TSN on Evidence 1st Exam

7/21/2019 TSN on Evidence 1st Exam

http://slidepdf.com/reader/full/tsn-on-evidence-1st-exam 1/35

LAW ON EVIDENCE TSNFrom the lectures of Atty. Jess Zachael B. Espejo

Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

[Page 1 of 35]

Ad Majorem Dei Gloriam

June 17, 2015 (ELG)RULE 128

GENERAL PROVISIONS

What is law? Law is a rule of the human conduct just and

obligatory promulgated by legislative or legitimate authority forcommon benefit and service.

What are the branches of law?

1. Substantive law is that branch of law which creates,

defines and regulates rights, so when you talk about thecivil code, the civil law, criminal law, commercial lawthey’re all part and parcel of substantive law. Forexample you’re a prospective buyers, there’s aprospective seller, it put therefore be the law that wouldcreate, define, and regulate the rights as such beingprivy to a contract, is it not that under Article 1458 ofthe civil code by contract of sale one of the contracting

parties binds himself to transfer the ownership of and todeliver a determinate thing to another called the buyeris also obligated to pay therefore a price certain inmoney or its equivalent. In a substantive law it actuallytells you as seller what can I do or what is my obligationas seller? Transfer the ownership of or deliver adeterminate thing. As buyer what will your obligationsbe? It would be to pay price certain in money.

2. Now assuming that parties know their rights andobligations how to they enforce them? That is whenRemedial, Procedural or Adjective law would comein, because according to the classic definition, the SC inthe case of Bustos vs. Lucero 81 Phil. 640, it is

remedial law it provides for the method for enforcingrights and obtain address for their violation.

So, in substantive law it tells you what your rights are,what your obligation are but its remedial law thatactually tells you how you can go on.

What are the aspects of Philippine remedial law?

1. Public aspect of remedial law deals with remedies

available upon the state by a public individual or upon apublic individual by the state. Remedy kontra sagobyerno sa usa ka common nga tao ug remediya pudsa usa ka common nga tao kontra saiyahang gobyerno .

For example what is an example of a remedial law thatregulates the remedies of the government against aprivate individual?Criminal prosecution and in criminalprosecution of course that is governed by the rules oncriminal procedure.

What about a remedy available for a private individualthat he can actually use against the state? Assume thathe has been deprived of his liberty without proper justcause, what remedy do you have? You can file a writ ofhabeas corpus to secure your liberty, you can file orpost bail to secure your provisional liberty in themeantime or if your right have been violated let’s sayfor example a family members disappearance have been

imposed or probably he is a victim of a state enforceddisappearance, you can file under your civil procedurefor a writ of amparo. Amparo literally means protection,so that is a remedy of an individual against the state.Mao na sya karon ang public aspect sa remedial law.

2. Private aspect of remedial law and that would now

govern remedies available to a private individual againstanother private individual, civil litigations, civil lawsuitsand for that we have already discussed civil procedure.Mao ni sya ang mga different aspect of civil law.

What are the branches of Philippine remedial law? Angbuhaton nimo ana noh mutan-aw kalang ug codal sa rules ofcourt because there you can point out the specific branches ofremedial law.

Beginning with rules 1-56 of the rules of court governing civilprocedure which of course define and regulates the remedies inprivate civil lawsuits.

Then you have as part and parcel of civil procedures rule 57-71that shall govern provisional remedies and special civilactions which deals with the remedies available to litigants tomaintain the status quo until the finality of litigation.

What follows next would be rule 72-109 which deals withspecial proceedings or proceedings which aim to establish astatus, a right or a particular fact. An example is when you filefor the declaration of the nullity of marriage. What do you seekto establish in an action for the declaration of nullity of marriage?

That marriage is null and void from the very beginning. What’sthe ground under article 36 of the family code? It’s forpsychological incapacity to comply with the essential maritalobligations of marriage. So what’s the effect if you aresuccessful? You gain a status, you establish a status or the veryleast you will know for a fact that you have never been marriedand therefore rather than the civil status being married, youractually now single. That’s the purpose of special proceedings.

Then from rule 110-127 you have the rules on criminalprocedure which provides for the remedies available to thestate on a claim that a private individual or somebody else hasviolated criminal statutes.

And my most favourite among all of them is our subject,beginning from rule 128-134 although rule 134 technicallyspeaking does not exist anymore because it has been transferredto civil procedure under modes of discovery we have the topic ofevidence, which is defined under as:

Rule 128. Section 1. Evidence defined . — Evidence is themeans, sanctioned by these rules, of ascertaining in a judicialproceeding the truth respecting a matter of fact.

What a beautiful definition, the truth respecting a matter of fact,truth, really? We are law students here and we are talking aboutthe truth, having been a lawyer for the past 12 years, I can tellyou that in a court of law sometimes the truth is immaterial.

Although that is the aim of every litigation, to ascertain the truth.I will tell you right now that in a court of law the truth is not aproduct of morality, but the truth ultimately will be the product ofwhat you can prove and what you cannot prove in a court.

Let’s go back in constitutional law. Somebody was alreadymaking a phone call and that somebody said “hello Garci” youknow the “hello Garci” scandal, a lot of people heard and knowabout it, nobody is fooled about it,so we know the truth, butafter that monumental “I am sorry” made on national television,the SC in an en banc decision in the case of Garcilliano vs. Houseof Representatives because of some technicality that you willlearn when you read the case later on, this allowed furtherinvestigation into the “Hello Garci” scandal, we know the truth

but because of some technical evidentiary rule, the truth doesn’tmatter. One judge once told me that the truth is sacred but youneed to surround it with a bodyguard of lies.

Name another document in all of your study in law whichmentions truth, where else? In the preamble of the 1987constitution. Regime of truth, justice, freedom, love, equality andpeace, do ordain and promulgate this constitution. (Sir talksabout love)





[Page 2 of 35]


Now, SC makes a lot of mistakes, why? Because our very ownrules is flawed, erroneous by way of premise. Ngano nag ingonko na erroneous ang premise sa Phil. Law? The Phil. Procedurallaw is almost an exact copycat of the federal rules of procedure.

Now what are the similarities of the Phil. and the US in terms of

rules of procedure? For one both legal jurisdiction prescribes anadversarial form of litigation, plaintiff-defendant, petitioner-respondent. But what our lawmakers our SC with their rule-making power under Art. VIII, Section 5(5) of the 1987constitution did not take into consideration is the fact that in theUSA cases are decided by way of jury system while in the Phil.we don’t employ a jury system. You will soon realize that thefailure to take that into account is the basic flaw of the rules ofevidence and I will point that out to you one by one.

In the US there is a big difference between a question of factand a question of law, if it is a question of fact who willdetermine the version of story to believe? It is the jury. But if it isa question of law, the jury has no business in deciding the

interpretation of law. In the Phil. it won’t matter becauseeventually it will still be decided by the judge whether it is aquestion of fact, law or a mix question of fact or law asenunciated by the SC in the case of Cano vs. PhilippineNational Police.

In the Phil. the only time when the distinctions between aquestion of fact or a question of law become important is todecide which court you are supposed to lay your remedy. If purequestion of law you can make your appeal directly to the SC butif it is a question of fact or mix question of fact or law you layyour appeal before the CA or any other lower appellate court.The SC is not a trier of facts.

Is truth synonymous with evidence? Sometimes dili, whatever you are not able to prove or whateveryou are able to prove will amount to the truth. In other wordsthe aim really of evidence is not to establish the truth but merelyto establish not the truth but merely a basis of conclusion. That’sthe rule of evidence.

A legally, defensible conclusion is not necessarily truthful. It willdepend on the quantum of proof required in a particular case.

In a criminal case it requires proof beyond reasonable doubt.In civil case it’s mere preponderance of evidence. In anadministrative case, it’s mere substantial evidence. In certaincases, clear and convincing evidence. There is a fifth

quantum, it is the least limitable quantum. It is the quantumof conscience. What is an example of a case that is decided bymere quantum of conscience? Impeachment cases (sir talksabout the impeachment of Justice Corona), rules of evidencedoes not apply when the quantum required is merely that ofconscience.

June 19, 2015 (DJG)

x x x sanctioned by these rules x x x

What is meant by sanctioned by the rules? Evidence must beallowed by the Rules of Court.

However, the Rules are not the main repositories relating toevidence. There are the several provisions that may beconsidered as evidentiary rules. Examples:

Art 1403 NCC statutes of frauds requirement ( inwriting)

Art. 2199, in torts, in actual damages that needs to beproven actual pecuniary loss in relation to Art 2216 inMENTL damages no proof of pecuniary loss is needed.

But with respect to moral, nominal, temperate,exemplary and liquidated damages, Art. 2216 providesthat we are not supposed to present proof of pecuniaryloss for you to be entitled for those type of damages.That’s the evidentiary rule. Because it tells you that youcannot prove your entitlement to these forms of

damages by way of receipts, they are not susceptible tothat kind of proof. To be entitled to liquidated damageson the other hand, you also don’t have to prove anyspecific loss, injury or damage in your part. The onlything you have to prove in that situation will be thatcertain provisions in the contract where liquidateddamages were agreed upon by the parties have beenviolated. Do not prove your injury; prove that a contracthas been breached.

It brings me also to one of my favorite principles in law,the principle of res ipsa loquitor, the thing speaks foritself. This is a common-law doctrine which tells youthat in a particular situation which leads to no other

conclusion than that the damage was definitely causedby a particular actor, thenhe should be held liable for hisnegligence. That would lead to a disputablepresumption that he was negligent.

Also brings me to the case of Republic vs. LuzonStevedoring pertaining to an accident between avessel and a bridge/wharf, who was negligent based onthose facts? Res ipsa loquitor , it cannot be the bridgebecause it is a stationary object. Therefore, it was thevessel that as negligent because you cannot deem asnegligent a stationary object. That is an evidentiaryprinciple.

What is the effect of a presumption? It throwsupon the other party a burden of proof. In that case, itwas the burden of the vessel to prove that it was notnegligent.

Another is the constitutional presumption of innocence;the requirement that the guilt must be proved beyondreasonable doubt.

x x x in a judicial proceeding x x x

What does it mean? It means that the Rules of Evidence isactually applicable to judicial proceedings only, in a strict sense.Because there exists non-judicial proceedings (administrative,

quasi-judicial) and so, how does the law treat of evidencepresented in non-judicial proceedings?

General Rule: When the proceedings are administrative orquasi-judicial, the rules on evidence are not strictly applicable.

In fact in the case of Samar Electric Cooperative v. NLRC,March 21, 1997, where SC ruled that technical rules ofevidence are not strictly followed in labor relations. Art 221 of theLabor Code affirms this liberality, that the rules of evidenceprevailing in courts of law and equity shall not be controlling andit is the spirit and contention of the Labor Code that prevails.Hence, the technical rules of evidence will not be binding.

So how does a hearing officer in a labor case ascertain facts? InMorales v. NLRC, the SC held that the hearing officer may availof all reasonable means to ascertain facts. Meaning, not tooformal, not too strict, it tells you that it’s not supposed to be atrial-type hearing.

But, such liberality in the application of the rules of evidencedoes not mean that the hearing officer himself can also disregardthe rules. As decided in the case of Kanlaon Construction v.NLRC

, despite the summary nature of the admin and quasi-





[Page 3 of 35]


judicial proceedings, the hearing officer cannot disregard basicrequirements of due process which can be satisfied, at the veryleast, by means of submissions of position papers (which contentare all admitted but does not mean that is believed by the courtsince admissibility is different from credibility).

Baguio Country Club v. NLRC is a unique case because it tellsyou the object of evidence, the purpose of evidence: to establishthe truth by the use of perceptive and reasoning faculties.

x x x the truth respecting a matter of fact.

What are the different types of facts?1. Ultimate Facts (Factum Probandum ) – are

principal, determinate and constituted facts upon whichthe existence of the plaintiff’s cause of action ordefendant’s defense rests; factum probandum aresimply propositions; and

2. Evidentiary Facts (Factum Probans ) –these arefacts necessary for the determination of the ultimatefacts. As in the law of pleadings, evidentiary facts arenot supposed to be included.

Their distinction: Ultimate facts represent propositions to beestablished and hence hypothetical whereas evidentiary factswould constitute the material in evidencing the proposition andhence existent . No ultimate fact will prove itself, evidentiary factis required.

In legal contemplation when you say matter of fact you areactually also saying Question of Fact.

What is the difference between a question of fact and a questionof law? Cano v Chief of PNP

, November 21, 2002:

Question of fact - when doubt or difference arises asto the truth or falsehood of the alleged fact (Example:W/N the accused is responsible for the murder)

Question of law - when the doubt or difference arisesas to what the law is on a certain set of facts (Example:W/N the following set of facts lead to the application ofthe law)

In the US, if it is a question of fact, a jury can make the factualdetermination. Therefore if it is a pure question of law, sincenone of the members of the jury are lawyers, they do not knowthe law, the question is referred to trial by judge.

The more important distinction is with respect to the law that

you are going to apply. If it is a factual question, you apply therules of evidence. You use the rules on evidence to ascertain thetruth respecting that matter or question of fact. But if it is aquestion of law, you apply the law involved, the law from whichthe question arose (Ex. WON certain law is unconstitutional)

DIFFERENT CLASSESOF EVIDENCE

AS TO TYPES

Object/Real Evidence – those addressed to thesenses of the court, those exhibited to, examined andviewed by the Court (Rule 130 Sec 1).

This evidence consists in tangible evidence, that whichcan be appreciated by the exercise of your senses. Forexample, a murder weapon, an injury (scar), othermatters relating to the physical appearance of anobject. Therefore, when a court appreciates object

evidence, it exercises its sense of sight, touch, hearing,taste and smell .

Documentary Evidence – Documents as evidenceconsists of writings or any material containing letters,words, numbers, figures, symbols or other modes of

written expressions offered as proof of their contents(Rule 130 Sec 2); the court exercises intelligence .

For example, color of this class card exercising sense ofsight, relating to physical characteristic then objectevidence but if it relates now to the contents of theclass card then it becomes documentary evidence.

Demonstrative Evidence - may still be in the form of

objects such as maps, scale models, symbol, diagramsor objects that has, by themselves, no probative valuebut is used to illustrate and clarify a factual matter inissue or aid a testimony; court still exercisesintelligence.

It is not prohibited although not specifically mentionedin the rules of court. What matters would be theintelligence used by the court, from which the court candraw conclusions and make inferences from the objectso presented.

Testimonial/Oral Evidence – these are oral or

written assertion offered in a court as a proof of thetruth of what is being stated for as long the witnesswhose testimony is offered can perceive, and ifperceiving, can make known his perception to us; thereis requirement of recollection and communication: thecapacity to remember and capacity to communicate.

Otherwise, not a credible witness.

Types of Testimonial evidence in People vs Balleno: 1. Oral – made in open court before the judge; and2.

Written – affidavits, depositions.

If there is conflict between the two above, it is the oraltestimony which prevails since usually affidavits arereally the products of the lawyers. That’s why these arerequired to be in the language the witness is speakingto ensure that he is really the one who made the same.

Example is an affidavit in Ilonggo, allegedly made by aperson who lives in Isabela (Ilocano language). Clearly,

it was not him who made the affidavit. That’s thereason why affidavits are not reliable.

What is the most reliable among the 3? (Sir did notmention/include Demonstrative)

In the case of People vs Lavapie

, the SC held that greatercredence is given to physical evidence as evidence of the highestorder because it speaks more eloquently than a hundredwitnesses. This is because object evidence is self-evident.

GSIS vs CA, the SC held that testimonial evidence is easy offabrication and there is very little room for choice betweentestimonial evidence and documentary evidence. Generally,

therefore, documentary evidence prevails over testimonialevidence.

The HIERARCHY is, thus:1. Object (self-evident)2. Documentary (at least it has been reduced into writing)3. Testimonial (the most prone to fabrication)

[Bring Me Game] Ten-peso coin as evidence of physical injury,mutilation case; Blue Ballpen as evidence of attempted homicide;





[Page 4 of 35]


Class Card as evidence (contents). Sir proceeds to interrogatethem. Concludes that they are all objects cannot answer andmay therefore be not self-evident at all.

Thus in order to be appreciated by the court, there has to besomebody who will identify, authenticate or give legal

significance to them in relation to the fact in issue.

Therefore, even if they ran very high in the hierarchy ofevidence, these objects cannot present themselves without thewitness and thus the testimonial evidence, even if so unreliable,is the only way by which the object and documentary evidencecan be presented. THUS, despite the hierarchy, testimonialseems to be the most important one.

AS TO WHETHER IT AFFIRMS OR NEGATES

1. Positive evidence – when a witness affirms that a factoccurred or did not occur (yes or no); and

2. Negative evidence – when the witness avers that hedid not see or know the occurrence of fact (did notknow or see). Example: alibi (neither confirming nordenying)

Pregnant Denial/ Negative Pregnant – Is a form ofnegative expression which carries with it an affirmationor an implication of some kind favorable to the adverseparty. It is a denial pregnant with an admission of thesubstantial facts alleged in the pleading. Where a fact isalleged with qualifying or modifying language, and thewords of the allegation that are so qualified or modifiedare literally denied, it has been held that the qualified

circumstance alone are denied when the fact itself isadmitted.

Sir Espejo : This is a denial which implies the exactopposite, the affirmative opposite: by only denying thequalification of the allegation, not the allegation itself.

Ex. Accused was charged with falsification of BoardResolution, the allegation was according to them theymet on two separate days (January14 and 15) butactually no meeting was made on the other day whenthe subject Board resolution was issued.

Question: Did the Board of Directorshad the meetings?

Answer (witness): “The Board did not have a meetingon January 14 .”

It was a denial but the denial was pregnant withsomething else because only denied not having themeeting on January 14 only. Thus, by not commentingon the qualification (January 15 meeting), the witness isimplying the exact opposite of what he is saying:affirmation that there was a meeting on January 15.

Effect of negative pregnant denial in civil procedure is ADMISSION.

As decided in the case of People vs Macalaba, SCruled that negative evidence cannot prevail over thepositive testimony, ruling “We have time and againruled that mere denial cannot prevail over the positivetestimony of a witness. A mere denial, just like alibi, is aself-serving negative evidence which cannot beaccorded greater evidentiary weight than thedeclaration of credible witnesses who testify onaffirmative matters. As between a categorical testimony

that rings of truth on one hand, and a bare denial onthe other, the former is generally held to prevail.”

So positive prevails over negative.

AS TO MATERIALITY

1. Material evidence – when it tends to prove ordisprove the fact in issue in a case;

How do you determine the fact in issue in the case? Byexamining the pleadings (joinder of issues) Example:Loan evidenced by promissory note. Allegation was non-payment. ISSUE: W/N there was already payment. Forthe plaintiff, material evidence is the promissory note.For defendant, material evidence is the receipt.

2. Immaterial evidence – the offered evidential fact isdirected to prove some probandum which is not proper

in issue. The rules of substantive law and of pleadingare what determine immateriality.

AS TO ADMISSIBILITY

1. Competent evidence – Offered evidence is notexcluded by some rule of evidence; hence, admissible.

When you talk about incompetent evidence, it has adifferent meaning. You say that when a witness is notqualified, therefore incompetent to give evidence. Whenyou say competent evidence (used to describe objects),it is not excluded by the Rules of Court, it means thatthe evidence is admissible.

2. Inadmissible evidence - Offered evidence is excludedby some rule of evidence.

Examples of rules not provided by the Rules that provide forcompetent evidence:

Bill of Rights Article III. Section 2. The right of thepeople to be secure in their persons, houses, papers,and effects against unreasonable searches and seizuresof whatever nature and for any purpose shall beinviolable, and no search warrant or warrant of arrestshall issue except upon probable cause to be

determined personally by the judge after examinationunder oath or affirmation of the complainant and thewitnesses he may produce, and particularly describingthe place to be searched and the persons or things tobe seized.

Bill of Rights Article III. Section 3. (1) The privacy ofcommunication and correspondence shall be inviolableexcept upon lawful order of the court, or when publicsafety or order requires otherwise, as prescribed by law.(2) Any evidence obtained in violation of this or thepreceding section shall be inadmissible for any purposein any proceeding.

Rule 26. Admission of parties. Sec. 5. Effect of failure tofile and serve request for admission. Unless otherwiseallowed by the court for good cause shown and toprevent a failure of justice, a party who fails to file andserve a request for admission on the adverse party ofmaterial and relevant facts at issue which are, or oughtto be, within the personal knowledge of the latter, shallnot be permitted to present evidence on such facts.





[Page 5 of 35]


AS TO RELEVANCY

1. Relevant evidence – evidence which has a tendencyin reason to establish a probability or improbability ofthefact in issue. Relevant evidence is tending toprove ordisproves a material fact. Evidencehaving a tendency tomake the existence of any fact that is of consequence tothedetermination of any action more or lessprobablethan it would be without the evidence.

Example of Dean Inigo : So there was a shooting of aperson. He was shot right between the eyes from a fardistance. A was the suspect. During the trial of A,prosecution presented evidence tending to prove that Awas a former Olympic gold medalist in shooting. Is theevidence material? Does it tend to prove that A killedthe victim? It does not. But even if it is not material, is itrelevant? It may be relevant, why? Because his abilityas a sharp shooter. It may not be MATERIAL but it is

RELEVANT. So that evidence in all probability will beadmitted.

2. Irrelevant or unrelated evidence – it is theopposite; not related therefore objectionable and canproperly be ruled to be excluded by the court

What is the distinction between materiality andrelevancy? As to materiality, evidence is offered to prove ordisprove a specific fact in issue. Relevancy, on the other hand,evidence has the tendency in reason to establish the probabilityor the improbability of the fact claimed. Materiality is a directproof; in relevancy, evidence may either be direct orcircumstantial.Material, self-evident; relevancy, may require

reasoning and inference.Material evidence is always relevant butrelevant evidence is not always material.

AS TO THE NEED TO INFER OR PRESUME

1. Direct Evidence. It is proof that if belief establishesthe truth or falsity of the fact in issue and thereforedoes not arise from mere presumption; is that whichproves a fact in dispute, directly, without an inferenceor presumption, and which in itself, if true, conclusivelyestablishes that fact. Example, direct testimony that thevictim was shot.

