REMEDIAL LAW

6.   Metropolitan Trial Courts, Municipal

TABLE OF CONTENTS Trial Courts in Cities, Municipal Trial Courts,
Municipal Circuit Trial Courts ........................ 21  
CIVIL PROCEDURE ....................................... 1
7.   Shari’a Courts ......................................... 21  
I.   GENERAL PRINCIPLES IN REMEDIAL LAW .. 2  
  Jurisdiction over Cases Covered by The
Revised Rules of Procedure for Small Claims
  Nature, Basis and Source of Remedial Cases, The Revised Rules on Summary
Law….. ................................................................ 2  
Procedure, and Barangay Conciliation ............ 22  
1.   Nature ..................................................... 2  
2.   Supreme Court and Law as Specific
  Totality Rule .......................................... 24
Source ............................................................. 2  
III.   CIVIL PROCEDURE ................................... 25  
  Rule-Making Power of the Supreme   Actions................................................... 25  
Court… ................................................................ 3  
1.   Meaning of Ordinary Civil Actions ........ 25  
1.   Nature and Scope ................................... 3  
2.   Meaning of Special Civil Actions........... 25  
2.   Methodology ........................................... 3  
3.   Meaning of Criminal Actions ................ 25  
3.   Limitations on the Rule-Making Power of
4.   Civil Action v. Special Proceedings ... 25  
the Supreme Court .......................................... 4  
5.   Personal Actions and Real Actions ... 25  
4.   Power of SC to Amend and Suspend
6.   Local and Transitory Actions ............ 26  
Procedural Rules............................................. 4
7.   Actions in rem, in personam, and quasi in
rem................................................................. 26  
II.   JURISDICTION OF COURTS ....................... 6  
8.   Independent civil action .................... 27  
  Nature of Philippine Courts .................... 6  
  Cause of Action ..................................... 28  
1.   Meaning of a Court ................................. 6  
1.   Meaning of Cause of Action .................. 28  
  Meaning of Jurisdiction in Various 2.   Right of Action v. Cause of Action ........ 28  
Contexts ............................................................. 7  
3.   Failure of the Complaint to State a Cause
1.   Subject Matter Jurisdiction of a Court .... 7  
of Action ........................................................ 28  
2.   Jurisdiction over the Person of a Party ... 7  
4.   Test of Sufficiency of Cause of
3.   Jurisdiction over the Issues ..................... 8  
Action……. ..................................................... 29  
4.   Jurisdiction over the Res ..................... 8  
5.   Splitting a Single Cause of Action and
  General Principles on Subject Matter its Effects ....................................................... 29  
Jurisdiction ......................................................... 9  
6.   Joinder and Misjoinder of Causes of
1.   Jurisdiction v. the Exercise of
Action… ......................................................... 30  
Jurisdiction…. .................................................. 9  
2.   Error of Jurisdiction as Distinguished
  Parties to Civil Actions ........................... 31  
1.   Real Parties in Interest; Indispensable
from Error of Judgment .................................. 9  
Parties; Representatives as Parties; Necessary
3.   How Jurisdiction is Conferred and
Parties; Indigent Parties; Alternative
Determined ................................................... 10  
Defendants ..................................................... 31  
4.   Doctrine of Adherence of
2.   Compulsory and Permissive Joinder of
Jurisdiction…… ............................................... 11  
Parties ........................................................... 34  
5.   Objections to Jurisdiction over the
3.   Misjoinder and Non-Joinder of Parties . 34  
Subject Matter ............................................... 11  
4.   Class Suits ......................................... 35  
6.   Effect of Estoppel on Objections to
5.   Suits Against Entities Without Juridical
Jurisdiction ..................................................... 11  
Personality .................................................... 35  
7.   Other Principles ..................................... 12  
6.   Effect of Death of Party Litigant ....... 35  
  Courts according to Subject Matter 7.   Distinction between Real Party in Interest
Jurisdiction in General ...................................... 12  
and locus standi ............................................ 37  
1.   According to Subject Matter per se ........ 12  
2.   According to Creation ............................ 13  
  Venue .................................................... 37  
1.   Venue v. Jurisdiction ............................. 37  
3.   According to Record-Keeping ............... 14  
2.   Venue of real actions............................. 38  
4.   Principle of Judicial Hierarchy............ 14  
3.   Venue of Personal Actions .................... 38  
5.   Doctrine of Non-Interference or
4.   Venue of Actions Against Non-
Doctrine of Judicial Stability .......................... 14  
Residents ...................................................... 38  
  Jurisdiction of Specific Courts ................ 15   5.   When the Rules on Venue Do Not
1.   Supreme Court ....................................... 15  
Apply… .......................................................... 39  
2.   Court of Appeals .................................... 17  
6.   Effects of Stipulations on Venue ....... 39  
3.   Sandiganbayan ...................................... 17  
4.   Regional Trial Courts ......................... 18  
  Rules on Pleadings ............................... 40  
1.   Kinds of Pleadings ................................ 40  
5.   Family Courts .................................... 20  

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2.   Pleadings Allowed under The 2016   Intervention ........................................... 82  

Revised Rules of Procedure for Small Claims 1.   Requisites for intervention .................... 82  
Cases and The 1991 Revised Rule on Summary 2.   Time to Intervene .................................. 82  
Procedure ...................................................... 45   3.   Remedy for the Denial of the Motion to
3.   Parts of a Pleading ................................ 46   Intervene ....................................................... 82  
4.   Allegations in a Pleading .................. 48     Subpoena .............................................. 83  
5.   Effect of Failure to Plead ................... 51   1.   Subpoena duces tecum ......................... 84  
6.   Default ................................................ 51   2.   Subpoena ad testificandum .................. 84  
  Filing and Service of Pleadings, 3.   Service of Subpoena ............................. 84  
Judgments, Final Orders and Resolutions ...... 55   4.   Compelling Attendance of Witnesses;
1.   Payment of Docket Fees ....................... 55   Contempt ...................................................... 84  
2.   Filing v. Service of Pleadings ................ 55   5.   Quashing of Subpoena ..................... 84  
3.   Periods of Filing of Pleadings ............... 55     Modes of Discovery ............................... 85  
4.   Manner of Filing ................................ 56   1.   Deposition Pending Action; Deposition
5.   Modes of Service ............................... 56   before Action or Pending Appeal ................. 85  
  Amendment .......................................... 58   2.   Written Interrogatories to Adverse
1.   Amendments as a Matter of Right ....... 58   Parties.. ......................................................... 89  
2.   Amendments by Leave of Court ........... 59   3.   Request for Admission .......................... 90  
3.   Formal Amendments ............................ 59   4.   Production or Inspection of Documents
4.   Amendments to Conform to or or Things ........................................................ 91  
Authorize Presentation of Evidence ............. 59   5.   Physical and Mental Examination of
5.   Supplemental Pleadings .................. 59   Persons .......................................................... 92  
6.   Effect of Amended Pleading ............. 60   6.   Consequences of Refusal to Comply
  Summons ............................................... 61   with Modes of Discovery ............................... 93  
1.   Nature and Purpose of Summons in   Trial ....................................................... 94  
Relation to Actions in personam, in rem, and 1.   Adjournment and Postponements ....... 94  
quasi in rem .................................................... 61   2.   Requisites of Motion to Postpone Trial 94  
2.   Voluntary Appearance .......................... 62   3.   Agreed Statement of Facts ................... 94  
3.   Personal Service .................................... 62   4.   Order of Trial; Reversal of Order ....... 95  
4.   Substituted Service ........................... 62   5.   Consolidation or Severance of Hearing
5.   Constructive Service (by or Trial.. ......................................................... 95  
Publication)…… ............................................. 63   6.   Delegation of Reception of
6.   Extraterritorial Service of Summons, Evidence……. ................................................. 96  
When Allowed ............................................... 64   7.   Trial by Commissioners ......................... 96  
7.   Service upon Prisoners and Minors ...... 64     Demurrer to Evidence ........................... 98  
8.   Proof of Service ................................. 65   1.   Grounds ................................................. 98  
  Motions...................................................... 66   2.   Effect of Denial ...................................... 98  
1.   Motions in general ................................ 66   3.   Effect of Grant ....................................... 98  
2.   Motion for Bill of Particulars ................. 67   4.   Waiver of Right to Present Evidence 98  
3.   Motion to Dismiss ................................. 69   5.   Demurrer to Evidence in a Civil Case v.
  Dismissal of Actions .............................. 75   Demurrer to Evidence in a Criminal Case ..... 98  
1.   Dismissal upon Notice by the Plaintiff;   Judgments and Final Orders ................ 99  
Two Dismissal Rule ....................................... 75   1.   Judgment Without Trial ...................... 100  
2.   Dismissal upon Motion of Plaintiff; Effect 2.   Contents of a Judgment ...................... 100  
on Existing Counterclaim .............................. 76   3.   Memorandum Decision ........................ 101  
3.   Dismissal Due to Fault of the Plaintiff .. 76   4.   Judgment on the Pleadings ............ 102  
4.   Dismissal of Counterclaim, Cross- 5.   Summary Judgments ...................... 102  
Claim, or Third-Party Complaint .................. 77   6.   Judgment on the Pleadings v.
  Pre-trial ................................................. 77   Summary Judgment ................................... 103  
1.   Concept of Pre-Trial .............................. 77   7.   Rendition of Judgments and Final
2.   Nature and Purpose .............................. 77   Orders…....................................................... 104  
3.   Notice of Pre-Trial ................................. 78   8.   Entry of Judgment and Final
4.   Appearance of Parties; Effect of Failure Order…….. ................................................... 104  
to Appear ...................................................... 78     Post-Judgment Remedies .................. 105  
5.   Pre-Trial Brief; Effect of Failure to 1.   Motion for New Trial or
File…… ........................................................... 78   Reconsideration….. ..................................... 105  
6.   Distinction between Pre-Trial in a Civil 2.   Appeals ................................................ 107  
Case and Pre-Trial in a Criminal Case .......... 79  

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3.   Annulment of Judgments or Final Orders involving Government Infrastructure

and Resolutions ........................................... 127   Projects… .................................................... 159  
4.   Collateral Attack of Judgments .......129   9.   Rule on Prior or Contemporaneous
  Execution, Satisfaction and Effect of Service of Summons in Relation to
Judgments ....................................................... 131   Attachment ................................................. 160  
1.   Difference between Finality of Judgment   Receivership ........................................ 160  
for Purposes of Appeal; for Purposes of 1.   Cases When Receiver May be
Execution ...................................................... 131   Appointed/Requisites ................................. 160  
2.   When Execution Shall Issue ................. 131   2.   Requirement before Issuance of an
3.   How a Judgment is Executed ............... 135   Order… ......................................................... 161  
4.   Properties Exempt from 3.   General Powers of a Receiver ..............162  
Execution……............................................... 140   4.   Two Kinds of Bonds ..........................162  
5.   Proceedings Where Property Claimed 5.   Termination of Receivership ............ 163  
by Third Persons ......................................... 140     Replevin ............................................... 163  
6.   Rules on Redemption ......................142   1.   When Writ May be Issued ................... 164  
7.   Examination of Judgment Obligor When 2.   Requisites ............................................ 164  
Judgment is Unsatisfied ............................. 145   3.   Affidavit and Bond; Redelivery Bond .. 164  
8.   Examination of Obligor of Judgment 4.   Sheriff’s Duty in the Implementation of
Obligor ........................................................ 145   the Writ; When Property is Claimed by Third
9.   Effect of Judgment or Final Orders . 146   Party…. ........................................................ 165
10.   Enforcement and Effect of Foreign
Judgment or Final Orders ........................... 148 V.   SPECIAL CIVIL ACTIONS ......................... 167  
  General Matters ................................... 167  
IV.   PROVISIONAL REMEDIES ...................... 149   1.   Nature of Special Civil Actions............. 167  
  General Matters .................................. 149   2.   Ordinary Civil Actions v. Special Civil
1.   Nature of Provisional Remedies ......... 149   Actions ......................................................... 167  
2.   Jurisdiction over Provisional 3.   Jurisdiction and Venue ......................... 167  
Remedies……. ............................................. 149     Interpleader.......................................... 170  
  Preliminary Attachment...................... 150   1.   Requisites for Interpleader .................. 170  
1.   Grounds for issuance .......................... 150   2.   When to File ......................................... 170  
2.   Requisites for Issuance ........................ 151     Declaratory Reliefs and Similar
3.   Issuance and Contents of Order of Remedies…....................................................... 171  
Attachment; Affidavit and Bond .................. 151   1.   Who May File the Action ...................... 172  
4.   Rule on Prior or Contemporaneous 2.   Requisites of an Action for Declaratory
Service of Summons ....................................152   Relief ............................................................ 172  
5.   Manner of Attaching Real and 3.   When Court May Refuse to Make Judicial
Personal Property; When Property Attached is Declaration ................................................... 172  
Claimed by Third Persons ............................152   4.   Conversion to Ordinary Action ......... 172  
6.   Discharge of Attachment and Counter- 5.   Proceedings Considered as Similar
Bond….. ........................................................ 153   Remedies ..................................................... 173  
7.   Satisfaction of Judgment Out of Property   Review of Judgments and Final Orders or
Attached ...................................................... 154   Resolutions of the COMELEC and COA .......... 175  
  Preliminary Injunction ......................... 155   1.   Application of Rule 65 under Rule 64 . 175  
1.   Definitions and Differences: Preliminary 2.   Distinction in the Application of Rule 65
Injunction and Temporary Restraining Order to Judgments of the COMELEC and COA and
(TRO) ........................................................... 155   the Application of Rule 65 to Other Tribunals,
2.   Requisites ............................................ 156   Persons and Officers .................................... 176  
3.   Kinds of Injunction ............................... 157     Certiorari, Prohibition, Mandamus ...... 176  
4.   When Writ May be Issued................. 157   1.   Definitions and Distinctions ................. 176  
5.   Grounds for Issuance of Preliminary 2.   Requisites ............................................. 178  
Injunction .................................................... 158   3.   When petition for Certiorari, Prohibition,
6.   Grounds for Objection to, or for the and Mandamus is proper ............................. 179  
Dissolution of Injunction or Restraining 4.   Injunctive Relief ............................... 180  
Order… ........................................................ 158   5.   Exceptions to Filing of Motion for
7.   Duration of TRO .................................. 158   Reconsideration before Filing Petition ....... 180  
8.   In relation to R.A. 8975; Ban on 6.   Reliefs Petitioner is Entitled to ....... 180  
Issuance of TRO or Writ of Injunction in Cases 7.   Actions/Omissions of MTC/RTC in
Election Cases .............................................. 181  

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8.   When and Where to File Petition ..... 181     Forcible Entry and Unlawful
9.   Effects of Filing of an Unmeritorious Detainer…….. .................................................. 198  
Petition .........................................................182   1.   Definitions and Distinctions ................ 198  
  Quo Warranto .......................................183   2.   Distinguished from Accion Publiciana and
1.   Distinguished from Quo Warranto in the Accion Reivindicatoria ................................. 199  
Omnibus Election Code ............................... 183   3.   How to Determine Jurisdiction in Accion
2.   When Government May Commence an Publiciana, Accion Reivindicatoria and Accion
Action against Individuals .......................... 185   Interdictal..................................................... 199  
3.   When an Individual May Commence an 4.   Who May Institute the Action and
Action .......................................................... 185   When; Against Whom the Action May be
4.   Judgment in Quo Warranto Action . 185   Maintained .................................................. 199  
5.   Rights of a Person Adjudged Entitled 5.   Pleadings Allowed ......................... 200  
to Public Office ............................................ 186   6.   Action on the Complaint ................ 200  
  Expropriation....................................... 186   7.   When Demand is Necessary ............... 201  
1.   Matters to Allege in Complaint for 8.   Preliminary Injunction and Preliminary
Expropriation .............................................. 186   Mandatory Injunction .................................. 202  
2.   Two Stages in Every Action for 9.   Resolving the Defense of
Expropriation ............................................... 187   Ownership…… ............................................. 202  
3.   When Plaintiff can Immediately Enter 10.   How to Stay Immediate Execution of
into Possession of Real Property, in Relation Judgment .................................................... 203  
to R.A. 8974 ................................................. 187     Contempt ............................................204  
4.   New System of Immediate Payment of 1.   Kinds of contempt ...............................204  
Initial Just Compensation ........................... 189   2.   Purpose and Nature of Each ...............205  
5.   Defenses and Objections ................ 189   3.   Remedy against Direct Contempt;
6.   Order of Expropriation .................... 190   Penalty ........................................................205  
7.   Ascertainment of Just Compensation 190   4.   Remedy against Indirect Contempt;
8.   Appointment of Commissioners; Penalty ........................................................205  
Commissioner’s report; Court Action upon 5.   How Contempt Proceedings are
Commissioner’s report ................................ 190   Commenced ................................................206  
9.   Rights of Plaintiff upon Judgment and 6.   Acts Deemed Punishable as Indirect
Payment ....................................................... 191   Contempt ....................................................206  
10.   Effect of Entry of Judgment .............192   7.   When Imprisonment Shall be
  Foreclosure of Real Estate Mortgage ..192   Imposed……................................................. 207  
1.   Judgment on Foreclosure for Payment or 8.   Contempt against Quasi-Judicial
Sale… ........................................................... 193   Bodies… ....................................................... 207  
2.   Sale of Mortgaged Property; Effect ..... 193  
3.   Disposition of Proceeds of Sale .......... 194   SPECIAL PROCEEDINGS ......................... 208
4.   Deficiency Judgment ....................... 194  
5.   Judicial Foreclosure v. Extrajudicial VI.   SPECIAL PROCEEDINGS ........................209  
Foreclosure ................................................. 194    Settlement of Estate of Deceased
6.   Equity of Redemption v. Right of Persons ...........................................................209  
Redemption ................................................ 195   1.   Jurisdiction ..........................................209  
  Partition .................................................. 195   2.   Venue .................................................. 210  
1.   Who May File Complaint; Who Should be 3.   Extent of Jurisdiction of Probate
Made Defendants........................................ 196   Court……...................................................... 210  
2.   Matters to Allege in the Complaint for 4.   Powers and Duties of a Probate
Partition ...................................................... 196   Court….......................................................... 211  
3.   Two Stages in Every Action for   Summary Settlement of Estates .......... 211  
Partition…… ................................................ 196   1.   Extrajudicial Settlement of Estates ..... 211  
4.   Order of Partition and Partition by 2.   Two-Year Prescriptive Period............... 212  
agreement ................................................... 196   3.   Summary Settlement of Estates of Small
5.   Partition by Commissioners; Value ............................................................ 212  
Appointment of Commissioners, 4.   Remedies of Aggrieved Parties after
Commissioner’s Report; Court Action upon Extrajudicial Settlement of Estate ............... 213  
Commissioner’s Report................................ 197     Production and Probate of Will ...........215  
6.   Judgment and Its Effects ................. 197   1.   Nature of Probate Proceedings ...........215  
7.   Partition of Personal Property ............ 198     Allowance or Disallowance of Will ......216  
8.   Prescription of action ...................... 198  

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1.   Who May Petition For Probate; Persons 3.   Remedy of Respondent against Petition;
Entitled To Notice ........................................216   Period for Filing a Claim ............................. 245  
2.   Grounds for Disallowing a Will ............218     Guardianship ....................................... 245  
3.   Effects of Probate .................................218   1.   Guardianship of Incompetent Persons
  Reprobate ............................................219   Not Minors................................................... 246  
1.   Requisites before a Will Proved Abroad 2.   Conditions of the Bond of the
Would be Allowed in Philippines .................219   Guardian…… ............................................... 247  
2.   Effect of Reprobate ..............................219   3.   Rule on Guardianship of Minors [A.M.
  Letters Testamentary and of NO. 03-02-05-SC] ...................................... 248  
Administration ............................................... 220     Writ of Habeas Corpus ........................250  
1.   When and to Whom Letters of 1.   Contents of the Petition ...................... 252  
Administration are Granted ........................ 220   2.   Contents of the Return........................ 252  
2.   Order of Preference .............................. 221   3.   Distinguish Peremptory Writ from
3.   Opposition to Issuance of Letters Preliminary Citation .................................... 252  
Testamentary; Simultaneous Filing of Petition 4.   When Not Proper or Applicable ...... 253  
for Administration ........................................ 221   5.   When Writ Disallowed or
4.   Powers and Duties of Executors and Discharged……. ........................................... 253  
Administrators; Restrictions on the 6.   Distinguished From Writ of Amparo
Powers…….. ................................................. 222   and Habeas Data ......................................... 254  
5.   Appointment of Special 7.   Rules on Custody of Minors and Writ of
Administrator…. .......................................... 226   Habeas Corpus In Relation To Custody of
6.   Revocation, Death, Resignation and Minors [A.M. NO. 03-04-04-SC] ................. 254  
Removal of Executors and   Writ of Amparo [A.M. 07-9-12-SC] ..... 258  
Administrators……… ................................... 226   1.   Coverage ............................................. 258  
  Claims against the Estate ................... 228   2.   Distinguish From Habeas Corpus and
1.   Time within Which Claims shall be Filed; Habeas Data ................................................ 259  
Exceptions ................................................... 228   3.   Amparo v. Search Warrant .................. 259  
2.   Statute of Non-Claims ........................ 229   4.   Who May File ................................... 259  
3.   Claim of Executor or Administrator 5.   Contents of Return ..........................260  
against an Estate ........................................ 230   6.   Effect of Failure to File Return .........261  
4.   How to File For a Claim ................... 230   7.   Omnibus Waiver Rule ..........................261  
  Actions by and against Executors and 8.   Procedure for Hearing ......................261  
Administrators ................................................ 231   9.   Institution of Separate Action ..........261  
1.   Actions by and against Executors ........ 231   10.   Effect of Filing a Criminal Action .... 262  
2.   Recovery of Property Concealed, 11.   Consolidation .................................. 262  
Embezzled or Fraudulently Conveyed ........ 232   12.   Interim Reliefs Available To Petitioner
3.   Sales, Mortgages, and Other and Respondent .......................................... 262  
Encumbrances ............................................ 233   13.   Quantum of Proof in Application for
  Payment of Debts of Estate .................... 235   Issuance of Writ of Amparo ......................... 263  
  Distribution and Partition ................... 237     Writ of Habeas Data [A.M. No. 08-1-16-
1.   Liquidation .......................................... 237   SC]…… ............................................................ 264  
2.   Project of Partition .............................. 238   1.   Scope of the Writ ................................. 264  
3.   Remedy of an Heir Entitled to Residue 2.   Availability of Writ ............................... 264  
but Not Given His Share.............................. 238   3.   Distinguish from Habeas Corpus and
4.   Instances When Probate Court May Amparo ........................................................ 265  
Issue Writ of Execution ............................... 238   4.   Who May File the Petition ............... 265  
  Trustees ............................................... 242   5.   Contents of the Petition .................. 265  
1.   Distinguished From 6.   Contents of the Return.................... 265  
Executor/Administrator .............................. 242   7.   Instances When Defenses May Be Heard
2.   Conditions of the Bond ....................... 242   In Chambers ................................................ 266  
3.   Procedural Requisites for the Removal 8.   Consolidation .................................. 266  
and Resignation of a Trustee ...................... 243   9.   Effect of Filing Criminal Action ....... 266  
4.   Grounds for Removal and Resignation 10.   Institution of Separate Action ......... 266  
of a Trustee ................................................. 243   11.   Quantum of Proof in Application for
5.   Extent of Authority of Trustee ......... 243   Issuance of Writ of Habeas Data ................. 266  
  Escheat ................................................ 244     Change of Name ................................. 275  
1.   When to File ........................................ 244   1.   Distinctions between the Rules [103, 108,
2.   Requisites for Filing of Petition .......... 244   R.A. 9048]; Administrative Corrections ..... 275  

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2.   Grounds for Change of Name ............. 276   3.   Who May Conduct Determination of
  Absentees ............................................ 278   Existence of Probable Cause ...................... 305  
1.   Purpose of the Rule............................. 278   4.   Resolution of the Investigating
2.   Who May File; When to File ................ 278   Prosecutor ................................................... 307  
  Cancellation or Correction of Entries in 5.   Review ............................................. 307  
the Civil Registry ............................................ 279   6.   When Warrant of Arrest May Issue .308  
1.   Entries Subject To Cancellation or 7.   Cases Not Requiring Preliminary
Correction under Rule 108 .......................... 279   Investigation nor Covered By the Rule on
2.   R.A. 9048, as amended by R.A. Summary Procedure ...................................308  
10172………. ................................................. 280   8.   Remedies of Accused If There Was No
3.   R.A. 9048 vis-à-vis Rule 103 and Rule Preliminary Investigation ............................ 309  
108…… ..........................................................281     Arrest ................................................... 310  
1.   Arrest, How Made ............................... 310  
CRIMINAL PROCEDURE ......................... 283   2.   Arrest without Warrant, When
VII.   CRIMINAL PROCEDURE.........................284   Lawful………................................................. 310  
  General Matters .................................. 284   3.   Method of Arrest .................................. 313  
1.   Jurisdiction over Subject Matter and 4.   Requisites of a Valid Warrant of
Jurisdiction over Person of the Accused Arrest….. ....................................................... 314  
Distinguished; Territorial Jurisdiction ........ 284     Bail ....................................................... 315  
2.   Requisites for Exercise of Criminal 1.   Nature .................................................. 315  
Jurisdiction .................................................. 285   2.   When a Matter of Right; Exceptions .... 316  
3.   Jurisdiction of Criminal Courts ............ 285   3.   When a Matter of Discretion ................ 316  
4.   When Injunction May Be Issued To 4.   Hearing of Application for Bail in
Restrain Criminal Prosecution .................... 287   Capital Offenses ........................................... 317  
  Prosecution of Offenses ......................288   5.   Guidelines in Fixing Amount of
1.   Criminal Actions; How Instituted ........ 288   Bail……… ...................................................... 318  
2.   Who May File; Crimes That Cannot be 6.   When Bail Not Required .................. 318  
Prosecuted De Oficio ................................... 289   7.   Increase or Reduction of Bail ............... 319  
3.   Criminal Actions, When Enjoined ........291   8.   Forfeiture and Cancellation of Bail .. 319  
4.   Control of Prosecution .....................291   9.   Application not a Bar to Objections on
5.   Sufficiency of Complaint or Illegal Arrest, Lack of or Irregular Preliminary
Information…. ............................................. 293   Investigation ............................................... 320  
6.   Designation of Offense ................... 294   10.   Hold/Allow Departure Order and
7.   Cause of the Accusation...................... 295   Bureau of Immigration Watchlist ............... 320  
8.   Duplicity of the Offense;   Arraignment and Plea.......................... 321  
Exception………............................................ 295   1.   Arraignment and Plea; How Made ...... 321  
9.   Amendment or Substitution of 2.   When a Plea of Not Guilty Should Be
Complaint or Information ........................... 296   Entered ........................................................ 322  
10.   Venue of Criminal Actions............... 298   3.   When Accused May Enter a Plea of Guilty
11.   Intervention of Offended Party ....... 299   to a Lesser Offense...................................... 323  
  Prosecution of Civil Action ................. 300   4.   Accused Pleads Guilty to Capital
1.   Rule on Implied Institution of Civil Action Offense; What the Court Should Do ........... 323  
with Criminal Action .................................. 300   5.   Searching Inquiry ............................ 323  
2.   When Civil Action May Proceed 6.   Improvident Plea of Guilty to a Capital
Independently ............................................ 300   Offense ........................................................ 324  
3.   When Separate Civil Action Is 7.   Grounds for Suspension of
Suspended…. .............................................. 301   Arraignment…… .......................................... 324  
4.   Effect of Death of the Accused or   Motion to Quash.................................. 326  
Convict On Civil Action................................ 301   1.   Grounds ............................................... 326  
5.   Prejudicial Question ........................ 301   2.   Distinguish Motion to Quash from
6.   Rule on Filing Fees in Civil Action Demurrer to Evidence ................................. 329  
Deemed Instituted With the Criminal 3.   Effects of Sustaining the Motion to
Action…… .................................................... 303   Quash…… .................................................... 329  
  Preliminary Investigation .................... 304   4.   Exception to the Rule that Sustaining
1.   Nature of Right ................................... 304   the Motion is Not a Bar to another
2.   Purposes of Preliminary Prosecution…. ............................................. 330  
Investigation……… ...................................... 304   5.   Double Jeopardy ............................. 330  
6.   Provisional Dismissal ....................... 331  

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 REMEDIAL LAW

  Pre-Trial .................................................. 332   5.   Personal Examination by Judge of the

1.   Matters to Be Considered During Pre- Applicant and Witnesses ............................ 354  
Trial…… ....................................................... 332   6.   Particularity of Place to Be Searched
2.   What the Court Should Do When and Things to Be Seized ............................. 355  
Prosecution and Offended Party Agree to the 7.   Personal Property to be Seized........... 356  
Plea Offered by the Accused ....................... 333   8.   Exceptions to the Search Warrant
3.   Pre-Trial Agreement ........................... 333   Requirement ............................................... 356  
4.   Non-Appearance during Pre-Trial .. 334   9.   Remedies From Unlawful Search And
5.   Pre-Trial Order ................................ 334   Seizure......................................................... 360  
6.   Referral of Some Cases for Court-   Provisional Remedies.......................... 362  
Annexed Mediation and Judicial Dispute 1.   Nature ................................................. 362  
Resolution ................................................... 334   2.   Kinds of Provisional Remedies ........... 362  
  Trial ..................................................... 335  
1.   Instances When Presence of Accused is EVIDENCE ................................................ 364  
Required by Law ......................................... 335  
2.   Requisites Before Trial Can be VIII.   EVIDENCE ............................................... 365  
Suspended on Account of Absence of  
General Principles ............................... 365  
Witness….. ................................................... 335   1.   Concept of Evidence ............................ 365  
3.   Trial in Absentia .................................. 336   2.   Scope and Applicability of the Rules of
4.   Remedy When Accused is Not Brought Evidence ...................................................... 365  
to Trial within the Prescribed Period .......... 336   3.   Evidence in Civil Cases v. Evidence in
5.   Requisites for Discharge of Accused to Criminal Cases ............................................ 365  
Become a State Witness ............................. 337   4.   Proof v. Evidence ............................. 366  
6.   Effects of Discharge of Accused as 5.   Factum Probans v. Factum
State Witness .............................................. 337   Probandum…. .............................................. 367  
7.   Demurrer to Evidence ......................... 337   6.   Classes of Evidence According to
  Judgment ............................................ 339   Form….. ....................................................... 367  
1.   Requisites of a Judgment ................... 339   7.   Cumulative and Corroborative
2.   Contents of Judgment......................... 339   Evidence…… ................................................ 367  
3.   Promulgation of Judgment; Instances of 8.   Prima facie and Conclusive
Promulgation of Judgment in Absentia ....... 341   Evidence……. ............................................... 367  
4.   When Does Judgment Become 9.   Disputable and Conclusive
Final……… ................................................... 342   Presumption................................................ 368  
  New Trial or Reconsideration ............. 343   10.   Primary and Secondary Evidence ... 368  
1.   Grounds for New Trial ......................... 343     Admissibility of Evidence .................... 369  
2.   Grounds for Reconsideration .............. 343   1.   Requisites for Admissibility ................ 369  
3.   Requisites Before a New Trial May be 2.   Relevance of Evidence and Collateral
Granted on Ground of Newly Discovered Matters ........................................................ 370  
Evidence ...................................................... 343   3.   Multiple Admissibility ......................... 370  
4.   Effects of Granting New Trial or 4.   Conditional Admissibility ................. 371  
Reconsideration .......................................... 343   5.   Curative Admissibility ...................... 371  
5.   Application of the Neypes Doctrine in 6.   Direct and Circumstantial Evidence 371  
Criminal Cases ............................................ 344   7.   Positive and Negative Evidence ........... 371  
  Appeal ................................................. 345   8.   Competent and Credible Evidence .. 371  
1.   Effect of an Appeal .............................. 345     Burden of Proof and Burden of
2.   Where to Appeal ................................. 345   Evidence…… ................................................... 372  
3.   How Appeal Taken .............................. 345     Presumptions ...................................... 373  
4.   Effect of Appeal by Any of Several 1.   Conclusive Presumptions.................... 374  
Accused ....................................................... 350   2.   Disputable Presumptions ................... 374  
5.   Grounds for Dismissal of Appeal ..... 351     Liberal Construction of the Rules of
  Search and Seizure .............................. 351   Evidence ......................................................... 376  
1.   Nature of Search Warrant .................... 351     Quantum of Evidence (Weight and
2.   Distinguish From Warrant of Arrest ... 352   Sufficiency of Evidence) ................................. 377  
3.   Application for Search Warrant; Where 1.   Proof beyond Reasonable Doubt........ 377  
Filed............................................................. 352   2.   Preponderance of Evidence ................ 377  
4.   Probable Cause (in Search 3.   Substantial Evidence .......................... 377  
Warrants)…… .............................................. 354   4.   Clear and Convincing Evidence ...... 377  

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 REMEDIAL LAW

  Judicial Notice and Judicial   Commencement of Small Claims Action;

Admissions……. .............................................. 378   Response ........................................................ 426  
1.   What Need Not Be Proved .................. 378     Prohibited Pleadings and Motions ..... 427  
2.   Matters of Judicial Notice ................... 378     Appearances ....................................... 428  
3.   Judicial Admissions .............................380     Hearing; Duty of the Judge ................. 428  
4.   Judicial Notice of Foreign Laws, Law of   Finality of Judgment ........................... 429  
Nations and Municipal Ordinance .............. 382  
  Object (Real) Evidence ........................ 383   XI.   RULES OF PROCEDURE FOR
1.   Meaning of Object Evidence ............... 383   ENVIRONMENTAL CASES .................................430  
2.   Requisites for Admissibility ................ 383     Scope and Applicability of the Rule ... 430  
3.   Categories of Object Evidence ............ 383     Civil Procedure ..................................... 431  
4.   Demonstrative Evidence ................. 383   1.   Prohibition against Temporary
5.   View of an Object or Scene ............. 384   Restraining Order and Preliminary
  Documentary Evidence ........................... 384   Injunction….. ................................................ 431  
1.   Meaning of Documentary Evidence .... 384   2.   Pre-Trial Conference; Consent
2.   Requisites for Admissibility ................ 384   Decree…….. .................................................. 431  
3.   Best Evidence Rule.............................. 384   3.   Prohibited Pleadings and Motions ..... 432  
4.   Parol Evidence Rule ........................ 386   4.   Temporary Environmental Protection
5.   Authentication and Proof of Order (TEPO) ............................................... 432  
Documents .................................................. 387   5.   Judgment and Execution; Reliefs in a
  Testimonial Evidence ........................... 391   Citizen Suit .................................................. 432  
1.   Qualifications of a Witness .................. 391   6.   Permanent Environmental Protection
2.   Competency v. Credibility of a Witness391   Order; Writ of Continuing Mandamus ........ 432  
3.   Disqualifications of Witnesses ............ 392   7.   Strategic Lawsuit Against Public
4.   Examination of a Witness ............... 398   Participation (SLAPP) ................................. 433  
5.   Rights and Obligations of a   Special Civil Actions ............................ 434  
Witness…….. ............................................... 400   1.   Writ of Kalikasan ................................. 434  
6.   Order of Examination of an Individual 2.   Prohibited Pleadings and Motions ..... 434  
Witness ........................................................ 401   3.   Discovery Measures............................. 434  
7.   Leading and Misleading Questions ....402   4.   Writ of Continuing Mandamus ........ 434  
8.   Methods of Impeaching an Adverse   Criminal Procedure ............................. 436  
Party’s Witness ............................................402   1.   Who May File ....................................... 436  
9.   How the Witness is Impeached by 2.   Institution of Criminal and Civil
Evidence of Inconsistent Statements (Laying Action…….. .................................................. 436  
the Predicate) ..............................................402   3.   Arrest Without Warrant, When Valid .. 436  
10.   Evidence of the Good Character of a 4.   Strategic Lawsuit Against Public
Witness ........................................................402   Participation [SLAPP] ................................. 436  
11.   Admissions and Confessions ..........402   5.   Procedure in the Custody and
12.   Hearsay Rule ................................... 407   Disposition of Seized Items ........................ 436  
13.   Opinion Rule .................................... 413   6.   Bail................................................... 437  
14.   Character Evidence ......................... 414   7.   Arraignment and Plea......................... 437  
  Offer and Objection ............................. 416   8.   Pre-trial ........................................... 437  
1.   Offer of Evidence ................................. 416   9.   Subsidiary Liabilities ....................... 437  
  Evidence .............................................. 438  
SPECIAL RULES........................................ 421   1.   Precautionary Principle ....................... 438  
2.   Documentary Evidence ....................... 438  
IX.   REVISED RULES ON SUMMARY
PROCEDURE ...................................................... 422  
  Cases Covered by the Rule.................. 422  
  Prohibited Pleadings and Motions ..... 422  
  Effect of failure to answer ................... 423  
  Preliminary Conference and Appearances
of Parties ........................................................ 424  

X.   RULES OF PROCEDURE FOR SMALL

CLAIMS CASES ................................................... 425  
  Scope and Applicability of the Rule ... 425  

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

CIVIL PROCEDURE
Remedial Law

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

I.   GENERAL The second paragraph in the foregoing definition of

judicial power in Sec. 1, Art. VIII, 1987 Constitution is

PRINCIPLES IN an innovation that “expanded” the previous version in

the 1973 and 1935 Constitutions, which was confined

REMEDIAL LAW to its traditional ambit of settling actual controversies

involving rights that were legally demandable and
enforceable [Araullo v. Aquino, G.R. No. G.R. No.
  Nature, Basis and Source 209287 (2014)]

of Remedial Law Prospectivity/Retroactivity

General rule: Rules of procedure may be modified at
any time to become effective at once, so long as the
1.   Nature change does not affect vested rights. Moreover, there
are no vested rights to rules of procedure [Zulueta v.
Asia Brewery, G.R. No. 138137 (2001)]
a.   As Distinguished from
Substantive Law Note: Procedural laws may be given retroactive effect
to actions pending and undetermined at the time of
Substantive law – Creates, defines, and regulates their passage, there being no vested rights in the rules
rights and duties concerning life, liberty, or property of procedure. Amendments to procedural rules are
[Primicias v. Ocampo, G.R. No. L-6120 (1953)], the procedural or remedial in character as they do not
violation of which gives rise to a cause of action [Bustos create new or remove vested rights, but only operate
v. Lucero, G.R. No. L-2068 (1948), cited in 1 Riano 25- in furtherance of the remedy or confirmation of rights
26, 2014 Bantam Ed.] already existing [Fil-Estate Properties, Inc. v. Homena-
Valencia, G.R. No. 173942 (2008)]
Remedial law – Prescribes the methods of enforcing
those rights and obligations created by substantive Exceptions: Procedural rules do not apply to pending
law [Bustos v. Lucero, G.R. No. L-2068 (1948)] actions
1.   where the statute itself or by necessary
implication provides that pending actions are
b.   Judicial Power as Basis and excepted from its operation;
Source 2.   if applying the rule to pending actions would
impair vested rights;
In the first place, there would be no theory and 3.   when to do so would not be feasible or would work
practice of “remedial law” in the Philippine legal injustice;
system if our constitutional order did not include the 4.   if doing so would involve intricate problems of due
concept of “judicial power” per se. This concept, of process or impair the independence of the courts.
course -- as vested in a basic branch of government [Tan, Jr. v. CA, G.R. No. 136368 (2002), citing Agpalo
independent of the two other basic branches, arising 269-272, 1986 Ed.]
from the root democratic philosophy of separation of
the powers of governance in a democracy -- antedates
all Philippine Constitutions because it is of American
2.  S upreme Court and Law as
origin. But it has been defined for the Philippine legal Specific Source
system, for the first time, in Sec. 1, Article VIII, 1987
Constitution [Prof. Avena]
a.   Supreme Court
Judicial Power includes the duty of the courts of
justice The Supreme Court creates procedural law on the
1.   To settle actual controversies involving rights, basis of its rule-making power as embodied in Sec.
which are legally demandable and enforceable, 5(5), Art. VIII of the Constitution.
and
2.   To determine WON there has been grave abuse b.   Congress
of discretion amounting to lack or excess of
jurisdiction on the part of any branch or The Constitution took away the power of Congress to
instrumentality of Government repeal, alter or supplement rules concerning pleading,
[Sec. 1, Art. VIII, Constitution] practice and procedure. The power to promulgate

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

rules is no longer shared by the Court with Congress,

more so with the executive [Echegaray v. Secretary of   Rule-Making Power of
Justice, G.R. No. 132601 (1999)]
the Supreme Court
1.   Nature and Scope
Sec. 5(5), Art. VIII, of the Constitution provides that
a.   The SC shall have the power to promulgate rules
concerning
1.   the protection and enforcement of
constitutional rights
2.   pleading, practice, and procedure in all
courts
3.   admission to the practice of law
4.   the Integrated Bar, and
5.   legal assistance to the underprivileged
b.   Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless
disapproved by the Supreme Court.

The SC has the sole prerogative to amend, repeal, or

even establish new rules for a more simplified and
inexpensive process, and the speedy disposition of
cases [Neypes v. CA, G.R. No. 141524 (2005)]

2.  M ethodology
a.   Rules of Court
The Rules of Court (ROC) is the main set of rules of
general application [Sec. 2, Rule 1] to civil and criminal
actions and special proceedings [Sec. 3, Rule 1],
administrative powers and duties of court personnel,
as well as the discipline of members of the judiciary
[Rule 140] and the bar [Rule 139], and student practice
[Rule 138-A].

The ROC shall be liberally construed in order to

promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding
[Sec. 6, Rule 1]

Scope of application

The ROC shall apply in all the courts, except as

otherwise provided by the SC [Sec. 2, Rule 1]

It shall govern the procedure to be observed in

actions, civil or criminal, and special proceedings.
[Sec. 3, Rule 1]

It does not apply to

1.   Election cases
2.   Land registration cases

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

3.   Cadastral cases c.   Jurisprudence

4.   Naturalization cases
5.   Insolvency proceedings, and The SC’s rule-making power includes the power to
6.   Other cases not provided for in the ROC create rules via jurisprudence. [see, e.g., Ching v. Subic
Bay, G.R. No. 174353 (2014); Vidal v. Escueta, G.R. No.
Except by analogy or in a suppletory character and 156225 (2003)]
whenever practicable and convenient
[Sec. 4, Rule 1]
3.  Limitations on the Rule-
It will apply to certain proceedings if so provided by
law, e.g., with respect to the power to issue writs of
Making Power of the
injunction and to punish for contempt by the Land Supreme Court
Transportation and Franchising Board [Sec. 19(4) and
(5), Chapter 5, Title XV, Book IV, Administrative Code] The rules shall
a.   Provide a simplified and inexpensive procedure
The constitutional faculty of the Court to promulgate for speedy disposition of cases
rules necessarily carries with it the power to overturn b.   Uniform for all courts of the same grade; and
judicial precedents on points of remedial law through c.   Not diminish, increase or modify substantive
the amendment of the ROC [Pinga v. Heirs of Santiago, rights
G.R. No. 170354 (2006)] [Sec. 5(5), Art. VIII, Constitution]

b.   Other Issuances 4.  P ower of SC to Amend and

Examples would include Suspend Procedural Rules
1.   Rules on specific details of procedure, such as
the rule on General rule
•   Service of summons on foreign private Compliance with procedural rules is the general rule,
juridical entities [A.M. No. 11-3-6-SC] and abandonment thereof should only be done in the
•   Electronic filing [A.M. No. 10-3-7-SC] most exceptional circumstances [Pilapil v. Heirs of
Briones, G.R. No. 150175 (2007)]
•   Guidelines on pre-trial, mediation and
discovery [A.M. No. 03-1-09-SC]
Litigation is not a game of technicalities, but every
•   Suspension of payment of docket fee [A.M. case must be prosecuted in accordance with the
No. 04-2-04-SC]
prescribed rules of procedure to ensure an orderly and
•   Certificate of non-forum shopping [Revised speedy administration of justice. Only for the most
Circular No. 28-91, Administrative Circular persuasive of reasons can such rules be relaxed to
No. 04-94, A.M. No. 00-2-10-SC] relieve a litigant of an injustice not commensurate
2.   Entire bodies of procedural rules for the with the degree of his thoughtlessness in not
enforcement and protection of specific complying with the procedure prescribed [Novateknika
substantive rights v. PNB, G.R. No. 194104 (2013)]
•   Special Rules of Court on Alternative Dispute
Resolution [A.M. No. 07-11-08-SC] Exception
•   Rules on the Declaration of Absolute Nullity Apart from the rule-making power explicitly vested in
of Void Marriages and Annulment of Voidable it by the Constitution, the basis for the power of the
Marriages [A.M. No. 02-11-10-SC] Supreme Court to suspend its own rules is specifically
•   Rule on DNA Evidence (A.M. No. 06-11-5-SC] provided in Sec. 5(g) of Rule 135 (which provision dates
•   Rule on the Writ of Amparo (A.M. 07-9-12-SC) back to the 1964 and 1940 ROC). Said Section states
•   Rule on the Writ of Habeas Data [A.M. 08-1- that every court shall have power to amend and
16-SC] control its process and orders so as to make them
•   Rules of Procedure for Environmental Cases conformable to law and justice.
[A.M. No. 09-6-8-SC]
•   Judicial Affidavit Rule [A.M. No. 12-8-8-SC] The power of the SC to suspend its own rules or to
•   Rules of Procedure on Corporate except a particular case from its operations whenever
Rehabilitation [A.M. No. 00-08-10-SC] the purposes of justice require it, cannot be
questioned. Substantial rights must reign supreme
over technicalities. The over-arching aim of procedure

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

is to achieve substantial justice, hence, the power to d.   A lack of any showing that the review sought is
suspend if required in order to achieve the latter [De merely frivolous or dilatory, and
Guzman v. Sandiganbayan, G.R. No. 103276 (1996)]. e.   The rights of the other party will not be unjustly
prejudiced thereby
Note: In De Guzman, a criminal case, the SC remanded [Sarmiento v. Zaratan, G.R. No. 167471 (2007)]
the case for new trial even after entry of judgment of f.   Transcendental matters of life, liberty or state
conviction, because the accused was deprived of the security [Mindanao Savings and Loan Association
right to present evidences crucial to and on their face v. Vda. De Flores, G.R. No. 142022 (2005)]
proving his innocence when his counsel adopted the
wrong strategy of demurring to evidence despite
denial of leave therefor.

Where strong considerations of substantive justice are

manifest in the petition, the strict application of the
rules of procedure may be relaxed, in the exercise of its
equity jurisdiction. A rigid application of the rules of
procedure will not be entertained if it will obstruct
rather than serve the broader interests of justice in the
light of the prevailing circumstances in the case under
consideration [CMTC Int’l Marketing Corp. v. Bhagis
Int’l Trading Corp., G.R. No. 170488 (2012)]

Exception to exception

Parties praying for the liberal interpretation of the

rules must be able to hurdle that heavy burden of
proving that they deserve an exceptional treatment. It
was never the Court’s intent “to forge a bastion for
erring litigants to violate the rules with impunity.”
[Prieto v. Alpadi Development Corp., G.R. No. 191025
(2013)]

Concomitant to a procedure adopting a liberal

application of the rules should be an effort on the part
of the party invoking liberality to explain his failure to
abide by the rules [Duremdes v. Duremdes, G.R. No.
138256 (2003)]

To relieve a litigant of an injustice commensurate with

his failure to comply with the prescribed procedure
and the mere invocation of substantial justice is not a
magical incantation that will automatically compel
the Court to suspend procedural rules [Cu-Unjieng v.
CA, G.R. No. 142022 (2005)]

What constitutes good and sufficient cause that would

merit suspension of the rules is discretionary upon the
courts [CIR v. Mirant Pagbilao Corp., G.R. No. 159593
(2006)]

The reasons which would warrant suspension of the

Rules include
a.   The existence of special and compelling
circumstances
b.   The merits of the case
c.   A cause not entirely attributable to the fault or
negligence of the party favored by the suspension

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

II.   JURISDICTION OF It is not a juridical person

within the purview of Art. 44(1)
COURTS of the Civil Code, which refers
to “the State and its political
subdivisions” (See Sec. 2(3),
  Nature of Philippine Introductory Provisions,
Administrative Code: “Local
Courts Government refers to the
political subdivisions
established by or in accordance
1.   Meaning of a Court with the Constitution”)
Officer of such
Tribunal officially assembled
A Philippine court forms part of the judicial tribunal [1 Riano
under authority of law [1 Riano
department of the government of the Republic of the 65-66, 2014
65-66, 2014 Bantam Ed.]
Philippines [Par. 1, Sec. 1, Art. VIII, Constitution]. Bantam Ed.]

A court is an organ of government belonging to the A court is an entity possessing a personality separate
judicial department, the function of which is the and distinct from the men who compose or sit on it
application of the laws to controversies brought before [People v. Carlos, G.R. No. L-239 (1947)].
it as well as the public administration of justice. It is
also the place where justice is administered [1 Riano In Carlos, the SC ruled that the disqualification under
65, 2014 Bantam Ed., citing Black’s Law Dictionary, the People's Court Act of some or a majority of the
Am. Jur. and C.J.S.] members of the SC and their substitution by justices of
the CA or judges of the CFI do not make the SC, as thus
constituted, a new court in the eyes of the law. This
a.   The Supreme Court and Other objection is no more valid than that of a party in an
Courts ordinary action who protests that his case is heard by
a SC which, by reason of disability of a majority of its
The judicial power shall be vested in one SC and in regular members, is made up mostly of judges from
such lower courts as may be established by law [Par. 1, outside.
Sec. 1, Art. VIII, Constitution].
Jurisdiction does not attach to the judge but to the
The SC is the one and only court that is created and court. The continuity of a court and the efficacy of its
vested with judicial power by the 1987 Constitution. proceedings are not affected by the death,
resignation, or cessation from the service of the judge
All other courts, which are therefore lower in the legal presiding over it [ABC Davao Auto Supply v. CA, G.R.
and administrative hierarchy, are created and vested No. 113296 (1998)].
with judicial power only by virtue of law.
The reason is the separate personality of the court
from the judge, as described in the table above.
b.   Court as Distinguished from
the Judge
Court Judge
A court is a juridical person,
within the purview of Art. 44(2)
of the Civil Code, which refers A judge is a
to “other corporations, physical or
institutions and entities for natural person
public interest or purpose, [1 Riano 66,
created by law; their 2014 Bantam
personality begins as soon as Ed.]
they have been constituted
according to law.”

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

  Meaning of Jurisdiction Three consequences automatically and inevitably

flow from the latter fact
in Various Contexts a.   subject-matter jurisdiction exists only when and
because it is prescribed by law
b.   by the very essence of judicial power, subject-
1.   Subject Matter matter jurisdiction can be vested by law only upon
a court
Jurisdiction of a Court c.   therefore, a body that purports to be a court is not
a court if there is no law that has vested it with
Jurisdiction over the subject matter is the power of a judicial power
particular court to hear the type of case that is then [Prof. Avena]
before it [1 Riano 71, 2014 Bantam Ed., citing Black’s
th
Law Dictionary 767, 5 Ed.] For example
The Maeng Tribal Court is not a court because there is
It is the power to hear and determine cases of the no law that has vested it with judicial power [see Badua
general class to which the proceedings in question v. Cordillera Bodong, G.R. No. 92649 (1991)].
belong [Reyes v. Diaz, G.R. No. L-48754 (1941)]
The Civil Service Commission may have been vested
Subject matter jurisdiction simply refers to the judicial with the power to settle actual controversies under
power that has been vested in a specific type of court E.O. 292, but it is not a court because it is not part of
by the legal system, in terms of what kinds of action it the judicial department of the government [Prof.
can decide (e.g., Regional Trial Courts as compared to Avena]
Shari’a courts) and what powers it can exercise in
relation thereto (e.g., issuance of provisional
remedies) [Prof. Avena]. Specifically: 2.  J urisdiction over the
Person of a Party
With respect to the Supreme Court, it is the plenary
judicial power vested in it by the Constitution [Sec. 5,
Subject matter Jurisdiction over the
Article VIII, Constitution], of which it cannot be
jurisdiction person
deprived by Congress, pursuant to Sec. 2, Article VIII,
Refers to jurisdiction
Constitution [Prof. Avena].
over the person of a
•   It includes the power of judicial review, which is party (in an action that
the power of the courts to test the validity of Refers to the judicial
has been filed with a
executive and legislative acts for their conformity power of a specific type
specific court that has
with the Constitution [Garcia v. Executive of court over certain
subject matter
Secretary, G.R. No. 157584 (2009)] kinds of action as
jurisdiction over such
provided for and
action) that must be
Jurisdiction defined by law [Prof.
acquired by that specific
a.   is the power and authority of the court to hear, try, Avena]
court through modes
and decide a case [1 Riano 67, 2014 Bantam Ed., provided in procedural
citing Cuenca v. PCGG, G.R. Nos. 159104-05 rules [Prof. Avena]
(2007); Asia International Auctioneers, Inc. v. None of the parties to
Parayno, G.R. No. 163445 (2007)] the litigation can
b.   has also been referred to as the power or capacity May be conferred by
enlarge or diminish it or
given by the law to a court or tribunal to entertain, consent, expressly or
dictate when it shall
hear, and determine certain controversies [1 Riano impliedly given, or it
attach or when it shall
67, 2014 Bantam Ed., citing De la Cruz v. CA, G.R. may, by an objection, be
be removed. That is a
No. 139442 (2006)] prevented from
matter of legislative
attaching or removed
enactment which none
With respect to any other court, it is the judicial power after it has attached
but the legislature may
vested in that particular kind of court by the pertinent [Manila Railroad Co. v.
change [Manila
law. For example, the jurisdiction of the Shari’a Circuit Attorney-General, G.R.
Railroad Co. v. Attorney-
Court is the judicial power that is vested in it by Art. 155 No. 6287 (1911)]
General, G.R. No. 6287
of P.D. 1083 [Prof. Avena]
(1911)]
 

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Kinds An issue is a disputed point or question to which

a.   Over the plaintiff parties to an action have narrowed down their several
b.   Over the defendant allegations and upon which they are desirous of
c.   Over non-parties – It is a principle of equity that obtaining a decision [1 Riano 100, 2014 Bantam Ed.,
th
jurisdiction over a person not formally or originally citing Black’s Law Dictionary 745, 5 Ed.]
a party to a litigation may nevertheless be
acquired, under proper conditions, thru the The SC had occasion to note that in some instances it
voluntary appearance of that person before the has been held that the court must also have
court. Thus, judgment may be directed against jurisdiction over the issues – that is, the issue being
one who, although not a formal party in the case, tried and decided by the court be within the issues
has assumed or participated in the defense raised in the pleadings [Reyes v. Diaz, G.R. No. L-
[Rodriguez v. Alikpala, G.R. No. L-38314 (1974)] 48754 (1941)]

Generally, jurisdiction over the issues is conferred and

a.   How Jurisdiction over the determined by
Plaintiff is Acquired 1.   The pleadings of the parties, which present the
issues to be tried and determine whether or not
Courts acquire jurisdiction over a party plaintiff upon the issues are of fact or law [Reyes v. Diaz, G.R. No.
the filing of the complaint [Regner v. Logarta, G.R. L-48754 (1941)]
No. 168747 (2007)] 2.   Stipulation of the parties as when, in the pre-trial,
the parties enter into stipulations of facts or enter
The plaintiff, having brought the action, of necessity into agreement simplifying the issues of the case
submitted itself to the jurisdiction of the court [Manila [Sec. 2, Rule 18]
Railroad Co. v. Attorney-General, G.R. No. 6287 (1911)] 3.   Waiver or failure to object to evidence on a matter
not raised in the pleadings. Here the parties try
with their express or implied consent or issues not
b.   How jurisdiction over the raised by the pleadings [Sec. 5, Rule 10]
defendant is acquired [1 Riano 100-101, 2014 Bantam Ed.]

Jurisdiction over the person of the defendant is The rule is that a party is entitled only to such relief
acquired consistent with and limited to that sought by the
a.   By his voluntary appearance in court and his pleadings or incidental thereto. A trial court would be
submission to its authority; or acting beyond its jurisdiction if it grants relief to a
b.   By service of summons party beyond the scope of the pleadings [Gonzaga v.
[Sec. 20, Rule 14; Macasaet v. Co, G.R. No. 156759 CA, G.R. No. 142037 (2004)]
(2013)]

Jurisdiction over the person of the defendant is

4.  J urisdiction over the Res
necessary for the court to validly try and decide a case
only in an action in personam. It is not a prerequisite in “Res,” in civil law is a “thing” or “object.” It is
an action in rem or quasi in rem, provided that the court everything that may form an object of rights as
acquires jurisdiction over the res [Alba v. CA, G.R. No. opposed to a “persona,” which is the subject of rights.
164041 (2005)] It includes object, subject matter or status [1 Riano
104, 2014 Bantam Ed., citing Black’s Law Dictionary
th
An objection to jurisdiction over the person of the 1172, 5 Ed.]
defendant may be raised as a ground in a Motion to
Dismiss [Sec. 1(a), Rule 16] or as an affirmative defense Jurisdiction over the res refers to the court’s
in an Answer [Sec. 6, Rule 16] jurisdiction over the thing or the property which is the
subject of the action [1 Riano 104, 2014 Bantam Ed.]
However, if not raised in such Motion or Answer, it is
deemed waived. It is not one of those defenses not Jurisdiction over the res may be acquired
deemed waived under Sec. 1, Rule 9 [Boston Equity a.   By seizure of the thing under legal process
Resources, Inc. v. CA, G.R. No. 173946 (2013)] whereby, it is brought into actual custody of the
law (custodia legis); or
b.   From the institution of legal proceedings wherein,
3.  Jurisdiction over the under special provisions of law, the power of the
Issues
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court over the property is recognized and made

effective (potential jurisdiction of over the res)   General Principles on
[Biaco v. Philippine Countryside Rural Bank, G.R. No.
161417 (2007); El Banco Español-Filipino v. Palanca,
Subject Matter
G.R. No. 11390 (1918)] Jurisdiction
In order that the court may exercise power over the res, Distinguished from venue
it is not necessary that the court should take actual The question of venue does not relate to jurisdiction of
custody of the property, potential custody thereof the court over the subject matter, it simply granting to
being sufficient. There is potential custody when, from the defendant certain rights and privileges as against
the nature of the action brought, the power of the the plaintiff relative to the place of trial, which rights
court over the property is impliedly recognized by law and privileges he might waive expressly or by
[Marcos, Jr. v. Republic, G.R. No. 189434 (2014); implication [Manila Railroad Co. v. Attorney-General,
Perkins v. Dizon [G.R. No. 46631 (1939)] G.R. No. 6287 (1911)]
In a quasi in rem action, jurisdiction over the person of
the nonresident defendant is not necessary and 1.   Jurisdiction v. the Exercise
service of summons is required only for the purpose of
complying with the requirement of due process. An
of Jurisdiction
action quasi in rem is an action between parties where
the direct object is to reach and dispose of property Jurisdiction refers to the power or authority of the
owned by them, or of some interest therein [De Midgely court [Arranza v. BF Homes, G.R. No. 131683 (2000)]
v. Ferandos, G.R. No. L-34314 (1975)] while the exercise of this power or authority is the
exercise of jurisdiction [1 Riano 72, 2014 Bantam Ed.]
The CA, not the CTA, has jurisdiction over a case
alleging non-compliance with the pertinent provisions Jurisdiction is not the same as the exercise of
of the Local Government Code on tax delinquency jurisdiction. As distinguished from the exercise of
sale. A plain reading of Magpile's petition before the jurisdiction, jurisdiction is the authority to decide a
RTC would show that he did not assail the legality or cause, and not the decision rendered therein. Where
validity and reasonableness or correctness of the real there is jurisdiction over the person and the subject
property tax assessment and collection. What he is matter, the decision on all other questions arising in
questioning is the alleged denial of due process in the the case is but an exercise of the jurisdiction. And the
levying of his property [Salva v. Magpile, G.R. No. errors which the court may commit in the exercise of
220440 (2017)] jurisdiction are merely errors of judgment which are
the proper subject of an appeal [Tolentino v. Leviste,
G.R. No. 156118 (2004)]

2.  E rror of Jurisdiction as
Distinguished from Error
of Judgment
Error of jurisdiction Error of judgment
One which the court
may commit in the
One where the act
exercise of its
complained of was
jurisdiction
(1) without jurisdiction or
in excess of jurisdiction
It includes errors of
[Cabrera v. Lapid, G.R.
procedure or mistakes
No. 129098 (2006)], or
in the court’s findings
(2) with grave abuse of
[Banco Filipino Savings
discretion amounting to
and Mortgage Bank v.
lack of jurisdiction
CA, G.R No. 132703
(2000)]

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Correctible only by the action, unless such statute provides for its retroactive
extraordinary writ of application [Baritua v. Mercader, G.R. No. 136048
certiorari [Cabrera v. (2001)]
Lapid, G.R. No. 129098
(2006)] Once vested by the allegations in the complaint,
jurisdiction also remains vested irrespective of
BUT NOTE: Sec. 8, Rule Correctible by appeal whether or not the plaintiff is entitled to recover upon
40 allows an RTC with [Cabrera v. Lapid, G.R. all or some of the claims asserted therein [City of
original jurisdiction over No. 129098 (2006)] Dumaguete v. PPA, G.R. No. 168973 (2011)]
a case brought on
appeal from a lower Jurisdiction is not affected by the pleas set up by the
court without jurisdiction defendant in his answer or in a motion to dismiss,
over subject matter to otherwise, jurisdiction would be dependent on his
decide case on the whims [Sindico v. Diaz, G.R. No. 147444 (2004)]
merits
Decision is a total nullity Note: The MTCC does not lost jurisdiction over
and may be struck down ejectment cases by mere allegation of a tenancy
at any time, even on relationship. However, if after hearing, tenancy had in
appeal; EXCEPT when Erroneous judgment is fact been shown to be the real issue, the court should
party raising the issue is not a void judgment dismiss the case for lack of jurisdiction [Hilado v.
barred by estoppel Chavez, G.R. No. 134742 (2004)]
[Suntay v. Gocolay, G.R.
No. 144892 (2005)] Doctrine of primary jurisdiction
[1 Riano 73-74, 2014 Bantam Ed.] The doctrine of primary jurisdiction holds that if a case
is such that its determination requires the expertise,
specialized training and knowledge of the proper
3.  How Jurisdiction is administrative bodies, relief must first be obtained in
Conferred and Determined an administrative proceeding before a remedy is
supplied by the courts even if the matter may well be
Jurisdiction over the subject matter of a case is within their proper jurisdiction [Province of Aklan v.
conferred by law and determined by the allegations in Jody King Construction and Dev’t Corp., G.R. No.
the complaint which comprise a concise statement of 197592 (2013)]
the ultimate facts constituting the plaintiff's cause of
action [Medical Plaza Makati Condominium v. Cullen, The objective of the doctrine of primary jurisdiction is
G.R. No. 181416 (2013)] to guide the court in determining whether it should
refrain from exercising its jurisdiction until after an
Consequences of rule that jurisdiction is conferred administrative agency has determined some question
by law: It cannot be or some aspect of some question arising in the
a.   Conferred by voluntary act or agreement of the proceeding before the court [Province of Aklan v. Jody
parties King Construction and Dev’t Corp., G.R. No. 197592
b.   Acquired, waived, enlarged, or diminished by any (2013)]
act or omission of the parties; or
c.   Conferred by the acquiescence of the courts Exceptions
[De la Rosa v. Roldan, G.R. No. 133882 (2006)] a.   Where there is estoppel on the part of the party
d.   Conferred by administrative policy of any court invoking the doctrine
[Arranza v. B.F. Homes, Inc., G.R. No. 131683 b.   Where the challenged administrative act is
(2000)] patently illegal, amounting to lack of jurisdiction
e.   Conferred by a court’s unilateral assumption of c.   Where there is unreasonable delay or official
jurisdiction [Tolentino v. Social Security inaction that will irretrievably prejudice the
Commission, G.R. No. L-28870 (1985)] complainant
f.   Conferred by consent or waiver [Cadimas v, d.   Where the amount involved is relatively small
Carrion, G.R. No. 180394 (2008)] e.   Where the question involved is purely legal and
[1 Riano 75-76, 2014 Bantam Ed.] will ultimately have to be decided by the courts
f.   Where judicial intervention is urgent
Generally, the jurisdiction of a court is determined by g.   When its application may cause great and
the statute in force at the commencement of the irreparable damage
h.   Where the controverted acts violate due process

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i.   When the issue of non-exhaustion of The jurisdiction of a court over the subject matter of
administrative remedies has been rendered moot the action is a matter of law and may not be conferred
j.   When there is no other plain, speedy, adequate by consent or agreement of the parties. The lack of
remedy jurisdiction of a court may be raised at any stage of the
k.   When strong public interest is involved, and proceedings, even on appeal [SEAFDEC v. NLRC, G.R.
l.   In quo warranto proceedings No. 86773 (1992)]
[Province of Aklan v. Jody King Construction and Dev’t
Corp., G.R. No. 197592 (2013)] The earliest opportunity of a party to raise the issue of
jurisdiction is in a motion to dismiss filed before the
filing or service of an answer because lack of
4.  D octrine of Adherence of jurisdiction over subject matter is a ground for a
Jurisdiction motion to dismiss under Sec. 1(b), Rule 16 [1 Riano 88,
2014 Bantam Ed.]
Also known as doctrine of continuity of jurisdiction [1
Riano 85-86, 2014 Bantam Ed.] If no motion is filed, the defense of lack of jurisdiction
may be raised as an affirmative defense in the answer
Once the jurisdiction of a court attaches, it continues [Sec. 16(6), Rule 16]
until the case is finally terminated. The trial court
cannot be ousted therefrom by subsequent When the court dismisses the complaint for lack of
happenings or events, although of a character that jurisdiction over subject matter, it is submitted that
would have prevented jurisdiction from attaching in the court should not remand the case to another court
the first instance [Baritua v. Mercader, G.R. No. 136048 with the proper jurisdiction. Its only has authority to
(2001)] dismiss and not to make any other order [1 Riano 89,
2014 Bantam Ed.]
Where a court has already obtained and is exercising
jurisdiction over a controversy, its jurisdiction to 6.  E ffect of Estoppel on
proceed to the final determination of the cause is not
affected by new legislation placing jurisdiction over Objections to Jurisdiction
such proceeding in another tribunal [Southern Food v.
Salas, G.R. No. 56428 (1992)] General rule: Jurisdiction over the subject matter may
be raised at any stage of the proceedings, even for the
As a consequence, jurisdiction is not affected by a new first time on appeal. The reason for this is that
law placing a proceeding under the jurisdiction of jurisdiction is conferred by law, and lack of it affects
another tribunal, except the very authority of the court to take cognizance of
a.   Where there is an express provision in the statute the action [Asiatrust Development Bank v. First Aikka
b.   The statute is clearly intended to apply to actions Development, Inc., G.R. No. 179558 (2011)]
pending before its enactment
[People v. Cawaling, G.R. No. 117970 (1998); Southern Exception: Tijam v. Sibonghanoy [G.R. No. L-21450
Food v. Salas, G.R. No. 56428 (1992)]] (1968)] espoused the doctrine of estoppel by laches,
which held that a party may be barred from
questioning a court’s jurisdiction after invoking the
5.  O bjections to Jurisdiction court’s authority in order to secure affirmative relief
over the Subject Matter against its opponent, when laches would prevent the
issue of lack of jurisdiction from being raised for the
When it appears from the pleadings or evidence on first time on appeal by a litigant whose purpose is to
record that the court has no jurisdiction over the annul everything done in a trial in which it has actively
subject matter, the court shall dismiss the same [Sec. participated [Francel Realty Corp. v. Sycip, G.R. No.
1, Rule 9] 154684 (2005)]

The Court ex mero motu may take cognizance of lack Note: Tijam must be construed as an exception to the
of jurisdiction at any point in the case where the fact is general rule and applied only in the most exceptional
developed. The court has a clearly recognized right to cases whose factual milieu is similar to that in the
determine its own jurisdiction in any proceeding aforementioned case [Figueroa v. People, G.R. No.
[Fabian v. Desierto, G.R. No. 129742 (1998)] 147406 (2008)]

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Jurisdiction by estoppel
While it is true that jurisdiction may be raised at any   Courts according to
time, this rule presupposes that estoppel has not
supervened. In this case, respondent (defendant
Subject Matter
below) actively participated in all stages of the
proceedings before the trial court and invoked its
Jurisdiction in General
authority by asking for an affirmative relief. Clearly,
respondent is estopped from challenging the trial 1.   According to Subject
court’s jurisdiction, especially when an adverse
judgment has been rendered [Soliven v. Fastform, G.R.
Matter per se
No. 139031 (2004)]
a.   Courts of Original and
7.  Other Principles Appellate Jurisdiction
Cannot be the subject of compromise Original Appellate
No compromise upon the jurisdiction of courts shall be Have the power to
valid [Art. 2035, Civil Code] Actions or proceedings
review on appeal the
may be originally filed
decisions or orders of a
with it
Retroactivity lower court
The provisions of R.A. 7691 amending B.P. 129 shall [1 Riano 62, 2014 Bantam Ed.]
apply to all civil cases that have not yet reached the
pre-trial stage [Sec. 7, R.A. 7691]. Appellate jurisdiction refers to a process which is but
a continuation of the original suit, not a
The resolution of the SC amending a provision of the commencement of a new action [Morales v. CA, G.R.
ROC did not have to specify that it had retroactive No. 126623 (1997)]
effect as it pertains to a procedural matter. Contrary to
private respondent’s allegation that the matter was no
longer pending and undetermined, the issue of b.   Courts of Concurrent Original
whether the petition for certiorari was timely filed was Jurisdiction
still pending reconsideration when the amendment to
Sec. 4, Rule 65 took effect on September 1, 2000, Refers to courts with the same kind of original
hence, covered by the its retroactive application [Siena jurisdiction over certain actions [Prof. Avena]
Realty Corp. v. Gal-lang, G.R. No. 145169 (2004)]
Principle of judicial hierarchy
A common refrain in jurisprudence is that, where court
have concurrent jurisdiction over a subject matter, the
doctrine of hierarchy of courts, should be observed.
Under this doctrine, a case must be filed before the
lowest court possible having the appropriate
jurisdiction, except if one can advance a special reason
which would allow a party a direct resort to a higher
court [1 Riano 57, 2014 Bantam Ed.]

The principle of hierarchy of courts requires that

recourses should be made to the lower courts before
they are made to the higher courts [Republic v.
Caguioa, G.R. No. 174385 (2013)]

Parties must observe the hierarchy of courts before

they can seek relief directly from the SC – the
rationale is two-fold
1.   It would be an imposition upon the limited time of
the Court; and
2.   It would inevitably result in a delay, in the
adjudication of cases, which are remanded or

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referred to the lower court as the proper forum, or An example of courts of special jurisdiction would be
a trier of facts the Shari’ah courts created under P.D. 1083 (Code of
[People v. Azarraga, G.R. No. 187117 (2011)] Muslim Personal Laws). The jurisdiction of special
commercial courts created under A.M. No. 01-2-04-
A disregard of the doctrine of hierarchy of courts SC (Interim Rules of Procedure Governing Intra-
warrants, as a rule, the outright dismissal of a petition Corporate Controversies under R.A. 8799) falls within
[De Castro v. Carlos, G.R. No. 194994 (2013)] the general original jurisdiction of Regional Trial
Courts, because it consists of the jurisdiction of the
The SC may disregard the doctrine if warranted by the Securities and Exchange Commission which was
nature and importance of the issues raised in the transferred under R.A. 8799 to Regional Trial Courts
interest of speedy justice and to avoid future litigations per se; hence, the designation “Special Commercial
[1 Riano 58-59, 2014 Bantam Ed.] Courts’ simply refers to those specified branches of
Regional Trial Courts which the Supreme Court has
The SC has allowed direct invocation of its original designated to exercise the said former jurisdiction of
jurisdiction to issue writs of certiorari when the SEC. [Gonzales v. GJH Land, Inc. G.R. No. 202664
1.   There are special and important reasons clearly (2015)]
stated in the petition
2.   Dictated by public welfare and the advancement
of public policy
2.  A ccording to Creation
3.   Demanded by the broader interest of justice
4.   The challenged orders were patent nullities a.   Constitutional and Statutory
5.   Analogous exceptional and compelling
circumstances called for and justified the
Courts
immediate and direct handling of the case
[Republic v. Caguioa, G.R. No. 174385 (2013)] Constitutional court – refers to a court directly
created by a constitutional provision [1 Riano 60, 2014
Bantam Ed.], of which there is only one example: the
c.   Courts of General and Special Supreme Court [Sec. 1, Art. VIII, Constitution]
Jurisdiction
Constitutionally-mandated court – refers to a court
whose creation by Congress is mandated by a
General Special
constitutional provision, of which there is only one
Only for a particular
Vested by law with the example: the Sandiganbayan [Sec. 4, Art. XI,
purpose or are clothed
jurisdiction to take Constitution]
with special powers for
cognizance of all kinds
the performance of
of cases, civil or Statutory court – refers to a court created by statutory
specified duties beyond
criminal, of a particular law [1 Riano 60, 2014 Bantam Ed.] (e.g., the first courts
which they have no
nature created after the birth of the Philippine Republic were
authority of any kind
those created by virtue of R.A. 296 (The Judiciary Act
[1 Riano 62, 2014 Bantam Ed.]
of 1948)
Note: Courts do not and never have the “competence
to decide their own jurisdiction”. Jurisdiction over the b.   Courts of Law and Equity
subject matter is a matter of legislative enactment
that only the legislature may change [Manila Railroad Law Equity
v. Attorney General, G.R. No. 6287 (1911)] Resolve issues
presented in a case, in
Nature of classification accordance with the
1.   This classification is one that can only be created Settle cases according natural rules of fairness
by law because jurisdiction is a matter of to law and justice, and in the
substantive, not procedural, law [See Sec. 1, Art. absence of a clear,
VIII, Constitution] positive law governing
2.   Although the law may provide otherwise, it is a such issues
classification that usually pertains to the original [1 Riano 55, 2014 Bantam Ed.]
jurisdiction of courts.
[Prof. Avena] Philippine courts are basically courts of law, not courts
of equity. Equity, which has been aptly described as a

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“justice outside legality,” is applied only in the Superior and inferior courts
absence of, and never against, statutory law. Aequetas Superior Inferior
nunquam contravenit legis [GF Equity, Inc. v. Are lower in rank, in
Valenzona, G.R. No. 156841 (2005)] Have the power of
relation to another
review or supervision
court and subject to
Equity is available only in the absence of law and not over another and lower
review and supervision
as its replacement [PTA of ST. Matthew Christian court [1 Regalado 6,
by the latter [1 Regalado
Academy v. Metropolitan Bank and Trust Co., G.R. No. 2010 Ed.]
6, 2010 Ed.]
(2010)] With controlling Subordinate to another
authority over other court, the judgment of
Note: In Carceller v. CA [G.R. No. 124791 (1999)], the SC courts, and with which may be reviewed
stated immediately preceding the dispositive portion original jurisdiction of by a higher tribunal [1
that: “Courts of law, being also courts of equity, may its own [1 Riano 61, Riano 61, 2014 Bantam
not countenance such grossly unfair results without 2014 Bantam Ed.] Ed.]
doing violence to its solemn obligation to administer
fair and equal justice for all.” Note: The term “inferior courts”, in use in the 1964
ROC, was obliterated in the 1997 Rules of Civil
3.  According to Record- Procedure. The equivalent term is now “municipal trial
court” [Sec. 2, Rule 5]. Accordingly, the term “superior
Keeping court” not only has lost meaning in the technical
sense, but has also lost favor in terms of usage, in
Courts of record and not of record conformity with the spirit behind the obsolescence of
Of record Not of record the term “inferior court,” which was to do away with
Those whose the pejorative connotation of it [Prof. Avena]
proceedings are
enrolled and which are Courts which are not
bound to keep a written required to keep a
4.  P rinciple of Judicial
record of all trials and written record or Hierarchy
proceedings handled by transcript of
them [1 Regalado 2, proceedings held See Courts of Concurrent Original Jurisdiction above.
2010 Ed., see Luzano v. therein [1 Regalado 2,
Romero, G.R. No. L- 2010 Ed.]
33245 (1971)] 5.  D octrine of Non-
Interference or Doctrine of
Keep a written record of
its proceedings [1 Riano Judicial Stability
61, 2014 Bantam Ed.]
Courts of equal and coordinate jurisdiction cannot
Not bound to keep such interfere with each other’s orders [Lapu-Lapu Dev’t
Strong presumption as
records [1 Riano 61, and Housing Corp. v. Group Management Corp., G.R.
to the veracity of its
2014 Bantam Ed.] No. 141407 (2002)]
records that cannot be
collaterally attacked
except for fraud [1 Riano The principle also bars a court from reviewing or
61, 2014 Bantam Ed.] interfering with the judgment of a co-equal court over
which it has no appellate jurisdiction or power of
review [Villamor v. Salas, G.R. No. 101041 (1991)]
Prior to 1969, municipal and city courts (referred to as
“inferior courts” in the 1964 ROC) were not “courts of The doctrine applies with equal force to administrative
record” because they were not required to keep bodies. When the law provides for an appeal from the
records of their proceedings. Under Sec. 3 of R.A. decision of an administrative body to the SC or CA, it
6031, they were required to do so in the same manner means that such body is co-equal with the RTC in
as the then-Courts of First Instance. Hence, all terms of rank and stature, and logically beyond the
Philippine courts are now courts of record. control of the latter [Phil. Sinter Corp. v. Cagayan
Electric Power, G.R. No. 127371 (2002)]
Other classifications
The rationale for the rule is founded on the concept of
jurisdiction: a court that acquires jurisdiction over the

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

case and renders judgment therein has jurisdiction

over its judgment, to the exclusion of all other   Jurisdiction of Specific
coordinate courts, for its execution and over all its
incidents, and to control, in furtherance of justice, the
Courts
conduct of ministerial officers acting in connection
with this judgment [Cabili v. Balindong, A.M. No. RTJ- 1.   Supreme Court
10-2225 (2011)]
Original jurisdiction
When not applicable a.   Cases affecting
The doctrine of judicial stability does not apply where 1.   Ambassadors
a third party claimant is involved – this is in 2.   Other public ministers, and
consonance with the well-established principle that 3.   Consuls
no man shall be affected by any proceeding to which b.   Petitions for
he is a stranger [Sps. Crisologo v. Omelio, A.M. No. 1.   Certiorari
RTJ-12-2321 (2012), citing Sec. 16, Rule 39, and 2.   Mandamus
quoting Naguit v. CA, G.R. No. 137675 (2000)] 3.   Prohibition
4.   Habeas corpus, and
5.   Quo warranto
[Sec. 5(1), Art. VIII, Constitution]

Parties seeking to question the resolutions of the

Office of the Ombudsman in criminal cases or non-
administrative cases, may file an original action
for certiorari with the SC, not with the CA, when it is
believed that the Ombudsman acted with grave abuse
of discretion [Ombudsman v. Heirs of Margarita Vda.
De Ventura, G.R. No. 151800 (2009), citing Estrada v.
Desierto, G. R. No. 156160 (2004)]

Exclusive original jurisdiction

Petitions for certiorari, prohibition and mandamus
against
a.   Court of Appeals [Sec. 17, R.A. 296]
b.   Commission on Elections [Sec 7, Art. IX,
Constitution]
c.   Commission on Audit [Sec. 7, Art. IX, Constitution]
d.   Sandiganbayan [P.D. 1606 as amended]
[1 Riano 106, 2014 Bantam Ed.]
e.   Court of Tax Appeals (en banc) [1 Regalado 54,
2014 Bantam Ed.]

