the property must be included in the inventory

o The determination is merely provisional

When the estate of partner has become insolvent, how must claims against his

separate property be prioritized?

o 1. Those owing to separate creditors

o 2. Those owing to partnership creditors

o 3. Those owing to partners by way of contribution

What I the rule on lease rentals being assessed after the death of the person? i.e.

There were unpaid rentals accrued from April 1993 to December 1998, but the

decedent passed away in 1989. Do these claims pass to the estate?

o No, because the rentals accrued after his death.

o The general rule is that heirs are bound by the contracts entered into by the

predecessor-in-interest.

o Except if non-transmissible by:

1. Nature

2. Stipulation

3. Provision of law

Sale of real property – must it be with consent of court?

o Any disposition of estate property by an administration or prospective heir pending

final adjudication needs court approval

o Unauthorized disposition can be annulled by the probate court without need for

separate action

o Can the intestate/probate court execute its order annulling the sale?

It can. No need for separate court.

Settlement of estates

Where is the venue for the action?

o Philippine resident – place of last residence at the time of his death

X lived in Pampanga. But because of his deteriorating mental

condition, he stayed in QC for treatment. Where is the probate

proceeding filed?

QC

o Resident of foreign country, but has property in the Philippines – in the place where

the property is located

N.B. we generally do not say “foreigner” because they cannot acquire real

property except by intestate succession

Settlement of estate of a person presumed dead – how is the estate dealt with?

o He is entitled to the balance of his estate after payment of debts

o Balance may be recovered by mere motion in the same case where he was declared

presumptively dead

Requisites for extra-judicial settlement of estates?

o 1. No will

o 2. No debts

o 3. If there are minors they are represented by guardians ad litem

How do you extra-judicially settle?

o 1. Through a public instrument

o 2. Affidavit of self-adjudication

One heir adjudicating the entire estate to his name

o 3. Stipulation in an action for judicial partition (Rule 69)

What is required for all three?

o Publication

Do you need a bond for extra-judicial settlement of estate?

o Yes, but only for personal properties

Can you still contest a settlement of estate, if you are an omitted heir?

o Yes, two years thereafter

Allowance of a will – what does it settle?

o Only as to due execution

o No will shall pass real or personal property unless proved and allowed

What is the duty of a custodian of a will?

o 1. Within 20 days from knowledge of testator’s death, deliver the will to the court

having jurisdiction

o 2. Or present it to the executor named in the will

Distinguish probate of a will post-mortem and ante-mortem.

o Post-mortem –

A. Executor, heir, administrator, or any interested person can apply

B. Notice given to compulsory heirs

Notice given to all heirs too by publication

o Ante-mortem –

A. The testator himself applies

B. Notice given to compulsory heirs

No notice to other heirs by publication

When there is probate of a will and there is no contest, what must be done?

o In a notarial will, need just one subscribing witnesses

If there is a contest, all subscribing witnesses

o In a holographic will, one witness who knows handwriting and signature of the

testator

In the absence of such, expert witness

Who may petition for the allowance of a will?

o Executor, devisee, heir, any person interested

If the will is lost or destroyed, how can it be proved?

o 1. Establish its existence

o 2. It was fraudulently or accidentally lost/destroyed

o 3. Two credible witnesses

Can a will proved outside of the Philippines be allowed here?

o Yes. (Rule 77)

What determines jurisdiction?

o Value of the estate

o If in Metro Manila – 400K is threshold

o If outside – 300K is the threshold

o Can it be subject of summary proceeding?

No. Never.

What does the court issue thereafter?

o Certificate of allowance

Who cannot be executor or administrator?

o 1. Minor

o 2. Not a resident of the Philippines

o 3. Unfit to execute the provisions of the trust

Drunkenness, improvidence, conviction of offense involving moral turpitude,

etc.

To whom are letters of administration granted?

o 1. Surviving spouse or next of kin or those selected by them

o 2. Principal creditors

o 3. Persons they may select

Can petitions for administration be opposed?

o Yes.

o On what grounds?

1. Incompetency of the person prayed for

2. Contestant’s own right to be administrator

o To whom?

To contestant or another person prayed for

Who is a special administrator?

o Appointed when there is delay in appointment including appeals on

allowance/disallowance of a will

o Temporarily appointed until such

Can letters of administration be revoked?

o Yes.

o When?

1. If a will is discovered

2. If the administrator absconds

3. The administrator fails to render accounting

4. Unsuitable to discharge the trust

o Can he resign as administrator?

Yes

Can an executor/administrator have access over partnership books?

o Yes. It only extends to a partnership but not a corporation, because there is

succession in corporation.

o Failure to comply with order of a court – what is the consequence?

Partner can be held in contempt

What is the requirement in terms of notice for money claims against the estate?

o Court issues order to all persons with money claims against the estate to file it with

the clerk of court

o What is the period?

Not less than 6 months to not more than 12 months from date of first

publication

o General rule: All claims must be filed within the time limit, or else it is forever barred.

Exception?

Except as counterclaim to any action an administrator or executor

may bring

What are the claims filed against the executor or administrator by name?

o 1. Recovery of real/personal property

o 2. Claim for damages caused by the deceased

o 3. All other actions/claims that survive

What if the executor/administrator refuse to act to recover property transferred in

fraud of creditors?

o The creditors can do it, if they:

1. Pay expenses of the suit

2. Give security

The estate sometimes has debts. In this case, how must they be paid?

o First, from the personal estate.

o Second, from real property not disposed of by will.

o Third, retention to meet contingent claims

o What is the time to pay the debts?