2.

Circumstantial Evidence. It is evidence not bearingdirectly on the fact in dispute but on various attendantcircumstances from which the judge might infer theoccurrence of the fact in dispute; merely collaterallyrelevant to the fact in issue. Example, witnessing therunning of the accused away from the crime scene.

In the case of People vs Ramos, the SC held that theevidence is either direct or circumstantial. Directevidence is that evidence which proves a fact in issuedirectly without any reasoning or inferences beingdrawn on the part of the factfinder. Circumstantialevidence is that evidence which indirectly proves a factin issue. The factfinder must draw an inference or

reason from circumstantial evidence. Under our Rules ofCourt, conviction based on circumstantial evidence issufficient if: (a) there is more than one circumstance;(b) the facts from which the inferences are derived areproven; (c) the combination of all the circumstances issuch as to produce a conviction beyond reasonabledoubt.

June 24, 2015 (DM)

We already discussed materiality and relevancy right? Now let’sdiscuss another type of classification of evidence and that is as toadmissibility. We got there last time. Competent evidence meansevidence not excluded by the law or these rules. It means theevidence is admissible. Inadmissible evidence on the other handis evidence which is deemed inadmissible because it is excluded

by the law or rules. Direct circumstantial evidence we alreadydiscussed.

AS TO ORIGINALITY

As to originality, evidence can either be primary/best evidence orit can either be secondary evidence.

1. Primary evidence is the evidence which the law

regards as affecting the greatest certainty of the fact inquestion. For example, in a crime of murder. Whatwould be primary evidence? Perhaps an eyewitnessaccount that A shot B or it can be photographic

evidence clearly showing A shooting B.

2. Secondary evidence is evidence of inferior orsubstitutionary nature. It’s not the best one. It’s notthe genuine original. It is only a copy of the original. Itmerely indicates an existence of a more original sourceof information. For example you have photocopy of acontract you present in court. What does it mean? Itmeans there is an original of the photocopy making itmerely secondary or substitutionary. Now we will learnlater on under rule 130 sec 3, we have there the bestevidence rule which provides that when the subject ofinquiry is the contents of a document, no evidence shallbe admissible other than the original document itself.

It tells you it has to be the original but sec 3 also tellsyou of exceptions to the rule.

AS TO SUPPORTING EVIDENCE

It can either be cumulative or corroborative evidence.

1. Cumulative evidence is additional evidence of thesame kind and character as that already given andtends to prove the same proposition. Let’s say you’retrying to prove that A shot B, that is your factum

probandum (proposition) and your facti probans (evidentiary facts ) would be C testifying A shot B, D

testifying that A shot B, E testifying that A shot B. Thatis merely cumulative evidence. It is the same kind andtending to prove the same kind.

2. Corroborative evidence is additional evidence of adifferent kind and character tending to prove the samepoint but different types of evidence. For example,your testimonial evidence tending to prove A shot B,you also have object evidence in the form ofphotograph showing A shot B. You also have anaffidavit of the confession of A saying he shot B. Thoseare different types of evidence proving that A shot B.Corroborative evidence is only necessary when there arereasons to suspect that the witness did not tell the truth

or that his observation had been inaccurate. Becausenormally the testimony of a lone witness is sufficient.

The question therefore, would it matter kung gamay ra imong evidence? How many evidences are needed? A lot or a few?Time and again the SC said that evidence is assessed in terms ofquality and not quantity.

Now let us relate that to the different quantum of proof requiredin several cases. Let us go the lowest. SUBSTANTIAL





[Page 6 of 35]


EVIDENCE, evidence which a reasonable mind might support theconclusion. In administrative cases, what is required issubstantial evidence. The conclusion in an administrative casetells you that even if you have 1 proof as long as it is substantialto support the conclusion. How about the highest? PROOFBEYOND REASONABLE DOUBT. Is it possible to produce a

conviction with only the testimony of 1 witness? Yes, even if only1 testimony of a witness, it can result to conviction of theaccused. Now how about in civil cases? PROPENDERANCE OFEVIDENCE.

RULE 133. Section 1. Preponderance of evidence, howdetermined. — In civil cases, the party having burden of proofmust establish his case by a preponderance of evidence. Indetermining where the preponderance or superior weight ofevidence on the issues involved lies, the court may consider allthe facts and circumstances of the case, the witnesses' mannerof testifying, their intelligence, their means and opportunity ofknowing the facts to which there are testifying, the nature ofthe facts to which they testify, the probability or improbability

of their testimony, their interest or want of interest, and alsotheir personal credibility so far as the same may legitimatelyappear upon the trial. The court may also consider the numberof witnesses, though the preponderance is not necessarily withthe greater number.

See the court may consider the number of witness though thepreponderance is not necessarily with the greater number. WhatI’m trying to point out that fact that the number of evidences arenot the determining factor in arriving to the conclusion of thecourt. Can you win a case without introduction of evidence? Yesunder Rule 9 when you are declared in default, the court candecide the case based on the prayer of the complaint. Whatabout in a criminal case? A rape case. Yes, if there is no prima

facie evidence against the accused.

What is prima facie evidence? It is evidence sufficient toestablish a fact and if not rebutted becomes conclusive of a fact.Example, in cases of bribery, the acceptance of a gift of a publicofficer is deemed prima facie evidence of bribery. To illustrate:

What is burden of proof? It is your duty as a party litigant tocome forward of evidence to prove you cause of action but if youdo not have your burden of proof and you fail to adduceevidence to discharge the burden. The opposite of the term isbenefit of assumption.

Let us apply this to a criminal case. Example in People vs Lao.

It is the burden of the prosecution to prove that Lao is guilty ofacts of lasciviousness. So it has to present evidence why? Inthe meantime Lao is entitled to the benefit of the assumption,why? Remember in the 1987 Consti, you are still innocent untilthe contrary is proved. What if the prosecution was able topresent evidence, it means that the it was able to establish whatis known as prima facie evidence. So now it shifted, it is theduty of Lao to defeat the prima facie evidence.

What about in a civil case? Juyo vs Lao. Collection for sum ofmoney. There is evidence of a promissory note. What would bethe effect of burden of proof and benefit of assumption in a civilcase? Who has the burden of proving and who has the benefitof assumption? The law in evidence is that whoever alleges has

the burden of proof. So it’s Juyo who has the burden of proof toestablish a prima facie case.

What if Juyo was able to present a prima facie case? So she winsthe case.

What if she was not able to present a prima facie case? Will Laohave to present evidence? No, because the benefit ofassumption that was with you at the beginning of the case

remains with you since Juyo was not able to present a primafacie case.

AS TO CONTROVERSION

You have prima facie evidence and conclusive evidence.

1. PRIMA FACIE. Sufficient if not rebutted. Anotherexample, BP22 cases there is prima facie evidence ofknowledge of insufficiency of funds. If prima facieevidence, it can still be refuted.

2. CONCLUSIVE EVIDENCE. It is no longer susceptibleof contrary proof. It is a legal proposition which nocontroversion or contestation is allowed. Exampleunder the law, RPC, crime committed by person who isminor (18 below), there are classes of minors exemptfrom criminal liability like below 9, does it matter if hehas discernment? No because the law provides or

presumes that a child below 9, child is exempt fromcriminal liability and conclusively presumes that childbelow 9 is incapable of discernment. In the case of

jarco marketing, in torts cases a child below 9 yrs ofage is conclusively held to be incapable of contributorynegligence.

What do you present? The child’s birth certificate.

There’s a third one here.

3. REBUTTAL EVIDENCE. Is simply the evidence thatyou present to combat the effects of a prima facie caseestablished against you.

Now mas importante ang prima facie evidence. Once there is aprima facie evidence, burden of proof is shifted. The benefit ofassumption is transferred from one party to another. Prima facieevidence if established and unrebutted would be sufficient toproduce a conviction.

Now in practice, is there a way where you can determine beforeyou present any evidence if a prima facie evidence has beenestablished? Now what is Rule 33 in civil procedure? You file ademurrer to evidence. What is the nature? Is a motion todismiss except that it is not a motion to dismiss under Rule 16but under Rule 33. And what it your only ground? That theevidence presented is that the plaintiff is not entitled to relief.

That is like saying that there is no establish prima facie evidence.Diba a demurrer of evidence you file it after the presentation ofevidence in chief. If the court grants your demurrer, you win. Ifthe court does not grant it, the plaintiff was able to establish aprima facie case. Remember that demurrer can be in civil orcriminal cases. Remember also the difference of demurrer in civilor criminal. (Always asked in the bar)

AS TO THE TENOR OF THE TESTIMONY

We are talking here of testimonial evidence.

The law requires that the testimony of the witness should be

based on his personal knowledge, derived from his ownperception. What he saw, smelled, touched. That would beORDINARY TESTIMONIAL EVIDENCE. Any testimony that isnot derived from your personal knowledge is hearsay. (Asks astudent her age)

The requirement for ordinary testimonial evidence is perception,recollection and communication. You experienced, perceived it.

You remember it.





[Page 7 of 35]


After ordinary evidence, you have OPINION EVIDENCE. This iswhat you think of the particular matter. (Calls a studentregarding the annoying Kris Aquino)

An opinion as testimonial evidence is one which is not based onyour perception but based on your beliefs and prejudices. Is

opinion as testimonial evidence allowed in court? As a generalrule, it is not allowed. Why? Because every fact in issue willsimply not be a fact finding effort but becomes a mere survey orpopularity. (Talks about Jobert Sucaldito)

But there would be certain opinions that are admissible like theexpert opinion and ordinary opinion.

Expert opinion, for example you present the medico legalofficer who conducted the autopsy of the victim. That would beadmissible. It is presented in court which is beyond theknowledge of the court. Question: Can you think under the lawwhich would require an expert to prove a matter of fact?Psychological incapacity under Art. 36 of the Family Code.

Remember psychological incapacity has to be proven as laiddown in the case of Molina.

Ordinary opinion, when it would be admissible? For example ina case you are the witness of a hit and run. Then you areexamined in court. That is a valid opinion because you testifyingon your perception to the facts what you saw in the accident.That is ordinary opinion.

Now finally under testimonial evidence, we have CHARACTERor REPUTATION EVIDENCE. Generally it is not acceptable incourt. Why? For example there is this guy who is accused ofestafa. Then a former classmate testifies, that when they wereyounger, he used to steal baon from you. Is that admissible in

court? Is not admissible because of the 2 reasons: It isimmaterial and it is irrelevant.

Why immaterial? Would that character evidence prove that hereally stole from the employer- the fact in issue? In fact you areviolating another rule called the res inter alius acta – the ruleprovides evidence of one did or did not do nothing at a particulartime is not evidence that he did another thing at a differenttime. Simply put, A rape B, A rape C therefore A rape D? Youcannot conclude that. You have to prove each particularinstance. That is immaterial and irrelevant. When we are talkingrelevant, there is logical reasoning. Like A is a man, dog is amammal. (Ano raw? Lol) you have to come up with a conclusion.

A copied from B when he was in elementary, A stole the baonfrom B, therefore A stole from his employer. Now you can see itis not relevant based on your premises. We are not talkingproofs here, we are only talking of probabilities. So characterevidence is evidence attesting to one’s character and moralstanding in the community. Generally a character of a party isregarded as legally irrelevant in determining a controversy.When allowed the character evidence shall be limited to traitsand characteristics s involved in type of defense.

AS TO THE SOURCE OF EVIDENCE

You have either intrinsic/ parol evidence or extrinsic evidence/

evidence aliunde .

1. Intrinsic or parol evidence. It is informationnecessary for the determination of an issue that isgleamed from the provisions of the document itself.Let’s say A and B entered into a contract of sale whichreduced to writing. Is B allowed to say that it is a leasecontract? No, because based on the intrinsic evidencewhich is the provisions of the contract it can be gleamed

that it is a contract of sale. Example of the rule thatapplies is under:

Rule 130. Section 9. Evidence of writtenagreements. — When the terms of an agreement havebeen reduced to writing, it is considered as containing

all the terms agreed upon and there can be, betweenthe parties and their successors in interest, noevidence of such terms other than the contents of thewritten agreement.

2. Extrinsic evidence or evidence alluinde . It’s asource outside the subject document itself. If you aretrying to prove something that is outside the document,that is not allowed. What do you mean by evidencealiunde ? It means evidence from other sources otherthan the document itself.

Now let’s go to Section 2 relating to scope.

Rule 128. Section 2. Scope. — The rules of evidence shall bethe same in all courts and in all trials and hearings, except asotherwise provided by law or these rules.

When you say “all trials and hearings”, it is applicable to all civiland criminal cases.

When you say “except otherwise provided by law or these rules”,what does it mean? Are there types of cases that would begovern by other rules not rules on evidence?

Example 1: When you talk about the examination of childwitness. Before that, I want you to be acquainted with theconcept of leading question. A leading question is a questionthat is suggesting the answer to the witness which the proponentwants to hear. A non-leading question begins with who, what,where, why, how. It requires a specific answer. In usual directexamination, it should be who, what, where, why, how. Leadingquestions are objectionable.

Now that rule against leading questions does not apply to rule inexamining child witness. According to the SC, in People vs.Santos

, children have problems in providing accounts of eventsbecause they don’t understand everything they experience. Theyhave limited vocabulary, limited comprehension that they havebeen sexually abused. Most of the times they don’t know whathappen to them.

Example 2: The rules on summary procedure where affidavitstake the place of actual testimonies.

Example 3: The rules on small claims-procedure. In these cases,there is no direct examination, cross examination or redirect. Infact you don’t submit any affidavits. You simply fill up formsthere. It is recognizable in the courts of justice but it does notfollow the rules on evidence.

Example 4: What else? Now there is this JA (judicial affidavit)which has already been accepted. The usual interrogatories arereduced into writing prior to the introduction of the witnesses.

July 1, 2015 (JJA)

[Sharing about his Masteral experience and why his wife Atty. Yang-yang does notwant to take masteral]

Sir: Tell me why is there a departure from the customary rules ofevidence in the case of child witnesses?

A: Because the child has no discernment. He does not know whatis right or wrong.





[Page 8 of 35]


Sir: What about the ability of the child to communicate? A: Since the child is unable to understand what is going on, thena different rule is used.

Sir: Example? A: Leading questions is allowed to be asked to a child witness

unlike in ordinary rules.

JZE: At least you are able to listen. [another student] Tell meanother example where rules of evidence is not used or casesthat follows different evidentiary rules.

1) Rule on Examination of child witnesses2) Small claims3) Summary procedure (uses judicial affidavits)

Rule 128. Section 3. Admissibility of evidence. — Evidence isadmissible when it is relevant to the issue and is not excluded bythe law of these rules.

Section 4. Relevancy; collateral matters. — Evidence must havesuch a relation to the fact in issue as to induce belief in itsexistence or non-existence. Evidence on collateral matters shallnot be allowed, except when it tends in any reasonable degree toestablish the probability or improbability of the fact in issue.

THE TWO REQUISITES FORTHE ADMISSIBILITY OF EVIDENCE

1. RELEVANCY

Section 4:

-

Those with direct relation to the fact in issue whichmay induce belief in its existence or non-existenceand

- Those collateral matters which tends to establishprobability or improbability of fact in issue

2. COMPETENCY

Section 3: Not excluded by law or any of these Rules

Let us suppose this eraser is an object evidence. Five senses maybe used to appreciate this evidence. In relevancy, what is usedis common sense. e.g. In a murder case, you need to proveyour factum probandum otherwise you will lose your case. At the

crime scene, possible evidence would be a gun, cigarette, bloodstained clothes. An ID is not directly answering the question onmurder but may be relevant also.

Now how do we ensure that the things will establish murder. Forexample the gun? An expert witness may be used. Or an autopsymay be made to link the gun and the bullet.

Each of the evidence must be proved (factum probans ).Everything here would place the accused in the scene of thecrime. All these evidence are relevant evidence.

This is what we call as evidence on collateral matters. They donot directly prove the fact in issue. But because they tend to

advance the inquiry into the factum probandum , what is thetreatment under the rules is that they are made admissible.

Not directly material but since it forwards an inquiry into thefactum probandum to establish of probability or improbability ofthe fact in issue, they are made admissible.

What about competency? It is when the evidence is notexcluded by the law or the rules.

Can you tell me of laws that would affect the competency ofevidence during the trial?

RA 4200 (anti wire tapping law) is an example. It isgrounded upon privacy of persons protected under theconstitutional.

Any exceptions to non-admissibility of wire-tapped conversation?

1) When there is consent by two parties.

Salcedo case: Involves declaration of nullity of marriage.The husband instructed military operatives to wiretapconversation of his wife. The issue here is WON the wiretapconversation may be used as evidence to declare themarriage a nullity. SC declared that the wiretap was notadmissible.

2) It is not private.

Even without consent is not covered by the anti-wiretappinglaw because there is no reservation of expectation of myprivacy. Example, I shouted that I will kill Mateo... you canuse that against me because I did not reserve anexpectation to privacy.

Remember that materiality is different from relevancy.Materiality is the ability of evidence to point the fact in issue inthe case. Relevancy is that evidence must have such a relationto the fact in issue as to induce belief in its existence or non-existence. We are not talking here of certainly but merelyprobability or improbability based on the shirt, gun or ID.

John Henry Wigmore advances two requirement for

admission of evidence:1. Axiom of Relevancy2. Axiom of Competency

Thus, only those facts which have rational probative value areadmissible. When you say rational probative value, you aretalking about whether it advances the inquiry or not. If it does,then it is relevant.

Probative value means the tendency of evidence to make afact of consequence more or less probable than it would bewithout evidence. It has probative worth whether affirmative ornegative. If it makes you believe or not believe, it still hasprobative worth. In layman’s terms, it refers to the believability.

Or in a court of law, it refers to credibility, katuohan ba siya whether you are in the negative or affirmative side of the issue.

Now, the provisions of the constitution that would affectcompetency of evidence are the following:

1) Section 2 – Article III (unlawful search and seizure).Talks about the fruit of the poisonous tree (may refer todocumentary or object evidence).

2) Section 3 – Article III (privacy of communication)3)

Section 12 – Article III (Miranda doctrine). Talks abouttestimonial evidence.

4)

Section 17 – Article III (right against self incrimination).Talks about testimonial evidence.

Another exception is RA 9372 (Anti Terrorism Law).

RA 9372. Section 7. A police or law enforcement official andthe members of his team may, upon a written order of theCourt of Appeals, listen to, intercept and record, with the use ofany mode, form, kind or type of electronic or other surveillanceequipment or intercepting and tracking devices, or with the useof any other suitable ways and means for that purpose, anycommunication, message, conversation, discussion, or spokenor written words between members of a judicially declared and





[Page 9 of 35]


outlawed terrorist organization, association, or group of personsor of any person charged with or suspected of the crime ofterrorism or conspiracy to commit terrorism.

You ask me, this is a very, very weak law. Why? Because it doesnot really specifically define what terrorism is all about. It cites

or lists down provisions of RPC and uses them as terrorism acts.

RA 9372. Section 3. Terrorism. Any person who commits anact punishable under any of the following provisions of theRevised Penal Code:

a. Article 122 (Piracy in General and Mutiny in the HighSeas or in the Philippine Waters);

b. Article 134 (Rebellion or Insurrection);c. Article 134-a (Coup d' Etat), including acts committed

by private persons;d. Article 248 (Murder);e.

Article 267 (Kidnapping and Serious Illegal Detention);f. Article 324 (Crimes Involving Destruction),

or under

g. Presidential Decree No. 1613 (The Law on Arson);h.

Republic Act No. 6969 (Toxic Substances andHazardous and Nuclear Waste Control Act of 1990);

i. Republic Act No. 5207, (Atomic Energy Regulatory andLiability Act of 1968);

j. Republic Act No. 6235 (Anti-Hijacking Law);k. Presidential Decree No. 532 (Anti-Piracy and Anti-

Highway Robbery Law of 1974); and,l. Presidential Decree No. 1866, as amended (Decree

Codifying the Laws on Illegal and Unlawful Possession,Manufacture, Dealing in, Acquisition or Disposition of

Firearms, Ammunitions or Explosives);

Thereby sowing and creating a condition of widespread andextraordinary fear and panic among the populace, in order tocoerce the government to give in to an unlawful demand shallbe guilty of the crime of terrorism and shall suffer the penaltyof 40 years of imprisonment, without the benefit of parole asprovided for under Act No. 4103, otherwise known as theIndeterminate Sentence Law, as amended.

[Yawyaw galore si Atty. Espejo about the weakness of the law]

Another is RA 1405 (Bank Secrecy Law) in relation to:

RA 9372. Section 27. Judicial Authorization Required toExamine Bank Deposits, Accounts, and Records. Theprovisions of Republic Act No. 1405 as amended, to thecontrary notwithstanding, the justices of the Court of Appealsdesignated as a special court to handle anti-terrorism casesafter satisfying themselves of the existence of probable cause ina hearing called for that purpose that: (1) a person chargedwith or suspected of the crime of terrorism or, conspiracy tocommit terrorism, (2) of a judicially declared and outlawedterrorist organization, association, or group of persons; and (3)of a member of such judicially declared and outlawedorganization, association, or group of persons, may authorize inwriting any police or law enforcement officer and the membersof his/her team duly authorized in writing by the anti-terrorism

council to: (a) examine, or cause the examination of, thedeposits, placements, trust accounts, assets and records in abank or financial institution; and (b) gather or cause thegathering of any relevant information about such deposits,placements, trust accounts, assets, and records from a bank orfinancial institution. The bank or financial institution concerned,shall not refuse to allow such examination or to provide thedesired information, when so, ordered by and served with thewritten order of the Court of Appeals.”

Nobody is allowed to inquire into your bank deposits because noperson is compelled to disclose information about his wealthEXCEPT:

1) You do it every year when you pay taxes so that thegovernment would know whether you pay the rightamount of taxes

2)

When you enter public service through SALN.

[Yawyaw again about impeached CJ Corona.]

Again under RA 9327, the court of appeals may order you toopen your accounts. Anti-money laundering council may alsoorder you to open your accounts.

Right now, slowly but surely, there are no more safeguards toviolations of the constitution.