The certiorari jurisdiction of the SC has been rigorously

streamlined, such that Rule 65 only admits cases
based on the specific grounds provided therein. The
Rule applies if there is no appeal or any other plain,
speedy, and adequate remedy in the ordinary course
of law. The independent action for certiorari will lie
only if grave abuse of discretion is alleged and proven
to exist [Lagua v. CA, G.R. No. 173390 (2012)]

Note: In Araullo v. Aquino III [G.R. No. 209287 (2014)],

the SC held that petitions for certiorari and prohibition
are appropriate remedies to raise constitutional issues
and to review and/or prohibit or nullify the acts of
legislative and executive officials. “With respect to the
Court, however, the remedies of certiorari and
prohibition are necessarily broader in scope and reach,

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and the writ of certiorari or prohibition may be issued the Rules of Court may provide, final judgments and
to correct errors of jurisdiction committed not only by orders of lower courts in:
a tribunal, corporation, board or officer exercising a.   All cases in which the constitutionality or validity
judicial, quasi-judicial or ministerial functions but also of any treaty, international or executive
to set right, undo and restrain any act of grave abuse agreement, law, presidential decree,
of discretion amounting to lack or excess of proclamation, order, instruction, ordinance, or
jurisdiction by any branch or instrumentality of the regulation is in question.
Government, even if the latter does not exercise b.   All cases involving the legality of any tax, impost,
judicial, quasi-judicial or ministerial functions.” assessment, or toll, or any penalty imposed in
relation thereto.
Concurrent original jurisdiction c.   All cases in which the jurisdiction of any lower
a.   With CA court is in issue.
1.   Petitions for certiorari, prohibition, and d.   All criminal cases in which the penalty imposed is
mandamus against reclusion perpetua or higher.
i.   RTCs [Sec. 21(1), B.P. 129] e.   All cases in which only an error or question of law
ii.   Civil Service Commission [R.A. 7902] is involved
iii.   Central Board of Assessment Appeals [Sec. 5(2), Art. VIII, Constitution]
[P.D. 464; B.P. 129; R.A. 7902]
iv.   NLRC [St. Martin Funeral Homes v. By way of petition for review on certiorari (appeal by
NLRC , G.R. No. 130866 (1998); R.A. certiorari under Rule 45) against
7902] a.   CA
v.   Other Quasi-Judicial Agencies [B.P. b.   Sandiganbayan
129; R.A. 7902; Heirs of Hinog v. c.   RTC
Melicor, G.R. No. 140954 (2005) 1.   Pure questions of law [Sec. 1, Rule 45] and
[1 Riano 106-107, 2014 Bantam Ed.] 2.   Cases falling under Sec. 5, Art. VIII,
Note: Although there is concurrent jurisdiction as Constitution (see above)
the Constitution grants this to the SC, SC A.M. No. d.   CTA in its decisions rendered en banc
07-7-12 issued on 4 December 2007 provides that [1 Riano 107, 2014 Bantam Ed.]
if the petition involves an act/omission of a Quasi- e.   MetC, MTC, MCTC in the exercise of their
Judicial Agency, the petition shall only be delegated jurisdiction, where the decision, had it
cognizable by the CA and must be filed there been rendered by RTC, would be appealable
directly to the SC [Sec. 34, B.P. 129, as amended]
2.   Petitions for writ of kalikasan [Sec. 3, Rules of
Procedure for Environmental Cases] Only pure questions of law are involved when no
b.   With CA and RTC evidentiary matters are to be evaluated by the SC. If
1.   Petitions for certiorari, prohibition and the only issue is whether or not the conclusions of the
mandamus against lower courts and bodies trial court are in consonance with law and
2.   Petitions for quo warranto jurisprudence, then the issue is a pure question of law
3.   Petitions for writs of habeas corpus [Urbano v. Chavez, G.R. No. 87977 (1990)]

This jurisdiction is subject to the doctrine of Note that the SC has held that appeals from quasi-
hierarchy of courts [Sec. 9(1), 21(1), B.P. 129; 1 Riano judicial agencies – even only on a question of law
107, 2014 Bantam Ed.] alone – may be brought to the CA, via Rule 43 of the
ROC. This constitutes an exception to the general rule
c.   With RTC in cases affecting ambassadors, public that appeals on pure questions of law are brought to
ministers and consuls [Sec. 21(2), B.P. 129; 1 Riano the SC [Santos v. Committee on Claims Settlement,
107, 2014 Bantam Ed.] G.R. No. 158071 (2009)]

d.   With CA, RTC and Sandiganbayan – Petitions for The SC may resolve factual issues in certain
writ of amparo [Sec. 3, Rule on the Writ of exceptional circumstances
Amparo] and habeas data [Sec. 3, Rule on the Writ a.   The conclusion is grounded on speculations,
of Habeas Data] surmises or conjectures
b.   The inference is manifestly mistaken, absurd or
Appellate jurisdiction impossible
The SC shall have the power to review, revise, reverse, c.   There is grave abuse of discretion
modify, or affirm on appeal or certiorari, as the law or d.   The judgment is based on a misapprehension of
facts

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e.   The findings of fact are conflicting Exclusive appellate jurisdiction

f.   There is no citation of specific evidence on which a.   By ordinary appeal
the factual findings are based 1.   From judgments of RTC and Family Courts
g.   The finding of absence of facts is contradicted by [Sec. 9(3), B.P. 129, as amended; Sec. 14, R.A.
the presence of evidence on record 8369]
h.   The findings of the CA are contrary to those of the 2.   Over decisions of the MTCs in cadastral or
trial court land registration cases pursuant to its
i.   The CA manifestly overlooked certain relevant delegated jurisdiction [Sec. 34, B.P. 129, as
and undisputed facts that, if properly considered, amended by R.A. 7691]
would justify a different conclusion b.   By petition for review
j.   The findings of the CA are beyond the issues of the 1.   From judgments of the RTC rendered in its
case appellate jurisdiction [Sec. 22, B.P. 129, as
k.   Such findings are contrary to the admissions of amended; Rule 42; Sec. 9, B.P. 129]
both parties 2.   From decisions, resolutions, orders or awards
[Josefa v. Zhandong, G.R. No. 150903 (2003)] of the Civil Service Commission and other
bodies mentioned in Rule 43 [Sec. 9(3), B.P.
129]
2.  C ourt of Appeals Note: The enumeration of quasi-judicial
agencies under Sec. 1, Rule 43 is not exclusive
Exclusive original jurisdiction [Wong v. Wong, G.R. No. 180364 (2014),
Actions for annulment of judgments of the RTC [see: quoting Cayao-Lasam v. Sps. Ramolete, G.R.
Sec. 9(2), BP 129; Sec. 1, Rule 47] No. 159132 (2008)]
3.   From decisions of the Office of the
Concurrent original jurisdiction Ombudsman in administrative disciplinary
a.   With SC cases
1.   Petitions for certiorari, prohibition, and [1 Riano 114-115, 2014 Bantam Ed.]
mandamus against
i.   RTCs
ii.   Civil Service Commission 3.  Sandiganbayan
iii.   Central Board of Assessment Appeals
iv.   Other quasi-judicial agencies mentioned Exclusive original jurisdiction
in Rule 43 a.   Violations of R.A. 3019 or the Anti-Graft and
v.   NLRC [St. Martin Funeral Homes v. NLRC , Corrupt Practices Act
G.R. No. 130866 (1998) b.   Violations of R.A. 1379 or An Act Declaring
Note: Although there is concurrent Forfeiture in Favor of the State Any Property
jurisdiction as the 1987 Constitution grants Found to Have Been Unlawfully Acquired by Any
this to the SC, SC A.M. No. 07-7-12 issued on Public Officer or Employee and Providing for the
4 December 2007 provides that if the petition Proceedings Therefor
involves an act/omission of a Quasi-Judicial c.   Bribery (Chapter II, Sec. 2, Title VII, Book II, RPC),
Agency, the petition shall only be cognizable where one or more of the principal accused are
by the CA. occupying the following positions in government,
[1 Riano 113-114, 2014 Bantam Ed.] whether in a permanent, acting or interim
2.   Petitions for writ of kalikasan [Sec. 3, Rules of capacity, at the time of the commission of the
Procedure for Environmental Cases] offense
b.   With SC and RTC 1.   Officials of the executive branch occupying
1.   Petitions for certiorari, prohibition and the positions of regional director and higher,
mandamus against lower courts and bodies otherwise classified as Grade 27 and higher,
2.   Petitions for quo warranto of the Compensation and Position
3.   Petitions for writs of habeas corpus Classification Act of 1989 (R.A. 6758),
c.   With SC, RTC and Sandiganbayan specifically including:
1.   Petitions for writ of amparo [Sec. 3, Rule on i.   Provincial governors, vice-governors,
the Writ of Amparo] and habeas data [Sec. 3, members of the sangguniang
Rule on the Writ of Habeas Data] panlalawigan, and provincial treasurers,
assessors, engineers, and other
provincial department heads
ii.   City mayors, vice-mayors, members of
the sangguniang panlungsod, city

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

treasurers, assessors, engineers, and Subject to rules promulgated by SC, the cases falling
other city department heads under the jurisdiction of the RTC shall be tried in a
iii.   Officials of the diplomatic service judicial region other than where the official holds
occupying the position of consul and office [Sec. 4, P.D. 1606, as amended by R.A. 10660]
higher
iv.   Philippine army and air force colonels, Exclusive original jurisdiction shall be vested in the
naval captains, and all officers of higher proper RTC, MeTC, MTC, and MCTC, as the case may
rank; be, where none of the accused are occupying positions
v.   Officers of the Philippine National Police corresponding to Salary Grade 27 or higher, or military
while occupying the position of provincial and PNP officers mentioned above [Sec. 4, P.D. 1606,
director and those holding the rank of as amended by R.A. 10660]
senior superintendent and higher
vi.   City and provincial prosecutors and their The Sandiganbayan shall exercise exclusive appellate
assistants, and officials and prosecutors jurisdiction over final judgments, resolutions or orders
in the Office of the Ombudsman and of regional trial courts whether in the exercise of their
special prosecutor; own original jurisdiction or of their appellate
vii.   Presidents, directors or trustees, or jurisdiction as herein provided [Sec. 4, P.D. 1606, as
managers of government-owned or amended by R.A. 10660]
controlled corporations, state
universities or educational institutions or The Sandiganbayan shall have exclusive original
foundations jurisdiction over petitions for the issuance of the writs
2.   Members of Congress and officials thereof of mandamus, prohibition, certiorari, habeas corpus,
classified as Grade 27 and up under R.A. 6758 injunctions, and other ancillary writs and processes in
3.   Members of the Judiciary without prejudice to aid of its appellate jurisdiction and over petitions of
the provisions of the Constitution similar nature, including quo warranto, arising or that
4.   Chairmen and Members of the Constitutional may arise in cases filed or which may be filed under
Commissions without prejudice to the E.O. 1, 2, 14 and 14-A, issued in 1986: Provided, That
provisions of the Constitution the jurisdiction over these petitions shall not be
5.   All other national and local officials classified exclusive of the SC [Sec. 4, P.D. 1606, as amended by
as Grade 27 and higher under R.A. 6758 R.A. 10660]
d.   Other offenses or felonies whether simple or
complexed with other crimes committed by the Concurrent Original Jurisdiction with SC, CA, and
public officials and employees mentioned in RTC for petitions for writs of amparo [Sec. 3, Rule on
subsection a. of section 4 (as amended) in relation the Writ of Amparo] and habeas data [Sec. 3, Rule on
to their office the Writ of Habeas Data]
e.   Civil and criminal cases filed pursuant to and in
connection with E.O. Nos. 1, 2, 14-A
f.   Petitions for mandamus, prohibition, certiorari,
4.  R egional Trial Courts
habeas corpus, injunctions, and other ancillary
writs and processes in aid of its appellate Exclusive original jurisdiction
jurisdiction, and petitions of similar nature, a.   All civil actions in which the subject of the
including quo warranto, arising or that may arise litigation is incapable of pecuniary estimation
in cases filed or which may be filed under [Sec. 19(1), B.P. 129, as amended by R.A. 7691]
Executive Order Nos. 1, 2, 14 and 14-A, issued in
1986 Test (principal nature of an action): If it is
[Sec. 4, P.D. 1606, as amended by R.A. 10660] primarily for the recovery of a sum of money, the
claim is considered capable of pecuniary
RTC shall have exclusive original jurisdiction where estimation. On the other hand, where the basic
the information issue is something other than the right to recover
a.   Does not allege any damage to the government or a sum of money, and the money claim is purely
any bribery; or incidental to, or a consequence of, the principal
b.   Alleges damage to the government or bribery relief sought, such actions are cases where the
arising from the same or closely related subject of the litigation is incapable of pecuniary
transactions or acts in an amount not exceeding estimation [Heirs of Padilla v. Magdua, G.R. No.
P1 million 176858 (2010), quoting Singson v. Isabela
[Sec. 4, P.D. 1606, as amended by R.A. 10660] Sawmill, G.R. No. L-27343 (1979)]

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An action to nullify a Deed of Assignment and An expropriation suit is incapable of pecuniary

Conveyance is not one involving a subject estimation [Barangay San Roque v. Heirs of
matter incapable of pecuniary estimation if the Francisco Pastor, G.R. No. 138896 (2000)]
plaintiff also seeks to the transfer of possession
and control of properties: In Home Guaranty v. R- b.   Civil actions involving title to, or possession of real
II Builders [G.R. No. 192649 (2011)], an action that property, or any interest therein, where assessed
sought the nullification of a Deed of Assignment value exceeds P20,000 outside Metro Manila, or
and Conveyance was characterized by the exceeds P50,000 in Metro Manila [Sec. 19(2), B.P.
respondent on an MR before the SC as one 129, as amended by R.A. 7691]
involving a subject matter incapable of pecuniary
estimation. The SC disagreed and held that since Exception: Forcible entry and unlawful detainer
the action was not solely for the annulment of the cases [Sec. 33(2), B.P. 129, as amended by R.A.
Deed of Assignment and Conveyance – indeed, 7691]
the respondent consistently sought the transfer of
possession and control of properties – following An action "involving title to real property" means
the its ruling in Ruby Shelter Builders and Realty that the plaintiff's cause of action is based on a
Development Corp. v. Formaran III, G.R. No. 175914 claim that he owns such property or that he has
(2009), the subject of the action was not the legal rights to have exclusive control,
incapable of pecuniary estimation. possession, enjoyment, or disposition of the same.
Title is the "legal link between (1) a person who
However, if the principal nature of an action to owns property and (2) the property itself." [Heirs
cancel a contract to sell, where the defendant of Sebe v. Heirs of Sevilla, G.R. No. 174497 (2009)]
has already taken possession of the property,
involves a determination on whether a c.   If the amount involved exceeds P300,000 outside
suspensive condition has been fulfilled – then Metro Manila or exceeds P400,000 in Metro
the subject matter involved is one that is Manila in the following cases [B.P. 129, as
incapable of pecuniary estimation: In Olivarez amended by R.A. 7691]:
Realty v. Castillo [G.R. No. 196251 (2014)], the 1.   Actions in admiralty and maritime
action instituted in the trial court was one for the jurisdiction, where the amount refers to
cancellation of a contract to sell, and prior to the demand or claim [Sec. 19(3)]
institution of the action the defendant had already 2.   Matters of probate (testate or intestate),
proceeded to occupy the property involved. In this where the amount refers to gross value of
instance, the SC held that the action involved a estate [Sec. 19(4)]
subject matter that was incapable of pecuniary 3.   In all other cases where the amount refers to
estimation. The difference in the ruling of the SC the demand, exclusive of interest, damages
here and in Home Guaranty lies in that fact that in of whatever kind, attorney’s fees, litigation
Olivarez Realty, what the plaintiff had principally expenses, and costs [Sec. 19(8)]
sought was a determination that a suspensive
condition for the perfection of the contract had d.   All actions involving the contract of marriage and
not been fulfilled: “the trial court principally family relations [Sec. 19(5), B.P. 129, as amended
determined whether Olivarez Realty Corporation by R.A. 7691], and all civil actions and special
failed to pay installments of the property’s proceedings falling within exclusive original
purchase price as the parties agreed upon in the jurisdiction of Juvenile and Domestic Relations
deed of conditional sale. The principal nature of Court [Sec. 19(7), B.P. 129, as amended by R.A.
Castillo’s action, therefore, is incapable of 7691]
pecuniary estimation.”
Note: This jurisdiction is deemed modified by Sec.
See also: Heirs of Bautista v. Lindo [G.R. No. 5, R.A. 8369, the law establishing the Family
208232 (2014)], where an action to redeem a land Courts. However, in areas where there are no
subject of a free patent was characterized by the Family Courts, the cases within their jurisdiction
SC as one whose subject matter was incapable of shall be adjudicated by the RTC [Sec. 17, R.A.
pecuniary estimation since the reacquisition of the 8369; 1 Riano 147, 2014 Bantam Ed.]
land was merely incidental to and an offshoot of
the exercise of the right to redeem the land, e.   All civil actions and special proceedings falling
pursuant to Sec. 119 of CA 141. within exclusive original jurisdiction of the Court
of Agrarian Reform [Sec. 19(7), B.P. 129, as
amended by R.A. 7691]

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f.   All cases not within exclusive jurisdiction of any [Sec. 9(1), 21(2), B.P. 129; Sec. 5(5), Art. VIII,
court, tribunal, person, or body exercising judicial Constitution]
or quasi-judicial functions [Sec. 19(6), B.P. 129, as c.   With SC, CA and Sandiganbayan: petitions for writ
amended by R.A. 7691] This jurisdiction is often writs of amparo [Sec. 3, Rule on the Writ of
described as the ‘general’ jurisdiction of the RTC Amparo] and habeas data [Sec. 3, Rule on the Writ
making it a court of ‘general jurisdiction.’ [1 Riano of Habeas Data]
146, 2014 Bantam Ed.]
Appellate jurisdiction over cases decided by lower
g.   Intra-corporate controversies courts in their respective territorial jurisdictions,
1.   Cases involving devises or schemes employed except those made in the exercise of delegated
by or any acts, of board of directors, business jurisdiction, which are appealable in the same manner
associates, its officers or partnership, as decisions of the RTC [Sec. 34, B.P. 129, as amended]
amounting to fraud and misrepresentation
which may be detrimental to interest of public Special jurisdiction - SC may designate certain
and/or of stockholders, partners, members of branches of RTC to try exclusively criminal cases,
associations or organizations registered with juvenile and domestic relations cases, agrarian cases,
SEC urban land reform cases not falling within the
2.   Controversies arising out of intra-corporate or jurisdiction of any quasi-judicial body and other
partnership relations, between and among special cases in the interest of justice [Sec. 23, B.P.
stockholders, members or associates; 129]
between any or all of them and corporation,
partnership or association of which they are
stockholders, members or associates,
5.  F amily Courts
respectively; and between such corporation,
partnership or association and the state a.   Criminal cases where one or more accused is
insofar as it concerns their individual below 18 but not less than 9 years old or where
franchise or right to exist as such entity one or more victims was a minor at time of
3.   Controversies in election or appointments of commission of offense
directors, trustees, officers or managers of b.   Petitions for guardianship, custody of children
such corporations, partnerships or and habeas corpus in relation to children
associations c.   Petitions for adoption of children and revocation
4.   Petitions of corporations, partnerships or thereof
associations to be declared in state of d.   Complaints for annulment of marriage,
suspension of payments in cases where declaration of nullity of marriage and those
corporation, partnership of association relating to status and property relations of
possesses sufficient property to cover all its husband and wife or those living together under
debts but foresees impossibility of meeting different status and agreements, and petitions for
them when they respectively fall due or in dissolution of conjugal partnership of gains
cases where corporation, partnership or e.   Petitions for support and/or acknowledgment
association has no sufficient assets to cover f.   Summary judicial proceedings brought under the
its liabilities, but is under management of a provisions of Family Code
Rehabilitation Receiver or Management g.   Petitions for
Committee 1.   Declaration of status of children as
[Sec. 52, Securities and Regulations Code] abandoned, dependent or neglected children
2.   Voluntary or involuntary commitment of
h.   Petitions for declaratory relief [Sec. 1, Rule 63] children
3.   Suspension, termination or restoration of
Concurrent original jurisdiction parental authority and
a.   With SC in cases affecting ambassadors, public 4.   Other cases cognizable under P.D. 603, E.O.
ministers and consuls [Sec. 21(2), B.P. 129; Sec. 56, s. 1986, and other related laws
5(5), Art. VIII, Constitution] h.   Petitions for constitution of family home
b.   With SC and CA i.   Cases against minors cognizable under
1.   Petitions for certiorari, prohibition and Dangerous Drugs Act, as amended (now R.A.
mandamus against lower courts and bodies 9165)
2.   Petitions for quo warranto j.   Violations of R.A. 7610, or the “Special Protection
3.   Petitions for writs of habeas corpus of Children Against Child Abuse, Exploitation and
Discrimination Act” and

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k.   Cases of domestic violence against Women and

Children MTC decisions in cadastral and land registration cases
[Sec. 5, R.A. 8369] are appealable in the same manner as RTC decisions
[Sec. 34, B.P. 129, as amended by R.A. 7691]
6.  M etropolitan Trial Courts, 1st level courts
Municipal Trial Courts in 1.   Metropolitan Trial Court – in each metropolitan
area established by law [Sec. 25, B.P. 129],
Cities, Municipal Trial particularly Metro Manila [Sec. 27, B.P. 129]
Courts, Municipal Circuit 2.   Municipal Trial Courts in Cities – In every city not
part of a metropolitan area [Sec. 29, B.P. 129]
Trial Courts 3.   Municipal Circuit Trial Court – in each circuit
comprising such cities and municipalities grouped
Exclusive original jurisdiction together pursuant to law [Sec. 25, B.P. 129]
a.   Where the value of personal property, estate, or 4.   Municipal Trial Courts – in municipalities not
amount of demand does not exceed P300,000 comprised within a metropolitan area and a
outside Metro Manila or does not exceed municipal circuit [Sec. 30, B.P. 129]
P400,000 in Metro Manila, exclusive of interest,
damages of whatever kind, attorney’s fees,
litigation expenses, and costs, in the following
7.  Shari’a Courts
cases:
1.   Civil actions Exclusive original jurisdiction of Shari’a District
2.   Probate proceedings (testate or intestate) Courts
3.   Provisional remedies in proper cases a.   All cases involving custody, guardianship,
[Sec. 33(1), B.P. 129, as amended by R.A. 7691] legitimacy, paternity and filiation arising under
b.   Forcible entry and unlawful detainer (FEUD) the Code of Muslim Personal Laws;
Note: When defendant raises questions of b.   All cases involving disposition, distribution and
ownership in his pleadings and the question of settlement of estate of deceased Muslims,
possession cannot be resolved without deciding probate of wills, issuance of letters of
issue of ownership, the latter issue shall be administration of appointment administrators or
resolved only to determine the former issue [Sec. executors regardless of the nature or aggregate
33(2), B.P. 129, as amended by R.A. 7691] value of the property;
c.   All civil actions involving title to, or possession of, c.   Petitions for the declaration of absence and death
real property, or any interest therein where for the cancellation and correction of entries in the
assessed value of property or interest therein does Muslim Registries;
not exceed P20,000 outside Metro Manila, or d.   All actions arising from the customary contracts in
does not exceed P50,000 in Metro Manila [Sec. which the parties are Muslims, if they have not
33(3), B.P. 129, as amended by R.A. 7691] specified which law shall govern their relations;
d.   Inclusion and exclusion of voters [Sec. 49, and
Omnibus Election Code] e.   All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus and all other
Special jurisdiction over petition for writ of habeas auxiliary writs and processes in aid of its appellate
corpus OR application for bail in criminal cases in the jurisdiction
absence of all RTC judges in the province or city [Sec. [Art. 143(1), P.D. 1083]
35, B.P. 129]
Concurrent jurisdiction of Shari’a District Courts
st
Delegated jurisdiction of 1 level courts assigned by (concurrent with existing civil courts)
SC to hear and decide cadastral and land registration a.   Petitions of Muslim for the constitution of the
cases covering family home, change of name and commitment of
a.   Lots where there is no controversy or opposition an insane person to an asylum
b.   Contested lots the value of which does not b.   All other personal and legal actions not
exceed P100,000, the value is to be ascertained: mentioned in par. (d) of the immediately
1.   By the claimant’s affidavit preceding topic, wherein the parties involved are
2.   By agreement of the respective claimants, if Muslims
there are more than one; or
3.   From corresponding tax declaration of the Except those for forcible entry and unlawful
real property detainer, which shall fall under the exclusive

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

jurisdiction of the Municipal Circuit Court (now

MTC under B.P. 129, as amended by R.A. 7691]   Jurisdiction over Cases
c.   All special civil actions for interpleader or
declaratory relief wherein the parties are Muslims
Covered by The Revised
or the property involved belongs exclusively to
Muslims
Rules of Procedure for
[Art. 143(2), P.D. 1083] Small Claims Cases, The
Appellate jurisdiction of Shari’a District Courts Revised Rules on
Over all cases tried in Shari’a Circuit Courts within
their territorial jurisdiction [Art. 144, P.D. 1083] Summary Procedure, and
Exclusive original jurisdiction of Shari’a Circuit
Barangay Conciliation
Courts
a.   All cases involving offenses defined and punished Cases covered by Revised Rules of Procedure for
under P.D. 1083 Small Claims Cases
b.   All civil actions and proceedings between parties The Revised Rules shall govern the procedure in
who are Muslims or have been married in actions before the MeTCs, MTCCs, MTCs and MCTCs
accordance with Art. 13, P.D. 1083 involving for payment of money where the value of the claim
disputes relating to does not exceed PHP 200,000 exclusive of interest
1.   Marriage and costs [Sec. 2, A.M. No. 08-8-7-SC, February 1,
2.   Divorce recognized under P.D. 1083 2016]
3.   Betrothal or breach of contract to marry
4.   Customary dowry (mahr) Note: The limit has been raised to PHP 300,000, to
5.   Disposition and distribution of property upon take effect on August 1, 2018 [A.M. No. 08-8-7-SC,
divorce July 10, 2018].
6.   Maintenance and support, and consolatory
gifts (mut’a); and Applicability
7.   Restitution of marital rights All actions which are purely civil in nature, where the
c.   All cases involving disputes relative to communal claim or relief prayed for by the plaintiff is solely for
properties payment or reimbursement of sum of money
[Art. 155, P.D. 1083]
The claim or demand may be:
The Shari’a District Court or the Shari’a Circuit Court 1.   For money owed under a contract of lease, loan,
shall constitute an Agama Arbitration Council [Art. services, sale, or mortgage
160, P.D. 1083] in cases of divorce by talaq and tafwid 2.   For liquidated damages arising from contracts
[Art. 161, P.D. 1083] and subsequent marriages [Art. 3.   The enforcement of a barangay amicable
162, P.D. 1083] The Shari’a Circuit Court may also settlement or an arbitration award involving a
constitute a council to settle amicably cases involving money claim covered by this Rule pursuant to Sec.
offenses against customary law which can be settled 417 of the LGC
without formal trial [Art. 163, P.D. 1083] [Sec. 2, A.M. No. 08-8-7-SC, February 1, 2016]

Cases covered by Rules on Summary Procedure

1.   All cases of forcible entry and unlawful detainer
(FEUD), irrespective of the amount of damages or
unpaid rentals sought to be recovered

Attorney’s fees awarded shall not exceed PHP

20,000
2.   All other cases, except probate proceedings
where the total amount of the plaintiff‘s claim
does not exceed PHP 100,000 (outside Metro
Manila) or PHP 200,000 (in Metro Manila),
exclusive of interest and costs
[Sec. 1, Revised Rule on Summary Procedure, as
amended by A.M. No. 02-11-09-SC]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Cases covered by Barangay Conciliation precedent is a ground for a motion to dismiss under
The Lupon of each barangay shall have the authority Sec. 1(j), Rule 16 but the dismissal is without prejudice
to bring together the parties actually residing in the [Sec. 5, Rule 16]
same municipality or city for amicable settlement of
all disputes.

Except:
1.   Where one party is the government or any
subdivision or instrumentality thereof
2.   Where one party is a public officer or employee,
and the dispute relates to the performance of his
official functions
3.   Offenses punishable by imprisonment exceeding
one (1) year or a fine exceeding P5,000
4.   Offenses where there is no private offended party
5.   Where the dispute involves real properties located
in different cities or municipalities unless the
parties thereto agree to submit their differences
to amicable settlement by an appropriate lupon
6.   Disputes involving parties who actually reside in
barangays of different cities or municipalities,
except where such barangay units adjoin each
other and the parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon
7.   Such other classes of disputes which the
President may determine in the interest of justice
or upon the recommendation of the Secretary of
Justice
[Sec. 408, Local Government Code]
8.   Any complaint by or against corporations,
partnerships, or juridical entities, since only
individuals shall be parties to barangay
conciliation proceedings either as complainants
or respondents
9.   Disputes where urgent legal action is necessary to
prevent injustice from being committed or further
continued, specifically:
a.   A criminal case where the accused is under
police custody or detention
b.   A petition for habeas corpus by a person
illegally detained or deprived of his liberty or
one acting in his behalf
c.   Actions coupled with provisional remedies,
such as preliminary injunction, attachment,
replevin and support pendente lite
d.   Where the action may be barred by the
Statute of Limitations
10.   Labor disputes or controversies arising from
employer-employee relationship
11.   Where the dispute arises from the CARL
12.   Actions to annul judgment upon a compromise
which may be directly filed in court
[Supreme Court Administrative Circular No. 14-93]

Note: Barangay conciliation is a condition precedent

for filing a case. The failure to comply with a condition

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  Totality Rule
Where there are several claims or causes of actions
between the same or different parties, embodied in
the same complaint, the amount of the demand shall
be the totality of the claims in all the causes of
action, irrespective of whether the causes of action
arose out of the same or different transactions [Sec.
33[1], B.P. 129, as amended by R.A. 7691]

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III.   CIVIL PROCEDURE 2.  M eaning of Special Civil

Actions
  Actions One which is subject to the specific rules prescribed for
a special civil action but also governed by the rules for
An action is a formal demand of one's right in a court ordinary civil actions [Sec. 3(a), par. 2, Rule 1]
of justice in the manner prescribed by the court or by
the law. It is the method of applying legal remedies Rule 62 to Rule 71 provide for special civil actions.
according to definite established rules [Natcher vs However, despite having particular rules which govern
Court of Appeals, G.R. No. 133000 (2001)] the special civil actions, the rules for ordinary civil
action still apply.
A legal and formal demand of one’s right from another
person made and insisted upon in a court of justice. There are 10 special civil actions
The determinative operative act, which converts a a.   Interpleader - Rule 62
claim into an action, is its filing with a court of justice b.   Declaratory Relief and Similar Remedies - Rule 63
[1 Riano 212, 2014 Bantam Ed.] c.   Review of Judgments and Final Orders or
Resolutions of COMELEC and COA - Rule 64
In general: kinds of civil actions d.   Certiorari, Prohibition and Mandamus - Rule 65
1.   As to place e.   Quo warranto - Rule 66
a.   Transitory –One the venue of which is f.   Expropriation - Rule 67
dependent generally upon the residence of g.   Foreclosure of Real Estate Mortgage - Rule 68
the parties regardless of where the cause of h.   Partition - Rule 69
action arose. Example. Personal action. i.   Forcible Entry and Unlawful Detainer - Rule 70
b.   Local - One which is required by the Rules to j.   Contempt - Rule 71
be instituted in a particular place in the
absence of an agreement to the contrary.
Example: Real action 3.  Meaning of Criminal
[1 Regalado 24, 2010 Ed.]
2.   As to object
Actions
a.   Action in rem
b.   Action quasi in rem One by which the State prosecutes a person for an act
c.   Action in personam or omission punishable by law [Sec. 3(b), Rule 1]
3.   As to foundation
a.   Real 4.  C ivil Action v. Special
b.   Personal
Proceedings
1.   Meaning of Ordinary Civil Civil Action Special Proceeding
Actions One by which a party
sues another for the Remedy by which a
One which is governed by the rules for ordinary civil enforcement or party seeks to establish
actions [Sec. 3(a), par. 2, Rule 1] protection of a right, or a status, a right, or a
the prevention or particular fact [Sec.
Rules for Ordinary Civil Actions refer to Rule 2 (Cause redress of a wrong [Sec. 3(c), Rule 1]
of Action) until Rule 61 (Provisional Remedies). 3(a), par. 1, Rule 1]
•   General Rules on Ordinary Civil Action - Rule 2
to Rule 5 5.  P ersonal Actions and Real
•   Procedure in Regional Trial Courts - Rule 6 to
Rule 39 Actions
•   Appeals - Rule 40 to Rule 43
Why distinction is important
•   Procedure in the Court of Appeals - Rule 44 to
The distinction is important for purposes of
Rule 55
determining venue: The question whether or not
•   Procedure in the SC - Rule 56
venue has been properly laid depends to a great
•   Provisional Remedies - Rule 57 to Rule 61 extent on the kind of action (real or personal)

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presented by the Complaint [PICOP v. Samson, G.R. Local Action Transitory Action
No. L-30175 (1975)] Transitory action is one
Local action is one
which may be filed in
Real action which has to be filed in
the residence of the
It is an action affecting title to or possession of real the place where the
plaintiff or defendant,
property, or interest therein [See Sec. 1, Rule 4] property is located
at the option of the
[Sec.1, Rule 4]
plaintiff [Sec. 2, Rule 4]
Examples: partition or condemnation of, or foreclosure One that could be One that could be
of mortgage on, real property [Go v. United Coconut instituted in one prosecuted in any one
Planters Bank, G.R. No. 156187 (2004)] specific place [Manila of several places
Railroad v. Attorney- [Manila Railroad v.
A real action is ‘local,’ i.e. its venue depends upon the General, G.R. No. L- Attorney-General, G.R.
location of the property involved in the litigation [Sec. 6287 (1911)] No. L-6287 (1911)]
1, Rule 4; BPI v. Hontanosas, G.R. No. 157163 (2014)] Its venue depends upon
Venue depends upon
the residence of the
Not every action involving real property is a real the location of the
plaintiff or of the
action because the realty may only be incidental to property involved in the
defendant, at the
the subject matter of the suit litigation [BPI v.
option of the plaintiff
In the cases of Heirs of Bautista v. Lindo [G.R. No. Hontanosas, G.R. No.
[BPI v. Hontanosas, G.R.
208232 (2014)] and Olivarez Realty vs Castillo [G.R. 157163 (2014)]
No. 157163 (2014)]
No. 196251 (2014)], the SC held that the conveyance of
real property was only incidental to the determination Why distinction is important
of matters incapable of pecuniary estimation. The The determination of whether an action is local or
cases were deemed personal actions because the transitory is necessary to determine the proper venue
principal action or remedy sought does not involve of the action [Sec.1, Rule 4 in relation to Sec. 2, Rule 4]
title to or possession of real property. The case of Heirs
of Bautista involved a complaint to redeem a land Basis of distinction
subject of a free patent and the case of Olivarez If action is founded on privity of contract between
involved an action for rescission of contract involving parties, then the action is transitory [De la Cruz v. El
real property. Seminario de la Archidiocesis de Manila, G.R. No. L-
5402 (1911)]
Personal action
It refers to all other actions which does not affect title But if there is no privity of contract and the action is
to or possession of real property or interest therein are founded on privity of estate only, such as a covenant
personal action [Sec. 2, Rule 4] that runs with the land in the hands of remote
grantees, then the action is local and must be brought
Personal action is one brought for the recovery of in the place where the land lies [De la Cruz v. El
personal property, for the enforcement of some Seminario de la Archidiocesis de Manila, G.R. No. L-
contract or recovery of damages for its breach, or for 5402 (1911)]
the recovery of damages for the commission of an
injury to the person or property [Go v. United Coconut
Planters Bank, G.R. No. 156187 (2004)] 7.  Actions in rem, in
COMPARE the specific enumeration in the Go case to
personam, and quasi in
Sec. 2, Rule 4. rem
A personal action is ‘transitory,’ i.e. its venue depends Why distinction is important
upon the residence of the plaintiff or of the defendant, •   To determine the binding effect of a decision the
at the option of the plaintiff [Sec. 2, Rule 4; BPI v. court may render over a party, whether impleaded
Hontanosas, G.R. No. 157163 (2014)] or not [Paderanga v. Buissan, GR. No. 49475
(1993)]
6.  L ocal and Transitory •   To determine whether or not jurisdiction over the
person of the defendant is required, and the type
Actions of summons to be employed [1 Riano 228, 2014
Bantam Ed.]

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Actions in re, in personam, and quasi in rem

Action in rem Action in personam Action quasi in rem
One which seeks to enforce
personal rights and obligations Names a person as defendant,
Action against the thing or res
brought against the person. Its but its object is to subject that
itself, instead of against the
purpose is to impose, through person's interest in a property
person [Hernandez v. Rural
Definition the judgment of the court, to a corresponding lien or
Bank of Lucena, Inc. G.R. No. L-
some liability directly upon the obligation [Lucas vs Lucas, G.R.
29791, (1978)]
person of the defendant No. 190710 (2011)]
[Paderanga vs Buissan, GR. No.
49475 (1993)]
Not a prerequisite to confer Not a prerequisite to confer
Necessary for the court to
jurisdiction on the court, jurisdiction on the court,
Jurisdiction validly try and decide the case
provided that the latter has provided that the latter has
over the which can be made through
jurisdiction over the res [Lucas jurisdiction over the res [Lucas
person service of summons [Lucas vs
v. Lucas, G.R. No. 190710 vs Lucas, G.R. No. 190710
Lucas, G.R. No. 190710 (2011)]
(2011)] (2011)]
Jurisdiction over the res is Jurisdiction over the res is
acquired either (a) by the acquired either (a) by the
seizure of the property under seizure of the property under
legal process, whereby it is legal process, whereby it is
brought into actual custody of brought into actual custody of
How Jurisdiction is acquired through
the law, or (b) as a result of the the law, or (b) as a result of the
jurisdiction service of summons as
institution of legal institution of legal
is acquired provided in the Rule 14
proceedings, in which the proceedings, in which the
power of the court is power of the court is
recognized and made effective recognized and made effective
[Lucas v. Lucas, G.R. No. [Lucas vs Lucas, G.R. No.
190710 (2011)] 190710 (2011)]
Any judgment therein is
The decision is binding as Judgments therein are binding
Binding binding only upon the parties
against the whole world only upon the parties who
effect of properly impleaded
[Paderanga vs Buissan, G.R. joined in the action [Macasaet
decisions [Paderanga vs Buissan, GR. No.
No. 49475 (1993)] v. Co, G.R. No. 156759 (2013)]
49475 (1993)]
Petition for adoption,
Attachment, foreclosure of
annulment of marriage, or Action for a sum of money;
mortgage, action for partition
Examples correction of entries in the birth action for damages [1 Riano
and action for accounting [1
certificate [Lucas v. Lucas, G.R. 221, 2014 Bantam Ed.]
Riano 227, 2014 Bantam Ed.]
No. 190710 (2011)]

twice for same act or omission charged in the criminal

8.  I ndependent civil action action [Sec. 3, Rule 111]
An independent civil action may be brought in the “Physical injuries” under Art. 33 is used in the generic
cases provided by the CC sense, and not in reference to the offenses defined in
a.   Art. 32 (violation of constitutional rights by a the Revised Penal Code. It also includes
public officer or employee, or a private individual) consummated, frustrated, and attempted homicide
b.   Art. 33 (defamation, fraud, or physical injuries) and death arising from delict [Madeja v. Hon. Caro,
c.   Art. 34 (refusal or failure to render aid or G.R. No. L-51183 (1983)]
protection by a member of the police force); and
d.   Art. 2176 (quasi-delict)
[Sec. 3, Rule 111]

The action may be brought by the offended party. It

shall proceed independently of the criminal action and
shall require only a preponderance of evidence.
However, the offended party cannot recover damages

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

  Cause of Action has committed a delict

or wrong against him
Fortich, G.R. No. L-
29380 (1971)]
Right to sue as a
1.   Meaning of Cause of consequence of the The delict or wrong
delict
Action Whether the plaintiff
has a cause of action is
Act or omission by which a party violates a right of Whether such acts give
determined by the
another [Sec. 2, Rule 2] the plaintiff a right of
averments in the
action is determined by
pleading regarding the
Delict or wrongful act or omission committed by the substantive law
acts committed by the
defendant in violation of the primary right of the defendant
plaintiff [Danfoss Inc. v. Continental Cement [1 Regalado 21, 2010 Ed.]
Corporation, G.R. No. 143788 (2005)]
There can be no right of action without a cause of
Every ordinary civil action must be based on a cause of action being first established [1 Regalado 21, 2010 Ed.,
action [Sec. 1, Rule 2] see Español v. The Chairman and Members of the Board
of Administrators, Philippine Veterans Administration,
Bases of cause of action G.R. No. L-44616 (1985)]
A cause of action stems from the sources of
obligations under Art. 1156 of the CC For an instance where the right of action of a plaintiff
a.   Law, was suspended, see Ma-ao Sugar Central v. Barrios
b.   Contract, [G.R. No. L-1539 (1947)] where the SC held that an E.O.
c.   Quasi-contract, providing for a debt moratorium not only suspended
d.   Acts and omissions punishable by law and the execution of the judgment that the court could
e.   Quasi-delict render so far as it ordered the payment of debts and
[Sagrada Orden etc v. NACOCO, G.R. No. L-3756 other monetary obligations, but also suspended the
(1952)] filing of suit in the courts of justice for the enforcement
of the payment of debts and other monetary
Elements of a cause of action obligations, if timely objection is set up by the
a.   Plaintiff’s legal right defendant debtor.
b.   Defendant’s correlative obligation to respect
plaintiff’s right
c.   Defendant’s act/omission in violation of plaintiff’s 3.  Failure of the Complaint
right to State a Cause of Action
[Ma-ao Sugar Central v. Barrios, G.R. No. L-1539
(1947)] Ground for dismissal
A motion to dismiss may be made on the ground that
When cause of action must exist the pleading asserting the claim states no cause of
A cause of action must exist at the time of the filing of action [Sec. 1(g), Rule 16]
the complaint – else, the case shall be dismissible for
being a groundless suit [Swagman Hotels and Travel v. The cause of action must unmistakably be stated or
CA, G.R. No. 161135 (2005), reiterating Surigao Mine alleged in the complaint or all the elements required
Exploration v. Harris, G.R. No. L-45543 (1939)] by substantive law must clearly appear from a mere
reading of the complaint [1 Riano 240, 2014 Bantam
2.  R ight of Action v. Cause of Ed.]
Action The complaint must contain a concise statement of
the ultimate or essential facts constituting the
Right of Action Cause of Action plaintiff’s cause of action. The focus is on sufficiency,
The delict or wrongful not veracity, of the material allegations [Anchor
The remedial right or
act or omission Savings Bank v. Furigay, G.R. No. 191178 (2013)]
right to relief granted
committed by the
by law to a party to
defendant in violation
institute an action
of the primary rights of
against a person who
the plaintiff [Racoma v.

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Failure of the complaint to state a cause of action v. action, opposed to a failure of the complaint to
lack of cause of action state a cause of action.
Failure to state a cause of action and lack of cause of
action are really different from each other. On the one
hand, failure to state a cause of action refers to the
5.  S plitting a Single Cause of
insufficiency of the pleading, and is a ground for Action and its Effects
dismissal under Rule 16 of the ROC. On the other
hand, lack of cause [of] action refers to a situation The act of instituting two or more suits on the basis of
where the evidence does not prove the cause of action the same cause of action [Sec. 4, Rule 2]
alleged in the pleading [Macaslang v. Zamora, G.R.
No. 156375 (2011)] A party may not institute more than one suit for a
single cause of action [Sec. 3, Rule 2]
4.  T est of Sufficiency of
Splitting a single cause of action is the act of dividing
Cause of Action a single or indivisible cause of action into several parts
or claims and instituting two or more actions upon
The test of sufficiency of a cause of action rests on them. A single cause of action or entire claim or
whether, hypothetically admitting the facts alleged in demand cannot be split up or divided in order to be
the complaint to be true, the court can render a valid made the subject of two or more different actions [Chu
judgment upon the same, in accordance with the v. Sps. Cunanan, G.R. No. 156185 (2011)]
prayer in the complaint [Heirs of Maramag v.
Maramag, G.R. No. 181132 (2009)] Test to determine a “single” cause of action
The tests to ascertain whether two suits relate to a
However, there is no hypothetical admission of the single or common cause of action are:
veracity of the allegations if a.   Whether the same evidence would support and
a.   The falsity of the allegations is subject to judicial sustain both causes of action (Same Evidence
notice; Test)
b.   The allegations are legally impossible; b.   Whether the defenses in one case may be used to
c.   The allegations refer to facts which are substantiate the complaint in the other
inadmissible in evidence; c.   Whether the cause of action in the second case
d.   By the record or document in the pleading, the existed at the time of filing of the first complaint
allegations appear unfounded; or [Umale v. Canoga Park Development Corp., G.R. No.
e.   There is evidence which has been presented to the 167246 (2011)]
court by stipulation of the parties or in the course
of hearings related to the case For a single cause of action or violation of a right, the
[Heirs of Maramag v. Maramag, G.R. No. 181132 plaintiff may be entitled to several reliefs. It is the filing
(2009)] of separate complaints for these several reliefs that
constitutes splitting up of the cause of action which is
How to determine existence of cause of action proscribed by the rule against the splitting of a cause
General rule: Determination shall be based only on of action [City of Bacolod v. SM Brewery, G.R. No. L-
facts alleged in the complaint and from no other, and 25134 (1969)]
the court cannot consider other matters aliunde
[Manaloto v. Veloso III, G.R. No. 171635 (2010)] Amendment as remedy if other reliefs not included
in the complaint
Exception: Instances when the SC considered matters In the event that a plaintiff has omitted to include in
aside from the facts alleged in the complaint, such as: the complaint one or several other reliefs to which he
a.   Documents attached to the complaint [Agrarian may be entitled, the proper remedy of the plaintiff is
Reform Beneficiaries Association v. Nicolas, G.R. not to institute another or several other actions –
No. 168394 (2008)] – this case refers to instead he should move to amend the complaint to
actionable documents which by express provision include the omitted relief or reliefs [Bayang v. CA, G.R.
of the ROC are deemed part of the pleading. No. L-53564 (1987)]
b.   Appended annexes, other pleadings, and
admissions on record [Zepeda v. China Banking Dismissal as effect of splitting of cause of action
Corp., G.R. No. 172175 (2006)] – the jurisprudence The filing of one or a judgment upon the merits in any
establishing this supposed exception ultimately one is available as a ground for the dismissal of the
points to dismissals based on a lack of a cause of others [Sec. 4, Rule 2]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Defendant’s remedy c.   Where causes of action are between the same

File a motion to dismiss under Rule 16 on the ground parties but pertain to different venues or
that jurisdictions, the joinder may be allowed in the
a.   There is another action pending between the RTC provided one of the causes of action are
same parties for the same cause [Sec. 1(e), Rule within that court’s jurisdiction and venue lies
16]; or therein
b.   The cause of action is barred by a prior judgment d.   Where the claims in all the causes of action are
[Sec. 1(f), Rule 16] principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction
Rationale (“totality rule”)
a.   Prevent repeated litigation between the same [Sec. 5, Rule 2]
parties in regard to the same subject or
controversy Misjoinder of causes of action
b.   Protect the defendant from unnecessary vexation. There is misjoinder of causes of action when
Nemo debet vexare pro una et eadem causa (No conditions for joinder under Section 5, Rule 2 are not
man shall be twice vexed for one and the same met [Perez v. Hermano, G.R. No. 147417 (2005)]
cause)
c.   Avoid the costs and expenses incident to Misjoinder not ground for dismissal
numerous suits Misjoinder is not a ground for dismissal of an action
[City of Bacolod v. SM Brewery, G.R. No. L-25134 [Sec. 6, Rule 2]
(1969)]
Effect of misjoinder
An erroneously joined cause of action may, on motion
6.  J oinder and Misjoinder of of a party or on the initiative of the court, be severed
Causes of Action and proceeded with separately [Sec. 6, Rule 2]

Joinder of causes of action If there is no objection to the improper joinder or the

The assertion of as many causes of action as a party court did not motu proprio direct a severance, then
may have against another in one pleading alone [Sec. there exists no bar in the simultaneous adjudication of
5, Rule 2] all the erroneously joined causes of action, as long as
the court trying the case has jurisdiction over all of the
It is the process of uniting two or more demands or causes of action therein notwithstanding the
rights of action in one action [1 Riano 258-259, 2014 misjoinder [Ada v. Baylon, G.R. No. 182435 (2012)]
Bantam Ed.]
If the court has no jurisdiction to try the misjoined
Ratio action, then it must be severed. Otherwise,
To avoid a multiplicity of suits and to expedite adjudication rendered by the court with respect to it
disposition of litigation at minimum cost [Ada v. would be a nullity [Ada v. Baylon, G.R. No. 182435
Baylon, G.R. No. 182435 (2012)] (2012)]

Rule merely permissive

The rule however is purely permissive as there is no
positive provision of law or any rule of jurisprudence
which compels a party to join all his causes of action
and bring them at one and the same time [Nabus v.
CA, G.R. No. 91670 (1991)]

There is no sanction against non-joinder of separate

causes of action since a plaintiff needs only a single
cause of action to maintain an action [1 Regalado 83,
2010 Ed.]

Requisites
a.   The party joining the causes of action shall comply
with the rules on joinder of parties
b.   The joinder shall not include special civil actions
or actions governed by special rules

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  Parties to Civil Actions settlement and closure of its affairs [Sec. 122,
Corporation Code]
[1 Riano 264, 2014 Bantam Ed.]
Plaintiff
May refer to the claiming party, counter-claimant, Legal capacity to sue
cross-claimant, or third-party plaintiff [Sec. 1, Rule 3] Facts showing the capacity of a party to sue or be sued,
or the authority of a party to sue or be sued in a
Defendant representative capacity, or the legal existence of an
May refer to the original defending party, the organized association of persons that is made a party,
defendant in a counterclaim, the cross-defendant, or must be averred [Sec. 4, Rule 8]
the third (fourth, etc.)-party defendant [Sec. 1, Rule 3]

Also includes an unwilling co-plaintiff, any party who 1.   Real Parties in Interest;
should be joined as plaintiff but whose consent cannot Indispensable Parties;
be obtained [Sec. 10, Rule 3]
Representatives as
Who may be parties
1.   Natural persons
Parties; Necessary
2.   Juridical persons Parties; Indigent Parties;
3.   Entities authorized by law
[Sec. 1, Rule 3] Alternative Defendants
Judicial persons a.   Real Parties in Interest
1.   The State and its political subdivisions
2.   Other corporations, institutions and entities for The party who stands to be benefited or injured by the
public interest or public purpose, created by law, judgment in the suit, or the party entitled to the avails
and of the suit [Sec. 2, Rule 3]
3.   Corporations, partnerships, and associations for
private interest or purpose to which the law grants Definition of interest
a judicial personality, separate and distinct from Material interest or an interest in issue to be affected
that of each shareholder, partner, or member by the decree or judgment of the case, as
[Art. 44, Civil Code] distinguished from mere curiosity about the question
involved [Ang v. Sps. Ang, G.R. No. 186993 (2012)]
Entities authorized by law
1.   A corporation by estoppel is precluded from Nature of interest
denying its existence, and the members are liable The interest must be real, which a present and
as general partners [Sec. 21, Corporation Code] substantial interest as distinguished from a mere
2.   A partnership with capital of at least P3,000 expectancy or a future, contingent, subordinate, or
which fails to comply with the registration consequential interest [Rayo v. Metrobank, G.R. No.
requirements is liable as a partnership to third 165142 (2007)]
persons [Arts. 1768, 1772, Civil Code]
3.   The estate of a deceased person is a juridical It should be material and direct, as distinguished
entity that has a personality of its own [Nazareno from a mere incidental interest [Mayor Rhustam
v. C.A., G.R. No. 138842 (2000), citing Limjoco v. Dagadag v. Tongnawa, G.R. No. 161166-67 (2005)]
Intestate Estate of Fragrante, G.R. No. L-770
(1948)] Why necessary to determine the real party in interest
4.   A legitimate labor union may sue and be sued in General rule: Every action must be prosecuted or
its registered name [Art. 251(e), Labor Code] defended in the name of the real party in interest [Sec.
5.   The Roman Catholic Church may be a party; as to 2, Rule 3]
its properties, the Archbishop or diocese to which
they belong may be a party [Barlin v. Ramirez, G.R. Exception: Unless otherwise provided by law or the
No. 2832 (1906); Versoza v. Fernandez, G.R. No. Rules [Sec. 2, Rule 3]
32276 (1930)]
6.   A dissolved corporation may prosecute and Spouses as parties
defend suits by or against it provided that the suits General rule: Husband and wife shall sue and be sued
(i) occur within three (3) years after its dissolution, jointly
and (ii) the suits are in connection with the

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Exception: As provided by law Agent acting on his own name and for benefit of
[Sec. 4, Rule 3] undisclosed principal
General rule: An agent acting in his own name and for
This is an illustration of joinder of pro forma parties the benefit of an undisclosed principal may sue or be
required by the Rules. The propriety of suits by or sued without joining the principal
against the spouses should now take into account the
pertinent provisions of the Family Code [1 Regalado Exception: When the contract involves things
90, 2010 Ed.] belonging to the principal [Sec. 3, Rule 3]

Failure to name a real party in interest Minor or incompetent person as party

If the suit is not brought in the name of or against the A minor or a person alleged to be incompetent may
real party-in-interest, a Motion to Dismiss may be filed sue or be sued, with the assistance of his father,
on the ground that the complaint “states no cause of mother, guardian, or if he has none, a guardian ad
action.” [Balagtas v. CA, G.R. No. 109073 (1999)] litem [Sec. 5, Rule 3]

Remedies
1.   Amendment of pleadings [Alonso v. Villamor, G.R.
d.   Necessary Parties
No. L-2352 (1910)]; or
2.   Complaint may be deemed amended to include Not an indispensable party but ought to be joined as a
the real party-in-interest [Balquidra v. CFI Capiz, party if complete relief is to be accorded as to those
G.R. No. L-40490 (1977)] already parties, or for a complete determination or
settlement of the claim subject of the action [Sec. 8,
When real party-in-interest bound despite not being Rule 3]
formally impleaded
As an exception, the real litigant may be held bound Indispensable Parties Necessary Parties
as a party even if not formally impleaded provided he Must be joined under Should be joined
had his day in court [Albert v. University Publishing Co., any and all conditions whenever possible
G.R. No. L-9300 (1958)] [Borlasa v. Polistico, [Borlasa v. Polistico,
G.R. No. 22909 (1925)] G.R. No. 22909 (1925)]
Presence is not
b.   Indispensable Parties mandatory because his
interest is separable
A real party-in-interest without whom no final from that of the
determination can be had of an action [Sec. 7, Rule 3] Presence is mandatory,
indispensable party. He
he must be joined
has to be joined
General rule: joinder of parties is permissive [Sec. 6, because the court
whenever possible to
Rule 3] cannot proceed without
afford complete relief to
him [1 Riano 281, 2014
those who are already
Exception: joinder of a party becomes compulsory Bantam Ed.]
parties and to avoid
when the one involved is an indispensable party [Sec. multiple litigations [1
7, Rule 3] Riano 281, 2014
Bantam Ed.]
c.   Representatives as Parties Final decree can be had
in a case even without a
A representative may be a trustee of an express trust, necessary party
a guardian, an executor or administrator, or a party because his interests
authorized by law or the ROC [Sec. 3, Rule 3] are separable from the
interest litigated in the
Beneficiary to be included in the title of the case case [Chua v. Torres,
Where the action is allowed to be prosecuted or G.R. No. 151900
defended by a representative or someone acting in a (2005); Seno v.
fiduciary capacity, the beneficiary shall be included in Mangubat, G.R. No. L-
the title of the case and shall be deemed to be the real 44339 (1987)]
party in interest [Sec. 3, Rule 3]

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e.   Indigent Parties When authority to litigate as indigent litigant a

matter of right
Definition When an application to litigate as an indigent litigant
One who has no money or property sufficient and is filed, the court shall scrutinize the affidavits and
available for food, shelter, and basic necessities [Sec. supporting documents to determine if the applicant
21, Rule 3] complies with the standards prescribed in Sec. 19,
Rule 141. If so, the authority to litigate as indigent
COMPARE WITH: litigant is automatically granted and the grant is a
1.   Indigent litigants whose gross income and that of matter of right [Sps. Algura v. City of Naga, G.R. No.
their immediate family do not exceed an amount 150135 (2006)]
double the monthly minimum wage of an
employee, and who does not own real property When requirement under Sec. 19, Rule 141 not met
with a fair market value of more than However, if the trial court finds that one or both
PHP300,000 shall be exempt from the payment requirements have not been met, then it would set a
of legal fees. hearing to enable the applicant to prove that the
2.   The legal fees shall be a lien on any judgment applicant complies with Sec. 21, par. 1, Rule 3. The
rendered in the case favorably to the indigent adverse party may adduce countervailing evidence.
litigant, unless the court otherwise provides The trial court will then rule on the application.
3.   To be entitled to the exemption herein provided,
the litigant shall execute an affidavit that he and In addition, Sec. 21, Rule 3 also provides that the
his immediate family do not earn a gross income adverse party may later still contest the grant of such
abovementioned, nor they own any real property authority at any time before judgment is rendered by
with the assessed value aforementioned, the trial court. If the court determines after hearing,
supported by an affidavit of a disinterested person that the party declared as an indigent is in fact not, the
attesting to the truth of the litigant’s affidavit. proper docket and other lawful fees shall be assessed
[Sec. 19, Rule 141] and collected by the clerk of court. If payment is not
made within the time fixed by the court, execution
Benefits to indigent parties shall issue or the payment of prescribed fees shall be
1.   Include an exemption from payment of docket made, without prejudice to such other sanctions as the
and other lawful fees, and of transcripts of court may impose [Sps. Algura v. City of Naga, G.R. No.
stenographic notes which the court may order to 150135 (2006)]
be furnished him
2.   Amount of the docket and other lawful fees which Summary of rules for indigent litigants
the indigent was exempted from paying shall be a If the applicant for exemption meets the salary and
lien on any judgment rendered in the case property requirements under Sec. 19 of Rule 141, then
favorable to the indigent, unless the court the grant of the application is mandatory.
otherwise provides
[Sec. 3, Rule 21] On the other hand, when the application does not
satisfy one or both requirements, then the application
Consequence if party not actually indigent should not be denied outright; instead, the court
If the party is not actually indigent under this Rule, the should apply the "indigency test" under Sec. 21, Rule
proper docket and other lawful fees shall be assessed 3 and use its sound discretion in determining the
and collected by the clerk of court. If payment is not merits of the prayer for exemption [Sps. Algura v. City
made within the time fixed by the court, execution of Naga, G.R. No. 150135 (2006)]
shall issue or the payment thereof, without prejudice
to such other sanctions as the court may impose [Sec. f.   Alternative Defendants
3, Rule 21]
Where the plaintiff is uncertain against whom of
COMPARE WITH “indigent litigants”: Any falsity in several persons he is entitled to relief, he may join any
the affidavit of a litigant or a disinterested party shall or all of them in the alternative, although a right to
be sufficient cause to dismiss the complaint or action relief against one may be inconsistent with a right to
or to strike out the pleading of that party, without relief against the other [Sec. 13, Rule 3]
prejudice to whatever criminal liability may have been
incurred [Sec. 18, Rule 141]

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3.   Such joinder is not otherwise proscribed by the

2.  C ompulsory and provisions of the ROC on jurisdiction and venue
Permissive Joinder of [1 Regalado 91, 2010 Ed.]
Parties Notes:
1.   Compare to joinder of causes of action where it is
a.   Compulsory Joinder enough if the causes of action arise out of the
same contract, as there is no need for a common
Parties in interest without whom no final question of fact or law
determination can be had of an action (i.e. 2.   A party may in one pleading assert, in the
indispensable parties) shall be joined either as alternative or otherwise, as many causes of action
plaintiffs or defendants [Sec. 7, Rule 3] as he may have against an opposing party. One of
the conditions for such joinder of causes of action
Effect of non-joinder of indispensable parties is that the party joining the causes of action shall
The absence of an indispensable party renders all comply with the rules on joinder of parties [Sec. 5,
subsequent actions of the trial court null and void for Rule 2]
want of authority to act, not only as to the absent
parties but even as to those present [Moldes v. 3.  Misjoinder and Non-
Villanueva, G.R. No. 161955 (2012)]
Joinder of Parties
Effect of non-joinder of necessary parties
Non-joinder of a necessary party does not prevent the Misjoinder
court from proceeding in the action. The judgment When one is made a party to the action although he
rendered therein shall not prejudice the rights of such should not be impleaded [1 Riano 285, 2014 Bantam
necessary party [Sec. 9, par. 3, Rule 3] Ed.]

Remedy in case of non-joinder of necessary parties Non-joinder

When a pleading asserting a claim omits to join a When one is supposed to be joined but is not
necessary party, the pleader must: impleaded in the action [1 Riano 285, 2014 Bantam
1.   Set forth the name of the necessary party, if Ed.]
known, and
2.   State the reason why he is omitted Effect of misjoinder or non-joinder of parties
[Sec. 9, par. 1, Rule 3] Neither misjoinder nor non-joinder of parties is a
ground for dismissal of an action [Sec. 11, Rule 3]
b.   Permissive Joinder Effect of misjoinder or non-joinder of parties; when
ordered by the court
All persons in whom or against whom any right to Non-joinder of an indispensable party is not a ground
relief in respect to or arising out of the same for outright dismissal of the action. If the plaintiff
transaction or series of transactions is alleged to exist, refused to implead an indispensable party despite
whether jointly, severally, or in the alternative, may order of the court, that court may dismiss the
except as otherwise provided in these Rules, join as complaint for the plaintiff’s failure to comply with
plaintiffs or be joined as defendants in one complaint, the order. [Pamplona Plantation v. Tinghil, G.R. No.
where any question of law or fact common to all such 159121 (2005)]
plaintiffs or to all such defendants may arise in the
action; but the court may make such orders as may be Should the court find the reason for the non-joinder of
just to prevent any plaintiff or defendant from being a necessary party unmeritorious, it may order the
embarrassed or put to expense in connection with any inclusion of such necessary party, if jurisdiction over
proceedings in which he may have no interest [Sec. 6, his person may be obtained. Failure to comply with
Rule 3] such order without justifiable cause shall be deemed a
waiver of the claim against such party [Sec. 9, pars.
Requisites 1-2, Rule 3]
1.   The right to relief arises out of the same
transaction or series of transactions Parties may be dropped or added by order of the court
2.   There is a question of law or fact common to all on motion of any party or on its own initiative at any
the plaintiffs or defendants, and stage of the action and on such terms as are just [Sec.
11, Rule 3]

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Objections to defects in parties Corporation Code, the directors or officers, as provided

Objections should be made at the earliest opportunity. under the by-laws, have the right to decide whether or
At the moment such defect becomes apparent, a not a corporation should sue. Since these directors or
motion to strike the names of the parties must be officers will never be willing to sue themselves, or
made. Thus, objections to misjoinder cannot be raised impugn their wrongful or fraudulent decisions,
for the first time on appeal [Lapanday Agricultural & stockholders are permitted by law to bring an action in
Development Corporation v. Estita, G.R. No. 162109 the name of the corporation to hold these directors
(2005)] and officers accountable. In derivative suits, the real
party in interest is the corporation, while the
stockholder is a mere nominal party [Ang v. Ang, G.R.
4.  C lass Suits No. 201675 (2013)]
Requisites In a derivative action, the real party in interest is the
a.   Subject matter of the controversy is one of corporation itself, not the shareholders who actually
common or general interest to many persons instituted it [Lim v. Lim Yu, G.R. No. 138343 (2001)]
b.   The persons are so numerous that it is
impracticable to join them all as parties Only general interest in the subject matter of
c.   The court finds a number of them sufficiently litigation required
numerous and representative of the class as to A class suit does not require a commonality of interest
fully protect the interests of all concerned in the questions involved in the suit. What is required
d.   The representative sues or defends for the benefit by the Rules is a common or general interest in the
of all. subject matter of the litigation [Mathay v. Consolidated
[Sec. 12, Rule 3] Bank & Trust Company, G.R. No. L-23136 (1974)]
There is no class suit in an action filed by associations
of sugar planters to recover damages in behalf of 5.  S uits Against Entities
individual planters for an allegedly libelous article in
an international magazine. There is no common or
Without Juridical
general interest in reputation of a specific individual. Personality
Each of the sugar planters has a separate and distinct
reputation in the community not shared by the others Requisites
[Newsweek, Inc. v. Intermediate Appellate Court, G.R. a.   There are 2 or more persons not organized as a
No. 63559 (1986)] juridical entity
b.   They enter into a transaction
Right to intervene [Sec. 15, Rule 3]
In a class suit, any party in interest shall have the right
to intervene to protect his individual interest [Sec. 12, Persons associated in an entity without juridical
Rule 3] personality may be sued under the name by which they
are generally or commonly known [Sec. 15, Rule 3]
No dismissal upon the instance of plaintiff or due to
compromise Note: The authority to be a party under Sec. 15, Rule 3
A class suit shall not be dismissed or compromised is confined only to being a defendant and not as a
without the approval of the court [Sec. 2, Rule 17] plaintiff. This is evident from the words, “they may be
used” [1 Riano 265, 2014 Bantam Ed.]
Taxpayer’s suit or derivative suit is in the nature of
class suit The service of summons may be effected upon all the
A taxpayer's suit or a stockholder's derivative suit is in defendants by serving upon any of them, or upon the
the nature of a class suit, although subject to the other person in charge of the office or place of business
requisites of the corresponding governing law maintained under such name [Sec. 8, Rule 14]
especially on the issue of locus standi [1 Regalado 99,
2010 Ed.]
6.  E ffect of Death of Party
Derivative suit
A derivative suit is an action brought by a stockholder
Litigant
on behalf of the corporation to enforce corporate Duty of counsel upon death of client
rights against the corporation’s directors, officers or a.   Inform court of such fact within 30 days after the
other insiders. Under Sections 23 and 36 of the death;

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

b.   Give the name and address of the legal the substitute party [Ferreria v Vda de Gonzales, G.R.
representative No. L-11567 (1986)]
[Sec. 16, Rule 3]
Rule in case of death or separation of party who is a
Effect of failure to comply public officer
Failure to comply is a ground for disciplinary action The action may be continued or maintained by or
[Sec. 16, Rule 3] against his successor [Sec. 17, Rule 3]

Action of court upon notice of death Requisites:

Upon receipt of notice, the court shall determine if a.   A public officer is a party to an action in his official
claim is extinguished by such death. capacity
a.   Claim does not survive: substitution would not be b.   During the pendency of the action, he dies,
ordered resigns, or otherwise ceases to hold office
b.   Claim survives: the court shall order the legal c.   Within 30 days after the successor takes office or
representative of the deceased to appear and be such time as may be granted by the court, any
substituted for him within 30 days [Sec. 16, Rule party shows to the satisfaction of the court, that
3] (i)   there is a substantial need for continuing or
[1 Riano 286, 2014 Bantam Ed., suggesting Aguas v. maintaining such action; and
Llemos, G.R. No. L-18107 (1962)] (ii)   the successor adopts or continues his
predecessor’s action, or threatens to do so
Survival of action d.   Before a substitution is made, the party or officer
Survival depends on the nature of the action and the to be affected shall be given reasonable notice of
damage sought. the application therefor and accorded an
a.   Causes of action that survive opportunity to be heard UNLESS he expressly
1.   The wrong complained of affects primarily assents thereto
and principally property and property rights [Sec. 17, Rule 3]
2.   Injuries to the person are merely incidental
[Cruz v. Cruz, G.R. No. 173292 (2010)] Action on contractual money claims
3.   E.g. Actions to recover real and personal Shall not be dismissed but shall instead be allowed to
property from the estate; actions to enforce a continue until entry of final judgment [Sec. 20, Rule 3]
lien thereon; and actions to recover damages
for an injury to person or property [Sec. 1, Rule Requisites
88; 1 Riano 289, 2014 Bantam Ed., citing a.   Action is for recovery of money
Aguas v. Llemos, G.R. No. L-18107 (1962)] b.   The claim arose from express or implied contract
b.   causes of action that do not survive c.   Defendant dies before the entry of final judgment
1.   The injury complained of is personal to the in the court in which the action was pending
person [Sec. 20, Rule 3]
2.   Property and property rights affected are
incidental Effect
[Cruz v. Cruz, G.R. No. 173292 (2010)] Since the action survives the decedent’s death,
3.   E.g. Action for support, annulment of substitution of the defendant shall be done following
marriage, legal separation [1 Riano 291, 2014 the procedure prescribed by Sec. 16, Rule 3. If the
Bantam Ed.] plaintiff obtains a favorable judgment, said judgment
shall be enforced following the procedure provided for
Court may order the opposing party, within a specific in the ROC for prosecuting claims against the estate of
time, to procure the appointment of an administrator a deceased person [Sec. 20, Rule 3] Because of the
or executor of the estate in the ff. cases rule mandating compliance with rule for prosecuting
a.   No legal representative is named; or claims against the estate of a deceased person [Sec.
b.   The one so named fails to appear within the 20, Rule 3], the prevailing plaintiff is not supposed to
specified period. file a motion for the issuance of an order and writ of
[Sec. 16, Rule 3] execution of the judgment [1 Riano 201, 2014 Bantam
Ed.]
Summon to the substitute not necessary
The substitute defendant need not be summoned. The Incompetency or incapacity
order of substitution shall be served upon the parties If a party becomes incompetent or incapacitated, the
substituted for the court to acquire jurisdiction over court, upon motion with notice, may allow the action
to be continued by or against the incompetent or

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

incapacitated person assisted by his legal guardian or

guardian ad litem [Sec. 18, Rule 3]   Venue
Note: The party becomes incapacitated or Procedural matter; not jurisdictional
incompetent during the pendency of the action [1 Venue is related only to the place of trial or the
Riano 292, 2014 Bantam Ed., citing Sec. 18, Rule 3] geographical location in which an action or
proceeding should be brought and does not equate to
Transfer of interest the jurisdiction of the court [Spouses Mendiola v. CA, G.
The action may be continue by or against the original R. No. 159746 (2012)]
party, unless the court upon motion directs the person
to whom the interest is transferred to be substituted in It is a procedural, not a jurisdictional matter [Phil.
the action or joined with the original party [Sec. 19, Banking v. Tensuan, G.R. No. 104649 (1994)]
Rule 3]
Choosing the venue of an action is not left entirely to a
plaintiff’s caprice; the matter is regulated by the ROC
7.  Distinction between Real [Ang v. Sps. Ang, G.R. No. 186993 (2012)]
Party in Interest and locus
On dismissal; motion to dismiss necessary;
standi exception
A motu propio dismissal based on improper venue is
Locus standi is defined as "a right of appearance in a patently incorrect [Sec. 1, Rule 9; Dolot v. Paje, G.R. No.
court of justice on a given question." In private suits, 199199 (2013)]
standing is governed by the "real-parties-in interest"
rule as contained in Sec. 2, Rule 3, which provides that Unless and until the defendant objects to the venue in
"every action must be prosecuted or defended in the a motion to dismiss, the venue cannot truly be said to
name of the real party in interest." Accordingly, the have been improperly laid because the venue,
"real-party-in interest" is "the party who stands to be although technically wrong, may be acceptable to the
benefited or injured by the judgment in the suit or the parties for whose convenience the rules of venue had
party entitled to the avails of the suit.” [David v. been laid [Dacuycoy v. IAC, G.R. No. 74854 (1991)]
Macapagal-Arroyo, G.R. No. 171396 (2006)]
However, the court may effect a motu propio dismissal
In public suits in this jurisdiction, the SC has adopted for improper venue, inter alia, in actions covered by the
the “direct injury test” to determine locus standi in Rules on Summary Procedure [Sec. 4], Rule of
public suits [Planters Products v. Fertiphil, G.R. No. Procedure for Small Claims cases [Sec. 9], and in
166006 (2008)] ejectment cases [Sec. 5, Rule 70]

1.   Venue v. Jurisdiction
Venue Jurisdiction
Place where the case is Authority to hear and
to be heard or tried determine a case
[Nocum v. Tan, G.R. No. [Nocum v. Tan, G.R. No.
145022 (2005)] 145022 (2005)]
Procedural [Nocum v. Substantive [Nocum v.
Tan, G.R. No. 145022 Tan, G.R. No. 145022
(2005)] (2005)]
Establishes a relation
Establishes a relation
between plaintiff and
between the court and
defendant, or petitioner
the subject matter
and respondent [Nocum
[Nocum v. Tan, G.R. No.
v. Tan, G.R. No. 145022
145022 (2005)]
(2005)]
Fixed by law and
May be changed by the
cannot be conferred by
written agreement of
the act or agreement of
the parties [Nocum v.
the parties [Nocum v.

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Tan, G.R. No. 145022 Tan, G.R. No. 145022 separate actions should be laid in the [court] of the
(2005)] (2005)] province wherein each parcel of land is situated [1
The court may dismiss Regalado 118, 2010 Ed., citing Mijares v. Piccio, G.R.
The court may not an action motu proporio No. L-10458 (1957)]
dismiss an action motu in case of lack of
proporio for improper
venue [Rudolf Lietz
jurisdiction over the
subject matter [Rudolf
3.  Venue of Personal Actions
Holdings, Inc. v. Registry Lietz Holdings, Inc. v.
All other actions may be commenced and tried, at the
of Deeds of Parañaque Registry of Deeds of
plaintiff’s election
City, G.R. No. G.R. No. Parañaque City, G.R.
a.   Where the plaintiff or any of the principal plaintiffs
133240 (2000)] No. G.R. No. 133240
resides, or
(2000)]
b.   Where the defendant or any of the principal
Jurisdiction over the
defendants resides, or
The objection to an subject matter may be
c.   In case of a non-resident defendant, where he
improper venue must raised at any stage of
may be found.
be raised either in a the proceedings since it
[Sec. 2, Rule 4]
motion to dismiss or in is conferred by law,
the answer because of although a party may
The plaintiff or the defendant must be residents of the
Sec. 1, Rule 9 (defenses be barred from raising it
place where the action has been instituted at the time
and objections not on the ground of
the action is commenced [Ang v. Sps. Ang, G.R. No.
pleaded are deemed estoppel [La’o v.
186993 (2012)]
waived) Republic, G.R. No.
160719 (2006)]
Definition of residence
[1 Riano 196, 2014 Bantam Ed.] The residence of a person is his personal, actual or
physical habitation or his actual residence or place of
Venue is procedural, not jurisdictional, and hence may abode, which may not necessarily be his legal
be waived. It is meant to provide convenience to the residence or domicile provided he resides therein with
parties, rather than restrict their access to the courts continuity and consistency [Boleyley v. Villanueva, G.R.
as it relates to the place of trial [Heirs of Lopez v. De No. 128734 (1999)]
Castro, G.R. No. 112905 (2000), cited in 1 Riano 196,
2014 Bantam Ed.] A corporation cannot be allowed to file personal
actions in a place other than its principal place of
2.  V enue of real actions business unless such place is also the residence of a
co-plaintiff or defendant [Davao Light v. CA, G.R. No.
a.   Real actions shall be commenced and tried in the 111685 (2001)]
proper court which has jurisdiction over the area
wherein the real property involved, or a portion
thereof is situated.
4.  V enue of Actions Against
b.   Forcible entry and detainer actions shall be Non-Residents
commenced and tried in the municipal court of
the municipality or city wherein the real property Non-resident found in the Philippines
involved, or a portion thereof, is situated. a.   Personal action: where the nonresident
[Sec. 1, Rule 4] defendant may be found, as authorized by Sec. 2,
Rule 4, but with an additional alternative venue,
Where the subject-matter of the action involves i.e., the residence of any of the principal plaintiffs,
various parcels of land situated in different provinces, pursuant to Secs. 2 and 3, Rule 4 [1 Regalado 121,
the venue is determined by the singularity or plurality 2010 Ed.]
of the transactions involving said parcels of land. b.   Real action: in the proper court which has
Thus, where said parcels are the objects of one and the jurisdiction over the area wherein the real
same transaction, the venue was in the [court] of any property involved, or a portion thereof is situated
of the provinces wherein a parcel of land is situated [1 [Sec. 1, Rule 4]
Regalado 118, 2010 Ed., citing El Hogar Filipino v. Seva,
G.R. No. 36627 (1932)] Non-resident not found in the Philippines and the
action affects
If the parcels of land are subject of separate and a.   Personal status of plaintiff – where plaintiff
distinct transactions, there is no common venue and resides, or

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

b.   Property of defendant in the Philippines – where When stipulation may be disregarded

the property, or any portion thereof, is situated or The court may declare agreements on venue as
found [Sec. 3, Rule 4] contrary to public policy if such stipulation unjustly
denies a party a fair opportunity to file suit in the place
The court of the place where any of the principal designated by the Rules. The court shall take into
plaintiffs resides, or where any of the principal consideration the economic conditions of the parties,
defendants resides, at the election of the plaintiff has the practical need to avoid numerous suits filed
been added to prevent plaintiff from choosing against the defendant in various parts of the country
residence of minor plaintiff or defendant as venue [1 and the peculiar circumstances of the case [1 Regalado
Herrera 614, 2007 Ed.] 124-125, 2010 Ed., citing Hoechst Philippines v. Torres,
G.R. No. L-44351 (1978)]
5.  W hen the Rules on Venue A complaint directly assailing the validity of the
Do Not Apply written instrument itself should not be bound by the
exclusive venue stipulation contained therein and
a.   Cases where a specific rule or law provides should be filed in accordance with the general rules on
otherwise, or venue. To be sure, it would be inherently consistent for
b.   Parties have validly agreed in writing before the a complaint of this nature to recognize the exclusive
filing of an action on the exclusive venue thereof venue stipulation when it, in fact, precisely assails the
[Sec. 4, Rule 4] validity of the instrument in which such stipulation is
contained [Briones v. CA and Cash Asia, G.R. No.
Examples of item (a) are 204444 (2015)]
1.   Quo warranto proceeding commenced by the
Solicitor General [Sec. 7, Rule 66]
2.   Petition for a continuing writ of mandamus [Sec.
2, Rule 8, Rules of Procedure for Environmental
Cases]
3.   Civil and criminal action for damages in written
defamation [Art. 360, RPC]
[1 Riano 200, 2014 Bantam Ed.]

6.  E ffects of Stipulations on
Venue
Types of stipulations on venue
a.   Restrictive: suit may be filed only in the place
agreed upon
b.   Permissive: parties may file their suit not only in
the place agreed upon but also in the places fixed
by law
[Briones v. CA and Cash Asia, G.R. No. 204444 (2015)]

Requirement to be binding
To be binding, the parties must have agreed on the
exclusive nature of the venue of any prospective
action between them. The agreement of parties must
be restrictive and not permissive [1 Regalado 124, 2010
Ed.]

In the absence of qualifying or restrictive words (e.g.