Not exceeding one year in the first instance

o Can it be extended?

Yes, for not more than six months

Can the court authorize sale/mortgage/encumbrance of real property?

o Yes.

o When?

1. Personal estate is not sufficient to pay the debts.

2. Sale of personal property may injure business or estate

…and the testator did not make provision for payment of the debt (for both)

When is there distribution?

o No distribution shall be allowed until payment of debt, funeral expenses, giving of

allowance to widow, admin expenses, estate tax, etc.

Who can institute actions for escheats?

o The Sol-gen on behalf of the Republic.

o What does he do?

File petition in court where the deceased last resided

o If you an heir can you still recover an escheated property?

Five years from the date of such judgment

o Can a done (but not an heir) recover the property?

Yes, he is an interested party, because he claims a right to the escheated

party. He may appear or oppose petition for escheat.

o What is the effect of a judgment in escheat?

Conclusive against all persons with actual or constructive notice

But not against those who are not privies or parties

Guardianship

Where do you institute petition for guardianship?

o Where the minor or incompetent is found

In what particular court?

o Family courts

Who can petition?

o Relative, friend, other person

o Can the minor himself do so?

Yes, as long as he is at least 14 years old

Must a parent still apply for guardianship?

o If the property of the child exceeds P50K you need to petition for petition for

guardianship

When can the guardian sell or encumber the property of the ward?

o 1. The property of the estate is insufficient to maintain the ward and his family

o 2. For education of the ward

o 3. For the benefit of the ward

Who is preferred to become the guardian?

o The natural parent of the ward

Trustees

Who is a trustee?

o Can be made to carry in effect the provisions of a will or a written instrument

o Appointed/confirmed in the probate court

Adoption

There was a child who was left outside of the house of a childless couple and having

noticed that no one is claiming the child, the couple adopted the child. But they

secured a birth certificate and filled in the child’s details (simulation of birth), without

applying for legal adoption. The child grew up and when she applied for a visa to the

US, she was denied because she was found to not be the natural child of the mother

(who is sterile). What are implications and what actions must be taken to correct the

situation?

o 1. Petition for correction/cancellation of entries, because the birth certificate is false

Where do you file it?

The place where the entry was made or recorded

Who are the parties; who are impleaded?

Only the civil registrar (under the ROC)

Under jurisprudence, include the child as well and the declared parent

of the child, and those who hereditary rights are affected (ex.

Grandparents)

o 2. Get certification that the child was neglected or abandoned

Do you need a judicial declaration that the child was neglected or

abandoned?

NO. You just need a certificate from DSWD from an administrative

proceeding. (Take note of this; new law and never asked in the Bar.)

o 3. Legal adoption

What if the adopter is a foreigner?

He must have been residing in the Philippines for at least 3 years

What are the other qualifications?

o 16 year age difference

o Note the others from Civil Law notes

What kind of petition must be filed?

o Inter-Country Adoption

Where do you institute the action for adoption?

Family Court where the adoptee resides

If the adoptee has no residence (abandoned), where the adopter

resides

Habeas corpus

When can you file a Petition for Habeas Corpus?

o There must be 1. ARREST and 2. DETENTION

o What if it is mere disappearance?

H.C. does not apply

File a criminal case

What must be the nature of the arrest/detention?

o It must be unlawful or illegal. It cannot be pursuant to a valid arrest/detention.

Detention in violation of the right to speedy disposition of cases, and the petition for

such is denied by the court, what can you do?

o File petition for Writ of H.C.

What is post-conviction petition for HC?

o Under rules on DNA evidence, even after conviction, if the testing shows that there is

no basis for the conviction/detention, you can file petition for HC

Where can it be filed?

o RTC, CA, or SC

What is WHC on custody of minors?

o Not a regular WHC. Unlike in ordinary WHC where there is no pre-trial, there is pre-

trial here.

o See example below.

o X married Y, but were separated in fact. X requested Y for some time with their

child Z. Y allowed, but X never returned Z. What is the remedy?

Habeas corpus on custody of minors.

What is the Writ of Amparo?

o Also instituted in the RTC, CA, SC

o Can be filed at any time of day or night

o Does not just extend to actual or committed acts, but also to threatened acts

o Who can file it?

Not just the victim or family members

Extends to religious institutions or NGOs

What is the Writ of Habeas Data?

o Also instituted in RTC, CA, SC

Change of name

When can you ask for change of name?

o 1. Name is ridiculous, dishonorable, extremely hard to pronounce

o 2. Change will avoid confusion

o 3. One has been continuously known as that name

o 4. Surname causes embarrassment and the desire to change it is not for a fraudulent

purpose

Can a person have the child’s Filipino middle name dropped for the purpose of

integration with the Singaporean community?

o No.

Family home

Do you need a judicial declaration of a family home?

o No more. It’s automatically constituted, under the Family Code.

Appeal

Can appeal be taken from orders or judgments take in Special Proceedings?

o 1. Allowance/disallowance of wills

o 2. Determines who are the lawful heirs of a deceased person or distributive shares

o 3. Allows/disallows a claim, or claims presented on behalf of the estate to offset a

claim against it

o 4. Settlement of account of executor/admin/guardian

o 5. Final determination in lower court of rights of the party appealing

o 6. Final order or judgment rendered in the case, affecting substantial rights of

appealing person, unless it is an order granting/denying MBT/MR

Can the appointment of a Special Administrator be subject of appeal?

o No.

What is the mode of appeal?

o Record on appeal