Another law is RA 9165 (Dangerous Drugs Act of ‘72):

RA 9165. Section 21. Custody and Disposition of Confiscated,Seized, and/or Surrendered Dangerous Drugs, Plant Sources ofDangerous Drugs, Controlled Precursors and EssentialChemicals, Instruments/Paraphernalia and/or LaboratoryEquipment . – The PDEA shall take charge and have custody ofall dangerous drugs, plant sources of dangerous drugs,controlled precursors and essential chemicals, as well asinstruments/paraphernalia and/or laboratory equipment soconfiscated, seized and/or surrendered, for proper disposition inthe following manner:

(1) The apprehending team having initial custody andcontrol of the drugs shall, immediately after seizureand confiscation, physically inventory andphotograph the same in the presence of theaccused or the person/s from whom such itemswere confiscated and/or seized, or his/herrepresentative or counsel, a representativefrom the media and the Department of Justice(DOJ), and any elected public official who shallbe required to sign the copies of the inventoryand be given a copy thereof;

(2) Within 24 hours upon confiscation/seizure ofdangerous drugs, plant sources of dangerous drugs,controlled precursors and essential chemicals, as wellas instruments/paraphernalia and/or laboratoryequipment, the same shall be submitted to thePDEA Forensic Laboratory for a qualitative andquantitative examination;

(3) A certification of the forensic laboratoryexamination results, which shall be done underoath by the forensic laboratory examiner, shall beissued within 24 hours after the receipt of the subjectitem/s:Provided , That when the volume of the dangerousdrugs, plant sources of dangerous drugs, andcontrolled precursors and essential chemicals does notallow the completion of testing within the time frame,a partial laboratory examination report shall beprovisionally issued stating therein the quantities ofdangerous drugs still to be examined by the forensiclaboratory:Provided, however , That a final certification shall be

issued on the completed forensic laboratoryexamination on the same within the next 24hours;

(4) After the filing of the criminal case, the Courtshall, within 72 hours, conduct an ocular inspection of the confiscated, seized and/or surrendereddangerous drugs, plant sources of dangerous drugs,and controlled precursors and essential chemicals,including the instruments/paraphernalia and/orlaboratory equipment, and through the PDEA shall





[Page 10 of 35]


within 24 hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s fromwhom such items were confiscated and/orseized, or his/her representative or counsel, arepresentative from the media and the DOJ,

civil society groups and any elected publicofficial.The Board shall draw up the guidelines on the mannerof proper disposition and destruction of such item/swhich shall be borne by the offender:Provided , That those item/s of lawful commerce, asdetermined by the Board, shall be donated, used orrecycled for legitimate purposes:Provided, further , That a representative sample, dulyweighed and recorded is retained;

(5) The Board shall then issue a sworn certificationas to the fact of destruction or burning of thesubject item/s which, together with the

representative sample/s in the custody of thePDEA, shall be submitted to the court having

jurisdiction over the case. In all instances, therepresentative sample/s shall be kept to a minimumquantity as determined by the Board;

(6) The alleged offender or his/her representative orcounsel shall be allowed to personally observe all ofthe above proceedings and his/her presence shall NOTCONSTITUTE ADMISSION OF GUILT. In case the saidoffender or accused refuses or fails to appoint arepresentative after due notice in writing to theaccused or his/her counsel within 72 hours before theactual burning or destruction of the evidence in

question, the Secretary of Justice shall appoint amember of the public attorney's office to represent theformer;

(7) After the promulgation and judgment in thecriminal case wherein the representative sample/swas presented as evidence in court, the trialprosecutor shall inform the Board of the finaltermination of the case and, in turn, shall requestthe court for leave to turn over the saidrepresentative sample/s to the PDEA for properdisposition and destruction within 24 hours fromreceipt of the same; and

(8) Transitory Provision: x x x

Why is chain of custody is important? The chain of custodyis to preserve the evidence without any tampering.

Why preserve the evidence? Because the penalty is based onthe weight of drugs recovered.

What did the Supreme Court say with the non-compliance of RA9165 in the case of People vs. Eugenio? “Failing to complywith the provision of Section 2 of R.A. No. 9165 does notnecessarily doom the case for the prosecution”.

People vs. Pringas enlightens: “Non-compliance by the

apprehending/buy-bust team with Section 21 is not fatalas long as there is justifiable ground therefor, and aslong as the integrity and the evidentiary value of theconfiscated/seized items, are properly preserved by theapprehending officer/team. Its non-compliance will notrender an accused's arrest illegal or the items seized/confiscatedfrom him inadmissible. What is of utmost importance is thepreservation of the integrity and the evidentiary value of theseized items, as the same would be utilized in the determinationof the guilt or innocence of the accused.”

So if you don’t follow Section 21, it does not automatically renderthe arrest illegal or the items seized inadmissible. So you don’tfollow Section 21, the items may not automatically be rejected asevidence.

What about in the case of People vs. Almorfe, did the SC comeup with the same ruling as in the case of Eugenio? NO (accordingto Sir). The accused in Almorfe was acquitted because SC didn’tappreciate the evidence presented by the prosecution.

Considering the Eugenio ruling, why did the SC rule differently in Almorfe and acquitted the accused.

The Supreme Court said: “While a perfect chain of custody isalmost always impossible to achieve, an unbroken chain becomesindispensable and essential in the prosecution of drug casesowing to its susceptibility to alteration, tampering, contaminationand even substitution and exchange. Hence, every link must beaccounted for.”

“In fine, the prosecution failed to account for every link of thechain starting from its turn over by Janet to the investigator, andfrom the latter to the chemist.”

In the case of Almorfe, the SC did not exclude the items asevidence. It only declared that the integrity of evidence(credibility) is questionable such that the chain of custody wasnot followed. That is what the SC was saying.

The State argued that there was presumption of regularity. Butthe SC said there were two presumption involve in this case. Thepresumption of regularity and the other one is the presumptionof innocence. When there are two presumption involve, the

weaker presumption yields to the stronger presumption. In thiscase, the presumption of innocence prevails over thepresumption of regularity.

Wala man conflict anang Eugenio and Almorfe cases.

We are done with Section 4. Now let us discuss a few moreconcepts.

TYPES OF ADMISSIBILITY

A. Multiple Admissibility

This refers to a situation where a fact is offered for onepurpose and is admissible in so far as it satisfies all rulesapplicable to it if offered for such purpose and is able tosatisfy the rules applicable to it if offered for anotherpurpose.

For example: evidence may be offered to prove manythings.

Birth certificate required in bar examinations. It proves theage. But it proves something else like place of birth, parents.That is multiple admissibility.

Another principle is that in M.A., an admissible evidence

for one purpose and may not be admissible foranother purpose.

For example, hearsay evidence. Hearsay evidence is notadmissible because testimonial evidence must come from awitness who personally witnessed something (personalknowledge dapat). But is it admissible for some otherpurpose. It is admissible to prove that it was spoken. OK?Why would it be admissible? Because it would be the veryfact in issue in the case or it is circumstantial evidence of the





[Page 11 of 35]


fact in issue in the case. Medyo lisod pa ni siya ha . Basta theevidence may not be admissible for one purpose but may beadmissible in another purpose.

For example: Bagundang, buang ka buang ka buang ka. AndMarlie heard it.

It is inadmissible that Marlie heard Atty. Espejo was sayingthat Bagundang is buang because she is testifying whatother person was saying, because it is hearsay. You cannotpresent what you heard from me.

But if the fact in issue in the case is that I said “buangbuang buang” the testimony of Marlie is admissible that infact Atty. Espejo said that Bagundang is buang.

It doesn’t matter if she is buang or not. What matters is thatI said that she is buang. OK? That is Multiple Admissibility.

BQ: May a private document be offered and admitted as

documentary evidence and object evidence?

Answer: YES!!! for the simple reason that for example that ifmy evidence is this classcard and the fact in issue is what isstated in the class card then yes it is admissible asdocumentary evident in the absence of other documents.However, if the fact in issue is the shape or color of theclasscard, then the rectangular shape and green color isobject evidence and also admissible.

Just to round out the types of admissibility of evidence.

B. Conditional Admissibility

Evidence is admissible only depending on other facts. It isreceived on expressed assurance of the counsel whenobjection is manifested that other facts will be trulypresented at a suitable opportunity before the case is closed.

In other words, the evidence may not be apparent by merepresentation but later on the party will supply the relation.So it is conditionally admitted.

Ex: Cigarette during the murder of gerard by matteo. Is itadmissible per se? It is not. What is the relation. Even if youprove that the cigarette belongs to the killer. You only provethat he smoked. Right now it may not be admitted becauseit has no relation but when you prove the connection that

Matteo actually used that cigarette later then the evidencemay be admitted. You must make the connection betweenyour factum probans and your factum probandum . Then thatis conditional admissibility.

C. Curative Admissibility

A party is allowed to introduce evidence on his behalf wherethe court has admitted the same evidence adduced by otherparty to avoid manifest injustice.

Under summary rules, if you failed to submit affidavit, yourwitness is not allowed to testify. Only when you previouslysubmit affidavit then you are allowed to testify.

Under Judicial affidavit rule, ana pud ang rule.

But going back, I presented object evidence under summaryrules which I didn’t previously mark. Bawal na sa summaryrules or sa pre-trial. If there is an objection, the court mustsustain it. But I pushed my luck. The court allowed it. Lateron if my adverse counsel will present evidence which is notalso admissible to counteract the effects of the inadmissibleevidence I presented, I cannot object because that would be

admitted under the principle of curative admissibility to avoidmanifest injustice.

July 8, 2015 (AJU)

I think were done with Rule 128 so let’s now proceed to Rule

129 under the heading, what need not be proved. Now, it kindof runs counter with our previous discussion on evidence as themeans sanctioned by these rules, in ascertaining in a judicialproceeding, the truth respecting a matter of fact. Also discussedon ultimate facts and evidentiary facts; ultimate facts being themain proposition behind the hypothetical conclusion, using whatcommodity? By the use of factum probans or evidentiary facts.

And so there cannot be, as a general rule in evidence, a matterof fact which is self-evident or self-proving. You really need toadvance something: whether it is documentary, object ortestimonial evidence to prove a matter of fact. But Rule 129 saysthat there are things or what are the instances when proof canbe dispensed with. Unsa ning mga butang na dili kinahanglaniprove?

RULE 129WHAT NEED NOT BE PROVEN

I. PRESUMPTIONS

Let’s go first to something not found on Rule 129 and that ispresumptions. Presumptions are found in Rule 131, which I thinkhas the weirdest provisions. Now, what kind of a rule is that?One section in Rule 131 reaches how many pages? Take a look.That will the longest provision you will find in all of law: Section3 of Rule 131 relating to disputable presumptions.

Why is it that presumptions need not be proved? It is becauseprecisely that the effect of a presumption a prima facie fact or a prima facie case is established. Perfect example there would bequasi-delict which we would be discussing in Torts in secondsemester. The cornerstone of liability for quasi-delicts would bethe proving of negligence. The defendant cannot be made liablewithout the plaintiff proving first or discharging first that thedefendant was negligent. Without any negligence there could beno liability. If the plaintiff already establishes prima facieevidence of the defendant’s negligence, thereby discharging theplaintiff’s burden of proof appurtenant to such case, and it is nowthe defendant’s turn to present evidence to disprove thenegligence the law or the evidence establishes.

But the law sometimes, such as in quasi-delicts, dispenses withthe plaintiff’s burden to prove negligence, because the law nowprovides for the presumption.

Remember what I told you about, the doctrine of res ipsaloquitor or the thing speaks for itself. Daghang mga kaso na ing- ana. For example, Africa versus Caltex and my 11avour11lscase in the whole wide world: Republic versus LuzonStevedoring. It simply says that the negligence of the allegedwrongdoer may be inferred; there is no need to present evidenceto prove negligence. The accident happened and it may inferredthat such accident would not have occurred had there been nonegligence and the thing that caused the injury is shown to beunder the exclusive control of the defendant.

For example, in Africa case, there’s a fire in a gasoline station.Would there be a fire in the gasoline station caused by a factoroutside the people within the gasoline station? Kinsa bay naycontrol sa instrumentality that caused the fire? It is the gasolinestation.

Or for example, there was 11avour11l as in the case of LuzonStevedoring. The difference between 11avour11l and collision:Collision means two moving objects while 11avour11l means onemoving object and one stationary. Who is at fault in 11avour11l?





[Page 12 of 35]


Of course the one that is moving and therefore the thing speaksfor itself, there is negligence. It is not anymore the burden of theplaintiff to prove that there is negligence and that is the effect ofthe presumption. So when a presumption is applied in case, itcreates the burden of disproving. For example, when the doctrineof res ipsa loquitor applies, the defendant now has the burden of

proving that there was no negligence.

There are two types of presumption under Rule 131:

Conclusive presumption. It is that which the law

does not allow to be controverted. For example, thetenant cannot dispute the title of the land lordbecause 12avour12ls applies. The land lordtherefore would already have in his 12avour thepresumption that he has good title to the propertyhe is leasing out. Another conclusive presumption isone we have learned in Jarco Marketing versusCourt of Appeals, where the Supreme Court saidthat a child below 9 years of age is conclusively

presumed to be incapable of contributorynegligence, in the same vein, the Revised PenalCode also provides that a child below 9 years old isincapable of discernment.

Disputable presumption.

II. JUDICIAL ADMISSIONS

Why is admission conclusive? It is because an admission isgreater than all proof. Why do you need to prove or disprovesomething when there is already an admission? If you are theprosecutor for example, you burden is to prove that the accusedis the one who committed the crime. That is your burden. Do you

need to prove with evidence when there is an admission ofconfession that the accused committed the crime? No need. Thatis judicial admission. (For more discussion re: Judicial Admissionsplease go to July 22 TSN)

III. MATTERS WHICH FALL WITHIN THE REALM OFJUDICIAL NOTICE

But of course the topic of the hour is judicial notice. Judicialnotice is the cognizance of certain facts which judgesmay properly take and act on without proof because theyare already proven. It is a rule in the law of evidence thatallows a fact to be introduced into evidence if the truth of thefact is so obvious or notorious or well-known that it cannot be

refuted. It is the cognizance of certain facts by the court withoutproof because they are facts which by common experience are ofuniversal knowledge among intelligent persons within a countryor locality.

The latin maxim that would be applicable is manifesta probatione non indigent or manifest things require no proof. Ithink that is clear already on what judicial notice is.

The question is what is the rationale behind judicial notice? Whyis it that judges are allowed to take judicial notice or to notrequire proof of certain facts? What is the essence of the law? Itis because of two things: convenience and expediency. It will besuperfluous to require proof; it would be inconvenient and

expensive for both parties and the court to require proof in theordinary way of facts which are already known to courts.Insistence on not taking judicial notice will lead to absurdity.

For example, there is an American who is a witness in court. Ofcourse, he starts out by saying his name and personalcircumstances for the record. My name is let’s say, Gerald

Anderson, originally from Detroit, Michigan. Can the court say “What is that Detroit, Michigan?” “Of course, it is in the UnitedStates.” “Where is this United States?” “It is in North America.”

“Where is this North America?” Wouldn’t that eb absurd. And thatis why judicial notice is mandated for existence and territorialextent of states as well of the geographical divisions.

Another witness for example: “I saw A push B from the 100th story of the building.” “And then what happened?” Unsa pa man

diay mahitabo ana? Nahulog, sya splat, patay. You can of course,take judicial notice that if you are pushed from the top of a 100story building that the law of gravity will take place. That is thelaw of nature. You do not need ocular inspection. You do not say

“Okay judge. I will push you, let’s see if you will fall.” Diba? Itwill lead to absurd result if you do not take mandatory judicialnotice.

There are a lot of cases here which will be taking in due time.One such case is Pigao versus Rabanillo

, where the SupremeCourt had the occasion to lay down the material requisites of

judicial notice.

REQUISITES FOR JUDICIAL NOTICE –

(1) The matter must be one of common and generalknowledge;

(2) It must be well and authoritatively settled andnot doubtful or uncertain; and

(3) It must be known to be within the limits of jurisdiction of the court.

The power of taking judicial notice is to be exercised by courtswith caution. Care must be taken that the requisite notorietyexists and every reasonable doubt on the subject should bepromptly resolved in the negative. And therefore what this caseis saying, aside from laying down the material requisites, is thattaking judicial notice is the exception rather than the general

rule. The general rule, of course, is proof is required and oneexception is judicial notice.

Here’s one that I always tell my students, found in the case ofSaludo versus American Express International. I asked thisin an exam two years ago and the question was this. What doescommon knowledge mean? This one you need to remember. Theconcept of facts of common knowledge in the context of judicialnotice has been explained as those facts that are socommonly known in the community as to make itunprofitable to require proof, and so certainly known toas to make it indisputable among reasonable men. (VIP.Memorize this phrase). The word that I want to emphasizethere is “unprofitable.” Requiring proof for facts which are of

general knowledge would lead to futile results because suchwould be superfluous. No need to present proof diba? If you saythat in the bar “unprofitable to require proof” , you will be givenfull point. Allow me to be a Judge Canete to you, because JudgeCanete would sometimes say “This is the only way you’resupposed to answer this particular question”. So remember naninyo ha? Unprofitable to require proof. If I ask this in the examand you do not put there “unprofitable to require proof”, then Iwill not give you points. I will give you zero if you do not writethis phrase.

TYPES OF JUDICIAL NOTICE –(1) Mandatory Judicial Notice, which you havememorized in Section 1

(2) Discretionary Judicial Notice and(3) Judicial Notice when hearing necessary.

When you talk about the first one, the court does not have anychoice. What about discretionary? It is the type of judicial noticewhere the judge has an option, whether to take judicial notice ofa particular fact or allow the parties to present their respectiveclaims. The third one, judicial notice when hearing necessary, isnot actually judicial notice. Why do I say that judicial notice whenhearing necessary, is not actually judicial notice? It is the





[Page 13 of 35]


essence of judicial notice to not require hearing; to not requirethe parties to submit evidence. What happens when there is ahearing? Under Civil Procedure, you have to be ready with yousupporting affidavits and evidence when necessary. So to mymind under Section 3, that is actually not judicial notice; it isrepugnant to the essence of judicial notice.

MANDATORYJUDICIAL NOTICE

Rule 129. Section 1. Judicial notice, when mandatory . — Acourt shall take judicial notice, without the introduction ofevidence, of the existence and territorial extent of states, theirpolitical history, forms of government and symbols ofnationality, the law of nations, the admiralty and maritimecourts of the world and their seals, the political constitution andhistory of the Philippines, the official acts of legislative,executive and judicial departments of the Philippines, the lawsof nature, the measure of time, and the geographical divisions.

Quite a mouthful noh? But for me, at least, this is complete. Italready enumerates the subject matter and topics that areobjects of mandatory judicial notice and therefore if it is notfound in Section 1 then that matter is not a matter of mandatory

judicial notice. Although, we will find later, that there is judicialnotice on certain matters beyond Section 1. Let’s go over theobjects one-by-one:

(1) The existence and territorial extent of states, theirpolitical history, forms of government and symbols ofnationality: Again, the purpose here would be expediency. Itwould be absurd to require evidence on these matters. Besides,

judges should not be more ignorant than the rest of the people.

“Where is this China?” “Prove to me where China is.”Dilinanakinahanglan.

(2) Law of Nations: Do you know what the law of nations is?This refers to international law. But my next question is do youknow all these treaties?

For example, CEDAW or Convention on the Elimination of AllForms of Discrimination Against Women as explained by theSupreme Court in the case of Halaguena versus Philippine

Airlines, which is a Civil Procedure case. Okay for exampleCEDAW, do you know its provisions? Have you even heard ofCEDAW? I’m willing to bet 50% of you have not even heardabout it. Oh sige let’s not go into specifics, ing.ani nalang : How

does international law become part of the law of the land, orhow does it become part of domestic law or national law? Canyou recall a Constitutional provisions on this matter? Diba , ThePhilippines renounces war as an instrument of national policy,adopts the generally accepted principles of international law aspart of the law of the land and adheres to the policy of peace,equality, justice, freedom, cooperation, and amity with allnations. That is Article II, Section 2 of the 1987 Constitution. Byvirtue of that clause, for example, the CEDAW becomes a part ofthe national law because it adheres to the generally acceptedprinciples. This is by virtue of the incorporation clause in thePhilippine Constitution, which other countries also have a similarclause. International law is given an equal but not superiorstanding than domestic laws.

Lahi pud ning atong ginatawag na transformation, whereinternational law becomes part of the law of the land when wetransform a convention or a treaty into a domestic law; we makeour own version. Example, Anti-Terrorism Act and Crimes againstInternational Humanitarian Act. We have our own laws for those.We transform that into domestic law.

Now what about generally accepted principles of internationallaw that are not found in conventions, how do they form part ofthe law of the land. In Public International Law, what are these

two elements, can you recall? First is widespread sate practiceand second is opinio juris which means you follow this actbecause you believe it is right; that is the psychological aspect ofinternational law.

How about the law of another state, United States for example.

Are courts required to take judicial notice of that? Answer is no.That is not part of mandatory judicial notice. We will go to thatlater on how judicial notice of foreign laws is taken; on whathappens when there is a mention of the foreign law but there isno attempt to prove the law as a fact. There is a presumptionthat actually applies which is processual presumption, where thepresumption is our law is same as ours. How about on same-sexmarriage? I don’t know its legal implications yet.

(3) Matters of history of other states: If we cannot take judicial notice of the law of the United States, can we take noticeof matters of history? It depends. We can if that part of history isa matter of international interest. If it is purely local interest ofthe foreign state, we cannot take judicial notice. For example,

the assassination of John F. Kennedy that is a matter ofinternational interest. Judges are expected to know that, thus, a

judge is wrong if he requires evidence to prove the death of JohnF. Kennedy.

(4) Political Constitution and History of the Philippines: As a rule, the political constitution and history of the Philippinesis subject to mandatory judicial notice. The requirement here ismere notoriety; the judge should know them. In other words, itmust be a matter that is known to the whole country and notlimited to a single town or province. Therefore, you do not needa historian or a history book to prove matters known to thenation. The case there would be Municipal Board of Manilaversus Segundo Agustin. It’s a very old case but it is still

applicable until today. But the question now, is history reallyaccurate? (That’s a different story.)