“only/solely/exclusively in such court”), venue
stipulation is merely permissive; that is, the
stipulated venue is in addition to the venue provided
for in the rules [Polytrade Corp. v. Blanco, G.R. No. L-
27033 (1969)]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

  Rules on Pleadings Ultimate facts are essential facts constituting the

plaintiff’s cause of action. A fact is essential if it cannot
be stricken out without leaving the statement of the
Pleadings are the written statements of the respective cause of action insufficient [Remitere v. Montinola,
claims and defenses of the parties, submitted to the G.R. No. L-19751 (1966)]
court for appropriate judgment [Sec. 1, Rule 6]
Non-ultimate facts
Every pleading shall contain in a methodical and A fact is essential if it cannot be stricken out without
logical form, a plain, concise and direct statement of leaving the statement of the cause of action or defense
the ultimate facts on which the party pleading relies insufficient [Toribio v. Bidin, G.R. No. 57821 (1985)].
for his claim or defense, as the case may be, omitting Hence, conclusions, inferences, presumptions, and
the statement of mere evidentiary facts [Sec. 1, Rule 8] details of probative matters should not be alleged [1
Regalado 173, 2010 Ed.]
Pleadings v. motions
Pleadings Motion "Evidentiary facts" are those which are necessary to
Purpose is to prove the ultimate fact or which furnish evidence of the
submit a claim or Application for existence of some other facts. They are not proper as
defense for relief other than allegations in the pleadings as they may only result in
Purpose
appropriate by a pleading confusing the statement of the cause of action or the
judgment [Sec. 1, [Sec. 1, Rule 15] defense. They are not necessary therefor, and their
Rule 6] exposition is actually premature as such facts must be
Judgment, which found and drawn from testimonial and other evidence
Other that is not
Relief by its character [1 Regalado 173-174, 2010 Ed.]
included in a
Sought finally disposes of
judgment
the case Facts alleged in the complaint are judicial admissions
[1 Riano 339, 2005 Ed.] that bind the plaintiff and may be the basis to dismiss
the complaint [Luzon Development Bank v. Conquilla,
1.   Kinds of Pleadings G.R. No. 163338 (2005)]

Pleadings Allowed b.   Answer

a.   Complaint
b.   Answer A pleading where the defendant sets forth his
c.   Counterclaim defenses [Sec. 4, Rule 6]
d.   Cross-claim
e.   Third (fourth, etc.)-party complaint The defenses of a party are alleged in the answer to
f.   Complaint-in-intervention the pleading asserting a claim against him [Sec. 2,
g.   Reply Rule 6]
[Sec. 2, Rule 6]
h.   Counter-counterclaims NEGATIVE DEFENSES
i.   Counter-crossclaims Specific denial of the material fact/s alleged in the
[Sec. 9, Rule 6] pleading of the claimant essential to his cause/s of
action.
a.   Complaint NEGATIVE PREGNANT
A denial, pregnant with the admission of the
The pleading alleging the plaintiff’s cause/s of action substantial facts in the pleading responded to which
[Sec. 3, Rule 6] are not squarely denied. It is in effect an admission of
the averment it is directed to [Philamgen v. Sweet
Function Lines, G.R. No. 87434 (1993)]
1.   To inform the defendant clearly and definitely of
the claims made against him so that he may be A negative pregnant does not qualify as a specific
prepared to meet the issues at trial. denial. It is conceded to be actually an admission. It
2.   To inform the defendant of all material facts on refers to a denial which implies its affirmative opposite
which the plaintiff relies to support his demand. by seeming to deny only a qualification or an
3.   To state the theory of a cause of action which incidental aspect of the allegation but not the main
forms the bases of plaintiff’s claim of liability allegation itself [1 Riano 358, 2014 Bantam Ed.]
[Tantuico v. Republic, G.R. No. 89114 (1991)]

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AFFIRMATIVE DEFENSES COMPULSORY COUNTERCLAIM

1.   Allegations of new matters which, while
hypothetically admitting the material allegations Requisites
in the claimant’s pleading would nevertheless 1.   It arises out of, or is connected with the
prevent or bar recovery by him transaction or occurrence constituting the subject
2.   Include fraud, statute of limitations, release matter of the opposing party's claim, and
payment, illegality, statute of frauds, estoppel, 2.   It does not require for its adjudication the
former recovery, discharge in bankruptcy, and any presence of third parties of whom the court
other matter by way of confession and avoidance cannot acquire jurisdiction
[Sec. 6, Rule 6] 3.   It must be within the jurisdiction of the court both
as to the amount and the nature, except that in an
Raising affirmative defenses does not amount to original action before the RTC, the counter-claim
acceptance of the jurisdiction of the court, but praying may be considered compulsory regardless of the
for affirmative reliefs is considered voluntary amount
appearance and acquiescence to the court’s [Sec. 7, Rule 6]
jurisdiction [NM Rothschild & Sons Ltd. v. Lepanto
Consolidate Mining Co., G.R. No. 175799 (2011)] A plaintiff who fails or chooses not to answer a
compulsory counterclaim may not be declared in
default, principally because the issues raised in the
c.   Counterclaim counterclaim are deemed automatically joined by the
allegations in the complaint [Gojo v. Goyala, G.R. No.
Any claim which a defending party may have against L-26768 (1970)]
an opposing party [Sec. 6, Rule 6]
The filing of a motion to dismiss and the setting up of
Kinds of counterclaims a compulsory counterclaim are incompatible
Compulsory Permissive remedies. If he files a motion to dismiss, he will lose
Counterclaim Counterclaim his counterclaim. But if he opts to set up his
A compulsory counterclaim, he may still plead his ground for
counterclaim, which a Not subject to the rule dismissal as an affirmative defense in his answer
party has at the time on compulsory [Financial Building Corp. v. Forbes Park Association,
the answer is filed, shall counterclaims. Hence, it G.R. No. 133119 (2000)]
be contained in the may be set up as an
answer [Sec. 8, Rule 11] independent action and On amounts
because a compulsory will not be barred if not 1.   In an original action before the RTC, the
counterclaim not set up contained in an answer counterclaim may be considered compulsory
shall be barred [Sec. 2, to the complaint. regardless of the amount [Sec. 7, Rule 6]
Rule 9] 2.   If a counterclaim is filed in the MTC in excess of its
Not an initiatory jurisdictional limits, the excess is considered
Initiatory pleading
pleading waived [Agustin v. Bacalan, G.R. No. L-46000
Should be accompanied (1985)]
by a certification 3.   However, in another case, the remedy where a
against forum shopping counterclaim is beyond the jurisdictional amount
Said certifications are and, whenever required of the MTC is to set off the claims and file a
not required by law, also a certificate separate action to collect the balance [Calo v.
to file action issued by Ajax, G.R. No. L-22485 (1968)] Note, however,
the Lupong that the counterclaim in question in this case was
Tagapamayapa permissive.
Must be answered by
Failure to answer a
the party against whom Note: Under OCA Circular No. 96-2009, citing A.M.
compulsory
it is interposed, No. 04-2-04 SC, the payment of filing fees for
counterclaim is not a
otherwise he may be compulsory counterclaims remains suspended
cause for a default
declared in default as to effective September 21, 2004, pursuant to A.M. No.
declaration.
the counterclaim 04-2-04-SC] It clarified that the portion of the decision
[1 Riano 385-387, 2014 Bantam Ed.] in Korea Technologies v. Lerma, G.R. No. 143581, which
stated that docket fees are required to be paid in
compulsory counterclaims has been deleted in a
revised issuance.

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PERMISSIVE COUNTERCLAIM 1.   Dismissal under Sec. 6, Rule 16 – where the

defendant does not file motion to dismiss but
A counterclaim is permissive if it does not arise out of, raises the ground as an affirmative defense
nor is necessarily connected with, the subject matter 2.   Dismissal under Sec. 2, Rule 17 – where the
of the opposing party’s claim. This is not barred even plaintiff files a motion to dismiss the case, after
if not set up in the action [1 Herrera 686, 2007 Ed.] the defendant had filed a responsive pleading
3.   Dismissal under Sec. 3, Rule 17 – where the
Permissive counterclaims must have an independent complaint is dismissed due to the fault of the
jurisdictional ground [1 Herrera 695, 2007 Ed.] plaintiff

The rule in a permissive counterclaim is that for the How raised

trial court to acquire jurisdiction, the counterclaimant 1.   By including it in the Answer
is bound to pay the prescribed docket fees [1 Riano a.   A compulsory counterclaim or a cross-claim
387, 2014 Bantam Ed., citing GSIS v. Heirs of Caballero, that a defending party has at the time he files
G.R. Nos. 158090 (2010)] his answer shall be contained therein [Sec. 8,
Rule 11]
Note: Even if the counterclaim arises out of the 2.   By filing after the Answer
subject-matter of the opposing party's claim but it is a.   A counterclaim may, by leave of court, set up
not within the jurisdiction of the regular courts of the counterclaim by amendment before
justice, or it requires for its adjudication the presence judgment, when
of third parties over whom the court cannot acquire i.   A pleader fails to set up a counterclaim
jurisdiction, it is considered as only a permissive through oversight, inadvertence, or
counter claim and is not barred even if not set up in excusable neglect, or
the action (see also Sec. 2, Rule 9) [1 Regalado 143-144, ii.   Justice requires [Sec. 10, Rule 11]
2010 Ed.] b.   A counterclaim, which either matured or was
acquired by a party after serving his pleading
Determining whether a counterclaim is compulsory may, with permission of the court, be
or permissive presented as a counterclaim by
A positive answer on all four the following tests would supplemental pleading before judgment
indicate that the counterclaim is compulsory [Sec. 9, Rule 11]
1.   Are the issues of fact and law raised by the claim
and counterclaim largely the same?
2.   Would res judicata bar a subsequent suit on
d.   Cross-Claim
defendant’s claims, absent the compulsory
counterclaim rule? Any claim by one party against a co-party arising out
3.   Will substantially the same evidence support or of the transaction or occurrence that is the subject
refute plaintiff’s claim as well as the matter either of the original action or of a counterclaim
counterclaim? therein. Such cross-claim may include a claim that the
4.   Is there any logical relation between the claim and party against whom it is asserted is or may be liable to
counterclaim? the cross-claimant for all or part of a claim asserted in
[GSIS v. Heirs of Caballero, G.R. No. 158090 (2010)] the action against the cross-claimant [Sec. 8, Rule 6]

There is a logical relationship where conducting A cross-claim not set up shall be barred [Sec. 2, Rule
separate trials of the respective claims would entail 9]
substantial duplication of effort and time and involves
many of the same factual and legal issues [Meliton v. When a cross-claim is proper
CA, G.R. No. 101883 (1992)] 1.   It arises out of the subject matter of the complaint.
2.   It is filed against a co-party.
3.   The cross-claimant stands to be prejudiced by the
EFFECT  ON  THE  COUNTERCLAIM  WHEN  THE  
filing of the action against him [Londres v. CA, G.R.
COMPLAINT  IS  DISMISSED  
No. 136427 (2002)]
The dismissal of the complaint shall be without
Improper cross-claims
prejudice to the prosecution in the same or separate
1.   Where the cross-claim is improper, the remedy is
action of a counterclaim pleaded in the answer in the
certiorari [Malinao v. Luzon Surety (1964)]
following cases
2.   The dismissal of a cross-claim is unappealable
when the order dismissing the complaint

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becomes final and executory [Ruiz, Jr. v. CA not (permissive

(1993)] counterclaim)
3.   A cross-claim is not allowed after declaration of
default of cross-claimant. To allow the cross-
claim to remain would be tantamount to setting
aside the order of default the cross-claimant, who
had been previously declared default, would re-
obtain a standing in court as party litigant [Tan v.
Dimayuga, G.R. No. L-15241 (1962)]

e.   Third (Fourth, etc.) Party Third party is

Third party is not yet
Complaint already No third party impleaded, so
impleaded in involved (Sec. leave of court
A claim that a defending party may, with leave of the action [1 6, Rule 6 refers required [Sec.
court, file against a person not a party to the action, Regalado 150, to “opposing 11, Rule 6; 1
for contribution, indemnity, subrogation or any other 2014 Bantam party”) Regalado 150,
relief, in respect of his opponent's claim [Sec. 11, Rule Ed.] 2014 Bantam
6] Ed.]

Requisites rd Complaint in
1.   The party to be impleaded must not yet be a party 3 party complaint
intervention
to the action Brings into the action a 3rd person who was not
2.   The claim against the third-party defendant must originally a party
belong to the original defendant Initiative is with the Initiative is with a non-
3.   The claim of the original defendant against the person already a party party who seeks to join
third-party defendant must be based upon the to the action the action
plaintiffs claim against the original defendant,
[1 Regalado 150-151, 2010 Ed.]
and
4.   The defendant is attempting to transfer to the
Under this Rule, a person not party to an action may
third-party defendant the liability asserted
be impleaded by the defendant either
against him by the original plaintiff [Philtranco
1.   On allegation of liability to the latter, covered by
Service Enterprises, Inc. v. Paras, G.R. No. 161909
the phrase “contribution, indemnity, or
(2012)]
subrogation”
rd 2.   On the ground of direct liability to the plaintiff; or
3 party both, as covered by the phrase “any other relief”
Cross-claim Counterclaim
complaint [Samala v. Victor, G.R. No. L-53969 (1989)]
Against a
Against a co- Against an person not a Tests to determine whether the 3rd-party complaint
party [Sec. 8, opposing party party to the is in respect of plaintiff’s claim
Rule 6] [Sec. 6, Rule 6] action [Sec. 11, 1.   WON it arises out of the same transaction on
Rule 6] which the plaintiff's claim is based, or although
May arise out arising out of another/different transaction, is
of or is connected with the plaintiff’s claim;
Arising out of connected with 2.   WON the 3rd-party defendant would be liable to
the transaction the transaction the plaintiff or to the defendant for all/part of the
that is the or occurrence plaintiff’s claim against the original defendant;
In respect of
subject matter constituting 3.   WON the 3rd-party defendant may assert any
his opponent’s
either of the the subject defenses which the 3rd-party plaintiff has or may
(plaintiff’s)
original action matter of the have to the plaintiff’s claim
claim [Sec. 11,
or of a opposing [Capayas v. CFI, G.R. No. L-475 (1946)]
Rule 6]
counterclaim party’s claim
therein [Sec. 8, (compulsory Additional rules
Rule 6] counterclaim) Where the trial court has jurisdiction over the main
[Sec. 7, Rule case, it also has jurisdiction over the third-party
6], or it may complaint, regardless of the amount involved as a 3rd-

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

party complaint is merely auxiliary to and is a No independent controversy allowed to be injected

continuation of the main action [Republic v. Central In general, an independent controversy cannot be
Surety, G.R. No. L-27802 (1968)] injected into a suit by intervention, hence, such
intervention will not be allowed where it would
A third-party complaint is not proper in an action for enlarge the issues in the action and expand the scope
declaratory relief [Commissioner of Customs v. Cloribel, of the remedies. It is not proper where there are certain
G.R. No. L-21036 (1977)] facts giving the intervenor’s case an aspect peculiar to
himself and differentiating it clearly from that of the
original parties; the proper course is for the would-be
f.   Complaint-in-Intervention intervenor to litigate his claim in a separate suit.
Intervention is not intended to change the nature and
Intervention is a remedy by which a third party, not character of the action itself, or to stop or delay the
originally impleaded in a proceeding, becomes a placid operation of the machinery of the trial. The
litigant therein to enable him to protect or preserve a remedy of intervention is not proper where it will have
right or interest which may be affected by such the effect of retarding the principal suit or delaying the
proceeding [Restaurante Las Conchas v. Llego, G.R. trial of the action [Mactan-Cebu International Airport
No. 119085 (1999), citing First Philippine Holdings Authority v. Heirs of Minoza, G.R. No. 186045 (2011)]
Corporation v. Sandiganbayan, G.R. No. 88345 (1996)]
Allowance discretionary
Pleadings-in-intervention The Court has full discretion in permitting or
1.   Complaint-in-intervention – If intervenor asserts disallowing intervention, which must be exercised
a claim against either or all of the original parties judiciously and only after consideration of all the
2.   Answer-in-intervention – If intervenor unites with circumstances obtaining in the case [Mago v. CA, G.R.
the defending party in resisting a claim against No. 115624 (1999)]
the latter
[Sec. 3, Rule 19] It is not an absolute right as it can be secured only in
accordance with the terms of applicable statute or rule
Intervention is never an independent action, but is [Office of Ombudsman v. Samaniego, G.R. No. 175573
ancillary and supplemental to an existing litigation, (2010)]
and in subordination to the main proceeding [Saw v.
CA, G.R. No. 90580 (1991)] Legal interest
Interest must be of a direct and immediate character
Its purpose is "to settle in one action and by a single so that the intervenor will either gain or lose by the
judgment the whole controversy (among) the persons direct legal operation of the judgment. The interest
involved." [First Philippine Holdings v. Sandiganbayan, must be actual and material, a concern which is more
G.R. No. 88345 (1996)] than mere curiosity, or academic or sentimental
desire; it must not be indirect and contingent, indirect
When allowed; requisites for intervention and remote, conjectural, consequential or collateral
1.   A person who [Virra Mall Tenants v. Virra Mall, G.R. No. 182902
a.   Has a legal interest in the (2011)]
i.   Matter in litigation, or
ii.   Success of either of the parties, or How to intervene
iii.   Against both, or 1.   With leave of court, the court shall consider the
b.   Is so situated as to be adversely affected by a requisites above
distribution or other disposition of property in 2.   Motion to intervene may be filed at any time
the custody of the court or of an officer before rendition of judgment by the trial court
thereof, [Sec. 2, Rule 19]
2.   With leave of court 3.   Copy of the pleadings-in-intervention shall be
3.   The court shall consider whether or not the attached to the motion and served on the original
intervention will unduly delay or prejudice the parties [Sec.2, Rule 19]
adjudication of the rights of the original parties,
and whether or not the intervenor's rights may be Time to intervene
fully protected in a separate proceeding General rule: The motion to intervene must be filed at
[Sec. 1, Rule 19] any time before rendition of judgment by the trial court
[Sec.2, Rule 19]

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Exceptions: made; otherwise, the genuineness and due

1.   With respect to indispensable parties, execution of the document shall be deemed
intervention may be allowed even on appeal admitted [Sec. 11, Rule 8; Toribio v. Bidin, G.R. No.
[Falcasantos v. Falcasantos, G.R. No. L-4627 L-57821 (1985)]
(1952)]
2.   When the intervenor is the Republic [Lim v. Counter-counterclaim
Pacquing, G.R. No. 115044 (1995)] A claim asserted against an original counter-claimant
3.   Intervention may be allowed after judgment [Sec. 9, Rule 6]
where necessary to protect some interest which
cannot otherwise be protected, and for the Counter-cross-claim
purpose of preserving the intervenor’s right to A claim filed against an original cross-claimant [Sec.
appeal [Pinlac v. CA, G.R. No. 91486 (2003)] 9, Rule 6]

Remedies for denial of motion for intervention

1.   True, the SC has on occasion held that an order
2.  P leadings Allowed under
denying a motion for intervention is appealable. The 2016 Revised Rules of
Where the lower court’s denial of a motion for
intervention amounts to a final order, an appeal is Procedure for Small
the proper remedy, as when the denial leaves the Claims Cases and The 1991
intervenor without further remedy or resort to
judicial relief. Revised Rule on Summary
2.   A prospective intervenor’s right to appeal applies
only to the denial of his intervention. Not being a
Procedure
party to the case, a person whose intervention the
court denied has no standing to question the a.   Rule on Summary Procedure
decision of the court. Petitioner could question
only the trial courts orders denying his The only pleadings allowed to be filed are
intervention and striking off from the records his 1.   Complaints
answer-in-intervention, not the decision itself. 2.   Compulsory counterclaims pleaded in the Answer
[Foster-Gallego v. Sps. Galang, G.R. No. 130228 3.   Cross-claims pleaded in the Answer; and
(2004)] 4.   Answers thereto
[Sec. 3[A], II]
g.   Reply
Prohibited pleadings, motions, or petitions
A pleading, the office or function of which is to deny, 1.   Motion to dismiss the complaint or to quash the
or allege facts in denial or avoidance of new matters complaint or information except on the ground of
alleged by way of defense in the answer and thereby lack of jurisdiction over the subject matter, or
join or make issue as to such new matters [Sec. 10, failure to comply with required barangay
Rule 6] conciliation proceedings
2.   Motion for a bill of particulars
Effect of failure to reply 3.   Motion for new trial, or for reconsideration of a
General rule: If a party does not file such reply, all the judgment, or for opening of trial
new matters alleged in the answer are deemed 4.   Petition for relief from judgment
controverted [Sec. 10, Rule 6] 5.   Motion for extension of time to file pleadings,
affidavits or any other paper
Exception: When a reply is necessary 6.   Memoranda
1.   To set up affirmative defenses on the 7.   Petition for certiorari, mandamus, or prohibition
counterclaim [Rosario v. Martinez, G.R. No. L- against any interlocutory order issued by the court
4473 (1952)] 8.   Motion to declare the defendant in default
2.   Where the answer alleges the defense of usury in 9.   Dilatory motions for postponement
which case a reply under oath should be made; 10.   Reply
otherwise, the allegation of usurious interest shall 11.   Third party complaints, and
be deemed admitted [Rule 8, Sec. 8; Sun Bros. v. 12.   Interventions
Caluntad, G.R. No. L-21440 (1966)] [Sec. 19]
3.   Where the defense in the answer is based on an
actionable document, a reply under oath must be

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

b.   Revised Rules of Procedure for 12.   Interventions

[Sec. 14]
Small Claims Cases
Forms 3.  Parts of a Pleading
1.   A small claims action is commenced by filing with
the court an accomplished and verified a.   Caption
Statement of Claim (Form 1-SCC) in duplicate,
accompanied by a Certification Against Forum Sets forth the
Shopping, Splitting a Single Cause of Action, 1.   Name of the court
and Multiplicity of Suits (Form 1-A-SCC) [Sec. 6] 2.   Title of the action (i.e. the names of the parties)
2.   The Summons to be served on the defendant shall and
be accompanied by a copy of the Statement of 3.   The docket number, if assigned
Claim/s and documents submitted by plaintiff, [Sec. 1, Rule 7]
and a blank Response Form (Form 3-SCC) to be
accomplished by the defendant [Sec. 12]. The Body – Sets forth its (the pleading’s) designation, the
defendant shall file with the court and serve on allegations of party's claims or defenses, the relief
the plaintiff a duly accomplished and verified prayed for, and its date
Response within a non-extendible period of 10 1.   Paragraphs – The allegations in the body of a
days from receipt of summons [Sec. 13]. pleading shall be divided into paragraphs so
a.   If at the time the action is commenced, the numbered as to be readily identified, each of
defendant possesses a claim against the which shall contain a statement of a single set of
plaintiff that (a) is within the coverage of this circumstances so far as that can be done with
Rule, exclusive of interest and costs; (b) arises convenience. A paragraph may be referred to by
out of the same transaction or event that is its number in all succeeding pleadings.
the subject matter of the plaintiff’s claim; (c) 2.   Headings
does not require for its adjudication the a.   When two or more causes of action are joined,
joinder of third parties; and (d) is not the the statement of the first shall be prefaced by
subject of another pending action, the claim the words “first cause of action," of the
shall be filed as a counterclaim in the second by "second cause of action," and so on
Response; otherwise, the defendant shall be for the others.
barred from suing on the counterclaim [Sec. b.   When one or more paragraphs in the answer
15]. are addressed to one of several causes of
b.   The defendant may also elect to file a action in the complaint, they shall be
counterclaim against the plaintiff that does prefaced by the words "answer to the first
not arise out of the same transaction or cause of action" or "answer to the second
occurrence, provided that the amount and cause of action" and so on; and when one or
nature thereof are within the coverage of this more paragraphs of the answer are
Rule and the prescribed docket and other addressed to several causes of action, they
legal fees are paid [Sec. 15]. shall be prefaced by words to that effect.
3.   Relief – The pleading shall specify the relief
Prohibited pleadings and motions sought, but it may add a general prayer for such
1.   Motion to dismiss the complaint except on the further or other relief as may be deemed just or
ground of lack of jurisdiction equitable.
2.   Motion for a bill of particulars 4.   Date – Every pleading shall be dated.
3.   Motion for new trial, or for reconsideration of a [Sec. 2, Rule 7]
judgment, or for reopening of trial
4.   Petition for relief from judgment
5.   Motion for extension of time to file pleadings, b.   Signature and Address
affidavits, or any other paper
6.   Memoranda Every pleading must be signed by the party or counsel
7.   Petition for certiorari, mandamus, or prohibition representing him, stating in either case his address
against any interlocutory order issued by the court which should not be a post office box [Sec. 3, Rule 7]
8.   Motion to declare the defendant in default
9.   Dilatory motions for postponement
10.   Reply
11.   Third-party complaints, and

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Effect of Unsigned Pleading 24.   Petition for voluntary judicial dissolution of a

An unsigned pleading produces no legal effect. corporation [Sec. 1, Rule 104]
However, the court may allow such deficiency to be 25.   Petition for cancellation or correction of entries in
remedied if it appears that it was: the civil registry [Sec. 1, Rule 108]
1.   Due to mere inadvertence; and
2.   Not intended for delay [Sec. 3, Rule 7] How verified
By an affidavit declaring that
1.   The affiant has read the pleading; and
c.   Verification and Certification 2.   The allegations therein are true and correct of his
against Forum Shopping personal knowledge or based on authentic
documents
Verification as a rule not required [Sec. 4, Rule 7]
Pleadings need not be under oath, verified or
accompanied by affidavit except when otherwise Who executes verification
specifically required by law or rule [Sec. 4, Rule 7] Verification is deemed substantially complied with
when one who has ample knowledge to swear to the
Verification is required in the following instances truth of the allegations in the complaint or petition
1.   Pleadings filed in the inferior courts in cases signs the verification, and when matters alleged in the
covered by the Rules on Summary Procedure [Sec. petition have been made in good faith or are true and
3, B] correct [Altres v. Empleo, G.R. No. 180986 (2008)]
2.   Petition for relief from judgment or order [Sec. 3,
Rule 38] Effect of noncompliant or defective verification
3.   Petition for review from RTC to the CA [Sec. 1, Rule Noncompliance therewith or a defect therein does not
42] necessarily render the pleading fatally defective. The
4.   Petition for review from quasi-judicial agencies to court may order its submission or correction or act on
the CA [Sec. 5, Rule 43] the pleading if the attending circumstances are such
5.   Appeal by certiorari from the CTA to the SC [Sec. that strict compliance with the Rule may be dispensed
12, RA 9282 amending Sec. 19, R.A. 1125] with in order that the ends of justice may be served
6.   Appeal by certiorari from CA to the SC [Sec. 1, Rule thereby [Altres v. Empleo, G.R. No. 180986 (2008)]
45]
7.   Petition for annulment of judgments or final Forum shopping
orders and resolutions [Sec. 1, Rule 47] The repeated availment of several judicial remedies in
8.   Complaint for injunction [Sec. 4, Rule 58] different courts, simultaneously or successively, all
9.   Application for appointment of receiver [Sec. 1, substantially founded on the same transactions and
Rule 59] the same essential facts and circumstances, and all
10.   Application for support pendente lite [Sec. 1, Rule raising substantially the same issues, either pending
69] in or already resolved adversely by some other court
11.   Petition for certiorari against judgments, final [Asia United Bank v. Goodland Company, Inc., G.R. No.
orders, or resolutions of constitutional 191388 (2011)]
commissions [Sec. 2, Rule 64]
12.   Petition for certiorari [Sec. 1, Rule 65] Test to determine existence of forum shopping
13.   Petition for prohibition [Sec. 2, Rule 65] Whether in the two or more cases pending, there is
14.   Petition for mandamus [Sec. 3, Rule 65] identity of
15.   Petition for quo warranto [Sec. 1, Rule 66] 1.   Parties
16.   Complaint for expropriation [Sec. 1, Rule 67] 2.   Rights or causes of action, and
17.   Complaint for forcible entry or unlawful detainer 3.   Relief sought
[Sec. 4, Rule 70] [Huibonhoa v. Concepcion, G.R. No. 153785 (2005)]
18.   Petition for indirect contempt [Sec. 4, Rule 71]
19.   Petition for appointment of a general guardian Certificate of Non-Forum Shopping (CNFS)
[Sec. 2, Rule 93] The plaintiff or principal party shall certify under oath
20.   Petition for leave to sell or encumber property of in the complaint or other initiatory pleading
the ward by a guardian [Sec. 1, Rule 95] asserting a claim for relief or in a sworn certification
21.   Petition for declaration of competency of a ward annexed thereto and simultaneously filed therewith
[Sec. 1, Rule 97] 1.   That he has not commenced any action or filed
22.   Petition for habeas corpus [Sec. 3, Rule 102] any claim involving the same issues in any court,
23.   Petition for change of name [Sec. 2, Rule 103] tribunal or quasi-judicial agency and, to the best
of his knowledge, no such other action is pending

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

2.   If there is such other pending action or claim, a (2010), citing Cagayan Valley Drug Corporation v.
complete statement of the present status thereof, Commissioner of Internal Revenue, G.R. No. 173326
and (2010)]
3.   If he should learn that the same or a similar action
or claim has been filed or is pending, he shall Belated submission of written authority has been
report that fact within 5 days to the court wherein found to be substantial compliance with the rule,
his aforesaid complaint or initiatory pleading has especially when the acts were also ratified by the
been filed Board [Swedish Match Philippines v. Treasurer of the
[Sec. 5, Rule 7] City of Manila, G.R. No. 181277 (2013)]

CNFS is not required in a compulsory counterclaim, as Effect of noncompliant CNFS

this is not an initiatory pleading [UST Hospital v. Surla, Defect Effect
G.R. No. 129718 (1998)] However, a certification is Not curable by mere
needed in permissive counterclaims [Korea Exchange amendment of the
Bank v. Gonzales, G.R. No. 142286 (2005)] complaint or other
initiatory pleading
Who executes the CNFS
It is the plaintiff or principal party who executes the Failure to comply with
Cause for dismissal of
certification under oath [Sec. 5, Rule 7] the requirements
the case, without
prejudice, unless
Rationale otherwise provided,
The plaintiff, not the counsel, is in the best position to upon motion and after
know whether he or it has actually filed or caused the hearing
filing of a petition. Certification signed by counsel False certification Constitutes indirect
without proper authorization is defective, and a valid contempt of court,
cause for dismissal [Anderson v. Ho, G.R. No. 172590 Non-compliance with
without prejudice to
(2013)] any of the undertakings
administrative and
therein
criminal actions
If, for justifiable reasons, the party-pleader is unable Ground for summary
to sign, he must execute a Special Power of Attorney dismissal, with
designating his counsel of record to sign on his behalf prejudice
[Vda. de Formoso v. PNB, G.R. No. 154704 (2011)]
Willful and deliberate Direct contempt of
REQUIREMENTS OF A CORPORATION EXECUTING forum shopping court
THE VERIFICATION/CERTIFICATION OF NON-
FORUM SHOPPING Cause for
administrative
The certification must be executed by an officer, or sanctions
member of the board of directors, or by one who is duly [Sec. 5, Rule 7]
authorized by a board resolution; otherwise, the
complaint will have to be dismissed [Cosco Philippines
Shipping, Inc. v. Kemper Insurance, Co., G.R. No. d.   Effect of the Signature of
179488 (2012)] Counsel in a Pleading
However, the Court has ruled that a President of a This constitutes a certificate by him that
corporation can sign the verification and CNFS, 1.   He has read the pleading
without the benefit of a board resolution. It also 2.   To the best of his knowledge, information, and
allowed the following persons to sign: belief there is good ground to support it, and
1.   The Chairperson of the Board 3.   It is not interposed for delay
2.   The General Manager or acting GM [Sec. 3, Rule 7]
3.   A personnel officer, and
4.   An employment specialist in a labor case
4.  A llegations in a Pleading
However, the better procedure would be to append a
board resolution to obviate questions regarding the a.   Every pleading shall contain
authority of the signatory [South Cotabato 1.   In a methodical and logical form,
Communications Corp. v. Sto. Tomas, G.R. No. 173326 2.   A plain, concise and direct statement

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

3.   Of the ultimate facts on which the party a.   A tender of payment is required before making a
pleading relies for his claim or defense, as the consignation [Art. 1256, CC]
case may be, b.   Exhaustion of administrative remedies is required
4.   Omitting the statement of mere evidentiary in certain cases before resorting to judicial action
facts [Lopez v. City of Manila, G.R. No. 127139 (1999); Dy
b.   If a defense relied on is based on law, the v. CA, G.R. No. 121587 (1999)]
pertinent provisions thereof and their applicability c.   Prior resort to barangay conciliation proceedings
to him shall be clearly and concisely stated is necessary in certain cases [Book III, Title I,
[Sec. 1, Rule 8] Chapter 7, LGC]
d.   Earnest efforts toward a compromise must be
undertaken when the suit is between members of
a.   Manner of Making Allegations the same family and if no efforts were in fact
made, the case must be dismissed, [Art. 151, FC]
Facts that must be averred with particularity – e.   Arbitration may be a condition precedent when
Circumstances showing fraud or mistake [Sec. 5, Rule the contract between the parties provides for
8] arbitration first before recourse to judicial
remedies
Facts that may be averred generally [1 Riano 333-334, 2014 Bantam Ed.]
1.   Performance or occurrence of all conditions
precedent [Sec. 3, Rule 8] Capacity
2.   Capacity to sue or be sued [Sec. 4, Rule 8] The following must be averred
3.   Capacity to sue or be sued in a representative 1.   Facts showing the capacity of a party to sue or be
capacity [Sec. 4, Rule 8] sued; or
4.   Legal existence of an organized association of 2.   The authority to sue or be sued in a representative
persons that is made a party [Sec. 4, Rule 8] capacity; or
5.   Malice, intent, knowledge or other condition of 3.   The legal existence of an organized association of
the mind of a person [Sec. 5, Rule 8] persons that is made a party
6.   Judgment or decision of a domestic and foreign [Sec. 4, Rule 8]
court, judicial or quasi-judicial tribunal, or of a
board or officer without setting forth matter Note: A party desiring to raise an issue as to the legal
showing jurisdiction to render it [Sec. 6, Rule 8] existence or capacity of any party to sue or be sued in
7.   Official documents/acts [Sec. 9, Rule 8] a representative capacity, shall do so by specific
denial, which shall include supporting particulars
CONDITION PRECEDENT within the pleader's knowledge [Sec. 4, Rule 8]
In any pleading a general averment of the
performance or occurrence of all conditions precedent FRAUD, MISTAKE, MALICE, INTENT,
shall be sufficient [Sec. 3, Rule 8] KNOWLEDGE, AND OTHER CONDITION OF THE
MIND, JUDGMENTS, OFFICIAL DOCUMENTS OR
If the cause of action depends upon a condition ACTS
precedent, its fulfillment or legal excuse for non-
fulfillment must be averred. Fraud, mistake, malice, intent, knowledge, and
other condition of the mind
All valid conditions precedent to the institution of the In all averments of fraud or mistake, the circumstances
particular action, whether prescribed by statute, fixed constituting fraud or mistake mist be stated with
by agreement of the parties or implied by law must be particularity. Malice, intent, knowledge or other
performed or complied with before commencing the condition of the mind of a person may be averred
action, unless the conduct of the adverse party has generally [Sec. 5, Rule 8]
been such as to prevent or waive performance or
excuse non-performance of the condition [Anchor These particulars would necessarily include the time,
Savings Bank v. Furigay, G.R. No. 191178 (2013)] place and specific acts of fraud committed. The reason
for this rule is that an allegation of fraud concerns the
A motion to dismiss may be made on the ground that morality of the defendant’s conduct and he is entitled
a condition precedent for filing the claim has not been to know fully the ground on which the allegations are
complied with [Sec. 1(j), Rule 16] made, so he may have every opportunity to prepare his
case to clear himself at the trial [Guy v. Guy, G.R. No.
Examples of conditions precedent: 189486 (2012)]

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Judgment Effect of failure to deny under oath

In pleading a judgment or decision of a domestic or The genuineness and due execution is deemed
foreign court, judicial or quasi-judicial tribunal, or of a admitted [Sec. 8, Rule 8]
board or officer, it is sufficient to aver the judgment or
decision without setting forth matter showing Due execution and genuineness
jurisdiction to render it [Sec. 6, Rule 8] That the party whose signature it bears admits that he
signed it or that it was signed by another for him with
Official documents or acts his authority; that it was in words and figures exactly
Sufficient to aver that the document was issued, or the as set out in the pleading of the party relying upon it;
act done, in compliance with law [Sec. 9, Rule 8] that the document was delivered and that any formal
requisites required by law, such as a seal, an
acknowledgment, or revenue stamp, which it lacks,
b.   Pleading an Actionable are waived by him [Hibberd v. Rohde and Mcmillian,
Document G.R. No. 8418 (1915)]

Actionable document
Whenever an action or defense is based or founded
c.   Specific Denials
upon a written instrument or document, said
instrument or document is deemed an actionable The purpose of requiring the defendant to make a
document [1 Riano 359, 2014 Bantam Ed.] specific denial is to make him disclose the matters
alleged in the complaint which he succinctly intends
A receipt is not an actionable document upon which to disprove at the trial, together with matters which he
an action or defense may be founded. It is a mere relied upon to support the denial. The parties are
written and signed acknowledgment that money was compelled to lay their cards on the table [Philippine
received. There are no terms and conditions found Bank of Communications v. Go, G.R. No. 175514 (2011)]
therein from which a right or obligation may be
established [Ogawa v. Menigishi, G.R. No. 193089 A denial does not become specific merely because it is
(2012)] qualified by that word [Agton v. CA, G.R. No. L-37309
(1982)]
Pleading the document
1.   The substance of such document shall be set forth 1.   Material averment in the complaint, other than
in the pleading, and the original or a copy thereof those as to the amount of unliquidated damages,
shall be attached to the pleading as an exhibit, or shall be deemed admitted when not specifically
2.   Said copy may with like effect be set forth in the denied.
pleading 2.   Allegations of usury in a complaint to recover
[Sec. 7, Rule 8] usurious interest are deemed admitted if not
denied under oath.
A variance in the substance of the document set forth [Sec. 11, Rule 8]
in the pleading and the document annexed thereto
does not warrant dismissal of the action [Convets Inc. Modes of specific denial
v. National Dev. Co., G.R. No. L-10232 (1958)] 1.   Absolute denial – A defendant must specify each
material allegation of fact the truth of which he
How to contest an actionable document does not admit and, whenever practicable, set
General rule: The adverse party, under oath, forth the substance of matters upon which he
specifically denies them, and sets forth what he claims relies to support his denial
to be the facts 2.   Partial specific denial – Where a defendant
desires to deny only a part of an averment, he
Exceptions: The requirement of an oath does not apply shall
when (a)   Specify so much of it as is true and material
1.   the adverse party does not appear to be a party to (b)   Deny only the remainder
the instrument, or 3.   Denial by disavowal of knowledge – Where a
2.   compliance with an order for an inspection of the defendant is without knowledge or information
original instrument is refused sufficient to form a belief as to the truth of a
[Sec. 8, Rule 8] material averment made in the complaint, he
shall so state, and this shall have the effect of a
denial [Sec. 10, Rule 8; the terms are from 1 Riano
355-356, 2014 Bantam Ed.]

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Note: Denial by disavowal of knowledge must be the court shall dismiss the claim
availed of with sincerity and in good faith – certainly [Sec. 1, Rule 9]
neither for the purpose of confusing the adverse party
as to what allegations of the complaint are really put
in issue nor for the purpose of delay [Barnes v. Reyes,
b.   Failure to Plead a Compulsory
G.R. No. L-9531 (1958)] Counterclaim and Cross-Claim
EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS General rule: A compulsory counterclaim, or a cross-
General rule: Material averment in the complaint shall claim, not set up shall be barred [Sec. 2, Rule 9]
be deemed admitted when not specifically denied
[Sec. 11, Rule 8] Exception: When a pleader fails to set up a
counterclaim or cross-claim through oversight,
Exceptions: inadvertence, or excusable neglect, or when justice
The following averments in the complaint are not requires, he may, by leave of court, set up the
deemed admitted even if not specifically denied counterclaim or cross-claim by amendment before
1.   Allegations as to the amount of unliquidated judgment [Sec. 10, Rule 11]
damages [Sec. 11, Rule 8]
2.   Allegations immaterial to the cause of action [1
Regalado 183, citing Worcester v. Lorenzana, G.R.
6.  D efault
No. L-9435 (1958)], and
3.   All allegations in the complaint where no answer Failure of the defending party to answer within the
has been filed by the defendant [1 Regalado 183, time allowed therefor [Sec. 3, Rule 9]
citing Lopez v. Mendezona, G.R. No. 3945 (1908)
and Worcester v. Lorenzana, G.R. No. L-9435 Dual stages of default
(1958)] a.   Declaration of order of default – If the defending
party fails to answer within the time allowed
WHEN A SPECIFIC DENIAL REQUIRES AN OATH therefor, the court shall, upon motion of the
claiming party with notice to the defending party,
Specific denial under oath is required for the following and proof of such failure, declare the defending
1.   Denial of the genuineness and due execution of an party in default.
actionable document [Sec. 8, Rule 8] and b.   Rendition of judgment by default – Thereupon,
2.   Denial of allegations of usury [Sec. 11, Rule 8] the court shall proceed to render judgment
granting the claimant such relief as his pleading
Note: Under CB Circular No. 905 (1982), the Usury Law may warrant, unless the court in its discretion
is legally inexistent [Medel v. CA, G.R. No. 131622 requires the claimant to submit evidence. Such
(1998)] reception of evidence may be delegated to the
clerk of court.
[Sec. 3, Rule 9]
5.  E ffect of Failure to Plead
Order of default Judgment by default
a.   Effect of Failure to Plead Issued by the court on
plaintiff’s motion and at Rendered by the court
Defenses and Objections the start of the following a default
proceedings, for failure order, when it received
General rule: Defenses and objections not pleaded of the defendant to ex parte plaintiff’s
either a motion to dismiss or in the answer are deemed seasonably file his evidence
waived [Sec. 1, Rule 9] responsive pleading
[1 Regalado 191, 2010 Ed.]
Exceptions:
When it appears from the pleadings or the evidence on
record that a.   When Declaration of Default is
1.   the court has no jurisdiction over the subject Proper
matter
2.   there is another action pending between the same The rule on default clearly establishes the “failure to
parties for the same cause, or answer within the time allowed therefor” as the
3.   the action is barred by a prior judgment or by ground for a declaration of default [Sec. 3, Rule 9].
statute of limitations, From the tenor of the Rules, default does not

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technically occur from the failure of the defendant to c.   Relief from an Order of Default
attend either the pre-trial or the trial [1 Riano 363,
2014 Bantam Ed.] 1.   A party declared in default may at any time after
notice thereof and before judgment file a motion
Requisites before a declaration of default under oath to set aside the order of default upon
1.   The court must have validly acquired jurisdiction proper showing that
over the person of the defending party, either by a.   His failure to answer was due to fraud,
service of summons or voluntary appearance accident, mistake or excusable negligence,
2.   The defending party must have failed to file his and
answer within the time allowed therefor b.   He has a meritorious defense
3.   The claiming party must file a motion to declare [Sec. 3(b), Rule 9]
the defending party in default
4.   The claiming party must prove that the defending “Meritorious defense” means that the motion
party has failed to answer within the period must be accompanied by a statement of the
provided by the ROC evidence which he intends to present if the motion
[Sablas v. Sablas, G.R. No. 144568 (2007)] is granted and which is such as to warrant a
5.   The defending party must be notified of the reasonable belief that the result of the case would
motion to declare him in default [Sec. 3, Rule 9] probably be otherwise if a new trial is granted
6.   There must be a hearing set on the motion to [Kilosbayan v. Janolo, G.R. No. 180543 (2010)]
declare the defending party in default [Spouses de
los Santos v. Carpio, G.R. No. 153696 (2006)] In such case, the order of default may be set aside
[1 Riano 364, 2014] in such terms and conditions as the judge may
impose in the interest of justice [Sec. 3(b), Rule 9]
b.   Effect of an Order of Default
2.   If the judgment has already been rendered when
1.   The party declared in default cannot take part in the defendant discovered the default, but before
the trial. However, he may still participate as a the same has become final and executory, he
witness [Cavili v. Florendo, G.R. No. 73039 (1987)] may file
and is entitled to notices of subsequent a.   a motion for new trial under Sec. 1(a), Rule 37
proceedings [Sec. 3, Rule 9]. [Lina v. CA, G.R. No. L-63397 (1985)], or
2.   The court may either b.   an appeal from the judgment as being
a.   Proceed to render judgment granting the contrary to the evidence or the law [Republic
claimant such relief as his pleading may v. Sandiganbayan, G.R. No. 148154 (2007),
warrant, or cited in 1 Riano 373, 2014 Bantam Ed.]
b.   Require the claimant to submit evidence;
such reception of evidence may be delegated 3.   If the defendant discovered the default after the
to the clerk of court judgment has become final and executory, he may
[Sec. 3, Rule 9] file a petition for relief under Rule 38 [Lina v. CA,
A declaration of default is not tantamount to G.R. No. L-63397 (1985)]
an admission of the truth or validity of the
plaintiff’s claims [Monarch Insurance v. CA, These remedies presuppose that defending party was
G.R. No. 92735 (2000)] properly declared in default, but it is submitted,
3.   A defending party declared in default retains the however, that certiorari will lie when said parry was
right to appeal from the judgment by default. improperly declared in default [1 Riano 374, 2014
However, the grounds that may be raised in such Bantam Ed.]
an appeal are restricted to any of the following:
a.   The failure of the plaintiff to prove the d.   Effect of Partial Default
material allegations of the complaint;
b.   The decision is contrary to law; and Partial default takes place when the complaint states
c.   The amount of judgment is excessive or a common cause of action against several defendants,
different in kind from that prayed for and only some of whom answer.
[Otero v. Tan, G.R. No. 200134 (2012)]
Effects
The court should declare defaulting defendants in
default, and proceed to trial on answers of others

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

If the defense is personal to the one who answered, it

will not benefit those who did not answer.

e.   Extent of Relief to be Awarded

A judgment rendered against a party in default shall
not exceed the amount or be different in kind from that
prayed for nor award unliquidated damages [Sec. 3(d),
Rule 9]

The fact that the defendant was declared in default is

of no moment when the plaintiff would not have been
entitled to relief since his complaint did not state a ca
use of action, hence the same should be dismissed [1
Regalado 193, 2010 Ed., citing Reyes v. Tolentino, G.R.
No. L-29142 (1971)].

On the other hand, in a judgment where an answer

was filed but defendant did not appear at the hearing,
the award may exceed the amount or be different in
kind from that prayed for [Datu Samad Mangelen v.
CA, G.R. No. 88954 (1992)] Note that the defendant,
having filed an answer, was not in default in this
situation.

f.   Actions Where Default is Not

Allowed
1.   Action for annulment or declaration of nullity of
marriage [Sec. 3(e), Rule 9]
2.   Action for legal separation [Sec. 3(e), Rule 9]
3.   Special civil actions of certiorari, prohibition and
mandamus where comment instead of an answer
is required to be filed [Sec. 6, Rule 65]
4.   Cases covered by the Rule on Summary Procedure
[See Sec. 6, Rule on Summary Procedure, which
requires the court to render judgment if the
defendant fails to answer]
5.   In expropriation proceedings, whether or not a
defendant has previously appeared or answered,
he may present evidence as to the amount of
compensation to be paid for his property in the
trial of the issue of just compensation [Sec. 3, par.
3, Rule 67]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Default in ordinary procedure flowchart

After the lapse of time to
file an answer, the plaintiff If motion denied,
may move to declare the defendant allowed
defendant in default to file an answer

If motion granted, the

court issues order of
default and renders
judgment or require
plaintiff to submit
evidence ex parte

After notice of order and

before judgment, a party
declared in default may file
a motion under oath to set
aside the order of default
and properly show that (a)
the failure to answer was
due to FAME, and (b) he
has a meritorious defense,
i.e., there must be an Court maintains
affidavit of merit [Sec. 3(b), order of default
Rule 9, cited in 1 Riano 373,
2014 Bantam Ed.]

Court sets aside order of

default and defendant is
allowed to file an answer
Presentation of
plaintiff’s evidence
Case set for pre-trial ex-parte

If plaintiff proves his If plaintiff fails

allegations, proves his
judgment by default allegations, case
will be rendered is dismissed

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

  Filing and Service of be estimated, or a claim left for

determination by the court, then the
Pleadings, Judgments, additional filing fee shall constitute a lien on
the judgment
Final Orders and [Heirs of Hinog v. Melicor, G.R. No. 140954 (2005)]
e.   Limitation on the claims covered by fees as lien
Resolutions Claims not specified or claims although specified
are left for determination of the court are limited
only to any damages that may arise after the filing
1.   Payment of Docket Fees of the complaint or similar pleading for then it will
not be possible for the claimant to specify nor
General rule: speculate as to the amount thereof [Metrobank v.
It is not simply the filing of the complaint or Perez, G.R. No. 181842 (2010)]
appropriate initiatory pleading but the payment of the
prescribed docket fee that vests a trial court with
jurisdiction over the subject matter or nature of the 2.  F iling v. Service of
action [Proton Pilipinas v. Banque National de Paris, Pleadings
G.R. No. 151242 (2005)]
Filing is the act of presenting the pleading or other
Payment of docket fees is mandatory and paper to the clerk of court [Sec. 2, Rule 13]
jurisdictional [National Transmission Corporation v.
Heirs of Teodulo Ebesa, G.R. No. 186102 (2016)]. Service is the act of providing a party or, if any party
has appeared by counsel, his counsel, with a copy of
Effect of failure to pay docket fees at filing the pleading or paper concerned [Sec. 2, Rule 13]
a.   The Manchester Rule
•   Automatic Dismissal Papers required to be filed and served
•   Any defect in the original pleading resulting a.   Judgment
in underpayment of the docket fees cannot be b.   Resolution
cured by amendment, such as by the c.   Order
reduction of the claim as, for all legal d.   Pleading subsequent to the complaint
purposes, there is no original complaint over e.   Written motion
which the court has acquired jurisdiction f.   Notice
[Manchester v. CA, G.R. No. 75919 (1987)] g.   Appearance
b.   Relaxation of the Manchester Rule (Sun Insurance h.   Demand
Doctrine) i.   Offer of judgment; or
•   NOT automatic dismissal j.   Similar papers
•   Court may allow payment of fees within a [Sec. 4, Rule 13]
reasonable time, but in no case beyond the
expiration of the applicable prescriptive
period of the action filed
3.  Periods of Filing of
[Sun Insurance v. Asuncion, G.R. No. 79937 (1989)] Pleadings
c.   Exception to the Sun Insurance doctrine – The
Sun Insurance rule allowing payment of Responsive Reckoning
deficiency does not apply where plaintiff never Period
Pleadings Point
demonstrated any willingness to abide by the Within 15 days
Rules to pay the docket fee but stubbornly Answer to the (unless a
insisted that the case filed was one for specific Service of
complaint different
performance and damages [Gochan v. Gochan, summons
[Sec. 1, Rule 11] period is fixed
G.R. No. 146089 (2001)] by the court)
d.   Further modification Answer of a
•   Docket fees as lien defendant Receipt of
•   Where the trial court acquires jurisdiction foreign private Within 30 days summons by
over a claim by the filing of the pleading and juridical entity such entity
the payment of the prescribed filing fee, but [Sec. 2, Rule 11]
subsequently, the judgment awards a claim Answer to Service of a
not specified in the pleading, or cannot then Within 15 days
amended copy of the

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complaint as a amended By presenting the original copies thereof, plainly

matter of right complaint indicated as such
[Sec. 3, Rule 11] a.   Personally to the clerk of court or
Answer to b.   By sending them by registered mail
Notice of the [Sec. 3, Rule 13]
amended
order
complaint
Within 10 days admitting the Personal filing
NOT as a
amended The clerk of court shall endorse on the pleading the
matter of right
complaint date and hour of filing [Sec. 3, Rule 13]
[Sec. 3, Rule 11]
Answer to an
amended Filing by registered mail
counterclaim a.   The date of the mailing of motions, pleadings, or
amended any other papers or payments or deposits, as
cross-claim, shown by the post office stamp on the envelope or
Same as Same as the registry receipt, shall be considered as the
amended third
answer to answer to date of their filing, payment, or deposit in court.
(fourth, etc.) -
amended amended b.   The envelope shall be attached to the record of
party
complaint complaint the case.
complaint, and
amended [Sec. 3, Rule 13]
complaint-in-
intervention Filing by mail should be through the registry service
[Sec. 3, Rule 11] which is made by deposit of the pleading in the post
Answer to office, and not through other means of transmission [1
counterclaim Regalado 228, 2010 Ed.]
or cross-claim Within 10 days Service
[Sec. 4, Rule Note: Filing a pleading by facsimile is not sanctioned.
11] But fax was allowed in an extradition case, where a
Answer to request for provisional arrest, not a pleading, was in
third (fourth, issue [Cuevas v. Muñoz, G.R. No. 140520 (2000)]
Same as Same as
etc.) -party
answer to the answer to the Filing by private carrier
complaint
complaint complaint If a party avails of a private carrier, the date of the
[Sec. 5, Rule
11] court’s actual receipt of the pleading (not the date of
Service of the delivery to the private carrier) is deemed to be the date
Reply [Sec. 6, of the filing of that pleading [Benguet Electric
Within 10 days pleading
Rule 11] Cooperative v. NLRC, G.R. No. 89070 (1992)]
responded to
Within 10 days
Answer to Notice of the
supplemental
(unless a
order 5.  M odes of Service
different
complaint admitting the
period is fixed Service may be made
[Sec. 7, Rule 11] same
by the court) a.   Personally or
b.   By mail
Extension of time to plead [Sec. 5, Rule 13]
a.   Upon motion and on such terms as may be just, c.   By substituted service [Sec. 8, Rule 13]
the court may extend the time to plead provided d.   By publication [Sec. 9, Rule 13]
in these Rules.
b.   The court may also, upon like terms, allow an
answer or other pleading to be filed after the time a.   Personal service
fixed by these Rules.
[Sec. 11, Rule 11] 1.   By delivering personally a copy to the party or his
counsel, or
2.   By leaving a copy in the counsel’s office with his
4.  M anner of Filing clerk or with a person having charge thereof
3.   If no person is found in his office, or his office is not
How pleadings, appearances, motions, notices, known or he has no office, then by leaving the
orders, judgments and all other papers are filed: copy between 8 a.m. and 6 p.m., at the party’s or

Page 56 of 438
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

counsel’s residence, if known, with a person of 1.   Personally, or

sufficient age and discretion then residing therein 2.   By registered mail
[Sec. 6, Rule 13]
Exception: When a party summoned by publication has
failed to appear in the action, judgments, final orders
b.   Service by Mail or resolutions against him shall be served upon him
also by publication at the expense of the prevailing
1.   Service by registered mail shall be made by party.
a.   Depositing the copy in the post office [Sec. 9, Rule 13]
b.   In a sealed envelope
c.   Plainly addressed to the party or his counsel
d.   At his office, if known, otherwise at his e.   Priorities in Modes of Service
residence, if known and Filing
e.   With postage fully prepaid, and
f.   With instructions to the postmaster to return Whenever practicable, service and filing of pleadings
the mail to the sender after 10 days if and other papers shall be done personally [Sec. 11,
undelivered Rule 13]
2.   Ordinary mail – If no registry service is available
in the locality of either the sender or addressee. General Rule: Resort to other modes must be
[Sec. 7, Rule 13] accompanied by a written explanation why the
service/filing was not done personally. A violation of
c.   Substituted Service this Rule may be cause to consider the paper as not
filed.
When proper
1.   Service cannot be made personally or by mail Exception: Papers emanating from the court
2.   Office and place of residence of the party or his [Sec. 11, Rule 13]
counsel being unknown
[Sec. 8, Rule 13] f.   When Service is Deemed
Papers that may be served through substituted Complete
service
1.   Pleadings 1.   Personal service – upon actual delivery
2.   Motions 2.   Service by ordinary mail – upon the expiration of
3.   Notices 10 days after mailing, unless the court otherwise
4.   Resolutions, and provides
5.   Other papers 3.   Service by registered mail – upon actual receipt
[Sec. 8, Rule 13] by the addressee, or after 5 days from the date he
received the first notice of the postmaster,
Judgments, final orders or final resolutions cannot be whichever date is earlier
served by substituted service [1 Regalado 233, 2010 [Sec. 10, Rule 13]
Ed.] 4.   Substituted service – At the time of delivery of the
copy to the clerk of court, with proof of failure of
How made both personal service and service by mail [Sec. 8,
1.   Delivering the copy to the clerk of court Rule 13]
2.   With proof of failure of both personal service and
service by mail g.   Proof of Filing and Service
[Sec. 8, Rule 13]
Proof of filing
When complete General rule: The filing of a pleading or paper shall be
At the time of such delivery [Sec. 8, Rule 13] proved by its existence in the record of the case

d.   Service of Judgments, Final Exception: If it is not in the record, but

1.   is claimed to have been filed personally, the filing
Orders, or Resolutions shall be proved by the written or stamped
acknowledgment of its filing by the clerk of court
General rule: Judgments, final orders or resolutions on a copy of the same
shall be served either

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2.   if filed by registered mail, by the registry receipt

and by the affidavit of the person who did the   Amendment
mailing, containing a full statement of the date
and place of depositing the mail in the post office How to amend pleadings
in a sealed envelope addressed to the court, with 1.   Adding an allegation
postage fully prepaid, and with instructions to the 2.   Adding the name of any party
postmaster to return the mail to the sender after 3.   Striking out an allegation
10 days if not delivered 4.   Striking out the name of any party;
[Sec. 12, Rule 13] 5.   Correcting a mistake in the name of a party, or
6.   Correcting a mistaken or inadequate allegation or
Proof of service description in any other respect
1.   Personal service [Sec. 1, Rule 10]
a.   Written admission of the party served, or
b.   Official return of the server, or Purpose
c.   Affidavit of the party serving, containing a full So that the actual merits of the controversy may
statement of the date, place and manner of speedily be determined, without regard to
service technicalities, and in the most expeditious and
2.   Service by ordinary mail – Affidavit of the person inexpensive manner [Sec. 1, Rule 10]
mailing of facts showing compliance with Sec. 7,
Rule 13 The courts should be liberal in allowing amendments
3.   Service by registered mail to pleadings to avoid a multiplicity of suits and in order
a.   Affidavit of the person mailing of facts that the real controversies between the parties are
showing compliance with Sec. 7, Rule 13 presented, their rights determined, and the case
b.   Registry receipt issued by the mailing office decided on the merits without unnecessary delay [Tiu
The registry return card shall be filed immediately v. Phil. Bank of Communication, G.R. No. 151932
upon its receipt by the sender, or in lieu thereof of the (2009)]
unclaimed letter together with the certified or sworn
copy of the notice given by the postmaster to the As a general policy, liberality in allowing amendments
addressee [Sec. 13, Rule 13] is greatest in the early stages of a law suit, decreases
as it progresses and changes at times to a strictness
Service to the lawyer binds the party. But service to the amounting to a prohibition. This is further restricted by
party does not bind the lawyer, unless ordered by the the condition that the amendment should not
court in the following circumstances prejudice the adverse party or place him at a
1.   When it is doubtful who the attorney for such disadvantage [Barfel Development v. CA, G.R. No.
party is; or 98177 (1993)]
2.   When the lawyer cannot be located; or
3.   When the party is directed to do something How to file amended pleadings
personally, as when he is ordered to show cause When any pleading is amended, a new copy of the
[Retoni, Jr. v. CA, G.R. No. 96776 (1993)] entire pleading, incorporating the amendments,
which shall be indicated by appropriate marks, shall
It is a general rule that notice to counsel is notice to be filed [Sec.7., Rule 10]
parties. This Rule’s application to a given case,
however, should be looked into and adopted,
according to the surrounding circumstances;
1.   Amendments as a Matter
otherwise, in the court's desire to make a short cut of of Right
the proceedings, it might foster, wittingly or
unwittingly, dangerous collusions to the detriment of A party may amend his pleading once as a matter of
justice. It would then be easy for one lawyer to sell right
one's rights down the river, by just alleging that he just a.   At any time before a responsive pleading is
forgot every process of the court affecting his clients, served, or
because he was so busy. Under this circumstance, one b.   In the case of a reply, at any time within 10 days
should not insist that a notice to such irresponsible after it is served
lawyer is also a notice to his clients [Bayog v. Natino, [Sec. 2, Rule 10]
G.R. No. 118691 (1996)]
A motion to dismiss is not a responsive pleading and
does not preclude the exercise of the plaintiff’s right to

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amend his complaint [Remington Industrial Sales v.

CA, G.R. No. 133657 (2002)]
3.  Formal Amendments
When proper
2.  A mendments by Leave of a.   Defect in the designation of the parties
b.   Other clearly clerical or typographical errors
Court [Sec. 4, Rule 10]
Substantial amendments may be made only upon How made
leave of court [Sec. 3, Rule 10] a.   Summarily corrected by the court
b.   At any stage of the action
Requisites c.   At its initiative or on motion
a.   Motion for leave of court, accompanied by the d.   No prejudice is caused thereby to the adverse
amended pleading sought to be admitted [Sec. 9, party
Rule 15] [Sec. 4, Rule 10]
b.   Notice is given to the adverse party
c.   Parties are given opportunity to be heard
[Sec. 3, Rule 10] 4.  A mendments to Conform
When amendment may not be allowed
to or Authorize
a.   If it appears to the court that the motion for leave Presentation of Evidence
of court was made with intent to delay [Sec. 3,
Rule 10] a.   When issues not raised by the pleadings are tried
b.   If amendment is intended to confer jurisdiction to with the express or implied consent of the parties,
the court. If the court has no jurisdiction in the they shall be treated in all respects as if they had
subject matter of the case, the amendment of the been raised in the pleadings.
complaint cannot be allowed so as to confer b.   Such amendment of the pleadings as may be
jurisdiction on the court over the property [PNB v. necessary to cause them to conform to the
Florendo, G.R. No. L-62082 (1992)] evidence and to raise these issues may be made
c.   If amendment is for curing a premature or upon motion of any party at any time, even after
inexistent cause of action. The cause of action judgment; but failure to amend does not affect
must exist at the time the action was begun, and the result of the trial of these issues.
the plaintiff will not be allowed by an amendment c.   If evidence is objected to at the trial on the ground
to introduce a cause of action which had no that it is not within the issues made by the
existence when the action was commenced pleadings, the court may allow the pleadings to
[Surigao Mine Exploration v. Harris et al, G.R. No. be amended and shall do so with liberality if the
L-45543 (1939)] presentation of the merits of the action and the
ends of substantial justice will be subserved
Interestingly, Section 3, Rule 10 of the 1997 Rules of thereby.
Civil Procedure amended the former Rule in such d.   The court may grant a continuance to enable the
manner that the phrase "or that the cause of action or amendment to be made
defense is substantially altered" was stricken-off and [Sec. 5, Rule 10]
not retained in the new Rules. The clear import of such
amendment in Section 3, Rule 10 is that under the new
Rules, "the amendment may (now) substantially alter 5.  S upplemental Pleadings
the cause of action or defense." This should only be
true, however, when despite a substantial change or a.   Upon motion of a party the court may, upon
alteration in the cause of action or defense, the reasonable notice and upon such terms as are
amendments sought to be made shall serve the higher just, permit him to serve a supplemental pleading
interests of substantial justice, and prevent delay and setting forth transactions, occurrences or events
equally promote the laudable objective of the Rules which have happened since the date of the
which is to secure a "just, speedy and inexpensive pleading sought to be supplemented.
disposition of every action and proceeding [Valenzuela b.   The adverse party may plead thereto within ten
v. CA, G.R. No. 131175 (2012)] (10) days from notice of the order admitting the
supplemental pleading
[Sec. 6, Rule 10]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

The admission or non-admission of a supplemental c.   Claims or defenses alleged in the superseded

pleading is not a matter of right but is discretionary pleading but not incorporated or reiterated in the
on the court. Note the language of Sec. 6, Rule 10: amended pleading are deemed waived
“may”. [Sec. 8, Rule 10]

Purpose
To bring into the records new facts which will enlarge
or change the kind of relief to which the plaintiff is
entitled [Ada v. Baylon, G.R. No. 182435 (2012)]

Amended v. Supplemental Pleadings

Supplemental
Amended Pleadings
Pleadings
Refer to transactions,
occurrences or events
Refer to facts existing
which have happened
at the time of the
since the date of the
commencement of the
pleading sought to be
action
supplemented [Sec. 6,
Rule 10]
Either as a matter of
Always by leave of court
right or by leave of
[1 Regalado 211, 2010
court [See Sec. 2 and 3,
Ed.]
Rule 10]

Merely supplements,
Supersedes the
and exists side-by-side
pleading that it amends
with the original [1
[Sec. 7, Rule 10]
Riano 366, 2011 Ed.]
A new copy of the entire
pleading, incorporating
the amendments, which
No such requirement
shall be indicated by
exists [Sec. 6, Rule 10]
appropriate marks,
shall be filed [Sec. 7,
Rule 10]

Supplemental pleadings are not allowed on separate

and distinct causes of action but a supplemental
pleading may raise a new cause of action as long as it
has some relation to the original cause of action set
forth in the original complaint [Ada v. Baylon, G.R. No.
182435 (2012)]

6.  E ffect of Amended
Pleading
a.   An amended pleading supersedes the pleading
that it amends
b.   Admissions in the superseded pleadings may be
received in evidence against the pleader (as
extrajudicial admissions)

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  Summons based on the jurisdiction of the person, although

it may involve his right to, or the exercise of
ownership of, specific property, or seek to compel
Definition him to control or dispose of it in accordance with
The writ by which the defendant is notified of the the mandate of the court.
action brought against him [Licaros v. Licaros, G.R. No. b.   The purpose of a proceeding in personam is to
150656 (2003)] impose, through the judgment of a court, some
responsibility or liability directly upon the person
By whom issued of the defendant
Clerk of court [Sec. 1, Rule 14] [Domagas v. Jensen, G.R. No. 158407 (2005)]

When issued Purpose of summons in an action in personam

1.   Upon the filing of the complaint and a.   To acquire jurisdiction over the person of the
2.   Upon the payment of the requisite legal fees defendant in a civil case
[Sec. 1, Rule 14] b.   To give notice to the defendant that an action has
been commenced against him.
Contents [1 Riano 376, 2011 Ed.]
1.   Summons shall be
a.   Directed to the defendant Where the action is in personam, that is, one brought
b.   Signed by the clerk of court under seal against a person on the basis of his personal liability,
2.   Summons shall contain jurisdiction over the person of the defendant is
a.   The name of the court, and the names of the necessary for the court to validly try and decide the
parties to the action case [Velayo-Fong v. Velayo, G.R. No. 155488 (2006)]
b.   A direction that the defendant answer within
the time fixed by the ROC, and Action in rem
c.   A notice that unless the defendant so Actions against the thing itself. They are binding upon
answers, plaintiff will take judgment by the whole world. "Against the thing" means that
default and may be granted the relief applied resolution of the case affects interests of others
for whether direct or indirect. It also assumes that the
3.   The following shall be attached to the original and interests — in the form of rights or duties — attach to
each copy of the summons the thing which is the subject matter of litigation [De
a.   A copy of the complaint, and Pedro v. Romasan Development Corp., G.R. No. 194751
b.   An order for appointment of guardian ad (2014)]
litem, if any
[Sec. 2, Rule 14] Actions quasi in rem
A proceeding brought against persons seeking to
Who may serve summons subject the property of such persons to the discharge
1.   The sheriff of the claims assailed. In an action quasi in rem, an
2.   His deputy individual is named as defendant and the purpose of
3.   Other proper court officer, or the proceeding is to subject his interests therein to the
4.   For justifiable reasons, any suitable person obligation or loan burdening the property. Actions
authorized by the court quasi in rem deal with the status, ownership or liability
[Sec. 3, Rule 14] of a particular property but which are intended to
operate on these questions only as between the
The enumeration of persons who may validly serve particular parties to the proceedings and not to
summons is exclusive [1 Regalado 245, 2010 Ed.] ascertain or cut off the rights or interests of all possible
claimants. The judgments therein are binding only
1.   Nature and Purpose of upon the parties who joined in the action [Domagas v.
Jensen, G.R. No. 158407 (2005)]
Summons in Relation to
Purpose of summons in actions in rem and quasi in
Actions in personam, in rem
rem, and quasi in rem a.   Not to acquire jurisdiction over the defendant but
mainly to satisfy the constitutional requirement of
Action in personam due process
a.   A proceeding to enforce personal rights and b.   Jurisdiction over the defendant is not required
obligations brought against the person and is

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c.   The court acquires jurisdiction over an action as Note: There is no service of summons solely by
long as it acquires jurisdiction over the res that is registered mail except as an additional requirement
the subject matter of the action to service by publication. Where service is made by
[Macasaet v. Co, Jr., G.R. No. 156759 (2013)] publication, a copy of the summons and order of the
court shall be sent by registered mail to last known
address of defendant [Sec. 15, Rule 14]
2.  V oluntary Appearance
Any form of appearance in court, by the defendant, by 3.  Personal Service
his agent authorized to do so, or by attorney, is
equivalent to service except where such appearance is How done [Sec. 6, Rule 14]
precisely to object the jurisdiction of the court over the a.   By handing a copy of the summons to the
person of the defendant [Carballo v. Encarnacion, G.R. defendant in person, or
No. L- 5675 (1953)] b.   If he refuses to receive and sign for it, by tendering
it to him
General rule: Defendant's voluntary appearance in the
action shall be equivalent to service of summons [Sec. Personal Service of Personal Service of
20, Rule 14] Pleadings Summons
[Sec. 6, Rule 13] [Sec. 6, Rule 14]
Exceptions: Conditional appearance to file a motion to Papers may be served
dismiss challenging the court’s jurisdiction shall not a.   By delivering
be deemed a voluntary appearance. personally a copy to
a.   Special appearance operates as an exception to the party or his
the general rule on voluntary appearance; counsel, or
b.   Objections to the jurisdiction of the court over the b.   By leaving a copy in
person of the defendant must be explicitly made, the counsel’s office
i.e., set forth in an unequivocal manner; and
 with his clerk or
c.   Failure to do so constitutes voluntary submission with a person
to the jurisdiction of the court, especially in having charge
instances where a pleading or motion seeking thereof
affirmative relief is filed and submitted to the c.   If no person is
Summons is served to
court for resolution found in his office,
the defendant in person
[Philippine Commercial International Bank v. Spouses or his office is not
Dy, G.R. No. 171137 (2009)] known or he has no
office, then by
Inclusion in the motion to dismiss of grounds aside leaving the copy
from lack of jurisdiction over the defendant’s person, between 8 a.m. and
shall not be deemed a voluntary appearance [Sec. 20, 6 p.m., at the
Rule 14] party’s or counsel’s
residence, if known,
However, seeking affirmative relief other than with a person of
dismissal of the case is a manifestation of voluntary sufficient age and
submission to the court’s jurisdiction. The active discretion then
participation of a party in the proceedings is residing therein
tantamount to an invocation of the court’s jurisdiction
and a willingness to abide by the resolution of the
case, and will bar said party from later on impugning 4.  S ubstituted Service
the court’s jurisdiction [Republic v. Sereno, G.R. No.
237428 (2018), citing Philippine Commercial When allowed
International Bank v. Spouses Dy, G.R. No. 171137 If, for justifiable causes, the defendant cannot be
(2009)] served within a reasonable time as provided in Sec. 6,
Rule 14 (service in person on defendant) [Sec. 7, Rule
Modes of service of summons 14]
a.   Service in person on defendant [Sec. 6, Rule 14]
b.   Substituted service [Sec. 7, Rule 14] How done
c.   Service by publication [Sec. 14, Rule 14] a.   By leaving copies of the summons at the
d.   Extraterritorial service [Sec. 15-16, Rule 14] defendant’s residence with some person of

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suitable age and discretion then residing therein; Person in charge

or Must be the one managing the office or business of
b.   By leaving the copies at defendant’s office or defendant, such as the president or manager; and
regular place of business with some competent such individual must have sufficient knowledge to
person in charge thereof understand the obligation of the defendant in the
summons, its importance, and the prejudicial effects
Requisites arising from inaction on the summons [Prudential
It is necessary to establish the following Bank v. Magdamit, G.R. No. 183795 (2014)]
a.   Indicate the impossibility of service of summons
within a reasonable time
b.   Specify the efforts exerted to locate the
5.  C onstructive Service (by
defendant, and Publication)
c.   State that the summons was served upon:
1.   a person of sufficient age and discretion who a.   Service upon defendant whose identity or
is residing in the address, or whereabouts are unknown [Sec. 14, Rule 14]
2.   a person in charge of the office or regular b.   Service upon a resident temporarily out of the
place of business, of the defendant Philippines [Sec. 16, Rule 14]
d.   It is likewise required that the pertinent facts c.   Extraterritorial service [Sec. 15, Rule 14]
proving these circumstances be stated in the
proof of service or in the officer’s return
[Sps. Tiu v. Villar, A.M. No. P-11-2986 (2012)] a.   Service upon Defendant
Whose Identity or
Residence, defined
The place where the person named in the summons is
Whereabouts is Unknown
living at the time of when the service is made, even
though he may be temporarily out of the country at 1.   Defendant is designated as an unknown owner, or
that time [Venturanza v. CA, G.R. No. 77760 (1987)] the like, or
2.   His whereabouts are unknown and cannot be
The residence of a person is his personal, actual or ascertained with diligent inquiry
physical habitation or his actual residence or place of [Sec. 14, Rule 14]
abode, which may not necessarily be his legal
residence or domicile provided he resides therein with How service is effected
continuity and consistency [Boleyley v. Villanueva, G.R. 1.   By publication,
No. 128734 (1999)] 2.   In a newspaper of general circulation, and
3.   In such places, and
Person of sufficient age and discretion 4.   For such time as the court may order
a.   A person of suitable age and discretion is one who [Sec. 14, Rule 14]
has attained the age of full legal capacity (18 years
old) and is considered to have enough Sec. 14 applies to “any action,” making no distinction
discernment to understand the importance of a between actions in rem, in personam and quasi in rem.
summons.
b.   "Discretion" is defined as "the ability to make b.   Service upon Residents
decisions which represent a responsible choice
and for which an understanding of what is lawful,
Temporarily Outside the
right or wise may be presupposed". Philippines
c.   Thus, to be of sufficient discretion, such person
must know how to read and understand English When any action is commenced against a defendant
to comprehend the import of the summons, and who ordinarily resides within the Philippines, but who
fully realize the need to deliver the summons and is temporarily out of it, service may, by leave of court,
complaint to the defendant at the earliest be also effected out of the Philippines, as under Sec 15,
possible time for the person to take appropriate Rule 14 (extraterritorial service) [Sec. 16, Rule 14]
action. Thus, the person must have the "relation
of confidence" to the defendant, ensuring that the How summons served
latter would receive or at least be notified of the 1.   Service in person on defendant under Sec. 6, Rule
receipt of the summons 14, or
[Prudential Bank v. Magdamit, G.R. No. 183795 (2014)] 2.   Publication in a newspaper of general circulation
in such places and for such time as the court may

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order, in which case a copy of the summons and Upon prisoners

order of the court shall be sent by registered mail Where the defendant is a prisoner confined in a jail or
to the last known address of the defendant, or institution, service shall be effected upon him by the
3.   In any other manner the court may deem sufficient officer having the management of such jail or
[Sec. 15, Rule 14] institution who is deemed deputized as a special
sheriff for said purpose [Sec. 9, Rule 14]
Unlike in Sec. 15, Rule 14, service may be effected in
this manner for “any action,” not distinguishing Upon minors [Sec. 9, Rule 14]
between actions in rem, in personam, and quasi in rem. When the defendant is a minor
a.   Service shall be made upon
Even without Sec. 15, Rule 14, as the defendant has a 1.   The minor defendant personally; and
residence in the Philippines, summons may also be 2.   His legal guardian or if he has none, upon his
served through substituted service under Sec. 7, Rule guardian ad litem whose appointment shall
14. [1 Riano 391, 2011 Ed.] be applied for by the plaintiff
b.   Service may also be made on his father or mother
[Sec. 10, Rule 14]
6.  E xtraterritorial Service of
Summons, When Allowed OTHER DEFENDANTS

a.   When the defendant does not reside and is not Upon an entity without juridical personality
found in the Philippines, and a.   When applicable
b.   The action 1.   Persons are associated in an entity without
1.   Affects the personal status of the plaintiff or juridical personality, and
2.   Relates to, or the subject of which is, property 2.   They are sued under the name by which they
within the Philippines, in which the defendant are generally or commonly known
has or claims a lien or interest, actual or b.   Service may be effected upon all the defendants
contingent, or by serving upon
3.   In which the relief demanded consists, wholly 1.   Any one of them, or
or in part, in excluding the defendant from 2.   The person in charge of the office or place of
any interest therein, or business maintained in such name.
4.   The property of the defendant has been [Sec. 8, Rule 14]
attached within the Philippines
[Sec. 15, Rule 14] Upon incompetents
Service is effected upon
Service may, by leave of court, be effected out of the a.   The defendant personally, and
Philippines b.   His legal guardian or if he has none, upon his
a.   By personal service as under Sec. 6, Rule 14, or guardian ad litem whose appointment shall be
b.   By publication in a newspaper of general applied for by the plaintiff
circulation in such places and for such time as [Sec. 10, Rule 14]
court may order, in which case, a copy of the
summons and order of the court shall be sent by Upon a domestic private juridical entity
registered mail to the last known address of the Service is effected upon:
defendant, or a.   The president,
c.   In any other manner the court may deem b.   Managing partner,
sufficient. c.   General manager,
Any order granting such leave shall specify a d.   Corporate secretary,
reasonable time within which defendant must answer, e.   Treasurer, or
which shall not be less than 60 days after notice. f.   In- house counsel
[Sec. 15, Rule 14] [Sec. 11, Rule 14]

Upon a foreign private juridical entity

7.  Service upon Prisoners Service may be made on
and Minors a.   When the defendant is transacting business in the
Philippines:
1.   Upon the resident agent; or
2.   If there be no such agent, on the government
official designated by law to that effect, or

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3.   On any of its officers or agents within the b.   In such a case, or if the summons has been lost,
Philippines the clerk, on demand of the plaintiff, may issue an
b.   When the defendant is not registered in the alias summons.
Philippines or has no resident agent, with leave of [Sec. 5, Rule 14]
court
1.   By personal service coursed through the Proof of service shall
appropriate court in the foreign country with a.   Be made in writing by the server and
the assistance of the DFA b.   Set forth
2.   By publication once in a newspaper of 1.   the manner, place, and date of service;
general circulation in the country where the 2.   any papers which have been served with the
defendant may be found and by serving a process, and
copy of the summons and the court order by 3.   the name of the person who received the
registered mail at the defendant’s last known papers served
address; c.   Be sworn to when made by a person, other than
3.   By facsimile or any recognized electronic the sheriff or his deputy
means that can generate proof of service, or [Sec. 18, Rule 14]
4.   By such other means as the court may in its
discretion direct. If service has been made by publication, service may
[Sec. 12, Rule 14, as amended by A.M. No. 11-3-6-SC] be proved by
a.   The affidavit of the printer, his foreman or
Upon public corporations principal clerk; or of the editor, business or
Service may be effected advertising manager
a.   When the defendant is the Republic of the b.   A copy of the publication attached to the affidavit,
Philippines, on the Solicitor General; and
b.   In case of a province, city, municipality, or like c.   An affidavit showing the deposit of a copy of the
public corporations summons and order for publication in the post
1.   Its executive head, or office, with postage prepaid, directed to the
2.   Such officer/s as the law or the court may defendant by registered mail to the last known
direct address
[Sec. 13, Rule 14] [Sec. 18, Rule 14]

Effect of defect of proof of service

8.  P roof of Service a.   Where sheriff’s return is defective, presumption of
regularity in the performance of official functions
Return will not lie [Sps. Venturanza v. CA, G.R. No. 77760
When the service has been completed, the server shall (1987)].
a.   Within 5 days therefrom, serve a copy of the b.   Defective return is insufficient and incompetent to
return, personally or by registered mail, to the prove that summons was indeed served [Santiago
plaintiff’s counsel, and Syjuco, Inc. v. Castro, G.R. No. 70403 (1989)].
b.   Return the summons to the clerk who issued it, c.   Party alleging valid summons will now prove that
accompanied by proof of service summons was indeed served [Heirs of Manguiat v.
[Sec. 4, Rule 14] CA, G.R. No. 150768 (2008)].
d.   If there is no valid summons, court did not acquire
It is required to be given to the plaintiff’s counsel in jurisdiction which renders null and void all
order to enable him subsequent proceedings and issuances [Santiago
a.   To move for a default order should the defendant Syjuco, Inc. v. Castro, G.R. No. 70403 (1989)].
fail to answer on time [Sec.3, Rule 9], or
b.   In case of non-service, so that alias summons may
be sought [Sec. 5, Rule 14]
[1 Regalado 245, 2010 Ed.]

Alias summons
a.   If a summons is returned without being served on
any or all of the defendants, the server shall also
serve a copy of the return on the plaintiff’s
counsel, stating the reasons for the failure of
service, within five (5) days therefrom.