(5) Official acts of the legislative department: When youtalk about legislative acts of Congress, what does this refer to? Itrefers to laws. Every judge must take judicial notice of everystatute. So if it is a national law, every judge in the country mustknow such law. No litigant should have the present proof as towhether a Republic Act exists or does not exist, the judge ispresumed to know that already, including the status of the law ofwhether or not it is a good law or it has been repealed or has itbeen amended and so on and so forth.

It’s a different story when you talk about municipal law, although

I think it is already of public knowledge and unprofitable torequire proof that Davao City has a non-smoking ordinance.Everybody in the country knows that; all judges should knowthat. But let’s say for example, do we know that there’s anordinance somewhere in the Visayas region requiring itsconstituents to render community service? Or that a particularplace you are allowed to jaywalk at certain times at particulartimes? We do not know that. Judges are not expected to knowthat. The rule is that if you are a judge of a Municipal Trial Court,then you are expected to know the laws and ordinances withinthat particular municipality or city within you sit. Remember thatthere can be a Municipal Trial Court within a city. An RTC, on theother hand, must take judicial notice:

1.) When required to do so by statute

2.) In a case on appeal before them where the inferiorcourt took judicial notice of an ordinance involving thesame case3.) When capable of unquestionable demonstration.

Other than laws, what other official of congress must the courtstake mandatory judicial notice of? In the case of Chavez versusPublic Estates Authority

, reports or minutes of investigationsand public hearings conducted by Senate Committees are subjectof mandatory judicial notice because they are considered official





[Page 14 of 35]


acts of the legislature. So therefore, also, congressional debatesand other records that predicate a passage of a law are officialacts of the legislature which the court must take judicial noticeof.

Again, as a general rule, foreign laws present a question of fact,

they have to be proven in court in the manner provided in Rule132 Section 24 and 25. But there are certain principles that wehave to be aware of. Foreign laws need not be proven if theother party already admits them. That will be considered as a

judicial admission not requiring proof. Also we have the principleof processual presumption: in the absence of proof or judicialadmission, the laws of the foreign state is presumed to be similarto our laws.

Here is an interesting case: Teodora Sobejana-Condonversus Comelec (2012). Here, the petitioner is the winning vicemayoralty candidate of Caba, La Union. A petition for quowarrantowas filed against her stating that she as a dual citizen,under RA 9225, must execute a sworn renunciation of her

Australian citizenship. So the petitioner answered when sheexecute a renunciation of her Australian citizenship in Australia,she is deemed to have renounced her foreign citizenship. Andshe wanted the court to take judicial notice of the laws of

Australia, which says that renunciation of her citizen under thelaws of Australia is binding to the whole world. She alsocontended that her mere act of running for public office is a clearabandonment of her foreign citizenship. According to theSupreme Court, we do not take judicial notice of a foreign lawsuch as the Australian Citizenship Act. A sworn renunciation isrequired under 9225, which requires the sworn renunciation offoreign citizenship.

(6) Official acts of the executive department: what do they

consist of? Presidential decrees, presidential declarations,Executive orders and so on and so forth. Cabinet secretariesbeing the alter egos of the President, their acts are alsoconsidered official acts of the executive department. So whenthere is a department circular, administrative order,administrative circular, courts should take judicial notice of it.Now, one such matter which the president can exercise as anofficial act of executive department is executive clemency.

Amnesty and pardon also falls under the acts of the executivebut how do you distinguish them.

In the case of People versus William O. Casido

, pardon isgranted by the Chief Executive and as such it is a private actwhich must be pleaded and proved by the person pardoned,

because the courts take no notice thereof; while amnesty byProclamation of the Chief Executive with the concurrence ofCongress, and it is a public act of which the courts should take

judicial notice. So if it’s a pardon, you have to prove the pardon,id that is relevant to your case. But if it is an amnesty, which isnot only an official act of the President but with the concurrenceof the Congress, it is a public act which the courts are required totake judicial notice.

(7) Official acts of the judicial department: Of course,these refer to cases decided by the Supreme Court of

jurisprudence. So judges must not rely on the codal provisionsbut be updated in the jurisprudence as well. Judges are alsosupposed to take judicial notice of Rules of Court. Judges who

wouldn’t follow the Rules of Court is something Dean Inigo,during his lifetime, could not stand.

What else? Issuances by the Supreme Court such as Rules onElectronic Evidence issued by the Supreme Court or Rules on theprocedure of environmental cases issued by the Supreme Court.Courts must take judicial notice of these matters. The decisionsthat pertain to mandatory judicial notice are only decisions of theSupreme Court. How do you prove a decision of the Court of

Appeals or the lower courts? You have to give the court a copy, if

they do not have a copy yet of the record or order of the lowercourt.

Ok, Question 1: Can the court take judicial notice of matterspending in another case? Question 2: Can a court be allowed totake judicial notice of records in different courts for a purpose of

a particular case? Can the judge say, “You don’t need to presentevidence on that fact; that is already established in a case that Itried a year ago and I will take judicial notice that the owner ofthe gun is X.” Can the court do that?

The general rule is no, the court cannot take judicial notice of thedecisions of the coordinate courts not even the decision or thefacts of a similar case tried by the same court. Even if the judgehas personal knowledge, the court does not have personalknowledge thus the court cannot take judicial notice. Itemphasizes the difference of a court and a judge. Diba sa CivilProcedure, you learned the difference of a court and a judge. Sowhatever is within the personal knowledge of the judge, being anofficer of the court, does not equate to judicial notice. There is a

dichotomy between the judge and the court. There is a lot ofcases here you have to read: Judge Dolores Espaol versus

Atty. Formoso. The court here was questioned for taking judicial notice of another case. The Supreme Court said: Courtsare not authorized to take judicial notice of the contents ofrecords of other cases even when such cases have been tried orpending in the same court.

However, there are instances when the court may take judicialnotice. In Republic versus Court of Appeals (August 18,1997), the Supreme Court said: A court will take judicial notice ofits own acts and records in the same case, of facts established inprior proceedings in the same case, of the authenticity of its ownrecords of another case between the same parties, of the files of

related cases in the same court, and of public records on file inthe same court.

However, there is a qualification provided for by an earlier caseOccidental Land Transportation versus Court of Appeals(1993): That there should be an absence of objection, meaningboth parties agree, as a matter of convenience between twoparties to treat the records of another case as read into therecords. Those are the two requisites you need to remember: theabsence of objection and the consent of the parties. Rememberthese cases as well as the general rule and the exceptions.

(8) Laws of Nature: The most celebrated use of the laws ofnature in judicial notice is in a very old case in 1800s involving

Abraham Lincoln. There is a brawl during one night and there isan eyewitness from afar of the assailant from a distance of 150feet. You have to remember that during this time there was stillno light posts or wide spread used of electricity. Therefore,because of the poor visibility it makes the identification of theassailant from afar questionable. One witness said that he wasable to see the assailant because of the light of the moon. What

Abraham Lincoln did was take a farmer’ almanac and prove thatthe moon has already set during that night and thereforevisibility of the assailant would have been impossible. And theassailant was indeed acquitted.

Here is another case, this time in the Philippines, People versusMeneses (1998), where the Supreme Court took judicial notice

that at around three in the morning during the Christmas season,it is still quite dark and that daylight comes rather late in thistime of year. That is taking judicial notice of the laws of nature.

At three o’clock in the morning, ngitngit pa jud na sya .

Here’s another case: Gabriel versus Court of Appeals (October 6, 2004). The testimony of the star witness was likethis: “I stepped out to see what was going on. And then I heardthe sound of two vehicles colliding with one another….and then Isaw the vehicles colliding with one another.” In other words, the





[Page 15 of 35]


sound came before the actual collision. What is correct? Thesound occurs immediately after the collision. The Supreme Courtsaid that we have to take judicial notice of the laws of nature. Iftrue, the Supreme Court said: “If true, this would rate as one ofthe greatest scientific revelations of all time. But since courts areobliged to take judicial notice of the laws of nature, this Court

prefers to side with prudence.” So the Supreme Court can besarcastic at times.

(9) Geographical divisions: In the case of People of thePhilippines versus Sevilleno (1999), the Supreme Court saidthat the geographical divisions of barangays and cities, that issomething that the Supreme Court should take judicial notice of.Geographical divisions na sya.

Not only that but also the characteristics of these municipalitiesand cities, like for example, that the court properly took judicialnotice that Talamban, Cebu City is an urban area, that was in thecase of Doris Chongbian-Oliva versus Republic.

In Banatao versus Dabbay (1918), the court can also take judicial notice of rivers and whether they are navigable or not.

In People versus Pacabes, the Supreme Court also said: “Thefailure of a witness to report at once to the police authorities thecrime they had witnessed should not be taken against them. It isnot uncommon for a witness to a crime to show some reluctanceabout getting involved in a criminal case. The natural reticence ofmost people to get involved in a criminal case is of judicialnotice.” That is natural, when there is a case being filed, we donot want to be a witness, we do not want to be damay, dili tagusto mu.apil apil although pag.kahitabo sa crime kusog kaayota maki.chismis. Ing.ana kausisero ang pinoy. Ing.ana atongmentality. When you become lawyers, you will also encounter

that problem.

July 15, 2015 (JRL)

DISCRETIONARYJUDICIAL NOTICE

Rule 129. Section 2.Judicial notice, when discretionary . – Acourt may take judicial notice of matters which are of publicknowledge, or are capable of unquestionable demonstration, orought to be known to judges because of their judicial functions.

What are the matters which do not actually require proof in

court? Section 1, relates mandatory judicial notice. By the termmandatory, the court has no discretion on whether or not torequire proof. If a court requires proof within the realm ofmandatory judicial notice, that court is ignorant of the law.Therefore, that court can be subjected to administrativedisciplinary action. But in contrast with Section 2, which isdiscretionary judicial notice, the court has the choice.

In mandatory, court has no choice. Section 2, court hasabsolute choice.

So a court may take judicial notice of matters which are of publicknowledge, or are capable of unquestionable demonstration, orought to be known to judges because of their judicial functions.

This is termed discretionary under Sec 2 because of its verynature, it depends wholly on the judgment of the court unlessthe matter falls within section 1 of the Rule 129. No party cancompel a judge to take judicial notice of the same.

Can you therefore file an action for mandamus to compel theJudge to take judicial notice of a matter? NO.

Mandamus does not lie to compel the performance of a non-ministerial or discretionary act; only when it is purely ministerial

that you can actually compel a judge by mandamus to dosomething.

SALUDO VS. AMERICAN EXPRESS INTERNATIONAL April 19, 2006 * digested by JRL *

Aniceto G. Saludo, Jr. filed a complaint for damages againstthe American Express International, Inc. (AMEX) and/or itsofficers with the RTC.

The complaint alleged, inter alia, that plaintiff (hereinpetitioner Saludo) "is a Filipino citizen, of legal age, and amember of the House of Representatives and a residentof Ichon, Macrohon, Southern Leyte, Philippines."

The complaint's cause of action stemmed from the allegedwrongful dishonor of petitioner Saludo's AMEX credit cardand the supplementary card issued to his daughter.

Respondents raised the affirmative defenses of lack ofcause of action and improper venue.

respondents averred that petitioner Saludo was notallegedly a resident thereof as evidenced by the fact that

his community tax certificate.

Issue: W/N the court may take judicial notice of Saludo’sresidence. YES

Held:

There is no dispute that petitioner Saludo was thecongressman or the representative of the lone district ofSouthern Leyte at the time of filing of his complaint withthe court a quo. Even the appellate court admits this factas it states that "it may be conceded that privaterespondent ever so often travels to Maasin City, SouthernLeyte, because he is its representative in the lower house."

As a member of the House of Representatives, petitioner

Saludo was correctly deemed by the court a quo aspossessing the requirements for the said position, includingthat he was then a resident of the district which he wasrepresenting, i.e., Southern Leyte.

The concept of "facts of common knowledge" in thecontext of judicial notice has been explained asthose facts that are "so commonly known in thecommunity as to make it unprofitable to requireproof, and so certainly known to as to make itindisputable among reasonable men." Moreover,"though usually facts of 'common knowledge' willbe generally known throughout the country, it issufficient as a basis for judicial notice that they beknown in the local community where the trial court

sits." Certainly, the fact of petitioner Saludo beingthe duly elected representative of Southern Leyte atthe time could be properly taken judicial notice ofby the court a quo, the same being a matter ofcommon knowledge in the community where it sits.

Further, petitioner Saludo's residence in Southern Leytecould likewise be properly taken judicial notice of by thecourt a quo. It is bound to know that, under theConstitution, one of the qualifications of a congressman orrepresentative to the House of Representatives is having aresidence in the district in which he shall be elected.

It tells you about facts of common knowledge, those facts thatare so commonly known in the community as to make it

unprofitable to require proof, and so certainly known to as tomake it indisputable among reasonable men. Moreover, thoughusually facts of 'common knowledge' will be generally knownthroughout the country, it is sufficient as a basis for judicialnotice that they be known in the local community where the trialcourt sits." That’s under Section 2.

If it is a matter of common knowledge in a common locality, donot apply section 1, apply section 2 relating to discretionary

judicial notice.





[Page 16 of 35]


Another case is the case of:

STATE PROSECUTORS VS. MUROSeptember 19, 1994 * JRL *

On August 13, 1992, respondent judge issued an Orderdismissing eleven (11) cases

Respondent Judge issued his Order solely on the basis ofnewspaper reports (August 11, 1992 issues of thePhilippine Daily Inquirer and the Daily Globe) concerningthe announcement on August 10, 1992 by the President ofthe Philippines of the lifting by the government of allforeign exchange restrictions and the arrival at suchdecision by the Monetary Board as per statement of CentralBank Governor Jose Cuisia

Issue: W/N the Judge was correct in taking judicial notice of thesupposed lifting of foreign exchange controls which appeared ina newspaper. NO.

Held:

The doctrine of judicial notice rests on the wisdom anddiscretion of the courts. The power to take judicial notice isto be exercised by courts with caution; care must be takenthat the requisite notoriety exists; and every reasonabledoubt on the subject should be promptly resolved in thenegative.

Generally speaking, matters of judicial notice havethree material requisites: (1) the matter must beone of common and general knowledge; (2) it mustbe well and authoritatively settled and not doubtfulor uncertain; and (3) it must be known to be withinthe limits of the jurisdiction of the court. The

provincial guide in determining what facts may beassumed to be judicially known is that ofnotoriety. Hence, it can be said that judicial notice islimited to facts evidenced by public records andfacts of general notoriety.

To say that a court will take judicial notice of a factis merely another way of saying that the usual formof evidence will be dispensed with if knowledge ofthe fact can be otherwise acquired. This is becausethe court assumes that the matter is so notoriousthat it will not be disputed. But judicial notice is not

judicial knowledge. The mere personal knowledgeof the judge is not the judicial knowledge of thecourt, and he is not authorized to make his

individual knowledge of a fact, not generally orprofessionally known, the basis of his action.Judicial cognizance is taken only of those matterswhich are "commonly" known.

Things of "common knowledge," of which courts take judicial notice, may be matters coming to the knowledge ofmen generally in the course of the ordinary experiences oflife, or they may be matters which are generally acceptedby mankind as true and are capable of ready andunquestioned demonstration. Thus, facts which areuniversally known, and which may be found inencyclopedias, dictionaries or other publications, are

judicially noticed, provided they are of such universalnotoriety and so generally understood that they may be

regarded as forming part of the common knowledge ofevery person.

Respondent judge, in the guise of exercising discretion andon the basis of a mere newspaper account which issometimes even referred to as hearsay evidence twiceremoved, took judicial notice of the supposed lifting offoreign exchange controls, a matter which was not andcannot be considered of common knowledge or of generalnotoriety. Worse, he took cognizance of an administrativeregulation which was not yet in force when the order of

dismissal was issued. Jurisprudence dictates that judicialnotice cannot be taken of a statute before it becomeseffective. The reason is simple. A law which is not yet inforce and hence, still inexistent, cannot be of commonknowledge capable of ready and unquestionabledemonstration, which is one of the requirements before a

court can take judicial notice of a fact.

The Judge in this case dismissed 11 cases for violation of CBcircular 960 relating to foreign exchange against Imelda Marcos.The Judge dismissed them on the basis of newspaper reportsconcerning the announcement of President of the Philippines onthe lifting of all foreign exchange restrictions as embodied in thecircular. The judge said that the announcement of the Presidenthad the effect of repealing the CB 960.

Was the court correct in dismissing the case on the grounds onlythat CB 960 and the restrictions on foreign exchange were liftedby an announcement that appears in a newspaper? What is that?Is that a matter of judicial notice? Or a matter of judicial

knowledge?

If it is already an official act, then wala nay problema.It’s subjectof mandatory judicial notice of fact. The question here is becausethe judge said that there was this announcement and that it wasstated in the newspaper. Would that satisfy the requisites ofdiscretionary judicial notice under Section 2?

Requisites:1. The matter must be one of common and general

knowledge;2.

It must be well and authoritatively settled and

not doubtful or uncertain; and3. It must be known to be within the limits of the

jurisdiction of the court

SC said judicial notice is not equivalent to judicial knowledge.The mere personal knowledge of the judge is not the judicialknowledge of the court, and he is not authorized to make hisindividual knowledge of a fact, not generally or professionallyknown, the basis of his action.

Judicial notice cannot be taken of a statute before it becomeseffective. A law not yet enforced and hence, still inexistentcannot be of common knowledge capable of ready andunquestionable demonstration. And therefore, tama.Tamaang State Prosecutors that the dismissal of the case was actuallypremature.

What actually happens in section 2 when you apply discretionary judicial notice? The judge announces his intention. The Judgetells the parties that “I am going to take judicial notice of this”.But the parties cannot object which is the difference betweensection 2 and section 3.

JUDICIAL NOTICE,WHEN HEARING NECESSARY

Rule 129. Section 3. Judicial notice, when hearing necessary .During the trial, the court, on its own initiative, or on request ofa party, may announce its intention to take judicial notice ofany matter and allow the parties to be heard thereon.

After the trial, and before judgment or on appeal, the propercourt, on its own initiative or on request of a party, may take

judicial notice of any matter and allow the parties to be heardthereon if such matter is decisive of a material issue in thecase.

In section 3, same thing lang gihapon . The Judge tells the partiesthat he is going to take judicial notice of this particular fact.





[Page 17 of 35]


In section 2, parties cannot do anything if the Judge alreadyexercises his discretion. In section 3, it is actually a weirdprovision, if you ask me. Why? Because section 3 provides for JNwhere hearing is necessary. Is it not a fact that JN by its verynature dispenses with evidence and therefore dispenses with ahearing? Section 3 is contrary to the essence of JN.

1 st paragraph: So how do you propose something for the courtto take JN?

I was handling a case of my own cousin (17 years old), acriminal case before the MTC. But because he was 17, it has tobe referred to a family court. During pre-trial, I ask the court

“Your Honor can you take JN that my client was a minor at thetime of the commission of the crime?” That is how you propose.So you don’t have to present evidence. So that it can bedispensed already.

2 nd paragraph: Just try to remember how it happens. During trialor what happens if it’s already after trial, before judgment or on

appeal because there’s a slight variation on how it happens.

LAND BANK OF THE PHILIPPINES VS. WYCOCOJanuary 13, 2004 * JRL *

Feliciano F. Wycoco is the registered owner of a 94.1690hectare unirrigated and untenanted rice land

In line with the Comprehensive Agrarian Reform Program(CARP) of the government, Wycoco voluntarily offered tosell the land to the Department of Agrarian Reform (DAR)for P14.9 million

In arriving at the valuation of Wycoco’s land, the trialcourt took judicial notice of the alleged prevailing marketvalue of agricultural lands in Licab, Nueva Ecija without

apprising the parties of its intention to take judicial noticethereof.

Issue: W/N the market value should have been taken judicialnotice of without the requirement of hearing. NO

Held:

Inasmuch as the valuation of the property of Wycoco isthe very issue in the case at bar, the trial court shouldhave allowed the parties to present evidence thereoninstead of practically assuming a valuation without basis.While market value may be one of the bases ofdetermining just compensation, the same cannot bearbitrarily arrived at without considering the factors to be

appreciated in arriving at the fair market value of theproperty e.g ., the cost of acquisition, the current value oflike properties, its size, shape, location, as well as the taxdeclarations thereon. Since these factors were notconsidered, a remand of the case for determination of justcompensation is necessary.

The power to take judicial notice is to be exercisedby courts with caution especially where the caseinvolves a vast tract of land. Care must be taken thatthe requisite notoriety exists; and every reasonable doubton the subject should be promptly resolved in thenegative. To say that a court will take judicial notice of afact is merely another way of saying that the usual form ofevidence will be dispensed with if knowledge of the fact

can be otherwise acquired. This is because the courtassumes that the matter is so notorious that it will not bedisputed. But judicial notice is not judicial knowledge. Themere personal knowledge of the judge is not the judicialknowledge of the court, and he is not authorized to makehis individual knowledge of a fact, not generally orprofessionally known, the basis of his action

This is a case for expropriation. The court took JN of theprevailing market value of agricultural lands in a particularlocality.

According to the SC, actually the court can do so but he cannotdo so under number 1 and 2. He has to do it under number 3.

Allow the parties to be heard thereon. In other words, it will notentail(?) the presentation of evidence.

It becomes problematic under Section 3 because it requireshearing. In pre-trial, let us suppose that I have this class card.This is documentary evidence. Is there a process by which I candispense with the need of presenting this documentary evidnceduring trial without asking the court to take judicial notice? Isthere a way for me to do that? The court will not take JN but myintention is not to present this at trial anymore, dilinanakoipaauthenticate sa witness. There is a way and we call it

“stipulation.” You ask the party to stipulate. Why wouldstipulation produce the effect that it need not be presentedduring trial? Because it falls now within the ambit known as

judicial admission. Gipa admit na nimo sya . That is Section 4.

Can that be considered as evidence? And when would it berelevant? Appearance. Can it be objectively considered asevidence? YES. When it is presented for the perusal of the court.When it is examine to, or viewed by the court ad therefore,object evidence,

JUDICIAL NOTICE ON APPEARANCE –

The extent of bodily injury that you suffered in the hands of anabuser. You are asking the court to use its sense of sight todetermine the extent of your injury. When the court does that,can the court actually takes judicial notice of your appearance

and bodily injury? You are not taking JN! What you aredoing is called autoptic proference - using your senses toobserve the physical appearance and condition of an object.Dean Inigo calls object evidence as autoptic proference.

[Linguistic 101: Coming from the term auto and optic. Auto means self and opticmeans pertaining to the eyes or self-evidence or self-appreciation by the use ofyour sight. Proference is under Rule 132.]

When you appreciate the physical appearance or condition by theuse of your senses, you are not taking judicial notice but you areexercising Autoptic Proference.

JUDICIAL NOTICE ON AGE –

Nobody has personal knowledge of his or her age. Age becomesa factor in criminal cases or is an element of an offense. It is thefact in issue.

When age is an issue? Or what are the legalconsequences of age in criminal cases? Age is importantbecause it may be an:

Exempting Circumstance- Person under 9 or person over 9 but under 15 who

acted without discernment)

Mitigating Circumstance- Person under 18 or over 17 who commits a criminal

offense, age may be appreciated as mitigating) Aggravating Circumstance

Qualifying Circumstance- If victim is under 18 and the offender is a relative

or if the victim is child below 7 years old Element of Crime itself (e.g. Statutory rape – If victim is

12 years old or below, statutory rape.)

In civil law? Custody of the child (Child below 7 years of age, if

parents separate or marriage declared void, custodyshall go to the mother)





[Page 18 of 35]


Note: Age is sometimes a fact in issue that has to beproven for the full appreciation of the court. It has to beproven because there are certain legal consequences.

AGE AND APPEARANCE/ APPEARANCE IN ORDER TODETERMINE AGE –

If you want to prove in a case that the offended party in a rapecase is below 12 years old. Can you ask the court to take JN thatthis victim is below 12 years old?

Remember when the court take JN or examines the appearanceof the person to determine his or her possible age, the court isno longer undergoing the process of JN but rather the court isundergoing the process of autoptic proference which ispresentation of evidence. And therefore, appreciation of age andappearance as evidence or appreciation of appearance in orderto determine probable age is repugnant to the concept of JN.The court rather undertakes autoptic proference. So the courtdoes that militates the very concept of JN, the object of which is

to do away with the presentation of evidence.

The best proof of age is a birth certificate.

PEOPLE VS. PRUNAOctober 10, 2002 * JRL *

On 27 January 1995, an information[2] for rape was filedagainst accused-appellant Manuel Pruna y Ramirez orErman Pruna y Ramirez

Jacqueline, Lizette’s mother, declared that at the time ofthe alleged rape, LIZETTE was 3 years old, but at the timeJacqueline testified on 17 October 1995, LIZETTE was 4years old. LIZETTEs last birthday was on 19 April 1995

Pruna was convicted

Issue: W/N it was sufficiently established that Lizette was 3years old at the time of the commission of the crime. NO.

Held: A persons age is best proved by the birth

certificate. But is the presentation of the victims birthcertificate a sine qua non requirement to prove her agefor the appreciation of minority either as an element ofthe crime or as a qualifying circumstance? Recent

jurisprudence has conflicting pronouncements. In order to remove any confusion that may be engendered

by the foregoing cases, we hereby set the following

guidelines in appreciating age, either as an elementof the crime or as a qualifying circumstance.1. The best evidence to prove the age of the offended

party is an original or certified true copy of thecertificate of live birth of such party.

2.

In the absence of a certificate of live birth, similarauthentic documents such as baptismal certificate andschool records which show the date of birth of thevictim would suffice to prove age.

3. If the certificate of live birth or authentic document isshown to have been lost or destroyed or otherwiseunavailable, the testimony, if clear and credible, ofthe victims mother or a member of the family eitherby affinity or consanguinity who is qualified to testify

on matters respecting pedigree such as the exact ageor date of birth of the offended party pursuant toSection 40, Rule 130 of the Rules on Evidence shallbe sufficient under the following circumstances:a.

If the victim is alleged to be below 3 years of ageand what is sought to be proved is that she isless than 7 years old;

b. If the victim is alleged to be below 7 years of ageand what is sought to be proved is that she isless than 12 years old;

c. If the victim is alleged to be below 12 years ofage and what is sought to be proved is that sheis less than 18 years old.

4.

In the absence of a certificate of live birth, authenticdocument, or the testimony of the victim’s mother orrelatives concerning the victims age, the complainants

testimony will suffice provided that it is expressly andclearly admitted by the accused.

5. It is the prosecution that has the burden of provingthe age of the offended party. The failure of theaccused to object to the testimonial evidenceregarding age shall not be taken against him.

The trial court should always make a categorical finding asto the age of the victim.

In the present case, no birth certificate or any similarauthentic document, such as a baptismal certificate ofLIZETTE, was presented to prove her age.

LIZETTE testified on 20 November 1996, or almost twoyears after the incident, that she was 5 yearsold. However, when the defense counsel asked her how

old she was on 3 January 1995, or at the time of the rape,she replied that she was 5 years old. Upon furtherquestion as to the date she was born, she could notanswer.

For PRUNA to be convicted of rape in its qualified formand meted the supreme penalty of death, it must beestablished with certainty that LIZETTE was below 7 yearsold at the time of the commission of the crime. It must bestressed that the severity of the death penalty, especiallyits irreversible and final nature once carried out, makesthe decision-making process in capital offenses aptlysubject to the most exacting rules of procedure andevidence.

In view of the uncertainty of LIZETTEs exact age,

corroborative evidence such as her birth certificate,baptismal certificate or any other authentic documentshould be introduced in evidence in order that thequalifying circumstance of below seven (7) years old isappreciated against the appellant. The lack of objection onthe part of the defense as to her age did not excuse theprosecution from discharging its burden. That the defenseinvoked LIZETTEs tender age for purposes of questioningher competency to testify is not necessarily an admissionthat she was below 7 years of age when PRUNA raped heron 3 January 1995. Such being the case, PRUNA cannotbe convicted of qualified rape, and hence the deathpenalty cannot be imposed on him.

This is an old case but still the case that you should remember.

What are the guidelines in the matter of appreciating the age ofvictim either as an element of crime or a qualifyingcircumstance?

1.

The best evidence to prove the age of the offendedparty is an original or certified true copy of thecertificate of live birth of such party.

2. In the absence of a certificate of live birth, similarauthentic documents such as baptismal certificateand school records which show the date of birth of thevictim would suffice to prove age.

3.

If the certificate of live birth or authentic document isshown to have been lost or destroyed or otherwiseunavailable, the testimony, if clear and credible, ofthe victim’s mother or a member of the familyeither by affinity or consanguinity who isqualified to testify on matters respecting pedigreesuch as the exact age or date of birth of the offendedparty pursuant to Section 40, Rule 130 of the Rules on

http://sc.judiciary.gov.ph/jurisprudence/2002/oct2002/138471.htm

http://sc.judiciary.gov.ph/jurisprudence/2002/oct2002/138471.htm





[Page 19 of 35]


Evidence shall be sufficient under the followingcircumstances:

a. If the victim is alleged to be below 3 years of ageand what is sought to be proved is that she is lessthan 7 years old;

Atty. Espejo : It means that if testimony tends toshow that the child is below 3, the court maybelieve that she is below 7 through the testimony.

b. If the victim is alleged to be below 7 years of ageand what is sought to be proved is that she is lessthan 12 years old;

Atty. Espejo : If the testimony tends to show thatthe child is below 7, the court will instead believethat the testimony is below 12. You will not get thatprecision. What you can prove is that she is below12. That is what the court will believe.

c.

If the victim is alleged to be below 12 years of age

and what is sought to be proved is that she is lessthan 18 years old.

Atty. Espejo : If the testimony tends to show thatthe child is below 12 years old, the court willbelieve that the child is below 18 years old.

These are the conditions kay wala kay birth certificateand secondary evidences. What you only have is atestimony.

4. In the absence of a certificate of live birth, authenticdocument, or the testimony of the victim’s mother orrelatives concerning the victims age, thecomplainants testimony will suffice provided that it

is expressly and clearly admitted by the accused.

- Atty. Espejo : You don’t have any school records.Can you prove your own age before the court?General rule : Your testimony cannot prove thatyour age. When will it be admitted? Only if theaccused EXPRESSLY AND CLEARLY ADMITS thatyou are below 18. If you are the accused, why willyou admit? Haha

5.

It is the prosecution that has the burden ofproving the age of the offended party. The failureof the accused to object to the testimonial evidenceregarding age shall not be taken against him.

July 22, 2015 (ELG)

JUDICIAL ADMISSIONS

Rule 129. Section 4. Judicial admissions . — An admission,verbal or written, made by the party in the course of theproceedings in the same case, does not require proof. Theadmission may be contradicted only by showing that it wasmade through palpable mistake or that no such admission wasmade.

What is a judicial admission or an admission in judicio ?It is a deliberate, clear and unequivocal statement by a partyabout a concrete fact within that party’s knowledge.

It must be deliberate because an admission will not bind a partymaking it if it was made by mistake. In other words, a partymaking the admission must have meant to make an admission. Itmust be clear and unequivocal and therefore shall not admit oftwo or more interpretations. A supposed admission that issusceptible of several interpretations cannot be considered anadmission because at most it is a vague statement, it isequivocal.

Remember also that base on the definition it must be to a factwithin the parties’ knowledge. If not within his personalknowledge and he makes a statement that seems to imply anadmission, then that will not anymore be treated as an admissionbecause he has no personal knowledge, therefore there cannot

be any admission on a matter that is clearly hearsay statement.It has to be of a party personal knowledge.

Judicial admission may also mean a formal concession, meaningyou proposed one fact and I concede to it, I do not confess it; Ido not take issue as to that fact. It is a formal concession in thepleadings or stipulations by a party or counsel that is binding tothe party making them.

Although a judicial admission itself is not evidence, it has theeffect of withdrawing a particular fact from contention. So dili nanato kinahanglan lalisan, dili na kinahanglan debatihon kay gi- angkon naman nako . That’s the concept of admission.

The latin maxim applicable is Latin maxim applicable isconfessio facta in judicio omni probatione major est whichmeans confession made in a trial is stronger than all proof.

Why does a court take a judicial notice of a particular factspecifically on matter falling under section 1 or section 2 where

judicial notice is discretionary? Because a certain fact may be ofso common in knowledge that it would be unprofitable to requireproof. The same thing applies with respect to a judicial admissionin as much as when you require proof of something that hasalready been admitted by the adverse party, then what you areactually doing is a surplusage. It would already be a waste oftime and resources of the court if you prove something that hasotherwise been admitted already by the adverse party.

Sources of judicial admissions –

In the case of Binarao v. Plus Builders Inc., June 16, 2006,SC said that a party may make judicial admissions in:

The pleadings During the trial, either by verbal or written

manifestations or stipulations, or In other stages of the judicial proceedings.

Now, let’s try to recall the type of admissions that can be madein civil procedure because I’m sure that you know that there area lot of instances in civil procedure where there can makeadmissions.

One of them is the matter of actionable documents. What isan actionable document? Under Rule 8, Sec. 8. An actionabledocument is one which is the very basis of a party’s cause ofaction or defense.

In other words, let’s say for example you are suingsomebody for a collection of a sum of money based on apromissory note you need to attach or incorporate or citethe actionable document which is the promissory note sothat your cause of action may be properly pleaded in thecase. Now that is the very foundation of your cause ofaction.

Now what about an actionable document that is afoundation of the defense? Let us suppose that in the sameexample that I gave you earlier on, apart from thepromissory note the defendant also possesses a receiptproving that he has already paid the obligation that isembodied in the promissory note. And therefore in order forhim to defend against the charge that he has not yet paidthe debt as evidenced in the promissory note he has thisreceipt and he has to properly plead that receipt an





[Page 20 of 35]


actionable document the basis of his defense properly in thepleadings.

Rule 8. Section 8.How to contest such documents . Whenan action or defence is founded upon a written instrument,copied in or attached to the corresponding pleading as

provided in the preceding section, the genuineness anddue execution of the instrument shall be deemed admittedunless the adverse party, under oath specifically deniesthem, and sets forth what he claims to be the facts, butthe requirement of an oath does not apply when theadverse party does not appear to be a party to theinstrument or when compliance with an order for aninspection of the original instrument is refused.

Now, take not in section 8, Rule 8 it states there the effectof failure to contest properly an actionable document andthe effect is there is deemed an admission of the saidactionable document

How do you contest the genuineness and due execution ofsuch actionable document? You have to do it under oath,meaning your answer for example must be verified.

I’m sure that you remember also that in civil procedure thereare how many types of pleading is allowed under the rules?There are only 7 and remember the basic ones would becomplaint, answer and a reply. A reply is supposed to be thelast pleading to be submitted and its purposed is to makeissue as to any new matters that are stated in the answer.Remember also that the filing of a reply will always beoptional. Why? Because if you don’t file a reply all the matterset forth in the answer are deem to be automaticallycontroverted.

Why is it that the law does not mandate that you should filea reply? Precisely because the law wants everything to bequick. You are already given 15 days to file an answer andthen when you are supposed to file your reply you are givenan extra 10 days.

Is there an instance under the law where it seems that thefiling of a reply is mandatory rather than optional? Say forexample this is the complaint, it sues for the recovery ofsum of money, specific performance pa bayron ka and thenin the answer the defendant pleads an actionable documentas his defense. Remember that the rule in Sec. 8 of Rule 8 isthat if you do not deny or contest under oath the

genuineness and due execution for example of the receipt,the genuineness and due execution of the actionabledocument is deemed to be admitted, so how do you nowcontest that unless you file a reply. Therefore in thatsituation it seems that it becomes already mandatory for aparty to make a reply.

This is the ruling in the case of Casent Realty vs.PhilBanking Corporation, 2007: Here the respondentfailed to file a reply and in effect he had admitted alreadythe genuineness and due execution of the actionabledocument attached in the answer. The SC went on to saythat Rule 129 Section 4 now apply, an admission, verbal orwritten, made by the party in the course of the proceedings

in the same case, does not require proof. Take note of thatcase where the defense and the action is based on anactionable document.

Take note also of:

Rule 8. Section 11. Allegations not specifically denieddeemed admitted . Material averment in the complaint,other than those as to the amount of unliquidateddamages, shall be deemed admitted when not specifically

denied. Allegations of usury in a complaint to recoverusurious interest are deemed admitted if not deniedunder oath.

In other words, if you are going to deny a particularallegation in the complaint, for example your answer must

clearly spell out you own version of facts, so you have to saywhy you are not admitting. If you simply make a generaldenial that will have the effect of an admission.

Take note also that allegations of usury in the complaint to

recover usurious interest are deemed admitted if not deniedunder oath. Although remember right now there is no suchthing as usury under Phil. law considering that thecontractual interest that would govern the parties in amonetary obligation or forbearance of money would begoverned by their own freedom to contract. They canstipulate such terms and conditions that are not contrary tolaw. But remember that if the interest is alreadyunconscionable that can be struck down.

Rule 18, section 4 talking about pre-trial. During pre-trialthat is a valid subject, stipulation of facts, possibility ofmaking amicable settlement, stipulations of facts andevidence.

Take note that admissions can be derived from any stageproceedings in a case it can be by the filing of initiatory orresponsive pleading, it can be during pre-trial or during trialand presentation of witnesses let us say for example thecounsel asks question during coss-examination, the partyadmits then that is already considered a judicial admission.

Also stipulation and admissions made when you file motionsand other submissions before the court.

What are the distinctions between a pleading and a motion? As to form they are the same. But remember that whilepleadings ask for judicial final determination of facts andissue. A motion is an application for relief other than bypleading. In other words, when you file a motion you areasking for something that is interlocutory you are not askingfor final judgment in your favour. An example a motion totransfer hearing, a motion for extension of time to file apleading, motion to dismiss it a motion but somehow if youare the defendant is asking for a final judgment in yourfavour because if it is dismissed, then final judgment will berendered by the court, that is the exception to the rule.

Can you recall the effects of filing a motion to dismiss to theright of a party to amend his pleading as a matter of right?Example: A files a complaint and B can file either an answeror a motion to dismiss or file a motion for bill of particularsthose are the 3 options available to the defendant within the15 day period to file an answer. The defendant realizes thatthe complaint as worded is one that is not in the jurisdictionof the RTC and so he files a motion to dismiss within the 15day period to file an answer on the ground that court has no

jurisdiction. The plaintiff realizing his mistake want to amendhis pleading, so he files an amended complaint this timeadopting to the jurisdiction of the court.

Now if you are the judge will you dismiss the case or not?

You should not, even if under the original complaint priorthe amendment the court does not jurisdiction. Why?Because amendment is still a matter of right because theparties right to amend his pleading once can be availed of asa matter of right at any time prior to the filing of aresponsive pleading. A motion to dismiss is not a pleading,therefore pwede nimo ma- amend to confer jurisdiction tothe court.





[Page 21 of 35]


Remember an admission may be verbal or written. Formal judicial admission can take the form of a manifestation incourt or a testimony in court. As Dean Inigo said “less talkless mistake”. So the more you say the more susceptible youare to making an admission, remember that when you makeit during trial it is already binding and of course you can

contradict it later on.

Written Judicial Admission can be in the pleadings, inthe motions, written manifestation of the parties, brief,memoranda, affidavits and even in a submission in ananswer for request for admission

Rule to remember: Judicial admissions are conclusive on theparty making them. Why should it be conclusive?

We know this equitable principle known as estoppel, whenyou say something clearly and unequivocally you are not tobe permitted to later on contradict it, that’s the basic rule ofestoppel. An admission made in the pleadings cannot be

controverted by the party making such admission and areconclusive as to him and all proofs submitted by himcontrary thereto or inconsistent with the admission shouldbe ignored whether an objection is interposed by the party.

A good case to read would be the case of Alfelor vs.Halasan, March 31, 2006: It talks about standing tointervene in a case. If you already admit that a party whoseems to intervene in the case is an heir of the personwhose estate is under consideration then you are alreadyestopped from contesting nawala syay right to intervene.Remember that the of the requirement of intervention wouldbe that the person must have a legal interest in the subjectmatter in litigation or the success of any of the parties or

interest against the parties or when so situated as to beadversely affected by a distribution or disposition of propertyin custody of the court or officer thereof.

Now, we already talked about amendments, it can be amatter of right or judicial discretion.

What would be the effect of amended pleadings toadmissions already made in the pleading in the originalanswer or complaint? Remember that the amendedpleadings precedes the pleading that it amends, howeveradmission in superseded pleadings may be receive inevidence against the pleader and claims or defenses allegedtherein not incorporated in the amended pleadings shall be

deemed waived.

First effect: That the amended pleading supersedes theoriginal one which it amends. So it abrogates it, in legalcontemplation that’s no longer a pleading appurtenant to thecase.

Second effect: Admissions made in the original pleadingsthat is amended cease to be judicial admissions. In otherwords in your answer you admitted that you have a liabilityto the plaintiff but you realized I should not have admitted itand so I filed an amended answer as a matter of right thistime contesting the basis of his cause of action sayingnawala ko utang sa imoha .

Can you now forget about the admission that you made inthe answer saying that he is liable? Remember that theamended pleadings supersedes the original in legalcontemplation that original no longer exist in that particularcase

So wala na to value ang admission naiyahang gibuhat ? No,naa gihapon sya value, it ceases to be a judicial admissionbut it can still be presented, pleaded and proved as an

extrajudicial admission, you can still use it but you have topresent it in evidence. That’s Bastida vs. Menzi, 58 P 188,in order to be utilized as extrajudicial admission they must inorder to have such an effect be formally offered in evidenceChing vs. CA 331 S 16.

Can you be allowed to withdraw the admission? Can youcontravene yourself in the sense that you made a previousadmission? The law provides that there are two exceptions:

1. THE JUDICIAL ADMISSION MAY BECONRTRADICTED BY SHOWING THAT IT WASMADE THROUGH PALPABLE MISTAKE –

Palpable mistake it means the mistake is obvious to allsides, these are mistakes that are glaring, that the

judge or the adverse party can see that there was reallyno judicial admission was made by the party.

Under the old rules of evidence this palpable mistakeexception was the only exception that binds the partymaking the admission but the new rules they added onemore

2. AND THAT NO SUCH ADMISSION WAS MADE –

What do you mean when no such admission was made?It means that no admission was made at all by theparties or the admission was taken out of context or notin the sense that the admission was made to by theparty.

In Atillo vs. CA Jan. 23, 1997, the SC said that an

admission made “out of context” the one making theadmission may show that he made no such admissionor that his admission was taken out of context, this isinterpreted to me not in the sense in which theadmission is made to appear. Mao daw nah angmeaning anang “no such admission was made”.

You have to read all the cases assigned. The case of Aguenzavs. Metrobank and Trust Company and Conahap vs. Heirsof Regana where the SC said that the admissions of the partiesduring pre-trial as embodied in the pre-trial order, are bindingand conclusive on them, unless there is a clear showing that theadmission was entered through palpable mistake. Suchadmissions cannot be contradicted by the parties reason again

would be estoppels.

If you’re a plaintiff in a case, who are allowed to makeadmissions in your behalf? Admission made by your lawyer wouldbe binding on you as a general rule, subject to certainexceptions.

Example in the case of People vs. Hernandez, a stipulation offacts proposed during trial by prosecution and admitted by thedefense counsel is tantamount to a judicial admission of the factsstipulated upon.

People of the PH vs. Christina HernandezJuly 1996 * digest by KJ *

Hernandez was charged with the crime of illegal recruitment andwas convicted of crime charged. On appeal, she contended thatthe prosecution failed to prove one of the essential elements ofthe crime of illegal recruitment — that the offender is a non-licensee or non-holder of authority to lawfully engage in therecruitment and placement of workers. She questions thereliance of the lower court in the supposed “stipulation proposedby the prosecution and admitted by the defense during trial”that neither appellant nor her company was licensed or





[Page 22 of 35]


authorized to recruit workers as shown by the records of thePOEA. She claims that the “stipulation of facts” is null and void.