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  Motions Except for motions which the court may act upon
without prejudicing the rights of the adverse party,
every written motion shall be set for hearing by the
1.   Motions in general applicant [Sec. 4, Rule 15]

General rule: Motions shall be scheduled for hearing

a.   Definition of a Motion 1.   On Friday afternoons; or
2.   if Friday is a non-working day, in the afternoon of
A motion is any application for relief other than by a the next working day
pleading [Sec. 1, Rule 15]
Exception: Motions which require immediate action
[Sec. 7, Rule 15]
b.   Motions v. Pleadings
Notice of hearing
Motion Pleading Notice shall be addressed to all parties concerned,
Contains allegations of and shall specify the time and date of the hearing
Contains allegations of
the ultimate facts [Sec. which must not be later than 10 days after the filing of
facts [Sec. 3, Rule 15]
1, Rule 8] the motion [Sec. 5, Rule 15]
Prays for a relief [Sec. 1, Rule 15]
Generally in writing Every written motion required to be heard and the
Always in writing [Sec.
(with some exceptions) notice of the hearing thereof shall be served in such a
1, Rule 6]
[Sec. 2, Rule 15] manner as to ensure its receipt by the other party at
least 3 days before the date of hearing, unless the
General Rule: A motion does not pray for judgment [1 court for good cause sets the hearing on shorter notice
Riano 339, 2005 Ed.] [Sec. 4, Rule 15]

Exceptions: Purpose
1.   Motion for judgment on the pleadings [Sec. 1, Rule To prevent surprise upon the adverse party and to
34] enable the latter to study and meet the arguments of
2.   Motion for summary judgment [Sec. 1, Rule 35] the motion [J.M.Tuason & Co., Inc. v. Magdangal, G.R.
3.   Motion for dismissal on demurrer to evidence No. L-51458 (1962)]
[Sec. 1, Rule 33]
Notice must be addressed to the counsels. A notice of
c.   Contents and Form of Motions hearing addressed to the clerk of court, and not to the
parties, is no notice at all. Accordingly, a motion that
Contents does not contain a notice of hearing to the adverse
1.   Relief sought to be obtained, and party is nothing but a mere scrap of paper, as if it were
2.   Grounds upon which it is based, and not filed [Provident International Resources v. CA, G.R.
3.   With supporting affidavits and other papers if No. 119328 (1996)]
a.   Required by the ROC, or
b.   Necessary to prove facts alleged therein Exceptions to the three-day notice Rule:
[Sec. 3, Rule 15] 1.   Ex parte motions
2.   Urgent motions
Form 3.   Motions agreed upon by the parties to be heard on
General rule: In writing shorter notice, or jointly submitted by the parties
4.   Motions for summary judgment which must be
Exceptions: Motions made in served at least 10 days before its hearing [Sec. 3,
1.   Open court or Rule 35]
2.   The course of a hearing or trial [1 Regalado 264, 2010 Ed.]
[Sec. 2, Rule 15]
Proof of service
No written motion set for hearing shall be acted upon
d.   Notice of Hearing and Hearing by the court without proof of service thereof [Sec. 6,
of Motions Rule 15]

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Exceptions: treated as a motion intended to delay the proceedings

1.   If the motion is one which the court can hear ex [Marikina Development Corporation v. Flojo, G.R. No.
parte; and 110801 (1995)]
2.   If it would not cause prejudice to the adverse party
[Anama v. Philippine Savings Bank, G.R. No. 187021 Examples of pro forma motions:
(2012)] 1.   A motion without a notice of hearing [1 Riano 426,
2011 Ed.]
2.   A motion which was not set for hearing [1 Riano
e.   Omnibus Motion Rule 369, 2011 Ed.]
3.   A motion which was not served in the manner
General rule: A motion attacking a pleading, order, provided in Sec 4, Rule 15 [1 Riano 369, 2011 Ed.]
judgment, or proceeding shall include all objections 4.   A motion for reconsideration that does not specify
then available. All objections not included in the the findings or conclusions in the judgment which
motion are deemed waived [Sec. 8, Rule 15] are not supported by the evidence or contrary to
law, making express reference to the pertinent
Purpose: To require the movant to raise all available evidence or legal provisions [1 Riano 560, 2011
exceptions for relief during a single opportunity so that Ed.]
multiple and piece-meal objections may be avoided 5.   A second motion for reconsideration [1 Riano 560,
[Manacop v. Court o fAppeals, G.R. No. 104875 (1992)] 2011 Ed.]
6.   A motion for reconsideration which failed to
Exceptions: substantiate the alleged errors or which merely
1.   Lack of jurisdiction over subject matter alleged that the decision in question was contrary
2.   Litis pendentia to law [1 Riano 560, 2011 Ed.]
3.   Res judicata 7.   A motion for new trial which is preceding motion
4.   Prescription [Sec. 8, Rule 15; icow Sec. 1, Rule 9] for new trial or motion for reconsideration which
has already been denied [1 Regalado 427, 2010
f.   Litigated and Ex Parte motions Ed.]
8.   A second motion for new trial which alleges a
Litigated motions ground which already existed, was available and
One which requires the parties to be heard before a could have been alleged in the first motion for
ruling on the motion is made by the court; written new trial which was denied [1 Regalado 427, 2010
motions are generally litigated motions [1 Riano 368, Ed.]
2011 Ed.] 9.   A motion for new trial It is based on the ground of
fraud, accident, mistake, or excusable negligence
Ex parte motions but does not specify the facts constituting such
One which does not require such ruling, and upon grounds and/or is not accompanied by an
which the court may act without prejudicing the rights affidavit of merits [1 Regalado 428, 2010 Ed.]
of the other party [1 Riano 368, 2011 Ed.]
However, where the circumstances of a case do not
Section 4 lays the general rule that all written motions show an intent on the part of the pleader to merely
shall be set for hearing by the movant, except the non- delay the proceedings, and his motion reveals a bona
litigated motions or those which may be acted upon by fide effort to present additional matters or to reiterate
the court without prejudicing the rights of the adverse his arguments in a different light, the courts should be
party. These ex parte motions include a motion for slow to declare the same outright as pro forma [Guerra
extension of time to file pleadings, motion for Enterprises Co. v. CFI, L-28310 (1970)]
extension of time to file an answer, and a motion for
extension of time to file a record on appeal.
Nonetheless, a notice of time and place of hearing is
2.  M otion for Bill of
mandatory for motions for new trial or motion for Particulars
reconsideration [Spouses Rustia v. Rivera, G.R. No.
156903 (2006)] Before responding to a pleading, a party may move for
a definite statement or for a bill of particulars of any
matter which is not averred with sufficient definiteness
g.   Pro-forma Motions or particularity to enable him properly to prepare his
responsive pleading [Sec. 1, Rule 12]
A pro forma motion is one which does not satisfy the
requirements of the Rules and one which will be

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An action cannot be dismissed on the ground that the 1.   Deny, or

complaint is vague or indefinite. The remedy of the 2.   Grant the motion outright, or
defendant is to move for a bill of particulars, or avail of 3.   Allow the parties the opportunity to be heard
the proper mode of discovery [Galeon v. Galeon, G.R. [Sec. 2, Rule 12]
No. L-30380 (1973)]
c.   Compliance with the Order
a.   Purpose and When Applied and Effect of Non-Compliance
For
If motion is granted, either in whole or in part, the
Purpose: To enable the movant to prepare his pleader must file a bill of particulars or a more definite
responsive pleading [Sec. 1, Rule 12]. statement, within 10 days from notice of order, unless
the court fixes a different period.
It is not to enable the movant to prepare for trial. When
this is the purpose, the appropriate remedy is to avail The bill of particulars or a more definite statement
of Discovery Procedures under Rules 23 to 29 [1 Riano ordered by the court may be filed either in a separate
419, 2011 Ed.] pleading or in an amended pleading, serving a copy
thereof on the adverse party [Sec. 3, Rule 12]
When applied for
1.   Before responding to a pleading A bill of particulars becomes part of the pleading for
2.   If the pleading is a reply, within 10 days from which it was intended [Sec. 6, Rule 12]
service thereof
[Sec. 1, Rule 12] Effect of non-compliance
1.   If the order is not obeyed, or in case of insufficient
Contents compliance therewith, the court may
The motion shall point out a.   Order the striking out of the pleading or the
1.   The defects complained of portions thereof to which the order is
2.   The paragraph wherein they are contained, and directed, or
3.   The details desired b.   Make such order as it may deem just
[Sec. 1, Rule 12] [Sec. 4, Rule 12]
2.   If the plaintiff fails to obey, his complaint may be
The only question to be resolved in such motion is dismissed by the court. This dismissal shall have
whether the allegations in the complaint are averred the effect of an adjudication upon the merits,
with sufficient definiteness or particularity to enable unless otherwise declared by the court [Sec. 3,
the movant to properly prepare his responsive Rule 17]
pleading and to prepare for trial [Tantuico, Jr. v. 3.   If defendant fails to obey, his answer will be
Republic, G.R. No. 89114 (1991)] stricken off and his counterclaim dismissed, and
he will be declared in default upon motion of the
What cannot be done in a bill of particulars plaintiff [Sec. 3, Rule 9; Sec. 4, Rule 12; Sec. 4,
1.   To supply material allegations necessary to the Rule 17]
validity of a pleading [1 Riano 422, 2011 Ed.]
2.   To change a cause of action or defense stated in
the pleading
3.   To state a cause of action or defense other than
d.   Effect on the Period to File
the one stated Responsive Pleading
4.   To set forth the pleader’s theory of his cause of
action or a Rule of evidence on which he intends Provided that the Motion for Bill of Particulars is
to reply sufficient in form and substance, it stays the period for
5.   To furnish evidentiary information the movant to file his responsive pleading [1 Riano
[Virata v. Sandiganbayan, G.R. No. 103527 (1993)] 422, 2011 Ed.]

When to file responsive pleading

b.   Action of the Court 1.   After
a.   Service of the bill of particulars or of a more
Upon the filing of the motion, the clerk of court must definite pleading, or
immediately bring it to the attention of the court, b.   Notice of denial of his motion
which may either 2.   The moving party may file his responsive pleading

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a.   Within the period to which he was entitled at General rule: A court may not dismiss a case motu
the time of filing his motion, propio, unless a motion to dismiss is filed by a party.
b.   Which shall not be less than 5 days in any
event Exceptions:
[Sec. 5, Rule 12] a.   Upon the grounds stated in Sec. 1, Rule 9:
1.   lack of subject matter jurisdiction
2.   res judicata
3.  Motion to Dismiss 3.   litis pendentia
4.   prescription
A motion to dismiss under Rule 16 is a motion filed by b.   Due to fault of the plaintiff, under Sec. 3, Rule 17;
the defending party against the complaint or against c.   Pursuant to Sec. 4, Revised Rule on Summary
any pleading asserting a claim. Thus, the original Procedure: dismiss the case outright on any of the
defendant may file a motion to dismiss the complaint grounds apparent therefrom for the dismissal of a
of the original plaintiff. A plaintiff may also file a civil action
motion to dismiss the defendant’s counterclaim and a
defendant may file a motion to dismiss a co-
defendant’s cross-claim. A third-party defendant may a.   Grounds
also file a motion to dismiss a third-party complaint
filed by the original defendant against him [1 Riano 1.   Lack of jurisdiction over the person of the
465-466, 2005 Ed.] defendant
2.   Lack of jurisdiction over the subject matter of the
The motion hypothetically admits the truth of the claim
factual allegations stated in the complaint [1 Riano 3.   Improper venue
424, 2011 Ed.]. 4.   Plaintiff’s lack of legal capacity to sue
5.   Litis pendentia
It is not a responsive pleading. It is not a pleading at 6.   Res judicata
all. It is merely a motion [1 Riano 423, 2011 Ed.]. 7.   Prescription
8.   Failure to state a cause of action
It is subject to the omnibus motion rule since it is a 9.   Extinguished claim
motion that attacks a pleading. Hence, it must raise all 10.   Unenforceable claim under the Statute of Frauds
objections then available [Sec. 8, Rule 15]. 11.   Non-compliance with a condition precedent for
filing claim
Types of dismissal of action [Sec. 1, Rule 16]
a.   Upon Motion to Dismiss under Rule 16
b.   Dismissal of the action either upon notice by the Except in those cases where the court may dismiss a
plaintiff or upon his own motion under Secs. 1 and case motu proprio, an action cannot be dismissed on a
2, Rule 17 ground not alleged in the motion therefor even if said
c.   Dismissal of the action under Sec. 3, Rule 17 for ground, e.g., prescription, is provided for in Rule 16 [1
causes attributable to the plaintiff Regalado 272, 2010 Ed,, citing Malig v. Bush, G.R. No.
d.   Upon demurrer to evidence after plaintiff has L-22761 (1969)], unless such fact of prescription
presented his evidence under Rule 33 appears in the allegations of the complaint or in
e.   Dismissal of an appeal under Rule 50 plaintiffs' evidence [1 Regalado 272, 2010 Ed,, citing
[1 Riano 465-466, 2005 Ed.] Garcia v. Mathis, G.R. No. L-48557 (1980)].

Period to File With much more reason should an order of dismissal

General rule: Within the time for but before filing of the be nullified if it is based on a ground not authorized by
answer to the complaint or pleading asserting a claim Rule 16, i.e., for supposedly being moot and academic
[Sec. 1, Rule 16] [1 Regalado 272, 2010 Ed,, citing Borje v. CFI of Misamis
Occidental, G.R. No. L-49315 (1979)].
Exceptions:
a.   For special reasons which may be allowed even LACK OF JURISDICTION OVER THE PERSON OF
after trial has begun, a motion to dismiss may be THE DEFENDANT
filed
b.   The court has allowed the filing of a motion to In La Naval Drug Corp. v. CA [G.R. No. 103200 (1994)],
dismiss where the evidence that would constitute the Court held that while lack of jurisdiction over the
a ground for dismissal was discovered during trial person of defendant may be duly and seasonably

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raised, his voluntary appearance in court without the party entitled to assert it had abandoned
qualification is a waiver of such defense. or declined to assert it.
ii.   Estoppel by laches may be invoked to bar the
Sec. 20, Rule 14 makes a categorical statement that issue of lack of jurisdiction only in cases in
the inclusion in a motion to dismiss of other grounds which the factual milieu is analogous to that
aside from lack of jurisdiction over the person of the in Tijam v. Sibonghanoy
defendant shall not be deemed voluntary appearance [Figueroa v. People, G.R. No. 147406 (2008), citing
on his part. Francel Realty Corporation v. Sycip, G.R. No.
154684 (2005)]
LACK OF JURISDICTION OVER THE SUBJECT
MATTER IMPROPER VENUE
General rule: Lack of jurisdiction over the subject Unless and until the defendant objects to the venue in
matter may be raised at any stage of the proceedings a MTD prior to a responsive pleading, the venue
[North Greenhills Association, Inc. v. Morales, G.R. No. cannot truly be said to have been improperly laid [Diaz
222821 (2017)] v. Adiong, G.R. No. 106847 (1993)]

When it appears from the pleadings or the evidence on Where a motion to dismiss for improper venue is
record that the court has no jurisdiction over the erroneously denied, the remedy is prohibition
subject matter, the court shall dismiss the claim even [Enriquez v. Macadaeg, G.R. No. L-2422 (1949)]
without a motion to dismiss [Sec. 1, Rule 9; 1 Regalado
185, 2010 Ed.] PLAINTIFF HAS NO LEGAL CAPACITY TO SUE
The plaintiff lacks legal capacity to sue:
A motion to dismiss on this ground may also be raised a.   When he does not possess the necessary
a.   Before answer qualification to appear at the trial (e.g. when he
b.   After answer is filed plaintiff is not in the full exercise of his civil rights);
c.   After hearing had commenced b.   When he does not have the character which he
d.   At any stage of the proceeding, even for the first claims, which is a matter of evidence (e.g. when
time on appeal and even if no such defense is he is not really a duly appointed administrator of
raised in the answer an estate)
[1 Riano 81, 2011 Ed.] [Recreation and Amusement Association of the
Philippines v. City of Manila, G.R. No. L-7922 (1957)]
Note: The Rule refers to the subject matter of each
particular claim and not only to that of the suit. Hence, Lack of legal capacity to sue refers to plaintiff’s
other initiatory pleadings included [1 Regalado 275, disability; while lack of legal personality to sue refers
2010 Ed.] to the fact that the plaintiff is not a real party in
interest, in which case the ground for dismissal would
Exceptions: be that the complaint states no cause of action
a.   Estoppel [Columbia Pictures, Inc. v. CA, G.R. No. 110318 (1996)]
Where a party invokes the jurisdiction of a court to
obtain affirmative relief and fails, he cannot The issue of plaintiff’s lack of legal capacity to sue
thereafter repudiate such jurisdiction. While the cannot be raised for the first time on appeal where the
issue of jurisdiction may be raised at any time, he defendant dealt with the former as a party in the
is estopped as it is tantamount to speculating on proceedings below [Univ. of Pangasinan Faculty Union
the fortunes of litigation [Crisostomo, et al. v. CA, v. Univ. of Pangasinan, G.R. No. 64821-23 (1993)]
G.R. No. 27166 (1970)]
b.   Estoppel by laches LITIS PENDENTIA
Laches is failure or neglect, for an unreasonable Requisites
and unexplained length of time, to do that which, a.   Identity of parties, or at least such as representing
by exercising due diligence, could or should have the same interest in both actions;
been done earlier; it is negligence or omission to b.   Identity of rights asserted and relief prayed for,
assert a right within a reasonable time, the relief being founded on the same facts; and
warranting a presumption that the party entitled c.   Identity of the two cases such that judgment in
to assert it either has abandoned it or declined to one would amount to Res judicata on the action
assert it [Tijam v. Sibonghanoy, G.R. No. L-21450 under consideration
(1968)] [Film Development Council of the Philippines v. SM
i.   Lack of jurisdiction must have been raised so Prime Holdings, Inc., G.R. No. 197937 (2013)]
belatedly as to warrant the presumption that

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The 1st case shall be abated if it is merely an STATUTE OF LIMITATIONS/PRESCRIPTION

anticipatory action or defense against an expected Prescription applies only when the complaint on its
suit. The 2nd case will not be abated if it is not brought face shows that indeed the action has already
to harass [Vitrionics Computers v. RTC, G.R. No. prescribed [1 Regalado 280, 2010 Ed.]
104019 (1993)]
If the fact of prescription is not indicated on the face of
RES JUDICATA the complaint and the same may be brought out later,
Two concepts of res judicata the court must defer decision on the motion until such
a.   Bar by prior judgment [Sec. 47(b), Rule 39] time as proof may be presented on such fact of
Judgment on the merits in the first case prescription [1 Regalado 280, 2010 Ed.]
constitutes an absolute bar to the subsequent
action not only as to every matter which was Prescription Laches
offered and received to sustain or defeat the claim Concerned with the fact Concerned with the
or demand, but also to any other admissible of delay effect of delay
matter which might have been offered for that A question of inequity
purpose and to all matters that could have been of permitting a claim to
adjudged in that case. be enforced, this
b.   Conclusiveness of judgment [Sec. 47(c), Rule 39] inequity being founded
The second action is upon a different claim or A matter of time
on some change in the
demand, the judgment in the first case operates condition of the
as an estoppel only with regard to those issues property or the relation
directly controverted, upon the determination of of the parties
which the judgment was rendered. Statutory Not statutory
[Topacio v. Banco Savings and Mortgage Bank, G.R. Applies at law Applies in equity
No. 157644 (2010)] Based on fixed time Not based on fixed time
[Agra v. Philippine National Bank, G.R. No. 133317
Requisites for “bar by prior judgment” (1999)]
a.   Former judgment or order must be final
b.   The judgment or order must be on the merits Defense of prescription is waived and cannot be
c.   The decision must have been rendered by a court considered on appeal if not raised in the trial court
having jurisdiction over the subject matter and the [Ramos v. Osorio, G.R. No. L-27306 (1971)]
parties
d.   There must be, between the two actions, identity However, if the allegations of the complaint, or
of evidence presented, clearly indicate that the action
1.   of parties has prescribed, or where there is no issue in fact as to
2.   of subject matter, and prescription, defense of prescription is not deemed
3.   of causes of action waived by failure to allege the same [Chua Lamko v.
[Topacio v. Banco Savings and Mortgage Bank, G.R. Dioso, G.R. No. L-6293 (1955)]
No. 157644 (2010)]
Estoppel and prescription cannot be invoked against
The test of identity of cause of action lies not in the the State [Republic v. CA, G.R. No. 116111 (1999)]
form of the action but on whether or not the same
evidence would support and establish the former and A motion to dismiss on the ground of prescription will
the present causes of action [DBP v. Pundogar, G.R. be given due course only if the complaint shows on its
No. 96921 (1993)] face that the action has already prescribed [Sison v.
McQuaid, G.R. No. L-6304 (1953)]
Rationale: The sum and substance of the whole
doctrine is that a matter once judicially decided is The court shall not defer the resolution of the motion
finally decided because of for the reason that the ground relied upon is not
a.   Public policy and necessity makes it the interest of indubitable [Sec. 3, Rule 16]. Thus:
the State that there should be an end to litigation a.   Evidence may be received in support of the motion
b.   The hardship on the individual that he should be under Sec. 2, Rule 16; or
vexed twice for the same cause b.   The motion to dismiss should be denied without
[Nabus v. CA, G.R. No. 91670 (1991)] prejudice to the complaint’s dismissal if evidence
disclose that the action had already prescribed
[Sec. 1, Rule 9]

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COMPLAINT STATES NO CAUSE OF ACTION Exceptions: A motion to dismiss

a.   does not admit the truth of mere epithets of fraud
Failure to state a cause of action and lack of cause of b.   nor allegations of legal conclusions
action are distinct grounds to dismiss a particular c.   nor an erroneous statement of law
action. The former refers to the insufficiency of the d.   nor mere inferences or conclusions from facts not
allegations in the pleading, while the latter to the stated
insufficiency of the factual basis for the action. e.   nor mere conclusions of law
Dismissal for failure to state a cause of action may be f.   nor allegations of fact the falsity of which is
raised at the earliest stages of the proceedings subject to judicial notice
through a motion to dismiss under Rule 16, while g.   nor matters of evidence
dismissal for lack of cause of action may be raised any h.   nor surplusage and irrelevant matter
time after the questions of fact have been resolved on i.   nor scandalous matter inserted merely to insult
the basis of stipulations, admissions or evidence the opposing party
presented by the plaintiff. j.   nor to legally impossible facts
k.   nor to facts which appear unfounded by a record
A complaint states a cause of action if it sufficiently incorporated in the pleading, or by a document
avers the existence of the three (3) essential elements referred to, and
of a cause of action, namely: (a) a right in favor of the l.   nor to general averments contradicted by more
plaintiff by whatever means and under whatever law it specific averments
arises or is created; (b) an obligation on the part of the [NM Rothschild & Sons (Australia) Limited v. Lepanto
named defendant to respect or not to violate such Consolidated Mining Company, G.R. No. 175799 (2011)]
right; and (c) an act or omission on the part of the
named defendant violative of the right of the plaintiff If the court finds the allegations of the complaint to be
or constituting a breach of the obligation of defendant sufficient but doubts their veracity, it must deny the
to the plaintiff for which the latter may maintain an MTD and require the defendant to answer and then
action for recovery of damages. If the allegations of proceed to try the case on its merits [The World Wide
the complaint do not state the concurrence of these Insurance & Surety Co., Inc. v. Manuel, G.R. No. L-8042
elements, the complaint becomes vulnerable to a (1955)]
motion to dismiss on the ground of failure to state a
cause of action. If the suit is not brought against the real party-in-
interest, a motion to dismiss may be filed on the
It is well to point out that the plaintiff’s cause of action ground that the complaint states no cause of action
should not merely be "stated" but, importantly, the [Tanpinco v. IAC, G.R. No. 76225 (1992)]
statement thereof should be "sufficient." This is why
the elementary test in a motion to dismiss on such Complaint states no
Lack of cause of action
ground is whether or not the complaint alleges facts cause of action
which if true would justify the relief demanded. As a Insufficiency of
corollary, it has been held that only ultimate facts and Insufficiency of factual
allegations in the
not legal conclusions or evidentiary facts are basis for the action
pleading
considered for purposes of applying the test. This is May be raised in a
consistent with Sec. 1, Rule 8 which states that the May be raised at any
motion to dismiss under
complaint need only allege the ultimate facts or the time
Rule 16
essential facts constituting the plaintiff’s cause of Dismissal due to lack of
action. A fact is essential if they cannot be stricken out Dismissal due to failure cause of action is made
without leaving the statement of the cause of action to state a cause of after questions of fact
inadequate. Since the inquiry is into the sufficiency, action can be made at have been resolved on
not the veracity, of the material allegations, it follows the earliest stages of an the basis of
that the analysis should be confined to the four action stipulations, admissions
corners of the complaint, and no other. or evidence presented
[Zuniga-Santos v. Santos-Gran, G.R. No. 197380 [Aquino v. Quiazon, G.R. No. 201248 (2015)
(2014)]
CLAIM EXTINGUISHED
General rule: In a motion to dismiss, a defendant That the claim/demand set forth in the plaintiff's
hypothetically admits the truth of the material pleading has been paid, waived, abandoned or
allegations of the ultimate facts contained in the otherwise extinguished [Sec. 1(h), Rule 16]
plaintiff's complaint.

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UNENFORCEABLE CLAIM UNDER THE STATUTE c.   Prior resort to barangay conciliation proceedings
OF FRAUDS is necessary in certain cases [Book III, Title I,
Chapter 7, LGC]
Art. 1403(2) of the Civil Code requires certain contracts d.   Earnest efforts toward a compromise must be
to be evidenced by some note or memorandum in undertaken when the suit is between members of
order to be enforceable, to wit the same family and if no efforts were in fact
a.   An agreement that by its terms is not to be made, the case must be dismissed, [Art. 151, FC]
performed within a year from the making thereof e.   Arbitration may be a condition precedent when
b.   A special promise to answer for the debt, default, the contract between the parties provides for
or miscarriage of another arbitration first before recourse to judicial
c.   An agreement made in consideration of marriage, remedies
other than a mutual promise to marry [1 Riano 333-334, 2014 Bantam Ed.]
d.   An agreement for the sale of goods, chattels or
things in action, at a price not less than PHP 500, Where the plaintiff has not exhausted all
unless the buyer accept and receive part of such administrative remedies, the complaint not having
goods and chattels, or the evidences, or some of alleged the fact of such exhaustion, the same may be
them, of such things in action, or pay at the time dismissed for lack of cause of action [Pineda v. CFI
some part of the purchase money; but when a sale Davao, et al., G.R. No. L-12602 (1961)]
is made by auction and entry is made by the
auctioneer in his sales book, at the time of the A complaint may be dismissed by the court, motu
sale, of the amount and kind of property sold, proprio, for non-exhaustion of administrative remedies
terms of sale, price, names of the purchasers and since it affects the cause of action [Municipality of
person on whose account the sale is made, it is a Hinabañgan v. Municipality of Wright, G.R. No. L-
sufficient memorandum 12603 (1960)]
e.   An agreement for the leasing for a longer period
than one year, or for the sale of real property or of Where the complaint does not state that it is one of the
an interest therein excepted cases, or it does not allege prior availment of
f.   A representation as to the credit of a third person conciliation process, or it does not have a certification
that no conciliation or settlement had been reached
Unlike a motion to dismiss on the ground that the under P.D. 1508, case should be dismissed on motion
complaint states no cause of action, a motion invoking [Morata v. Go, et al., G.R. No. L-62339 (1983)]
the Statute of Frauds may be filed even if the absence
of a cause of action does not appear on the face of the Where the defendant had participated in the trial court
complaint. Such absence may be proved during the without any invocation of PD 1508, and the judgment
hearing of the motion to dismiss on said ground therein had become final and executory, but said
[Yuviengco et al. v. Dacuycuy, etc., et al., G.R. No. L- defendant thereafter sought the annulment of the
55048 (1981)] decision for alleged lack of jurisdiction, the same was
denied under the doctrine of estoppel and laches
NON-COMPLIANCE WITH A CONDITION [Royales, et al., v. IAC, G.R. No. L-65072 (1984)]
PRECEDENT

Conditions precedent
b.   Resolution of Motion
Common usage refers to conditions precedent as
matters which must be complied with before a cause A motion to dismiss is a litigated motion and should
of action arises. When a claim is subject to a condition be heard [1 Riano 487, 2014 Bantam Ed.]
precedent, the compliance of the same must be 1.   In the hearing, the parties shall submit their
alleged in the pleading [1 Riano 333, 2014 Bantam Ed.] arguments on the questions of law and their
evidence on the questions of fact involved if such
Examples of conditions precedent: evidence is available at the time of the hearing
a.   A tender of payment is required before making a 2.   Should the case go to trial, the evidence
consignation [Art. 1256, CC] presented during the hearing shall automatically
b.   Exhaustion of administrative remedies is required be part of the evidence of the party presenting the
in certain cases before resorting to judicial action same
[Lopez v. City of Manila, G.R. No. 127139 (1999); Dy [Sec. 2, Rule 16]
v. CA, G.R. No. 121587 (1999)]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Lack of formal hearing is not fatal when the issues 1.   Within the balance of the period prescribed under
raised were fully discussed in the motion and Rule 11 to which he was entitled at the time of
opposition [Castillo v. CA, G.R. No. L-52008 (1988)] serving his motion,
2.   But not less than 5 days in any event,
After the hearing, the court may: Computed from his receipt of the notice of the denial
1.   Dismiss the action/claim [Sec. 4, Rule 16]
2.   Deny the motion, or
3.   Order the amendment of the pleading If the pleading is ordered to be amended, the movant
[Sec. 3, Rule 16] shall file his answer
1.   Within the period prescribed by Rule 11, counted
The court cannot defer the resolution of the motion for from service of amended pleading,
the reason that the ground relied upon is not 2.   Unless a longer period is prescribed by the court
indubitable. In every case, the resolution shall state [Sec. 4, Rule 16]
clearly and distinctly state the reasons therefor [Sec.
3, Rule 16] As a rule, the filing of an answer and going through
the usual trial process, and later, the filing of an
answer and going through the usual trial process, and
c.   Remedies of Plaintiff When later, the filing of a timely appeal form an adverse
the Complaint is Dismissed judgment are the proper remedies against a denial of
a motion to dismiss
If the motion is granted, the complaint is dismissed.
The plaintiff has several options: The filing of an appeal from an order denying a motion
1.   Depending upon the ground for the dismissal of to dismiss is not the remedy prescribed by existing
the action, the plaintiff may simply refile the rules. The order of denial, being interlocutory, is not
complaint (e.g. if the ground for dismissal was appealable by express provision of Sec. 1(b), Rule 41.
anchored on improper venue) [1 Riano 483, 2014 Bantam Ed.]
2.   He may appeal from the order of dismissal where
the ground relied upon is one which bars the
refiling of the complaint like res judicata,
e.   Effect of Dismissal of
prescription, extinguishment of the obligation or Complaint on Certain Grounds
violation of the statute of frauds [Sec. 5, Rule 16].
Since the complaint cannot be refiled, the An order granting a motion to dismiss shall bar the
dismissal is with prejudice. refiling of the same action or claim if the dismissal is
3.   The plaintiff may also avail of a petition for based on the following grounds
certiorari. This remedy is available if the court 1.   The cause of action is barred by a prior judgment
gravely abuses its discretion in a manner [Sec. 1(f), Rule 16]
amounting to lack of jurisdiction and is the 2.   The cause of action is barred by the statute of
appropriate remedy in those instances when the limitations [Sec. 1(f), Rule 16]
dismissal is without prejudice 3.   The claim or demand has been paid, waived,
[1 Riano 485-486, 2014 Bantam Ed.] abandoned, or otherwise extinguished [Sec. 1(h),
Rule 16]
Note: Following the tenor of Sec. 1(g) of Rule 41, an 4.   The claim on which the action is founded is
order dismissing a complaint for lack of jurisdiction unenforceable under the Statute of Frauds [Sec.
over the subject matter is a dismissal without 1(i), Rule 16]
prejudice and, hence, no appeal may be had from the [Sec. 5, Rule 16, cited in 1 Riano 486, 2014 Bantam Ed.]
order of dismissal. Despite Sec. 1, Rule 41, appeal may,
nevertheless, be taken from the order dismissing an The remedy is to file an appeal because, by the clear
action for lack of jurisdiction over the subject matter in language of Sec. 5, Rule 16, the dismissal is subject to
a situation contemplated under Sec. 8, Rule 40 [1 the right of appeal [1 Riano 486, 2014 Bantam Ed.]
Riano 485, 2014 Ed.]
f.   When grounds pleaded as
d.   Remedies of Defendant When affirmative defenses
the Motion is Denied
1.   If no motion to dismiss had been filed, any of the
If the motion is denied, the movant shall file his grounds for dismissal may be pleaded as an
answer affirmative defense and, in the discretion of the

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

court, a preliminary hearing may be had thereon

as if a motion to dismiss had been filed.   Dismissal of Actions
2.   The dismissal of the complaint under this section
shall be without prejudice to the prosecution in 1.   Dismissal upon Notice by
the same or separate action of a counterclaim
pleaded in the answer. the Plaintiff; Two
[Sec. 6, Rule 16]
Dismissal Rule
g.   Bar by Dismissal Dismissal by plaintiff as a matter of right
a.   A complaint may be dismissed by the plaintiff by
General rule: The action/claim may be refiled. filing a notice of dismissal at any time before
service of
Exception: An order granting a motion to dismiss 1.   The answer, or
based on 2.   A motion for summary judgment
1.   Res judicata b.   Upon such notice being filed, the court shall issue
2.   Prescription an order confirming the dismissal.
3.   Extinguishment of the claim/demand, and [Sec. 1, Rule 17]
4.   Unenforceability under the Statute of Frauds,
shall bar the refiling of the same action or claim [Sec. Note: Sec. 1, Rule 17 refers to “before service”, not
5, 1(f), (h), (i), Rule 16] “before filing.”

Withdrawal is not automatic but requires an order by

h.   Distinguished from Demurrer the court confirming the dismissal. Until thus
to Evidence under Rule 33 confirmed, the withdrawal does not take effect [1
Herrera 1055, 2007 Ed.]
Motion to Dismiss Demurrer to Evidence
Grounded on Based on insufficiency The requirement requiring an order confirming the
preliminary objections of evidence dismissal is in keeping with the respect due the court
May be filed by any May be filed only by the [1 Herrera 1056, 2007 Ed.]
defending party against defendant against the
whom a claim is complaint of the It is not the order confirming the dismissal which
asserted in the action plaintiff operates to dismiss the complaint. As the name of the
Should be filed within May be filed for the order implies, it merely confirms the dismissal already
the time for but prior to dismissal of the case effected by the filing of the notice [1 Riano 489, 2014
the filing of the answer only after the plaintiff Bantam Ed.]
of the defending party has completed the
to the pleading presentation of his General rule: Dismissal is without prejudice
asserting the claim evidence [Sec. 1, Rule
against him 33] Exceptions:
If denied, defendant a.   Unless otherwise stated in the notice
If denied, defendant b.   A notice operates as an adjudication upon the
must file an answer, or
may present evidence merits when filed by a plaintiff who has once
else he may be declared
[Sec. 1, Rule 33] dismissed in a competent court an action based
in default
If granted, but on on or including the same claim
appeal the order of [Sec. 1, Rule 17]
If granted, plaintiff may
dismissal is reversed he
appeal or if subsequent Two-dismissal Rule
shall be deemed to
case is not barred, he Applies when the plaintiff has
have waived the right to
may re-file the case a.   Twice dismissed actions
present evidence [Sec.
1, Rule 33] b.   Based on or including the same claim
[1 Regalado 270-271, 2010 Ed.] c.   In a court of competent jurisdiction
[1 Riano 490, 2014 Bantam Ed.]

The notice of dismissal operates as an adjudication

upon the merits [Sec. 1, Rule 17]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

with want of due diligence in failing to

2.  D ismissal upon Motion of proceed with reasonable promptitude
Plaintiff; Effect on [Calalang v. CA, G.R. No. 103185 (1993)]
2.   The dismissal of an action pursuant to this
Existing Counterclaim Rule rests upon the sound discretion of the
court [Smith Bell and Co. v. American
A complaint shall not be dismissed at the plaintiff’s President Lines Ltd. (1954)]
instance save upon approval of the court and upon 3.   The action should never be dismissed on a
such terms and conditions as the court deems proper non-suit for want of prosecution when the
[Sec. 2, Rule 17] delay was caused by the parties looking
towards a settlement [Goldloop Properties
General rule: Dismissal is without prejudice Inc. v. CA, G.R. No. 99431 (1992)]
c.   Fails to comply with the ROC or any court order.
Exception: Otherwise specified in the order 1.   Failure to comply with a court order is ground
[Sec. 2, Rule 17] for dismissal of the case [1 Regalado 307,
2010 Ed., citing Aranico-Robino v. Aquino,
Effect on counterclaim G.R. No. L-46641 (1977)]
The dismissal shall be without prejudice to the right of 2.   Dismissal for failure to comply with order to
the defendant to prosecute his counter claim in a amend complaint to make claims asserted
separate action unless within 15 days from notice of more definite is ground for dismissal [Santos
the motion he manifests his preference to have his v. General Wood Craft, G.R. No. L-28996
counterclaim resolved in the same action [Sec. 2, Rule (1982)]
17] 3.   Failure to comply with an order to include
indispensable parties is ground for dismissal
Note: Sec. 2, Rule 17 is clear: the counterclaim is not [Aranico-Rubino v. Aquino, G.R. No. L-46641
dismissed, whether it is a compulsory or a permissive (1977)]
counterclaim because the rule makes no distinction [1 4.   The failure to comply with order of new judge
Riano 491, 2014 Bantam Ed.] to recall witness so he may observe demeanor
is sufficient ground for dismissal [Castillo v.
3.  Dismissal Due to Fault of Torres, G.R. No. 9181 (1915)]
5.   The failure of the parties to submit a
the Plaintiff compromise agreement within period
granted to them by court is not a ground for
The complaint may be dismissed upon motion of the dismissal [Goldloop Properties Inc. v. CA, G.R.
defendant or upon the court’s own motion if, for no No. 99431 (1992)]
justifiable cause, the plaintiff 6.   Dismissal is improper where a 3rd party
a.   Fails to appear on the date of the presentation of complaint has been admitted and the 3rd
his evidence in chief on the complaint party defendant had not yet been summoned
1.   The plaintiff’s failure to appear at the trial [Sotto v. Valenzuela, G.R. No. L- 12732 (1959)]
after he has presented his evidence and 7.   A case may be dismissed for failure to answer
rested his case does not warrant the dismissal written interrogatories under Rule 25 even
of the case on the ground of failure to without an order from the court to answer
prosecute. It is merely a waiver of his right to [Arellano v. CFI Sorsogon, G.R. No. L-34897
cross-examine and to object to the (1975)]
admissibility of evidence [Jalover v. Ytoriaga, [Sec. 3, Rule 17]
G.R. No. L-35989 (1977)]
2.   Since plaintiff’s presence is now required only General rule: This dismissal shall have the effect of an
during the presentation of his evidence in adjudication upon the merits
chief, his absence during the presentation of
defendant or other parties’ evidence, or even Exception: Otherwise declared by the court
at rebuttal or subsequent stages, is not a [Sec. 3, Rule 17]
ground for dismissal.
b.   Fails to prosecute his action for an unreasonable Effect on counterclaim
length of time) Dismissal is without prejudice to the right of the
1.   The test for dismissal of a case due to failure defendant to prosecute his counterclaim in the same
to prosecute is WON, under the or in a separate action [Sec. 3, Rule 17]
circumstances, the plaintiff is chargeable

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Sec. 3, as well as Sec. 6, Rule 16, does not require the

defendant to manifest his preference within a 15-day   Pre-trial
period, as in Sec. 2, Rule 17. The reason is that the
motions to dismiss contemplated in Sec. 6, Rule 16 1.   Concept of Pre-Trial
and in Sec. 3, Rule 17 are filed by the defendant who
perforce has already deliberated upon the course of Pre-trial is a procedural device by which the court is
action he intends to take on his counterclaim and called upon, after the filing of the last pleading, to
which he may even manifest right in his motion to compel the parties and their lawyers to appear before
dismiss the complaint [1 Regalado 304-305, 2010 Ed.] it, and negotiate an amicable settlement or otherwise
make a formal settlement and embody in a single
4.  D ismissal of document the issues of fact and law involved in the
action, and such other matters as may aid in the
Counterclaim, Cross- prompt disposition in the action, such as the
Claim, or Third-Party a.   Number of witnesses the parties intend to present
b.   Tenor or character of their testimonies
Complaint c.   Documentary evidence
d.   Nature and purpose of each of them
a.   Provisions of Rule 17 shall apply to the dismissal e.   Number of trial dates that each will need to put on
of any counterclaim, cross-claim, or third-party his case
complaint [1 Herrera 1074, 2007 Ed.]
b.   Voluntary dismissal by the claimant by notice as
in Sec. 1, Rule 17 shall be made:
1.   Before a responsive pleading or a motion for
2.  N ature and Purpose
summary judgment is served; or
2.   If there is none, before the introduction of Purpose of pre-trial is to consider
evidence at trial or hearing a.   Possibility of an amicable settlement or of a
[Sec. 4, Rule 17] submission to alternative modes of dispute
resolution
b.   Simplification of the issues
c.   Necessity/desirability of amendments to the
pleadings
d.   Possibility of obtaining stipulations or admissions
of facts and of documents to avoid unnecessary
proof
e.   Limitation of the number of witnesses
f.   Advisability of a preliminary reference of issues to
a commissioner
g.   Propriety of rendering judgment on the pleadings,
or summary judgment, or of dismissing the action
should a valid ground therefor be found to exist
h.   Advisability/necessity of suspending the
proceedings, and
i.   Such other matters as may aid in the prompt
disposition of the action
[Sec. 2, Rule 18]

Pre-trial is mandatory
Pre-trial and its governing Rules are not technicalities
which the parties may ignore or trifle with. Pre-trial is
essential in the simplification and the speedy
disposition of disputes [Tiu v. Middleton, G.R. No.
134998 (1999)]

Primary objective
Pre-trial is primarily intended to make certain that all
issues necessary to the disposition of a case are

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

properly raised [Permanent Concrete Products, Inc. v. [Sec. 4, Rule 18]

Teodoro, G.R. No. L-29766 (1968)]
The written special authority must be in the form of a
Thus, to obviate the element of surprise, parties are special power of attorney as authority to enter into
expected to disclose at a pre-trial conference all issues amicable settlement must be in such form [Sec. 23,
of law and fact which they intend to raise at the trial, Rule 138; Art. 1878(3), Civil Code]
except such as may involve privileged or impeaching
matters. The determination of issues at a pre-trial Effect of failure to appear
conference bars the consideration of other questions a.   Of the plaintiff – the action shall be dismissed
on appeal [Caltex v. CA, G.R. No. 97753 (1992)] with prejudice, unless otherwise ordered by the
court [Sec. 5, Rule 18]
3.  Notice of Pre-Trial Remedy: Appeal [1 Riano 501, 2014 Bantam Ed.]
b.   Of the defendant – the plaintiff shall be allowed
After the last pleading has been served and filed, it to present evidence ex parte, and judgment shall
shall be the duty of the plaintiff to promptly move ex be rendered based thereon [Sec. 5, Rule 18]
parte that the case be set for pre-trial [Sec. 1, Rule 18]
a.   Within 5 days from date of filing of the reply, Remedy: Motion for reconsideration, and if the
plaintiff must promptly move ex parte that the denial is tainted with grave abuse of discretion, a
case be set for pre-trial conference. petition for certiorari [1 Riano 501, 2014 Bantam
b.   If the plaintiff fails to file said motion within the Ed.]
given period, the branch clerk of court shall issue
a notice of pre-trial The non-appearance of defendant in pre-trial is not a
[Item I-A-1, A.M. No. 03-1-09-SC] ground to declare him in default. Thus, we distinguish
Failure to appear by
The “last pleading” need not be literally construed as Default by defendant
defendant [Sec. 5,
the actual filing of the last pleading. For purpose of [Sec. 3, Rule 9]
Rule 18]
pre-trial, the expiration of the period for filing the last
Upon motion of the
pleading is sufficient [Sarmiento v. Juan, G.R. No. L-
claiming party with
56605 (1983)] Not required
notice to the defending
party
The notice of pre-trial shall be served on counsel, or on
Requires proof of failure
the party who has no counsel [Sec. 3, Rule 18] Not required
to answer
The sufficiency of the written notice of pre-trial is Court may render Court renders judgment
irrelevant where evidence shows that counsel and the judgment without based on the evidence
parties actually knew of the pre-trial [Bembo v. CA, receiving evidence presented ex parte
G.R. No. 116845 (1995)] Judgment by default Judgment ex parte
Relief awarded must be
the same in nature and
4.  A ppearance of Parties; amount as prayed for in
No such limitation

Effect of Failure to Appear the complaint

The rule on default clearly establishes the “failure to

It is the duty of the parties and their counsel to appear
answer within the time allowed therefor” as the
at the pre-trial [Sec. 4, Rule 18]
ground for a declaration of default [Sec. 3, Rule 9].
From the tenor of the Rules, default does not
When non-appearance is excused
technically occur from the failure of the defendant to
Non-appearance of a party may be excused only if
attend either the pre-trial or the trial [1 Riano 363,
either:
2014 Bantam Ed.]
a.   Valid cause is shown for it
b.   A representative appears in his behalf, fully
authorized in writing: 5.  P re-Trial Brief; Effect of
1.   To enter into an amicable settlement
2.   To submit to alternative modes of dispute Failure to File
resolution, and
3.   To enter into stipulations/admissions of facts The parties shall file with the court and serve on the
and of documents adverse party, in such manner as shall ensure their

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

receipt thereof at least 3 days before the date of the approximate number of hours that will be
pre-trial, their respective pre-trial briefs. Failure to file required by the parties for the presentation of
the pre-trial brief shall have the same effect as failure their respective witnesses
to appear at the pre-trial [Sec. 6, Rule 18] [Item I-A-2, A.M. No. 03-1-09-SC]

Contents Remedy of defendant is to file a motion for

a.   A statement of their willingness to enter into an reconsideration, showing that his failure to file a trial
amicable settlement indicating the desired terms brief was due to fraud, accident, mistake, or excusable
thereof or to submit the case to any of the negligence. The filing of pre-trial brief is mandatory,
alternative modes of dispute resolution and is not excused simply because the defendant was
b.   A summary of admitted facts and proposed not represented by counsel [Saguid v. CA, G.R. No.
stipulation of facts 150611 (2003)]
c.   The issues to be tried or resolved
d.   The documents or exhibits to be presented, No evidence shall be allowed to be presented and
stating the purpose thereof offered during the trial in support of a party's
e.   A manifestation of their having availed or their evidence-in-chief other than those that had been
intention to avail themselves of discovery earlier identified and pre-marked during the pre-trial,
procedures or referral to commissioners, and except if allowed by the court for good cause shown
f.   The number and names of the witnesses, the [Item I-A-2, A.M. No. 03-1-09-SC]
substance of their testimonies, and the

6.  D istinction between Pre-Trial in a Civil Case and Pre-Trial in

a Criminal Case
Pre-trial in a Civil Case [Rule 18] Pre-trial in a Criminal Case [Rule 118]
After arraignment and within 30 days from the
date the court acquires jurisdiction over the
person of the accused
As to when After the last pleading has been served and
conducted filed [Sec. 1] Exception: If special laws and circulars provide
for a shorter period

[Sec 1]
Duty of the plaintiff to promptly move ex
As to need of Ordered by the court and no motion is required
parte that the case be set for pre-trial [Sec.
motion from either party [Sec. 1]
1]
As to whether or
Mandatory [Sec. 2] Mandatory [Sec. 1]
not mandatory
a.   Of the plaintiff – the case shall be
dismissed with prejudice, unless the If the counsel for the accused or the prosecutor
court orders does not appear at the pre-trial conference and
As to effect of
b.   Of the defendant – the plaintiff shall be does not offer an acceptable excuse for his lack
failure to appear
allowed to present evidence ex parte, of cooperation, the court may impose proper
and judgment shall be rendered based sanctions or penalties [Sec. 3, Rule 118]
thereon [Sec. 5, Rule 18]
As to possibility
The court shall consider this matter [Sec.
of an amicable Not in the enumeration to be considered [Sec. 1]
2(a)]
settlement
As to
A pre-trial brief is specifically required to be
requirement of A pre-trial brief is not required in Rule 118.
submitted [Sec. 6]
Pre-Trial Brief
As to Shall be recited in the order issued by the
Shall be reduced in writing and signed by the
agreements of court upon the termination of pre-trial [Sec.
accused and counsel, otherwise, they cannot be
admissions 7]
used against the accused [Sec. 2]
made

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

NOTE: The proceedings during the

preliminary conference shall be recorded in
the "Minutes of Preliminary Conference" to
be signed by both parties and/or counsel
[Item I-A-3, A.M. No. 03-1-09-SC]

Record of pre-trial
The proceedings in the pre trial shall be recorded.
Upon the termination thereof, the court shall issue an
order [Sec. 7, Rule 18]

Contents of pre-trial order

a.   Matters taken up in the conference
b.   Action taken thereon
c.   Amendments allowed on the pleadings
d.   Agreements/admissions made by the parties as
to any of the matters considered
e.   Should the action proceed to trial, the order shall
explicitly define and limit the issues to be tried.

Effect of pre-trial order

The contents of the order shall control the subsequent
course of the action, unless
a.   Modified before trial to prevent manifest injustice
[Sec. 7, Rule 18]
b.   Issues impliedly included therein or may be
inferable therefrom by necessary implication
[Philippine Export and Foreign Loan Guarantee
Corp. v. Amalgamated Management and
Development Corp., G.R. No. 177729 (2011)]
c.   Amendment to conform to evidence [Sec. 5, Rule
10]

One day examination of witness rule

The One-Day Examination of Witness Rule, that is, a
witness has to be fully examined in one (1) day only,
shall be strictly adhered to subject to the courts'
discretion during trial on whether or not to extend the
direct and/or cross-examination for justifiable reasons
[Item I-A-5-i, A.M. No. 03-1-09-SC]

Most important witness rule

The court shall determine the most important
witnesses to be heard and limit the number of
witnesses (Most Important Witness Rule) [Item I-A-5-
j, AM No. 03-1-09-SC]

The court shall require the parties and/or counsel to

submit to the Branch COC the names, addresses and
contact numbers of the witnesses to be summoned by
subpoena [Item I-A-5-l, AM No. 03-1-09-SC]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

PRE-TRIAL

NO SETTLEMENT
AMICABLE
FAILURE TO SETTLEMENT
APPEAR

Agreements made
by parties;
Amendments to If defendant is
pleading; Schedule absent, court may
If plaintiff is absent
of Trial hear evidence of
when so required to
attend, court may plaintiff ex parte
dismiss the case

TRIAL

If evidence is
insufficient to prove
plaintiff’s cause of
action or
defendant’s
counterclaim, court
rules in favor of
either one or
dismisses the case

COURT RENDERS
DECISION

Page 81 of 438
U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

  Intervention by considering "whether or not the intervention will

unduly delay or prejudice the adjudication of the rights
of the original parties and whether or not the
A proceeding in a suit or an action by which a third intervenor’s rights may be fully protected in a separate
person is permitted by the court to make himself a proceeding [Virra Mall Tenants v. Virra Mall, G.R. No.
party, either: 182902 (2011)]
1.   Joining plaintiff in claiming what is sought by the
complaint
2.   Uniting with defendant in resisting the claims of 2.  T ime to Intervene
the plaintiff or
3.   Demanding something adverse to both of them [1 The motion to intervene may be filed at any time
Herrera 1117, 2007 Ed., citing Gutierrez v. Villegas, before rendition of judgment by the trial court [Sec. 2,
G.R. No. L-11848 (1962)] Rule 19]

Intervention is never an independent action, but is How effected

ancillary and supplemental to the existing litigation. a.   Motion to intervene
Its purpose is to afford one not an original party, yet b.   Attaching a copy of the pleading-in-intervention;
having a certain right/interest in the pending case, the and
opportunity to appear and be joined so he could assert c.   Serving the motion and pleading-in-intervention
or protect such right/interest [Cariño v. Ofilada, G.R. on the original parties
No. 102836 (1993)] [Sec. 2, Rule 19]

General rule: Allowance of intervention is discretionary

1.   Requisites for intervention with the court.

a.   The legal interest: Exception: When the intervenor is an indispensable

1.   In the matter in litigation, or party.
2.   In the success of either of the parties, or
3.   An interest against both; or Pleadings-in-intervention
4.   So situated as to be adversely affected by a a.   Complaint-in-intervention – If intervenor asserts
distribution or other disposition of property in a claim against either or all of the original parties
the custody of the court or of an officer thereof b.   Answer-in-intervention – If intervenor unites
b.   Intervention will not unduly delay or prejudice the with the defending party in resisting a claim
adjudication of rights of the original parties against the latter
c.   Intervenor’s rights may not be fully protected in a [Sec. 3, Rule 19]
separate proceeding c.   Answer to complaint-in-intervention - It shall be
[Sec. 1, Rule 19; Lorenza Ortega v. CA, G.R. No. 125302 filed within 15 days from notice of the order
(1998)] admitting the complaint-in-intervention, unless a
different period is fixed by the court [Sec. 4, Rule
Meaning of legal interest 19]
The interest which entitles a person to intervene in a
suit must be on the matter in litigation and of such
direct and immediate character that the intervenor 3.  Remedy for the Denial of
will either gain or lose by the direct legal operation the Motion to Intervene
and effect of the judgment [1 Regalado 324-325, citing
6318 v. Nocom, G.R. No. 175989 (2008)] An improper denial of a motion for intervention is
correctible by appeal [1 Regalado 324, 2010 Ed., citing
The interest must be actual and material, a concern Ortiz v. Trent, G.R. No. 5099 (1909) and Hospicio de
which is more than mere curiosity, or academic or San Jose v. Piccio, G.R. No. L-8540 (1956)] but if there
sentimental desire; it must not be indirect and is grave abuse of discretion, mandamus will lie, where
contingent, indirect and remote, conjectural, there is no other plain, speedy and adequate remedy
consequential or collateral [Virra Mall Tenants v. Virra [1 Regalado 324, 2010 Ed., citing Dizon v. Romero, G.R.
Mall, G.R. No. 182902 (2011)] No. L-26252 (1968) and Macias v. Cruz, G.R. No. L-
28947 (1973)]
Notwithstanding the presence of a legal interest,
permission to intervene is subject to the sound
discretion of the court, the exercise of which is limited

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Remedy for granting of the motion to intervene

On the other hand, an improper granting of a motion   Subpoena
for intervention may be controlled by certiorari and
prohibition. When the rights of the party seeking to Definition
intervene will not be prejudiced by the judgment in the A process directed to a person requiring him:
main case and can be fully protected in a separate 1.   To attend and to testify at the hearing or the trial
proceeding, the court may deny the intervention of an action, or at any investigation conducted by
sought [1 Regalado 324, 2010 Ed., citing Pflieder v. De competent authority, or for the taking of his
Britanica, G.R. No. L-19077 (1964)] deposition
2.   Also to bring with him any books, documents, or
other things under his control
[Sec. 1, Rule 21]

Subpoena Summons
A process directed to a
person requiring him to
A direction that the
attend and to testify. It
defendant answer
may also require him to
within the time fixed by
bring with him any
the ROC [Sec. 2, Rule
books, documents, or
14]
other things under his
control [Sec. 1, Rule 21]
Directed to the
Directed to a person
defendant [Sec. 2, Rule
[Sec. 1, Rule 21]
14]
Tender of kilometrage,
attendance fee and, if
Tender of kilometrage
subpoena duces tecum,
and other fees not
of reasonable cost of
required by Rule 14
production required
[Sec. 6, Rule 21]

Who may issue

1.   Court before whom the witness is required to
attend
2.   Court of the place where the deposition is to be
taken
3.   Officer or body authorized by law to do so in
connection with investigations conducted by said
officer or body, or
4.   Any justice of the SC or of the CA, in any case or
investigation pending within the Philippines
[Sec. 2, Rule 21]

All processes issued by the MTC and MCTC in cases

falling within their jurisdiction may be served
anywhere in the Philippines without the necessity of
certification by the judge of the RTC [Sec. 38(2), B.P.
129]

Form and contents

1.   Shall state the name of the court and the title of
the action or investigation
2.   Shall be directed to the person whose attendance
is required
3.   For subpoena duces tecum, shall also contain a
reasonable description of the books, documents

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or things demanded which must appear to the When made: must be made so as to allow the witness
court prima facie relevant a reasonable time for preparation and travel to the
[Sec. 3, Rule 21] place of attendance [Sec. 6, Rule 21]

1.   Subpoena duces tecum 4.  C ompelling Attendance of

A process directed to a person requiring him to bring
Witnesses; Contempt
with him books, documents, or other things under his
control [Sec. 1, Rule 21] The court which issued the subpoena, upon proof of
service and failure of witness to attend, may issue a
The subpoena duces tecum is, in all respects, like the warrant to the sheriff of the province, or his deputy to
ordinary subpoena ad testificandum, with the arrest the witness and bring him before the court or
exception that it concludes with an injunction that the officer where his attendance is required, and the cost
witness shall bring with him and produce at the of such warrant and seizure of such witness shall be
examination the books, documents, or things paid by the witness if the court issuing it shall
described in the subpoena [see Sec. 1, Rule 21] determine that his failure to answer the subpoena was
willful and without just excuse [Sec. 8, Rule 21]
Note the requirements for a subpoena duces tecum,
see item (3) of “Form and contents” above Failure by any person without adequate cause to obey
a subpoena served upon him shall deemed a
contempt of the court from which the subpoena is
2.  S ubpoena ad issued. If the subpoena was not issued by a court, the
disobedience thereto shall be punished in accordance
testificandum with the applicable law or Rule [Sec. 9, Rule 21]
A process directed to a person requiring him to attend Note: Provisions regarding the compelling of
and to testify at the hearing or the trial of an action, or attendance [Sec. 8] and contempt [Sec. 9] shall not
at any investigation conducted by competent authority apply to a
or for the taking of his deposition [Sec. 1, Rule 21] a.   Witness who resides more than 100 km from his
residence to the place where he is to testify by the
The subpoena referred to in the first sentence of this ordinary course of travel; or
section is distinctively called a subpoena ad b.   Detention prisoner if no permission of the court in
testificandum. This is the technical and descriptive which his case is pending was obtained
term for the ordinary subpoena [1 Regalado 330, 2010 [Sec. 10, Rule 21]
Ed.]
The right not to be compelled to attend upon
3.  Service of Subpoena asubpoena by reason of the distance from the
residence ofthe witness to the place where he is to
Service of a subpoena shall be made in the same testify is sometimes called the viatory right of a
manner as personal or substituted service of summons witness [1 Regalado 334-335, 2010 Ed.]
[Sec. 6, Rule 21]
Note: “Viatory right” applies only in civil cases, not
Formalities criminal cases [Genorga v. Quitain, A.M. No. 981-CFI
a.   The original is exhibited to the person served; (1977)]
b.   A copy is delivered to him; and
c.   Tender is made to him of the following: 5.  Q uashing of Subpoena
1.   Fees for one day’s attendance;
2.   Kilometrage allowed by the ROC; and For quashing subpoena duces tecum
3.   In the case of subpoena duces tecum, the a.   A motion is promptly made and, in any event, at
reasonable cost of producing the books, or before the time specified therein
documents and things demanded. b.   Grounds
1.   Subpoena is unreasonable and oppressive, or
Tender of these amounts need not be made if 2.   Relevancy of the books, documents or things
subpoena is issued by or on behalf of the Republic of does not appear, or
the Philippines or an officer or agency thereof
[Sec. 6, Rule 21]

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3.   Person in whose behalf the subpoena is

issued fails to advance the reasonable cost of   Modes of Discovery
the production thereof
4.   Witness fees and kilometrage allowed by Discovery
these Rules were not tendered when the A device employed by a party to obtain information
subpoena was served about relevant matters on the case from the adverse
[Sec. 4, Rule 21] party in the preparation for trial [1 Riano 510, 2014
Bantam Ed.]
For quashing subpoena ad testificandum
a.   Witness is not bound thereby, or Purpose: To permit mutual knowledge before trial of
b.   Witness fees and kilometrage allowed by the ROC all relevant facts gathered by both parties so that
were not tendered when the subpoena was served either party may compel the other to disgorge facts
[Sec. 4, Rule 21] whatever he has in his possession [1 Riano 510, 2014
Bantam Ed., citing C.J.S.]

Modes of Discovery
1.   Depositions pending actions [Rule 23]
2.   Depositions before action or pending appeal
[Rule 24]
3.   Interrogatories to parties [Rule 25]
4.   Admission by adverse party [Rule 26]
5.   Production or inspection of documents or things
[Rule 27]
6.   Physical and mental examination of persons [Rule
28]

1.   Deposition Pending
Action; Deposition before
Action or Pending Appeal
a.   Meaning of deposition
Deposition – taking of testimony out of court of any
person, whether party to the action or not but at the
instance of a party to the action [1 Riano 511, 2014
Bantam Ed.]

Kinds of depositions
1.   Depositions pending action [Rule 23] – called
deposition de bene esse [1 Regalado 344, 2010
Ed.]
2.   Depositions before action or pending appeal
[Rule 24] – called depositions in perpetuam rei
memoriam [1 Regalado 344, 2010 Ed.]

When depositions pending action taken

1.   By leave of court, after jurisdiction has been
obtained over any defendant or over the property
which is the subject of the action
2.   Without leave of court after an answer has been
served
[Sec. 1, Rule 23]

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Note: The deposition of a person confined in prison 4.   Examination and cross-examination of deponents
may be taken only by leave of court on such terms as may proceed as permitted at the trial under Secs.
the court prescribes [Sec. 1, Rule 23] 3 to 18 of Rule 132 [Sec. 3, Rule 23].
5.   All objections made at the time of the
Before whom depositions are taken examination to the qualifications of the officer
1.   Within the Philippines taking the deposition, or to the manner of taking
a.   Judge it, or to the evidence presented, or to the conduct
b.   Notary public, or of any party, and any other objection to the
c.   Any person authorized to administer oaths, proceedings, shall be noted by the officer upon
as stipulated by the parties in writing [Sec. 14, the deposition. Evidence objected to shall be
Rule 23] taken subject to the objections [Sec. 17]
[Sec. 10, Rule 23]
2.   Foreign state or country Effect of taking depositions
a.   On notice before a secretary of embassy or A party shall not be deemed to make a person his own
legation, consul general, consul, vice- consul, witness for any purpose by taking his deposition [Sec.
or consular agent of the Philippines 7, Rule 23]
b.   Before such person or officer as may be
appointed by commission or under letters Depositions before actions or pending appeal
rogatory, or Referred to as perpetuation of testimony (“depositions
c.   Any person authorized to administer oaths as in perpetuam rei memoriam”) because their objective is
stipulated by parties in writing [Sec. 14, Rule to perpetuate the testimony of a witness for future use,
23] in the event of further proceedings [1 Regalado 363,
[Sec. 11, Rule 23] 2010 Ed.]

Disqualification by interest Requisites

No deposition shall be taken before a person who is 1.   Any person who desires to perpetuate
th
1.   A relative within the 6 degree of consanguinity or a.   his own testimony; or
affinity, or b.   the testimony of another person
2.   An employee or counsel of any of the parties, or 2.   Regarding any matter that may be cognizable in
3.   A relative within the same degree, or employee of any court of the Philippines
such counsel, or [Sec. 1, Rule 24]
4.   Any person financially interested in the action
[Sec. 13, Rule 23] Procedure for deposition before action
1.   File a verified petition in the court of the place of
Taking depositions upon oral examination the residence of any expected adverse party. The
1.   A party desiring to take the deposition of any petition shall be entitled in the name of the
person upon oral examination shall give petitioner and shall show
reasonable notice in writing to every other party a.   The petitioner expects to be a party to an
to the action. The notice shall state the time and action in a court of the Philippines but is
place for taking the deposition and the name and presently unable to bring it or cause it to be
address of each person to be examined, if known, brought
and if the name is at known, a general description b.   The subject matter of the expected action
sufficient to identify him or the particular class or and his interest therein
group to which he belongs. On motion of any party c.   The facts which he desires to establish by
upon whom the notice is served, the court may for the proposed testimony and his reasons for
cause shown enlarge or shorten the time [Sec. 15, desiring to perpetuate it
Rule 23] d.   The names or a description of the persons he
2.   After notice is served for taking a deposition by expects will be adverse parties and their
oral examination, upon motion seasonably made addresses so far as known, and
by any party or by the person to be examined and e.   The names and addresses of the persons to
for good cause shown, the court in which the be examined and the substance of the
action is pending may make any order for testimony which he expects to elicit
protection of the parties and the deponent [Sec. f.   Asking for an order authorizing the petitioner
16, Rule 23] to take the depositions of the persons sought
3.   The attendance of the witnesses may be to be examined named in the petition for the
compelled by the use of a subpoena [Sec. 1] purpose of perpetuating their testimony
[Sec. 2, Rule 24]

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2.   The petitioner shall serve a notice upon each b.   Reason for perpetuating their testimony.
person named in the petition as an expected 4.   If the court finds that the perpetuation of the
adverse party, together with a copy of the petition, testimony is proper to avoid a failure or delay of
stating that the petitioner will apply to the court, justice, it may make an order allowing the
at a time and place named therein, for the order depositions to be taken, and thereupon the
described in the petition. At least 20 days before depositions may be taken and used in the same
the date of the hearing, the court shall cause manner and under the same conditions as are
notice thereof to be served on the parties and prescribed in these Rules for depositions taken in
prospective deponents in the manner provided for pending actions [Sec. 7, Rule 24]
service of summons [Sec. 3, Rule 24]
3.   If the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice,
b.   Uses; Scope of Examination
it shall make an order designating or describing
the persons whose deposition may be taken and General uses of deposition
specifying the subject matter of the examination Intended as a means to compel disclosure of facts
and whether the depositions shall be taken upon resting in the knowledge of a party or other person,
oral examination or written interrogatories. The which are relevant in a suit or proceeding [1 Regalado
depositions may then be taken in accordance with 349, 2010 Ed.]
Rule 23 before the hearing [Sec. 4, Rule 24]
Scope of examination
Use of deposition Unless otherwise ordered by the court as provided by
If a deposition to perpetuate testimony is taken under Secs. 16 and 18, Rule 23, the deponent may be
this Rule, or if, although not so taken, it would be examined regarding any matter
admissible in evidence, it may be used in any action 1.   Not privileged
involving the same subject matter subsequently 2.   Relevant to the subject of the pending action,
brought in accordance with Secs. 4 and 5 of Rule 23 a.   Whether relating to the claim or defense of
[Sec. 6, Rule 24] any other party;
b.   Including the existence, description, nature,
Procedure for deposition pending appeal: custody, condition, and location of any books,
1.   If an appeal has been taken from a judgment of a documents, or other tangible things and
court, including the CA in proper cases, or before c.   Including the identity and location of persons
the taking of an appeal if the time therefor has not having knowledge of relevant facts
expired, the court in which the judgment was
rendered may allow the taking of depositions of General rule: A deposition is not a substitute for the
witnesses to perpetuate their testimony for use in actual testimony in open court of a party or witness. If
the event of further proceedings in the said court. the witness is available to testify, he should be
2.   In such case the party who desires to perpetuate presented in court to testify. If available to testify, a
the testimony may make a motion in the said court party’s or witness’ deposition is inadmissible in
for leave to take the depositions, upon the same evidence for being hearsay [Dasmarinas Garments Inc.
notice and service thereof as if the action was v. Reyes, G.R. No. 108229 (1993)]
pending therein.
3.   The motion shall state the Exception: Depositions may be used as evidence under
a.   Names and addresses of the persons to be the circumstances in Sec. 4, Rule 23.
examined and the substance of the testimony
which he expects to elicit from each, and

Specific uses of depositions

Deposition By whom used Purpose
Contradicting or impeaching the
Any deposition Any party
testimony of deponent as a witness
Deposition of a party or of any
one who at the time of taking the
deposition was an officer,
director, or managing agent of a An adverse party Any purpose
public or private corporation,
partnership, or association which
is a party

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Any purpose if the court finds that

1.   Witness is dead, or
2.   Witness resides more than 100 km
from the place of trial or hearing, or
is out of the Philippines, unless it
appears that his absence was
procured by the party offering the
deposition, or
3.   Witness is unable to attend or testify
because of age, sickness, infirmity, or
imprisonment, or
Deposition of a witness, whether
Any party 4.   Party offering the deposition has
or not a party
been unable to procure the
attendance of the witness by
subpoena; or
5.   Upon application and notice, that
such exceptional circumstances exist
as to make it desirable, in the interest
of justice and with due regard to the
importance of presenting the
testimony of witnesses orally in open
court, to allow the deposition to be
used;
[Sec. 4, Rule 23]

Effect of using deposition

d.   When May Taking of
General rule: The introduction in evidence of the Deposition be Terminated or
deposition or any part thereof for any purpose makes its Scope Limited
the deponent the witness of the party introducing the
deposition 1.   At any time during the taking of the deposition, on
motion or petition of any party or of the deponent
Exceptions: and upon a showing that the examination is being
1.   The deposition is used to contradict or impeach conducted in bad faith or in such manner, as
the deponent unreasonably to annoy, embarrass, or oppress the
2.   The deposition of a party or of any one who at the deponent or party, the court in which the action is
time of taking the deposition was an officer, pending or the RTC of the place where the
director, or managing agent of a public or private deposition is being taken may order the officer
corporation, partnership, or association which is a conducting the examination to cease forthwith
party may be used by an adverse party for any from taking the deposition, or may limit the scope
purpose [Sec. 4(b), Rule 23] and manner of the taking of the deposition, as
[Sec. 8, Rule 23] provided in Sec. 16, Rule 23.
2.   If the order made terminates the examination, it
c.   When May Objections to shall be resumed thereafter only upon the order of
the court in which the action is pending.
Admissibility be Made 3.   Upon demand of the objecting party or deponent,
the taking of the deposition shall be suspended
Subject to the provisions of Sec. 29, Rule 23, objection for the time necessary to make a notice for an
may be made at the trial or hearing to receiving in order.
evidence any deposition or part thereof for any reason 4.   In granting or refusing such order, the court may
which would require the exclusion of the evidence if impose upon either party or upon the witness the
the witness were then present and testifying [Sec. 6, requirement to pay such costs or expenses as the
Rule 23] court may deem reasonable.
[Sec. 18, Rule 23]

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Effect of errors and irregularities in depositions with by the officer under part thereof is made
Error and Irregularities Effect Sec. 17, 19, 20, and 26 with reasonable
Waived promptness after such
Unless written defect is ascertained,
As to notice for taking a or with due diligence
objection is promptly
deposition might have been,
served upon party
giving notice ascertained
Waived [Sec. 29, Rule 23]
Unless made
(1) Before taking of Orders of the court for the protection of parties and
Objection to taking a deponents:
deposition begins or
deposition because of 1.   The deposition shall not be taken
(2) As soon thereafter
disqualification of officer 2.   It may be taken only at some designated place
as the disqualification
before whom it is to be other than that stated in the notice
becomes known or
taken 3.   It may be taken only on written interrogatories
could be discovered
with reasonable 4.   Certain matters shall not be inquired into
diligence 5.   The scope of the examination shall be held with
Not waived by failure no one present except the parties to the action
to make them before and their officers or counsel
or during the taking of 6.   After being sealed the deposition shall be opened
Objection to the only by order of the court
the deposition
competency of a witness 7.   Secret processes developments, or research need
Unless the ground of
or competency, not be disclosed
the objection is one
relevancy, or materiality 8.   The parties shall simultaneously filed specified
which might have
of testimony documents or information enclosed in sealed
been obviated or
removed if presented envelope to be opened as directed by the court
at that time 9.   The court may make any other order which justice
Occurring at oral Waived requires to protect the party or witness from
examination and other annoyance, embarrassment, or oppression
particulars [Sec. 16, Rule 23]

In the manner of taking 2.  W ritten Interrogatories to

the deposition, in the Unless reasonable
form of questions or objection thereto is Adverse Parties
answers, in the oath or made at the time of
affirmation, or in conduct taking the deposition Purpose: To elicit material and relevant facts from any
of parties and errors of adverse parties [Sec. 1, Rule 25]
any kind which might be
obviated or removed if Scope and use: Interrogatories may relate to any
promptly prosecuted matters that can be inquired into under Sec. 2 of Rule
Waived 23, and the answers may be used for the same
Unless served in purposes provided in Sec. 4 of the same Rule [Sec. 1,
writing upon the party Rule 25]
propounding them
within the time Written interrogatories v. interrogatories to parties
Objections to the form of Written Interrogatories to
allowed for serving
written interrogatories Interrogatories Parties
succeeding cross or
under Sec. 25 and 26 Not served upon the
other interrogatories
and within 3 days after adverse party directly.
service of last They are instead Served upon the adverse
interrogatories delivered to the officer party directly [Sec. 1,
authorized designated in the Rule 25]
Waived notice [Sec. 26, Rule
In the manner in which 23]
Unless a motion to
testimony is transcribed [1 Riano 520, 2014 Bantam Ed.]
suppress the
or the deposition is dealt
deposition or some

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Service of interrogatories to parties a.   Willfully fails to appear before the officer who
Under the same conditions specified in Sec. 1 of Rule is to take his deposition, after being served
23, any party desiring to elicit material and relevant with a proper notice, or
facts from any adverse parties shall file and serve b.   Fails to serve answers to interrogatories
upon the latter written interrogatories to be answered submitted under Rule 25 after proper service
by the party served or, if the party served is a public or of such interrogatories,
private corporation or a partnership or association, by 2.   The court on motion and notice, may
any officer thereof competent to testify in its behalf a.   Strike out all or any part of any pleading of the
[Sec. 1, Rule 25] party, or
b.   Dismiss the action or proceeding or any part
Number of interrogatories thereof, or
No party may, without leave of court, serve more than c.   Enter a judgment by default against the
one set of interrogatories to be answered by the same party, and in its discretion, order him to pay
party [Sec. 4, Rule 25] reasonable expenses incurred by the other,
including attorney’s fees
Answers as judicial admissions [Sec. 5, Rule 29]
Written interrogatories and the answers thereto must
both be filed and served [Sec. 2, Rule 25] Hence, the
answers may constitute as judicial admissions [Sec. 4,
b.   Effect of Failure to Serve
Rule 129] Written Interrogatories
Form A party not served with written interrogatories may not
The interrogatories shall be answered fully in writing be compelled by adverse party to:
and shall be signed and sworn to by the person 1.   Give testimony in open court; or
making them [Sec. 2, Rule 25] 2.   Give a deposition pending appeal

Service and filing Unless thereafter allowed by the court for good cause
The party upon whom the interrogatories have been shown and to prevent a failure of justice
served shall file and serve a copy of the answers on the [Sec. 6, Rule 25]
party submitting the interrogatories within 15 days
after service thereof, unless the court, on motion and
for good cause shown, extends or shortens the time
3.  Request for Admission
[Sec. 2, Rule 25]
Rule 26, as a mode of discovery, contemplates
Objections to interrogatories; answers deferred interrogatories seeking clarification in order to
Objections to any interrogatories may be presented to determine the truth of the allegations in a pleading [1
the court within ten (10) days after service thereof, with Regalado 370, 2010 Ed.]
notice as in case of a motion; and answers shall be
deferred until the objections are resolved, which shall Purpose
be at as early a time as is practicable [Sec. 3, Rule 25] For the admission by the adverse party of the
genuineness of any material and relevant document
Grounds described in and exhibited with the request or of the
a.   They require the statements of conclusions of law truth of any material and relevant matter of fact set
or answers to hypothetical questions or opinion, forth in the request [Sec. 1, Rule 26]
or mere hearsay, or matters not within the
personal knowledge of the interrogated party. How made
b.   Frivolous interrogatories need be answered A party may file and serve upon any other party a
[2 Herrera 50, 2007 Ed.] written request for the purpose mentioned above [Sec.
1, Rule 26]

a.   Consequences of Refusal to The request for admission must be served on the

Answer party, not the counsel. This is an exception to the
general rule that notices shall be served upon counsel
1.   If a party or an officer or managing agent of a and not upon the party [Duque v. CA, G.R. 125383
party (2002)]

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When made Refusal to answer after being directed by the court

At any time after issues have been joined [Sec. 1, Rule would constitute contempt of that court [Sec. 2, Rule
26] 29]

Issues are joined when all the parties have pleaded Refusal to obey to an order to answer would also allow
their respective theories and the terms of the dispute the court to make such orders regarding the refusal as
are plain before the court [Rosete v. Sps. Lim, G.R. No. are just, and among others the following
136051 (2006)] 1.   An order that the matters regarding which
questions were asked shall be taken as
established for the purposes of the action in
a.   Implied Admission by Adverse accordance with the claim of the party obtaining
Party the order
2.   An order refusing to allow the disobedient party
Each of the matters which an admission is requested to support or oppose designated claims or
shall be deemed admitted unless the party to whom defenses
request is directed files and serves upon the party 3.   An order striking out pleadings or parts thereof, or
requesting admission a sworn statement [Sec. 2, Rule staying further proceedings until the order is
26] obeyed, or dismissing the action or proceeding or
any part thereof or rendering a judgment by
Contents default against the disobedient party, and
1.   Denying specifically the matters of which an 4.   In lieu of any of the foregoing orders or in addition
admission is requested, or thereto, an order directing the arrest of any party
2.   Setting forth in detail the reasons why he cannot or agent of party for disobeying any of such orders
truthfully either admit or deny those matters [Sec. 3, Rule 29]
[Sec. 2, Rule 26]

Period: Such party must file and serve such statement:

c.   Effect of Admission
1.   Within a period not less than 15 days after service
thereof, or Any admission made by a party pursuant to such
2.   Within such further time as the court may allow on request is for the purpose of the pending action only
motion and shall not constitute an admission by him for any
[Sec. 2, Rule 26] other purpose nor may the same be used against him
in any other proceeding [Sec. 3, Rule 26]
Objections
Objections to any request for admission shall be d.   Effect of Failure to File and
submitted to the court by the party requested within
the period for and prior to the filing of his sworn
Serve Request for Admission
statement as contemplated in the preceding
paragraph and his compliance therewith shall be A party who fails to file and serve a request for
deferred until such obligations are resolved, which admission on the adverse party of material and
resolution shall be made as early as practicable [Sec. relevant facts at issue which are, or ought to be, within
2, Rule 26] the personal knowledge of the latter, shall not be
permitted to present evidence on such facts unless
otherwise allowed by the court for good cause shown
b.   Consequences of Failure to and to prevent a failure of justice [Sec. 5, Rule 29]
Answer Request for Admission
4.  P roduction or Inspection
The proponent may apply to the proper court for an
order to compel an answer [Sec. 1, Rule 29] of Documents or Things
If application is granted, the court a.   Upon motion of any party showing good cause
1.   Shall require the refusing party to answer; and therefor, the court in which an action is pending
2.   May require the refusing party or counsel to pay may order any party to
reasonable expenses for obtaining the order, if the 1.   Produce and permit the inspection and
court finds that the refusal to answer was without copying or photographing, by or on behalf of
substantial justification. the moving party, of any designated
documents, papers, books, accounts, letters,

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photographs, objects or tangible things not The production of documents affords more
privileged, which constitute or contain opportunity for discovery than a subpoena duces
evidence material to any matter involved in tecum as, in the latter, the documents are brought to
the action and which are in his possession the court for the first time on the date of the scheduled
custody or control; or trial wherein such documents are required to be
2.   Permit entry upon designated land or other produced. The inspection of land and other real
property in his possession or control for the property for the purposes authorized by Rule 27 also
purpose of inspecting, measuring, surveying, avoids the need for ocular inspection thereof by the
or photographing the property or any court [1 Regalado 373, 2010 Ed.]
designated relevant object or operation
thereon
b.   The order shall specify the time, place and
5.  P hysical and Mental
manner of making the inspection and taking Examination of Persons
copies and photographs, and may prescribe such
terms and conditions as are just Applicable in an action in which the mental or physical
[Sec. 1, Rule 27] condition of a party is in controversy [Sec. 1, Rule 28]

Production of documents v. subpoena duces tecum Procedure

Production or A motion for the examination is filed in the court where
inspection of Subpoena duces tecum the action is pending
documents a.   Showing good cause for the examination,
Limited to the parties May be directed to non- b.   With notice to the party to be examined, and to all
of the action [Sec. 1, party [Sec, 1, Rule 21 other parties, and
Rule 27] refers to “a person”] c.   Specifying the time, place, manner, conditions,
Issued upon motion of scope, and person conducting the examination
May be issued upon ex
any party [Sec. 1, Rule [Sec. 2, Rule 28]
parte application
27]
Need not show good Report of findings
Must show good cause
cause [see Secs. 3 and 4, a.   If requested by the party examined, the party
[Sec. 1, Rule 27]
Rule 21] causing the examination to be made shall deliver
Grounds for quashal to him a copy of a detailed written report of the
(1) Unreasonable, examining physician setting out his findings and
oppressive, irrelevant conclusions.
May be quashed for
b.   After such request and delivery, the party causing
lack of good cause
(2) Failure to advance the examination to be made shall be entitled
shown
reasonable costs of upon request to receive from the party examined
production a like report of any examination, previously or
[Sec. 4, Rule 21] thereafter made, of the same mental or physical
Disobedience would condition.
allow court to make c.   If the party examined refuses to deliver such
such orders in regard report, the court on motion and notice may make
to the refusal as are an order requiring delivery on such terms as are
just, and among just, and if a physician fails or refuses to make
others, an order such a report the court may exclude his testimony
refusing to allow the if offered at the trial.
Disobedience [Sec. 3, Rule 28]
disobedient party to
constitutes contempt of
support or oppose
court [Sec. 9, Rule 21] Waiver of privilege
designated claims or
defenses or prohibiting By requesting and obtaining a report of the
him from introducing in examination so ordered or by taking the deposition of
evidence designated the examiner, the party examined waives any privilege
documents or things or he may have in that action or any other involving the
items of testimony same controversy, regarding the testimony of every
[Sec. 3(b), Rule 29] other person who has examined or may thereafter
examine him in respect of the same mental or physical
examination [Sec. 4, Rule 28].

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Since the results of the examination are intended to be patient privilege under Sec. 24(b), Rule 130 [1
made public, the same are not covered by physician- Regalado 376, 2010 Ed.]

6.  C onsequences of Refusal to Comply with Modes of Discovery

Form of refusal Sanctions
If the application is granted, the court shall require the refusing party or
deponent to answer the question or interrogatory and if it also finds that the
refusal to answer was without substantial justification, it may require the refusing
party or deponent or the counsel advising the refusal, or both of them, to pay the
proponent the amount of the reasonable expenses incurred in obtaining the
order, including attorney’s fees.

If the application is denied and the court finds that it was filed without substantial
Refusal to answer any question
justification, the court may require the proponent or the counsel advising the
filing of the application, or both of them, to pay to the refusing party or deponent
the amount of the reasonable expenses incurred in opposing the application,
including attorney’s fees.

[Sec. 1, Rule 29]

The refusal may be considered a contempt of that court [Sec. 2, Rule 29]
Refusal to be sworn The refusal may be considered a contempt of that court [Sec. 2, Rule 29]
The court may make such orders in regard to the refusal as are just, and among
others the following
a.   An order that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the paper, or
the physical or mental condition of the party or any other designated facts
shall be taken to be established for the purposes of the action in accordance
with the claim of the party obtaining the order;
b.   An order refusing to allow the disobedient party to support or oppose
Refusal to answer designated
designated claims or defenses or prohibiting him from introducing in
questions or refusal to produce
evidence designated documents or things or items of testimony, or from
documents or to submit to
introducing evidence of physical or mental condition;
physical or mental examination
c.   An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or proceeding
or any part thereof or rendering a judgment by default against the
disobedient party; and
d.   In lieu of any of the foregoing orders or in addition thereto, an order directing
the arrest of any party or agent of party for disobeying any of such orders
except an order to submit to a physical or mental examination.
[Sec. 3, Rule 29]
The court, upon proper application, issue an order requiring the other party to
pay him reasonable expenses incurred, including attorney’s fees PROVIDED that
party requesting proves genuineness of such document or truth UNLESS court
Refusal to admit under Rule 26 finds:
a.   There were good reasons for denial, or
b.   Admissions sought were of no importance
[Sec. 4, Rule 29]
The court on motion and notice may
a.   (1) Strike out all or any part of any pleading of disobedient party, or (2)
Failure of party to attend or serve
Dismiss the action or proceeding or any part thereof, or
answers to written
b.   Enter a judgment by default against disobedient party, and
interrogatories [Sec. 5]
c.   In its discretion, order payment of reasonable expenses incurred by the other
including attorney’s fees
Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines under this Rule (Rule
29) [Sec. 6, Rule 29]

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  Trial A court may adjourn a trial from day to day, and to any
stated time, as the expeditious and convenient
transaction of business may require [Sec. 2, Rule 30]
Definition
Trial is the judicial examination and determination of Limitations on the authority to adjourn
the issues between the parties to the action [Black’s General rule: The court has no power to adjourn a trial
th
Law Dictionary 1348, 5 Ed.] for A period longer than one month for each
adjournment; or More than 3 months in all [Sec. 2,
The judicial process of investigating and determining Rule 30]
the legal controversies, starting with the production of
evidence by the plaintiff and ending with his closing Exception: When authorized in writing by the Court
arguments [Acosta v. People, G.R. No. L-17427 (1962)] Administrator.

A hearing is a broader term. It is not confined to the Postponement

trial and presentation of the evidence because it A motion for postponement should not be filed on the
actually embraces several stages in the litigation. It last hour especially when there is no reason why it
includes the pre-trial and the determination of could not have been presented earlier [Cañete v.
granting or denying a motion [Trocio v. Labayo, G.R. Judge, CFI Zamboanga del Sur, G.R. No. L-21743
No. L-35701 (1973)] (1968)]

When trial unnecessary Postponements lie in the court’s discretion [Hap Hong
A civil case may be adjudicated upon without the need Hardware Co., Inc. v. Philippine Milling Company, G.R.
for trial in any of the following cases No. L-16778 (1961)]
1.   Where the pleadings tender no issue at all,
judgment on the pleadings may be directed by
the court [Rule 34] 2.  R equisites of Motion to
2.   Where from the pleadings, affidavits, depositions Postpone Trial
and other papers, there is actually no genuine
issue, the court may render a summary judgment
[Rule 35] a.   For Absence of Evidence
3.   Where the parties have entered into a
compromise or an amicable settlement either Motion accompanied by affidavit showing
during the pre-trial or while the trial is in progress 1.   The materiality or relevancy of such evidence; and
[Rule 18; Art. 2028, Civil Code] 2.   Due diligence has been used to procure it
4.   Where the complaint has been dismissed with [Sec. 3, Rule 30]
prejudice, or when the dismissal has the effect of
an adjudication on the merits [Sec. 5, Rule 16; Sec.
3, Rule 17; Sec. 5, last par., Rule 7]
b.   For Illness of Party or Counsel
5.   Where the case falls under the Rules on
Summary Procedure, and Motion accompanied by affidavit or sworn certification
6.   Where the parties agree, in writing, upon the showing
1.   The presence of such party or counsel at the trial
facts involved in the litigation and submit the case
is indispensable; and
for judgment on the facts agreed upon, without
2.   That the character of his illness is such as to
the introduction of evidence [Sec. 6, Rule 30]
render his non-attendance excusable
[1 Riano 563, 2014 Bantam Ed.]
[Sec. 4, Rule 30]
Notice of trial
Upon entry of a case in the trial calendar, the clerk 3.  Agreed Statement of Facts
shall notify parties the date of its trial in such manner
as shall ensure his receipt of that notice at least 5 days a.   The parties may agree, in writing, upon the facts
before such date [Sec. 1, Rule 30] involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the
1.   Adjournment and introduction of evidence
b.   If the parties agree only on some of the facts in
Postponements issue, trial shall be held as to the disputed facts in
such order as the court shall prescribe
[Sec. 6, Rule 30]

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Stipulation in Civil Stipulation in Criminal with evidence to support his special defenses [Yu v.
Cases Cases Mapayo, G.R. No. L- 29742 (1972)]
The minutes of each All agreements or
pre-trial conference admissions made or The reasoning behind this is that the plaintiff need not
shall contain matters entered during the pre- present evidence since judicial admissions do not
taken up therein more trial conference shall be require proof [Sec. 2, Rule 129]
particularly admissions reduced in writing and
of facts and exhibits
and shall be signed by
signed by the accused
and counsel, otherwise,
5.  C onsolidation or
the parties and their they cannot be used Severance of Hearing or
counsel [Item I-A-7, against the accused
A.M. No. 03-1-09-SC] [Sec. 2, Rule 118] Trial
An agreed statement of facts is conclusive on the Consolidation – a procedural device, granted to the
parties, as well as on the court. Neither of the parties court as an aid in deciding how case in its docket are
may withdraw from the agreement, nor may the court to be tried, so that the business of the court may be
ignore the same [McGuire v. Manufactures Life, G.R. L- dispatched expeditiously while providing justice to the
3581 (1950)] parties [Republic v. Heirs of Oribello, G.R. No. 199501
(2013)]

4.  O rder of Trial; Reversal of When proper: When actions involving a common

Order question of fact or law are pending before the court
[Sec. 1, Rule 31]
Subject to the provisions of Sec. 2 of Rule 31, and
Court action
unless the court for special reasons otherwise directs,
The court may
the trial shall be limited to the issues stated in the pre-
a.   Order a joint hearing or trial of any or all matters
trial order [Sec. 5, Rule 30]
in issue in the actions
b.   Order all actions consolidated; and
General order of trial
c.   Make such orders concerning proceedings therein
a.   Plaintiff’s evidence in chief
as may tend to avoid unnecessary costs or delay
b.   Defendant’s evidence in chief and evidence in
[Sec. 1, Rule 31]
support of his counterclaim, cross-claim and 3rd-
party complaint
Purpose: To avoid multiplicity of suits, guard against
c.   3rd-party defendant shall adduce evidence of his
oppression or abuse, prevent delay, clear congested
defense, counterclaim, cross-claim, and 4th party
dockets, simplify the work of the trial court and save
complaint
unnecessary costs and expenses [1 Regalado 392,
d.   4th-party defendant shall adduce evidence, and
2010 Ed.]
so forth
e.   Parties against whom any counterclaim or cross-
Where a case has been partially tried before one judge,
claim has been pleaded shall adduce evidence in
the consolidation of the same with another related
support of their defense, in the order to be
case pending before another judge who had no
prescribed by court
opportunity to observe the demeanor of the witness
f.   Parties may then respectively adduce rebutting
during trial makes the consolidation not mandatory
evidence only, unless the court permits them to
[PCGG v. Sandiganbayan, G.R. No. 102370-71 (1992)]
adduce evidence upon their original case
g.   Upon admission of the evidence, the case shall be
The Rules do not distinguish between cases filed
submitted for decision, unless the court directs
before the same branch or judge and those that are
parties to argue or to submit respective
pending in different branches or before different
memoranda or any further pleading [Sec. 5, Rule
judges of the same court, in order that consolidation
30]
may be proper, as long as the cases involve the
resolution of questions of law or facts in common with
Reverse order
each other [Active Woods Products Co. Inc. v. CA, G.R.
Where the answer of the defendant admitted the
No. 86602 (1990)]
obligation stated in the complaint, although special
defenses were pleaded, the plaintiff has every right to
insist that it was for the defendant to come forward

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Kinds of consolidation
a.   Quasi-consolidation – where all, except one, of
7.  Trial by Commissioners
several actions are stayed until one is tried, in
which case, the judgment in the one trial is Commissioner - A person to whom a case pending in
conclusive as to others; not actually consolidation court is referred, for him to take testimony, hear the
but referred to as such parties and report thereon to the court, and upon
b.   Actual consolidation – where several actions are whose report, if confirmed, judgment is rendered
combined into one, lose their separate identity, [Secs.1, 3, 9, 11, Rule 32]
and become one single action in which judgment
is rendered General rule: Trial by commissioner depends largely
c.   Consolidation for Trial – where several actions upon the discretion of the court [Sec. 1-2, Rule 32]
are ordered to be tried together, but each retains
its separate character, and requires the entry of Exceptions: In the following instances, appointment of
separate judgment a commissioner is necessary:
[Republic v. Sandiganbayan, G.R. No. 152375 (2011)] a.   Expropriation [Rule 67]
b.   Partition [Rule 69]
Severance
When proper: In furtherance of convenience or to Kinds of trial by commissioners
avoid prejudice [Sec. 2, Rule 31] a.   Reference by consent of both parties
b.   Reference ordered on motion
When separate trial of claims is conducted by the court [Sec. 1-2, Rule 32]
under this section, it may render separate judgments
on each claim [see Sec. 5, Rule 36] a.   Reference by Consent or
This provision permitting separate trials presupposes
Ordered on Motion
that the claims involved are within the jurisdiction of
the court. When one of the claims is not within its Reference by consent
jurisdiction, the same should be dismissed, so that it The court may order any or all of the issues in a case to
may be filed in the proper court [1 Regalado 394, 2010 be referred to a commissioner by written consent of
Ed.] both parties [Sec. 1, Rule 32]

Commissioners are to be:

6.  D elegation of Reception of 1.   Agreed upon by the parties; or
2.   Appointed by the court
Evidence
Reference ordered on motion
The judge of the court where the case is pending shall When the parties do not consent, the court may, upon
personally receive the evidence to be adduced by the the application of either or of its own motion) direct a
parties [Sec. 9, Rule 30] reference to a commissioner in the following cases
1.   When the trial of an issue of fact requires the
Exception: The court may delegate the reception of examina tion of a long account on either side, in
evidence to its COC who is a member of the bar in which case the commissioner may be directed to
a.   Default hearings hear and report upon the whole issue or any
b.   Ex parte hearings, or specific question involved therein
c.   Cases where parties agree in writing. 2.   When the taking of an account is necessary for the
information of the court before judgment, or for
The COC has no power to rule on objections to any carrying a judgment or order into effect
question or to the admission of exhibits. Objections 3.   When a question of fact, other than upon the
shall be resolved by the court upon submission of the pleadings, arises upon motion or otherwise, in any
clerk’s report and the TSN within 10 days from stage of a case, or for carrying a judgment or order
termination of the hearing [Sec. 9, Rule 30] into effect
[Sec. 2, Rule 32]
The Rule requires that, where the reception of
evidence is delegated to the clerk of court, he must Order of reference
also be a member of the bar. Neither agreement by When a reference is made, the clerk shall furnish the
parties nor their acquiescence can justify its violation commissioner with a copy of the order of reference,
[Umali-Paco v. Quilala, AM RTJ-02-1699 (2003)] which may contain the following:

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

1.   Specifications or limitations of the powers of the depositions, papers and the transcripts, if any, of the
commissioner; testimonial evidence presented before him [Sec. 9,
2.   A direction to report only upon particular issues, Rule 32]
to do or perform particular acts, or to receive and
report evidence only Notice and hearing on the report
3.   The date for beginning and closing the hearings, Upon the filing of the report, the parties shall be
and that for the filing of his report 1.   Notified by the clerk; and
[Sec. 3, Rule 32] 2.   Allowed 10 days within which to object to the
findings of the report, if they so desire
[Sec. 10, Rule 32]
b.   Powers of the Commissioner
Note: Objections to the report based upon grounds
1.   Regulate the proceedings in every hearing before which were available to the parties during the
him proceedings before the commissioner, other than
2.   Do all acts and take all measures necessary or objections to the findings and conclusions therein set
proper for the efficient performance of his duties forth, shall not be considered by the court unless they
under the order were made before the commissioner [Sec. 10, Rule
3.   Issue subpoenas and subpoenas duces tecum 32]
4.   Swear witnesses, and
5.   Unless otherwise provided in the order of Upon the expiration of the 10-day period to file
reference, he may rule upon the admissibility of objections, the report shall be set for hearing. After
evidence such hearing, the court shall issue an order
[Sec. 3, Rule 32] 1.   Adopting, modifying, or rejecting the report, in
whole or in part, or
Note: Refusal of a witness to obey such subpoena or to 2.   Recommitting it with instructions, or
give evidence before him is deemed contempt of the 3.   Requiring the parties to present further evidence
court which appointed the commissioner [Sec. 7, Rule before the commissioner or the court
32] [Sec. 11, Rule 32]
Proceedings before the commissioner
1.   Upon receipt of the order of reference, the
commissioner shall set a time and place for the
first meeting of parties or their counsel
2.   Notices shall be sent to parties or counsel
3.   Hearing is to be held within 10 days after the date
of order of reference
[Sec. 5, Rule 32]
4.   If a party fails to appear, the commissioner may
a.   Proceed ex parte; or
b.   Adjourn the proceedings to a future date
giving notice to the absent party or his
counsel
[Sec. 6, Rule 32]

c.   Report of the Commissioner;

Notice to Parties and Hearing
on the Report
Report of the commissioner
Upon the completion of the trial or hearing or
proceeding before the commissioner, he shall file with
the court his report in writing upon the matters
submitted to him by the order of reference. When his
powers are not specified or limited, he shall set forth
his findings of fact and conclusions of law in his report.
He shall attach thereto all exhibits, affidavits,

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  Demurrer to Evidence The appellate court should not remand the case for
further proceedings but should render judgment on
the basis of the evidence submitted by the plaintiff
After the plaintiff has completed the presentation of [Consolidated Bank and Trust Corp. v. Del Monte Motor
his evidence, the defendant may move for dismissal on Works, Inc., G.R. No. 143338 (2005)]
the ground that upon the facts and the law the plaintiff
has shown no right to relief [Sec. 1, Rule 33]
4.  W aiver of Right to Present
Demurrer of evidence v. motion to dismiss Evidence
Demurrer to Evidence Motion to Dismiss
Made after the plaintiff Made before the filing of If the order granting the demurrer is reversed on
rests his case an answer appeal, the defendant loses his right to present
Based on only one Based on those grounds evidence [Sec. 1, Rule 33; Republic v. Tuvera, G.R. No.
ground under Rule 33 enumerated in Rule 16 148246 (2007)]
If denied, the If denied, the defendant
defendant may present may file his responsive
his evidence pleading 5.  D emurrer to Evidence in a
If granted, the Civil Case v. Demurrer to
complaint may not be If granted, the
refiled and the complaint may be Evidence in a Criminal
plaintiff’s remedy is to
appeal from the order
refiled, depending on
the ground for dismissal
Case
of dismissal
Demurrer in CIVIL Demurrer in CRIMINAL
[1 Riano 572, 2014 Bantam Ed.]
CASE CASE
Anchored upon the
1.   Grounds failure of the plaintiff to Predicated upon
show that upon the prosecution’s
Insufficiency of evidence, that upon the facts and the facts and the law, he is insufficiency of evidence
law the plaintiff has shown no right to relief [Sec. 1, entitled to relief [Sec. 1 [Sec. 23, Rule 119]
Rule 33] Rule 33]
Requires prior leave of May be filed with or
court relief [Sec. 1, Rule without leave of court
2.  E ffect of Denial 33] [Sec. 23, Rule 119]
Defense may present
If the demurrer is denied, the defendant shall have the
evidence upon denial of
right to present his evidence [Sec. 1, Rule 33]
demurrer if the Defense
filed the demurrer with
The court should not proceed to grant the relief
leave of court.
demanded by the plaintiff but should set the date for
reception of the defendant’s evidence [Northwest When demurrer is When without leave of
Airlines v. CA, G.R. No. 120334 (1998)] denied, defendant does court, demurrer was
not lose his right to denied,
An order denying the demurrer is interlocutory, and
present his evidence defense/accused
not subject to appeal. It can be subject to a petition for
waives his right to
certiorari, in case of grave abuse of discretion or
present evidence and
oppressive exercise of judicial authority [Katigbak v.
submits the case for
Sandiganbayan, G.R. No. 140183 (2003)] judgment on the basis
of evidence offered by
3.  Effect of Grant the prosecution.
If the demurrer is No appeal is allowed
If the demurrer is granted, the case shall be dismissed granted, plaintiff may when a demurrer is
[Sec. 1, Rule 33] appeal and if the granted because the
dismissal is reversed, dismissal is deemed an
If the appeal is granted, the defendant- movant loses the defendant is acquittal [People v. Tan,
the right to present evidence [Sec. 1, Rule 33] deemed to have waived G.R. No. 167526 (2010)]

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his right to present his

evidence   Judgments and Final
It is the defendant who
invokes demurrer by
The court may, on its Orders
own initiative, may
moving for the
dismiss the action after Judgments in general
dismissal of the case.
giving the prosecution The final ruling by a court of competent jurisdiction
an opportunity to be regarding the rights and obligations of the parties, or
The court does not so
heard. other matters submitted to it in an action or
on its own inititiative
proceeding [Macahilig v. Heirs of Magalit (2000)]
[Riano 498, Criminal Procedure, 2016 Ed.]
Requisites of a valid judgment
1.   Court or tribunal must be clothed with authority
to hear and determine the matter before it [Acosta
v. COMELEC, G.R. No. 131488 (1998)]
2.   Court must have jurisdiction over the parties and
the subject matter
3.   Parties must have been given an opportunity to
adduce evidence in their behalf [Acosta v.
COMELEC, G.R. No. 131488 (1998)]
4.   Evidence must have been considered by the
tribunal in deciding the case [Acosta v. COMELEC,
G.R. No. 131488 (1998)]
5.   Judgment must be in writing, personally and
directly prepared by the judge [Corpus v.
Sandiganbayan, G.R. No. 162214 (2004)]
6.   Judgment must state clearly the facts and the law
upon which the decision is based, signed by the
judge and filed with the clerk of court [Sec. 1, Rule
36; Sec. 14, Art. VIII, 1987 Constitution]
[Riano]

Kinds of judgment
1.   Judgment by compromise – Rendered on the
basis of a compromise agreement entered into
between the parties to the action [1 Riano 606,
2014 Bantam Ed., Diamond Builders
Conglomeration v. Country Bankers Corp., G.R. No.
171820 (2007)]. Once approved by the court, a
judicial compromise is not appealable and it
thereby becomes immediately executory [1 Riano
607, 2014 Bantam Ed.]
2.   Judgment by confession (cognovit actionem) –
one rendered by the court when a party expressly
agrees to the other party’s claim or acknowledges
the validity of the claim against him [1 Riano 609,
2014 Bantam Ed., see also PNB v. Manila Oil, G.R.
No. 18103 (1922)]
3.   Judgment upon the merits – one rendered after
consideration of the evidence submitted by the
parties during the trial of the case. A judgment is
“on the merits” when it amounts to a legal
declaration of the respective rights and duties of
the parties, based upon the disclosed facts.
4.   Clarificatory judgment – one rendered where the
judgment is ambiguous and difficult to comply

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

with [1 Regalado 417, 2010 Ed., citing Almendras v. d.   Dismissal with prejudice [Sec. 5, Rule 16; Sec. 3,
Del Rosario, G.R. No. L-20158 (1968)] Rule 17; Sec. 5, last par., Rule 7]
5.   Judgment nunc pro tunc – literally, “now for e.   Under the Rules on Summary Procedure
then”. It is a judgment intended to enter into the f.   Agreed statement of facts [Sec. 6, Rule 30]
record the acts which had already been done, but
which do not appear in the records [Lichauco v.
Tan Pho, G.R. No. 19512 (1923)]. It can only be
2.  C ontents of a Judgment
issued when the thing ordered has previously
been made, but by inadvertence has not been Form of judgment
entered [Vasquez v. CA, G.R. No. 144882 (2005)] a.   In writing
6.   Judgment sin perjuicio – traditionally understood b.   Personally and directly prepared by the judge
to be a brief judgment containing only the c.   Stating clearly & distinctly the facts and the law
dispositive portion [Director of Lands v. Sanz, G.R. on which it is based
No. 21183 (1923)] d.   Signed by the judge
7.   Conditional Judgment – one whose effectivity e.   Filed with the clerk of court.
depends upon the occurrence or non- occurrence [Sec. 1, Rule 36]
of an event; generally void because of the absence
of a disposition [Cu- Unjieng v. Mabalacat Sugar Parts of a judgment
Co. (1940)] a.   The opinion of the court – contains the findings of
8.   Several Judgment – one rendered by a court fact and conclusions of law
against one or more defendants and not against b.   The disposition of the case – the final and actual
all of them, leaving the action to proceed against disposition of the rights litigated (the dispositive
the others [Sec. 4, Rule 36]. A several judgment is part)
proper where the liability of each party is clearly c.   Signature of the judge
separable and distinct from that of his co-parties [2 Herrera 155, 2007 Ed.]
such that the claims against each of them could
have been the subject of separate suits, and Parts of a decision
judgment for or against one of them will not In general, the essential parts of a good decision
necessarily affect the others. In actions against consist of the following
solidary debtors, a several judgment is not proper a.   Statement of the case
[1 Regalado 424, 2010 Ed.]. b.   Statement of facts
9.   Separate Judgment – one rendered disposing of c.   Issues or assignment of errors
a claim among several others presented in a case, d.   Court ruling, in which each issue is, as a rule,
after a determination of the issues material to a separately considered and resolved; and, finally,
particular claim and all counterclaims arising out e.   Dispositive portion
of the transaction or occurrence that is the subject
matter of said claim [Sec. 5, Rule 36] The ponente may also opt to include an introduction or
10.   Memorandum Decision – rendered by an a prologue as well as an epilogue, especially in cases
appellate court, and incorporates by reference the in which controversial or novel issues are involved.
findings of fact or the conclusions of law [Velarde v. Social Justice Society, G.R. No. 159357
contained in the decision, order or ruling under (2004)]
review [1 Riano 581, 2014 Bantam Ed.]
11.   Declaratory Judgment – one rendered in a Distinction between judgment and the opinion of
special civil action for declaratory relief [Rule 63] the court
12.   Foreign Judgment – one rendered by a tribunal of In the case of a trial court a judgment must be
a foreign country [Sec 48, Rule 39] distinguished from an opinion. The latter is the
informal expression of the views of the court and
cannot prevail against its final order or decision. While
1.   Judgment Without Trial the two may be combined in one instrument, the
opinion forms no part of the judgment. So ... there is a
Trial is not necessary in the following instances: distinction between the findings and conclusions of a
a.   Judgment on the Pleadings [Rule 34] court and its judgment. While they may constitute its
b.   Summary Judgment [Rule 35] decision and amount to a rendition of a judgment they
c.   Upon compromise or amicable settlement, either are not the judgment itself. They amount to nothing
during pre-trial or during trial [Rule 18; Art. 2028, more than an order for judgment, which, of course,
Civil Code] must be distinguished from the judgment [Casilan v.

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Salcedo, G.R. No. L-23247 (1969), citing 1 Freeman on Features of memorandum decision
Judgments 6, 5th Ed.] The distinctive features of the memorandum decision
are:
Conflict between disposition and opinion of the a.   it is rendered by an appellate court, and
court b.   it incorporates by reference the findings of fact or
General rule: The general rule is that where there is the conclusions of law contained in the decision,
conflict between the dispositive portion or the fallo and order or ruling under review.
the body of the decision, the fallo controls. [1 Riano 581, 2014 Bantam Ed.]

Basis: The fallo is the final order. The opinion in the Requirement for its validity
body is merely a statement ordering nothing. a.   The memorandum decision, to be valid, cannot
[Poland Industrial Limited v. National Development incorporate the findings of fact and the
Company, G.R. No. 143866 (2005)] conclusions of law of the lower court only by
remote reference, which is to say that the
Exception: This Rule applies only when the dispositive challenged decision is not easily and immediately
part is definite, clear, and unequivocal [Union Bank v. available to the person reading the memorandum
Pacific Equipment Corporation, G.R. No. 172053 decision.
(2008)] b.   For the incorporation by reference to be allowed,
it must provide for direct access to the facts and
Where the inevitable conclusion from the body of the the law being adopted, which must be contained
decision is that there was a mistake in the dispositive in a statement attached to the said decision. In
portion, the body of the decision will prevail [Rosales v. other words, the memorandum decision
CA, G.R. No. 137566 (2001)] authorized under Sec. 40 of B.P. 129 should
actually embody the findings of fact and
See again “sin perjuicio” judgments above conclusions of law of the lower court in an annex
attached to and made an indispensable part of
the decision.
3.  Memorandum Decision c.   It is expected that this requirement will allay the
suspicion that no study was made of the decision
Form of decision in appealed cases of the lower court and that its decision was merely
Every decision of final resolution of a court in appealed affirmed without a proper examination of the facts
cases shall clearly and distinctly state the findings of and the law on which it is based. The proximity at
fact and the conclusions of law on which it is based, least of the annexed statement should suggest
which may be contained in the decision or final that such an examination has been undertaken. It
resolution itself, or adopted by reference from those is, of course, also understood that the decision
set forth in the decision, order, or resolution appealed being adopted should, to begin with, comply with
from [Sec. 40. B.P. 129] Article VIII, Section 14 [1987 Constitution] as no
amount of incorporation or adoption will rectify its
a.   No decision shall be rendered by any court violation.
without expressing therein clearly and distinctly [Francisco v. Permskul, G.R. No. 81006 (1989)]
the facts and the law on which it is based.
b.   No petition for review or motion for When rendered
reconsideration of a decision of the court shall be a.   It is an additional condition for its validity that this
refused due course or denied without stating the kind of decision may be resorted to only in cases
legal basis therefor where the facts are in the main accepted by both
[Sec. 14, Art. VIII, Constitution] parties or easily determinable by the judge and
there are no doctrinal complications involved that
Purpose of law on authorizing memorandum will require an extended discussion of the laws
decision involved. The memorandum decision may be
There is no question that the purpose of the law employed in simple litigations only, such as
(referring to Sec. 40, B.P. 129 cited above) in ordinary collection cases, where the appeal is
authorizing the memorandum decision is to expedite obviously groundless and deserves no more than
the termination of litigations for the benefit of the the time needed to dismiss it.
parties as well as the courts themselves [Francisco v. b.   The memorandum decision may be employed in
Permskul, G.R. No. 81006 (1989)] simple litigations only, such as ordinary collection
cases, where the appeal is obviously groundless

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and deserves no more than the time needed to

dismiss it.
5.  S ummary Judgments
c.   Henceforth, all memorandum decisions shall
comply with the requirements herein set forth Definition
both as to the form prescribed and the occasions A judgment which a court may render before trial, but
when they may be rendered. Any deviation will after both parties have pleaded upon application by
summon the strict enforcement of Article VIII, one party supported by affidavits, depositions, or other
Section 14 of the Constitution and strike down the documents, with notice upon the adverse party who
flawed judgment as a lawless disobedience may file an opposition supported also by affidavits,
[Francisco v. Permskul, G.R. No. 81006 (1989)] depositions or other documents, should the court find
after summarily hearing both parties with their
respective proofs that there exists no genuine issue
4.  J udgment on the between them [2 Herrera 118, 2007 Ed., citing
Evangelista v. Mercator Financing Corporation, G.R.
Pleadings No. 148864 (2003)]
Where an answer fails to tender an issue, or otherwise The trial court cannot motu propio decide that
admits the material allegations of the adverse party’s summary judgment on an action is in order. The
pleading, the court may, on motion of that party, direct defending party or claimant, as the case may be, must
judgment on such pleading [Sec. 1, Rule 34] invoke the Rule by filing a motion. The adverse party
must then be notified of the motion and furnished with
A motion for a Judgment on the Pleadings, where the supporting documents before hearing is conducted
answer admits the material averments of the [Pineda v. Heirs of Eliseo Guevara, G.R. No. 143188
complaint, is one that may be considered ex parte (2007)]
because upon the particular facts thus presented and
laid down before the court, the plaintiff is entitled to a Summary Judgment is proper when it appears to the
judgment [Dino v. Valencia, G.R. No. L-43886 (1989)] court that
a.   There exists no genuine issue as to any material
A Judgment on the Pleadings cannot be rendered by fact, except as to the amount of damages, and
the court motu propio. It can only be done where there b.   The moving party is entitled to judgment as a
is a prior motion to that effect by the appropriate party matter of law
[Sec. 1, Rule 34, cited by 1 Riano 610, 2014 Bantam Ed.
But see Luzon Development Bank v. Conquilla, G.R. No. Genuine issue - an issue of fact which calls for the
163338 (2005)] presentation of evidence as distinguished from a
sham, fictitious, contrived, or false claim [Philippine
Grounds for judgment on the pleadings Bank of Communications v. Go, G.R. No. 175514 (2011)]
a.   The answer fails to tender an issue, or
b.   The answer otherwise admits material allegations Test: Whether or not the pleadings, affidavits and
of the adverse party’s pleading exhibits in support of the motion are sufficient to
[Sec. 1, Rule 34] overcome the opposing papers and to justify the
finding that, as a matter of law, that there is no
Judgment on the pleadings is not proper in the ff. defense to the action, or the claim is clearly
cases: meritorious [Estrada v. Consolacion, G.R. No. L- 40948
a.   Declaration of Nullity of Marriage (1976)]
b.   Annulment of marriage; and
c.   Legal Separation
[Sec. 1, Rule 34] a.   For the Claimant; For the
Defendant
Note: The concept will not apply when no answer is
filed. It will come into operation when an answer is When filed
served and filed but the same fails to tender an issue, 1.   If sought by the claimant – only after the answer
or admits the material allegations of the adverse is served; [Sec. 1, Rule 35]
party’s pleading [1 Riano 609, 2014 Bantam Ed.] 2.   If sought by the defendant – at any time [Sec. 2,
Rule 35]
When no answer is filed, the remedy is to move that
the defendant be declared in default [Sec. 3, Rule 9]

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Procedure c.   Affidavits and Attachments

1.   Movant files a motion for summary judgment with
supporting affidavits, depositions or admission Form
2.   Service to the adverse party at least 10 days the 1.   Made on personal knowledge
hearing 2.   Setting forth such facts as would be admissible in
3.   Adverse party may serve opposing affidavits, evidence
depositions or admissions at least 3 days before 3.   Showing affirmatively that the affiant is
the hearing competent to testify to the matters stated therein.
4.   Hearing – Court shall determine if a genuine issue 4.   Certified true copies of all papers or parts thereof
as to any material fact exists, and if the movant is referenced in the affidavit shall be attached or
entitled to a summary judgment as a matter of served with the affidavit
law [Sec. 5, Rule 35]
5.   Court renders summary judgment
[Sec. 3, Rule 35] Affidavits in bad faith [Sec. 6, Rule 35] – those
presented under this Rule which appear to the court at
Note: Damages must still be proven even if not denied. any time as presented in bad faith or solely for the
Note language of Sec. 3, Rule 35, “except as to the purpose of delay
amount of damages.”
Effect of affidavits in bad faith
Bases for summary judgment The court:
1.   Affidavits 1.   shall order the offending party or counsel to pay
2.   Depositions the other party the amount of reasonable
3.   Admissions expenses which the filing of the affidavits caused
[Sec. 1-2, Rule 35] him to incur; and
2.   may, after hearing, adjudge the offending party or
b.   When the Case is Not Fully counsel guilty of contempt
Adjudicated
6.  J udgment on the
Partial summary judgment – applies when for some
reason there can be no full summary judgment. Trial
Pleadings v. Summary
should deal only with the facts not yet specified or Judgment
established.
Judgment on the
Duty of the court [Sec. 4, Rule 35] Summary judgment
pleadings
1.   Ascertain which material facts exist without Absence of a factual
substantial controversy and which are actually Involves an issue, but
issue in the case
and in good faith controverted, by the issue is not
because the answer
a.   Examining the pleadings and evidence before genuine
tenders no issue at all
it; and Motion for judgment on
b.   Interrogating counsel Motion for summary
the pleadings is filed by
2.   Make an order which: judgment may be filed
a claiming party like a
a.   Specifies the facts without substantial by either the claiming
plaintiff or a
controversy and deemed established, or the defending party
counterclaimant [Sec. 1,
including the extent to which the amount of [Secs. 1-2, Rule 35]
Rule 34]
damages or other relief is not in controversy Based on the
b.   Directs further proceedings as are just pleadings, affidavits,
3.   Conduct trial on the controverted facts Based on the pleadings
depositions and
alone [Sec. 1, Rule 34]
admissions [Sec. 3,
Effect: A partial summary judgment is not a final Rule 35]
judgment, but merely a pre-trial adjudication that said
10-day notice to the
issues in the case shall be deemed established for the Only a 3-day notice to
adverse party is
trial of the case [Guevarra v. CA, G.R. No. L-49017 the adverse party is
required. The adverse
(1983)] required prior to the
party in turn may serve
date of hearing [Sec. 4,
opposing affidavits,
Rule 15]]
depositions or

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admissions at least 3
days before the
8.  E ntry of Judgment and
hearing [Sec. 3, Rule Final Order
35]
[1 Riano 614-615, 2014 Bantam Ed.] The entry of judgment refers to the physical act
performed by the clerk of court in entering the
7.  Rendition of Judgments dispositive portion of the judgment in the book of
entries of judgment after the same has become final
and Final Orders and executory [1 Riano 615, 2014 Bantam Ed.]

Rendition of judgment When entered: If no appeal, or motion for new trial or

Pronouncement of the judgment in open court does reconsideration is filed within the time provided in the
not constitute rendition of judgment. It is the filing of Rules, the judgment or final order shall forthwith be
the signed decision with the COC that constitutes entered by the clerk in the book of entries of
rendition. Even if the judgment has already been put judgments [Sec. 2, Rule 36]
in writing and signed, it is still subject to amendment
if it has not yet been filed with the COC [Ago v. CA, G.R. Contents of record in the book of entries:
No. L-17898 (1962)] a.   Dispositive part of the judgment or final order
b.   Signature of the clerk; and
The filing of the signed decision constitutes the c.   Certification that such judgment or final order has
rendition of a judgment. This includes an amended become final and executory [Sec. 2, Rule 36]
decision because an amended decision is a distinct
and separate judgment and must follow the Note: The date of finality of the judgment or final order
established procedural rule embodied in Sec. 1, Rule shall be deemed to be the date of its entry [Sec. 2, Rule
36 [2 Herrera 151, 2007 Ed.] 36]

Promulgation is the process by which a decision is Under Sec. 2, Rule 36, the date of the entry of
published, officially announced, made known to the judgment is the date when the judgment becomes
public or delivered to the COC for filing, coupled with final and executory regardless of the date when the
notice to the parties or their counsel [2 Herrera 151, physical act of entry was done [1 Riano 615, 2014
2007 Ed., Neria v. Commissioner of Immigration, G.R. Bantam Ed.]
No. L-24800 (1968)]

Period for rendition

a.   All cases filed must be decided or resolved by the
Supreme Court within 24 months from the date of
their submission for decision.
b.   Unless reduced by the SC, within 12 months for
lower collegiate courts and within 3 months for all
other lower courts.
[Sec. 15, Art. VIII, Constitution]

A case is deemed submitted for resolution upon the

filing of the last pleading, brief or memorandum
required by the Rules of Court or by the court [Sec. 15,
Art. VIII, Constitution]

An extension of the period may be set by the SC upon

request by the judge concerned on account of heavy
caseload or by other reasonable excuse. Without an
extension, a delay in the disposition of cases is
tantamount to gross inefficiency on the part of the
judge [Arap v Mustafa, SCC-01-7 (2002)]

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  Post-Judgment For negligence, it must be generally imputable to the

party. The negligence of the counsel is binding on the
Remedies client except if it was so great as to prejudice the client
and prevent fair presentation of the case [1 Regalado
432, 2010 Ed.]
Remedies before finality of judgment
1.   Motion for new trial [Rule 37] Note: A motion for reopening the trial is different from
2.   Motion for reconsideration [Rule 37] a motion for new trial—the latter can only be done
3.   Appeal [Rules 40-45] after promulgation of judgment whereas the former
[1 Riano 60, 2011 Ed.] may properly be presented after either or both parties
have formally offered and closed their evidence before
1.   Motion for New Trial or judgment. [1 Regalado 432, 2010 Ed.]
Reconsideration Grounds for MR
1.   Damages awarded are excessive
Note: The motion for reconsideration (MR) under Rule 2.   Evidence is insufficient to justify the decision or
37 is directed against a judgment or final order [Sec. 1, final order
Rule 37]. It does not refer to one for interlocutory 3.   Decision or final order is contrary to law
orders, which often precedes a petition for certiorari [Sec. 1, Rule 37]
under Rule 65. [1 Riano 558, 2011 Ed.]
Note: If the MR is based on the same grounds as that
for a MNT, it is considered a MNT [Rodriguez v. Rovira,
These motions are prohibited in cases covered by the G.R. No. 45252 (1936)]
Rule on Summary Procedure [Sec. 19] and those
falling under the Rules of Procedure on Small Claims
Cases [Sec. 16]. b.   When to File
Within the period for taking an appeal [Sec. 1, Rule 37]
a.   Grounds See Period of appeal below.

GROUNDS FOR MOTION FOR NEW TRIAL (MNT) Contents

One or more of the following causes materially 1.   The motion shall be made in writing stating the
affecting the substantial rights of said party: ground or grounds therefor, a written notice of
1.   Fraud, accident, mistake or excusable negligence which shall be served by the movant on the
(FAME) which ordinary prudence could not have adverse party.
guarded against and by reason of which such 2.   A MNT shall be proved in the manner provided for
aggrieved party has probably been impaired in his proof of motions.
rights, or a.   A motion based on FAME shall be supported
2.   Newly discovered evidence, which he could not, by affidavits of merits which may be rebutted
with reasonable diligence, have discovered and by affidavits.
produced at the trial, and which if presented b.   A motion based on newly-discovered
would probably alter the result evidence shall be supported by affidavits of
[Sec. 1, Rule 37] the witnesses by whom such evidence is
expected to be given, or by duly
FAME authenticated documents which are
Fraud must be extrinsic. Meaning, it is any fraudulent proposed to be introduced in evidence.
scheme executed outside of the trial by the prevailing 3.   A MR shall point out specifically the findings or
party against the losing party, who, because of such conclusions of the judgment or final order which
fraud, is prevented from presenting his side of the are not supported by the evidence or which are
case, or judgment was procured without fair contrary to law, making express reference to the
submission of the controversy [1 Regalado 455, 2010 testimonial or documentary evidence or to the
Ed.] provisions of law alleged to be contrary to such
findings or conclusions.
For mistake, it generally refers to mistake of fact but 4.   A pro forma MNT/MR shall not toll the
may also be mistakes of law made in good faith by the reglementary period of appeal.
defendant who was misled in the case [1 Regalado 431, [Sec. 2, Rule 37]
2010 Ed.]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

MNT based on FAME not accompanied by affidavit Resolution: The motion shall be resolved within 30
of merits days from the time it is submitted for resolution [Sec.
General rule: Denied 4, Rule 37]

Exceptions: The 30-day period to resolve the motion is held to be

1.   The court has no jurisdiction over the defendant/ mandatory [Gonzales v. Bantolo, A.M. No. RTJ-06-
subject matter so the judgment is null and void 1993 (2006)]
2.   The judgment is defective as where a judgment by
default was rendered even before the
reglementary period to answer had expired.
c.   Denial of the Motion; Effect
3.   The defendant was deprived of his day in court as
when no notice of hearing was furnished him Not appealable, the remedy is an appeal from the
[1 Regalado 435, 2010 Ed.] judgment or final order [Sec.9, Rule 37]

When MNT considered pro forma The order denying the motion may itself be assailed by
1.   Based on the same ground raised in preceding a petition for certiorari under Rule 65 [1 Regalado 437,
MNT/MR already denied 2010 Ed.]
2.   Contains the same arguments and manner of
discussion in the prior opposition to a motion to d.   Grant of the Motion; Effect
dismiss which was granted
nd
3.   The new ground alleged in the 2 MNT was Grant of MNT
available and could have been alleged in the first If a new trial is granted in accordance with Rule 37, the
MNT which was denied original judgment or final order shall be vacated, and
4.   Based on the ground of insufficiency of the action shall stand for trial de novo; but the
evidence/that the judgment is contrary to law, but recorded evidence taken upon the former trial, insofar
does not specify the supposed defects in as the same is material and competent to establish the
judgment issues, shall be used at the new trial without retaking
5.   Based on FAME but does not specify the facts the same [Sec. 6, Rule 37].
constituting these grounds and/or is not
accompanied by an affidavit of merits. Grant of MR
[1 Regalado 193, 2010 Ed.] If the court finds that excessive damages have been
awarded or that the judgment or final order is contrary
Single-motion rule [Sec. 5, Rule 37] to the evidence or law, it may amend such judgment
1.   A motion for new trial shall include all grounds or final order accordingly [Sec. 3, Rule 37].
then available and those not so included shall be
deemed waived. A second motion for new trial, Partial grant of new trial or reconsideration
based on a ground not existing nor available If the grounds for a motion under this Rule appear to
when the first motion was made, may be filed the court to affect
within the time herein provided excluding the 1.   The issues as to only a part, or
time during which the first motion had been 2.   Less than all of the matter in controversy, or
pending. 3.   Only one, or less than all, of the parties to it,
2.   No party shall be allowed a second motion for the court may order a new trial or grant
reconsideration of a judgment or final order. reconsideration as to such issues if severable without
interfering with the judgment or final order upon the
Court action rest [Sec. 7, Rule 37]
The trial court may
1.   Set aside the judgment or final order and grant a Partial new trial; effect
new trial, upon such terms as may be just When less than all of the issues are ordered retried,
2.   Deny the motion the court may either
3.   Amend such judgment or final order accordingly 1.   Enter a judgment or final order as to the rest, or
if the court finds that 2.   Stay the enforcement of such judgment or final
a.   Excessive damages have been awarded or order until after the new trial.
that, or [Sec.8, Rule 37]
b.   Judgment or final order is contrary to the
evidence or law
[Sec. 3, Rule 37]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

e.   Remedy When Motion is [Neypes v. CA, G.R. No. 141524 (2005)]

Denied; Fresh 15-Day Period Notes
Rule What is appealed is the judgment itself, not the order
denying the MNT/MR [Sec. 9, Rule 37].
1.   The SC has allowed a fresh period of 15 days
within which to file the notice of appeal in the A.M. No. 07-7-12, effective December 27, 2007,
RTC, counted from receipt of the order dismissing amended Sec. 1, Rule 41 by deleting “An order denying
a MNT/MR. a motion for new trial or reconsideration” from the
2.   The fresh period of 15 days becomes significant non-appealable orders. Nevertheless, Sec. 9, Rule 37
only when a party opts to file a motion for new trial still states that an order denying a MNT or
or motion for reconsideration. reconsideration is not appealable.

Motion for New Trial v. Motion for Reconsideration

Motion for New Trial Motion for Reconsideration
1.   Damages awarded are excessive
Grounds 1.   Fraud, accident, mistake, or excusable 2.   That the evidence is insufficient to justify the
[Sec. 1, negligence decision or final order
Rule 37] 2.   Newly discovered evidence 3.   That the decision or final order is contrary to
law
A MNT shall include all grounds then available
and those not so included shall be deemed
waived.
No party shall be allowed a second MR of a
judgment or final order [Sec. 5, Rule 37].
Second A second MNT based on a ground not existing nor
MNT/MR available when the first motion was made, may be
Note: This prohibition does not cover
filed within the time herein provided excluding the
interlocutory orders.
time during which the first motion had been
pending.
[Sec. 5, Rule 37]
The original judgment or final order shall be The court may amend the judgment or final order
vacated, and the action shall stand for trial de accordingly, if it finds:
novo; but the recorded evidence taken upon the 1.   that excessive damages have been awarded,
Effect if
former trial, insofar as the same is material and or
granted
competent to establish the issues, shall be used 2.   that the judgment or final order is contrary to
at the new trial without retaking the same [Sec. 6, the evidence or law
Rule 37] [Sec. 3, Rule 37]

made is not a party to the proceeding for review

2.  A ppeals whereas in an action for review, the court which made
the determination is a party to the proceeding for
Nature review [1 Regalado 556, 2010 Ed.]
a.   Not a natural right nor a part of due process
b.   It is merely a statutory privilege, and may be
exercised only in the manner and in accordance a.   Judgments and Final Orders
with the provisions of the law Subject to Appeal
[Ong v. Philippine Insurance Corp., G.R. No. 175116
(2010)] An appeal may be taken from a judgment or final order
c.   Once granted, appeals become part of due that completely disposes of the case, or of a particular
process and should be liberally applied in favor of matter therein when declared by the ROC to be
the right to appeal [Sec. 1, Rule 122; NOTE: This appealable [Sec. 1, Rule 41].
provision is from the Rules on Criminal
Procedure.]

An appeal is different from an action to review. In an

appeal, the court by which the first determination was

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

b.   Matters Not Appealable appellee did not file any objection [1 Regalado 552,
2010 Ed.]
1.   An order denying a petition for relief or any similar
motion seeking relief from judgment c.   Remedy against Judgments
2.   An interlocutory order
3.   An order disallowing or dismissing an appeal
and Orders Which are Not
4.   An order denying a motion to set aside a judgment Appealable
by consent, confession or compromise on the
ground of fraud, mistake or duress, or any other In those instances where the judgment or final order is
ground vitiating consent not appealable, the aggrieved party may file the
5.   An order of execution appropriate special civil action under Rule 65 [Sec. 1,
6.   A judgment or final order for or against one or Rule 41]
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending,
d.   Final Judgment Rule;
unless the court allows an appeal therefrom, and Exceptions
7.   An order dismissing an action without prejudice
[Sec. 1, Rule 41, as amended by A.M. No. 07-7-12-SC] General rule: Once a decision or order becomes final
and executory, it is removed from the power or
Final order v. interlocutory order jurisdiction of the court which rendered it to further
Final Order Interlocutory Order alter or amend it [Siliman University v. Fontelo-Paalan,
Determine incidental G.R. No. 170948 (2007)]
One that finally
matters that do not
disposes of a case, Under the doctrine of immutability of judgments, a
touch the merits of the
leaving nothing more to judgment that has attained finality can no longer be
case or put an end to
be done by the Court in disturbed. The reason is two-fold:
the proceedings
respect thereto 1.   To avoid delay in the administration of justice, and
[Silverio Jr. v. Filipino
[Investments, Inc. v. CA, to make orderly the discharge of judicial business;
Business Consultants,
G.R. No. L-60036 and
Inc., G.R. No. 143312
(1987)] 2.   To put an end to judicial controversies at the
(2005)]
Proper remedy to expense of occasional errors
question an [1 Riano 538-539, 2011 Ed.]
improvident
Subject to appeal Exceptions:
interlocutor order is a
[Investments, Inc. v. CA, 1.   Correction of clerical errors [Filipinas Palmoil
petition for certiorari
G.R. No. L-60036 Processing, Inc. v. Dejapa, G.R. No. 167332 (2011)]
under Rule 65 [Silverio
(1987)] 2.   Nunc pro tunc entries [Filipinas Palmoil
Jr. v. Filipino Business
Consultants, Inc., G.R. Processing, Inc. v. Dejapa, G.R. No. 167332 (2011)]
No. 143312 (2005)] 3.   Whenever circumstances transpire after finality of
Not decisions or the decision, rendering its execution unjust and
Must express clearly inequitable [Apo Fruits Corp. v. Land Bank of the
judgments within the
and distinctly the facts Phils., G.R. No. 164195 (2010)]
constitutional definition
and the law on which it 4.   In cases of special and exceptional nature, when it
[1 Riano 581, 2014
is based [Sec. 14, Art. is necessary in the interest of justice to direct
Bantam Ed., citing
VIII, Constitution] modification in order to harmonize the disposition
Amargo v. CA, G.R. No.
[Pahila-Garrido v Tortogo, G.R. No. 156358 (2011)] with the prevailing circumstances [Industrial
Timber Corp. v. Ababon, G.R. No.164518 (2006)]
An interlocutory order is one that does not finally 5.   In case of void judgments [FGU Insurance v. RTC
dispose of the case, and does not end the court's task Makati, G.R. No. 161282 (2011)]
of adjudicating the parties’ contentions and 6.   Where there is a strong showing that a grave
determining their rights and liabilities as regards each injustice would result from an application of the
other, but obviously indicates that other things remain Rules [Almuete v. People, G.R. No. 179611 (2013)]
to be done [BPI v. Lee, G.R. No. 190144 (2012)] 7.   When there are grounds for annulment of
judgment or petition for relief [Gochan v. Mancao,
If an order appealed from is interlocutory, the G.R. No. 182314 (2013)]
appellate court can dismiss the appeal even if the

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Amended/clarified
Supplemental decision f.   Issues to be Raised on Appeal
judgment
An entirely new Limited to cognizable judgments/issues (errors stated
Does not take the place
decision and in the assignment of errors) unless it affects the court’s
of or extinguish the
supersedes the original jurisdiction over the subject matter or it is a
original judgment
judgment plain/clerical error [Enriquez v. CA, G.R. No. 140473
Court makes a (2003)]
thorough study of the
original judgment and The appellate court has no jurisdiction to review a
renders the amended Serves to add to the judgment which is immediately final and executory by
and clarified judgment original judgment express provision of law [Republic v. Bermudez-Lorino,
only after considering G.R. No. 160258 (2005)]
all the factual and legal
issues A party cannot change the theory on appeal. Only
[1 Regalado 418, 2010 Ed.] issues pleaded in the lower court and properly raised
may be resolved by the appellate court [Sps. Topacio v
e.   Modes of Appeal Banco Filipino Savings and Mortgage Bank, G.R. No.
157644 (2010)]
1.   Ordinary appeal – Rule 40 and 41
However, issues which are inferred from or necessarily
a.   Notice of appeal
connected with the issue properly raised and pleaded
b.   Record on appeal
may be resolved by the appellate court [Espina v. CA,
2.   Petition for review – Rule 42
G.R. No. 102128 (1992)]
3.   Appeal from quasi-judicial agencies (QJAs) to the
CA – Rule 43
4.   Petition for review on certiorari – Rule 45

Modes of Appeal
Petition for Review by
Ordinary Appeal Petition for Review Appeals from QJAs to the CA
Certiorari
Rule 41 Rule 42 Rule 43 Rule 45
Case where only question of
law are raised or involved
Awards, judgments, final orders
[Sec. 2(c), Rule 41]
or resolutions of or authorized
by any QJA in the exercise of its
Case decided by Case decided by RTC in Appeal by certiorari from a
quasi-judicial functions [Sec. 1,
RTC in exercise of exercise of appellate judgment or final order or
Rule 43]
original jurisdiction jurisdiction [Sec. 2(b), resolution of the CA, the
[Sec. 2(a), Rule 41] Rule 41] Sandiganbayan, the RTC or
EXCEPT: Judgments or final
other courts whenever
orders issued under the Labor
authorized by law [Sec. 1,
Code [Sec. 2, Rule 43]
Rule 45]

Notice of
Petition for review on
appeal/Record on Petition for review with Verified petition for review with
certiorari with the SC [Sec.
appeal with the CA the CA [Sec. 2(b), Rule 41] the CA [Sec. 5, Rule 43]
2(c), Rule 41]
[Sec. 2(a), Rule 41]
Filing a notice of File a verified petition for File a verified petition for review File verified petition for
appeal with the review with the CA, in 7 legible copies with the CA, review on certiorari with the
court which paying at the same time with proof of service of a copy SC [Sec. 1, Rule 45]
rendered the to the clerk of said court thereof on the adverse party and
judgment or final the corresponding docket on the court or agency a quo. Petitioner shall pay the
order appealed and other lawful fees, The original copy of the petition corresponding docket and
from and serving a depositing the amount of intended for the CA shall be other lawful fees to the
copy thereof upon PHP 500.00 for costs, indicated as such by the COC of the SC and deposit
the adverse party and furnishing the RTC petitioner. the amount of PHP 500.00
and the adverse party for costs at the time of the

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If required, the with a copy of the Upon the filing of the petition, filing of the petition. Proof
record-on appeal petition [Sec. 1, Rule 42] the petitioner shall pay to the of service of a copy thereof
shall be filed and COC of the CA the docketing on the lower court
served in like and other lawful fees and concerned and on the
manner [Sec. 2, deposit the sum of PHP 500.00 adverse party shall be
Rule 41] for costs submitted together with
[Sec.5, Rule 43] the petition [Sec. 3, Rule
45]
Within 15 days from:
Within 15 days from 1.   notice of the award,
notice of the judgment, final order or
judgment or final resolution, or
Within 15 days from notice
order appealed Within 15 days from 2.   the date of
of
from notice of i.   its last publication,
1.   the judgment or final
1.   the decision sought if publication is
order or resolution
Where a record of to be reviewed or required by law for
appealed from, or
appeal is required, 2.   the denial of its effectivity, or
2.   the denial of the
file a notice of petitioner’s MNT or ii.   the denial of
petitioner’s MNT or MR
appeal and a record MR filed in due time petitioner’s MNT or
filed in due time after
on appeal within 30 after judgment MR duly filed in
notice of the judgment
days from notice of [Sec. 1, Rule 42] accordance with the
[Sec. 2, Rule 45]
the judgment or governing law of the
final order court or agency a
[Sec. 3, Rule 41] quo
[Sec. 4, Rule 43]

Effect of failure to perfect appeal

g.   Period of Appeal 1.   Defeats a party’s right to appeal.
2.   Precludes appellate court from acquiring
The fresh period rule shall apply to: jurisdiction.
1.   Rule 40 governing appeals from the MTCs to the [1 Riano 20, 2011 Ed.]
RTCs
2.   Rule 41 governing appeals from the RTCs to CA
3.   Rule 42 on petitions for review from the RTCs to i.   Participation of the Solicitor
the CA General During Appeal
4.   Rule 43 on appeals from quasi-judicial agencies
to the CA, and In criminal proceedings on appeal in the Court of
5.   Rule 45 governing appeals by certiorari to the SC Appeals or in the SC, the authority to represent the
People is vested solely in the Solicitor General. Under
The new rule aims to regiment or make the appeal P.D. 478, among the specific powers and functions of
period uniform, to be counted from receipt of the order the OSG was to represent the government in the SC
denying the MNT, MR (whether full or partial) or any and the Court of Appeals in all criminal proceedings.
final order or resolution [Neypes v. CA, G.R. No. 141524 This provision has been carried over to the
(2005)] Administrative Code particularly in Book IV, Title III,
Chapter 12 thereof [Cario v. De Castro, G.R. No. 176084
Being procedural in nature, Neypes is deemed to be (2008)]
applicable to actions pending and undetermined at
the time of its effectivity and is thus retroactive in that The respondent’s failure to have a copy of his petition
sense and to that extent [First Aqua Sugar v. BPI, G.R. [for review under Rule 42] served on the People of the
No. 154034 (2007)] Philippines, through the OSG, is a sufficient ground for
the dismissal of the petition as provided in Sec. 3, Rule
h.   Perfection of Appeal 42 of the Rules of Court [People v. Duca, G.R. 171175
(2009)]
Perfection of an appeal in the manner and within the
period laid down by law is mandatory and
jurisdictional [Balgami v. CA, G.R. No. 131287 (2004)]

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j.   Appeal from Judgments or When taken

1.   Within 15 days after notice to the appellant of the
Final Orders of the Municipal judgment or final order appealed from.
Trial Court 2.   Where a record on appeal is required, the
appellant shall file a notice of appeal and a record
Procedure on appeal within thirty (30) days after notice of the
File a notice of appeal with the court that rendered judgment or final order.
the judgment or final order appealed from [Sec. 3, 3.   The period of appeal shall be interrupted by a
Rule 40] timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for
Within the period for taking an appeal, the new trial or reconsideration shall be allowed.
appellant shall pay to the clerk of the court which [Sec. 2, Rule 40]
rendered the judgment or final order appealed from
the full amount of the appellate court docket and Extension of period to appeal
other lawful fees [Sec. 5, Rule 40] Period to appeal may be extended but such extension
is addressed to the sound discretion of the court
¯ [Socco v. Garcia, G.R. No. L-18231 (1962)]
Within 15 days from the perfection of the appeal,
the COC or the branch COC of the lower court shall HOW TAKEN
transmit the original record or the record on appeal,
together with the transcripts and exhibits, which he By notice of appeal
shall certify as complete, to the proper RTC. A copy 1.   File a notice of appeal with the trial court that
of his letter of transmittal of the records to the rendered the judgment or final order appealed
appellate court shall be furnished the parties [Sec. from
6, Rule 40] 2.   The notice of appeal shall indicate the parties to
¯ the appeal, the judgment or final order or part
thereof appealed from, and state the material
Upon receipt of the complete record or the record
dates showing the timeliness of the appeal.
on appeal, the COC of the RTC shall notify the
3.   Copies of the notice of appeal shall be served on
parties of such fact [Sec. 7(a), Rule 40]
the adverse party.
¯ [Sec. 3, Rule 40]
Within 15 days from such notice, it shall be the duty 4.   Within the period for taking an appeal, the
of the appellant to submit a memorandum which appellant shall pay to the clerk of the court which
shall briefly discuss the errors imputed to the lower rendered the judgment or final order appealed
court, a copy of which shall be furnished by him to from the full amount of the appellate court docket
the adverse party. Failure of the appellant to file a and other lawful fees [Sec. 5, Rule 40]
memorandum shall be a ground for dismissal of the
appeal [Sec. 7(b), Rule 40] By record on appeal
1.   File a notice of appeal [Sec. 2, Rule 41] following
¯ the steps above
Within 15 days from receipt of the appellant’s 2.   The form and contents of the record on appeal
memorandum, the appellee may file his shall be as provided in Sec. 6, Rule 41.
memorandum [Sec. 7(c), Rule 40] 3.   Copies of the notice of appeal, and the record on
¯ appeal where required, shall be served on the
Upon the filing of the memorandum of the adverse party.
appellee, or the expiration of the period to do so, [Sec. 3, Rule 40]
the case shall be considered submitted for decision. 4.   Within the period for taking an appeal, the
The RTC shall decide the case on the basis of the appellant shall pay to the clerk of the court which
entire record of the proceedings had in the court of rendered the judgment or final order appealed
origin and such memoranda as are filed [Sec. 7(d), from the full amount of the appellate court docket
Rule 40] and other lawful fees [Sec. 5, Rule 40]

Where taken Note: Record on appeal shall be required only in

To the RTC exercising jurisdiction over the area to 1.   Special proceedings
which the former pertains [Sec. 1, Rule 40] 2.   In such other cases of multiple or separate
appeals
[Sec. 2, Rule 41]

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Perfection of appeal appellate jurisdiction shall be by petition for

The perfection of the appeal and the effect thereof review in accordance with Rule 42.
shall be governed by the provisions of Sec. 9, Rule 41 3.   Appeal by certiorari — In all cases where only
[Sec. 4, Rule 40] questions of law are raised or involved, the appeal
shall be to the SC by petition for review on
Appeal from order dismissing a case without trial; certiorari in accordance with Rule 45.
lack of jurisdiction [Sec. 2, Rule 41]

Two Scenarios Appeal from the RTC to the CA via Rule 41

1.   If an appeal is taken from an order of the lower presupposes that
court dismissing the case without a trial on the 1.   The RTC rendered the judgment or final order in
merits the civil action or special proceeding in the
a.   The RTC may affirm or reverse it, as the case exercise of its original jurisdiction; and
may be 2.   That the appeal is taken to the CA on:
b.   In case of affirmance and the ground of a.   Questions of fact or
dismissal is lack of jurisdiction over the b.   Mixed questions of fact and law
subject matter, the RTC, if it has jurisdiction [1 Regalado 555, 2010 Ed.]
thereover, shall try the case on the merits as
if the case was originally filed with it NOTICE OF APPEAL
c.   In case of reversal, the case shall be Contents of the notice of appeal
remanded for further proceedings 1.   Parties to the appeal
2.   If the case was tried on the merits by the lower 2.   Judgment or final order or part thereof appealed
court without jurisdiction over the subject matter, from
the RTC on appeal shall not dismiss the case if it 3.   Court to which the appeal is being taken, and
has original jurisdiction thereof, but shall decide 4.   Material dates showing the timeliness of the
the case in accordance with Sec. 7, Rule 40, appeal
without prejudice to the admission of amended [Sec. 5, Rule 41]
pleadings and additional evidence in the interest
of justice RECORD ON APPEAL
[Sec. 8, Rule 40] 1.   No record on appeal shall be required except in
special proceedings and other cases of multiple or
Applicability of Rule 41 separate appeals where the law or the ROC so
The other provisions of Rule 41 shall apply to appeals require.
provided for herein insofar as they are not inconsistent 2.   In such cases, the record -on appeal shall be filed
with or may serve to supplement the provisions of Rule and served in like manner.
41 [Sec. 9, Rule 41] [Sec. 2(a), Rule 41]

Contents of the record on appeal

k.   Appeal from Judgments or 1.   Full names of all the parties to the proceedings
Final Orders of the Regional shall be stated in the caption of the record on
Trial Court appeal
  2.   The judgment or final order from which the appeal
Modes of appeal is taken and,
1.   Ordinary appeal — The appeal to the CA in cases 3.   In chronological order, copies of only such
decided by the RTC in the exercise of its original pleadings, petitions, motions and all interlocutory
jurisdiction shall be taken by filing a notice of orders as are related to the appealed judgment or
appeal with the court which rendered the final order for the proper understanding of the
judgment or final order appealed from and issue involved,
serving a copy thereof upon the adverse party. No 4.   Together with such data as will show that the
record on appeal shall be required except in appeal was perfected on time.
special proceedings and other cases of multiple or [Sec. 6, Rule 41]
separate appeals where the law or the ROC so
require. In such cases, the record -on appeal shall Note: The requirement that the record on appeal must
be filed and served in like manner. show on its face that the appeal was perfected on time
2.   Petition for review — The appeal to the CA in is mandatory and jurisdictional that if not complied
cases decided by the RTC in the exercise of its with, the appeal must be dismissed [1 Regalado 563,
2010 Ed.]

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If an issue of fact is to be raised on appeal, the record Period to appeal

on appeal shall include by reference all the evidence, 1.   Within 15 days from notice of judgment or final
testimonial and documentary, taken upon the issue order appealed from
involved. 2.   Within 30 days from notice of judgment or final
1.   The reference shall specify the order where a record on appeal is required
a.   Documentary evidence by the exhibit 3.   Within 48 hours from notice of judgment or final
numbers or letters by which it was identified order appealed from in habeas corpus cases
when admitted or offered at the hearing, and [Sec. 3, Rule 41]
b.   Testimonial evidence by the names of the
corresponding witnesses Note: If the trial court approves the record on appeal
2.   If the whole testimonial and documentary even if the period for the appeal has expired, this is
evidence in the case is to be included, a statement tantamount to a valid order granting the extension
to that effect will be sufficient without mentioning prayed for by the appellant if any such motion has
the names of the witnesses or the numbers or been filed [Berkenkotter v. CA, G.R. No. L-36629
letters of exhibits. (1973)] Conversely, dismissal constitutes a denial of
3.   Every record on appeal exceeding 20 pages must the extension prayed for, in which case the only
contain a subject index. question that can arise is whether the trial court had
[Sec. 6, Rule 41] gravely abused its discretion in denying such
extension [PVTA v. Delos Angeles, G.R. No. L-29736,
Note: Material date rule [Sec. 6, Rule 41]; exception—If (1974)]
the trial court issued an order to the effect that the
appeal was seasonably perfected with the filing of the Reckoning point of reglementary period
notice of appeal and the record on appeal within the Period for filing the appeal should be counted from the
reglementary period [Pimentel v. CA, G.R. No. L-39684 date when the party’s counsel received a copy of the
(1975)] judgment or final order because that is the effective
service of the decision. When a party is represented by
Approval of the record on appeal counsel, service of process must be made on counsel,
1.   Upon the filing of the record on appeal for not on the party [Fajardo v. CA, G.R. No. 140356
approval and if no objection is filed by the (2001); Sec. 2, Rule 13]
appellee within 5 days from receipt of a copy
thereof, the trial court may approve it as When a party is represented by a counsel, service of
presented or upon its own motion or at the process must be made on counsel, not on party
instance of the appellee, may direct its [Fajardo v. CA, G.R. No. 140356 (2001)]
amendment by the inclusion of any omitted
matters which are deemed essential to the Effect of motions for new trial and reconsideration
determination of the issue of law or fact involved Fresh period of 15 days within which to file the notice
in the appeal. of appeal in the RTC, counted from receipt of the order
2.   If the trial court orders the amendment of the dismissing a motion for a new trial or motion for
record, the appellant, within the time limited in reconsideration [Neypes v. CA, G.R. No. 141524 (2005)]
the order, or such extension thereof as may be
granted, or if no time is fixed by the order within Extension of period to appeal
10 days from receipt thereof, shall redraft the The period to appeal may be extended but such
record by including therein, in their proper extension is addressed to the sound discretion of the
chronological sequence, such additional matters court [Gregorio v. CA, G.R. No. L-43511 (1976)]
as the court may have directed him to incorporate,
and shall thereupon submit the redrafted record The mere filing and pendency of motion for extension
for approval, upon notice to the appellee, in like to perfect appeal does not suspend the running of the
manner as the original draft. reglementary period [King v. Corro, G.R. No. L-23617
[Sec. 7, Rule 41] (1967)]

Joint record on appeal PLEADINGS FILED

Where both parties are appellants, they may file a joint
record on appeal within the time fixed by Sec. 3 of Rule Appellant’s brief
41, or that fixed by the court [Sec. 8, Rule 41] 1.   It shall be the duty of the appellant to file with the
court, within 45 days from receipt of the notice of
the clerk that all the evidence, oral and
documentary, are attached to the record, 7 copies

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of his legibly typewritten, mimeographed or Exception: Good and sufficient cause, and only if the
printed brief, with proof of service of 2 copies motion for extension is filed before the expiration of
thereof upon the appellee [Sec. 7, Rule 44]. the time sought to be extended
2.   Under Sec. 5(b) of the Efficient Use of Paper Rule [Sec. 12, Rule 44]
[A.M. 11-9-4-SC], file one original (properly
marked) and 2 copies with their annexes with the Payment of docket fees
CA 1.   Within the period for taking an appeal, the
appellant shall pay to the clerk of the court which
Grounds for dismissal with respect to appellant’s rendered the judgment or final order appealed
brief: from, the full amount of the appellate court
1.   Failure of the appellant to serve and file the docket and other lawful fees.
required number of copies of his brief within the 2.   Proof of payment of said fees shall be transmitted
time provided by the ROC to the appellate court together with the original
2.   Absence of specific assignment of errors in the record or the record on appeal.
appellant’s brief [Sec. 4, Rule 41]
[Sec. 1(e)-(f), Rule 50]
Payment of docket fees in full is mandatory and is a
Contents condition sine qua non for the perfection of an appeal.
1.   Subject index Subsequent payment of appellate docket fees did not
2.   Assignment of errors cure the defect of the appeal because payment is a
3.   Statement of the Case jurisdictional requirement [Santander v Villanueva,
4.   Statement of Facts G.R. No. L-6184 (1958)]
5.   Statement of issues
6.   Arguments Perfection of appeal
7.   Relief 1.   A party’s appeal by notice of appeal is deemed
8.   Copy of judgment or final order appealed from perfected as to him upon the filing of the notice of
[Sec. 13, Rule 44] appeal in due time.
2.   A party’s appeal by record on appeal is deemed
Appellee’s brief perfected as to him with respect to the subject
1.   Within 45 days from receipt of the appellant’s matter thereof upon the approval of the record on
brief, the appellee shall file with the court 7 copies appeal filed in due time.
of his legibly typewritten, mimeographed or [Sec. 9, Rule 41]
printed brief, with proof of service of 2 copies
thereof upon the appellant [Sec. 8, Rule 44] Note: An appellant who fails to perfect his appeal on
2.   Under Sec. 5(b) of the Efficient Use of Paper Rule time due to FAME may file for a petition for relief under
[A.M. 11-9-4-SC], file one original (properly Sec. 2, Rule 38. If his petition for relief is denied, he can
marked) and 2 copies with their annexes with the file a petition under Rule 65, since the denial of a
CA petition for relief is no longer appealable under Sec. 1
of Rule 41 [De Luna v. Palacio, G.R. No. L-26927 (1969)]
Contents
1.   Subject index Effect of perfected appeal
2.   Statement of Facts or Counter-Statement of 1.   In appeals by notice of appeal, the court loses
Facts jurisdiction over the case upon the perfection of
3.   Argument the appeals filed in due time and the expiration of
[Sec. 14, Rule 44] the time to appeal of the other parties.
2.   In appeals by record on appeal, the court loses
Appellant’s reply brief jurisdiction only over the subject matter thereof
Within 20 days from receipt of the appellee’s brief, the upon the approval of the records on appeal filed
appellant may file a reply brief answering points in the in due time and the expiration of the time to
appellee’s brief not covered in his main brief [Sec. 9, appeal of the other parties.
Rule 44] [Sec. 9, Rule 41]

Extension of time for filing briefs: Residual powers/jurisdiction of the RTC

General rule: Not allowed In either case, prior to the transmittal of the original
record or the record on appeal, the court may

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1.   Issue orders for the protection and preservation of

the rights of the parties which do not involve any Note: The dismissal of the appeal in the RTC is limited
matter litigated by the appeal only to these two grounds. Failure of the appellee to
2.   Approve compromises move for dismissal of an appeal perfected out of time
3.   Permit appeals of indigent litigants does not prevent the filing of such a motion in the
4.   Order execution pending appeal in accordance appellate court for it involves the appellate jurisdiction
with Sec. 2 of Rule 39, and of the latter court [Garganta v. CA, G.R. No. L-12104
5.   Allow withdrawal of the appeal (1959)]
[Sec. 9, Rule 41]
Petition for review from the RTC to the CA [Rule 42]
The concept of residual jurisdiction of the trial court is Appeal via Rule 42 is proper when one appeals from a
available at a stage in which the court is normally decision of the RTC in the exercise of its appellate
deemed to have lost jurisdiction over the case or the jurisdiction. It may be taken on either questions of
subject matter involved in the appeal. There is no fact, questions of law, or on mixed questions of fact
residual jurisdiction to speak of where no appeal or and law. [Macawiwili Gold Mining and Development
petition has even been filed [Fernandez v. CA, G.R. No. Co., Inc. v. CA, G.R. No. 115104 (1998)]
131094 (2005)]
This mode of appeal is not a matter of right but is a
Duty of clerk upon perfection of appeal matter of discretion on the part of the CA, on whether
1.   Within 30 days after perfection of all the appeals or not to entertain the appeal [1 Regalado 581, 2010
in accordance with the preceding section, it shall Ed.]
be the duty of the COC of the lower court
a.   To verify the correctness of the original record Note: Since Rule 42 is a petition for the purpose of
or the record on appeal, as the case may be, appeal and not petitions in original actions, lower
and to make a certification of its correctness courts/judges that rendered the judgment
b.   To verify the completeness of the records that complained of are not impleaded as parties in the
will be transmitted to the appellate court appeal [1 Regalado 579, 2010 Ed.]
c.   If found to be incomplete, to take such
measures as may be required to complete the How taken
records, availing of the authority that he or If a party desires to appeal from a decision of the RTC
the court may exercise for this purpose; and in its appellate jurisdiction:
d.   To transmit the records to the appellate court 1.   File a verified petition for review with the CA
2.   If the efforts to complete the records fail, he shall a.   Within 15 days from notice of judgment or
indicate in his letter of transmittal the exhibits or final order, or
transcripts not included in the records being b.   Within 15 days from notice of denial of
transmitted to the appellate court, the reasons for petitioner’s MNT or MR
their non-transmittal, and the steps taken or that 2.   Pay at the same time to the clerk of the CA the
could be taken to have them available. corresponding docket and other lawful fees,
3.   The COC shall furnish the parties with copies of 3.   Deposit PHP 500.00 for costs, and
his letter of transmittal of the records to the 4.   Furnish the RTC and the adverse party with a copy
appellate court. of the petition
[Sec. 10, Rule 41] [Sec. 1, Rule 42]

Note: Even if the appeal has already been perfected Period to appeal
but the records have not yet been transmitted to the The petition shall be filed and served within 15 days
appellate court, the trial court still has jurisdiction to from notice of the decision sought to be reviewed or of
set aside its order approving the record on appeal the denial of petitioner’s MNT or MR filed in due time
[Cabungcal v. Fernandez, G.R. No. L-16520 (1964)] after judgment [Sec. 1, Rule 42].