Issue: WON Section 4 of Rule 118 (requiring an agreement oradmission made or entered during the pre-trial conference to bereduced in writing and signed by the accused and his counsel

before the same may be used in evidence against the accused)equally applies to a stipulation of facts made during trial. NO.

Held: RE writing – A stipulation of facts entered into by theprosecution and defense counsel during trial in open court isautomatically reduced into WRITING and contained in the officialtranscript of the proceedings had in court.

RE signature – The conformity of the accused in the form of hissignature affixed thereto is unnecessary in view of the fact that"...an attorney who is employed to manage a party'sconduct of a lawsuit... has prima facie authority to makerelevant admissions by pleadings, by oral or writtenstipulation... which unless allowed to be withdrawn are

conclusive."

We have the case of Fule vs. CA, it became quite doctrinal thatit affected the rules on criminal procedure. The 1985 rules ofcriminal procedure specifically with respect to pre-trialagreement, the rule was no agreement or admissions made orentered during the pre-trial shall be used in evidence against theaccused unless introduced into writing and signed by him andcounsel. Therefore the omission of the signature the accused andhis counsel as mandatorily required by the rules renders thestipulation of facts inadmissible as evidence.

Now what if you are the prosecution and you simply rely on theadmission made by the accused during pre-trial? Therefore wala

naka nag present ug evidence, because remember the effect ofan admission, it withdraws a particular fact from contention, nomore need to present any evidence if it is already subject to astipulation of facts specifically if made during pre-trial. The SCsaid: If that is the case you should not simply rely simply on thatadmission which later on was invalidated by the SC. What theprosecution should have done upon discovering that the accuseddid not sign the stipulation of facts as required by rule 118 wasto submit an evidence to establish the element of the crimeinstead of relying solely on the supposed admission of theaccused in the stipulation of facts without said evidenceindependent of the admission the guilt of the accused cannot bedeemed established beyond reasonable doubt and therefore inthis case Fule was acquitted because of that technicality.

It is sort of unfair because the 1985 rules did not say anythingabout the effect if it was not signed. Now it already provides theeffect under:

Rule 118. Section 2.Pre-trial agreement . — All agreements oradmissions made or entered during the pre-trial conferenceshall be reduced in writing and signed by the accused andcounsel, otherwise, they cannot be used against the accused.The agreements covering the matters referred to in Section 1 ofthis Rule shall be approved by the court.

So kinahanglan ug court approval and also states that otherwisethey cannot be used against the accused if the agreement

entered or made during the pre-trial is not reduced in writing andsigned by the accused and counsel.

RULE 130RULES OF ADMISSIBILITY

OBJECT EVIDENCE

Rule 130. Section 1. Object as evidence . — Objects asevidence are those addressed to the senses of the court. Whenan object is relevant to the fact in issue, it may be exhibited to,examined or viewed by the court.

Remember that object is synonymous to real evidence.

Why real evidence? Real comes from the word res. What is ares? It is a Latin term for object. So when we say real evidenceyou are talking about a thing or an object as evidence to bepresented before a trier of facts.

It is also called Autoptic Proference which I already discussed

when we were talking about the fact that when the courtexamines the appearance of a person or the age of a person forthe purpose of probably taking judicial notice, actually dili langna siya judicial notice it becomes Autoptic Proference. Automeans self; Optic pertains to the eyes.

When Autoptic Evidence is introduced in trial the fact finder willnow decide what way it should be accorded the same, in thisclass of evidence the ascertainment of the uncontroverted acts ismade through demonstration involving the direct use of sensesof the presiding magistrate. So when you are presenting anobject in court by itself is the evidence. You are talking hereabout a court being asked to appreciate the evidence using thefive senses (sight, smell, touch, hearing, taste).

For example, there is an allegation that the witness was bringingliquor saiyahang sakyanan at the time he was apprehended, hewas driving drunk, what is found in the car is a flask or lapad oftanduay. So during trial gipasimhot ang judge, so this uses thesense of smell.

With respect to object evidence contrasted with documentaryevidence, you are limited to a mere observation. You observewhat is the condition and the appearance of the object thatwould now consist the evidence that will now be the one givenweight in a particular case. Later on we will be discussing aboutdocumentary evidence.

When you look at documentary evidence to a certain extent youare also looking at physical appearance, what is written in thatdocumentary evidence. But rather than taking stop in theappearance of the document you are actually trying to appreciatewhat the contents of the document are. In order to do that youuse a different sense, that’s the sense of intelligence no longerlimited to the five senses. Kailangan man nah nimo basahon andwhatever you understand from what you have read, that will bethe one that will be given weight by the court, so there’s that bigdifference between a documentary and object evidence.

Remember what we discussed before that in the hierarchy ofevidence in the case of People vs. Lavapie

, greater credence isgiven to object or real or physical evidence as evidence of the

highest order because it speaks more eloquently than a hundredwitnesses.

Moran (?) classifies object evidence in three:

I. Those object evidence which consist in theexhibition or production of the evidence insidethe court room.





[Page 23 of 35]


Ex. The effects of the crime or the means to perpetratethe crime, the murder weapon that is exhibited andproduced inside the court room and appreciated in thatmanner.

II. Those object evidence which consist in the

inspection of an object outside of the court room.

Does the court do that examine an object outside of thecourt room or should it always be placed inside thecourt room or the court vicinity?

What you do not know is this is actually a very commonpractice where the court examines the object outsidethe court room through the process of ocular inspection.

(Sir talks about a case he handled before respecting a boundary dispute

just because of a mango)

You cannot bring the land to the court but you can

bring the court to the land. So what usually happens isthe court will be there or the clerk of court, rememberyou can delegate the inspection of evidence to the clerkof court, the clerk of court can make objections but hehas no power to rule on the objections, i-notelangniyaang objections and bring it to the attention ofthe court the court will make the ruling. Thestenographer will also be there. Then a report about theocular inspection. So it can be done.

III. Object evidence can also consist in those ofexperimentation.

The best example I can give you is the case of OJ

Simpson he used to be a very famous football playerand he is also an occasional actor. Robert Kardashianwas a very famous lawyer and he was the lawyer of OJ.

OJ was accused of double murder of his ex-wife NicoleBrown and boyfriend niya at that time, they’re estrange.OJ supposed to be daw wife beater, abuse his wife somuch and then they separated. So one time they werekilled the main suspect was OJ Simpson. At the scene ofthe crime nay nabilin na pair of bloody gloves that’s oneof the pieces of evidence presented in the court room.The prosecution are saying to simplify everything todetermine whether or not he had opportunity becausethey already established the motive. In American

criminal law remember important ang motive andopportunity. They already establish the motive that OJwas angry with Nicole Brown she has already move onand she has a new boyfriend so you killed both of themin a fit of jealous rage but you need to put OJ in thescene of the crime and therefore if the gloves would fitOJ Simpson it could prove that in all probability he wasthere in the crime scene and in all probability if thegloves were his then he was the one who committedthe double murder.

The defense led by Robert K. objected because thatmight violate their right against self-incrimination buteventually the judge allowed OJ to try on the gloves butthe gloves did not fit and that caused the case to fall.So that is an object evidence in the form ofexperimentation.

Does this not violate OJ Simpsons right against self-incrimination? The right against self-incrimination coversonly compulsion to confess guilt but it does not excludepurely mechanical acts. Example you wear a gloves thatis purely mechanical and therefore it is not covered.

What else is not covered in the right against self-incrimination? When you are subjected to a paraffin testthat’s purely mechanical and because it is purelymechanical you cannot object to the conduct of the teston the ground of violation of the right against self-incrimination.

DNA test, would the taking of DNA sample from thebody of the accused constitute a violation of the rightagainst self-incrimination? The correct legal answerthere is NO, because that is purely mechanical.

Which brings me to the case of People vs. Joel YakarMay 19, 2004: Here DNA evidence was taken from theaccused and according to the accused the blood sampletaken from him as well as the DNA test were conductedin violation of his right to remain silent as well as hisright against self-incrimination under sections 12 and 17of the 1987 constitution. The contention is untenableaccording to the SC the kernel of the right is not against

all compulsion but against testimonial compulsion. Theright against self-incrimination is simply against a legalprocess of extracting from the accused own lips anadmission of his guilt, it does not apply where theevidence sought to be excluded is not an incriminationbut as part of the object evidence.

So pag object, use of the five senses lang dyud nah; When you use intelligence, no longer. When youcommunicate you use your intelligence, when you aretestifying, when you are compelled to say somethingthat already requires the use of intelligence. Thus aperson may be compelled to submit to finger printing,photographing, paraffin, blood and DNA test as there is

no testimonial compulsion involved.

What about a case where the policemen forcibly tookhair samples from the accused? This is too much. Thiscase of People vs. Romero actually pubic hair anggikuha to analyze the pubic hair left in that area afterthe act of sexual intercourse, so i-match ang duh akapubic hair and it was a match. According to the SC evenif the hair samples were forcibly taken for forensicexamination the hair samples may be admitted againsthim for what is proscribe is the use of testimonialcompulsion or any evidence communicative in natureacquired from the accused under duress. That’s theright against self-incrimination in relation to object

evidence.

Take note that in order for object evidence to beadmissible you must pass the test of relevancy andcompetency. Not all object evidence would be admissible as inany other type of evidence it would still be subject to the test ofrelevancy and competency, if it excluded by the law or the rulesof court such an object will not be allowed in court or if it notrelevant to the fact in issue or not even collaterally relevant thenit will also not be admitted in court. Thus when an object isexcluded by the law or the rules let’s say on the ground that it isa fruit of a poisonous tree such as search incident to an arrestand then lifted from your body let’s say sachets of shabu. Thatcannot be used against you if the arrest in the first place is not

lawful, there was no probable cause to make a stop and frisk.

Remember also that Autoptic Proference must also be relevantand it’s relevant only when it makes a pack of consequence moreor less probable than in the absence of Autoptic Proference.

Take note object evidence itself does not establish the factum probandum , there is no factum probandum solely provable byobject evidence.





[Page 24 of 35]


Do you agree? Let’s say the factum probandum would be A killedB. How could object evidence prove that factum probandum ?What are the objects that would be relevant? So the body of thevictim, the stab wound, the murder weapon. Let us suppose thatthere all admitted in court there are photographs of thedeceased.

Would that prove all by itself the factum probandum ? No, it mustfirst be supported by other propositions and in the ultimateanalysis it must be proven to have a logical relationship to theultimate fact in issue.

How do you that? You can only do that by means of testimonialevidence. Testimonial evidence is that method by which you areable to authenticate object evidence to identify object evidence.While you evidence is consisted of object evidence theseevidence must first be identified and authenticated by competentwitness, sponsored by a witness.

What about money? Is money object or documentary evidence?

Naa bay symbols in money, nay words, characters, figures, andmeans of written expression? Yes, so is this 100 peso bill adocument or is it object evidence that is addressed to the sensesof the court when relevant to the fact in issue this money may beexhibited tot examined or viewed by the court?

If the fact in issue bill appears to be new or any physicalattributes relative to appearance and condition then this is ofcourse object evidence. So if this is presented that this object isube in color then this is object evidence. But if the fact in issuerelates to whatever is written here then it is documentaryevidence.

What if it is a special type of money? Would marked money be

considered object evidence or documentary evidence?

According to the SC in the case of People vs. Reyes, markedmoney is actually object evidence. Marked money is theconsideration paid for the sale of illegal drugs transaction. It isrelevant to the fact in issue, it may be exhibited to, examinedand viewed by the court making marked money object evidencedespite the fact that what really identifies a marked money wouldbe the mark, you simply have to take note of the serial numbersand that will now be matched during trial. What really mattersthere is what you read from the marked money unsay contentsbut it is still considered as object evidence.

Another interesting case, the case of People vs. William

, June

15, 1992: In a prosecution for possession of marijuana. Theaccused was charged under dangerous drugs act and his defensewas the object evidence the marijuana taken from me is notadmissible in evidence on the ground that it is beyond thecommerce of men. If it is beyond the commerce of men it cannotbe a valid object it is illicit subject matter. But would that have abearing under the laws of evidence the fact that it was beyondthe commerce of men? The SC said that is absurd the transfermarijuana was incidental to the arrest of the appellant and aconfiscation of the subject matter of the crime. It is in the samecategory as a death certificate or an autopsy report which areadmissible evidence of the subject of the crime. The humancadaver which is also beyond the commerce of men transfergoods as a consequence or by virtue of police or state action

such as forfeiture, seizure, confiscation does not fall within thephrase “commerce of men”.

July 29, 2015 (DJG)

DOCUMENTARY EVIDENCE

Rule. 130. Section 2. Documentary Evidence . Documents as

evidence consists of writings or any material containing letters,

words, numbers, figures, symbols or other modes of written

expressions offered as proof of their contents.

Section 2 actually covers the two types of documentaryevidence:

1.

Writings per se ; and2. Any material containing letters, words, numbers,

figures, symbols or other modes of written expressions.

Suppose, evidence consist of a certain inscription at the side of abuilding and what you want to prove would be: When was thatbuilding founded? When was it established? Since the inscriptionconsists of such letters proving the same, then technicallyspeaking that consists of documentary evidence.

In both types of documentary evidence, the requirement is thatthe writing or material must be offered as proof of its contents.Remember that the subject of inquiry would be what is containedin such writing. If offered as proof of execution of the document,

it now becomes object evidence.

BQ 1994: How do you characterize marked money in a buy-bustoperation? Can a person, the accused, object to the presentationof a mere photocopy of the marked money? It being a photocopyimplies there is a greater source. Can you present that secondaryevidence? It depends. Is it offered as proof of their contents?

A: NO. It was offered as an object evidence of the transaction.Thus, the best evidence rule does not apply it being non-documentary evidence, but an object evidence.

BQ 2005: A question was asked relating to the multipleadmissibility of evidence application: May a private document be

presented and admitted as both documentary and objectevidence?

A: It can be both object and documentary evidence. Remember,if the fact in issue here is the content of a document , you applythe rule relating to documentary evidence, but if the purpose ofpresenting the evidence would simply be for the sake oftestifying as to its appearance (other than its contents), as to itsform and then it is an object evidence.

RE: Letters, etc. If you’re going to present letters as evidenceyou don’t present it to prove that the paper is yellow, but inorder to prove something that was written therein.

Can an email be used as a documentary evidence based on itsdefinition in Section 2?It can’t. Is it tangible? How about textmessaging? Is it possible for a contract to be executed andperfected through text? Yes. What is important is the meeting ofthe minds. If you are going to sue for payment, you present thetext message. You are offering the contents of the text messageas proof of their contents but is it documentary evidence? No.

The SC has already pronounced the A.M. No. 01-7-01-SC orthe Rules on Electronic Evidence:

Rule 2. Section 1. An Electronic Document refers toinformation or the representation of information, data, figures,symbols or other modes of written expression, described or

however represented, by which a right is established or anobligation extinguished, or by which a fact may be proved andaffirmed, which is received, recorded, transmitted, stored,processed, retrieved or produced electronically. It includesdigitally signed documents and any print-out or output,readable by sight or other means, which accurately reflects theelectronic data message or electronic document. For purposesof these Rules, the term “electronic document” may be usedinterchangeably with “electronic data message.





[Page 25 of 35]


Under these Rules an electronic document is considered, incertain situations, as functional equivalent of paper-baseddocuments. The law provides whenever a rule of evidence refersto the term “writing, instrument, document, memorandum or anyform of writing” such term shall be deemed to include anelectronic document.

Thus, electronic evidence are now deemed covered under theRules of Court pertaining to documentary evidence. So anyreference to a document in the Rules of Court is deemed toinclude already electronic evidence.

GENERAL REQUISITES FOR THE ADMISSIBILITY OF DOCUMENTARY EVIDENCE –

1. Documentary evidence must be relevant;2. It must be competent and, in addition;3. It must be subject to exclusionary rules under the rules

of court such as the hearsay rule, the best evidence ruleand parole evidence rule; and

4.

It must be authenticated by a competent witness.5.

Must be formally offered in evidence. (Note: Those highlighted are those which Atty. Espejo called theBasic Requisites.)

Best Evidence Rule

Simplest way to articulate the rule: Original document mustbe produced. No evidence shall be admissible other than theoriginal document itself.

Best Evidence Rule (BER) appears to be a misnomer. Why? Itdoes not purport to be a declaration of the Rules of Court thatthe documents are the “best” or superior evidence but rather

refers to the fact that the original is the best evidence. And so itshould have been “Original of the Document Rule” or PrimaryEvidence Rule. It does not also mean that weaker evidence issubstituted by stronger evidence.

Why does the BER exist? What is its essence? The SC heldthat the underlying purpose of the rule is the prevention of fraudor mistake in the proof of the contents of a document. Requiringthe original of the document would actually prevent that.Otherwise, if a duplicate or photocopy is allowed, it will pave theway or will allow an unscrupulous party to present spuriousevidence. It will be easy to perpetrate fraud. [Excuse letter storyin Elementary]

The best case to explain the reasons would be Lee v People

,G.R. No. 159288, October 19, 2004. Also read Solidbank v DelMonte, G.R. No. 143338, July 29, 2005. [READ]

Rule 130. Section 3. Original document must be produced;exceptions. When the subject of inquiry is the contents of adocument, no evidence shall be admissible other than theoriginal document itself, except in the following cases:

x x x

Again, the rule was designed to guard against fraud, theintroduction of altered copies and the withholding of theoriginals. But the modern justification has expounded the rule tothe recognition that writings occupy a certain position in the law.

WHEN APPLICABLE –

Basic requisites for the application of the BER:

1. The subject matter must involve a document;2.

The subject of inquiry is the contents of adocument.

The rule therefore applies only when the purpose is to establishthe terms or contents of a writing. When the evidence producedconcerns some external fact about the writing like its existence,execution, and delivery, without reference to its terms, the BERcannot be invoked.

WHEN NOT APPLICABLE –

In Lee vs. People, SC said it does not apply to:

1. Proof of facts collateral to the issues such as thenature, appearance or condition of physical objects(such as when the evidence is presented as an objectand not as a document from which we read);

2. Evidence relating to a matter which does not comefrom the foundation of the cause of action ordefense;

3.

When a party uses a document to prove the

existence of an independent fact, as to which thewriting is merely collated or incidental.

And so, when the document is merely collaterally inissue, the rule does not apply. Take not however, thatlike any other rule, the BER is subject to waiver when itis not raised in the trial, or when there is failure toobject.

4. Also, it does not apply when the originaldisappeared.

Is there a way to restate the Best Evidence Rule so as to removethe misnomer?

“The original must be presented except when theproponent can justify the unavailability of the original ina manner provided by the rules.”

Exceptions to the Best Evidence Rule

So the exceptions may be regarded as the justifications forunavailability. These are the possible justifications:

x x x(a) When the original has been lost or destroyed, or cannot beproduced in court, without bad faith on the part of the offeror;

x x x

Loss –

When can we consider a document to be lost?

New Civil Code. Article 1189. It is understood thatthe thing is lost when it perishes, or goes out ofcommerce, or disappears in such a way that itsexistence is unknown or cannot be recovered.

That’s the only definition of loss in all of the law.

So, the original of the document is considered lost if itperishes, goes out of commerce, or disappears in such away that its existence is unknown or it cannot berecovered.

Destruction –

Destruction, as defined in Succession (when is a willconsidered destroyed?), simply means physicalobliteration. Obliteration, meaning, by tearing,shredding or burning. It can also include acts of





[Page 26 of 35]


alteration that would render the contents of thedocument unintelligible for the purpose it is offered inevidence.

If it is no longer readable by sight then it is destroyed; ifit is no longer legible or readable by sight,

(unintelligible) the document is considered, destroyed.

Unavailability –

Types of unavailability:1. physical unavailability. Example: inscription in

the building, instead of bringing the building tothe court, you take a picture of it); and

2. constructive or legal unavailability. This isbeyond the coercive jurisdiction of the courtwhere the evidence is to be presented.Example original of contract exists but it wasexecuted in Nigeria, can it be subpoenaed tobe mailed in the Philippines? It depends if they

cooperate.

Rule 130. Section 5. When original document isunavailable. When the original document has been lostor destroyed, or cannot be produced in court, theofferor, upon proof of its execution or existence andthe cause of its unavailability without bad faith on hispart, may prove its contents by a copy, or by a recitalof its contents in some authentic document, or by thetestimony of witnesses in the order stated.

So under this provision, if the original has been lost,destroyed or unavailable, you need to prove:

1. The execution or existence of the original;2.

The cause of its unavailability; and3. That the unavailability was without bad faith

on your part.

Bad faith on the part of the offeror –

Why is this important? Because it is possible that youdon’t want to produce the original; maybe youdeliberately destroyed or maybe you sent it somewherethe court does not have coercive jurisdiction. Hence, therequirement.

In the case of Dela Cruz vs CA, the SC held thatbefore you are able to present secondary evidence, all

originals of the document must be accounted for. Thus,you have to prove loss, destruction and unavailabilityover all those originals first.

The correct order of proof:1.

Existence (that it exists);2. Execution (that it has been duly executed);3.

Loss (how it was lost); and4. The contents.

Thus, after proving the above listed, the offeror maynow prove the contents of the documentsthrough the existence of secondary evidence:

1. By a copy of the original; and

2.

By a recital of its contents in some otherdocuments.

Can you think about a situation under the law where theoriginal is contained is some other authentic documentthat can be admissible as well as a functional equivalentof the original?

Example, you are going to plead an actionabledocument. You have two options: you can either attachit or incorporate it.

Another example, Land Titles and Deeds, the decree ofregistration. Who issues it? The LRA. So, whatever is

stated in your certificate of title is actually a recital ofwhat a decree of registration contains. Those areactually identical.

x x x(b) When the original is in the custody or under the control ofthe party against whom the evidence is offered, and the latterfails to produce it after reasonable notice;

x x x

The mere fact that the original is in the possession ofthe adverse party does not ipso facto authorize theintroduction of the photocopy or secondary evidence toprove its contents.

Rule 130. Section 6. When original document is inadverse party's custody or control. — If the documentis in the custody or under the control of adverse party,he must have reasonable notice to produce it. If aftersuch notice and after satisfactory proof of itsexistence, he fails to produce the document,secondary evidence may be presented as in the caseof its loss

The following must be complied:1. Must prove that the original exists;2.