Dismissal of appeal Extension of period

Prior to the transmittal of the original record or the Upon proper motion and the payment of the full
record on appeal to the appellate court, the trial court amount of the docket and other lawful fees and the
may motu proprio or on motion dismiss the appeal for deposit for costs before the expiration of the
1.   having been taken out of time, or reglementary period, the CA may grant an additional
2.   non-payment of the docket and other lawful fees period of 15 days only within which to file the petition
within the reglementary period for review. No further extension shall be granted
[Sec. 13, Rule 41]

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except for the most compelling reason and in no case [Sec. 8(a), Rule 42]
to exceed 15 days [Sec. 1, Rule 42].
Jurisdiction of the RTC
Form and contents 1.   The RTC loses jurisdiction over the case upon the
1.   In 7 legible copies, with the original copy intended perfection of the appeals filed in due time and the
for the court being indicated as such by the expiration of the time to appeal of the other
petitioner parties.
a.   Under Sec. 5(b) of the Efficient Use of Paper 2.   However, before the CA gives due course to the
Rule [A.M. 11-9-4-SC], file one original petition, the RTC may
(properly marked) and 2 copies with their a.   Issue orders for the protection and
annexes with the CA preservation of the rights of the parties which
2.   Full names of the parties to the case, without do not involve any matter litigated by the
impleading the lower courts or judges thereof appeal, approve corn-promises
either as petitioners or respondents b.   Permit appeals of indigent litigants
3.   Specific material dates showing that it was filed c.   Order execution pending appeal in
on time accordance with Sec, 2 of Rule 39, and
4.   A concise statement of the d.   Allow withdrawal of the appeal
a.   Maters involved [Sec. 8(a), Rule 42]
b.   Issues raised
c.   Specification of errors of fact or law, or both, Note: The Doctrine of Residual Jurisdiction of the RTC,
allegedly committed by the RTC, and at item (2) above, applies as in cases under Rule 42,
d.   Reasons or arguments relied upon for the except that the RTC must exercise this jurisdiction
allowance of the appeal before the CA gives due course to the petition [Sec.
5.   Clearly legible duplicate originals or true copies of 8(a), Rule 42] In contrast, the RTC must exercise
the judgments or final orders of both lower courts, residual jurisdiction in Rule 41 prior to transmittal of
certified correct by the COC of the RTC, the original record or the record on appeal [Sec. 9,
6.   The requisite number of plain copies thereof and Rule 41]
of the pleadings and
7.   Other material portions of the record as would Effect of appeal
support the allegations of the petition General rule: The appeal shall stay the judgment or
8.   Certification of non-forum shopping final order.
[Sec. 2, Rule 42]
Exceptions:
Effect of failure to comply 1.   Civil cases decided under the Rule on Summary
Failure to comply with any of the following Procedure, or
requirements shall be sufficient ground for dismissal: 2.   The CA, the law, or ROC provide otherwise
1.   Payment of docket and other lawful fees [Sec. 8(b), Rule 42]
Note: In petitions for review under Rules 42, 43,
and 45, the docket fee is paid in the appellate Action on petition
courts The CA may:
2.   Deposit for costs 1.   Require the respondent to file a comment on the
3.   Proof of service of petition petition, not a motion to dismiss, within 10 days
4.   Contents of the documents which should from notice; or
accompany the petition 2.   Dismiss the petition if it finds
[Sec. 3, Rule 42] a.   The same to be patently without merit or
prosecuted manifestly for delay, or
Note: Failure to append the pleadings and material b.   That the questions raised therein are too
portions of the record does not justify the outright unsubstantial to require consideration
dismissal of the petition. There is substantial [Sec. 4, Rule 42]
compliance when the pleadings were attached to the
MR [Mendoza v. David, G.R. No. 147575 (2004)] Under this Rule, appeal is discretionary on the CA
which may give its due course only when the petition
Perfection of appeal shows prima facie that the lower court has committed
Appeal is deemed perfected as to petitioner upon the error [1 Riano 600, 2011 Ed. citing Sec.6, Rule 42]
1.   Timely filing of the petition
2.   Payment of the corresponding docket and lawful Contents of comment
fees 1.   In 7 legible copies

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

a.   Under Sec. 5(b) of the Efficient Use of Paper state of facts. There is a question of fact when the
Rule [A.M. 11-9-4-SC], file one original doubt/ difference arises as to the truth/ falsehood of
(properly marked) and 2 copies with their facts [Ramos v. Pepsi, G.R. No. L-22533 (1967)]
annexes with the CA
2.   Certified true copies of such material portions of TEST: Whether the appellate court can determine the
the record referred to therein issue raised without reviewing or evaluating the
3.   Together with other supporting papers evidence, it is a question of law. The question must not
4.   Whether or not he accepts the statement of involve the examination of the probative value of the
matters involved in the petition evidence presented [Vda. De Arroyo v. El Beaterio, G.R.
5.   Such insufficiencies or inaccuracies as he believes No. L-22005 (1968)]
exist in petitioner’s statement of matters involved
but without repetition, and How determined
6.   The reasons why the petition should not be given The appellate court determines, not the court which
due course. rendered the decision appealed from [PNB v. Romillo,
A copy thereof shall be served on the petitioner. G.R. No. 70681 (1985)]
[Sec. 5, Rule 42]
Grave abuse of discretion is not an allowable ground
Due course under Rule 45 [Martires v. CA, G.R. No. 78036-37
1.   If upon the filing of the comment or such other (1990)]
pleadings as the court may allow or require, or
2.   After the expiration of the period for the filing
thereof without such comment or pleading having
l.   Appeal from Judgments or
been submitted, Final Orders of the Court of
the CA finds prima facie that the lower court has Appeals
committed an error of fact or law that will warrant a
reversal or modification of the appealed decision, it Any alleged errors committed in the exercise of its
may accordingly give due course to the petition jurisdiction will amount to nothing more than errors of
[Sec. 6, Rule 42] = judgment which are reviewable by timely appeal and
not by special civil action of certiorari [Chuidian v.
Whenever the CA deems it necessary, it may order the Sandiganbayan (Fifth Division), G.R. No. 139941
COC of the RTC to elevate the original record of the (2001)]]
case including the oral and documentary evidence
within 15 days from notice [Sec. 7, Rule 42] As provided in Rule 45, decisions, final orders or
resolutions of the CA in any case, i.e., regardless of the
Submission for decision nature of the action or proceedings involved, may be
1.   If the petition is given due course, the CA may appealed to the SC by filing a petition for review, which
a.   set the case for oral argument or would be but a continuation of the appellate process
b.   require the parties to submit memoranda over the original case [Fortune Guarantee and
within a period of 15 days from notice. Insurance Corporation v. CA, G.R. No. 110701 (2002)]
2.   The case shall be deemed submitted for decision Note: the use of the term “any case”. This includes
upon the filing of the last pleading or special civil actions.
memorandum required by these Rules or by the
court itself Certiorari as mode of appeal and as special civil
[Sec. 9, Rule 42]. action
Appeal by certiorari Certiorari as SCA
Appeal by certiorari from the RTC to the SC via Rule
[Rule 45] [Rule 65]
45
RTC must have rendered judgment in the exercise of Brings up for review Writ of certiorari issues
its original jurisdiction [1 Regalado 609, 2010 Ed.] errors of judgment for the correction of
committed by the errors of jurisdiction only
If the RTC is in exercise of its appellate jurisdiction, court in the exercise of or grave abuse of
proper remedy is to appeal to the CA via Rule 42 even its jurisdiction discretion amounting to
if only questions of law are raised [1 Regalado 609, amounting to nothing lack or excess of
2010 Ed.] more than an error of jurisdiction [Silverio v. CA,
judgment G.R.No. L-39861 (1986)]
Note: A question of law exists when there is a
doubt/controversy as to what the law is on a certain

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Petition raises the issue Proof of service of a copy thereof on the lower court
Based on questions of
as to whether the lower concerned and on the adverse party shall be
law which the
court acted without or in submitted together with the petition [Sec.3, Rule
appellant desires the
excess of jurisdiction or 45]
appellant court to
with grave abuse of ¯
resolve
discretion Pay the corresponding docket and other lawful fees
May be directed against to the COC of the SC and deposit the amount of
an interlocutory order of ₱500.00 for costs at the time of the filing of the
Involves the review of the court prior to appeal petition [Sec. 3, Rule 45]
the judgment, award from the judgment or ¯
or final order on the where there is no appeal SC may dismiss or deny the petition [Sec. 5, Rule
merits or any other plain, 45], or give due course to it [Sec. 8, Rule 45]
speedy or adequate
remedy ¯
If the petition is given due course, the SC may
require the elevation of the complete record of the
May be filed not later case or specified parts thereof within 15 days from
Must be made within than 60 days from notice notice [Sec. 8, Rule 45].
the reglementary of the judgment, order or
period for appeal resolution sought to be Propriety as a mode of appeal
assailed A party desiring to appeal by certiorari from a
judgment or final order or resolution of the CA, the
Sandiganbayan, the RTC or other courts whenever
Unless a writ of authorized by law, may file with the SC a verified
Stays the judgment, preliminary injunction or petition for review on certiorari [Sec. 1, Rule 45].
award or order a TRO shall have been
appealed from issued, does not stay the Only questions of law are allowed.
challenged proceeding The petition shall raise only questions of law [Sec. 1,
The parties are the Rule 45]
Petitioner and
aggrieved party against
respondent are the
the lower court or quasi- Whether an appeal involves only questions of law or
original parties to the
judicial agency and the both questions of law and fact is best left to the
action, and the lower
prevailing parties, who determination of an appellate court and not by the
court or quasi-judicial
thereby respectively court which rendered the decision appealed from
agency is not too be
become the petitioner [PNB v. Romillo, etc., et al., G.R. No. L-70681 (1985)]
impleaded
and respondents
MR is a condition Questions of law Questions of fact
Prior filing of a MR is precedent [Villa Rey Doubt as to the truth or
not required [Sec. 1, Transit v. Bello, G.R. No. Doubt as to what the falsehood of facts, or as
Rule 45] L-18957 (1963)], subject law is on certain facts to probative value of
to certain exceptions the evidence presented
Higher court exercises If the appellate court
Appellate court is in The determination
original jurisdiction under can determine the issue
the exercise of its involves evaluation or
its power of control and without reviewing or
appellate jurisdiction review of evidence
supervision over the evaluating the evidence
and power of review
proceedings of lower Query involves the
[Regalado 543-544,
courts [Regalado 543- calibration of the whole
1977 Ed.]
544, 1977 Ed.] evidence considering
[2 Herrera 643-645, 2000 Ed.] Can involve questions of mainly the credibility of
interpretation of law witnesses, existence,
Procedure with respect to certain and relevancy of
File a verified petition for review on certiorari, which set of facts specific surrounding
may include an application for a writ of preliminary circumstances and
injunction or other provisional remedies [Sec. 1, relation to each other
Rule 45] and the whole

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probabilities of the Note: The Neypes doctrine is also applicable to Rule 45

situation petitions [Neypes v. CA, G.R. No. 141524 (2005)
[1 Regalado 609, 2010 Ed. citing Bernardo v. CA, G.R.
No. 101680 (1992), Pilar Develpment Corp. v. IAC, G.R. Extension of period
No. 72283 (1986); Vda. de Arroyo v. El Beaterio del On motion duly filed and served, with full payment of
Santissimo Rosario de Molo, G.R. No. L-22005 (1968)] the docket and other lawful fees and the deposit for
costs before the expiration of the reglementary
Conclusiveness of findings of fact period, the SC may for justifiable reasons grant an
General rule: The SC is not a trier of facts, and is not to extension of 30 days only within which to file the
review or calibrate the evidence on record. Moreover, petition [Sec. 2, Rule 45]
findings of facts of trial court, as affirmed on appeal by
the CA, are conclusive on the court [Boston Bank of the Form and contents of petition
Philippines v. Manalo, G.R. No. 158149 (2006)] 1.   In 7 legible copies, with the original copy intended
for the court being indicated as such by the
Exceptions: petitioner
CA’s findings of fact may be reviewed by the SC on (a)   Under Sec. 5(a) of the Efficient Use of Paper
appeal by certiorari when: Rule [A.M. 11-9-4-SC], file one original
1.   Conclusion is a finding grounded entirely on (properly marked) and four copies, unless the
speculations, surmises or conjectures [Joaquin v. case is referred to the SC en banc, in which
Navarro, G.R. No. L-5426 (1953)] event, the parties shall file ten additional
2.   Inference made is manifestly mistaken, absurd or copies and simultaneously soft copies of the
impossible [Luna v. Linatok, G.R. No. 48403 same and their annexes (the latter in PDF
(1942)] format) either by email to the SC’s e-mail
3.   There is grave abuse of discretion in the address or by compact disc (CD)
appreciation of facts [Buyco v. People, G.R. No. L- 2.   Full names of the parties to the case, without
6327 (1954)] impleading the lower courts or judges thereof
4.   Judgment is based on a misapprehension of facts either as petitioners or respondents;
[De la Cruz v. Sosing, G.R. No. L-4875 (1953)] 3.   Specific material dates showing that it was filed
5.   The CA’s findings of fact are conflicting [Casica v. on time;
Villaseca, G.R. No. L-9590 (1957)] 4.   A concise statement of the
6.   The CA, in making its findings, went beyond the a.   Maters involved
issues of the case and the same is contrary to the b.   Issues raised
admissions of both appellant and appellee c.   Specification of errors of fact or law, or both,
[Nakpil & Sons v. CA, G.R. No. L-47851 (1986)] allegedly committed by the rtc, and
7.   The CA manifestly overlooked certain relevant d.   Reasons or arguments relied upon for the
facts not disputed by the parties and which, if allowance of the appeal
properly considered, would justify a different 5.   Clearly legible duplicate originals or true copies of
conclusion [Abellana v. Dosdos, G.R. No. L-19498 the judgments or final orders of both lower courts,
(1965)] certified correct by the COC of the RTC,
8.   The CA’s findings of fact are contrary to those of 6.   Requisite number of plain copies thereof and of
the trial court, or are mere conclusions without the pleadings and other material portions of the
citation of specific evidence, or where the facts set record as would support the allegations of the
forth by the petitioner are not disputed by the petition
respondent, or where the findings of fact of the CA 7.   Certificate of non-forum shopping
are premised on absence of evidence but are [Sec. 2, Rule 45]
contradicted by the evidence of record [Manlapaz
v. CA, G.R. No. L-56589 (1987)] Grounds for denial of petition
1.   Failure of petitioner to comply with
Period of appeal a.   Payment of docket or other lawful fees
Within 15 days from notice of the b.   Deposit for costs
1.   judgment or final order or resolution appealed c.   Proof of Service; and
from, or d.   Contents of and documents which would
2.   denial of the petitioner’s MNT or MR filed in due accompany the petition
time after notice of the judgment 2.   Appeal is without merit
[Sec. 2, Rule 45] 3.   Is prosecuted manifestly for delay
4.   That the questions raised are so unsubstantial as
to require consideration [Sec. 5, Rule 45]

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Notes: procedural rules of the Commission concerned,

1.   Although the lower court is not a party to the case, shall interrupt the period herein fixed.
failure to present proof of service of copies to the 3.   If the motion is denied, the aggrieved party may
lower court and on the adverse party shall result file the petition within the remaining period, but
to the outright dismissal of the appeal. This is which shall not be less than 5 days in any event,
because the service is for the purpose of giving the reckoned from notice of denial.
lower court notice that its judgment should not be [Sec. 3, Rule 45]
entered since it is not yet executory due to the
pending petition [1 Regalado 615-616, 2010 Ed.] Effect of filing
2.   SC may dismiss the petition on its own initiative or The filing of a petition for certiorari shall not stay the
motu proprio [Sec. 5, Rule 45] execution of the judgment or final order or resolution
sought to be reviewed, unless the SC shall direct
Review is discretionary otherwise upon such terms as it may deem just [Sec.
A review is not a matter of right, but of sound judicial 8, Rule 64]
discretion, and will be granted only when there are
special and important reasons therefor. The following, When the decision, order or resolution adversely
while neither controlling nor fully measuring the affects the interest of any government agency, the
court’s discretion, indicate the character of the appeal may be taken by the proper head of that
reasons which will be considered: agency [Sec. 1, Rule XII, 2009 Revised Rules of
1.   When the court a quo has decided a question of Procedure of the Commission on Audit]
substance, not theretofore determined by the SC,
or has decided it in a way probably not in accord
with law or with the applicable decisions of the
n.   Review of Final Judgments or
SC, or Final Orders of the
2.   When the court a quo has so far departed from the Commission on Elections
accepted and usual course of judicial
proceedings, or so far sanctioned such departure Mode of Review & Effect of Filing
by a lower court, as to call for an exercise of the Same as COA
power of supervision
[Sec. 6, Rule 45] Unless otherwise provided by law, or by any specific
provisions in the COMELEC Rules of Procedure, any
Elevation of records decision, order or ruling of the Commission may be
If the petition is given due course, the SC may require brought to the SC on certiorari by the aggrieved party
the elevation of the complete record of the case or within 30 days from its promulgation [Sec. 1, Rule 37,
specified parts thereof within 15 days from notice [Sec. COMELEC Rules of Procedure]
8, Rule 45]
Decisions in appeals from courts of general or limited
m.  Review of Final Judgments or jurisdiction in election cases relating to the elections,
returns, and qualifications of municipal and barangay
Final Orders of the officials are not appealable [Sec. 2, Rule 37, COMELEC
Commission on Audit Rules of Procedure]

Mode of review Decisions in pre-proclamation cases and petitions to

A judgment or final order or resolution of the deny due course to or cancel certificates of candidacy,
Commission on Elections (COMELEC) and the to declare a candidate as nuisance candidate or to
Commission on Audit (COA) may be brought by the disqualify a candidate, and to postpone or suspend
aggrieved party to the SC on certiorari under Rule 65, elections shall become final and executory after the
except as hereinafter provided [Sec. 2, Rule 64] lapse of 5 days from their promulgation, unless
restrained by the SC [Sec. 3, Rule 37, COMELEC Rules
Time to file petition of Procedure]
1.   The petition shall be filed within 30 days from
notice of the judgment or final order or resolution
sought to be reviewed.
2.   The filing of a MNT or MR of said judgment or final
order or resolution, if allowed under the

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o.   Review of Final Judgments or

A quasi-judicial agency or body is an organ of
Final Orders of the Civil government other than a court and other than a
Service Commission legislature, which affects the rights of private parties
though either adjudication or rule-making [United
See Rule 43 on Review of QJAs below. Coconut Planters Bank v. E. Ganzon, Inc., G.R. No.
168859 (2009)]
p.   Review of Final Judgments or Quasi-judicial agencies covered by Rule 43:
Final Orders of the 1.   Civil Service Commission
2.   Securities and Exchange Commission
Ombudsman 3.   Office of the President
4.   Land Registration Authority
The following decisions are unappealable 5.   Social Security Commission
1.   In administrative cases where respondent is 6.   Civil Aeronautics Board
absolved of the charge 7.   Bureau of Patents, Trademarks and Technology
2.   In case of conviction, where penalty imposed is Transfer
public censure or reprimand, or suspension of not 8.   National Electrification Administration
more than one month or a fine equivalent to one 9.   Energy Regulatory Board
month salary 10.   National Telecommunications Commission
[Sec. 7, Rule III, Admin Order No. 7] 11.   Department of Agrarian Reform under RA 6657
12.   GSIS
Jurisdiction of the CA 13.   Employees Compensation Commission
1.   Appeals from decisions of the Office of the 14.   Agricultural Inventions Board
Ombudsman in administrative disciplinary cases 15.   Insurance Commission
should be taken to the CA under the provisions of 16.   Philippine Atomic Energy Commission
Rule 43 [Fabian v. Desierto, G.R. No. 129742 17.   Board of Investment
(1998)] 18.   Construction Industry Arbitration Commission,
2.   The CA has jurisdiction over orders, directives and and
decisions of the Office of the Ombudsman in 19.   Voluntary arbitrators authorized by law
administrative disciplinary cases only. It cannot,
therefore, review the orders, directives or Note: The CTA is no longer a quasi-judicial agency
decisions of the Office of the Ombudsman in under R.A. 9282, as of April 7, 2004. A party adversely
criminal or non-administrative cases [Duyon v. affected by a decision or ruling of the CTA en banc may
The Former Special Fourth Division of the Court Of file with the SC a verified petition for review on
Appeals, G.R. No. 172218 (2014)] certiorari under Rule 45 [Sec. 11, R.A. 9282 and A.M.
No. 07-7-12-SC]
Jurisdiction of the SC
Decisions of the Ombudsman in criminal cases are Where to appeal
unappealable. However, where the findings of the Appeal may taken to the CA on questions of fact, of
Ombudsman on the existence of probable cause (in law, or mixed questions of fact and law [Sec. 3, Rule
criminal cases) are tainted with grave abuse of 43]
discretion amounting to lack or excess of jurisdiction,
the aggrieved party may file before the SC a petition Period to appeal
for certiorari under Rule 65 [Duyon v. The Former Within 15 days from
Special Fourth Division of the Court Of Appeals, G.R. 1.   Notice of award, judgment, final order, or
No. 172218 (2014)] resolution, or
2.   Date of its last publication, if publication is
q.   Review of Final Judgments or required by law for its effectivity; or
3.   Denial of petitioner’s MNT or MR duly filed in
Final Orders of Quasi-Judicial accordance with the governing law of the court or
Agencies agency a quo
[Sec. 4, Rule 43]
Scope: Appeals from awards, judgments, final orders
or resolution of or authorized by any quasi-judicial Extension of period
agency (QJA) in the exercise of its quasi-judicial Upon proper motion and the payment of the full
functions [Sec. 1, Rule 43] amount of the docket fee before the expiration of the

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reglementary period, the CA may grant an additional The CA may

period of 15 days only within which to file the petition 1.   Require the respondent to file a Comment within
for review. No further extension shall be granted 10 days from notice, or
except for the most compelling reason and in no case 2.   Dismiss the petition if CA finds the same to be
to exceed 15 days [Sec. 4, Rule 43] a.   Patently without merit
How taken b.   Prosecuted manifestly for delay, or
1.   File a verified petition for review in 7 legible copies c.   Questions raised are too unsubstantial to
with the CA require consideration
a.   The original copy of the petition intended for [Sec. 8, Rule 43]
the CA shall be indicated as such by the
petitioner. Contents of comment
b.   Under Sec. 5(b) of the Efficient Use of Paper 1.   Filed within 10 days from notice in 7 legible copies
Rule [A.M. 11-9-4-SC], file one original a.   Under Sec. 5(b) of the Efficient Use of Paper
(properly marked) and 2 copies with their Rule [A.M. 11-9-4-SC], file one original
annexes with the CA (properly marked) and 2 copies with their
2.   Proof of service of a copy thereof on the adverse annexes with the CA
party and on the court or agency a quo. 2.   Accompanied by clearly legible certified true
3.   Upon the filing of the petition, pay to the COC of copies of such material portions of the record
the CA the docketing and other lawful fees and referred to therein together with other supporting
deposit PHP 500.00 for costs. papers
a.   Exemption from payment of docketing and 3.   Point out insufficiencies or inaccuracies in
other lawful fees and the deposit for costs petitioner’s statement of facts and issues; and
may be granted by the CA upon a verified 4.   State the reasons why the petition should be
motion setting forth valid grounds therefor. denied or dismissed.
b.   If the CA denies the motion, the petitioner 5.   A copy thereof shall be served on the petitioner,
shall pay the docketing and other lawful fees and proof of such service shall be filed with the
and deposit for costs within 15 days from CA.
notice of the denial. [Sec. 9, Rule 43]
[Sec. 5, Rule 43]
Due course
Contents of petition 1.   If upon
1.   Full names of parties to the case, without a.   the filing of the comment or such other
impleading the court or agencies pleadings or documents as may be required
2.   Concise statement of facts and issues involved or allowed by the CA or
and grounds relied upon for review b.   the expiration of the period for the filing
3.   Clearly legible duplicate original or a certified true thereof, and
copy of award, judgment, final order, or resolution 2.   On the basis of the petition or the records,
appealed from the CA finds prima facie that the court or agency
4.   Certified true copies of such material portions of concerned has committed errors of fact or law that
record referred to in the petition and other would warrant reversal or modification of the award,
supporting papers judgment, final order or resolution sought to be
5.   Certificate of non-forum shopping reviewed, it may give due course to the petition
6.   Statement of specific material dates showing [Sec. 10, Rule 43]
timeliness of appeal
[Sec. 6, Rule 43] Otherwise, it shall dismiss the same [Sec. 10, Rule 43]

Effect of failure to comply The findings of fact of the court or agency concerned,
Failure to comply with the following is sufficient when supported by substantial evidence, shall be
ground for the CA to dismiss the appeal binding on the CA [Sec. 10, Rule 43]
1.   Payment of docket and lawful fees
2.   Deposit for costs Transmittal of records
3.   Proof of service of petition 1.   Within 15 days from notice that the petition has
4.   Contents of petition been given due course, the CA may require the
5.   Documents which should accompany the petition court or agency concerned to transmit the original
[Sec. 7, Rule 43] or a legible certified true copy of the entire record
of the proceeding under review.
Action on the petition

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

2.   The record to be transmitted may be abridged by 5.   Failure of the appellant to serve and file the
agreement of all parties to the proceeding. required number of copies of his brief or
3.   The CA may require or permit subsequent memorandum within the time provided by the
correction of or addition to the record. ROC
[Sec. 11, Rule 43] 6.   Absence of specific assignment of errors in the
appellant’s brief, or of page references to the
Effect of appeal record as required in Sec. 13(a), (c), (d) and (f) of
General rule: Appeal shall not stay the award, Rule 44
judgment, final order or resolution sought to be 7.   Failure of the appellant to take the necessary
reviewed steps for the correction or completion of the
record within the time limited by the court in its
Exception: The CA shall direct otherwise upon such order;
terms as it may deem just 8.   Failure of the appellant to appear at the
[Sec. 12, Rule 43] preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of the
Submission for decision court without justifiable cause, and
1.   If petition is given due course, the CA may 9.   The fact that order or judgment appealed from is
a.   set the case for oral argument or not appealable
b.   require parties to submit memoranda within [Sec. 1, Rule 50]
15 days from notice 10.   Appeal under Rule 41 taken from the RTC to the
2.   Upon filing of last pleading or memorandum CA raising only questions of law
required by the ROC or the CA, case is deemed 11.   Appeal by notice of appeal instead of by petition
submitted for decision for review from the appellate judgment of a RTC
[Sec. 13, Rule 43] [Sec. 2, Rule 50]

Appeal from the NLRC Other grounds

Appeal from quasi-judicial agencies does not apply to 1.   By agreement of the parties (i.e. amicable
judgments or final orders issued under the Labor settlement)
Code. [Sec. 2, Rule 43] 2.   Where appealed case has become moot or
academic
The remedy of a party aggrieved by the decision of the 3.   Where appeal is frivolous or dilatory
NLRC is to file a MR and, if denied, file a special civil [1 Regalado 644-645, 2010 Ed.]
action for certiorari under Rule 65 within 60 days from
notice of the decision. In observance of the doctrine of Withdrawal of appeal
hierarchy of courts, this should be filed with the CA [St. 1.   An appeal may be with drawn as of right at any
Martin Funeral Homes v. NLRC, G.R. No. 130866 time before the filing of the appellee’s brief.
(1998)] 2.   Thereafter, the withdrawal may be allowed in the
discretion of the court.
From the CA, the remedy of the aggrieved party is a [Sec. 3, Rule 50]
petition for review by certiorari to the SC [Dongon v.
Rapid Movers and Forwarders, G.R. No. 163431 (2013)] Dismissal by the SC
The appeal may be dismissed motu proprio or on
motion of the respondent on the following grounds:
r.   Dismissal, Reinstatement, and 1.   Failure to take the appeal within the reglementary
Withdrawal of Appeals period
2.   Lack of merit in the petition
Grounds for dismissal of appeal 3.   Failure to pay the requisite docket fee and other
1.   Failure of the record on appeal to show on its face lawful fees or to make a deposit for costs
that the appeal was taken within the period fixed 4.   Failure to comply with the requirements
by the ROC regarding proof of service and contents of and the
2.   Failure to file the notice of appeal or the record on documents which should accompany the petition
appeal within the period prescribed by the ROC 5.   Failure to comply with any circular, directive or
3.   Failure of the appellant to pay the docket and order of the SC without justifiable cause
other lawful fees as provided in Sec. 4, Rule 41 6.   Error in the choice or mode of appeal, and
4.   Unauthorized alterations, omissions or additions 7.   The fact that the case is not appealable to the SC
in the approved record on appeal as provided in [Sec. 5, Rule 56]
Sec. 4 of Rule 44

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

s.   Dual function of Appellate Re: Letter complaint of Merlita B. Fabiana against

presiding justice Andres B. Reyes, Jr. et al, A.M. No.
Courts CA-13-51-J (2013)]

1.   An appellate court serves a dual function. The first

is the review for correctness function, whereby the t.   The “Harmless Error Rule” in
case is reviewed on appeal to assure that Appellate Decisions
substantial justice has been done. The second is
the institutional function, which refers to the No error in either the admission or the exclusion of
progressive development of the law for general evidence and no error or defect in any ruling or order
application in the judicial system. or in anything done or omitted by the trial court or by
2.   Differently stated, the review for correctness any of the parties is ground for granting a new trial or
function is concerned with the justice of the for setting aside, modifying, or otherwise disturbing a
particular case while the institutional function is judgment or order, unless refusal to take such action
concerned with the articulation and application of appears to the court inconsistent with substantial
constitutional principles, the authoritative justice. The court at every stage of the proceeding
interpretation of statutes, and the formulation of must disregard any error or defect which does not
policy within the proper sphere of the judicial affect the substantial rights of the parties [Sec. 6, Rule
function. 51]
3.   The duality also relates to the dual function of all
adjudication in the common law system. The first We have likewise followed the harmless error rule in
pertains to the doctrine of res judicata, which our jurisdiction. In dealing with evidence improperly
decides the case and settles the controversy; the admitted in trial, we examine its damaging quality and
second is the doctrine of stare decisis, which its impact to the substantive rights of the litigant. If the
pertains to the precedential value of the case impact is slight and insignificant, we disregard the
which assists in deciding future similar cases by error as it will not overcome the weight of the properly
the application of the rule or principle derived admitted evidence against the prejudiced party
from the earlier case. [People v. Teehankee, G.R. Nos. 111206-08 (1995)]
4.   With each level of the appellate structure, the
review for correctness function diminishes and the
institutional function, which concerns itself with
uniformity of judicial administration and the
progressive development of the law, increases [In

Comparative table on the modes of appeal

When Proper
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
ORDINARY APPEAL
Matter of Right; Filed with the court PETITIONS FOR REVIEW
of origin Discretionary; No records are elevated unless the court decrees it
All records are elevated from court of Filed with the appellate court
origin
Appeal from
Appeals to the SC from a
Appeal from a a decision of
judgment or final order or
judgment or final the RTC in
resolution of the CA,
order of a the exercise Appeals from awards,
Sandiganbayan, RTC or
MTC/MeTC/MCTC of its original Appeal from a judgments, final
such other courts as may
jurisdiction decision of the orders or resolution of
be authorized by law
RTC rendered in or authorized by any
the exercise of its quasi-judicial agency Decisions, final orders, or
appellate in the exercise of its resolutions of the CA in any
Rule 41 provisions shall apply to Rule
jurisdiction quasi-judicial case, regardless of the
40 if not consistent with Rule 40
functions nature of the action or
provisions
proceedings involved, may
be appealed to the SC by
filing a petition for review

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Where To File
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Filed with the
Filed with the MTC RTC Filed with the CA Filed with the CA Filed with the SC
Appeal to the RTC Appeal to the Appeal to the CA Appeal to the CA Appeal to the SC
CA
Questions of Questions of fact, Questions of fact,
Questions of fact or
fact or mixed questions of law, questions of law, or
mixed questions of Only questions of law
questions of or mixed mixed questions of
fact and law
fact and law questions of both fact and law
Time For Filing
RULE 40 RULE 41 RULE 42 RULE 43 RULE 45
Within 15 days from:
1.   Notice of award,
judgment, final Within 15 days from:
BY NOTICE OF APPEAL
Within 15 days order, or 1.   Notice of judgment,
Within 15 days after notice of
from notice of resolution; final order, or
judgment or final order
decision, or 2.   Date of resolution appealed
Within 15 days publication, if from; or
BY RECORD ON APPEAL
from notice of publication is 2.   Notice of denial of
Within 30 days from notice of
denial of required by law MNT or
judgment or final order by filing a
petitioner’s MNT for its effectivity; reconsideration filed in
notice of appeal and a record on
or reconsideration or due time after notice
appeal
3.   Denial of of judgment
petitioner’s MNT
or MR

In addition, petition for review is available only when

u.   Relief from Judgments or Final the loss of the remedy was due to the petitioner’s own
Orders and Resolutions fault [Tuason v CA, G.R. No. 116607 (1996)]

Remedies after finality of judgment Such party is not entitled to relief under Sec. 2, Rule
1.   Petition for Relief [Rule 38] 38 of the ROC if he was not prevented from filing his
2.   Action to Annul Judgment [Rule 47] notice of appeal by fraud, accident, mistake or
3.   Certiorari excusable negligence. Such relief will not be granted
4.   Collateral Attack of a Judgment that is Void on its to a party who seeks to be relieved from the effects of
Face the judgment when the loss of the remedy of law was
[1 Riano 60, 2011 Ed.] due to his own negligence, or a mistaken mode of
procedure for that matter; otherwise, the petition for
Nature relief will be tantamount to reviving the right of appeal
A legal remedy whereby a party seeks to set aside a which has already been lost either because of
judgment rendered against him by a court whenever inexcusable negligence or due to a mistake of
he was unjustly deprived of a hearing or was prevented procedure by counsel [Fukuzumi v. Sanritsu Great
from taking an appeal because of fraud, accident, International Corporation, G.R. No. 140630 (2004)]
mistake, or excusable negligence (FAME) [Quelnan v.
VHF Phils, G.R. No. 138500 (2005)] A petition for relief is not regarded with favor and
judgment will not be disturbed where the party
A petition for relief from judgment is an equitable complaining has or by his exercising proper diligence
remedy allowed only in exceptional cases when there would have had an adequate remedy at law, as where
is no other available or adequate remedy. When a petitioner could have proceeded by appeal to vacate
party has another remedy available, either MNT or or modify the default judgment [Manila Electric v. CA,
appeal, and he was not prevented by FAME from filing G.R. No. 88396 (1990)]
such motion or taking such appeal, he cannot avail
himself of this petition [Trust International Paper Corp.
v. Pelaez, G.R. No. 164871 (2006)]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Motion for new trial and petition for relief judgment, order or proceeding be set aside [Sec. 1,
Motion for New Trial Petition for Relief Rule 38].
[Rule 37] [Rule 38]
Available before Available after Rule 38 is not an independent action but a
judgment becomes judgment has become continuation of the old case. Hence, it is filed with the
final and executory final and executory same court in the same case [1 Regalado 441, 2010 Ed.]
Applies to judgments, If it is filed in a different court and docketed as a new
Applies to judgments
final orders and other case therein, it should be dismissed by the court in
or final orders only
proceedings which it was filed for lack of jurisdiction [Servicewide
Grounds: Specialists, Inc. v. Sheriff of Manila, GR No. 74586,
1.   FAME; or (19860]
Ground: FAME
2.   Newly discovered
evidence Grounds for availing the remedy
Filed: 1.   When judgment or final order is entered, or any
1.   within 60 days other proceeding is thereafter taken against
from knowledge of petitioner through FAME
Filed within the time to
judgment; and 2.   When petitioner has been prevented from taking
appeal
2.   within 6 months an appeal by FAME
from entry of [Secs. 1-2, Rule 38]
judgment
If denied, order of If denied, order denying Note: “Extrinsic fraud” is that fraud which the
denial is not a petition for relief is not prevailing party caused to prevent the losing party
appealable; hence, appealable; remedy is from being heard on his action or defense. Such fraud
remedy is appeal from appropriates civil action concerns not the judgment itself but the manner in
judgment under Rule 65 which it was obtained [AFP Mutual Benefit Association,
Inc. v. RTC-Marikina City, G.R. No. 183906 (2011)]
Legal remedy Equitable remedy
Motion need not be Time to file action
Petition must be verified
verified 1.   Within 60 days after the petitioner learns of the
(1 Regalado 426-437, 441-442, 2010 Ed.) judgment, final order, or other proceeding to be
set aside, and
A party who has filed a timely MNT or MR can no 2.   Not more than 6 months after such judgment or
longer file a petition for relief from judgment after his final order was entered, or such proceeding was
motion has been denied. These remedies are mutually taken
exclusive. It is only in appropriate cases where a party [Sec. 3, Rule 38]
aggrieved by the judgment has not been able to file a
MNT or MR that a petition for relief can be filed Regarding (1) above, the period is not reckoned from
[Francisco v. Puno, G.R. No. L-55694 (1981)] the date he actually read the same [Perez v. Araneta,
G.R. No. L-11788 (1958)]
When proper
When a judgment or final order is entered, or any other These two periods must concur, are not extendible and
proceeding is thereafter taken against a party in any are never interrupted. Strict compliance with these
court through FAME [Sec. 1, Rule 38] periods stems from the equitable character and nature
of the petition for relief. Such petition is actually the
Thus, it was held that a petition for relief is also “last chance” given by law to litigants to question a
applicable to a proceeding taken after entry of final judgment or order. Failure to avail of such
judgment or final order such as an order of execution chance, within the grace period fixed by the Rules, is
[Cayetano v. Ceguerra, G.R. No. L-18831 (1965)] or an fatal [Quelnan v. VHF Phils, G.R. No. 138500 (2005)]
order dismissing an appeal [Medran v. CA, G.R. No. L-
1350 (1949)] Contents of petition
The petition must be:
Where filed 1.   Verified;
When a judgment or final order is entered, or any other 2.   Accompanied by an affidavit showing the FAME
proceeding is thereafter taken against a party in any relied upon; and
court through FAME, he may file a petition in such
court and in the same case praying that the

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

3.   The facts constituting the petitioner’s good and new trial or reconsideration had been granted
substantial cause of action or defense, as the case by it.
may be [Sec. 6, Rule 38]
[Sec. 3, Rule 38].
Note: Where the denial of an appeal is set aside, the
The absence of an affidavit of merits is a fatal defect lower court shall be required to give due course to the
and warrant denial of the petition [Fernandez v. Tan appeal and to elevate the record of the appealed case
Tiong Tick, G.R. No. 15877 (1961)] as if a timely and proper appeal had been made [Sec.
7, Rule 38]
However, it is not a fatal defect so long as the facts
required to be set out also appear in the verified Remedy for denial of petition for relief
petition [Fabar Inc. v. Rodelas, G.R. No. L-46394 Appeal from an order denying a petition for relief is no
(1977)] longer available under the present rules [1 Regalado
437, 2010 Ed. citing Sec. 1, Rule 41]
When affidavit of merit is not necessary:
1.   When there is lack of jurisdiction over the The remedy against a denial of a petition for relief is
defendant; certiorari under Rule 65, when proper [1 Regalado 437,
2.   When there is lack of jurisdiction over the subject 2010 Ed.]
matter;
3.   When judgment was taken by default; Note: An order granting a petition for relief is
4.   When judgment was entered by mistake or was interlocutory and non-appealable [1 Regalado 447,
obtained by fraud; or 2010 Ed.]
5.   Other similar cases.
(1 Regalado 434-435, 2010 Ed.]
3.  Annulment of Judgments
Order to file answer or Final Orders and
1.   If the petition is sufficient in form and substance
to justify relief, the court in which it is filed, shall Resolutions
issue an order requiring the adverse parties to
answer the same within 15 days from the receipt Nature
thereof. An action for annulment of judgment is a remedy in
2.   The order shall be served in such manner as the law independent of the case where the judgment
court may direct, together with copies of the sought to be annulled was rendered. The purpose is to
petition and the accompanying affidavits. have the final and executory judgment set aside so
[Sec. 4, Rule 38] that there will be a renewal of litigation [Alaban v. CA,
G.R. No. 156021 (2005)]
Note: Failure to answer the petition for relief does not
constitute default. Even without it, the court will still A person who is not a party to the judgment may sue
have to hear the petition on the merits [1 Regalado for its annulment provided he can prove that it was
447. 2010 Ed.] obtained through fraud or collusion and that he would
be adversely affected thereby. An action for
Proceedings after answer is filed annulment of judgment may be availed of even if the
1.   After the filing of the answer or the expiration of judgment to be annulled has already been fully
the period therefor, the court shall hear the executed or implemented [Islamic Da’wah Council of
petition and the Philippines. v. CA, G.R. No. 80892 (1989)]
2.   If after such hearing, it finds that the allegations
thereof are not true, the petition shall be When proper
dismissed The remedy may not be invoked where the party has
3.   But if it finds said allegations to be true, it shall availed himself of the remedy of new trial, appeal,
set aside the judgment or final order or other petition for review, or other appropriate remedy and
proceeding complained of upon such terms as lost, or where he has failed to avail himself of those
may be just. remedies through his own fault or negligence
a.   Thereafter the case shall stand as if such [Republic v. ‘G’ Holdings, Inc., G.R. No. 141241 (2005)]
judgment, final order or other proceeding had
never been rendered, issued or taken. It is a condition sine qua non that one must have failed
b.   The court shall then proceed to hear and to avail of those remedies, through no fault
determine the case as if a timely motion for a attributable to him. Otherwise, he would benefit from

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

his own inaction or negligence [Republic v. De Castro, It is such that was revealed to/was even deliberately
G.R. No. 189724 (2011)] suppressed from the opposing party and the court [1
Regalado 629-630, 2010 Ed.]
Where filed
Judgment, Final Order Judgment, Final Order Lack of jurisdiction
or Resolution of the or Resolution of the Either lack of jurisdiction over the person of the
RTC MTC, etc. defending party, or over the subject matter of the
Filed with the CA [Sec. Filed with the RTC [Sec. claim [1 Regalado 630, 2010 Ed.]
1, Rule 47] 19(6) BP 129]
Petitioner must show absolute lack of jurisdiction and
CA has exclusive and
RTC as a court of not mere abuse of judicial discretion; a claim of grave
original jurisdiction over
general jurisdiction abuse of discretion will support a petition for certiorari
said action under Sec.
under Sec. 19(6) BP 129 but not an action for annulment of judgment [1 Riano
9(2) of BP 129
633, 2011 Ed.]
The CA may dismiss the
The RTC has no such
case outright; it has the Only evidence found in the record can justify nullity
discretion, it is required
discretion on whether [Arcelona v CA, G.R. No. 102900 (1997)]
to consider it as an
or not to entertain the
ordinary civil action
petition [Sec.5, Rule 47]
b.   Period to File Action
Who can file Lack of
Petitioner need not be a party to the judgment sought Extrinsic fraud
jurisdiction
to be annulled [Republic v. CA, G.R. No. 122269 (1999)]
Before it is
Period for 4 years from barred by
A person who is not a party to the judgment may sue
filing discovery laches or
for its annulment provided that he can prove the same
estoppel
was obtained through fraud or collusion, and that he
[Sec. 3, Rule 47]
would be adversely affected thereby. [Alaban v. CA,
G.R. No. 156021 (2005)]
There must be a manifest showing with petition that it
was filed within the 4-yr period [1 Regalado 532, 2010
a.   Grounds for Annulment Ed.]

1.   The annulment may be based only on the grounds The rule does not fix the period to annul judgment
of extrinsic fraud and lack of jurisdiction. based on lack of jurisdiction but recognizes the
2.   Extrinsic fraud shall not be a valid ground if it was principle of estoppel as first laid down by Tijam v.
availed of, or could have been availed of, in a MNT Sibanghanoy [G.R. No. L-21450 (1968)]
or petition for relief.
[Sec. 2, Rule 47] Form and contents of petition
3.   Denial of due process - recognized as an 1.   Verified petition, alleging therein:
additional ground based on jurisprudence [See a.   With particularity the facts and the law relied
Spouses Benatiro v. Heirs of Cuyos, G.R. No. 161220 upon
(2008)]. BUT see Lasala v. National Food Authority b.   Petitioner’s good and substantial cause of
[G.R. No. 171582 (2015)], where the SC ruled that action or defense
only two grounds may be recognized in a petition 2.   In 7 clearly legible copies, together with sufficient
for annulment: extrinsic fraud and lack of copies corresponding to the number of
jurisdiction. respondents
3.   Certified true copy of the judgment or final order
Extrinsic fraud or resolution shall be attached to the original copy
A fraudulent act committed by the prevailing party of the petition intended for the court and
outside of the trial of the case, whereby the defeated indicated as such by the petitioner
party was prevented from exhibiting fully his side of 4.   Affidavits of witnesses or documents supporting
the case by deception practiced on him by the the cause of action or defense; and
prevailing party [Alba v. CA, G.R. No. 164041 (2005)] 5.   Certificate of non-forum shopping
[Sec. 3, Rule 47]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Note: Generally, the lack of a certificate of non-forum 2.   However, the prescriptive period shall not be
shopping is not curable by the submission thereof suspended where the extrinsic fraud is
after the filing of a petition. In exceptional attributable to the plaintiff in the original action.
circumstances, however, such as the filing of the [Sec. 8, Rule 47]
certification a day after but within the reglementary
period for filing such petition, the belated filing was
allowed as a substantial compliance. While the filing
4.  C ollateral Attack of
of the certification is mandatory, still the requirement Judgments
must not be interpreted literally [Shipside, Inc. v. CA,
GR No. 143377 (2001)] Direct attack v. collateral attack
a.   When the Court says direct attack, it means that
Action of the court the object of an action is to annul or set aside such
1.   Should the court find no substantial merit in the judgment, or enjoin its enforcement.
petition, the same may be dismissed outright with b.   On the other hand, the attack is indirect or
specific reasons for such dismissal. collateral when, in an action to obtain a different
2.   Should prima facie merit be found in the petition, relief, an attack on the judgment or proceeding is
the same shall be given due course and summons nevertheless made as an incident thereof.
shall be served on the respondent. [Hortizuela v. Tagufa, G.R. No. 205867 (2015)]
[Sec. 5, Rule 47]
The validity of a judgment or order of the court, which
Procedure has become final and executory, may be attacked in
The procedure in ordinary civil cases shall be observed. three ways:
Should a trial be necessary, the reception of the a.   By a direct action or proceeding to annul the same
evidence may be referred to a member of the court or 1.   A direct attack against the order or judgment,
a judge of a RTC [Sec. 6, Rule 47] is one that it is not incidental to, but is the
main object of, the proceeding
Note: Prima facie determination is not available in 2.   To annul and enjoin enforcement of the
annulment of judgments or final orders of MTCs judgment, where the alleged defect is not
before the RTC [Sec. 10, Rule 47] apparent on its face or from the recitals
contained in the judgment
c.   Effect of Judgment of 3.   See Rule 47
b.   By direct action, as certiorari, or by collateral
Annulment attack in case of apparent nullity
1.   The collateral attack must be against a
Based on lack of jurisdiction challenged judgment which is void upon its
A judgment of annulment shall set aside the face as where it is patent that the court which
questioned judgment or final order or resolution and rendered said judgment has no jurisdiction or
render the same null and void, without prejudice to the that the nullity of the judgment is apparent
original action being refiled in the proper court [Sec. 7, from its own recitals
Rule 47] c.   By a Petition for Relief under Rule 38
1.   This third manner of attacking must be taken
Based on extrinsic fraud in the same action or proceeding in which the
The court may on motion order the trial court to try the judgment or order was entered
case as if a timely motion for new trial had been [1 Regalado 454-456, 2010 Ed.]
granted therein [Sec. 7, Rule 47]
Void judgment
Difference: When it is based on extrinsic fraud, the A void judgment is no judgment at all. It cannot be the
original judgment was not tainted by jurisdictional source of any right nor the creator of any obligation.
defects but by the deception which then resulted in the All acts performed pursuant to it and all claims
prejudicial error [1 Regalado 635-636, 2010 Ed.] emanating from it have no legal effect. Hence, it can
never become final and any writ of execution based on
Effect on prescriptive period it is void [Polystyrene Manufacturing v. Privatization
1.   The prescriptive period for the refiling of the Management, G.R. No. 171336 (2007)]
aforesaid original action shall be deemed
suspended from the filing of said original action A judgment may be void for lack of due process of law
until the finality of the judgment of annulment. [Spouses Benatiro v. Heirs of Cuyos, G.R. No. 161220
(2008)]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Attacking a void judgment A final judgment may be annulled on the ground of

It may be assailed anytime, collaterally or in a direct lack of jurisdiction, fraud, or that it is contrary to law
action or by resisting such judgment or final order in [Panlilio v. Garcia, G.R. No. L-29038 (1982)]
any action or proceeding whenever it is invoked, unless
barred by laches [Spouses Benatiro v. Heirs of Cuyos,
G.R. No. 161220 (2008)]

Remedies
If the reglementary period for appeal has not yet
lapsed, some remedies are New Trial and
Reconsideration [Rule 37], Appeal [Rules 40-45],
Petition for Relief [Rule 48], and other appropriate
remedies such as certiorari may also be used. [1 Riano
60, 2011 Ed.]

If the appropriate remedies are no longer available

without the fault of the petitioner, the equitable and
extraordinary remedy of Petition for Annulment of
Judgment [Rule 47] may be resorted to. [Mandy
Commodities Co. Inc.v ICBC, G.R. No. 166734 (2009)]

When all else fails, there is jurisprudence to the effect

that a patently void judgment may be dealt with by a
Main Action for Injunction [Barrameda v. Moir, G.R. No.
L-7927 (1913)]

Jurisprudential basis
Spouses Benatiro v. Heirs of Cuyos [G.R. No. 161220
(2008)] and Agustin v. Bacalan [G.R. No. L-46000
(1985)] on the matter of void judgment particularly
refer to Rule 47 as a remedy against a void judgment.
This remedy, however, should be availed of only when
the appropriate remedies are no longer available
without through no fault on the part of the petitioner
[Sec. 1, Rule 47].

Although Sec. 2 of Rule 47 of the Rules of Court

provides that annulment of a final judgment or order
of an RTC may be based "only on the grounds of
extrinsic fraud and lack of jurisdiction," jurisprudence
recognizes denial of due process as additional
ground therefore [Spouses Benatiro v. Heirs of Cuyos,
G.R. No. 161220 (2008)]. BUT see Lasala v. National
Food Authority [G.R. No. 171582 (2015)], where the SC
ruled that only two grounds may be recognized in a
petition for annulment: extrinsic fraud and lack of
jurisdiction.

A void judgment is like an outlaw which may be slain

at sight wherever or whenever it exhibits its head. The
proper remedy in such case, after the time for appeal
or review has passed, is for the aggrieved party to
bring an action to enjoin the judgment [Montinola v.
Judge Gonzales, G.R. No. L-36155 (1989)]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

  Execution, Satisfaction b.   a judgment or order that dismisses an action on

the ground, for instance, of res judicata or
and Effect of Judgments prescription
[Heirs of Dimaampao v. Alug, G.R. No. 198223 (2015)]
Execution is a remedy afforded by law for the Once rendered, the task of the court is ended, as far as
enforcement of a judgment. It is a judicial writ issued deciding the controversy or determining the rights and
to an officer authorizing and requiting him to execute liabilities of the litigants is concerned. Nothing more
the judgment of the court [Pamantasan ng Lungsod ng remains to be done by the court except to await the
Maynila v. IAC, G.R. No. L-65439 (1986), citing 2 parties' next move (such as filing of a MNT or MR, or
Francisco, 592-593, 1966 Ed.]. the taking of an appeal) and ultimately, to cause the
execution of the judgment once it becomes 'final and
Note: The prevailing party can secure certified true executory [Heirs of Dimaampao v. Alug, G.R. No.
copies of the judgment or final order of the appellate 198223 (2015)]
court, the entry thereof, and submit it to the court of
origin justify a motion for a writ of execution even Finality for purposes of execution refers to the
without waiting for receipt of the records from the judgment being “final and executory” upon the lapse
appellate court. [Circular No. 24-94] of the appeal period if no appeal is taken, upon which
execution shall issue as a matter of right according to
The appellate court can also direct the issuance of the Sec. 1, Rule 39 [1 Regalado 449-450, 2010 Ed., see
writ of execution upon motion in the same while the Perez v. Zulueta, G.R. No. L-10374 (1959)]
records are still with the appellate court, or even after
remand to the lower court [1 Regalado 452, 2010 Ed.] A judgment becomes “final and executory” by
operation of law. Finality becomes a fact upon the
1.   Difference between lapse of the reglementary period to appeal if no
appeal is perfected. [Prieto v. Alpadi Development
Finality of Judgment for Corporation, G.R. No. 191025 (2013)]
Purposes of Appeal; for
Final AND Executory
Purposes of Execution Final Judgments
Judgments
They finally dispose of,
A judgment is final if it disposes of the action as adjudicate, or Judgments become final
distinguished from an interlocutory order which leaves determine the rights of and executory by
something to be done with respect to the merits of the the parties, HOWEVER, operation of law.
case, and it is executory if the period to appeal has they are not yet “final [Cadena v. Civil Service
expired and no appeal is taken [2 Herrera 281, 2007 and executory” Commission, G.R. No.
Ed.; 1 Regalado 450, 2010 Ed.] pending the expiration 191412 (2012)]
of the reglementary
Finality for purposes of appeal refers to the period for appeal. [1 After the lapse of the
distinction between “final judgments or orders” and Regalado 450, 2010 reglementary period to
“interlocutory orders,” which cannot be appealed Ed.] appeal, the prevailing
according to Sec. 1(b), Rule 41 [1 Regalado 450, 2010 party is entitled to a writ
Ed.] During that period, the of execution, and
winning party cannot issuance thereof is a
The word interlocutory refers to something demand the execution ministerial duty of the
intervening between the commencement and the end of the judgment yet as court. [City of Manila v.
of a suit, which decides some point or matter but is not a right. [City of Manila CA, G.R. No. 100626
a final decision of the whole controversy [Ramiscal, Jr. v. CA, G.R. No. 100626 (1991)]
v. Sandiganbayan, G.R. No. 140756-90 (2004)] (1991)]

A final judgment or order is one that finally disposes

of a case, leaving nothing more to be done by the court 2.  W hen Execution Shall
in respect thereto. Examples include: Issue
a.   an adjudication on the merits which, on the basis
of the evidence presented at the trial, declares General rule: Execution shall issue as a matter of right,
categorically what the rights and obligations of on motion, upon a judgment or order that disposes of
the parties are and which party is in the right; or

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

the action or proceeding upon the expiration of the How done

period to appeal therefrom if no appeal has been duly 1.   If no appeal is perfected upon the expiration of the
perfected [Sec. 1, Rule 39] period to appeal therefrom, on motion
2.   If the appeal has been duly perfected and finally
Exceptions: resolved, the execution may
a.   Judgments in actions for injunction, receivership, a.   forthwith be applied for in the court of origin,
accounting and support, and such other b.   on motion of the judgment obligee,
judgments as are now or may hereafter be c.   submitting therewith certified true copies of
declared to be immediately executory, shall be the judgment or judgments or final order or
enforceable after their rendition and shall not be orders sought to be enforced and of the entry
stayed by an appeal taken therefrom, unless thereof, with notice to the adverse party
otherwise ordered by the trial court [Sec. 1, Rule [Sec. 1, Rule 39]
39]
b.   If judgment in an action for forcible entry or Note: Execution may only issue upon motion with
unlawful detainer is rendered against the notice of hearing. However, the judgment debtor need
defendant, execution shall issue immediately not be given advance notice or prior hearing of such
upon motion [Sec. 19, Rule 39] motion for execution [Pamintuan, et al v. Muhoz, G.R.
c.   The decision of the Regional Trial Court in civil No. L-26331 (1968)] An ex parte motion for the issuance
cases governed by the Rules on Summary of the writ would suffice since the trial court may take
Procedure shall be immediately executory, judicial notice of the record of the case to determine
without prejudice to a further appeal that may be the propriety of the issuance thereof.
taken therefrom [Sec. 21, Rules on Summary
Procedure] However, where the losing party shows that
d.   The decision of the Labor Arbiter reinstating a subsequent facts had taken place which would render
dismissed or separated employee, insofar as the execution unjust, a hearing on the motion should be
reinstatement aspect is concerned, shall held [Luzon Surety Co. v. Beson, G.R. No. L-26865-66
immediately be executory, even pending appeal (1976)]
[Art. 229, Labor Code]
General rule: Issuance of the writ of execution is a
Exception to the exception: On appeal therefrom, the matter of right on the part of the prevailing party when
appellate court in its discretion may make an order the judgment or order becomes executory. The court
suspending, modifying, restoring or granting the cannot refuse execution. [1 Regalado 453, 2010 Ed.]
injunction, receivership, accounting, or award of
support. The stay of execution shall be upon such Exceptions:
terms as to bond or otherwise as may be considered The issuance of a writ of execution which issues as a
proper for the security or protection of the rights of the matter of right can be countered in any of the
adverse party [Sec. 1, Rule 39] following cases:
1.   When the judgment has already been executed by
the voluntary compliance thereof by the parties;
a.   Execution as a Matter of Right 2.   When a judgment has been novated by the
parties;
A judgment becomes final and executory by operation 3.   When a petition for review is filed and preliminary
of law, not by judicial declaration. The prevailing party injunction is granted; Also, when execution of the
is entitled as a matter of right to a writ of execution, judgment has been enjoined by a higher court;
and the issuance thereof is a ministerial duty and 4.   When the judgment sought to be executed is
compellable by mandamus [2 Herrera 285, 2007 Ed.; conditional or incomplete;
CIR v. Visayan Electric Company, G.R. No. L-24921 5.   When facts and circumstances transpire which
(1967)] would render execution inequitable or unjust;
6.   When execution is sought more than five (5) years
Execution as a matter of right is available in two from its entry without it having been revived;
instances 7.   When execution is sought against property
1.   Upon the expiration of the period to appeal exempt from execution;
therefrom if no appeal has been duly perfected 8.   When refusal to execute the judgment has
2.   Appeal has been duly perfected and finally become imperative in the higher interest of
resolved justice
[Sec. 1, Rule 39] [1 Riano 647-648, 2014 Bantam Ed.]

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Supervening event doctrine the original record or perfected and

A supervening event can be invoked for the the record on finally resolved
modification or alteration of a final judgment. This appeal, as the case
refers to: may be, at the time
1.   Facts which transpire after judgment has become of the filing of such
final and executory; motion
2.   New circumstances which developed after the 2.   Several, separate or
judgment has acquired finality; partial judgment
3.   Matters which the parties were not aware of prior May only issue upon
to or during the trial as they were not yet in Matter of right
good reasons
existence at that time.
The supervening facts or circumstances must either Execution of a judgment or final order pending
bear a direct effect upon the matters already litigated appeal
and settled or create a substantial change in the rights 1.   On motion of the prevailing party with notice to
or relations of the parties therein which render the adverse party filed in the trial court while it has
execution of the final judgment unjust, impossible, or jurisdiction over the case and is in possession of
inequitable [Abrigo, et al. v. Flores, et al., G.R. No. either the original record or the record on appeal,
160786 (2013)] as the case may be, at the time of the filing of such
motion, said court may, in its discretion, order
Quashal of a writ of execution-proper when: execution of a judgment or final order even before
1.   Improvidently issued the expiration of the period to appeal.
2.   Defective in substance 2.   After the trial court has lost jurisdiction, the
3.   Issued against wrong party motion for execution pending appeal may be filed
4.   Issued without authority in the appellate court.
5.   Inequitable due to change in situation of parties 3.   Discretionary execution may only issue upon good
6.   Controversy was never validly submitted to court reasons to be stated in a special order after due
[Sandico v. Piguing, G.R. No. L-26115 (1971)] hearing.
7.   The writ varies the terms of the judgment, there is
ambiguity in the terms of the judgment or when it The period to appeal where a MR has been filed
is sought to be enforced against property exempt commences only upon the receipt of a copy of the
from execution [Limpin v. IAC, G.R. No 70987 order disposing of the MR. The pendency of the MR
(1987)] prevents the running of the period to appeal. When
8.   There is substantial variance between the there is a pending MR, an order of execution pending
judgment and the writ of execution issued to appeal is improper and premature [JP Latex
enforce the same [Malacora v. CA, G.R. No. 51042 Technology, Inc. v. Ballons Granger Balloons, Inc., et al.,
(1982)] G.R. No. 177121 (2009)]
[1 Regalado 453, 2010 Ed.]
Mere issuance of a bond to answer for damages is no
Note: These defects may be challenged on appeal or in longer considered a good reason for execution
certiorari, prohibition or mandamus actions [Limpin v. pending appeal [Planters Products v. CA, G.R. No.
IAC, G.R. No 70987 (1987)] 106052 (1999)]

b.   Discretionary Execution “Good reasons”

Compelling circumstances justifying the immediate
execution lest judgment becomes illusory, or the
Execution upon
Discretionary prevailing party may after the lapse of time become
judgments or final
execution [Sec. 2, Rule unable to enjoy it [Far East Bank v. Toh, G.R. No.
orders [Sec. 1, Rule
39] 144018 (2003)]
39]
1.   On motion of the 1.   Upon the
Examples of good reasons:
prevailing party with expiration of the
1.   Where the goods subject of the judgment stand to
notice to the adverse period to appeal
perish or deteriorate during the pendency of the
party filed in the trial therefrom if no
appeal [Yasuda v. CA, G.R. No. 112569 (2000)]
court while it has appeal has been
2.   The award of actual damages is for an amount
jurisdiction over the duly perfected
fixed and certain, but not an award for moral and
case and is in 2.   If the appeal has
exemplary damages [Radio Communications Inc.
possession of either been duly
v. Lantin, G.R. No. L-59311 (1985)]

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3.   Insolvency of a defeated party [Hacienda Navarro A supersedeas is an auxiliary process designed to

v. Labrador, G.R. No. L-45912 (1938)] supersede enforcement of a trial court's judgment
4.   The prevailing party is of advanced age and in a brought up for review. Its application is limited to the
precarious state of health and the obligation in judgment from which an appeal is taken. It is used
the judgment is non-transmissible, being for synonymously with a "stay of proceedings," and
support [De Leon v. Soriano, G.R. No. L-7648 designates the effect of an act or proceeding which in
(1954)] itself suspended the enforcement of a judgment [1
5.   Where defendants were exhausting their income Regalado 459, 2010 Ed.]
and have no other property aside from proceeds
of the property subject in litigation [Lao v. General rule: The filing of a supersedeas bond is
Mencias, G.R. No. L-23554 (1967)] sufficient to stay the enforcement of a discretionary
execution [Sec. 3, Rule 39].
Note: The remedy against an order granting execution
pending appeal where the order is not founded upon Exception: However, the filing of the supersedeas bond
good reasons is Certiorari. The fact that the losing does not entitle the judgment debtor to the
party had also appealed from the judgment does not suspension of execution as a matter of right. Where
bar the certiorari proceedings as the appeal could not the needs of the prevailing party are urgent, the Court
be an adequate remedy from such premature can order immediate execution despite such
execution [1 Regalado 465, 2010 Ed.] supersedeas bond [1 Regalado 466, 2010 Ed.]

Discretionary execution is not applicable in the case If judgment is reversed totally or partially, or
of the CA annulled, on appeal or otherwise
A judgment of the CA cannot be executed pending The trial court may, on motion, issue such orders of
appeal [Heirs of Justice JBL Reyes v. CA, G.R. No. restitution or reparation of damages as equity and
135180-81 (2000)] justice may warrant under the circumstances [Sec.5,
Rule 39]
Requisites for discretionary execution:
1.   On motion of the prevailing party with notice to Restitution: the property itself must be returned to the
the adverse party judgment debtor, if the same is still in the possession
2.   Filed in the of the judgment creditor, plus compensation to the
a.   Trial court while it has jurisdiction over the former for the deprivation and use of the property [1
case and is in possession of either the original Regalado 467, 2010 Ed.]
record or the record on appeal, as the case
may be, at the time of the filing of such Reparation of damages:
motion, or 1.   If the purchaser at the public auction was the
b.   Appellate court after the trial court has lost judgment creditor, pay the full value of the
jurisdiction property at the time of its seizure plus interest
3.   Good reasons to be stated in a special order after 2.   If the purchaser at public auction was a third
due hearing person, judgment creditor must pay the judgment
[Sec. 2, Rule 39] debtor the amount realized from the sale with
interest thereon; and
After the trial court has lost jurisdiction, the motion 3.   If the judgment award was reduced on appeal, the
may be filed in the appellate court [Bangkok Bank judgment creditor must return to the judgment
Public Company, Ltd. v. Lee, G.R. No.159806 (2006)] debtor only the excess which he received over and
above that to which he is entitled under the final
Stay of discretionary execution judgment, with interest on such excess
Discretionary execution issued under the preceding [Po Pauco v.. Tan Juco, G.R. No. L-63188 (1990)]
section may be stayed upon approval by the proper
court of a sufficient supersedeas bond filed by the party Remedy against discretionary execution
against whom it is directed, conditioned upon the The remedy is certiorari by Rule 65. The fact that the
performance of the judgment or order allowed to be losing party has also appealed from the judgment
executed in case it shall be finally sustained in whole does not bar certiorari proceedings as the appeal could
or in part. The bond thus given may be proceeded not be an adequate remedy from such premature
against on motion with notice to the surety [Sec. 3, execution [Jaca v. Davao Lumber Co., G.R. No. L-25771
Rule 39] (1982)]

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for execution shall specify the amounts of the

3.  How a Judgment is foregoing reliefs sought by the movant.
Executed [Sec. 8, Rule 39]

Dispositive portion as subject of execution

a.   Execution by Motion or
Independent Action General rule: The dispositive portion of the decision is
that part that becomes the subject of execution [1
Modes of enforcement of execution Regalado 412, 2010 Ed.]
Mode When enforced
Within 5 years from the Exceptions:
By motion 1.   Where there is ambiguity, the body of the opinion
date of entry of judgment
After the lapse of 5 years may be referred to for purposes of construing the
By independent from date of entry and judgment because the dispositive part of a
action before it is barred by the decision must find support from decision’s ratio
statute of limitations decidendi [1 Regalado 479, 2010 Ed.]
[Sec. 6, Rule 39] 2.   Where extensive and explicit discussion and
settlement of the issue is found in the body of the
The Statute of Limitations is 10 years from date of decision [1 Regalado 479, 2010 Ed.]
entry [Art. 1144(3), CC]. 3.   Where one can clearly and unquestionably
conclude from the body that there was a mistake
Note: The revived judgment may also be enforced by in the dispositive portion, the body of the decision
motion within 5 years from date of its entry and will prevail [Metropolitan Cebu Water District v.
thereafter by action before it is barred by statute of Mactan Rock Industries, Inc., G.R. No. 172438
limitations [Sec. 6, Rule 39]. (2012)]

Hence, there are 4 chances for the enforcement of To whom issued

execution: (1) by motion, (2) by independent action, (3) General rule: Only real parties in interest in an action
by motion for revived judgment within 5 years from are bound by judgment rendered therein and by the
date of entry and thereafter, (4) by action before it is writs of execution
barred by statute of limitations. After these, it
becomes dormant [Prof. Avena] Exceptions:
There are certain cases where the writ may be issued
Once the judgment is revived, the 10-year prescriptive against non-parties
period commences to run from the date of finality of 1.   One who is privy to judgment debtor can be
the revived judgment and not the original judgment reached by an order of execution and writ of
[PNB v. Bondoc, G.R. No. L-20236 (1965)] demolition [Vda. De Medina v. Cruz, G.R. No. L-
39272 (1988)]
2.   Issued against one who not being originally a
b.   Issuance and Contents of a party to the case submits his interest to the court
Writ of Execution for consideration in the same case and invites
adjudication regarding said interest [Jose v. Blue,
Contents of the writ of execution G.R. No. L-28646 (1971)]
1.   In the name of the Republic of the Philippines 3.   Where non-parties voluntarily signed the
from the court which granted the motion compromise agreement or voluntarily appeared
2.   The name of the court, the case number and title, before court [Rodriguez v. Alikpala, G.R. No. L-
the dispositive part of the subject judgment or 38314 (1974)]
order 4.   Where the remedy of a person not a party to the
3.   Requires the sheriff or other proper officer to case which he did not avail of, was to intervene in
whom it is directed to enforce the writ according the case in question involving rights over the same
to its terms parcel of land and said person in another case was
4.   In all cases, the writ of execution shall specifically adjudged buyer in bad faith thereof [Lising v. Plan,
state the amount of the interest, costs, damages, G.R. No. 50107 (1984)]
rents, or profits due as of the date of the issuance 5.   In an ejectment case, where 3rd party derived his
of the writ, aside from the principal obligation right of possession from defendant particularly
under the judgment. For this purpose, the motion when such right was acquired only after filing of

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ejectment suit [Cordova v. Tornilla, A.M. No. MTJ- 2.   The officer shall make a report to the court every
94-997 (1995)] 30 days on the proceedings taken thereon until
the judgment is satisfied in full, or its effectivity
Remedies against a writ of execution expires.
General rule: The execution of final and executory 3.   The returns or periodic reports shall set forth the
judgments may no longer be contested and whole of the proceedings taken, and shall be filed
prevented, and no appeal should lie therefrom. [1 with the court and copies thereof promptly
Riano 648, 2014 Bantam Ed.] furnished the parties
[Sec. 14, Rule 39]
Exceptions:
Instances where errors may be committed prejudicial Entry of satisfaction of judgment
to the rights of a party, calling for correction by a 1.   Satisfaction of a judgment shall be entered by the
higher court. Examples of these instances are: COC in the court docket, and in the execution
1.   When the writ varies the judgment; book, upon the
2.   When there has been a change in the situation of a.   Return of a writ of execution showing the full
the parties rendering execution inequitable; satisfaction of the judgment, or
3.   When execution is sought to be enforced against b.   Filing of an admission to the satisfaction of
property exempt from execution; the judgment executed and acknowledged in
4.   When it appears that the controversy has never the same manner as a conveyance of real
been submitted to the judgment of the court; property by the judgment obligee or by his
5.   When the terms of the judgment are not clear counsel unless a revocation of his authority is
enough and there remains room for filed, or
interpretation; c.   Endorsement of such admission by the
6.   When it appears that the judgment has already judgment obligee or his counsel on the face
been satisfied; of the record of the judgment
7.   When it appears the writ has been improvidently [Sec. 44, Rule 39]
issued; 2.   Whenever a judgment is satisfied in fact, or
8.   When it appears that the writ is defective in otherwise than upon an execution, on demand of
substance; the judgment obligor, the judgment obligee or his
9.   When the writ is issued against the wrong party; counsel must execute and acknowledge, or
10.   When the writ was issued without authority. indorse, an admission of the satisfaction, and
[1 Riano 649, 2014 Bantam Ed.] 3.   After notice and upon motion the court may order
either the judgment obligee or his counsel to do
An order granting the issuance of the writ is not so, or may order the entry of satisfaction to be
appealable, except where: made without such admission.
1.   The order varies the terms of the judgment, or [Sec. 45, Rule 39]
[J.M. Tuazon & Co. v. Estabillo, G.R. No. L-20610
(1975)],
2.   Where, being vague, the court renders what is
c.   Execution of Judgments for
believed to be a wrong interpretation [1 Regalado Money
481, 2010 Ed.]
If the award is for payment of money, execution is
RETURN OF WRIT OF EXECUTION enforced by
1.   Immediate payment on demand
Effectivity 2.   Satisfaction by levy
Such writ shall continue in effect during the period 3.   Garnishment of debts and credits [Sec. 9, Rule 39]
within which the judgment may be enforced by motion [Prof. Avena]
[Sec. 14, Rule 39]
Note: Levy can only be made under Sec. 9 of Rule 39
Judgment satisfied within 30 days (not Secs. 10 or 11)
The writ of execution shall be returnable to the court
issuing it immediately after the judgment has been IMMEDIATE PAYMENT ON DEMAND
satisfied in part or in full [Sec. 14, Rule 39]
Procedure
Judgment not satisfied within 30 days 1.   The officer shall enforce an execution of a
1.   The officer shall report to the court and state the judgment for money by demanding from the
reason therefor. judgment obligor the immediate payment of the

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

full amount stated in the writ of execution and all Condition before resort to satisfaction by levy
lawful fees. If the judgment obligor cannot pay all or part of the
2.   The judgment obligor shall pay in cash, certified obligation in cash, certified bank check or other mode
bank check payable to the judgment obligee, or of payment acceptable to the judgment obligee [Sec.
any other form of payment acceptable to the 9(b), Rule 39]
latter, the amount of the judgment debt under
proper receipt directly to the judgment obligee or Procedure
his authorized representative if present at the 1.   The officer shall levy upon the properties of the
time of payment. judgment obligor of every kind and nature
3.   The lawful fees shall be handed under proper whatsoever which may be disposed of for value
receipt to the executing sheriff who shall turn over and not otherwise exempt from execution
the said amount within the same day to the COC 2.   The officer shall give the judgment obligor the
of the court that issued the writ. option to immediately choose which property or
[Sec. 9(a), Rule 39] part thereof may be levied upon, sufficient to
satisfy the judgment.
Procedure if the judgment oblige or his authorized 3.   If the judgment obligor does not exercise the
representative is not present to receive payment option, the officer shall first levy on the personal
1.   The judgment obligor shall deliver the aforesaid properties, if any, and then on the real properties
payment to the executing sheriff. if the personal properties are insufficient to
2.   The latter shall turn over all the amounts coming answer for the judgment.
into his possession within the same day to the 4.   The sheriff shall sell only a sufficient portion of the
COC of the court that issued the writ, or if the personal or real property of the judgment obligor
same is not practicable, deposit said amounts to which has been levied upon.
a fiduciary account in the nearest government 5.   When there is more property of the judgment
depository bank of the. RTC of the locality. obligor than is sufficient to satisfy the judgment
3.   The clerk of said court shall thereafter arrange for and lawful fees, he must sell only so much of the
the remittance of the deposit to the account of the personal or real property as is sufficient to satisfy
court that issued the writ whose COC shall then the judgment and lawful fees.
deliver said payment to the judgment obligee in
satisfaction of the judgment. Real property, stocks, shares, debts, credits, and other
4.   The excess, if any, shall be delivered to the personal property, or any interest in either real or
judgment obligor while the lawful fees shall be personal property, may be levied upon in like manner
retained by the COC for disposition as provided by and with like effect as under a writ of attachment.
law. [Sec. 9(b), Rule 39]
5.   In no case shall the executing sheriff demand that
any payment by check be made payable to him. Note: If the judgment is for a sum of money
[Sec. 9(a), Rule 39] 1.   The judgment obligor dies before the levy has
been made on the property: judgment cannot be
SATISFACTION BY LEVY enforced by writ of execution. Instead, it should be
filed as a claim against the estate.
Levy is the act whereby a sheriff sets apart or 2.   If the judgment obligor dies after the entry of
appropriates for the purpose of satisfying the judgment but before levy on his property,
command of the writ, a part or the whole of the execution will issue if it is for the recovery of
judgment debtor’s property. [Fiestan v. CA, G.R. No. real/personal property
81552 (1990)] [1 Regalado 475, 2010 Ed.]

Levy means the act or acts by which an officer sets Note: Prof. Avena argued that the determination of
apart or appropriates a part or the whole of the whether or not execution may issue before the levy is
property of the judgment debtor for purposes of the not whether the action is a personal (sum of money) or
prospective execution sale [Llenares v. Vandevella, G.R. a real action (real or personal property), but is more of
No. 21572 (1966)] whether the action is that of an in rem/quasi-in-rem
action, or an in personam action. If it is in rem/quasi-
If susceptible of appropriation, the officer removes in-rem, when the judgment obligor dies after entry of
and takes the property for safekeeping; otherwise the judgment, the execution may issue before levy. If it is
same is placed under sheriff’s guards. Without valid an in personam action, execution cannot be enforced.
levy having been made, any sale of the property
thereafter is void. [1 Regalado 487, 2010 Ed.]

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A special “break-open” order is an order from the Notes: Upon service of the writ of garnishment, the
court authorizing the sheriff to destroy, demolish or garnishee becomes a “virtual party” or “forced
remove improvements on property subject of intervenor” to the case and the trial court thereby
execution [See Sec. 10(d), Rule 39]. acquires jurisdiction to bind the garnishee to comply
with its orders and processes [BPI v. Lee, G.R. No.
A writ of execution directing the sheriff to cause the 190144 (2012)]
defendant to vacate is in the nature of a habere facias
possessionem and authorizes the sheriff, without need UP’s funds, being government funds, are not subject
of securing a “break-open” order, to break open the to garnishment. Moreover, the execution of the
premises where there is no occupant therein. (Arcadio monetary judgment against the UP was within the
v. Ylagan, A.M. No. 2734 (1986)] primary jurisdiction of the COA [UP v. Dizon, G.R. No.
171182 (2012)]
Note: The rationalization behind this is that the writ of
exeution itself is essentially an order to place the What may be garnished
prevailing party in possession of the property. If the The officer may levy on
defendant refuses to surrender possession of the 1.   Debts due the judgment obligor and
property to the prevailing party, the sheriff or other 2.   Other credits, including
proper officer should oust him. No express order to a.   Bank deposits
this effect needs to be stated in the decision. [Guario b.   Financial interests,
v. Ragsac, A.M. No. P-08-2571 (2009)] c.   Royalties
d.   Commissions and
A special order of demolition, on the other hand, is an e.   Other personal property not capable of
order from the court authorizing the sheriff to destroy, manual delivery in the possession or control
demolish or remove improvements on property of third parties [Sec. 9(c), Rule 39]
subject of execution. It is issued upon hearing and
reasonable notice. Without one, the sheriff cannot Procedure
destroy, demolish, or remove any improvements on 1.   Levy shall be made by serving notice upon the
the property. [Guario v. Ragsac, A.M. No. P-08-2571 person owing such debts or having in his
(2009); see Sec. 10(d), Rule 39]. possession or control such credits to which the
judgment obligor is entitled. The garnishment
GARNISHMENT OF DEBTS AND CREDITS shall cover only such amount as will satisfy the
Garnishment is considered as a species of attachment judgment and all lawful fees.
for reaching credits belonging to the judgment debtor 2.   The garnishee shall make a written report to the
and owing to him from a stranger to the litigation court within 5 days from service of the notice of
[Bautista v. Barredo, G.R. No. L-20653 (1965)] garnishment stating whether or not the judgment
obligor has sufficient funds or credits to satisfy the
The process of levying shall be called garnishment if amount of the judgment. If not, the report shall
the property involved is money, stocks, or other state how much funds or credits the garnishee
incorporeal property in the hands of third persons. holds for the judgment obligor.
Garnishment merely sets apart such funds but does 3.   The garnished amount in cash, or certified bank
not constitute the creditor as owner of the garnished check issued in the name of the judgment obligee,
property. [De la Rama v. Villarosa, G.R. No. L-19727 shall be delivered directly to the judgment obligee
(1963)] within 10 working days from service of notice on
said garnishee requiring such delivery, except the
The ROC themselves do not require that the garnishee lawful fees which shall be paid directly to the
be served with summons or impleaded in the case in court.
order to make him liable. All that is necessary for the 4.   In the event there are two or more garnishees
trial court lawfully to bind the person of the garnishee holding deposits or credits sufficient to satisfy the
or any person who has in his possession credits judgment, the judgment obligor, if available, shall
belonging to the judgment debtor is service upon him have the right to indicate the garnishee or
of the writ of garnishment [Perla v. Ramolete, G.R. No. garnishees who shall be required to deliver the
L-60887 (1991)] amount due; otherwise, the choice shall be made
by the judgment obligee.
Garnishment is not a violation of R.A. 1405 on the 5.   The executing sheriff shall observe the same
secrecy of bank deposits, as it does not involve an procedure under Sec. 9(a), Rule 39 with respect to
inquiry or examination of such deposit [China Banking delivery of payment to the judgment obligee.
Corp. v. Ortega, G.R. No. L-34964 (1973)] [Sec. 9(c), Rule 39]

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d.   Execution of Judgments for For delivery or restitution of real property

1.   The officer shall demand of the person against
Specific Acts whom the judgment for the delivery or restitution
of real property is rendered and all persons
Note: This is different from a special judgment under claiming rights under him to peaceably vacate the
Section 12 which requires the performance of any act, property within 3 working days, and restore
other than the payment of money or the sale or possession thereof to the judgment oblige.
delivery or real or personal property, which a party 2.   Otherwise, the officer shall oust all such persons
must personally do because his personal therefrom with the assistance, if necessary, of
qualifications and circumstances have been taken in appropriate peace officers, and employing such
to consideration. [1 Regalado 486, 2010 Ed.] means as may be reasonably necessary to retake
possession, and place the judgment obligee in
Under Section 10, a party is directed to execute possession of such property.
conveyance of land or to deliver deeds or other 3.   Any costs, damages, rents or profits awarded by
documents, or to perform any other specific acts in the judgment shall be satisfied in the same
connection therewith but which acts can be performed manner as a judgment for money.
by persons other than said party [1 Regalado 486, 2010 [Sec. 10(c), Rule 39]
Ed.]
Removal of improvements on property subject of
For conveyance of real of land or personal property execution
When the property subject of the execution contains
Conditions improvements constructed or planted by the
1.   If a judgment directs a party to judgment obligor or his agent, the officer shall not
a.   Execute a conveyance of land or personal destroy, demolish or remove said improvements
property, or except
b.   Deliver deeds or other documents, or 1.   Upon special order of the court, issued upon
c.   Perform any other specific act in connection motion of the judgment obligee after due hearing
therewith, and and
2.   The party fails to comply within the time specified 2.   After the former has failed to remove the same
[Sec. 10(a), Rule 39] within a reasonable time fixed by the court
[Sec. 10(d), Rule 39]
Procedure
1.   The court may direct the act to be done at the cost Delivery of personal property
of the disobedient party by some other person In judgments for the delivery of personal property, the
appointed by the court and the act when so done officer shall take possession of the same and forthwith
shall have like effect as if done by the party. deliver it to the party entitled thereto and satisfy any
2.   If real or personal property is situated within the judgment for money as therein provided [Sec. 10(e),
Philippines, the court in lieu of directing a Rule 39]
conveyance thereof may by an order divest the
title of any party and vest it in others, which shall
have the force and effect of a conveyance e.   Execution of Special
executed in due form of law. Judgments
[Sec. 10(a), Rule 39]
When proper
It is only when reconveyance is no longer feasible (e.g. A judgment requires performance of any other act
passed on to a buyer for value in good faith, than those mentioned in Secs. 9 and 10 (payment of
dissipated, etc.) that the judgment obligor should pay money or sale or delivery of property) [Sec. 11, Rule 39]
the judgment obligee the fair market value of the
property [Raymundo v. Galen Realty and Mining Corp., Procedure
G.R. No. 191594 (2013)] A certified copy of the judgment shall be
1.   Attached to the writ of execution and
For sale of real or personal property 2.   Served by the officer upon
If the judgment be for the sale of real or personal a.   The party against whom the same is
property, [an order for execution shall be issued] to sell rendered, or
such property, describing it, and apply the proceeds in b.   Any other person required thereby, or by law,
conformity with the judgment [Sec. 10(b), Rule 39] to obey the same, and

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3.   Such party or person may be punished for judgment obligor may select, of a value not
contempt if he disobeys such judgment exceeding PHP 100,000
[Sec. 11, Rule 39] f.   Provisions for individual or family use sufficient for
four months
Examples g.   The professional libraries and equipment of
A judgment in mandamus to reinstate petitioner as judges, lawyers, physicians, pharmacists,
chief clinic of the hospital [Vital-Gozon v. CA, G.R. No. dentists, engineers, surveyors, clergymen,
101428 (1992)] teachers, and other professionals, not exceeding
PHP 300,000 in value
A judgment directing defendant to remove a fence h.   One fishing boat and accessories not exceeding
from a certain place is a special judgment [Marquez v. the total value of PHP 100,000 owned by a
Marquez, G.R. No. 47792 (1941)] fisherman and by the lawful use of which he earns
his livelihood
i.   So much of the salaries, wages, or earnings of the
f.   Effect of Levy on Third Persons judgment obligor for his personal services within
the four months preceding the levy as are
The levy on execution shall create a lien in favor of the necessary for the support of his family
judgment obligee over the right, title and interest of j.   Lettered gravestones
the judgment obligor in such property at the time of k.   Monies, benefits, privileges, or annuities accruing
the levy, subject to liens and encumbrances then or in any manner growing out of any life insurance
existing [Sec. 12, Rule 39] l.   The right to receive legal support, or money or
property obtained as such support, or any pension
Note: The power of the court in executing judgments or gratuity from the Government
extends only over properties unquestionably m.   Properties specially exempted by law
belonging to the judgment debtor [Corpuz v. Pascua, [Sec. 13, Rule 39]
A.M. No. P-11-2972 (2011)]
Examples of item (m) above
A duly registered levy on attachment or execution is 1.   property mortgaged to the DBP [Sec. 26, CA 458]
preferred over a prior unregistered sale. Under the 2.   savings of national prisoners deposited with the
Torrens system, the auction sale of property retroacts postal savings bank [Act. 2489]
to the date the levy was registered; now, under Secs. 3.   benefits from private retirement systems of
51 and 2 of P.D. 1529, the act of registration is the companies and establishments with limitations
operative act to convey or affect the land insofar as [R.A. 4917]
third persons are concerned [Du v. Stronghold 4.   laborer’s wages except for debts incurred for food,
Insurance Co. Inc., G.R. No. 156580 (2004)] shelter, clothing and medical attendance [Art.
1708, CC]
4.  P roperties Exempt from 5.   benefit payments from SSS [Sec. 16, R.A. 1161, as
amended]
Execution
Exception: No article or species of property mentioned
General rule: Except as otherwise expressly provided by in Sec. 13, Rule 39 (enumerated above) shall be
law, the following property, and no other, shall be exempt from execution issued upon a
exempt from execution a.   judgment recovered for its price or
a.   The judgment obligor’s family home as provided b.   judgment of foreclosure of a mortgage thereon
by law, or the homestead in which he resides, and [Sec. 13, Rule 39]
land necessarily used in connection therewith
b.   Ordinary tools and implements personally used The exemptions must be claimed, otherwise they are
by him in his trade, employment, or livelihood deemed waived. It is not the duty of the sheriff to set
c.   Three horses, or three cows, or three carabaos, or off the exceptions on his own initiative [Herrera v.
other beasts of burden, such as the judgment Mcmicking, G.R. No. L-5329 (1909)]
obligor may select necessarily used by him in his
ordinary occupation
d.   His necessary clothing and articles for ordinary
5.  P roceedings Where
personal use, excluding jewelry Property Claimed by Third
e.   Household furniture and utensils necessary for
house-keeping, and used for that purpose by the
Persons
judgment obligor and his family, such as the

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Sec. 16, Rule 39 and other provisions providing a mode Effect of third-party claim
for recovering property alleged to have been The officer shall not be bound to keep the property,
wrongfully taken by sheriff pursuant to a writ of unless such judgment obligee, on demand of the
execution or other process, refer to a stranger to an officer, files a bond approved by the court to indemnify
action [Tillson v. CA, G.R. No. 89870 (1991)] the third-party claimant in a sum not less than the
value of the property levied on [Sec. 16, Rule 39]
Remedies of third-party claimant
a.   Summary hearing before the court which SUMMARY HEARING BEFORE COURT
authorized the execution AUTHORIZING EXECUTION
b.   “Terceria” or third-party claim filed with the sheriff
[Sec. 16, Rule 39] A third-person whose property was seized by a sheriff
c.   Action for damages on the bond posted by the to answer for an obligation of a judgment debtor may
judgment creditor invoke the supervisory power of the court which
d.   Independent Reivindicatory action authorized such execution [Sy v. Discaya, G.R. No.
The aforementioned are cumulative remedies and 86301 (1990)]
may be resorted to by a third-party claimant
independently of or separately from and without need Procedure
of availing of the others [Sy v. Discaya, G.R. No. 86301 a.   Claimant files application
(1990)] b.   Court conducts summary hearing
c.   The court may command that the property be
For a third-party claim to be sufficient released from the mistaken levy and restored to
a.   Must be filed by a person other than the rightful owner or possessor
defendant or his agent, at any time before sale d.   If claimant’s proofs do not persuade, the claim will
b.   Must be under oath or supported by affidavit be denied by the court
stating the claimant’s title to, or right of The court determination is limited only to a
possession of, the property, and grounds therefor determination of whether the sheriff has acted rightly
c.   Must be served upon the officer making levy and or wrongly in performance of his duties. The court does
a copy thereof upon the judgment creditor not and cannot pass upon the question of title.
[Sec 16, Rule 39] [Sy v. Discaya, G.R. No. 86301 (1990)]

On spouses TERCERIA
A spouse who was not a party to the suit but whose
conjugal property is being executed because the other Independent of the foregoing, a third-party claimant
spouse is the judgment obligor is not considered a may also avail of the remedy of terceria provided in
stranger to the suit and cannot file a separate action now Sec. 16, Rule 39 [Sy v. Discaya, G.R. No. 86301
to question the execution since they could have easily (1990)]
questioned the execution in the main case itself [1
Regalado 501, 2010 Ed.] Procedure and bond
a.   Claimant serves on the officer making levy an
The institution of a separate action was allowed when affidavit of his title and a copy thereof to judgment
the property was the exclusive or paraphernal creditor
property of a spouse who was not a party to the case b.   Officer shall not be bound to keep property unless
the judgment wherein was sought to be executed. In such judgment obligee, on demand of the officer,
such a situation, the aggrieved spouse was deemed to files a bond approved by the court to indemnify
be a stranger to that main action [Ching v. CA, G.R. No. the third-party claimant in a sum not less than the
118830 (2003)] value of the property levied on. In case of
disagreement as to such value, the same shall be
When to file determined by the court issuing the writ of
Any time, as long as the sheriff has the possession of execution.
the property levied upon, or before the property shall c.   No claim for damages for the taking or keeping of
have been sold under execution. the property may be enforced against the bond
unless the action therefor is filed within 120 days
Note: This applies only with terceria. For independent from the date of the filing of the bond.
reinvidicatory actions, the third-party may make the d.   The officer shall not be liable for damages for the
claim before the action prescribes [Prof. Avena] taking or keeping of the property, to any third-
party claimant if such bond is filed.

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e.   When the writ of execution is issued in favor of the If the claim is filed under Sec. 16, Rule 39, it must be
Republic of the Philippines, or any officer duly filed in a separate action instituted for the purpose.
representing it, the filing of such bond shall not be Intervention is no longer allowed since judgment has
required, and in case the sheriff or levying officer already been rendered. [1 Regalado 500-501, 2010
is sued for damages as a result of the levy, he shall Ed.]
be represented by the Solicitor General and if held
liable therefor, the actual damages adjudged by If it is filed under Sec. 14, Rule 57 (Attachment) or
the court shall be paid by the National Treasurer under Sec. 7, Rule 60 (Replevin), the claim may be
out of such funds as may be appropriated for the litigated in the same action involved or in a separate
purpose. suit. Intervention is allowed. [1 Regalado 501, 2010
[Sec. 16, Rule 39] Ed.]

The right of a third-party claimant to file a terceria is The reason for the difference is that the judgment in
founded on his title or right of possession. Corollary the case subject of Sec. 16, Rule 39 is already final and
thereto, before the court can exercise its supervisory executory, while Rules 57 and 60 involve actions still
power to direct the release of the property mistakenly pending in the trial court [1 Regalado 501, 2010 Ed.]
levied and the restoration thereof to its rightful owner,
the claimant must first unmistakably establish his
ownership or right of possession thereon [Villasi v.
6.  R ules on Redemption
Garcia, G.R. No. 190106 (2014)]
When available
REIVINDICATORY ACTION Only for real property, since nothing in the ROC
provides for redemption of personal property [Sec. 27,
Nothing contained in Sec. 16, Rule 39 shall prevent Rule 39]
such claimant or any third person from vindicating his
claim to the property in a separate action, or prevent The purchaser and judgment debtor may agree that
the judgment obligee from claiming damages in the the period of redemption be shortened from the
same or a separate action against a third-party registration of the certificate of sale. In which case, the
claimant who filed a frivolous or plainly spurious claim the statutory period for legal redemption was
[Sec. 16, Rule 39]. converted into one of conventional redemption and
the period binding on them is that agreed upon [Lazo
The aforesaid remedies are nevertheless without v. Republic Surety & Insurance Co. (1970)]
prejudice to any proper action that third-party
claimant may file to vindicate his claim over the Who may redeem
property. This action is separate and independent [Sy a.   Judgment obligor, or his successor in interest in
v. Discaya, G.R. No. 86301 (1990)] the whole or any part of the property
b.   A creditor having a lien by virtue of an attachment,
Procedure judgment or mortgage on the property sold, or on
a.   He must institute an action, distinct and separate some part thereof, subsequent to the lien under
from that which the judgment is being enforced, which the property was sold. Such redeeming
with the court of competent jurisdiction creditor is termed a redemptioner.
b.   No need to file a claim in the court which issued a [Sec. 27, Rule 39]
writ. The latter is not a condition sine qua non for
the former. Note: If the lien of the creditor is prior to the judgment
c.   In such proper action, validity and sufficiency of under which the property was sold, he is not a
title of claimant will be resolved. redemptioner and therefore cannot redeem property [1
d.   A writ of preliminary injunction against sheriff Regalado 512, 2010 Ed.]
may be issued
[Sy v. Discaya, G.R. No. 86301 (1990)] Proof required of redemptioner
A redemptioner must produce to the officer, or person
from whom he seeks to redeem, and serve with his
a.   In Relation to Third Party notice to the officer
Claim in Attachment and a.   a copy of the judgment or final order under which
he claims the right to redeem, certified by the
Replevin clerk of the court wherein the judgment or final
order is entered; or,
b.   if he redeems upon a mortgage or other lien,

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1.   a memorandum of the record thereof, 1.   AMOUNT paid on last redemption

certified by the registrar of deeds; or an 2.   2% INTEREST thereon
original or certified copy of any assignment 3.   Any amount of ASSESSMENTS OR TAXES
necessary to establish his claim; and which purchaser may have paid after
2.   an affidavit executed by him or his agent, purchase as well as interest on such last
showing the amount then actually due on the named amount at the same rate
lien 4.   Amount of any LIENS held by said last
[Sec. 30, Rule 39] redemptioner prior to his own, also with
interest
If the lien of the creditor is prior to the judgment under [Sec. 28, Rule 39]
which the property was sold:
a.   He is not a redemptioner; If redemption is made by the judgment obligor
b.   He cannot redeem since his interests in his lien are a.   No further redemption is allowed
fully protected. Any purchaser at a public auction b.   He is restored to his estate
takes the same subject to such prior lien which he [Sec. 29, Rule 39]
has to satisfy
[1 Regalado 512, 2010 Ed.] When a judgment debtor redeems the property, what
is effected is the elimination of the lien created by the
When redemption can be made levy on attachment or judgment on the registration of
Who When mortgage thereon. From that moment, there shall be
Within 1 year from the no further redemption. Note that he never lost
By the JUDGMENT ownership so there is no recovery of ownership [1
date of registration of
OBLIGOR Regalado 513, 2010 Ed.]
the certificate of sale
Within 1 year from the
By FIRST Payment of redemption price may be made to the:
date of registration of
REDEMPTIONER a.   Purchaser or redemptioner, or
the certificate of sale
BY ALL SUBSEQUENT Within 60 days from b.   For him to the officer who made the sale
REDEMPTIONERS last redemption [Sec. 29, Rule 39]
[Sec. 28, Rule 39]
Duties upon redemption
Judgment obligor shall have the entire period of one a.   The person to whom the redemption payment is
year from date of registration of sale to redeem the made must execute and deliver to him a certificate
property [Sec. 33, Rule 39] of redemption acknowledged before a notary
public or other officer authorized to take
If the judgment obligor redeems, no further acknowledgments of conveyances of real
redemption shall, be allowed and he is restored to his property.
estate [Sec. 29, Rule 39] b.   Such certificate must be filed and recorded in the
registry of deeds of the place in which the property
Note: There is no extension or interruption of is situated, and the registrar of deeds must note
redemption period [See Sec. 28, Rule 39] the record thereof on the margin of the record of
the certificate of sale.
Redemption price [Sec. 29, Rule 39]
a.   By the Judgment Debtor or First Redemptioner:
1.   Purchase PRICE RIGHTS PENDING REDEMPTION
2.   1% INTEREST thereon up to time of
redemption Right of judgment obligee pending redemption
3.   Any amount of ASSESSMENTS OR TAXES Apply for injunction to restrain the commission of
which purchaser may have paid after waste on the property [Sec. 31, Rule 39]
purchase and interest on such last named
amount at the same rate It is not waste for a person in possession of the
4.   If purchaser is also a creditor having a PRIOR property at the time of the sale, or entitled to
LIEN to that of redemptioner, other than the possession afterwards, during the period allowed for
judgment under which such purchase was redemption, to
made, the AMOUNT of such OTHER LIEN, a.   continue to use it in the same manner in which it
also with interest was previously used
b.   By all Subsequent Redemptioners b.   use it in the ordinary course of husbandry, or

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c.   make the necessary repairs to buildings thereon thereof given, and the time for redemption
while he occupies the property has expired
[Sec. 31, Rule 39] 2.   The deed shall be executed by the officer
making the sale or by his successor in office,
Expiration of period to redeem and in the latter case shall have the same
a.   If no redemption be made within 1 year from the validity as though the officer making the sale
date of the registration of the certificate of sale, had continued in office and executed it.
the purchaser is entitled to a conveyance and 3.   Under the expiration of the right of
possession of the property; or, redemption, the purchaser or redemptioner
b.   If so redeemed whenever 60 days have elapsed shall be substituted to and acquire all the
and no other redemption has been made, and rights, title, interest and claim of the
notice thereof given, and the time for redemption judgment obligor to the property as of the
has expired, the last redemptioner is entitled to time of the levy.
the conveyance and possession [Sec. 33, Rule 39]
Under the expiration of the right of redemption, the
purchaser or redemptioner shall be substituted to and Note: Hence, the certificate of sale of real property
acquire all the rights, title, interest and claim of the does not confer any right to the possession, much less
judgment obligor to the property as of the time of the the ownership, of the real property purchased. It is the
levy. The possession of the property shall be given to deed of sale executed by the sheriff at the expiration
the purchaser or last redemptioner by the same officer of the period of redemption which entitles the
unless a third party is actually holding the property purchaser to possession of the property sold [1
adversely to the judgment obligor. Regalado 508, 2010 Ed.]
[Sec. 33, Rule 39]
Recovery of purchase price if sale not effective
Two documents which the sheriff executes in case of a.   If the purchaser of real property sold on execution,
real property or his successor in interest,
a.   Certificate of sale 1.   fails to recover the possession thereof, or
1.   Upon a sale of real property, the officer must 2.   is evicted therefrom, in consequence of
give to the purchaser a certificate of sale irregularities in the proceedings concerning
containing: the sale, or
i.   A particular description of the real b.   because the judgment has been reserved or set
property sold; aside, or
ii.   The price paid for each distinct lot or c.   because the property sold was exempt from
parcel; execution, or
iii.   The whole price paid by him; d.   because a third person has vindicated his claim, to
iv.   A statement that the right of the property, he may on motion
redemption expires one year from the 1.   in the same action or in a separate action
date of the registration of the recover from the judgment obligee the price
certificate of sale paid, with interest, or so much thereof as has
2.   Such certificate must be registered in the not been delivered to the judgment obligor;
registry of deeds of the place where the or
property is situated 2.   have the original judgment revived in his
[Sec. 25, Rule 39] name for the whole price with interest, or so
3.   From registration of said certificate, the one much thereof as has been delivered to the
year redemption period starts [Sec. 28, Rule judgment obligor.
39] The judgment so revived shall have the same force and
4.   Certificate of sale after execution sale is effect as an original judgment would have as of the
merely a memorial of the fact of sale and does date of the revival and no more.
not operate as conveyance [1 Regalado 508, [Sec. 34, Rule 39]
2010 Ed.]
b.   Deed of Conveyance Note: A purchaser’s right of possession is recognized
1.   If no redemption be made within one year only as against the judgment debtor and his
from the date of the registration of the successor-in-interest. It is not so against persons
certificate of sale; or, if so redeemed whose right of possession is adverse. When a third
whenever 60 days have elapsed and no other party is in possession of the property purchased, the
redemption has been made, and notice possession is presumed to be based on just title , “a
presumption which may be overcome by the purchaser

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in a judicial proceeding for recovery of the property judgment remains unsatisfied, in whole or in part,
[Villanueva v. Cherdan Lending Investors Corp., G.R. and
No. 177881 (2010)] b.   Upon proof to the satisfaction of the court which
issued the writ, that a person, corporation, or
other juridical entity has property of such
7.  Examination of Judgment judgment obligor or is indebted to him
Obligor When Judgment is [Sec. 37, Rule 39]
Unsatisfied Procedure; effect
a.   The court may, by an order, require such person,
When applicable: When the return of a writ of corporation, or other juridical entity, or any officer
execution issued against property of a judgment or member thereof, to appear before the court or
obligor, or any one of several obligors in the same a commissioner appointed by it, at a time and
judgment, shows that the judgment remains place within the province or city where such
unsatisfied, in whole or in part, debtor resides or is found, and be examined
a.   Procedure: The judgment obligee, at any time concerning the same.
after such return is made, shall be entitled to an b.   The service of the order shall bind all credits due
order from the court which rendered the said the judgment obligor and all money and property
judgment, requiring such judgment obligor to of the judgment obligor in the possession or in the
appear and be examined concerning his property control of such person, corporation, or juridical
and income before such court or before a entity from the time of service, and
commissioner appointed by it, at a specified time c.   The court may also require notice of such
and place; and proceedings may thereupon be proceedings to be given to any party to the action
had for the application of the property and income in such manner as it may deem proper.
of the judgment obligor towards the satisfactions [Sec. 37, Rule 39]
of the judgment.
b.   Limitations: No judgment obligor shall be Note: This is not applicable if there is no issue
required to appear before a court or commissioner concerning the indebtedness of the bank and there is
outside the province or city in which such obligor no denial by the depositor of the existence of the
resides or is found deposit with the bank which is considered a credit in
[Sec. 36, Rule 39] favor of the depositor against the bank [PCIB v. CA,
G.R. No. 84526 (1991)]
A judgment obligor may no longer be examined after
the lapse of the five years within which a judgment When alleged obligor denies debt or claims property
may be enforced by motion [Umali v. Coquia, G.R. No. The court may
L-46303 (1988)] a.   authorize, by an order made to that effect, the
judgment obligee to institute an action against
Order for payment in fixed monthly installments such person or corporation for the recovery of such
a.   If, upon investigation of his current income and interest or debt,
expenses, it appears that the earnings of the b.   forbid a transfer or other disposition of such
judgment obligor for his personal services are interest or debt within 120 days from notice of the
more than necessary for the support of his family, order, and
the court may order that he pay the judgment in c.   may punish disobedience of such order as for
fixed monthly installments, and contempt
b.   Upon his failure to pay any such installment when [Sec. 43, Rule 39]
due without good excuse, may punish him for
indirect contempt. Where the writ of execution is unsatisfied, the remedy
[Sec. 40, Rule 39] to enforce it is Secs. 38-39, and not a complaint for
damages [Phil. Transmarine Carriers v. CA, G.R. No.
8.  E xamination of Obligor of 122346 (2000)]

Judgment Obligor OTHER REMEDIES

When applicable Order for application of property or income

a.   When the return of a writ of execution against the The court may order any property of the judgment
property of a judgment obligor shows that the obligor, or money due him, not exempt from
execution, in the hands of either himself or another

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

person, or of a corporation or other juridical entity, to 1.   The judgment or final order is a bar to the
be applied to the satisfaction of the judgment, subject prosecution of a subsequent action based on
to any prior rights over such property [Sec. 40, Rule 39] the same claim or cause of action
2.   Described by Sec. 47, pars. (a) and (b), Rule
After a writ of execution against property has been 39
issued, a person indebted to the judgment obligor may 3.   Also known as “Estoppel by Verdict”
pay to the sheriff holding the writ of execution the b.   Conclusiveness of judgment
amount of his debt or so much thereof as may be 1.   The judgment or final order precludes the
necessary to satisfy the judgment, in the manner relitigation of particular issues or facts on a
prescribed in Sec. 9, Rule 39 and the sheriffs receipt different demand or cause of action
shall be a sufficient discharge for the amount so paid 2.   Described by Sec. 47, par. (c), Rule 39
or directed to be credited by the judgment obligee on 3.   Also known as the Rule of Auter Action
the execution [Sec. 39, Rule 39] Pendant
[1 Riano 541, 2011 Ed.; 1 Regalado 529, 2010 Ed.]
Appointment of receiver
The court may appoint a receiver of the property of the Bar by former Conclusiveness of
judgment obligor; and it may also forbid a transfer or judgment judgment
other disposition of, or any interference with, the There is only identity of
property of the judgment obligor not exempt from parties and subject
execution [Sec. 41, Rule 39] Requires identity of
matter
parties, subject matter,
If it appears that the judgment obligor has an interest and causes of action
Cause of action are
in real estate in the place in which proceedings are different
had, as mortgagor or mortgagee or otherwise, and his Absolute Bar to:
interest therein can be ascertained without (a) all matters directly Conclusive as to matters
controversy, the receiver may be ordered to sell and adjudged; and directly adjudged and
convey such real estate or the interest of the obligor (b) those that might actually litigated
therein; and such sale shall be conducted in all have been adjudged
respects in the same manner as is provided for the sale Claim Preclusion Issue Preclusion
of real estate upon execution, and the proceedings [1 Riano 683-684, 2011 Ed.]
thereon shall be approved by the court before the
execution of the deed [Sec. 42, Rule 39] The dismissal by the SC of a petition for review on
certiorari through a minute resolution is an
9.  E ffect of Judgment or adjudication on the merits and constitutes a bar to
relitigation under res judicata [Sy v. Tuvera, G.R. No.
Final Orders 76639 (1987)]

Immutability of judgments The rule of res judicata applies to final decisions of

A judgment that has acquired finality becomes quasi-judicial agencies and to judgments rendered in
immutable and unalterable, and may no longer be probate proceedings [1 Regalado 534, 2010 Ed.]
modified in any respect, even if the modification is
meant to correct erroneous conclusions of fact and In a land registration proceeding filed by the plaintiff
law, and whether it be made by the court that after he had been declared the owner of the land
rendered it or by the Highest Court of the land [PNB v. involved in a civil case, the opposition thereto filed by
Spouses Maranon, G.R. No. 189316 (2013)] the defendant who lost in said civil case is barred in the
land registration proceeding under the doctrine of res
Rationale judicata. All the elements are present and it is of no
a.   to avoid delay in the administration of justice, and moment that the court in the civil case was in the
procedurally to make orderly the discharge of exercise of general jurisdiction and in the land
judicial business registration case, in the exercise of special or limited
b.   to put an end to judicial controversies at the risk jurisdiction [Valiso v. Plan, G.R. No. 55152 (1986)]
of occasional errors
[PCI Leasing and Finance, Inc. v. Milan, G.R. No. 151215 BAR BY FORMER JUDGMENT
(2010)] The judgment or decree of a court of competent
jurisdiction on the merits concludes the parties and
Dual aspect of res judicata their privies to the litigation and constitutes a bar to a
a.   Bar by former judgment

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

new action or suit involving the same cause of action b.   Their successors in interest, by title subsequent to
either before the same or any other tribunal [Machoca the commencement of the action or special
v. Cariaga, G.R. No. 75109-10 (1989)] proceeding, litigating for the same thing and
under the same title and in the same capacity
Requisites [Sec. 47(b), Rule 39]
a.   A FINAL judgment or order
b.   JURISDICTION over the subject matter and the CONCLUSIVENESS OF JUDGMENT
parties by the court rendering it Any right, fact or matter in issue directly adjudicated
c.   Judgment UPON MERITS or necessarily involved in the determination of an
d.   Between the TWO CASES, there is: action before a competent court in which a judgment
1.   IDENTITY OF PARTIES or decree is rendered on the merits is conclusively
2.   IDENTITY OF SUBJECT MATTER settled by the judgment therein and cannot again be
3.   IDENTITY OF CAUSE OF ACTION litigated between the parties and their privies whether
[1 Riano 430, 2011 Ed.] or not the claim or demand, purpose or subject matter
of the two suits is the same [Machoca v. Cariaga, G.R.
General rule: For res judicata to apply, trial must be No. 75109-10 (1989)]
made on the merits of the case [1 Regalado 530, 2010
Ed.] Requisites
a.   A FINAL judgment or order
Exception: Sec. 3, Rule 17 of ROC: If plaintiff fails to b.   JURISDICTION over the subject matter and the
appear at the time of the trial, or to prosecute his parties by the court rendering it
action for an unreasonable length of time, or to c.   Judgment UPON MERITS
comply with these rules or any order of the court, the d.   Between the TWO CASES, there is:
action may be dismissed upon motion of the 1.   IDENTITY OF PARTIES
defendant or upon the court's own motion. This 2.   IDENTITY OF ISSUES
dismissal shall have the effect of an adjudication upon [1 Regalado 529-531, 2010 Ed.]
the merits, unless otherwise provided by court
[Development Bank v. CA, G.R. No. 110203 (2001)] Res judicata, law of the case, and stare decisis
a.   Stare decisis - When the SC has laid down a
Res judicata in judgments in rem principle of law applicable to a certain state of
Judgments or final facts, it will adhere to that principle and apply to
Conclusive as to
order it all future cases where the facts are substantially
Against a specific thing Title of the thing the same [1 Riano 533, 2011 Ed.]
The will or b.   Law of the case - Whatever is once irrevocably
administration. established as the controlling legal rule or
However, the probate decision between the same parties in the case
Probate of a will or of a will or granting of continues to be the law of the case whether
administration of the letters of correct on general principles or not, so long as the
estate of a deceased administration shall facts on which such decision was predicated
person only be prima facie continue to be the facts of the case before the
evidence of the death court [1 Riano 544, 2011 Ed.]
of the testator or
intestate; Law of the
Res judicata Stare decisis
in respect to the case
personal, political, or The parties and Once a point of
Condition, status or Operates
legal condition or status the causes of law has been
relationship of the only in the
of a particular person or action in both established by
person, particular
his relationship to actions are the court, that
and single
another identical or point of law
case where
[1 Riano 542, 2011 Ed.] substantially will, generally,
the ruling
the same [1 be followed by
arises and is
Res judicata in judgments in personam Regalado 530, the same court
not carried
In other cases, the judgment or final order is, with 2010 Ed., citing and by all
into other
respect to the matter directly adjudged or as to any Yusingco v.Ong courts of lower
cases as a
other matter that could have been missed in relation Hing Lian, G.R. rank in
precedent
thereto, conclusive between No. L-26523 subsequent
a.   The parties and (1971); Vergara cases where

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

v. Roque, G.R. The ruling the same legal of a right through an act or omission). The matter left
No. L-32984 adhered to in issue is raised for proof is the foreign judgment itself, not the facts
(1977)] the particular [CDCP Mining from which it prescinds [1 Regalado 536, 2010 Ed.]
case need not Corp. v. CIR,
be followed G.R. No. 122213 Effect of foreign judgments
as a (2005)] Nature Effect
precedent in Judgment is
subsequent In judgments against a
CONCLUSIVE upon the
litigation specific thing (in rem)
title to the thing
between Judgment is
other parties PRESUMPTIVE evidence
[1 Riano 544, In judgments against a of a right as between
2011 Ed] person (in personam) parties and their
successors-in-interest
10.  Enforcement and Effect of [Sec. 48, Rule 39]
by a subsequent title

Foreign Judgment or
In both cases, judgment may be repelled by evidence
Final Orders of
a.   Want of jurisdiction
A valid judgment rendered by a foreign tribunal may b.   Want of notice
be recognized insofar as the immediate parties the c.   Collusion
underlying cause of action are concerned so long as it d.   Fraud, or
is convincingly shown that: e.   Clear mistake of law or fact
a.   There has been an opportunity for a fair hearing [Sec. 48, Rule 39]
before a court of competent jurisdiction
b.   Trial upon registered proceedings has been A foreign judgment is presumed to be valid and
conducted binding in the country from which it comes, until a
c.   There is nothing to indicate either a prejudice in contrary showing, on the basis of a presumption of
court and in the system of laws under which it is regularity of proceedings and the giving of due notice
sitting or fraud in procuring the judgment in the foreign forum [Asiavest Merchant Bankers v CA,
[Philippine Aluminum v. Fasgi Enterprises, G.R. No. G.R. No 110263 (2001)]
137378 (2000)]
Before our courts can give the effect of res judicata to
Such limitation on the review of foreign judgment is a foreign judgment, it must be shown that the parties
adopted in all legal systems to avoid repetitive opposed to the judgment had been given ample
litigation on claims and issues, prevent harassment of opportunity to do so on grounds under Section 48 of
the parties and avoid undue imposition on the courts. Rule 39 of the Rules of Court [Roehr v. Rodriguez, G.R.
[1 Regalado 536, 2010 Ed.] No. 142480 (2003)]
This policy of preclusion rests on principles of comity,
utility and convenience of nations [1 Regalado 536,
2010 Ed., see also Raytheon International, Inc. v.
Rouzie, Jr., G.R. No. 162894 (2008)]

As a generally accepted principle of international law,

it is part of the law of the Philippines by virtue of the
Incorporation Clause [Sec. 2, Art. II, 1987 Constitution,
1 Regalado 536, 2010 Ed. citing Raytheon v Rouzie,
G.R. No. 162894 (2008)]

The civil action for enforcement of a foreign judgment

is one incapable of pecuniary estimation. Although the
foreign judgment may result in recovery of money or
property, the cause of action and subject matter of the
civil action is the foreign judgment itself (and not, as
in an ordinary action for monetary relief, the violation

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

IV.   PROVISIONAL e.   Support pendente lite [Rule 61]

REMEDIES Notes:
a.   The enumeration above is not exclusive. The
court may invoke its equity jurisdiction and order
  General Matters the appropriate reliefs during the pendency of an
action [Reyes v. Lim, G.R. No. 134241 (2003)]
b.   Support pendente lite is not part of the 2018 Bar
1.   Nature of Provisional syllabus.

Remedies 2.  J urisdiction over

Nature of provisional remedies Provisional Remedies
Provisional remedies are writs and processes available
during the pendency of the action which may be The court which grants or issues a provisional remedy
resorted to by a litigant for the preservation or is the court which has jurisdiction over the main action
protection of their rights and interests therein pending [1 Regalado 685, 2010 Ed.]
rendition, and for purposes of the ultimate effects, of
a final judgment in the case; also known as ancillary or Inferior courts may also grant all appropriate
auxiliary remedies.[1 Regalado 684, 2010 Ed.] provisional remedies in an action pending with it and
is within its jurisdiction [Sec. 33 (1), BP 129]
They are temporary, auxiliary, and ancillary remedies
available to a litigant for the protection and Enforcement of writs
preservation of his rights while the main action is General rule: The enforcement of said writs outside the
pending. They are writs and processes which are not territorial jurisdiction of the inferior court is allowable
main actions and are dependent for their application [1 Regalado 685, 2010 Ed.]
on the existence of a principal action [1 Regalado 684,
2010 Ed.] What is required is merely that the sheriff or deputy
sheriff must seek the assistance of the sheriff of the
They are applied to a pending litigation, for the place where the writ is to be executed [Administrative
purpose of securing the judgment or preserving the Circular No. 12]
status quo, and in some cases after judgment, for the
purpose of preserving or disposing of the subject Exceptions: In cases of preliminary injunction and
matter [Calo v. Roldan, G.R. No. L-252 (1946)] injunction, the rule is that the injunction can only be
enforced within the territorial jurisdiction of that
Orders granting or denying provisional remedies are particular court [Sec. 21, B.P. 129]
merely interlocutory and cannot be the subject of an
appeal. They may however be challenged before a
superior court through a petition for certiorari under
Rule 65 [Pahila-Garrido v. Tortogo, et. al., G.R. No.
156358 (2002)]

Purpose of provisional remedies

a.   To preserve or protect litigants’ rights or interests
during the pendency of the principal action;
b.   To secure the judgment;
c.   To preserve the status quo of the the things
subject to the action or the relation between the
parties; and
d.   To preserve the subject matter of the action.
[1 Regalado 684, 2010 Ed.]

Kinds of provisional remedies

a.   Preliminary attachment [Rule 57]
b.   Preliminary injunction [Rule 58]
c.   Receivership [Rule 59]
d.   Replevin [Rule 60]

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  Preliminary Attachment a cause of action arising from law, contract, quasi-

contract, delict or quasi-delict against a party who
is about to depart from the Philippines with intent
The provisional remedy in virtue of which a plaintiff or to defraud his creditors
other party may, at the commencement of the action b.   For money or property embezzled or fraudulently
or at any time thereafter, have the property of the misapplied or converted to his own use by a public
adverse party taken into the custody of the court as officer, or an officer of a corporation, or an
security for the satisfaction of any judgment that may attorney, factor, broker, agent, or clerk, in the
be recovered [Davao Light v. CA, G.R. No. 93262 course of his employment as such, or by any other
(1991)] person in a fiduciary capacity, or for a willful
violation of duty
Purposes c.   To recover the possession of property unjustly or
1.   To seize the property of the debtor in advance of fraudulently taken, detained or converted, when
final judgment and to hold it for purposes of the property, or any part thereof, has been
satisfying said judgment, as in the grounds stated concealed, removed, or disposed of to prevent its
in Sec. 1(a) to (e), Rule 57, or being found or taken by the applicant or an
2.   To acquire jurisdiction over the action by actual or authorized person
constructive seizure of the property in those d.   Against a party who has been guilty of a fraud in
instances where personal or substituted service of contracting the debt or incurring the obligation
summons on the defendant cannot be effected, as upon which the action is brought, or in the
in Sec. 1(f), Rule 57 performance thereof
[PCIB v. Alejandro, G.R. No. 175587 (2007)] e.   Against a party who has removed or disposed of
his property, or is about to do so, with intent to
Kinds of attachment as to availability and effects defraud his creditors
1.   Preliminary attachment - one issued at the f.   Against a party who does not reside and is not
commencement of the action or at any time found in the Philippines, or on whom summons
before entry of the judgment as security for the may be served by publication.
satisfaction of any judgment that may be [Sec. 1, Rule 57]
recovered in the cases provided for by the
rules;[Sec 1, Rule 57] Notes:
2.   Final or levy on execution - writ issued by the a.   These grounds are exclusive [PCIB v. Alejandro,
court after judgment by which the property of the G.R. 175587 (2007); Aboitiz v. Cotabato Bus Line
judgment obligor is taken into custody of the court Co. G.R. No. L-35990 (1981)]
before the sale of the property on execution before b.   Item (c) above makes no distinction between real
the satisfaction of a final judgment [Sec. 8, Rule and personal property [Riano]
39] c.   Item (d) above
[1 Regalado 691, 2010 Ed.] 1.   A debt is fraudulently contracted if at the time
of contracting it the debtor has a
Kinds of attachment as to form and procedure of preconceived plan or intention not to pay.
attachment: Fraudulent intent cannot be inferred from the
1.   Regular form of attachment – attachment which debtor’s inability to pay [PCL Industries
refers to attachment of corporeal property in Manufacturing v. CA, G.R. No. 147970 (2006)]
possession of the party involved [1 Regalado 691, 2.   The delivery of counterfeit money or
2010 Ed.] knowingly issuing a bounced are considered
2.   Garnishment - a kind of attachment in which the as grounds under this rule [Riano]
plaintiff seeks to subject either the property of the d.   Item (f) above: The persons on whom summons
defendant in the hands of a third person called may be served by publication
garnishee, to his claim or the money which said 1.   Residents defendants whose identity or
third person owes the defendant; [Virata v. whose whereabouts are unknown [Sec. 14,
Aquino, G.R. L-35027 (1973)]. Rule 14]
2.   Resident defendants who are temporarily out
1.   Grounds for issuance of the country [Sec. 16, Rule 14]

In an action
a.   For the recovery of a specified amount of money
or damages, other than moral and exemplary, on

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

2.   May only be signed and issued either by the

2.  R equisites for Issuance clerk of court or the presiding judge
c.   The writ is implemented
a.   The case must be any of those where preliminary [1 Regalado 692, 2010 Ed.]
attachment is proper [Sec. 1, Rule 57]
b.   Applicant must file a motion with notice and Note: For the initial two stages, it is not necessary that
hearing by the court in which the action is jurisdiction over person of defendant be first obtained.
pending, or by the CA or the SC (but an order of However, once implementation of writ commences,
attachment may be issued ex parte [Sec. 2, Rule court must have acquired jurisdiction over the
57] defendant for without such jurisdiction, the court has
c.   Applicant, or some other who personally knows no power or authority to act. Therefore it is required
the facts, must file an affidavit showing required that when the proper officer commences
facts (stated below) [Sec. 3, Rule 57] implementation of the writ of attachment, service of
d.   Applicant must post a bond executed to adverse summons should be simultaneously made [Cuartero v.
party in the amount fixed by the court in its order CA, G.R. No. 102448 (1992)]
granting the issuance of the writ [Sec. 3-4, Rule
57] Issuance of the order
a.   The order may be issued either
3.  Issuance and Contents of 1.   Ex parte, or
2.   Upon motion with notice and hearing
Order of Attachment; b.   The order is issued by the court in which the action
Affidavit and Bond is pending, or the CA, or the SC
[Sec. 2, Rule 57]
When applied for
a.   At the commencement of the action; or Contents of the order
b.   At any time before the entry of judgment It must
[Sec. 1, Rule 57] a.   Require the sheriff of the court to attach so much
of the property in the Philippines of the party
Who may apply against whom it is issued, not exempt from
It may be applied for by the plaintiff or any proper execution, as may be sufficient to satisfy the
party [Sec. 1, Rule 57] Any proper party includes a applicant’s demand
defendant who filed a counterclaim, cross-claim, or a b.   Fix the amount of deposit or bond, which may be
third party complaint [Sec. 1, Rule 3] the
1.   Amount sufficient to satisfy the applicant’s
Methods to procure preliminary attachment demand or
a.   Writ may be prayed for in the complaint itself 2.   Value of the property to be attached as stated
providing the allegations warranting its issuance by the applicant, exclusive of costs
[1 Regalado 690, 2010 Ed.] [Sec. 2, Rule 57]
b.   May be issued pursuant to a separate motion for
attachment whenever the writ is not prayed for in Affidavit and bond
the original complaint [Sec. 2, Rule 57] An order of attachment shall be granted only when it
appears by the affidavit of the applicant, or of some
Note: Where the judgment is already final and other person who personally knows the facts, that
executory, a motion for execution is the remedy, and a.   a sufficient cause of action exists,
not an application for preliminary attachment [1 b.   the case is one of those mentioned in Sec. 1, Rule
Regalado 690, 2010 Ed.] 57
c.   there is no other sufficient security for the claim
Three stages in the grant of preliminary attachment sought to be enforced by the action, and
a.   Court issues the order granting the application d.   the amount due to the applicant, or the value of
1.   The order granting the writ is based on the the property the possession of which he is entitled
motion filed by the party applying to recover, is as much as the sum for which the
2.   It can only be signed by the judge himself order is granted above all legal counterclaims.
b.   Writ of attachment issues pursuant to the order The affidavit, and the bond required by Sec. 4, must be
granting the writ duly filed with the court before the order issues.
1.   It is based on the order and shall contain the [Sec. 3, Rule 57]
details on the implementation of the order

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Construction of rules for issuance of writ the person is acquired by service of summons.
These are strictly construed against the applicant, Otherwise, the implementation is null and void [Riano]
such that if the requisites for its grant are not shown
to be all present, the court shall refrain from issuing it, Exceptions:
otherwise, the court which issues it acts in excess of its a.   Summons could not be served personally or by
jurisdiction [Wee v. Tankiansee, G.R. No. 171124, substituted service despite diligent efforts, or
(2008)] b.   Defendant is a resident of the Philippines
temporarily absent therefrom, or
A general averment in the affidavit is insufficient to c.   Defendant is a non-resident of the Philippines, or
support the issuance of the writ. In averring fraud d.   The action is in rem or quasi in rem.
under Sec. 1, Rule 57, the affidavit must contain [Sec. 5, Rule 57]
a.   such particulars as to how the fraud was
committed Attachment of the property of a non-resident in the
b.   statements of factual circumstances to show that Philippines allows an in personam action against a
respondent, at the time of contracting the non-resident to proceed even if jurisdiction over their
obligation, had a preconceived plan or intention person was not acquired, and it will be treated as
not to pay. though the proceeding was in the nature of an in rem
[Wee v. Tankiansee, G.R. No. 171124, (2008)] action [Mabanag v. Gallemore, G.R. No. L-825 (1948)]

Conditions of applicant’s bond

The party applying for the order will pay all the costs
5.  M anner of Attaching Real
which may be adjudged to the adverse party and all and Personal Property;
damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that the When Property Attached is
applicant was not entitled thereto [Sec. 4, Rule 57] Claimed by Third Persons
Moral and exemplary damages may only be recovered General rule: The sheriff enforcing the writ shall
where the attachment was alleged and proved to be without delay and with all reasonable diligence
malicious [Calderon v. IAC, et. al. G.R. No. 74696 attach, to await judgment and execution in the action,
(1987)] only so much of the property in the Philippines of the
party against whom the writ is issued, not exempt
The bond shall only be applied to all damages and from execution, as may be sufficient to satisfy the
costs sustained due to the attachment. It cannot applicant’s demand,
answer for those that do not arise by reason of the
attachment [Excellent Quality Apparel v. Visayan Surety Exception: The adverse party makes a deposit with the
& Insurance Corp., G.R. 21205 (2015)] court from which the writ is issued, or gives a counter-
bond executed to the applicant, in an amount equal to
Liability on the bond exists even if the attachment has the bond fixed by the court in the order of attachment
been dissolved, whether by the filing of a counter- or to the value of the property to be attached, exclusive
bond or by proof that the attachment was irregularly of costs
issued, as long as the court shall finally adjudge that [Sec. 5, Rule 57]
the attaching party was not entitled thereto [Calderon
v. IAC, et. al. G.R. No. 74696 (1987)] Attachment of specific kinds of property
a.   Real property, or growing crops thereon, or any
4.  R ule on Prior or interest therein, standing upon the record of the
registry of deeds of the province in the name of the
Contemporaneous Service party against whom attachment is issued, or not
of Summons appearing at all upon such records, or belonging
to the party against whom attachment is issued
General rule: Prior or contemporaneous service of and held by any other person, or standing on the
summons [Sec. 5, Rule 57] records of the registry of deeds in the name of any
other person,
A writ of attachment may be issued ex parte even 1.   By filing with the registry of deeds a copy of
before the summons is served upon the defendant but the order, together with a description of the
a writ may not be implemented until jurisdiction over property attached, and a notice that it is
attached, or that such real property and any

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interest therein held by or standing in the settled and served upon the heir, legatee or
name of such other person are attached, and devisee concerned.
by leaving a copy of such order, description, [Sec. 7, Rule 57]
and notice with the occupant of the property,
if any, or with such other person or his agent Attachment of property in custodia legis
if found within the province a.   A copy of the writ of attachment shall be filed with
2.   Where the property has been brought under the proper court or quasi-judicial agency, and
the operation of either the Land Registration b.   Notice of the attachment served upon the
Act or the Property Registration Decree, the custodian of such property.
notice shall contain a reference to the [Sec. 7, Rule 57]
number of the certificate of title, the volume
and page in the registration book where the A previously attached property may also be
certificate is registered, and the registered subsequently attached. But the first attachment shall
owner or owners thereof have priority over subsequent attachments [Riano]
3.   The registrar of deeds must index
attachments filed under this section in the Remedies against third-person claimants
names of the applicant, the adverse party, or A third person who has a claim to the property
the person by whom the property is held or in attached may avail of the following remedies:
whose name it stands in the records. If the a.   File terceria or third-party claim
attachment is not claimed on the entire area 1.   A third person makes an affidavit of his title
of the land covered by the certificate of title, a thereto, or right to the possession thereof,
description sufficiently accurate for the stating the grounds of such right or title, and
identification of the land or interest to be 2.   Such person serves such affidavit upon the
affected shall be included in the registration sheriff while the latter has possession of the
of such attachment attached property, and a copy thereof upon
b.   Personal property capable of manual delivery, the attaching party
by taking and safely keeping it in his custody, after [Sec. 14, Rule 57]
issuing the corresponding receipt therefor 3.   Substantially identical procedure as in
c.   Stocks or shares, or an interest in stocks or terceria in Sec. 16, Rule 39 [1 Regalado 712,
shares, of any corporation or company, by 2010 Ed.]
leaving with the president or managing agent b.   File an independent action to recover property
thereof, a copy of the writ, and a notice stating [Imani v. Metropolitan Bank & Trust Company, G.R.
that the stock or interest of the party against No.187023 (2010)]; or
whom the attachment is issued is attached in c.   File motion for intervention (available only before
pursuance of such writ judgment is rendered) [Sec 1, Rule 19]
d.   Debts and credits, including bank deposits, Note: The last method was allowed in the case of
financial interest, royalties, commissions and Gopiao v. Metropolitan Bank & Trust Co. [G.R. No.
other personal property not capable of manual 188931 (2014)]
delivery, by leaving with the person owing such
debts, or having in his possession or under his
control, such credits or other personal property, or
6.  D ischarge of Attachment
with his agent, a copy of the writ, and notice that and Counter-Bond
the debts owing by him to the party against whom
attachment is issued, and the credits and other Discharge of attachment and Counter-bond
personal property in his possession, or under his After a writ of attachment has been enforced, the party
control, belonging to said party, are attached in whose property has been attached, or the person
pursuance of such writ appearing on his behalf, may move for the discharge
e.   The interest of the party against whom of the attachment wholly or in part on the security
attachment is issued in property belonging to given [Sec. 12, Rule 57]
the estate of the decedent, whether as heir,
legatee, or devisee, by serving the executor or Ways of discharging attachment
administrator or other personal representative of a.   Counter-bond [Sec. 12, Rule 57]
the decedent with a copy of the writ and notice b.   Motion for discharge [Sec. 13, Rule 57]
that said interest is attached.
1.   A copy of said writ of attachment and of said Grounds for discharge
notice shall also be filed in the office of the a.   Debtor has posted a counter-bond or has made
clerk of the court in which said estate is being the requisite cash deposit [Sec. 12, Rule 57]

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b.   Attachment was improperly or irregularly issued irregularities in the issuance and service of the writ,
[Sec. 13, Rule 57] the attachment may still be quashed on the ground of
1.   As where there was no ground for such irregularities [Torres v. Satsatin, G.R. No. 166759
attachment, or (2009)]
2.   The affidavit and/or bond filed are defective
or insufficient [Sec .3, Rule 57] Claim for damages on account of improper,
c.   Judgment is rendered against attaching creditor irregular, or excessive attachment
[Sec. 19, Rule 57] a.   When to be filed
d.   Attachment is excessive; but the discharge shall a.   Before trial, or
be limited to the excess [Sec. 13, Rule 57] b.   Before appeal is perfected, or
e.   Property attached is exempt from execution c.   Before the judgment becomes executory
[1 Regalado 709, 2010 Ed.] b.   Requirements
1.   Due notice to the attaching party and his
Note: There is a difference between the bond for surety or sureties
issuance of writ and bond for lifting the writ. 2.   Notice must set forth the facts showing the
a.   Bond for issuance of writ [Sec. 4, Rule 57] – This is right of the party to damages and the amount
for damages by reason of the issuance of the writ thereof.
b.   Bond for lifting of writ [Sec. 5 and 12, Rule 57] – 3.   Damages may be awarded only after the
This is to secure the payment of the judgment to proper hearing, and shall be included in the
be recovered judgment on the main case.
[1 Regalado 709, 2010 Ed.] [Sec. 20, Rule 57]

Only the defendant or party whose property is

attached may move for its lifting. If the attachment is
7.  Satisfaction of Judgment
proper, the discharge should be by counter-bond Out of Property Attached
under Sec. 12 [KO Glass v. Valenzuela, G.R. No. L-
48756 (1982)] General rule: If judgment be recovered by the attaching
party and execution issue thereon, the sheriff may
Effect of dissolution on plaintiff’s attachment bond cause the judgment to be satisfied out of the
a.   Dissolution of preliminary attachment upon property attached, if it be sufficient for that purpose
security given, or a showing if its irregular in the following manner:
issuance, does not operate to discharge the a.   By paying to the judgment obligee the proceeds of
sureties on the attachment bond [Davao Light and all sales of perishable or other property sold in
Power Co. v. CA, G.R. No. 93262 (1991)] pursuance of the order of the court, or so much as
b.   That bond is executed to adverse party shall be necessary to satisfy the judgment
conditioned that the applicant will pay all the b.   If any balance remains due, by selling so much of
costs which may be adjudged to adverse party and the property, real or personal, as may be
all damages which he may sustain by reason of necessary to satisfy the balance, if enough for that
the attachment, if the court shall finally adjudge purpose remain in the sheriff’s hands, or in those
that applicant was not entitled thereto [Sec. 4, of the clerk of the court
Rule 57] c.   By collecting from all persons having in their
c.   Until that determination is made, as to applicant’s possession credits belonging to the judgment
entitlement to attachment, his bond must stand obligor, or owing debts to the latter at the time of
and cannot be withdrawn [Mindanao Savings & the attachment of such credits or debts, the
Loan Association Inc v. CA, G.R. No. 84481 (1989)] amount of such credits and debts as determined
by the court in the action, and stated in the
After procuring the dissolution of the attachment by judgment, and paying the proceeds of such
filing a counterbond, the attachment debtor is not collection over to the judgment obligee.
precluded from moving for the discharge of the [Sec. 15, Rule 57]
attachment on the ground of improper issuance
[Mindanao Savings & Loan Assoc. v. CA, G.R. No. Duration of an attachment lien
84481 (1989)] While the provisions of Rule 57 are silent on the length
of time within which an attachment lien shall continue
Filing a counter-bond is the only remedy to dissolve an to subsist after the rendition of a final judgment, the
attachment issued on the same ground as the main said lien continues until the debt is paid, or the sale is
cause of action [Metro, Inc. v. Laras Gift and Décor, Inc. had under execution issued on the judgment or until
G.R. No. 171741 (2009)] But where there are the judgment is satisfied, or the attachment

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

discharged or vacated in the same manner provided by

law [Lim v. Sps. Lazaro, G.R. No. 185734 (2013)]   Preliminary Injunction
Exception: Whenever it shall be made to appear to the 1.   Definitions and
court in which the action is pending, upon hearing with
notice to both parties, that the Differences: Preliminary
a.   Property attached is perishable, or
b.   Interests of all the parties to the action will be
Injunction and Temporary
subserved by the sale thereof, Restraining Order (TRO)
the court may order such property to be sold at public
auction in such manner as it may direct, and the Injunction
proceeds of such sale to be deposited in court to abide Injunction is a judicial writ, process, or proceeding
the judgment in the action. whereby a party is ordered to do or refrain from doing
[Sec. 11, Rule 57] a particular act [1 Regalado 719, 2010 Ed.]

In its customary usage, injunction is a judicial process

operating in personam [1 Regalado 719, 2010 Ed.]

Preliminary injunction
An order granted at any stage of an action or
proceeding prior to the judgment or final order,
requiring a party or a court, agency or a person to
refrain from a particular act or acts. It may also require
the performance of a particular act or acts, in which
case it shall be known as a preliminary mandatory
injunction [Sec. 1, Rule 58]

Injunction as main
Preliminary injunction
action
Ancillary; exists only as
part or incident of an
Independent action
independent action or
[Urbanes v. CA, G.R. No.
proceeding [Urbanes v.
117964 (2001)
CA, G.R. No. 117964
(2001)
Seeks a judgment Seeks to preserve the
embodying a final status quo until merits
injunction [Urbanes v. can be heard [Urbanes
CA, G.R. No. 117964 v. CA, G.R. No. 117964
(2001) (2001)
Assailed by petition for
Assailed by timely
certiorari (since it’s an
appeal (since it is a final
interlocutory order)
order) [Sec. 1, Rule 41]
[Sec. 1, Rule 41]

Purpose: To prevent future injury and maintain the

status quo (i.e. the last actual, peaceable, uncontested
status which preceded the pending controversy)
[Knecht v. CA, G.R. No. 56122 (1993)]

In cases of a mandatory injunction, the injunction

should not establish new relations between the
parties but merely re-establish the pre-existing
relationship between them [Power Sites and Signs Inc
v. United Neon, G.R. No. 163406 (2009)]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

May a preliminary injunction issue against acts already of the requisite bond, a writ of preliminary
consummated? injunction shall be issued.
General rule: Injunction could not lie when the acts c.   When an application for a writ of preliminary
sought to be enjoined have already become a fait injunction or a temporary restraining order is
accompli or an accomplished or consummated act included in a complaint or any initiatory pleading,
[Aznar Bros. v. CA, G.R. No. 128102 (2000)] the case, if filed in a multiple-sala court, shall be
raffled only after notice to and in the presence of
Exception: If the acts complained of are continuing in the adverse party or the person to be enjoined. In
nature and were derogation of plaintiff’s rights at the any event, such notice shall be preceded, or
outset [Zomer Development Company Inc. v. contemporaneously accompanied by service of
International Exchange Bank, G.R. No. 150694 (2009)] summons, together with a copy of the complaint
or initiatory pleading and the applicant’s affidavit
Temporary restraining order (TRO) and bond, upon the adverse party in the
A TRO is issued in order to preserve the status quo Philippines. However, where the summons could
until the hearing of the application for preliminary not be served personally or by substituted service
injunction [Bacolod City Water v. Labayen, G.R. No. despite diligent efforts, or the adverse party is a
157494 (2004)] resident of the Philippines temporarily absent
therefrom or is a nonresident thereof, the
The application for a TRO shall thereafter be acted requirement of prior or contem poraneous
upon only after all parties are heard in a summary service of summons shall not apply.
hearing which shall be conducted within twenty-four d.   The application for a temporary restraining order
(24) hours after the sheriff’s return of service and/or shall thereafter be acted upon only after all
the records are received by the branch selected by parties are heard in a summary hearing which
raffle and to which the records shall be transmitted shall be conducted within twenty-four (24) hours
immediately [Sec. 4(d), Rule 58] after the sheriff’s return of service and/or the
records are received by the branch selected by
Status quo order raffle and to which the records shall be
A status quo order is in the nature of a cease and desist transmitted immediately.
order. It is resorted to when the projected proceedings [Sec. 4, Rule 58]
in the case made the conservation of the status quo
desirable or essential, but the affected party neither The applicant must establish:
sought such relief nor did the allegations in his a.   The existence of a clear and unmistakable right
pleading sufficiently make out a case for a temporary that must be protected; that is, right in esse
restraining order [1 Regalado 719, 2010 Ed.] b.   A material and substantial invasion of such right;
and
It does NOT direct the doing or undoing of acts but is c.   An urgent and paramount necessity for the writ to
an order to maintain the last, actual, peaceable and prevent serious damage
uncontested state of things which preceded the d.   No other ordinary, speedy, and adequate remedy
controversy [1 Regalado 719, 2010 Ed.] exists to prevent the infliction of irreparable injury
[Marquez v. Sanchez, G.R. No. 141849, (2007)]
2.  R equisites Right in esse
The applicant's right must be clear or unmistakable,
A preliminary injunction or temporary restraining that is, that the right is actual, clear and positive
order may be granted only when especially calling for judicial protection. An injunction
a.   The application in the action or proceeding is will not issue to protect a right not in esse and which
verified, and shows facts entitling the applicant to may never arise or to restrain an act which does not
the relief demanded give rise to a cause of action [Marquez v. Sanchez, G.R.
b.   Unless exempted by the court, the applicant files No. 141849 (2007)]
with the court where the action or proceeding is
pending, a bond executed to the party or person Irreparable injury
enjoined, in an amount to be fixed by the court, to Does not have reference to the amount of damages
the effect that the applicant will pay to such party that may be caused but rather to the difficulty of
or person all damages which he may sustain by measuring the damages inflicted. This includes:
reason of the injunction or temporary restraining a.   that degree of wrong of a repeated and continuing
order if the court should finally decide that the kind which produce hurt, inconvenience, or
applicant was not entitled thereto. Upon approval damage that can be estimated only by conjecture,

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

and not by any accurate standard of Ed., citing Rivera v. citing Dayrit v. Delos
measurement. Florendo, G.R. No. Santos, G.R. No. 5005
b.   damage where there is no standard by which their 57586 (1986)] (1911)]
amount can be measured with reasonable
accuracy When preventive injunction does not lie; examples
c.   a serious charge of, or is destructive to, the a.   To restrain collection of taxes [Sec. 218, NIRC],
property it affects, either physically or in the except that when in the opinion of the Court of Tax
character in which it has been held and enjoined, Appeals (CTA) the collection by the
or when the property has some peculiar quality or aforementioned government agencies may
use, so that its pecuniary value will not fairly jeopardize the interest of the Government and/or
recompense the owner of the loss thereof. the taxpayer, the CTA any stage of the proceeding
If full compensation can be obtained, by way of may suspend the said collection and require the
damages, equity will not apply the remedy of taxpayer either to deposit the amount claimed or
injunction [Social Security Commission v. Bayona, G.R. to file a surety bond for not more than double the
No. L-13555 (1962)] amount with the CTA [Sec. 11, R.A. 1125, as
amended by R.A. 9282]
3.  Kinds of Injunction b.   To restrain the sale of conjugal properties where
the claim can be annotated on the title as a lien,
such as the husband’s obligation to give support
a.   Preliminary injunction – an order granted at any
[Saavedra v. Estrada, G.R. No. 33795 (1931)]
stage of an action or proceeding prior to the
c.   To restrain a mayor proclaimed as duly elected
judgment or final order, requiring a party or a
from assuming his office [Cereno v. Dictado, G.R.
court, agency or a person to refrain from a
No. L-81550 (1988)]
particular act or acts.
d.   To restrain registered owners of the property from
b.   Preliminary mandatory injunction – requires the
selling, disposing and encumbering their property
performance of a particular act or acts, in which
just because the respondents had executed Deeds
case it shall be known as a
of Assignment in favor of petitioner [Tayag v.
[Sec. 1, Rule 58]
Lacson, G.R. No. 134971 (2004)]
e.   Against consummated acts [PNB v. Adi, G.R. No.
[Preliminary mandatory injunction] may also issue in
L-52823 (1982); Rivera v. Florendo, G.R. No. L-
cases where the relative inconvenience bears strongly
57586 (1986); Ramos, Sr. v. CA, G.R. No. 124354
in the requesting party’s favor, and where the effect of
(1989)]
the mandatory injunction is to re-establish and
maintain a pre-existing continuing relation between
When mandatory injunction does not lie; examples
the parties, which was recently and arbitrarily
a.   To compel cohabitation [Arroyo v. Vasquez, G.R.
interrupted by another party, rather than to establish
No. 17014 (1921)]
a new relationship between and among the parties
b.   Cancellation of attachment [Levy Hermanos v.
[WT Construction, Inc. v. DPWH, G.R. No. 163352
Lacson, G.R. No. L-47285 (1940)]
(2007)]
c.   Release imported goods pending hearing before
the Commissioner of Customs [Commissioner of
Preliminary Preliminary mandatory
Customs v. Cloribel, G.R. No. L-20266 (1967)]
prohibitory injunction injunction
d.   To take property out of the possession or control
Purpose is to prevent a of one party and place it into that of another
person from the Purpose is to require a whose title has not clearly been established [Pio v.
performance of a person to perform a Marcos, G.R. No. L-27849 (1974)]
particular act [1 particular act [Sec 1,
Regalado 720, 2010 Rule 58]
Ed.] 4.  W hen Writ May be Issued
There was an act that
The act has not yet
has already been When: At any stage of an action or proceeding prior to
been performed and is
performed resulting in the judgment or final order [Sec. 1, Rule 58]
thus subject of the
violation of the rights of
prohibitory injunction
another [Felipe v. By whom: By the court where the action or proceeding
[BPI v. Hontanosas, G.R.
Rodolfo, G.R. 19300 is pending. If the action or proceeding is pending in the
157163 (2014)]
(2013)] CA or in the SC, it may be issued by said court or any
Status quo is preserved Status quo is restored [1 member thereof [Sec. 2, Rule 58]
[1 Regalado 721, 2010 Regalado 731, 2010 Ed.,

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Being preliminary, an order granting a preliminary which the applicant may suffer by the denial or the
injunction need not clearly and distinctly state the dissolution of the injunction or restraining order.
findings of fact and conclusions of law on which it is If it appears that the extent of the preliminary
based [UCPB v. United Alloy Phils. Corp., G.R. No. injunction or restraining order granted is too great, it
152238 (2005)] may be modified.
[Sec. 6, Rule 58]
5.  G rounds for Issuance of
Preliminary Injunction 7.  Duration of TRO
20-day TRO 72-hour TRO
A preliminary injunction may be granted when it is
If it shall
established that:
appear from
a.   The applicant is entitled to the relief demanded,
facts shown by
and the whole or part of such relief consists in
affidavits or by
restraining the commission or continuance of the
the verified
act or acts complained of, or in requiring the If the matter is of
application
performance of an act or acts, either for a limited extreme urgency
that great or
period or perpetually and the applicant
Grounds irreparable
b.   The commission, continuance or non- will suffer grave
injury would
performance of the act or acts complained of injustice and
result to the
during the litigation would probably work irreparable injury
applicant
injustice to the applicant, or
before the
c.   A party, court, agency or a person is doing,
matter can be
threatening, or is attempting to do, or is procuring
heard on
or suffering to be done, some act or acts probably
notice
in violation of the rights of the applicant
The executive
respecting the subject of the action or proceeding, The court to
judge of a
and tending to render the judgment ineffectual which the
multiple-sala
[Sec. 3, Rule 58] application for
court or the
preliminary
presiding judge of
Note: The effect of the injunction would not be to injunction was
a single-sala court
create a new relation between the parties which was made, may
may issue ex parte
arbitrarily interrupted by the defendant [1 Regalado issue ex parte a
a TRO effective for
720, 2010 Ed.] TRO to be
only 72 hours
effective only
Issuance from issuance but
6.  G rounds for Objection to, for a period of
20 days from
he shall
immediately
or for the Dissolution of service on the
comply with the
party or person
Injunction or Restraining sought to be
provisions of Sec.
5, Rule 58 as to
Order enjoined,
service of
except as
summons and the
a.   Upon a showing of its insufficiency herein
documents to be
b.   Other grounds upon affidavits of the party or provided
served therewith
person enjoined, which may be opposed by the Within the 20- Thereafter, within
applicant also by affidavits day period, the the aforesaid 72
c.   If it appears after hearing that although the court must hours, the judge
applicant is entitled to the injunction or order said before whom the
restraining order, the issuance or continuance party or person case is pending
thereof, as the case may be, would cause Subsequent to show cause, shall conduct a
irreparable damage to the party or person proceedings at a specified summary hearing
enjoined while the applicant can be fully time and to determine
compensated for such damages as he may suffer, place, why the whether the
and the former files a bond in an amount fixed by injunction temporary
the court conditioned that he will pay all damages should not be restraining order
granted. shall be extended

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until the a.   No court, except the SC, shall issue any TRO,
The court shall application for preliminary injunction or preliminary mandatory
also preliminary injunction against the government, or any of its
determine, injunction can be subdivisions, officials or any person or entity,
within the heard. whether public or private acting under the
same period, government direction, to restrain, prohibit or
whether or not In no case shall compel the following acts:
the preliminary the total period of 1.   Acquisition, clearance and development of
injunction shall effectivity of the the right-of-way and/or site or location of any
be granted, TRO exceed 20 national government project
and days, including 2.   Bidding or awarding of contract/ project of
accordingly the original the national government as defined under
issue the seventy-two hours Section 2 hereof;
corresponding provided herein. 3.   Commencement prosecution, execution,
order. implementation, operation of any such
[Sec. 5, Rule 58, as amended by A.M. No. 07-7-12-SC] contract or project;
4.   Termination or rescission of any such
Notes: contract/project; and
a.   No preliminary injunction shall be granted 5.   The undertaking or authorization of any other
without hearing and prior notice to the party or lawful activity necessary for such
person sought to be enjoined. contract/project.
b.   In the event that the application for preliminary b.   This prohibition shall apply in all cases, disputes
injunction is denied or not resolved within the said or controversies instituted by a private party,
period, the temporary restraining order is deemed including but not limited to cases filed by bidders
automatically vacated. The effectivity of a or those claiming to have rights through such
temporary restraining order is not extendible bidders involving such contract/project.
without need of any judicial declaration to that c.   This prohibition shall not apply when the matter
effect, and no court shall have authority to extend is of extreme urgency involving a constitutional
or renew the same on the same ground for which issue, such that unless a temporary restraining
it was issued. order is issued, grave injustice and irreparable
c.   However, if issued by the CA or a member thereof, injury will arise. The applicant shall file a bond, in
the TRO shall be effective for 60 days from service an amount to be fixed by the court, which bond
on the party or person sought to be enjoined. A shall accrue in favor of the government if the court
restraining order issued by the SC or a member should finally decide that the applicant was not
thereof shall be effective until further orders. entitled to the relief sought.
d.   The trial court, the CA, the Sandiganbayan or the d.   If after due hearing the court finds that the award
CTA that issued a writ of preliminary injunction of the contract is null and void, the court may, if
against a lower court, board, officer, or quasi- appropriate under the circumstances, award the
judicial agency shall decide the main case or contract to the qualified and winning bidder or
petition within 6 months from the issuance of the order a rebidding of the same, without prejudice
writ. to any liability that the guilty party may incur
[Sec. 5, Rule 58, as amended by A.M. No. 07-7-12-SC] under existing laws
[Sec. 3, R.A. 8975]
Upon the expiration of the non-extendible period, the
TRO is automatically terminated. No judicial Any TRO, preliminary injunction, or preliminary
declaration necessary [Golden Gate Realty Corporation mandatory injunction issued in violation of Sec. 3 is
v. Intermediate Appellate Court, et al., 152 SCRA 684 void and of no force and effect [Sec. 4, R.A. 8795]
(1987)]
In addition to any civil and criminal liabilities, any
judge who shall issue a TRO, preliminary injunction, or
8.  I n relation to R.A. 8975; preliminary mandatory injunction in violation of Sec. 3,
Ban on Issuance of TRO or R.A. 8795, shall suffer the penalty of suspension of at
least 60 days without pay [Sec. 6, R.A. 8795]
Writ of Injunction in Cases
involving Government
Infrastructure Projects
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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

9.  R ule on Prior or   Receivership

Contemporaneous Service Receiver
of Summons in Relation to A person appointed by the court in behalf of all the
parties to the action for the purpose of preserving and
Attachment conserving the property in litigation and prevent its
possible destruction or dissipation if it were left in the
General rule: When an application for a writ of possession of any of the parties [Normandy v. Duque,
preliminary injunction or a temporary restraining order G.R. No. L-25407 (1969)]
is included in a complaint or any initiatory pleading,
the case, if filed in a multiple-sala court, shall be Purpose
raffled only after notice to and in the presence of the Receivership, like injunction, may be the principal
adverse party or the person to be enjoined. In any action itself or just an ancillary remedy [1 Regalado
event, such notice shall be preceded, or 745, 2010 Ed.]
contemporaneously accompanied by service of
summons, together with a copy of the complaint or The purpose of a receivership as a provisional remedy
initiatory pleading and the applicant’s affidavit and is to protect and preserve the rights of the parties
bond, upon the adverse party in the Philippines during the pendency of the main action, during the
pendency of an appeal, or as an aid in the execution of
Exceptions: The requirement of prior or a judgment when the writ of execution has been
contemporaneous service of summons shall not apply: returned unsatisfied [Ysasi v. Fernandez, G.R. L-28593
a.   The summons could not be served personally or (1968); 2 Riano 129, 2012 Ed.]
by substituted service despite diligent efforts, or
b.   The adverse party is a resident of the Philippines Unlike the other provisional remedies which can be
temporarily absent therefrom or is a nonresident availed of only before final judgment, receivership may
thereof be resorted to even after the judgment has become
[Sec. 4, Rule 58] final and executory, under Sec. 1(d), Rule 59 in relation
to Sec. 41, Rule 39 [1 Regalado 747, 2010 Ed.]
Grant of final injunction
If after the trial of the action it appears that the The receivership under Rule 59 is directed to the
applicant is entitled to have the act or acts complained property which is the subject of the action and does
of permanently enjoined, the court shall grant a final not refer to the receivership authorized under banking
injunction perpetually restraining the party or person laws and other rules or laws. Rule 59 presupposes that
enjoined from the commission or continuance of the there is an action and that the property subject of the
act or acts or confirming the preliminary mandatory action requires its preservation. Receivership under
injunction [Sec. 9, Rule 58] Rule 59 is ancillary to the main action [2 Riano 128,
2012 Ed.]

The guiding principle is the prevention of imminent

danger to the property. If an action by its nature, does
not require such protection or preservation, said
remedy cannot be applied for and granted
[Commodities Storage v. CA, G.R. No. 125008 (1997)]

1.   Cases When Receiver May

be Appointed/Requisites
a.   When it appears from the verified application, and
such other proof as the court may require, that the
party applying for the appointment of a receiver
has an interest in the property or fund which is the
subject of the action or proceeding, and that such
property or fund is in danger of being lost,
removed, or materially injured unless a receiver be
appointed to administer and preserve it;

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

b.   When it appears in an action by the mortgagee for

the foreclosure of a mortgage that the property is
2.  R equirement before
in danger of being wasted or dissipated or Issuance of an Order
materially injured, and that its value is probably
insufficient to discharge the mortgage debt, or Procedure
that the parties have so stipulated in the contract a.   Verified application filed by the party requesting
of mortgage; for the appointment of the receiver [Sec. 1, Rule
c.   After judgment, to preserve the property during 59]
the pendency of an appeal, or to dispose of it b.   The grounds stated in Sec. 1, Rule 59 enumerated
according to the judg ment, or to aid execution in Part D.1 of this (Provisional Remedies) reviewer.
when the execution has been returned unsatisfied c.   Application must be with notice and must be set
or the judgment obligor refuses to apply his for hearing;
property in satisfaction of the judgment, or d.   Before appointing a receiver, the court shall
otherwise to carry the judgment into effect; require applicant to post a bond executed to the
d.   Whenever in other cases it appears that the party against whom the application is presented,
appointment of a receiver is the most convenient in an amount to be fixed by the court [Sec. 2, Rule
and feasible means of preserving, administering, 59]
or disposing of the property in litigation. e.   Before entering upon his duties, the receiver must
[Sec. 1, Rule 59] be sworn to perform his duties faithfully and shall
file a bond, executed to such person and in such
Formerly included in this provision are situations such sum as the court may direct [Sec. 4, Rule 59]
as when a corporation has been dissolved, is insolvent,
etc. which are now governed by the Corporation Code Application is made by motion when the receivership
[1 Regalado 745, 2010 Ed.] sought is only an incident to the main action
[Regalado] [1 Regalado 747, 2010 Ed.]
Specific cases
a.   If a spouse without just cause abandons the other Who appoints a receiver
or fails to comply with his/her obligations to the a.   Court where the action is pending
family, the aggrieved spouse may petition the b.   CA
court for receivership [Art. 101, FC] c.   SC
b.   The court may appoint a receiver of the property d.   During the pendency of an appeal, the appellate
of the judgment obligor; and it may also forbid a court may allow an application for the
transfer or other disposition of, or any interference appointment of a receiver to be filed in and
with, the property of the judgment obligor not decided by the court of origin
exempt from execution [Sec. 41, Rule 39] [Sec. 1, Rule 59]
c.   After the trial court loses jurisdiction over the case
(in appeals by notice of appeal) or only over the Application may be denied or reviewer discharged
subject matter (in appeals by record on appeal), a.   When the applicant, in an amount to be fixed by
and prior to the transmittal of the original record the court, to the effect that such party will pay the
or the record on appeal, the court may issue applicant all damages he may suffer by reason of
orders for the protection and preservation of the the acts, omissions, or other matters specified in
rights of the parties [Sec. 9, Rule 41], including the application as ground for such appointment.
necessarily the authority to appoint a receiver who b.   It is shown that his appointment was obtained
has the power to take and keep possession of the without sufficient cause
property in controversy [Acuña v. Calauag, G.R. [Sec. 3, Rule 59]
No. L-10736 (1957)] c.   If either the applicant’s or the receiver’s bond is
d.   After final judgment, a receiver may be appointed found to be insufficient in amount, or if the surety
as an aid to the execution of judgment [Philippine or sureties thereon fail to justify, and a bond
Trust Company v. Santamaria, G.R. 31951 (1929)] sufficient in amount with sufficient sureties
e.   Appointment of a receiver over the property in approved after justification is not filed forthwith
custodia legis may be allowed when it is justified [Sec. 5, Rule 59
by special circumstances, as when it is reasonably
necessary to secure and protect the rights of the Appointment of a receiver is not proper where the
real owner [Dolar v. Sundiam, G.R. No. 27361 rights of the parties, one of whom is in possession of
(1971)] the property, are still to be determined by the trial
court [Vivares v. Reyes, G.R. No. 155408 (2008)]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

party or parties entitled thereto as a consequence

3.  General Powers of a of such refusal or neglect
Receiver [Sec. 7, Rule 59]

Who is a receiver Remedies against the receiver

A person appointed by the court in behalf of all the a.   No action may be filed by or against a receiver
parties to an action for the purpose of preserving the without leave of the court which appointed him
property involved in the suit and to protect the rights [Sec. 6, Rule 59]
of all the parties under the direction of the court. [1 b.   An aggrieved party may:
Regalado 745, 2010 Ed.] This is an instance where a 1.   Take the matter into the court which
person who is not the real party in interest is appointed the receiver and ask either for an
authorized to sue as a representative party under Sec. accounting or take some other proceeding,
3, Rule 3 [Sec 6, Rule 59] and ask for consequent judgment on the acts
complained of; OR
Powers of a receiver 2.   Ask for leave of court to bring him an action
Subject to the control of the court in which the action directly
or proceeding is pending, a receiver shall have the [De la Riva v. Molina Salvador, G.R. L-10106 (1915)]
power to
a.   Bring and defend, in such capacity, actions in his 4.  T wo Kinds of Bonds
own name
b.   Take and keep possession of the property in a.   Applicant’s bond
controversy 1.   Executed to the party against whom the
c.   Receive rents application is presented
d.   Collect debts due to himself as receiver or to the 2.   In an amount to be fixed by the court
fund, property, estate, person, or corporation of 3.   To the effect that the applicant will pay such
which he is the receiver party all damages he may sustain by reason
e.   Compound for and compromise the same of the appointment in case the applicant shall
f.   Make transfers have procured such without sufficient cause
g.   Pay outstanding debts the court may, in its discretion, at any time after
h.   Divide the money and other property that shall the appointment, require an additional bond as
remain among the persons legally entitled to further security for such damages [Sec. 2, Rule 59]
receive the same
i.   Generally to do such acts respecting the property b.   Receiver’s bond
as the court may authorize The receiver shall file a bond,
j.   Invest funds in his hands, only by order of the 1.   Before entering upon his duties
court upon the written consent of all the parties 2.   Executed to such person and
[Sec. 6, Rule 59] 3.   In such sum as the court may direct
4.   To the effect that he will faithfully discharge
Who may be appointed his duties in the action or proceeding and
The general rule is that neither party to the litigation obey the orders of the court
should be appointed as a receiver without the consent [Sec. 4, Rule 59]
of the other because a receiver is supposed to be an
impartial and disinterested person [Alcantara v.
Damages resulting Damages arising after
Abbas, G.R. No. L-14890 (1963)]
from appointment appointment
Damages which arise
A clerk of court should not be appointed as a receiver
Damages resulting due to receiver’s
as he is already burdened with his official duties
from appointment negligence or
[Abrigo v. Kayanan, G.R. No. L-28601 (1983)]
mismanagement
The right rests on
Liability for refusal or neglect to deliver property to
The right is statutory general principles of
receiver
law
a.   May be punished for contempt, and
b.   Shall be liable to the receiver for the money or the The damages may be
value of the property and other things so refused caused before the Liability rests on the
or neglected to be surrendered, together with all receiver qualifies or mismanagement or
damages that may have been sustained by the takes possession of the negligence of receiver
property

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The applicant’s bond is

responsible
The receiver’s bond is
responsible   Replevin
[Molina v. Somes, G.R. L-7308 (1913)]
Replevin is the provisional remedy seeking for the
possession of the property prior to the determination
5.  T ermination of of the main action for replevin [BA Finance Corp. v. CA,
Receivership G.R. No. 102998 (1996)]

Replevin may also be a main action with the ultimate

Ground
goal of recovering personal property capable of
The necessity for a receiver no longer exists [Sec. 8,
manual delivery wrongfully detained by a person. In
Rule 59]
this sense, it is a suit in itself. [BA Finance Corp. v. CA,
G.R. No. 102998 (1996)]
Procedure
1.   The court shall determine that the necessity for a
Preliminary
receiver no longer exists Replevin
a.   Motu proprio or attachment
b.   On motion of either party The purpose is to have
The purpose is to
2.   Due notice to all interested parties the property put in the
recover personal
3.   Hearing custody of the court to
property capable of
4.   After due notice and hearing, the court shall secure the satisfaction
manual delivery from
a.   Settle the accounts of the receiver of the judgment that
the defendant [1
b.   Direct the delivery of the funds and other may be rendered in
Regalado 753, 2010
property in his possession to the person favor of the plaintiff
Ed.]
adjudged to be entitled to receive them, and [Sec 1, Rule 57]
c.   Order the discharge of the receiver from The property either
The property does not
further duty as such belongs to the plaintiff
belong to the plaintiff
d.   Allow the receiver such reasonable or one over which the
but to the defendant [1
compensation as the circumstances of the plaintiff has a right of
Regalado 753, 2010
case warrant, to be taxed as costs against the possession [Sec 2, Rule
Ed.]
defeated party, or apportioned, as justice 60]
requires May be sought only Available even if
[Sec. 8, Rule 59] when the principal recovery of property is
action is for the only incidental to the
recovery of personal relief sought [1
property [1 Regalado Regalado 753, 2010
753, 2010 Ed.] Ed.]
Can be sought only
May be resorted to even
when defendant is in
if property is in
actual or constructive
possession of a third
possession of the
person [1 Regalado 753,
property [1 Regalado
2010 Ed.]
753, 2010 Ed.]
Cannot be availed of
when property is in Can be availed of when
custodia legis [Montesa property is in custodia
v. Manila Cordage. G.R. legis [Sec 7, Rule 57]
L-44537 (1978)]
Available from
Available before commencement but
defendant answers [Sec before entry of
1, Rule 60] judgment [Sec 1, Rule
57]
Bond is double the
value of the Bond is fixed by the
property[Sec 2(d), Rule court [Sec 4, Rule 57]
60]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Extends only to
personal property
Extends to all kinds of
property whether real,
2.  R equisites
capable of manual personal, or incorporeal
delivery [Machinery & [Machinery & a.   The applicant must show by his own affidavit or
that of some other person who personally knows
Engineering Supplier Engineering Supplier
the facts the items stated in Part E.3 (Affidavit and
Inc., v. CA. G.R. L-7056 Inc., v. CA. G.R. L-7056
bond; redelivery bond of this (Provisional
(1964)] (1964)]
Remedies) reviewer
Attachment to recover
b.   The applicant must also give a bond
possession of personal
Available to recover [Sec. 2, Rule 60]
property unjustly
personal property even
detained presupposes
if the same is not being Upon the filing of such affidavit and approval of the
that the same is being
concealed, removed, or bond, the court shall issue an order and the
concealed, removed or
disposed of [Machinery corresponding writ of replevin describing the personal
disposed of to prevent
& Engineering Supplier property alleged to be wrongfully detained and
its being found or taken
Inc., v. CA. G.R. L-7056 requiring the sheriff forthwith to take such property
by the applicant [1
(1964)] into his custody {Sec. 3, Rule 60]
Regalado 754, 2010
Ed.]
3.  Affidavit and Bond;
1.   When Writ May be Issued Redelivery Bond
A party praying for the recovery of possession of Contents of the affidavit
personal property may, at the commencement of the The affidavit shall
action or at any time before answer, apply for an order a.   That the applicant is the owner of the property
for the delivery of such property to him [Sec. 1, Rule 60] claimed, particularly describing it, or is entitled to
the possession thereof;
Who may avail b.   That the property is wrongfully detained by the
While Sec. 1 of Rule 60 formerly provided for the writ adverse party, alleging the cause of detention
of replevin at the instance of the plaintiff, the same thereof according to the best of his knowledge,
provisional remedy was held to be available to the information, and belief;
defendant on his counterclaim [Pongos v. Hidalgo c.   That the property has not been distrained or taken
Enterprises, Inc., G.R. No. L-3226 (1949)] and to any for a tax assessment or a fine pursuant to law, or
other party asserting affirmative allegations seized under a writ of execution or preliminary
praying for the recovery of personal property attachment, or otherwise placed under custodia
unjustly detained. Sec. 1 has been accordingly legis, or if so seized, that it is exempt from such
amended [1 Regalado 754, 2010 Ed.] seizure or custody; and
d.   The actual market value of the property.
Does the applicant have to be the holder of the legal title [Sec. 2, Rule 60]
to the property?
General rule: No. It is in the nature of a possessory Applicant’s bond
action. It is sufficient that at the time he applied for a a.   Executed to the adverse party
writ of replevin he is found to be entitled to a b.   Double the value of the property as stated in the
possession thereof [Chiao Liong v. CA, G.R. No. 106251 affidavit
(1993)] c.   Conditions
1.   The return to of property to adverse party if
Primarily, the action of replevin is possessory in such return be adjudged, and
character and determines nothing more than the right 2.   The payment to adverse party of such sum as
of possession. However, when the title to the property he may recover from the applicant in the
is distinctly put in issue by the defendant's plea, the action
question of ownership may be resolved in the same [Sec. 2, Rule 60]
proceeding because a replevin action is sufficiently
flexible to authorize a settlement of all equities Return of property
between the parties, arising from or growing out of the If the adverse party objects to the sufficiency of the
main controversy [Chiao Liong v. CA, G.R. No. 106251 a.   applicant’s bond, or
(1993)] b.   surety or sureties thereon,

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

he cannot immediately require the return of the But failure of a party to file a motion to quash does not
property, but if he does not so object, he may, at any prevent a party from assailing the improper service via
time before the delivery of the property to the a petition for certiorari. The trial court is deemed to
applicant, require the return thereof have acted without or in excess of its jurisdiction if
improperly served. It must restore the parties to their
How return of property may be required former positions by returning the seized property and
File with the court where the action is pending a bond by discharging the replevin bond [Rivera v. Vargas,
a.   Executed to the applicant, G.R. No. 165895 (2009)]
b.   In double the value of the property as stated in the
applicant’s affidavit Disposition of property by sheriff
c.   Conditions 1.   If within 5 days after the taking of the property by
1.   The delivery thereof to the applicant, if such the sheriff, the adverse party does not object to
delivery be adjudged, and the sufficiency of
2.   The payment of such sum to him as may be a.   the bond, or
recovered against the adverse party, and by b.   of the surety or sureties thereon; or
serving a copy of such bond on the applicant. 2.   If the adverse party so objects and the court
[Sec. 5, Rule 60] affirms its approval of the applicant’s bond or
approves a new bond, or
3.   If the adverse party requires the return of the
4.  S heriff’s Duty in the property but his bond is objected to and found
Implementation of the insufficient and he does not forthwith file an
approved bond,
Writ; When Property is the property shall be delivered to the applicant. If for
Claimed by Third Party any reason the property is not delivered to the
applicant, the sheriff must return it to the adverse
party
a.   Sheriff’s Duty in [Sec. 6, Rule 60]
Implementation
b.   When Property Claimed by
1.   Upon receiving the order, the sheriff must
a.   Serve a copy thereof on the adverse party,
Third Party
together with a copy of the application,
affidavit and bond, and 1.   If the property taken is claimed by any person
b.   Forthwith take the property, if it be in the other than the party against whom the writ of
possession of the adverse party, or his agent, replevin had been issued or his agent, and
and retain it in his custody. 2.   Such person makes an affidavit of his title thereto,
2.   If the property or any part thereof be concealed in or right to the possession thereof, stating the
a building or enclosure, the sheriff must grounds therefor, and serves such affidavit upon
a.   Demand its delivery, and the sheriff while the latter has possession of the
b.   If it be not delivered, he must cause the property and a copy thereof upon the applicant
building or enclosure to be broken open and 3.   The sheriff shall not be bound to keep the property
take the property into his possession. under replevin or deliver it to the applicant
3.   After the sheriff has taken possession of the 4.   Unless the applicant or his agent, on demand of
property as herein provided, he must keep it in a said sheriff, shall file a bond approved by the court
secure place and shall be responsible for its to indemnify the third-party claimant in a sum not
delivery to the party entitled thereto upon less than the value of the property under replevin
receiving his fees and necessary expenses for as provided in Sec. 2, Rule 60.
taking and keeping the same. 5.   In case of disagreement as to such value, the court
[Sec. 4, Rule 60] shall determine the same.
6.   No claim for damages for the taking or keeping of
Where replevin writ was improperly implemented the property may be enforced against the bond
The proper remedy to an improperly implemented writ unless the action therefor is filed within 120 days
of replevin is to file a motion to quash [Siy v. Tomlin, from the date of the filing of the bond.
G.R. No. 205998 (2017)] [Sec. 4, Rule 60]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Note: The procedure in Sec. 7, Rule 60 is similar to that defendant’s deprivation of possession via replevin by
in third-party claims in execution [Sec. 16, Rule 39] and the plaintiff [1 Regalado 761-762, 2010 Ed.]
in attachment [Sec. 14, Rule 57]

Difference in service of affidavits

1.   Sec. 14, Rule 57 – affidavit is served upon the
sheriff while he has possession of the attached
property
2.   Sec. 7, Rule 60 – affidavit is served within 5 days
in which sheriff has possession (in connection with
Sec. 6, Rule 60)

Judgment
After trial of the issues, the court shall determine who
has the right of possession to and the value of the
property and shall render judgment in the alternative
for the delivery thereof to the party entitled to the
same, or for its value in case delivery cannot be made,
and also for such damages as either party may prove,
with costs [Sec 9, Rule 60]

Recovering damages on an applicant’s bond

Requirements
a.   That the defendant claimant has secured a
favorable judgment the main action, meaning
that the plaintiff has no cause of action and was
not, therefore, entitled to the replevin;
b.   That the application for damages, showing
claimant’s right thereto and the amount thereof,
be filed in the same action before trial or before
appeal is perfected or before the judgment
becomes executory;
c.   That due notice be given to the other party and his
surety or sureties, notice to the principal not being
sufficient;
d.   That there should be a proper hearing and the
award for damages should be included in the final
judgment
[DBP v. Carpio, G.R. No. 195450 (2017)]

Note: DBP v. Carpio states that the same requirements

apply when recovering damages under other
provisional remedies, as provided in Sec. 20, Rule 57;
Sec. 8, Rule 58 and Sec. 9, Rule 59.