Must prove that it is in the custody or control

of the adverse party;3.

There was reasonable notice; and4. That adverse party failed to produce it.

x x x(c) When the original consists of numerous accounts or otherdocuments which cannot be examined in court without greatloss of time and the fact sought to be established from them isonly the general result of the whole; and

x x x

Example, you are engaged in business so in the dailybasis you issue receipts, invoices. Imagine a case whereyour documentary evidence constitute voluminous

number of documents that you need to present. You nolonger have to present all of those because it will be acomplete waste of time. You don’t really care about thespecifics; you are more interested in the end result.

What you have to remember is that, the only thing youneed to impress upon the court is the general result ofthe whole, you can thus present summaries certified byan independent CPA. Why does the allow you to presentthese? Because of simplicity, expediency, judicialeconomy.

Read the case Atlas Consolidated MiningCorporation vs CIR, I ask this case almost every year

in my exams. [READ. IMPT]

The procedure is as follows, that you be allowed topresent:

1. a summary containing, among others, achronological listing of the numbers, dates, andamounts covered by the invoices or receiptsand the amount paid; and

2. certification by a CPA attesting to thecorrectness of the contents of the summary





[Page 27 of 35]


after making an examination, evaluation, andaudit of the voluminous receipts and invoices.

If you read that case together with the Judicial AffidavitRule, you will know that there is a need to attacheverything. The only shortcut there is that you don’t

have to testify on every attachment one by one. Also,you don’t have to individually identify all thoseattachments during the testimony of the witness.

x x x(d) When the original is a public record in the custody of apublic officer or is recorded in a public office.

This is governed by the provision:

Rule 130. Section 7. Evidence admissible whenoriginal document is a public record. — When theoriginal of document is in the custody of public officer

or is recorded in a public office, its contents may beproved by a certified copy issued by the public officerin custody thereof.

For example, you are going to take the Bar already, youare asked to produce a copy of your Birth Certificate.When you go to the Civil Registrar, are you given theactual, real copy of your BC which was entered into in1980s? You are simply issued a NSO certified copies ofyour BC. Same with marriage contracts.

Now, when you go to the ROD. The entries there arepublic records, are you given the original? Of coursenot. You might be given a certified true copy. Why?

Because of:

Rule 132. Section 26. Irremovability of publicrecord. — Any public record, an official copy of whichis admissible in evidence, must not be removed fromthe office in which it is kept, except upon order of acourt where the inspection of the record is essential tothe just determination of a pending case.

Thus, where the original document is a public record,the secondary evidence allowed is a certified true copyissued by the public officer in custody thereof.

Rule 130 Section 4.Original of document. —(a) The original of the document is one the contents of whichare the subject of inquiry.

x x x

We have no problem with letter (a) noh? But letter (b) needs alittle bit of discussion:

x x x(b) When a document is in two or more copies executed at orabout the same time, with identical contents, all such copies areequally regarded as originals.

x x x

Best example are receipts. Triplicate receipts are consideredoriginals. All docs or sheets are considered originals.

Take note, what section 4 really intended to cover weredocuments executed in carbon copies.

x x x(c) When an entry is repeated in the regular course of business,one being copied from another at or near the time of thetransaction, all the entries are likewise equally regarded as

originals.

A journal (an original), f irst thing you right on your transactions.Ledger (entries were all copies from original), where you compileeverything, your journals. Is it correct to assume that whateverthere is in the ledger, it came first from the journal? Yes. So thatis the best example here, ledger and journal. Both are regardedas originals.

August 5, 2015 (DM)

Parol Evidence Rule

The Parol Evidence rule is a very rich source of bar questions.

Rule 130. Section 9. When the terms of an agreement havebeen reduced to writing it is considered as containing all theterms agreed upon and there can be, between the parties andtheir successors in interest, no evidence of such terms other

than the contents of the written agreement.x x x

(asks a student) Did you ever entered into a written agreement?(Yes) Did you read that before you signed? (Yes) Did you addstipulations to such contract? (No) In other words you justadhered to the contract?

Have you ever submitted a paper in your life, a recollectionpaper? Do you not proofread the paper prior to submission?Everything you wanted to say was there.

By its phraseology it is hinted there that what Sec. 9 governswould be how you’re going to prove a written agreement if it has

already been reduced into writing. Is it not logical for theparties… to negotiate?

Perfect example – Mayweather v Pacquiao. Back and forth, backand forth. “I want 500k” “No I can only afford 400k” So afteroral accords, they finally come up with terms that are mutuallyacceptable between them. What usually follows via logicalconsequence of the back and forth, they reduced agreement towriting.

Here comes the other party being sued for breach of thatcontracts saying: “That’s not all we agreed upon. We agreed onsomething else.”

That is #1: counter-productive. Why would you reduceagreement to writing and leave out some agreements and notintegrate them into the agreement you’re going to sign. That’sthe reason of the parole evidence rule.

(Linguistics 101: Here’s a little word play. The word PAROL. If you read your books,it means “oral.” It is oral evidence. What the parole evidence therefore limits, is theability of the party to present oral evidence to modify an agreement which has beenreduced into writing by the parties.

What confuses me is the word parole. The TSNers use parole with an e. What is

parole? Under Crim, you know, it’s a means of modifying criminal liability. Aprocess that a convict undergoes to secure an earlier release subject to certainconditions – most notably that he will not commit a crime.

The words parol and parole come from the same root word in french: parole.

Meaning “word” or “speech.”

What connection do I want you to realize? When you use “parol” you mean oral,

spoken by word of mouth. When you include the origin of the french word, parolemeans “word of honor.” A prisoner of war would be released by his captors after hehas suffered a sentence if he gives a word of honor to not commit a crime againsthis captor after his release. Another bit: parole french comes from latin parabole. Parable – stories in the Bible

related by Christ or his followers orally, iyang gi-sulti, gi-sermon. Parable, naa’yconnection.

What I cannot find a connection for: parol in Filipino. Farol, murag gipabading lang,parol. In Spanish, there’s a sentecnce “farol de viento” to lie, or in Bisaya,





[Page 28 of 35]


maghambog. So when you say, nag inviento. Or vientelador – something tbatreleases air.)

Let’s go back to parole evidence rule. Take note that the PER is aso-called Rule of Integration. Everything we have agreed uponprior to reducing it into writing, prior to signing, is supposed to

be integrated in the WA. If it’s not seen in the WA, therefore it isdeed waived. That is the rule of “wiaver after integration.”

BASIS OF PAROL EVIDENCE RULE –

1. The principle of hierarchy of evidence. Very very basic.In terms of hierarchy what is the highest? Object,documentary and last testimonial. And something that iswritten and something between testimony, it isdocumentary evidence that will prevail, as said in GSISvs CA, May 28 1993.

2.

Principle of waiver after integration in Cavenan vs CA1999. When a jural act is embodied in a single

memorial all other appurtenances of the parties on thattopic are legally immaterial for the purpose ofdetermining what the terms of their act are.

3. Based on the belief that comparatively, written evidencewould always be more reliable than any other evidencebased on the fleeting memory of man. Therefore if it iswritten, that should govern.

4. When it is testimonial, it is most prone to fabrication itsvery very easy for party/witness to change testimonies.

Affidavits may be recanted. What would prevail?Something na pwede bawion or something that is not.

5.

Based on the rule on the interpretation of contracts thatgives primacy of the intention of the parties as lawbetween them

6. Policy of the law to give stability to written agreementsand to remove the temptation of perjury. If that isallowed, sayon ra kaayo mag perjure. A party maysimply perjure himself to get what he wants.

What is the status of a contract that does not follow themandate of the PER? Does it make the contract void?

Voidable? Rescissible? Or is it simply an evidentiary rule thatwould be allowed?

The contract may still be valid. Suppose the contract is executedbetween the parties as the final covenant between them (likehow God wrote 10 Commandments in stone. Are we to assumethere’s an 11th?) Does it mean that if God made an 11th commandment that is not in stone, the 11th rule is invalid?If truly there is a contract between that is not included in thewrirtten agremeent, does it necessary mean that it’s not valid.

Example: A & B entered into MOA. MOA cannot simply bedenominated a contract of sale, etc because it embodies manysub contracts between the parties. I’m going to sell you this landfor this amount, but we will not execute a deed of sale yet. Whywould they do this, enter into a MOA? To avoid immediate taxconsequences. Remember you are given 30 days to pay thenecessary taxes on the transfer of the property? It’s capital gainstax of 6% based on consideration of contract of sale or the zonalvalue of the property as per BIR whichever is higher. Notmention you have to pay 1.5% documentary stamp taxes.

So they don’t have a DOS between them yet. Does that meanwalay baligya ? What if in addition to that not including in theirMOA to conceal the fact, para si buyer ang magbayad ng CG tax?Does that mean that the agreement between them not found inwriting is not valid? Remember the only requisites for validity ofthe contract? (meeting of minds) But can you prove it in court?

That is the only thing that matters when you are talking aboutPER which is not a limitation for the validity of a contract.It is simply a requirement that must be taken intoconsideration as a condition sine qua non to prove suchcontract that seems to be un-integrated in the written

agreement. Majority of contracts are consensual. Once acontract is created it is binding on the parties.

PER is not a limitation on the validity but it is a limitation onthe provability of an existence of something other thanthe written agreement.

When would PER apply? When there is a written agreement.

Does the law define agreement? Is agreement therefore atechnical term that has a definition under the law? NO.

Agreement refers to contracts which are defined under the NCC.Does the PER applies to all contracts? YES. The resulting writtencontract is already covered by the PER.

Now, the last paragraph:

x x xThe term "agreement" includes wills.

Premise: Agreement includes wills.

Can a making of will subject to agreement? For example Testator A agrees with B to make B an heir. They become mutual wills ofthe other. (donation capta toria ) Will cannot be subject thatagreement.

You cannot subject the making of a will to an agreement underthe basic principle that the making of a will is a strictly personalact.

Will compared to other contracts –

Does a will need to be notarized? It depends if it is a notarial willor holographic will. Ang contract ba pwede notarized? Of course.When I agree to give you your exam, that’s a contract. When Idon’t do that, you can declare me in breach.

If a will is not notarized, does it make it any less valid? NO aslong as it follows the formalities of a will. If a contract is notnotarized, will it be binding? It is still binding between the partiesbut no to third parties.

Notarization side: If you notarized a DOAS, is the notary publicrequired to keep a copy? Yes. What about wills? No, notarypublic is not required to keep copy.

Why include wills? –

Given these background information, should a will be treated asa contract? Is there a meeting of minds? No. Bawal. Why then, isit that the law includes the term wills under agreements? Youhave to look at the danger that the law seeks to avoid.

We have a contract, this is what we have agreed. Other partysays that’s not what we agreed upon. You will perjure yourself if

you’re gonna question the contract under PER.

Is that evil of perjury applicable in the making of a will? Testatorinstituted 3 heirs, A 1M B 2M C 3M, Favored si C. A and B say Cshould not be given. the testator cannot contradict. AB says wespoke to the testator while he was making the will. Can thatperjurious testimony be contradicted? Definitely not. Dead man’sstatute, shuffled down the mortal coil.





[Page 29 of 35]


Does it apply to will? YES, with greater reasons that it shouldapplies to will.

But when you consider wills as an agreement, you only do sounder fiction of law. It’s only considered an agreement for thelimited purpose of applying PER.

Exceptions to the Parol Evidence Rule

The situational premise here is the law trying to curb thepernacious practice of people trying to add to or modify theagreement after the constitution of the written contract, becauseit is more beneficial for them to deny na “naa man gud amonggisabutan.” The law does not allow that. If you read on there aremany exceptions.

x x xHowever, a party may present evidence to modify, explain oradd to the terms of written agreement if he puts in issue in hispleading:

x x x

What you need to know before reciting all the exceptions is youcannot claim these exceptions unless you put it as an issue inyour pleading.

It is needed in your pleading before you can raise it. If you planto introduce oral evidence to refute a written agreement youhave to state that. Without this requisite, you cannot claimexception.

x x xa. An intrinsic ambiguity, mistake or imperfection in the

written agreement x x x

AMBIGUITY –

Ambiguous, di klaro uncertainty of meaning usuallycause by words or phrases that convey more than onemeaning. When you read ambiguity in the context ofPER, ambiguity is susceptible of two or moreinterpretations.

Two types:

1. Patent or extrinsic – apparent on the face of

the instrument to anyone reading even if he isunacquainted with the circumstances of theparties.

Would this be curable by oral or paroleevidence? Authorities would tell you that whilelaw is silent on this point, parol evidence mayonly be used to explain what is written, notwhat was intended to be written. Under PHL,you cannot cure patent ambiguity.

Ex. You give a property through a will. “I bequeathe to A by way of legacy,something.”

Is it ambiguous? YES. It’s a patent ambigutiy.When you read that, you wouldn’t be able tounderstand. Can you explain that thatsomething is “2 billion pesos.” You can’tbecause it will violate the PER. It will renderthe witness and party susceptible to perjury.

2. Latent or intrinsic – where the wording of aninstrument is on the face of it clear and

intelligble and at the same time apply to twodifferent things or subject matters.

In Kuya Germs’ will” I give to my nephew Johnmy Mercedes Benz car.”

Is it ambiguous on its face? No, there’s cleartestamentary intent. But the problem is thereare many nephews named John. In intrinsicambiguity we have no problem on how thedevise or legacy is worded but it is theinterpretation that is susceptible to severalmeanings: John A, John B or John C.

By way of exception, a latent ambiguity maybe explained by parol evidence as theambiguity which is brought about bycircumstances that are outside the instrumentor extraneous to the instrument theexplanation must necessary be sought outside

the instrument. It is only outside the will wherethe ambiguity exists. Thus it can be cured bysomething from the outside, pwede ang PER.

MISTAKE –

In order for mistake to be an exception: you have toreckon with requisites of mistake. If you look at Rules ofCourt there’s no definition of mistake. Thankfully it iscovered by civil law.

BPI vs. fidelity Insurance

, October 19 1927: 1. mistake should be of fact ,not law2. mistake should be proved by clear and

convincing evidence3. mistake is common to both parties of the

instrument

Therefore applying it to S9, the mistake referred to bythe law should be mutual. It’s a mistake to both debtorand creditor. If it was only your mistake, it cannot

justify the exception under the PER. MAGELLANMANU vs. CA, Aug 22 1991 [READ]. It talks abouttransshipment – act of transferring goods from onecarrier to another. I always ask this.

IMPERFECTION –

Writing is incomplete and does not express the wholeagreement of the parties. Agreement insufficientlydescribes the exact terms and conditions.

x x xa. The failure of the written agreement to express the

true intent and agreement of the parties theretox x x

Poor guy who owns land needs money to buy fertilizer,pay utang after harvest. Usually parties enter intocontract of loan with mortgage. If debtor does not pay

– you need to foreclose. Or a deed of sale – I will tearthis deed of sale if you do not pay.

What’s the true intention of the parties? To secure theloan.But the agreement was a sale.

There was failure of the agreement to express the trueagreement of the parties. If you’re farmer you canobject and put in issue in your pleading that theagreement did not express true intent of the parties.later on during trial you are not allowed to present oral





[Page 30 of 35]


evidence to prove the contract is not a sale but anequitable mortgage.

Recall: lease with option to buy vs. deed of sale

TRUTH IS SACRED BUT SAFEGUARD IT WITH BODYGUARD OF LIES.

What’s the remedy under civil law to make anagreement to reflect the true intent of the parties –remedy of reformation. Can a will be subject toreformation on this ground? NO Article 1366.

x x xb. The validity of the written agreement

x x x

If you want to apply the exception under PER, you’retrying to present parole evidence to say the contractwas not valid in the first place. You only apply the ruleof integration to contracts which have been properly

integrated. But if void ab intiio , no need to apply PER.In all probability it is the oral contract that is valid.

You need to raise the invalidity of the contract in yourpleading.

Example: Contract where consideration was never reallypaid. Sale of property for 1M. COS drawn up, etc. Canthe seller prove that he never got the consideration ofthe contract when in fact the deed of sale already saidconsideration was already received. YES, this is coveredby this exception. You raised it as an issue in hispleading.

If the agreement is alleged to be forged, that is also anexception – ALORIA vs CLEMENTE, Feb 23 3006.

Evidence to established illegality or fraud BEAU vsHontiveros 1919 and Woodhouse vs Halili, July 311958

x x xc.

The existence of other terms to by the parties or theirsuccessors in interest after the execution of the writtenagreement.

x x x

Subsequent (an exception, not covered by PER) –

Other than the written agreement we executed, we hada subsequent oral agreement. These agreements arenot covered under the PER and they are considered asexceptions.

Ex. B borrowed money from A. To evidence the loan, Bsigned a PROMISSORY NOTE, maturity date Dec 12015, but B defaulted. A sued.

B contends, amount is not due because A agreed toextend period of payment until Dec ’17. What is B’sdefense? Extension of payment, So he has to put that inhis pleading that they entered into another subsequent

agreement which novated the original obligation. If hedoes not plead, PER exception does not apply.

Why does the law allow this exception? Simple logic. Wecannot put in an agreement something that we havenot yet agreed upon.

What section 9 guarantees provided there is properpleading of this exception is the admissibility ofevidence. You can testify for sure, but it DOES NOT

ensure the credibility/believability/weight given to suchtestimony.

So, ALLOWABLE EXCEPTION: Subsequent oralagreements even if such agreements have theeffect of adding, modifying or altogether

abrogating the contract of the parties as evidenceby the PER. Admissible na sya .

Ex: A contract of loan where B will repay 100k. Afterthe contract, the creditor said, you don’t have to pay,consider it a donation. Will that be a valid provableagreement? Yes.

Only prior and contemporaneous agreements which areDEEMED TO HAVE BEEN MERGED to the writingconformably to the integration of the agreement iscovered by the PER.

Prior or contemporaneous (covered by PER) –

Now, if an agreement was prior or contemporaneous tothe agreement. Can you plead that as an exception?

Ex: We negotiated. Right at the time we agreed to put itinto writing, we had side agreements. Covered by thePER or not? Covered. Thus you cannot prove them ifthey are contrary to the written agreement.

Reason: waiver by integration. If it was not stated inthe agreement and it was prior or contemporaneous, itis deemed waived.

Not of the same subject in the written agreement

or collateral matters (not covered) –

What about agreements which are not of the samesubject as the written agreement? Agreements whichare collateral to the written agreement made prior,contemporaneous oral agreements are not covered bythe PER because they are not related to the writtenagreement.

A & B – contact of saleB told A you wash my car

Is it a provable agreement or is deemed covered by thePER? NO because it’s only collateral.

Agreements involving fraud and falserepresentation (not covered) –

All other agreements whether prior andcontemporaneous, subsequent or collateral if the issuerevolves around fraud and false representation becausethey are incidental to the execution and not to theintegration of the agreement is not covered by the PER.That’s Woodhouse versus Halili 1958.

Agreements where 3rd parties are involved –

All other agreements whether prior and

contemporaneous, subsequent or collateral when 3rd

parties who are not privy thereto are involved are notcovered by the PER. That is in LECHUGAS versus CAGR l-3992.

RECAP: WHAT IS COVERED? Only prior andcontemporaneous agreements which are deemed tohave been merged to the writing conformably to theintegration of the written agreement.





[Page 31 of 35]


WHAT IS NOT COVERED?1. Subsequent agreements2.

Collateral agreements or those not of the samesubject as the written agreement

3.

All other agreements if the issue involvesaround fraud and false representation since

they are incidental to the execution andintegration of WA

4.

All other agreements whether prior,contemporaneous or subsequent or collateralwhen 3rd parties who are not privy thereto areinvolved.

August 7, 2015 (JJA)

I guess the last time, we already discussed the different types ofagreement covered and not covered by the PER.

When you say covered it means that the rule applies. You cannotpresent oral or parole evidence to change, modify, add to the

term of the written agreement with respect to prior andcontemporaneous agreement which are deemed to have beenmerged into writing. But there are certain classes of agreementthat are not covered by the parole evidence rule.

And we have also identified the four types of agreements thatare not so covered. For example, side agreements, collateralagreements which although are oral and contemporaneous withthe writing are actually considered separate and distinct. That’swhy we call them contemporaneous oral agreements. We willdiscuss a little bit of that later on.

Oral agreements whether prior or contemporaneous, subsequentman o collateral to the issue, if it revolves around fraud and false

representation, since they are incident to the execution and notthe integration to the agreement and all other agreements whenthird parties who are not privy thereto are involved.

Now let’s try to define contemporaneous agreement. We don’thave problem with prior agreements because they areagreements deemed to be integrated already in the writtenagreement. Contemporaneous agreement is one entered into atthe same time as the agreement which was already beenreduced into writing.

The question therefore is if it was an oral agreement entered intoat the time when the parties already reduced their agreementinto writing, automatic ba na sya that it’s no longer covered by

PER? Remember that if a contemporaneous oral agreement isseparate and distinct from the written agreement, such oralagreement is curable by parole evidence.

Perfect example is where A sells land to B. of course, there waspayment already and turnover of certificate of title over the landbut what the agreement that they signed failed to include wastheir contemporaneous agreement which was executed at thesame time that I have the right to repurchase or right toreconveyance of property. And that is one of the inducement for

A to sell his land to B. Can you not prove by parole evidence thefact that you have agreed to sell the land because there was alsocontemporaneous agreement of repurchase or reconveyance? Ifyou are barred from doing so then that would lead to a very

unfair situation. And therefore in such a situation, the law allowsa party to prove by parole evidence the existence of suchcontemporaneous oral agreement because it is deemed to beseparate and distinct from the agreement that was reduced intowriting.

What we need to remember therefore, with respect tocontemporaneous oral agreements would be two tests:

1)

If the subject matter of the written agreement isdifferent from that of the contemporaneous oral

agreement, then the COA is deemed to be separate anddistinct as an agreement and therefore is provable byparol evidence. There are two different contractstherefore contemporaneous contracts are provable byparole evidence.

2) Or it could be that while the agreement refers to thesame subject matter (land), one for the sale of the landand the other is for the reconveyance of the land,therefore even if they actually refer to the same subjectmatter you need to determine whether or not they areseparate. Can the COA be separable from the writtenagreement? If COA is separable then it is alreadyconsidered as separate and distinct and therefore

provable by parole evidence. That is a very importantdoctrine that you need to remember. – (Laureano vKilayco)

In the case of Woodhouse vs. Halili

, SC also ruled thatinducements and representations which led to the execution ofthe written agreement in the first place may also be proven byparole evidence because they actually do not vary the terms ofthe agreement. They speak of the intent of the parties. Intent isnot normally included in the agreement. And therefore, what wecan expect with respect to inducement and representations, theyare not integrated into the written agreement. That is the reasonwhy in this case, you can prove inducement and representationsby parole evidence.

Parole evidence is also admissible to prove an independent andcollateral agreement which constitutes an inducement to themaking of the sale or part of the consideration thereof. Forexample is the 1billion sale of GMA. There are collateralagreements.

Condition precedent not stipulated in the written agreement isalso provable by oral evidence. For example in a contract to sell,what are the condition of obligation of the parties… full paymentof the price or securing title of the property. The SC said that acondition precedent is provable by parole evidence becausebefore the happening of the condition there is no writtenagreement yet to which the parole evidence rule may apply. So

in a conditional sale where transfer of ownership is subordinatedto full payment of purchase price, there is no deed of sale tospeak of. And therefore that condition precedent even if it is notprovided in the written agreement, it is provable by paroleevidence. (Land Settlement Corporation vs. Garcia

)

Remember that one of the exception of PER is when there isfailure of the written agreement to express the true intent andagreement of the parties thereto.

Take note of the quantum of proof required in order to contradictthe terms of the written agreement, whether by parol or anyother evidence. In Manzano vs. Perez: In order to contradictthe fact contained in a notarial document for example as well the

presumption of regularity of the execution thereof, there mustclear and convincing evidence that is more than merelypreponderance of evidence. Why I am saying that? because youneed to remember that in the hierarchy of evidence, oraltestimony cannot, as a general rule, prevail over writtenagreements of the parties.

Favorite part daw ni Sir: Now how do you distinguish bestevidence rule from parole evidence rule?





[Page 32 of 35]


Best Evidence rule Parole evidence ruleThe contents of the writing WON to allow a party to

contradict the terms of writtenagreement by means of oraltestimony

Secondary evidence is Offered

to prove the contents of thewriting which is not allowed ifit falls in any of theexceptions. E.g. loss,destruction, physicalunavailability

Purpose of the offer of the oral

testimony is to change,modify… the terms of thecomplete written agreementwhich is not allowed unless thecase falls under theexceptions.

Only the parties and theirsuccessors may invoke theprotection of the PER.Remember PER does not applyif there are 3rd parties involve.

As in any evidentiary rule, PER is waived by failure to timelyobject.

What would be the effect of novation to the applicability of PER?[not answered, just read the case of Market Developers vs.IAC].

STATUTE OF FRAUDS

Interestingly enough when we talk about exclusion the main lawis:

New Civil Code. Article 1356. “contracts are obligatory inwhatever form they may have been entered into provided all

the requisites are present”

Contracts are perfected by mere consent. Form is important onlyif a law mandates that it be written. We know that a contract tosell is a consensual contract. Delivery is an obligation, a conditionprecedent for the transfer of ownership. But a contract to sell is aconsensual contract perfected by mere consent. Contract of salecan be in writing or word of mouth or partly in writing or partlyof word of mouth or even inferred from the conduct of theparties. E.g. auction sale, sinyas sinyas lng bisan wala words.

In contracts of sale, it is delivery that consummates the contract.Consummation is not required to its validity. It is valid inwhatever form they may be entered into. In other words, a

contract of sale if valid gisulat man nimo o wala.

For validity – However, there are provisions of the law whichprovides for formalities of a contract. Examples are:

1) Antichresis – the only contract that is required to bewritten to be valid.

2) Sales by an agent thru special power of attorney3)

Donations of personal property 5000 and up.; if realproperty – must be in public instrument

4) Stipulations on interest

For greater efficacy/ convenience – Under Statute ofFrauds, not all contracts are covered. Not the entire Article 1403is Statute of Frauds. It is only Section 2 of Article 1403 is theStatute of Frauds.

New Civil Code. Article 1403. The following contracts areunenforceable, unless they are ratified:

x x x(2) Those that do not comply with the Statute ofFrauds as set forth in this number. In the followingcases an agreement hereafter made shall beunenforceable by action, unless the same, or some

note or memorandum, thereof, be in writing, andsubscribed by the party charged, or by his agent;evidence, therefore, of the agreement cannot bereceived without the writing, or a secondary evidenceof its contents:

(a) An agreement that by its terms is not to

be performed within a year from the makingthereof;(b) A special promise to answer for the debt,default, or miscarriage of another;(c) An agreement made in consideration ofmarriage, other than a mutual promise tomarry;(d) An agreement for the sale of goods,chattels or things in action, at a price not lessthan five hundred pesos, unless the buyeraccept and receive part of such goods andchattels, or the evidences, or some of them,of such things in action or pay at the timesome part of the purchase money; but when

a sale is made by auction and entry is madeby the auctioneer in his sales book, at thetime of the sale, of the amount and kind ofproperty sold, terms of sale, price, names ofthe purchasers and person on whose accountthe sale is made, it is a sufficientmemorandum;(e) An agreement for the leasing for a longerperiod than one year, or for the sale of realproperty or of an interest therein;(f) A representation as to the credit of a thirdperson.

x x x

ROD will never accommodate transfer of ownership if there is nocontract in writing. This is only for purposes of convenience andnot for validity.

1)

You cannot enforce in court an action relating tocontract if you do not comply with SoF. Evidence willnot be received if not reduced to writing. (notnecessarily notarized.)

2) Application of SoF, without note or memorandum doesnot foreclose the application of Best Evidence rule orsubstitutionary evidence.

3) Any note or memorandum would do. E.g. tissue paperwill suffice.

Originally the Statute of Frauds is not found in the Civil Code. Itis found in the Rules of Evidence because originally it wasintended to be a requirement of provability and because it is arequirement of provability, it is an evidentiary rule. But later on itwas migrated to civil code from rules of evidence in order toreflect its true nature, that it is substantive law.

Claudel vs. CA, July 12, 1991: “The purpose of the Statute ofFrauds is to prevent fraud and perjury in the enforcement ofobligations depending for their evidence upon the unassistedmemory of witnesses by requiring certain enumerated contractsand transactions to be evidenced in Writing.

“The provisions of the Statute of Frauds originally appeared

under the old Rules of Evidence. However when the Civil Codewas re-written in 1949 (to take effect in 1950), the provisions ofthe Statute of Frauds were taken out of the Rules of Evidence inorder to be included under the title on Unenforceable Contractsin the Civil Code. The transfer was not only a matter of style butto show that the Statute of Frauds is also a substantive law.”

So what’s the requirement here, there are certain enumeratedcontracts you have to have some written evidence of thecontract. If you don’t have written evidence, if the contract is





[Page 33 of 35]


breached and you are aggrieved, you cannot prove that contractto obtain relief. In a nutshell, that is the Statute of Frauds.

One thing you need to remember also, when you talk aboutStatute of Frauds, not all contracts are covered by SoF. Whenyou go outside to buy from Manang Luchi or Manong

Paningkamot – sa una nagapangutang ko og sigarilyo o candy satindahan sa gawas . Does it have to be covered by SoF? Withrespect to the framing of the SoF, it was the tasks of the writersof the law to identify certain contracts to be subject to strictscrutiny. So that they can be enforceable. They alreadyenumerated it and can be found in # 2 Section 1403 of the civilcode.

So what are the unenforceable contracts under Statute ofFrauds: Unenforceable by action means you cannot sue onthe contract. You cannot prove that a contract exists in court.That is what is meant by that unless a note or memorandum ismade. Again evidence cannot be received without the writing.We are not talking here of formal notarized contract. It is not

necessary that it be reduced by a notary public in a contract.Why? Because the law simply requires a note or memorandumthat is of course in writing. Dili kinahanglan nga notarized. Noteor memorandum is enough.

Take note that SoF does not foreclose the application of the BestEvidence Rule, the substitutionary evidence. The exception toBER. So this requirement of note or memorandum would do. E.g.a tissue paper will do.

Torcuator vs. Bernabe (2005): It is required thatmemorandum or note should require atleast the name of theparties, the terms and conditions of the contract, the descriptionof the property that are capable of identification.

It is not like will that it has to be either a notarial will orholographic will. Notarial daghan kaayo formalities. Holographicnaa pud formalities. Lisod giyahapon.

What is the shortest will ever? There was this case. A German made a will usingvery short words. “all my properties will go to my wife.” It was probated. And wasadmitted into probate. Everything went well.

Pwede ba na siya in a note or memorandum requirement underSoF? Actually No! Why? Because kinahanglang ang name saparties, terms and conditions and description of the propertysufficient to render it capable of identification.

At least man lang it is required that the note or memo mustcontain the essential elements of contract expressed withcertainty that may be ascertained from the note or memo itselfor some other writing which it refers or within which it isconnected without resorting to parole evidence. Pwede kung youcan deduced the existence of the contract from what is written inthe note or memo.

Can a receipt be sufficient? Let us say CDRking namalit ka didto .That is already sufficient as a contract of sale because there arenames of the parties. Name of CDRking, name of the buyer, thedescription of items. Terms of conditions is also there.Warranties are also there. So that would be enough note ormemo. No need for contract of sale.

Now let’s go to the specific contracts:

A. An agreement that by its terms is not to be performedwithin a year from the making thereof;

My observation here is that when you talk about a contract whichmust not be performed within one year it refers to both parties.By both parties. Why? Because if it is to be performed by onlyone party, the contract is already partially fulfilled and therefore

outside the coverage or application of SoF. So both parties mustactually perform the contracts otherwise not covered by SoF.

B.

A special promise to answer for the debt, default, ormiscarriage of another;

This is all about guaranty. A contract of personal security orguaranty. It is not a formal contract but must comply with SoFbecause it is provided in SoF. Surety is not covered because thelatter is primarily liable of the debt hence may be proved byparole evidence.

C.

An agreement made in consideration of marriage,other than a mutual promise to marry;

What are possible agreements here? There must beconsideration of marriage. Meaning there can be no transactionwithout marriage. Example is Pre-nuptial agreeements, donationpropter nuptias.

[Chika mode about Kris Aquino, James Yap and baby James]

Breach of promise to marry whether unilateral or mutual is notactionable. So not covered under SoF. E.g. Pe vs. Pe case.

D.

An agreement for the sale of goods, chattels or thingsin action, at a price not less than five hundred pesos,unless the buyer accept and receive part of suchgoods and chattels, or the evidences, or some ofthem, of such things in action or pay at the time somepart of the purchase money; but when a sale is madeby auction and entry is made by the auctioneer in hissales book, at the time of the sale, of the amount andkind of property sold, terms of sale, price, names ofthe purchasers and person on whose account the saleis made, it is a sufficient memorandum;

To my mind this is already antiquated because p500 as aparameter here is in 1950s. Today, p500 is very small already.(talking about banana que).

A has debt to B amounting to 1000. A tells B he cant pay Bbecause he is liquid. A tells B to accept cellphone hoping that thiswill stand as payment (dacion en pago ). There is alreadynovation. Instead of money, obligation now is to deliversomething as form of payment. Money now becomes a thing.This novation is called objective novation. Changing of an object

of contract. This is a sale in reverse. In contract of sale, you giveme money I give the thing. In dacion en pago you give a thingand I give you money.

The law specifically provides that dacion en pago where propertyis alienated to the creditor, the payment of debt is governed bylaw on sales. If sales is governed by SoF, would dacion en pagobe covered by SoF? Because remember it is governed by law onsales. What is the answer here?

In the case of DAO HENG BANK, INC v SPS. LILIA andREYNALDO LAIGO (2008): “Being likened to that of a contractof sale, dacion en pago is governed by the law on sales. Thepartial execution of a contract of sale takes thetransaction out of the provisions of the Statute of Fraudsso long as the essential requisites of consent of thecontracting parties, object and cause of the obligation concur and are clearly established to be present.”

What are the other contract governed by Law on Sales? We havebarter governed by law on sales. Except for two rules:

1) If there is doubt whether it is a sale or barter, you lookat the intention of the parties.





[Page 34 of 35]


2)

If the intention does not appear, you look at themonetary equivalent of the thing given. (mas dako ang thing, its barter, if dako ang money , its sales.

That’s the only special rule that applies to barter.What else? Contract for piece of work , in certain situations.

Like warranties, governed by law on sales.

In the case of COMMISSIONER OF INTERNAL REVENUE vs. THE COURT OF APPEALS, THE COURT OF TAX

APPEALS and ATENEO DE MANILA UNIVERSITY: Thecontract of sale and contract of piece of work, they arepractically the same. Why? Again a party necessarily walks awaywith a thing.

Now, if dacion en pago being governed by law on sales, is itactually covered by the statues of fraud? Would a contract ofbarter be covered by SoF? Second, would a contract of piece ofwork be covered by SoF? Find out your own. I will tell youthe answer next meeting. Find out first.

E. An agreement for the leasing for a longer period thanone year, or for the sale of real property or of aninterest therein;

Nothing much there. It is self-explanatory.

CONSOLACION DUQUE SALONGA, vs. JULITA B.FARRALES, 1981: this provision according to the SC includescompromise agreement on the sale of land.

F.

A representation as to the credit of a third person.

What is a representation as to the credit of a third person?Meaning you are vouching for somebody else. What is anexample? According to Dean Inigo , it is similar to a guaranty.That’s all I remember he is saying.

What is a contract similar to a guaranty? Surety! But based onwhat Dean Inigo was saying also, Suretyship is not included inSoF. Only guaranty lang diay . So it only covers guaranty.

What if you are an accommodation party without signing orwriting anything? Pero dili man diba. mao gani nga ginatawag kaparty kay party ka sa negotiable instrument whetheraccommodation endorser ka or maker and so on? Pero muragdili .

What else ang possible nga ing-ana ? In credit transaction youwill come across a contract known as contract of letter of credittransaction. There are 3 parties. Buyer, seller and bank. Theundertaking of a bank is to ensure payment of the sales priceprovided the seller present to the bank the bill of lading or awarehouse receipt proving nga napadala na . Can you become aguaranteeing bank in letter of credit transaction without writinganything? Walay contract? Suppose the bank did not pay andthere was letter of credit issued? Nothing is in writing? Is itcovered under representation as to the credit of a third person?Somehow it is covered. I am not saying for sure ha. There is noruling of SC to that effect specifically talking about letter of creditaccommodation. Mogawas na karon na bar. Usually mogawasakong predictions 5 years from now.

LIMITATIONS

(1) DOES NOT APPLY TO PARTIALLY PERFORMED OREXECUTED CONTRACTS

Remember again that it does not apply to partially performed orexecuted contracts. Why? Because of the possibility of unjustenrichment.

E.g. oral contract between A and B. later on nagbayad si A andlater on si B nag-ingon am not in contract with you. Can A sue B?

Yes, because B already benefited from the contract. To avoidunjust enrichment.

So that is why SoF does not apply to partially performed orexecuted contracts.

Read the case of ANTHONY ORDUÑA vs. EDUARDO J.FUENTEBELLA: There is this land bought by virtue of oralcontract of sale by instalments for how many years until theseller decided to sell it somebody else to someone in full all thewhile receiving partial payments. And seller sold it to another andthe present buyer wants the first buyer to be evicted.

Would SoF defeat those buyers in instalments? According to SC:No! The contract was already executed and therefore can beproved by oral evidence that there is such a contract. It is notunenforceable.

August 7, 2015 (KJ)

ANUNCIACION VDA. DE OUANO vs.THE REPUBLIC OF THEPHILIPPINES, 2011: Here’s this land in Lahug City which theNational Airport Authority wants to expropriate. What usuallyhappens when a property is expropriated, can you not contestthat anymore because it’s the gov’t you’re fighting? Of coursenot. Number 1 question, proper taking, and then number 2 if thetaking was proper, you can question the compensation.

And so the NAA to induce property owners to sell their landsvoluntarily, or to not oppose the expropriation anymore, said that

“ok anyway if we don’t want to use the property anymore you

can have it back just pay back what we paid you as justcompensation”.

So they did not appeal the judgment on the expropriation of theirproperties anymore.

So it was supposed to be made as an airport, in Lahug. But nowwhere is the airport in Cebu? Is it in Lahug? Of course not. It isin Mactan in Lapu-lapu City. So they actually abandoned theLahug area and made an airport a city away!

And so now, the families of the persons from whom theproperties where taken by way of expropriation wanted to buyback the properties by saying that “orally the gov’t told us that

we are allowed to buy back or redeem the property in a sense ifthe gov’t is no longer using it”. The gov’t said “No, it is barred bythe statute of frauds, thus you cannot but it back”.

So can the former owners buy them back by proving throughtestimonial evidence the promises, assurances andrepresentations of the gov’t when the property was bought fromthem? Saying “ pede na ninyo paliton balik!” but nothing wasreduced into writing. Would that be proper?

What contract is involved here? Consummated contract. So,because of the promise that they can buy it back, that was thereason why they did not appeal the judgment of expropriation.

So according to the SC: The statute of frauds is not applicable.

Besides, it appeared to be an after-thought on the part of thegov’t because they did not object immediately to the admissibilityof evidence on the basis of statute of frauds. It has to be timelyraised otherwise it is deemed waived.

Now, take note that execution or partial performance is notlimited to the act of paying, na bayad ka partially sa purchaseprice. Even if there is no partial payment, partial performance





can mean possession of property under a contract of sale, themaking of improvements, the rendition of services, the paymentof taxes, relinquishment of rights and all other acts of ***. Sothese can be partial execution or partial performance.

(2)

DOES NOT APPLY TO ORAL PARTITION OFPROPERTY

Take note that SOF does not apply to oral partition of property. You haven’t taken up Rules 74, so I will not yet explain it further.

(3) DOES NOT APPLY TO WILLS

Would the SOF apply to wills? Can there be oral wills in the PH?Of course not but anyway just to make an academic distinction:if a parol evidence rule by fiction of law considers a will anagreement for the application of Section 9 Rule 130, under thestatute of frauds it is not considered an agreement. It does notcover wills. Although anyway, we don’t have oral wills here so

that is for academic purpose only; because the effect is thesame. You cannot allege that the testator told you that his willgive you all the property he has at the time of his death. Youcannot do that.

(4) APPLIES ONLY TO ACTIONS FOR VIOLATIONS OFCONTRACTS OR ACTIONS FOR SPECIFICPERFORMANCE

(5) DOES NOT APPLY WHEN PARTY OFFER PAROLEVIDENCE TO PROVE TRUE INTENT

The SOF does not apply when the party offers to prove throughparol evidence that the agreement does not express the true

intent of the parties. Dili na siya mao ang applicable, what isapplicable? The parol evidence rule. Because the action there isto make the contract express the true agreement of the parties.It is an imperfection in the written agreement.

(6) CANNOT BE INVOKED BY A PERSON NOT PRIVYTO THE CONTRACT

HOW TO RAISE SOF AS A DEFENSE

How do you use the SOF to prevent the introduction of parol ororal evidence during trial of the contract? There are many waysto skin the cat so to speak:

-

Use it as a ground as a motion to dismiss within thetime required for you to file your answer. Rememberunder Rule 16 Section 1, SOF is a ground for motion todismiss.

Question: So your motion to dismiss based on SOT wasgranted, can the plaintiff refile the complaint this timeattaching the written contract? So SOF, with prejudice.Such order ordering the dismissal of the case based onSOT shall bar the refiling of the same action or claim.That is Rule 16, Section 5.

- File an Answer and use SOF as an affirmative defense.

An advantage to that (instead of filing motion todismiss) is because a motion to dismiss is NOT apleading, it does not affect the other parties’ right toamend his pleading as a matter of right. So you wouldrather file an Answer and use SOF as a ground as anaffirmative defense then ask a preliminary hearing as ifa motion for dismissal was made. (review aboutff d f b f d d

-

In a demurrer of evidence. Remember that if it isunenforceable supposedly you cannot present anyevidence to prove it. But let’s assume that the judge stilladmitted the oral contract, erroneously. So the otherparty has finished presenting his evidence-in-chief.What can you do being the defendant? File a demurrer

of evidence stating that there’s violation of SOF underRule 33. Why, because there can never be a prima faciecase unless there is admissible evidence to support theclaim.

- How else? By objecting to the reception of such oralevidence when it is presented in court.

Remember that failure to object in any of these occasions istantamount to a waiver of the right to object based on theground of SOF. That is why you really need to memorize theSOF. For your sake, as future barristers and as future lawyers. Befamiliar with it.

(Chika minute: Prof in obli before never told us to memo SOF but I just memorizedit for the heck to it. Question number 1 during that examination, aguy! Also, chika

about teaching obli for half a sem).

Also, when you cross-examine, that is tantamount to waiver ofobjections. Please remember that.

STATUTE OF FRAUDS versus PAROL EVIDENCE

Similarities: They are similar in the sense that both rules limit theability of a party to present oral evidence in certain contractualsituations. Same type of evidence, which is parol or oral evidenceis prohibited in both.

Distinctions between SoF and PER:

Law New Civil Code. Article 1403 (2)

Rules of Court.Rule 130, Section 9

Object Certain agreementmust be proved bysome writing, noteor memorandum inorder to beenforceable

Nothing to do with themanner of provingagreements. Its object is toprohibit alteration, change,modification, variation orcontradiction of the termsof a written agreement

RE:Wills

Clearly, does notapply to wills

By fiction of law, treatswills as agreement and

thus it made applicable towills

Wheninvoked

Cannot be invokedby a stranger to thecontract

Cannot be invoked byeither party to the litigationagainst the other where atleast one of the parties tothe suit is not a party or aprivy of a party to thewritten instrument.

Simply stated: This doesnot apply where thirdparties are affected (?)

[Tip: Do not answer in a table. Do not answer in one big paragraph without anywhite space whatsoever. Answer in proper essay form. Also, do not limit with

contrast. Write down the similarity as well. Try to answer just like in enumerationquestions. That, for me, will result to topnotch answers. Provided your answers are

also correct.]