Even where the judgment is that the defendant is

entitled to the property, but no order was made
requiring the plaintiff to return it or assessing
damages in default of return, there could be no
liability on the part of the sureties until judgment was
entered that the property should be restored [Sapugay
et. al. v. CA, G.R. No. 86792 (1990)]

The surety cannot be liable for payment of the

judgment for damages rendered against the plaintiff
for fraudulent or wrongful acts unconnected with the

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

V.   SPECIAL CIVIL
Some are initiated by
ACTIONS Initiated by complaint complaint, some by
[Sec. 5, Rule 1] petition [1 Regalado 770,
2010 Ed.]
  General Matters
Some special civil actions
1.   Nature of Special Civil can only be filed in the
Actions It may be filed initially
MTC (e.g. forcible entry
and unlawful detainer)
Special civil actions are generally brought or filed for either in the MTC or while there are some
the RTC which can NOT be
the same purpose as a civil action, that is, for a party
commenced in the MTC
to sue another for the enforcement of a right, or the
(e.g. certiorari) [1
prevention or redress of a wrong [1 Riano 495, 2007
Ed.] Regalado 771, 2010 Ed.]

A special civil action is governed by the rules for How initiated

ordinary civil actions, subject to the special rules Special civil actions
Special civil actions
prescribed for a special civil action [Sec. 3(a), Rule 1] initiated by
initiated by petition
complaint
a.   Interpleader a.   Declaratory relief
2.  O rdinary Civil Actions v. [Rule 62] [Rule 63]
Special Civil Actions b.   Expropriation
[Rule 67]
b.   Review
adjudication
of the
of
c.   Foreclosure of COMELEC/COA
Ordinary civil action Special civil action
real estate [Rule 64]
A party also files the mortgage [Rule c.   Certiorari
A party sues another
action for the 68] [Rule 65]
for the enforcement or
enforcement or d.   Partition [Rule d.   Prohibition [Rule 65]
protection of a right or
protection of a right or 69] e.   Mandamus [Rule 65]
prevention or redress
prevention or redress of a e.   Forcible entry and f.   Quo warranto [Rule
of a wrong [Sec. 3(a),
wrong [1 Riano 495, unlawful detainer 66]
Rule 1]
2007 Ed.] [Rule 70] g.   Contempt [Rule 71]

Also governed by 3.  Jurisdiction and Venue

Governed by ordinary ordinary rules but subject
rules [Sec. 3, Rule 1] to specific rules Jurisdiction over special civil actions is determined by
prescribed [Sec. 3, Rule 1] the Constitution [Sec. 5, Art. VIII, for the Supreme
Court] and statutes (e.g. B.P. 129)
Must be based on a
Some special civil actions Venue is a procedural matter and generally set by the
cause of action which
do not have to be based Rules of Court. Hence, the venue of civil actions is
means that there
on a cause of action (e.g. determined by the general rules on venue, unless
must have been a
interpleader) [1 Regalado otherwise subject to special rules for special civil
violation of plaintiff’s
771, 2010 Ed.] actions (e.g. quo warranto) [1 Regalado 771, 2010 Ed.]
rights [Sec. 1, Rule 2]

Venue is determined
by either the residence Venue is generally
of the parties when governed by the general
action is personal or rules on venue, except as
by the location of the otherwise indicated by
property when the special rules [1 Regalado
action is real [Secs. 1- 771, 2016 Ed.]
2, Rule 4]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Special civil action Jurisdiction Venue

Personal Property:
MTC: If value not more than P300,000
outside Metro Manila, or not more than
Apply Rule 4:
P400,000 in Metro Manila (B.P. Blg.
129, Sec. 33)
Real action: If the action affects title to or
possession of real property, venue is
RTC: If value exceeds P300,000
where the real property involved or a
outside Metro Manila, or P400,000 in
portion thereof is situated [Sec. 1, Rule 4]
Metro Manila, or if incapable of
pecuniary estimation [Sec. 19, B.P. 129]
Personal action: All other actions - At the
INTERPLEADER
election of the plaintiff
Real Property:
Where plaintiff or any of the principal
MTC: assessed value not more than
plaintiffs reside; or
P20,000 outside Metro Manila or not
Where the defendant or any of the
more than P50,000 in Metro Manila
principal defendants reside/s; or
[Sec. 33, B.P. 129]
In case of a non-resident, where he may
be found
RTC: If value exceeds P20,000 if
[Sec. 2, Rule 4]
outside Metro Manila, or P50,000 if in
Metro Manila, or incapable of
pecuniary estimation [Sec. 19, B.P. 129]
General rule: In the appropriate RTC,
since the subject in declaratory relief is
incapable of pecuniary estimation.

DECLARATORY RELIEF Exception: Where the action is a Apply Rule 4 (supra)

proceeding similar to declaratory relief
(e.g. quieting of title to real property),
jurisdiction will depend on the
assessed value of the property, supra.
REVIEW OF JUDGMENTS
AND FINAL ORDERS OF SC SC
COMELEC/COA
RTC, CA, SC;
Sandiganbayan, in aid of its appellate RTC where the respondent is situated,
CERTIORARI/
jurisdiction; where petition relates to an act or
PROHIBITION/
COMELEC, in election cases involving omission of a corporation, board, an
MANDAMUS
an act or omission by MTC or RTC, in officer, or person [Rule 65, Sec. 4]
aid of its appellate jurisdiction.
Generally, action can be brought in SC,
RTC, CA, SC; CA, or RTC exercising jurisdiction over the
Sandiganbayan, which has exclusive territorial area where respondent resides
original jurisdiction over quo warranto or any of the respondent resides
cases filed by the PCGG
COMELEC, exclusive jurisdiction over If commenced by the Solicitor General, it
5. QUO WARRANTO cases falling under Omnibus Election may be filed with RTC Manila, CA, or SC
Code Sandiganbayan has exclusive original
Special Commercial Courts, for quo jurisdiction on quo warranto arising or
warranto against duly licensed that may arise in cases filed under EO
associations. (Corporation Code rules 1,2,14, 14-A but this must be in aid of its
apply, not the Rules of Court.) appellate jurisdiction and not exclusive of
the SC.
6. EXPROPRIATION RTC Apply Rule 4 (Supra)
7. JUDICIAL FORECLOSURE RTC Apply Rule 4 (Supra)
8. PARTITION RTC Apply Rule 4 (Supra)

Page 168 of 438

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

FORCIBLE ENTRY AND

MTC Apply Rule 4 (Supra)
UNLAWFUL DETAINER
If committed against RTC or a court of
equivalent or higher rank, or officer
appointed by it: File with such court
If committed against a first-level court:
CONTEMPT MTC, RTC, CA, SC File with RTC of the place in which lower
court is sitting
If act was committed against persons or
entities exercising quasi- judicial
functions: File with RTC

Page 169 of 438

U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

  Interpleader [Lim v. Continental Dev’t Corp., G.R. No. L- 41818

(1976)]

Nature of interpleader Notes:

An Interpleader is a remedy whereby a person who a.   Interpleader applies regardless of the nature of
has property in his possession or has an obligation to the subject matter [Wack Wack Golf & Country
render wholly or partially, without claiming any right Club v. Lee Won, G.R. No. L-23851 (1976),
in both, comes to court and asks that the defendants interpreting Sec. 1, Rule 63 of the 1964 ROC,
who have made conflicting claims upon the same which was virtually unchanged by now Sec. 1, Rule
property or who consider themselves entitled to 62]
demand compliance with the obligation be required to b.   An interpleader cannot be availed of to resolve the
litigate among themselves in order to determine who issue of breach of undertakings made by
is entitled to the property or payment of the obligation defendants, which should be resolved in an
[Beltran v. PHHC, G.R. No. L-25138 (1969)] ordinary action for specific performance or other
reliefs [Beltran v. PHHC, G.R. No. L-25138 (1969)]
Purpose of the remedy
1.   To compel the conflicting claimants to interplead
and litigate their several claims among 2.  W hen to File
themselves [Sec. 1, Rule 62]
2.   Not to protect a person against double liability General rule: Within a reasonable time [Wack Wack
but to protect him from double vexation in respect Golf & Country Club v. Lee Won, G.R. No. L-23851
of one liability [Beltran v. PHHC, G.R. No. L-25138 (1976)]
(1969)]
An action for Interpleader should be filed within a
Interpleader v. intervention reasonable time after a dispute has arisen without
Interpleader Intervention waiting to be sued by either of the contending parties.
Ancillary action, i.e. Otherwise, it may be barred by laches [Wack Wack Golf
Original action there is a pending & Country Club v. Lee Won, G.R. No. L-23851 (1976)]
action
Intervenor claims an Exception: Where the stakeholder acts with
Plaintiff either has interest that is adverse reasonable diligence in view of environmental
1.   No interest or; to at least one of the circumstances, the remedy is not barred [Wack Wack
2.   An interest in the existing parties, or will Golf & Country Club v. Lee Won, G.R. No. L-23851
subject matter be adversely affected by (1976)]
undisputed by the judgment in favor of
other parties either of the existing Who files: The person against whom the conflicting
parties claims are made and claims no interest in the subject
Defendants to a matter [Sec. 1, Rule 62]
Defendants are sued to complaint-in-
be impleaded intervention are parties Jurisdiction: General rules on jurisdiction apply as in
to a pending suit ordinary civil actions [see Makati Development
[1 Regalado 321, 2010 Ed.] Corporation v. Tanjuatco, G.R. No. L-26443 (1969)]

Procedure
1.   Requisites for Filing of an action against the conflicting claimants
Interpleader to compel them to interplead and litigate their
several claims among themselves [Sec. 1, Rule 62]
a.   The plaintiff clams no interest in the subject ¯
matter or his claim thereto is not disputed Court order upon the filing of the complaint
b.   The parties to be interpleaded must make requiring the conflicting claimants to interplead
effective claims with one another. If the interests of justice so
c.   There must be at least two (2) conflicting require, the court may direct in such order that the
claimants with adverse or conflicting interests to subject matter be paid or delivered to the court
a property in custody or possession of the plaintiff; [Sec. 2, Rule 62]
and ¯
d.   The subject matter must be one and the same.

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Summons served upon the conflicting claimants,

together with a copy of the complaint and order   Declaratory Reliefs and
[Sec. 3, Rule 62] Similar Remedies
¯
Answer of each claimant setting forth his claim Two types of actions under Rule 63
within 15 days from service of the summons upon 1.   Petition for declaratory relief, and
him, serving a copy thereof upon each of the other 2.   Similar remedies
conflicting claimants who may file their reply a.   Action for reformation of an instrument;
thereto as provided by the ROC. b.   Action to quiet title or remove clouds
therefrom, and
Counterclaims, cross-claims, third-party c.   Action to consolidate ownership under Art.
complaints and responsive pleadings thereto, as 1607, CC
provided by the ROC, may be filed by the parties in [Sec. 1, Rule 63]
an interpleader action.
Declaratory relief is defined as an action by any
[Sec. 5, Rule 62] person interested in a deed, will, contract or other
written instrument, executive order or resolution, to
OR determine any question of construction or validity
arising from the instrument, executive order or
Motion to dismiss filed by each claimant within the regulation, or statute, and for a declaration of his
time for filing an answer on the ground of rights and duties thereunder [Sec. 1, Rule 63; Jumamil
impropriety of the interpleader action or on other v. Cafe, G.R. No. 144570 (2005)]
appropriate grounds specified in Rule 16. The
period to file the answer shall be tolled and if the Note: The enumeration of the subject matter is
motion is denied, the movant may file his answer exclusive. Hence, an action not based on any of those
within the remaining period, but which shall not be enumerated cannot be the proper subject of
less than 5 days in any event, reckoned from notice declaratory relief [Mangahas v. Paredes, G.R. No.
of denial [Sec. 4, Rule 62] 157866 (2007)]
¯
Pre-trial [Sec. 6, Rule 62] The only issue that may be raised in such petition is the
question of construction or validity of provisions in an
¯ instrument or statute [Atlas Consolidated Mining &
Determination of the claimants’ respective rights Development. Corp. v. CA, G.R. No. L-54305 (1990)]
and adjudicate their several claims [Sec. 6, Rule 62]
Purpose
Effect of failure to answer To secure an authoritative statement of the rights and
If any claimant fails to plead within the time herein obligations of the parties under a statute, deed,
fixed, the court may, on motion, contract, etc. for their guidance in its enforcement or
a.   declare him in default and compliance and not to settle issues arising from its
b.   thereafter render judgment barring him from any alleged breach [Tambunting v. Sumabat and Baello,
claim in respect to the subject matter G.R. No. 144101 (2005)]
[Sec. 5, Rule 62]
Characteristics
The concept of a cause of action does not strictly apply
to a declaratory relief petition since it presupposes
that there has been no breach or violation of the
instruments involved. However, a breach or violation
must be impending imminent, or at least threatened
[Velarde v. Social Justice Society, G.R. No. 159357
(2004)]

Thus, unlike other judgments, a judgment in an action

for declaratory relief does not essentially entail any
execution process [1 Regalado 789, 2010 Ed.]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

A justiciable controversy refers to an existing case or

1.   Who May File the Action controversy appropriate or ripe for judicial
determination, not one that is conjectural or merely
Any person interested under a deed, will, contract or anticipatory [Velarde v. Social Justice Society, G.R. No.
other written instrument, whose rights are affected by 159357 (2004)]
a statute, executive order or regulation, ordinance, or
any other governmental regulation may, before WHERE TO FILE
breach or violation thereof
[Sec. 1, Rule 63] Jurisdiction
General Rule: Exclusive and original jurisdiction is with
Parties the RTC since the subject in a petition for declaratory
a.   All persons who have or claim any interest which relief is incapable of pecuniary estimation [Sec. 19,
would be affected by the declaration [Sec. 2, Rule B.P.129, as amended by R.A. 7691]. The SC has no
63] original jurisdiction over these petitions, only
b.   In any action which involves the validity of a appellate jurisdiction [Liga ng mga Barangay National
statute, executive order or regulation, or any other v. City Mayor of Manila, G.R. No. 154599 (2004)]
governmental regulation, the Solicitor General
shall be notified by the party assailing the same Exception: Where the action is a proceeding similar to
and shall be entitled to be heard upon such declaratory relief (e.g. quieting of title to real
question [Sec. 3, Rule 63] property), jurisdiction will depend on the assessed
c.   In any action involving the validity of a local value of the property [Malana v. Tappa, G.R. No.
government ordinance, the corresponding 181303 (2009)]
prosecutor or attorney of the local governmental
unit involved shall be similarly notified and Venue: General rule on venue applies, see Rule 4
entitled to be heard. If such ordinance is alleged
to be unconstitutional, the Solicitor General shall
also be notified and entitled to be heard [Sec. 4, 3.  When Court May Refuse to
Rule 63]
Make Judicial Declaration
Note: Non-joinder of interested persons is not a nd
jurisdictional defect; but persons not joined shall not Except in actions falling under the 2 paragraph of
be prejudiced in their interests unless otherwise Sec. 1, Rule 63, the court, motu proprio or upon motion,
provided by the Rules [Baguio Citizens Action v. City may refuse to exercise the power to declare rights and
Council of Baguio, G.R. No. L-27247 (1983)] to construe instruments in any case where a decision
would not terminate the uncertainty or controversy
which gave rise to the action, or in any case where the
2.  R equisites of an Action for declaration or construction is not necessary and
proper under the circumstances.
Declaratory Relief [Sec. 5, Rule 63]
a.   The subject matter of the controversy must be a
deed, will, contract or other written instrument, 4.  C onversion to Ordinary
statute, executive order or regulation, or
ordinance
Action
b.   The terms of said documents and the validity
thereof are doubtful and require judicial If before the final termination of the case, a breach or
construction; violation of an instrument or a statute, executive order
c.   There must have been no breach of the or regulation, ordinance, or any other governmental
documents in question regulation should take place,
d.   There must be an actual justiciable controversy or a.   the action may thereupon be converted into an
the "ripening seeds" of one between persons ordinary action, and
whose interests are adverse b.   the parties shall be allowed to file such pleadings
e.   The issue must be ripe for judicial determination; as may be necessary or proper.
and [Sec. 6, Rule 63]
f.   Adequate relief is not available through other
means or other forms of action or proceeding Note: A petition for declaratory relief is filed before the
[Republic v. Roque, G.R. No. 204603 (2013)] occurrence of any breach or violation of the deed,
contract, statute, ordinance or executive order or

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regulation. It will not prosper when brought after a As an action for reformation, plaintiff had 10 years
contract or a statute has already been breached or within which to bring it from the time the right of
violated. If there has already been a breach, the action accrued [Veluz v. Veluz, G.R. No. L-23261 (1968)]
appropriate ordinary civil action and not declaratory
relief should be filed [City of Lapu-Lapu v. PEZA, G.R. CIVIL CODE PROVISIONS ON THE REFORMATION
No. 184203 (2014)] OF AN INSTRUMENT

1.   When, there having been a meeting of the minds

5.  P roceedings Considered of the parties to a contract, their true intention is
as Similar Remedies not expressed in the instrument purporting to
embody the agreement, by reason of mistake,
a.   Action for reformation of an instrument; fraud, inequitable conduct or accident, one of the
b.   Action to quiet title or remove clouds therefrom, parties may ask for the reformation of the
and instrument to the end that such true intention
c.   Action to consolidate ownership under Art. 1607, may be expressed.
CC 2.   If mistake, fraud, inequitable conduct, or accident
[Sec. 1, Rule 63] has prevented a meeting of the minds of the
parties, the proper remedy is not reformation of
These remedies are considered similar to declaratory the instrument but annulment of the contract
relief because they also result in the adjudication of [Art. 1359, CC]
legal rights of the litigants, often without the need of
execution to carry the judgment into effect [Malana v. The principles of general law on reformation of
Tappa, G.R. No. 181303 (2009)] instruments are adopted insofar as they are not in
conflict with the provisions of the Civil Code [Art. 1360,
However, a distinction must be made between these CC]
proceedings and an action for declaratory relief
because of Sec. 5, Rule 63. See Part C.3 of this (Special When a mutual mistake of the parties causes the
Civil Actions) reviewer above. failure of the instrument to disclose their real
agreement, the said instrument may be reformed [Art.
1361, CC]
a.   Reformation of an Instrument
If one party was mistaken and the other acted
Reformation is a remedy in equity, whereby a written fraudulently or inequitably in such a way that the
instrument is made or construed so as to express or instrument does not show their true intention, the
conform to the real intention of the parties, where former may ask for the reformation of the instrument
some error or mistake has been committed [Multi- [Art. 1362, CC]
Ventures Capital v. Stalwart Management Services
Corp., G.R. No. 157439 (2007)] When one party was mistaken and the other knew or
believed that the instrument did not state their real
What are the requisites for reformation? agreement, but concealed that fact from the former,
1.   There must have been a meeting of the minds of the instrument may be reformed [Art. 1363, CC]
the parties to the contract;
2.   The instrument does not express the true When through the ignorance, lack of skill, negligence
intention of the parties; and or bad faith on the part of the person drafting the
3.   Failure of the instrument to express the true instrument or of the clerk or typist, the instrument
intention of the parties is due to mistake, fraud, does not express the true intention of the parties, the
inequitable conduct or accident courts may order that the instrument be reformed [Art.
[Multi-Ventures Capital v. Stalwart Management 1364, CC]
Services Corp., G.R. No. 157439 (2007)]
If two parties agree upon the mortgage or pledge of
Burden of proof real or personal property, but the instrument states
The onus probandi is upon the party who insists that that the property is sold absolutely or with a right of
the contract should be reformed [Multi-Ventures repurchase, reformation of the instrument is proper
Capital v. Stalwart Management Services Corp, G.R. No. [Art. 1365, CC]
157439 (2007)]

Prescriptive period

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

There shall be no reformation in the following cases: 2.   An action may also be brought to prevent a cloud
1.   Simple donations inter vivos wherein no condition from being cast upon title to real property or any
is imposed interest therein.
2.   Wills [Art. 476, CC]
3.   When the real agreement is void
[Art. 1366, CC] The plaintiff must have legal or equitable title to, or
interest in the real property which is the subject-
When one of the parties has brought an action to matter of the action. He need not be in possession of
enforce the instrument, he cannot subsequently ask said property [Art. 477, CC]
for its reformation [Art. 1367, CC]
Requisites
Reformation may be ordered at the instance of either 1.   The plaintiff or complainant has a legal or an
party or his successors in interest, if the mistake was equitable title to or interest in the real property
mutual; otherwise, upon petition of the injured party, subject of the action, and
or his heirs and assigns [Art. 1368, CC] 2.   The deed, claim, encumbrance, or proceeding
claimed to be casting cloud on his title must be
shown to be in fact invalid or inoperative despite
b.   Consolidation of Ownership its prima facie appearance of validity or legal
efficacy
In case of real property, the consolidation of ownership [Mananquil v. Moico, G.R. No. 180076 (2012)]
in the vendee by virtue of the failure of the vendor to
comply with the provisions of Art. 1616 shall not be
recorded in the Registry of Property without a judicial
order, after the vendor has been duly heard [Art. 1607,
CC]

The vendor cannot avail himself of the right of

repurchase without returning to the vendee the price
of the sale, and in addition:
1.   The expenses of the contract, and any other
legitimate payments made by reason of the sale;
2.   The necessary and useful expenses made on the
thing sold
[Art. 1616, CC]

The action brought to consolidate ownership is not for

the purpose of consolidating the ownership of the
property in the person of the vendee or buyer but for
the registration of the property. The lapse of the
redemption period without the seller a retro exercising
his right of redemption consolidates ownership or title
upon the person of the vendee by operation of law. Art.
1607 requires the filing of the petition to consolidate
ownership because the law precludes the registration
of the consolidated title without judicial order [Rosario
v. Rosario, G.R. No. L-13018 (1960)]

c.   Quieting of Title to Property

1.   Whenever there is a cloud on title to real property
or any interest therein, by reason of any
instrument, record, claim, encumbrance or
proceeding which is apparently valid or effective
but is in truth and in fact invalid, ineffective,
voidable, or unenforceable, and may be
prejudicial to said title, an action may be brought
to remove such cloud or to quiet the title.

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  Review of Judgments provides), with the intervening period used for the
filing of any motion for reconsideration deductible
and Final Orders or from the originally-granted 30 days (instead of the
fresh period of 60 days that Rule 65 provides) [Pates v.
Resolutions of the COMELEC, G.R. No. 184915 (2009)]

COMELEC and COA General rule: Failure to exhaust available remedies file
a motion for reconsideration before the issuing forum
Scope results in the dismissal of the petition.
Review of judgments and final orders or resolutions of
the COMELEC and the COA [Sec. 1, Rule 64] Exceptions:
a.   To prevent a miscarriage of justice
This new rule is based on the provisions of Sec. 7, Art. b.   The issue involves the principle of social justice or
IX-A, Constitution, which states that unless otherwise the protection of labor
provided by this Constitution or by law, any decision, c.   The decision or resolution is a nullity
order, or ruling of each Commission may be brought to d.   Need for relief is extremely urgent and certiorari is
the SC on certiorari within 30 days from receipt of a the only adequate remedy
copy thereof. [ABS-CBN v. COMELEC, G.R. No. 133486 (2000)]

Hence, judgments/orders of the Civil Service Procedure

Commission are now reviewable by CA under Rule 43, Filing of a verified petition [Sec. 5, Rule 64] with
eliminating recourse to the SC [R.A. 7902; SC Revised payment of docket and lawful fees and deposit
Administrative Circular No. 1-95] P500.00 for costs [Sec. 4, Rule 64]
¯
1.   Application of Rule 65 Action on the petition

under Rule 64 The SC may dismiss the petition on the following

grounds:
A judgment or final order or resolution of the (a) Failure to comply with the form and content
COMELEC and the COA may be brought by the requirements in Sec. 5 [Sec. 5, Rule 64]
aggrieved party to the SC on certiorari under Rule 65, (b) Insufficiency in form and substance
except as hereinafter provided [Sec. 2, Rule 64], not on (c) Filed manifestly for delay, or
appeal by certiorari under Rule 45. (d) Questions raised are too unsubstantial to
warrant proceedings
Reglementary period [Sec. 6, Rule 64]
The petition shall be filed within 30 days from notice
of the judgment or final order or resolution sought to If SC finds the petition sufficient in form and
be reviewed [Sec. 3, Rule 64] substance, it shall order respondents to file their
comments on the petition within 10 days from
This follows the express provision of Sec. 7, Art. IX-A, notice [Sec. 6, Rule 64]
Constitution, and is different from Rule 65 which ¯
provides for 60 days (see Sec. 4, Rule 65).
Filing of comments [Sec. 7, Rule 64]
Interruption of the 30-day period ¯
a.   The filing of a motion for new trial or Submission for decision upon the filing of the
reconsideration of said judgment or final order or comments on the petition, or of such other
resolution, if allowed under the procedural rules pleadings or papers as may be required or allowed,
of the Commission concerned, shall interrupt the or the expiration of the period to do so, unless the
period herein fixed. Court sets the case for oral argument, or requires
b.   If the motion is denied, the aggrieved party may the parties to submit memoranda [Sec. 9, Rule 64]
file the petition within the remaining period, but
which shall not be less than 5 days in any event,
reckoned from notice of denial [Sec. 3, Rule 64]

Note: The period is 30 days from notice of the decision

or ruling (instead of the 60 days that Rule 65

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

2.  D istinction in the   Certiorari, Prohibition,

Application of Rule 65 to Mandamus
Judgments of the
COMELEC and COA and 1.   Definitions and
the Application of Rule 65 Distinctions
to Other Tribunals, Certiorari is a writ
Persons and Officers a.   emanating from the proper court directed against
any tribunal, board or officer exercising judicial or
quasi-judicial functions, the purpose of which is to
Rule 64 Rule 65
correct errors of jurisdiction - i.e. without or in
Directed to judgments, Directed to any tribunal,
excess of jurisdiction, or with grave abuse of
final orders or board, or officer
discretion amounting to the same [Sec. 1, Rule 65]
resolutions of exercising judicial or
b.   issued by a superior court to an inferior court of
COMELEC and COA quasi-judicial functions
record, or other tribunal or officer, exercising a
[Sec. 1] [Sec. 1]
judicial function, requiring the certification and
Filed within 30 days Filed within 60 days
return to the former of some proceeding then
from notice of the from notice of the
pending, or the record and proceedings in some
judgment [Sec 3] judgment [Sec. 4]
cause already terminated, in cases where the
procedure is not according to the course of the
common law [Pahilia-Garrido v. Tortogo, G.R. No.
156358 (2011)]

Prohibition is a writ issued by the proper court and

directed against any tribunal, corporation, board,
officer or person, whether exercising judicial, quasi-
judicial or ministerial functions, commanding the
respondent to desist from further proceedings in the
action or matter specified therein [Sec. 2, Rule 65]

Mandamus is a writ to compel a tribunal, corporation,

board, officer or person to do the act required to be
done to protect the rights of the petitioner
a.   When the respondent unlawfully
1.   Neglects the performance of an act which the
law specifically enjoins as a duty resulting
from an office, trust, or station, or
2.   Excludes another from the use and
enjoyment of a right or office to which such
other is entitled, and
b.   There is no other plain, speedy and adequate
remedy in the ordinary course of law
[Sec. 3, Rule 65]

Certiorari Prohibition
Mandamus [Sec.
[Sec. 1, Rule [Sec. 2, Rule
3, Rule 65]
65] 65]
Any tribunal, Any tribunal,
board or corporation,
Any tribunal,
officer board,
corporation,
exercising officer or
board, officer or
judicial or person,
person
quasi-judicial whether
functions exercising

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

judicial, a.   Certiorari Distinguished from

quasi-
judicial or Appeal by Certiorari
ministerial
functions Certiorari as a mode of Certiorari as a special
a.   Unlawfully (1) appeal [Rule 45] civil action [Rule 65]
Neglects the A continuation of the
An original action and
performance appellate process over
not a mode of appeal
of an act the original case
which the law May be directed against
specifically an interlocutory order of
enjoins as a the court or where no
Seeks to review final
duty resulting appeal or plain or
judgment or final orders
from an speedy remedy is
a.   Without or in excess of available in the ordinary
office, trust,
its or his jurisdiction, or course of law
or station, or
with grave abuse of Raises questions of
(2) Excludes
discretion amounting to jurisdiction, i.e. whether
another from
lack or excess of a tribunal, board or
the use and
jurisdiction, and officer exercising
enjoyment of
b.   There is no appeal or any judicial or quasi-judicial
a right or Raises only questions
other plain, speedy, and functions has acted
office to of law
adequate remedy in the without jurisdiction or
which such
ordinary course of law in excess of jurisdiction
other is
entitled, and or with grave abuse of
b.   There is no discretion amounting to
other plain, lack of jurisdiction
speedy and Filed not later than 60
adequate days from notice of
Filed within 15 days
remedy in the judgment, order, or
from notice of
ordinary resolution sought to be
judgment or final order
course of law assailed. In case a
appealed from, or of
Praying that motion for
Praying that the denial of
judgment be reconsideration or new
judgment be petitioner’s motion for
Praying that rendered trial is timely filed, the
rendered reconsideration or new
judgment be (a) 60-day period is
commanding the trial.
rendered commanding counted from notice of
respondent, said denial.
(a) annulling the
immediately or at Extension of 30 days Extension granted only
or modifying respondent
some other time to may be granted for under exceptional cases
the to desist
be specified by the justifiable reasons. (infra).
proceedings from further
court, (a) to do the
of such proceedings Motion for
act required to be Does not require a prior
tribunal, in the action reconsideration is a
done to protect motion for
board or or matter condition precedent,
the rights of the reconsideration
officer, and specified subject to exceptions
petitioner, and (b)
(b) granting therein, or Does not stay the
to pay the
such (b) otherwise judgment or order
damages Stays the judgment
incidental granting subject of the petition,
sustained by the appealed from
reliefs as law such unless enjoined or
petitioner by
and justice incidental restrained
reason of the
may require reliefs as law Parties are the original
wrongful acts of The tribunal, board, or
and justice parties with the
the respondent. officer, exercising
may require. appealing party as the
judicial or quasi-judicial
petitioner and the
functions is impleaded
adverse party as the
as respondent
respondent, without

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

impleading the lower from performing an act board, or officer, to

court or its judge or to perform not perform a ministerial
If the order is sufficient necessarily a legal and and legal duty
in form and substance, ministerial duty
the RTC shall:
1. order respondents to
Review by the SC is
comment, then
2.  R equisites
discretionary and will
2. (a) hear the case or
be granted only when Certiorari
(b) require the parties to
there are special or a.   Respondent is exercising judicial or quasi- judicial
file memoranda.
important reasons function;
[Rule 45, Sec. 6] b.   Respondent acted without or in excess of its
But the SC/CA may
require a comment jurisdiction or acted with grave abuse of discretion
before giving the amounting to lack of jurisdiction; and
petition due course. c.   There must be no appeal or no other plain,
speedy, and adequate remedy
[1 Regalado 612, 2010 Ed.]
[Sec. 1, Rule 65; Barbers v. COMELEC, G.R. No. 165691
(2005)]
Note: The remedies of appeal and certiorari are
mutually exclusive and not alternative or successive.
Prohibition
The antithetic character of appeal and certiorari has
been generally recognized and observed save only on a.   Respondent is exercising judicial or quasi- judicial
those rare instances when appeal is satisfactorily function;
b.   Respondent acted without or in excess of its
shown to be an inadequate remedy. Thus, a petitioner
jurisdiction or acted with grave abuse of discretion
must show valid reasons why the issues raised in his
amounting to lack of jurisdiction; and
petition for certiorari could not have been raised on
c.   There must be no appeal or no other plain,
appeal [Villamar-Sandoval v. Cailipan, G.R. No. 200727
speedy, and adequate remedy
(2013)]
[Sec. 2, Rule 65; Barbers v. COMELEC, G.R. No. 165691
(2005)]
b.   Prohibition and Mandamus
Distinguished from Injunction Mandamus
a.   Respondent unlawfully
1.   neglects the performance of an act which the
Injunction Prohibition
law specifically enjoins as a duty resulting
Ordinary civil action Special civil action
from an office, trust, or station, or
Directed to the court
Directed only to the 2.   excludes another from the use and enjoyment
itself, commanding it to
party litigants, without of a right or office to which such other is
cease from the exercise
in any manner entitled, and
of a jurisdiction to b.   There is no other plain, speedy and adequate
interfering with the
which it has no legal
court remedy in the ordinary course of law
claim
[Sec. 3, Rule 65]
It is based on the
ground that the court Notes on mandamus
Does not involve the against whom the writ a.   There must be a well-defined, clear legal right or
jurisdiction of the court is sought had acted duty [Valmonte v. Belmonte, G.R. No. 74930
without or in excess of (1989)]
jurisdiction The duty must be enjoined by law; hence, a
Main action or contractual duty cannot be enforced by
Main action
provisional remedy mandamus [Province of Pangasinan v. Reparations
Commission, G.R. No. L-27448 (1977)]
Injunction Mandamus b.   Respondent must be exercising ministerial duty
Ordinary civil action Special civil action [Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509
Directed against a (2006)]
Directed against a
tribunal, corporation, However, mandamus “will lie to compel discharge
litigant
board, or officer of the discretionary duty itself but not to control
Purpose is to either Purpose is for the the discretion to be exercised. In other words, a
refrain the defendant tribunal, corporation, mandamus can issue to require action, but not

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specific action.” [Association of Small Landowners General rule: Where an appeal is available, certiorari
in the Philippines, Inc. v. Sec. of Agrarian Reform, will not lie [Jose v. Zulueta, G.R. No. L-16598 (1961)]
G.R. No. 78742 (1989)]
c.   There is no other plain, speedy, and adequate Exceptions:
remedy in the ordinary course of law [Sec. 3, Rule a.   Where appeal does not constitute a speedy and
65]. adequate remedy
b.   Where orders were also issued either in excess of
Discretionary v. ministerial act or without jurisdiction
Discretionary act Ministerial act c.   For certain special considerations, as public
One which an officer or welfare or public policy
tribunal performs in a given d.   Where, in criminal actions, the court rejects the
The law imposes a rebuttal evidence for the prosecution as, in the
state of facts, in a
duty upon a public case of acquittal, there could be no remedy
prescribed manner, in
officer and gives him e.   Where the order is a patent nullity; and
obedience to the mandate
the right to decide f.   Where the decision in the certiorari case will avoid
of a legal authority, without
how or when the future litigations
regard to or the exercise of
duty shall be [Villarica Pawnshop v. Gernale, G.R. No. 163344
his own judgment upon the
performed (2009)]
propriety or impropriety of
the act done
[Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509 Prohibition
(2006)] Prohibition is a preventive remedy. However, to
prevent the respondent from performing the act
Note: The common requisite among certiorari, sought to be prevented during the pendency of the
prohibition, and mandamus is that there is no other proceedings for the writ, the petitioner should obtain
plain, speedy, or adequate remedy in the ordinary a restraining order and/or a writ of preliminary
course of law [Secs. 1, 2, 3, Rule 65] injuction [1 Regalado 801, 2010 Ed.]

Independent action The office of prohibition is not to correct errors of

An original action for Certiorari, Prohibition, or judgment but to prevent or restrain usurpation by
Mandamus is an independent action, and as such, it: inferior tribunals and to compel them to observe the
a.   does not interrupt the course of the principal limitation of their jurisdictions [3 Herrera 321, 2006
action Ed.]
b.   does not affect the running of reglementary
periods involved in the proceedings General rule: Prohibition, as a rule, does NOT lie to
c.   does not stay the execution of the judgment restrain an act which is already fait accompli (one that
unless a TRO or a writ of preliminary injunction has already been done) [Cabañero and Mangornong v.
has been issued Torres, G.R. No. L-43352 (1935)]
[Sec. 7, Rule 65]
Exception: A writ of prohibition will lie to prevent the
unlawful creation of a new province by those in the
3.  When petition for corridors of power who could avoid judicial
Certiorari, Prohibition, intervention and review by merely speedily and
stealthily completing the commission of such
and Mandamus is proper illegality.[Tan v. COMELEC, G.R. No. 73155 (1986)]

Certiorari Mandamus
Certiorari is a corrective remedy used to correct errors A writ of mandamus will not issue to control the
of jurisdiction, not errors of judgment [Republic v. exercise of official discretion or judgment, or to alter or
Sandiganbayan (Second Division) and Benedicto, G.R. review the action taken in the proper exercise of the
No. 129406 (2006)] discretion of judgment, for the writ cannot be used as
a writ of error or other mode of direct review. [Lamb v.
Questions of fact cannot be raised in an original action Phipps, G.R. No. L-7806 (1912)]
for certiorari. Only established or admitted facts may
be considered [Suarez v. NLRC, G.R. No. 124723 However, in extreme situations generally in criminal
(1998)] cases, mandamus lies to compel the performance of
the fiscal of discretionary functions where his

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

actuations are tantamount to a willful refusal to

perform a required duty [1 Regalado 804, 2010 Ed.]
5.  E xceptions to Filing of
Motion for
Grounds:
When any tribunal, corporation, board, officer or Reconsideration before
person unlawfully
a.   NEGLECTS the performance of an act which the
Filing Petition
law specifically enjoins as a duty resulting from an General rule: An MR is an essential precondition for the
office, trust, or station, or filing of a petition for certiorari, prohibition, or
b.   EXCLUDES another from the use and enjoyment mandamus. It is a plain, speedy, and adequate
of a right or office to which such other is entitled remedy. This is to enable the lower court, in the first
[Sec. 3, Rule 65] instance, to pass upon and correct its mistakes
without the intervention of the higher court [Teng v.
Mandamus is the proper remedy when the respondent Pahagac, G.R. No. 169704 (2010)]
unlawfully excludes the petitioner from a public office,
position or franchise to which the latter is entitled Exceptions:
without usurping, intruding into or unlawfully holding a.   An MR may be dispensed with in some cases
the office. However, if the respondent claims any right b.   Where the order is a patent nullity
to the office and usurps, intrudes into or unlawfully c.   Where questions raised in the certiorari
holds it against the petitioner, quo warranto is the proceeding have been duly raised and passed
proper remedy [Sec. 1, Rule 66] upon by the lower court, or are the same as those
raised and passed upon in the lower court
4.  I njunctive Relief d.   Where there is urgent necessity for the resolution
of the question and any further delay would
General rule prejudice the interests of the Government
a.   The petition shall not interrupt the course of the e.   Where under the circumstances, an MR would be
principal case, unless a TRO or a writ of useless, as where the court had already indicated
preliminary injunction has been issued, enjoining that it would deny any MR of its questioned order
the public respondent from further proceeding f.   Where the petitioner was deprived of due process
with the case and there is extreme urgency for relief
b.   The public respondent shall proceed with the g.   Where, in a criminal case, relief from an order of
principal case WITHIN 10 DAYS from filing of the arrest is urgent and granting such relief by trial
petition for certiorari with the higher court, absent court is improbable;
a TRO or preliminary injunction, or upon its h.   Where the proceedings in the lower court are a
expiration. nullity for lack of due process;
c.   Failure of the public respondent to proceed with i.   Where the proceeding was ex-parte or in which
the principal case may be a ground for an the petitioner had no opportunity to object;
administrative charge. j.   Where the issue raised is one purely of law or
[Sec. 7, Rule 65, as amended by A.M. No. 07-7-12-SC] where public interest is involved
k.   Where the subject matter of the action is
Exceptions: perishable
a.   When a TRO or a writ of preliminary injunction [Ombudsman v. Laja, G.R. No. 169241 (2006)]
has been is issued, enjoining the public
respondent from further proceeding with the case
[Sec. 7, Rule 65, as amended by A.M. No. 07-7-12-
6.  R eliefs Petitioner is
SC] Entitled to
b.   Judicial courtesy: Even if there is no injunction
issued, the lower court should defer to the higher Reliefs
court where there is a strong probability that the a.   Court may issue orders expediting the
issues before the higher court would be rendered proceedings, and it may also grant a temporary
moot and moribund as a result of the continuation restraining order or a writ of preliminary
of proceedings in the court of origin [Republic v. injunction for the preservation of the rights of the
Sandiganbayan, G.R. No. 166859 (2006)] parties [Sec. 7, Rule 65]
b.   Incidental reliefs as law and justice may require
[Secs. 1-2, Rule 65]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

c.   Other reliefs prayed to which the petitioner is

entitled [Sec. 8, Rule 65] Acquisition of jurisdiction
a.   If action is filed with the RTC: Follow the rules on
Prayers ordinary civil actions.
a.   Certiorari Jurisdiction is acquired by:
1.   That the judgment be rendered annulling or 1.   Service of summons to respondent or
modifying the proceedings of such tribunal, 2.   By his voluntary appearance in court
board or officer; and b.   If action is filed with the SC/CA: Court acquires
2.   Granting such incidental reliefs as law and jurisdiction over respondents by: service of its
justice may require [Sec. 1, Rule 65] orders upon respondents indicating its:
b.   Prohibition 1.   Initial action on the petition; or
1.   That the judgment be rendered commanding 2.   By their voluntary submission to such
the respondent to desist from further jurisdiction
proceedings in the action or matter specified; [Sec. 4, Rule 65]
or
2.   Otherwise granting such incidental reliefs as PROCEDURE
law and justice may require [Sec. 2, Rule 65,
Sec. 2] When to file
c.   Mandamus Not later than 60 days from notice of judgment/
1.   That the judgment be rendered commanding order/ resolution
the respondent, immediately or at some other
time to be specified by the court, to do the act If a motion for reconsideration/ new trial is filed, the
required to be done to protect the rights of 60-day period shall be counted from notice of denial
the petitioner; and of motion [Sec. 4, Rule 65]
2.   To pay the damages sustained by the
petitioner by reason of the wrongful acts of Where to file
the respondent [Sec. 3, Rule 65] Subject to the doctrine
of hierarchy of courts
7.  Actions/Omissions of and
compelling
only when
reasons
MTC/RTC in Election Supreme Court exist for not filing the
same with the lower
Cases courts [Uy v. Contreras,
G.R. No. 111416-17
In election cases involving an act or omission of a (1994)]
municipal or RTC, the petition [for certiorari, If the petition relates to
prohibition, or mandamus] shall be filed an act or an omission of
EXCLUSIVELY with the COMELEC, in aid of its an MTC, corporation,
appellate jurisdiction [Sec. 4, par. 3, Rule 65 as RTC board, officer or person
amended by A.M. No. 07-7-12- SC (2007)] [Sec. 4, Rule 65, as
amended by A.M. No.
8.  W hen and Where to File 07-7-12-SC]
If the petition involves
Petition an act or an omission of
a quasi-judicial agency,
Petition and contents unless otherwise
A verified petition is Court of Appeals only
provided by law or rules
a.   Filed in the proper court [Sec. 4, Rule 65, as
1.   Alleging the facts with certainty amended by A.M. No.
2.   Praying for the proper judgment; and 07-7-12-SC]
b.   Accompanied by: Whether or not in aid of
1.   A certified true copy of the judgment, order, Court of Appeals or the appellate jurisdiction
resolution subject thereof Sandiganbayan [Sec. 4, A.M. No. 07-7-
2.   Copies of all pleadings and relevant and 12-SC]
pertinent documents Commission on In election cases
3.   A sworn certification of non-forum shopping Elections involving an act or an
[Secs. 1-3, Rule 65]

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omission of an MTC or erring lawyers for patently dilatory and

RTC [Sec. 4, A.M. No. unmeritorious petitioner for certiorari.
07-7-12-SC] [Sec. 8, Rule 65]

Rule on extension of time for filing

General rule: The 60-day period within which to file a

petition for certiorari under Rule 65 is non-extendible.
Exception: Under the following exceptional
circumstances, the Court may extend the period
according to its sound discretion:
a.   Most persuasive and weighty reasons;
b.   To relieve a litigant from an injustice not
commensurate with his failure to comply with the
prescribed procedure;
c.   Good faith of the defaulting party by immediately
paying within a reasonable time from the time of
the default;
d.   The existence of special or compelling
circumstances;
e.   The merits of the case;
f.   A cause not entirely attributable to the fault or
negligence of the party favored by the suspension
of the rules;
g.   A lack of any showing that the review sought is
merely frivolous and dilatory;
h.   The other party will not be unjustly prejudiced
thereby;
i.   Fraud, accident, mistake or excusable negligence
without appellant’s fault;
j.   Peculiar legal and equitable circumstances
attendant to each case;
k.   In the name of substantial justice and fair play;
l.   Importance of the issues involved; and
m.   Exercise of sound discretion by the judge guided
by all the attendant circumstances
[Thenamaris Philippines, Inc. v. CA, G.R. No. 191215
(2014)]

9.  E ffects of Filing of an
Unmeritorious Petition
a.   The court may dismiss the petition if it finds the
same patently without merit or prosecuted
manifestly for delay, or if the questions raised
therein are too unsubstantial to require
consideration.
b.   In such event, the court may award in favor of the
respondent treble costs solidarily against the
petitioner and counsel, in addition to subjecting
counsel to administrative sanctions under Rules
139 and 139-B.
c.   The Court may impose motu proprio, based on res
ipsa loquitur, other disciplinary measures on

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

  Quo Warranto When not proper

1.   Against persons who usurp an office in a private
corporation [Calleja v. Panday, G.R. No. 168696
A quo warranto proceeding is the proper legal remedy (2006)]
to determine the right or title to the contested public 2.   If the dispute is as to the counting of votes or on
office and to oust the holder from its enjoyment matters connected with the conduct of the
[Defensor-Santiago v. Guingona, Jr., G.R. No. 134577 election, a quo warranto is not the proper remedy
(1998)] but an election protest [Cesar v. Garrido, G.R. No.
30705 (1929)]
Literally means “by what authority”, it is a prerogative 3.   Acts or omissions, even if it relates to the
writ by which the court can call upon any person to qualification of integrity, being a continuing
show by what warrant he holds a public office or requirement but nonetheless committed during
exercises a public franchise [Tecson v. COMELEC, G.R. the incumbency of a validly appointed and/or
No. 161434 (2004)] validly elected official, cannot be the subject of a
quo warranto proceeding, but of something else,
Subject matter which may either be impeachment if the public
An action for the usurpation of a public office, official concerned is impeachable and the act or
position or franchise [Sec. 1, Rule 66] omission constitutes an impeachable offense, or
disciplinary, administrative or criminal action, if
An act or omission committed prior to or at the time of otherwise [Republic v. Sereno, G.R. No. 237428
appointment or election relating to an officials (2018)]
qualifications to hold office as to render such
appointment or election invalid is properly the subject Jurisdiction
of a quo warranto petition, provided that the requisites 1.   Original jurisdiction to issue the writ of quo
for the commencement thereof are present [Republic warranto is vested in the SC, CA, and RTC [Sec.
v. Sereno, G.R. No. 237428 (2018)] 5(1), Art. VIII, Constitution; Secs. 9 and 21, B.P. 129]
2.   Quo warranto actions against corporations (as
Against whom may the action be brought opposed to associations without authority) with
1.   A PERSON who usurps, intrudes into, or regard to franchises and rights granted to them,
unlawfully holds or exercises a public office, as well as the dissolution of corporations now fall
position, or franchise under the jurisdiction of the RTC [Sec. 5.2, RA No.
2.   A PUBLIC OFFICER who does or suffers an act, 8799 in relation to P.D. 902-A; Unilongo v. CA,
which, by the provision of law, constitutes a G.R. No. 123910 (1999)]
ground for forfeiture of office; or 3.   The usurpation of an office in a private corporation
3.   An ASSOCIATION which acts as a corporation falls under the jurisdiction of the RTC under Sec.
within the Philippines without being legally 5.2, R.A. 8799 in relation to P.D. 902-A; Calleja v.
incorporated or without lawful authority so to act Panday, G.R. No. 168696 (2006)]
[Sec. 1, Rule 66]

Note: Quo warranto against corporations now fall 1.   Distinguished from Quo
under the jurisdiction of the RTC acting as special Warranto in the Omnibus
commercial courts [Sec. 5.2, R.A. 8799]. Quo warranto
petitions will only lie against de facto corporations. Election Code
Sec. 2, Article XI of the Constitution allows the Quo warranto in
institution of a quo warranto action against an Quo warranto under electoral proceedings
impeachable officer. After all, a quo warranto petition Rule 66 [Sec. 253, Omnibus
is predicated on grounds distinct from those of Election Code]
impeachment. The former questions the validity of a Filed by whom
public officer’s appointment while the latter indicts a.   Solicitor General or
him for so-called impeachable offenses without public prosecutor
questioning his title to the office he holds [Republic v. 1.   when directed
Sereno, G.R. No. 237428 (2018)] by the
Any voter
President of
the
Philippines, or
when upon

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

complaint or such office or position,

otherwise he arose [Sec. 11, Rule 66]
has good Issue
reason to Issue is legality of
believe that the occupancy of the Issue is eligibility
any case office by virtue of a of the person elected
specified in legal appointment [Riano 672]
Sec. 1, Rule 66 [Riano 672]
can be Grounds (against occupants of public offices)
established by a.   A person who
proof, must usurps, intrudes
commence into, or unlawfully
such action holds or exercises a
[Sec. 2, Rule public office,
66]; or position or
2.   at the request franchise; or a.   Ineligibility, or
and upon the b.   A public officer who b.   Disloyalty to the
relation of does or suffers an Republic of the
another person act which, by the Philippines
[Sec. 3, Rule provision of law,
66]; or constitutes a
b.   Person claiming to ground for the
be entitled to a forfeiture of his
public office or office
position usurped or [Sec. 1, Rule 66]
unlawfully held or Effect
exercised by When the respondent is
another in his own found guilty of
name [Sec. 5, Rule The occupant who was
usurping, intruding
66] declared ineligible or
into, or unlawfully
Where filed disloyal will be
holding or exercising a
Venue unseated but the
public office, position or
a.   Commenced by petitioner may be
franchise, judgment
Solicitor General: declared the rightful
shall be rendered that
1.   RTC Manila, occupant of the office if
Jurisdiction such respondent be
2.   CA, or the respondent is
a.   If against the ousted and altogether
3.   SC disqualified and the
election of a excluded therefrom,
b.   Otherwise: petitioner received the
Member of and that the petitioner
1.   RTC with second number of votes
Congress, regional, or relator, as the case
jurisdiction [Maquiling v. COMELEC,
provincial or city may be, recover his
over the G.R. No. 195649 (2013)]
officer: COMELEC costs
territorial area [Sec. 9, Rule 66]
b.   If against a
where
municipal or
respondent or Note: Thus, Rule 66 applies to quo warranto IN
barangay officer:
any of the GENERAL, while election law governs quo warranto
appropriate RTC or
respondents against SPECIFIED elective officials.
MTC, respectively.
resides,
2.   CA or Who may commence the action
3.   SC a.   Solicitor General;
[Sec. 7, Rule 66] b.   Public prosecutor
Period for filing c.   Individual claiming to be entitled to the office or
Within one year after position usurped or unlawfully held or exercised
the cause of such Within 10 days after by another
ouster, or the right of proclamation of results [Sec. 5, Rule 66]
the petitioner to hold

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Note: By analogy with provisions of Sec. 5, it has been where respondent or any or the respondents
held that a public utility may bring a quo warranto resides.
action against another public utility which has
usurped the rights of the former granted under Note: The petition may be brought in the SB in
franchise [Regalado 821, citing Cui v. Cui, G.R. No. certain cases when in aid of its appellate
39773 (1934)] jurisdiction [Sec. 4, P.D. 1606, as amended by R.A.
10660; Riano 670]
b.   When the Solicitor General commences the
2.  W hen Government May action, it may be brought in the RTC in the City of
Commence an Action Manila, CA, or SC [Sec. 7, Rule 66]
against Individuals Period to file
General rule:An action for quo warranto must be
The Solicitor General or a public prosecutor, commenced within 1 year after the cause of such
a.   when directed by the President of the Philippines, ouster, or the right of the petitioner to hold such office
or when upon complaint or otherwise he has good or position, arose [Sec. 11, Rule 66]
reason to believe that any case specified in Sec. 1,
Rule 66 can be established by proof, must The failure to institute the action within the
commence such action [Sec. 2, Rule 66]; or reglementary period constitutes more than a sufficient
b.   with the permission of the court in which the basis for its dismissal [Alejo v. Marquez, G.R. No. L-
action is to be commenced, at the request and 29053 (1971)], since it is not proper that the title to a
upon the relation of another person; but in such public office be subjected to continued uncertainty
case the officer bringing it may first require an [Villegas v. De la Cruz, G.R. No. L-23752 (1965)]
indemnity for the expenses and costs of the action
in an amount approved by and to be deposited in Exception: The prescriptive period does not apply if the
the court by the person at whose request and failure to file the action can be attributed to acts of a
upon whose relation the same is brought [Sec. 3, responsible government officer and not of the
Rule 66] dismissed employee [Romualdez-Yap v. CSC, et. al.,
GR No. 104226 (1993)]
3.  When an Individual May
The pendency of administrative remedies does not
Commence an Action operate to suspend the period of 1 year within which a
petition for quo warranto should be filed [Torres v.
a.   If he claims to be entitled to the office or position Quintos, G.R. No. L-3304 (1951)]
usurped or unlawfully held or exercised by
another, he may bring the action in his own name Reduction of period
[Sec. 5, Rule 66] The court may reduce the period provided by the ROC
b.   He must aver and be able to show that he is for filing pleadings and for all other proceedings in the
entitled to the office in dispute, otherwise the action in order to secure the most expeditious
action may be dismissed at any stage [General v. determination of the matters involved therein
Urro, G.R. No. 191560 (2011)] consistent with the rights of the parties. Such action
c.   A public utility may bring a quo warranto action may be given precedence over any other civil matter
against another public utility which has usurped pending in the court [Sec. 8, Rule 66]
the rights of the former granted under a franchise
[Cui v. Cui, G.R. No. 39773 (1934)]
4.  J udgment in Quo Warranto
Contents of quo warranto petition Action
The petition shall set forth
a.   The name of the person who claims to be entitled When respondent is found guilty, judgment shall be
thereto, if any, rendered that
b.   With an averment of his right to the same and that a.   Such respondent is ousted and altogether
the respondent is unlawfully in possession thereof excluded therefrom; and
[Sec. 6, Rule 66] b.   Petitioner or relator, as the case may be, recover
his costs; and
Where to file Such further judgment may be rendered determining
a.   It may be brought only in the SC, CA, or RTC the respective rights in and to the public office,
exercising jurisdiction over the territorial area

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

position, or franchise of all parties to the action as

justice requires   Expropriation
[Sec. 9, Rule 66]
The power of eminent domain is an inherent and
indispensable power of the State. Also called the
5.  R ights of a Person power of expropriation, it is described as the highest
Adjudged Entitled to and most exact idea of property remaining in the
government that may be acquired for some public
Public Office purpose through a method in the nature of a
compulsory sale to the State [Manapat v. CA, G.R. No.
a.   Execution of the office after taking the oath of 110478 (2007)]
office and executing any official bond required by
the law Requisites
b.   Immediately thereafter demand of the 1.   The property taken must be private property
respondent all the books and papers in the 2.   There must be genuine necessity to take the
respondent’s custody or control appertaining to private property
the office to which judgment relates 3.   The taking must be for public use
4.   There must be payment of just compensation, and
If the respondent refuses or neglects to deliver any 5.   The taking must comply with due process of law
book or paper pursuant to such demand, he may [Manapat v. CA, G.R. No. 110478 (2007)]
be punished for contempt as having disobeyed a
lawful order of the court. There is taking when the expropriator enters private
c.   Bring action against the respondent to recover the property not only for a momentary period but for a
damages sustained by him by reason of the more permanent duration for the purpose of devoting
usurpation the property to a public use in such a manner as to oust
the owner and deprive him of all the beneficial
Must be commenced within one year after entry of enjoyment thereof [Republic v. Sarabia, G.R. No.
judgment establishing petitioner’s right to the 157847 (2005)]
office in question
[Sec. 11, Rule 66] Public use means public usefulness, utility, or
advantage, or what is productive of the general
benefit, so that any appropriation of private property
by the State under its right of eminent domain, for
purposes of great advantage to the community, is a
taking for public use [Reyes v. National Housing
Authority, G.R. No.147511 (2003)]

1.   Matters to Allege in
Complaint for
Expropriation
Verified complaint shall
a.   State with certainty the right and purpose of
expropriation,
b.   Describe the real or personal property sought to
be expropriated, and
c.   Join as defendants all persons owning or claiming
to own, or occupying, any part thereof or interest
therein, showing, so far as practicable, the
separate interest of each defendant.
If the title to any property sought to be expropriated
appears to be in the Republic of the Philippines,
although occupied by private individuals, or if the title
is otherwise obscure or doubtful so that the plaintiff
cannot with accuracy or certainty specify who are the

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real owners, averment to that effect shall be made in a.   Determination by the Court of "the just
the complaint. compensation for the property sought to be
[Sec. 1, Rule 67] taken” with the assistance of not more than three
(3) commissioners.
Note: Where the right of the plaintiff to expropriate is b.   The order fixing the just compensation on the
conferred by law, the complaint does not have to state basis of the evidence before, and findings of, the
with certainty the right of expropriation [Manila commissioners would be final, too. It would finally
Railroad Co. v. Mitchel, G.R. No. L-19280 (1923)] dispose of the second stage of the suit, and leave
nothing more to be done by the Court regarding
Where to file the issue.
RTC where property is located. MTC has no jurisdiction [National Power Corporation v. Posada, G.R. No.
since an action for expropriation is incapable of 191945 (2015)]
pecuniary estimation [Barangay San Roque v. Heirs of
Pastor, G.R. No. 138816 (2000)] Note: A final order sustaining the right to expropriate
the property may be appealed by any party aggrieved
The commencement of the complaint for thereby. Such appeal, however, shall not prevent the
expropriation is necessary only when the owner does court from determining the just compensation to be
not agree to sell his property, or if he is willing to sell paid [Sec. 4, Rule 67]
but does not agree with the price offered [Riano]
3.  When Plaintiff can
2.  T wo Stages in Every Immediately Enter into
Action for Expropriation Possession of Real
Expropriation undergoes two (2) phases. The first Property, in Relation to
phase determines the propriety of the action. The
second phase determines the compensation to be paid R.A. 8974
to the landowner [National Power Corporation v.
Posada, G.R. No. 191945 (2015)] The plaintiff shall have the right to take or enter upon
possession of the real property upon:
First stage: propriety of expropriation: a.   Filing of complaint or at any time thereafter, and
a.   Determination of the authority of the plaintiff to after due notice to defendant and
exercise the power of eminent domain and the b.   Making preliminary deposit
propriety of its exercise in the context of the facts [Sec. 2, Rule 67]
involved in the suit
b.   Ends with an order, if not of dismissal of the Preliminary deposit
action, "of condemnation declaring that the If real property:
plaintiff has a lawful right to take the property an amount equivalent to the
sought to be condemned, for the public use or assessed value of the property for
purpose described in the complaint, upon the purposes of taxation
payment of just compensation to be determined Value
as of the date of the filing of the complaint." If personal property: its value shall
1.   An order of dismissal, would be a final one, be provisionally ascertained and the
since it finally disposes of the action and amount to be deposited shall be
leaves nothing more to be done by the court promptly fixed by the court
on the merits. With the authorized government
Where to
2.   So, too, would an order of condemnation be a depositary to be held by such bank
deposit
final one, for thereafter, as the ROC expressly subject to the orders of the court
state, in the proceedings before the Trial General rule: In money.
Court, "no objection to the exercise of the
right of condemnation (or the propriety Exception: In lieu of money, the court
thereof) shall be filed or heard.” Form of authorizes the deposit of a certificate
[National Power Corporation v. Posada, G.R. No. deposit of deposit of a government bank of
191945 (2015)] the Republic of the Philippines
payable on demand to the
Second Stage: just compensation authorized government depositary

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

The court shall order the sheriff or expropriation

other proper officer to forthwith complaint
After
place the plaintiff in possession of b.   The replacement
deposit is
the property involved and promptly cost at current
made
submit a report thereof to the court market value of
with service of copies to the parties. the
[Sec. 2, Rule 67] improvements
and structures as
Note: The preliminary deposit is only necessary if the determined by:
plaintiff desires entry on the land upon its institution 1.   The
of the action; otherwise, it could always wait until the implementin
order of expropriation is issued before it enters upon g agency
the land [1 Regalado 831, 2010 Ed.] 2.   A
government
Once the preliminary deposit has been made, the financial
expropriator is entitled to a writ of possession as a institution
matter of right, and the issuance of said writ becomes with
ministerial on the part of the trial court [Biglang-Awa adequate
v. Bacalla, G.R. No. 139927 (2000)] experience in
property
Republic Act No. 10752 (2016) appraisal;
a.   An Act Facilitating the Acquisition of Right-of- and
Way Site or Location for National Government 3.   An
Infrastructure Projects independent
b.   Short title: “The Right-of-Way Act” [Sec. 1] property
c.   Repealed R.A. 8974 [Sec. 16] appraiser
accredited by
Sec. 2, Rule the BSP.
R.A. 10752 c.   The current
67
Expropriatio market value of
National government crops and trees
n in general,
infrastructure located within
Scope for both real
projects, as defined the property as
and personal
by Sec. 3 [Sec. 2] determined by a
properties
Upon the filing of the government
complaint or at any financial
time thereafter, and institution or an
after due notice to the independent
Government property
defendant, the
For writ of is required appraiser to be
implementing agency
possessio to make a selected as
shall immediately
n to issue preliminary indicated in Sec.
deposit to the court in
deposit 5(a)
favor of the owner the
amount equivalent to [Sec. 6(a)]
the sum stated below
[Sec. 6(a)] In provinces, cities,
a.   100% of the municipalities, and
value of the land other areas where
Equal to the there is no zonal
based on the
Amount assessed valuation, or where
current relevant
of value of real the current zonal
zonal valuation
payment property for valuation has been in
of the BIR issued
or deposit purposes of force for more than 3
not more than 3
taxation years, the BIR is
years prior to the
filing of the mandated, within the
period of 60 days
from the date of filing

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

of the expropriation to conduct a zonal valuation of the area, based on the

case, to conduct a land classification done by the city or municipal
zonal valuation of the assessor [Sec. 6(c)]
area, based on the
land classification
done by the city or
5.  D efenses and Objections
municipal assessor
[Sec. 6(c)] With objection to or
No objection to or defense
defense against
against taking
taking
Applicable special laws:
a.   R.A. 10752 specifically governs expropriation for What to file and serve
national government infrastructure projects Notice of appearance and a Answer
b.   Sec. 19, LGC governs the exercise of the power of manifestation
eminent domain by LGUs through an enabling Period to file
ordinance Within the time stated in the summons
Contents
a.   Specifically
4.  N ew System of Immediate designate or
Payment of Initial Just identify the
property in
Compensation a.   Manifestation to the
which he claims
to have an
effect that he has no
Upon the filing of the complaint or at any time interest,
objection or defense
thereafter, and after due notice to the defendant, the b.   State the nature
b.   Specifically
implementing agency shall immediately deposit to the and extent of the
designating/identifying
court in favor of the owner the amount equivalent to interest claimed,
the property in which he
the sum of and
claims to be interested
a.   100% of the value of the land based on the current c.   Adduce all his
relevant zonal valuation of the BIR issued not objections and
more than 3 years prior to the filing of the defenses to the
expropriation complaint taking of his
b.   The replacement cost at current market value of property
the improvements and structures as determined Prohibited
by Counterclaim, cross-
1.   The implementing agency claim or third party
2.   A government financial institution with complaint in the
adequate experience in property appraisal, answer or any
and subsequent
3.   An independent property appraiser pleading
accredited by the BSP. [Sec. 3, Rule 67]
c.   The current market value of crops and trees
located within the property as determined by a Omnibus motion rule
government financial institution or an A motion attacking a pleading, order, judgment or
independent property appraiser to be selected as proceeding shall include all objections then available,
indicated in Sec. 5(a) and all objections not so included shall be deemed
Upon compliance with the guidelines waived [Sec. 8, Rule 15]
abovementioned, the court shall immediately issue to
the implementing agency an order to take possession A defendant waives all defenses and objections not so
of the property and start the implementation of the alleged, but the court, in the interest of justice, may
project. permit amendments to the answer not to be made
[Sec. 6, R.A. 10752] later than ten (10) days from filing thereof [Sec. 3, Rule
67]
In provinces, cities, municipalities, and other areas
where there is no zonal valuation, or where the current Effect of failure to file answer
zonal valuation has been in force for more than 3 The failure to file an answer does not produce all the
years, the BIR is mandated, within the period of 60 disastrous consequences of default in ordinary civil
days from the date of filing of the expropriation case, actions, because the defendant may still present

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

evidence as to just compensation [Robern

Development Corp. v. Quitain, G.R. No. 135042 (1999)] a.   Upon the rendition of the order of expropriation,
the court shall appoint not more than 3
competent and disinterested persons as
6.  O rder of Expropriation commissioners to ascertain and report to the
court the just compensation for the property
When issued sought to be taken.
a.   If the objections to and the defenses against the b.   The order of appointment shall designate the
right of the plaintiff to expropriate the property time and place of the first session of the hearing
are overruled, or to be held by the commissioners and specify the
b.   When no party appears to defend as required by time within which their report shall be submitted
this Rule to the court.
[Sec. 3, Rule 67] c.   Copies of the order shall be served on the parties.
d.   Objections to the appointment of any of the
Contents of order commissioners shall be filed with the court within
Declaration that the plaintiff has a lawful right to take 10 days from service, and shall be resolved within
the property sought to be expropriated, for the public 30 days after all the commissioners shall have
use or purpose described in the complaint, upon the received copies of the objections.
payment of just compensation to be determined as of [Sec. 5, Rule 67]
the date of the taking of the property or the filing of
the complaint, whichever came first [Sec. 3, Rule 67] Just Compensation
Just compensation is the full and fair equivalent of the
Remedy of defendant property taken from its owner by the expropriator. Just
a.   A final order sustaining the right to expropriate compensation means not only (1) the correct
the property may be appealed by any party determination of the amount to be paid but also (2)
aggrieved thereby. the payment of the land within a reasonable time from
b.   Such appeal, however, shall not prevent the court its taking [Land Bank v. Obias, G.R. No. 184406 (2012)]
from determining the just compensation to be
paid Market Value
[Sec. 3, Rule 67] It is the sum of money which a person desirous but not
compelled to buy, and an owner willing but not
The order of condemnation is final. Hence, it is compelled to sell, would agree on as a price to be
appealable [Heirs of Alberto Suguitan v. City of given and received therefore [BPI v. CA, G.R. No.
Mandaluyong, G.R. No. 135087 (2000)] 160890 (2004)]
Effects of the order When market value should be fixed:
The plaintiff shall not be permitted to dismiss or a.   If plaintiff takes possession before the institution
discontinue the proceeding except on such terms as of proceedings: value is fixed as of TIME OF
the court deems just and equitable [Sec. 4, Rule 67] TAKING; or
b.   If taking coincides with or is subsequent to the
The order forecloses any further objections to the right commencement of proceedings: value is fixed as
to expropriate and to the public purpose of the of DATE OF FILING of the complaint.
expropriation, leaving the matter of just compensation [Republic v. Philippine National Bank, G.R. No. L-14158
as the only remaining substantial issue [Robern (1961)]
Development Corp. v. Quitain, G.R. No. 135042 (1999)]

Note: Multiple appeals are permitted in expropriation. 8.  A ppointment of

An appeal may be taken from the order authorizing
the expropriation and thereafter, another appeal on
Commissioners;
the judgment on the just compensation. Thus, the Commissioner’s report;
reglementary period to appeal shall be 30 days and a
record on appeal shall be required for each of the Court Action upon
permissible appeals [Regalado 837] Commissioner’s report
7.  Ascertainment of Just Qualifications
a.   Competent; and
Compensation b.   Disinterested [Sec. 5, Rule 67]

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Proceedings by commissioners were notified of their appointment, which time

a.   Oath: Before entering upon the performance of may be extended in the discretion of the court.
their duties, the commissioners shall take and Upon the filing of such report, the clerk of the
subscribe an oath that they will faithfully perform court shall serve copies thereof on all interested
their duties as commissioners, which oath shall be parties, with notice that they are allowed 10 days
filed in court with the other proceedings in the within which to file objections to the findings of
case. the report, if they so desire.
b.   Introduction of evidence: Evidence may be [Sec. 7, Rule 67]
introduced by either party before the
commissioners who are authorized to administer Action upon commissioner’s report
oaths on hearings before them a.   Upon the expiration of the period of 10 days
[Sec. 6, Rule 67] referred to in Sec. 7, or
b.   Even before the expiration of such period but after
Duties of commissioners all the interested parties have filed their
a.   Unless the parties consent to the contrary, after objections to the report or their statement of
due notice to the parties to attend, view and agreement therewith,
examine the property sought to be expropriated
and its surroundings, and may measure the same, the court may
after which either party may, by himself or 1.   After hearing, accept the report and render
counsel, argue the case. judgment in accordance therewith, or
b.   Assess the consequential damages to the 2.   For cause shown, recommit the same to the
property not taken and deduct from such commissioners for further report of facts, or
consequential damages the consequential 3.   Set aside the report and appoint new
benefits to be derived by the owner from the commissioners, or
public use or purpose of the property taken, the 4.   Accept the report in part and reject it in part;
operation of its franchise by the corporation or the and
carrying on of the business of the corporation or
person taking the property. In no case shall the the court may make such order or render such
consequential benefits assessed exceed the judgment as shall secure to the
consequential damages assessed, or the owner be 1.   Plaintiff the property essential to the exercise
deprived of the actual value of his property so of his right of expropriation, and
taken 2.   Defendant just compensation for the property
[Sec. 6, Rule 67] so taken
[Sec. 8, Rule 67]
Consequential benefits are those that proximately
result from the remaining portion of the land [1 The appointment of commissioners to ascertain just
Regalado 843, 2010 Ed.] compensation for the property sought to be taken is a
mandatory requirement in expropriation cases [Riano]
Report by commissioners
a.   The court may The trial with the aid of the commissioners is a
1.   Order the commissioners to report when any substantial right that may not be done away with
particular portion of the real estate shall have capriciously or for no reason at all. The absence of
been passed upon by them, and such trial or hearing constitutes a violation of the right
2.   Render judgment upon such partial report, to due process [NPC v. de la Cruz, G.R. No. 156093
and (2007)]
3.   Direct the commissioners to proceed with
their work as to subsequent portions of the
property sought to be expropriated, and may
9.  R ights of Plaintiff upon
from time to time so deal with such property Judgment and Payment
b.   The commissioners shall make a full and accurate
report to the court of all their proceedings, and a.   Upon payment by the plaintiff to the defendant of
such proceedings shall not be effectual until the the compensation fixed by the judgment, with
court shall have accepted their report and legal interest thereon from the taking of the
rendered judgment in accordance with their possession of the property, or
recommendations. Except as otherwise expressly b.   After tender to him of the amount so fixed and
ordered by the court, such report shall be filed payment of the costs, the plaintiff shall have the
within 60 days from the date the commissioners right to

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1.   enter upon the property expropriated and to

appropriate it for the public use or purpose   Foreclosure of Real
defined in the judgment, or
2.   retain it should he have taken immediate
Estate Mortgage
possession thereof under the provisions of
Sec. 2, Rule 67 Foreclosure of mortgage is the process by which a
[Sec. 10, Rule 67] mortgagee acquires an absolute title to the property
of which he had previously been only the conditional
If the defendant and his counsel owner, or upon which he had previously a mere lien or
a.   absent themselves from the court, or encumbrance [Benedicto v. Yulo, G.R. No. L-8106
b.   decline to receive the amount tendered, (1913)]
the same shall be ordered to be deposited in court and
such deposit shall have the same effect as actual Foreclosure is the necessary consequence of non-
payment thereof to the defendant or the person payment of mortgage indebtedness. The mortgage
ultimately adjudged entitled thereto can be foreclosed only when:
[Sec. 10, Rule 67] 1.   The debt remains unpaid at the time it is due
[Producers Bank v. CA, G.R. No. 111584 (2001)], or
Effect of non-payment of just compensation 2.   In case of default in the payment of obligation
Non-payment of just compensation does not entitle [PNB v. CA, G.R. No. 126908 (2003)]
the private landowner to recover possession of the
expropriated lots. However, in cases where the The cause of action in a foreclosure suit is generally
government failed to pay just compensation within 5 the non-payment of the mortgage loan, but it may be
years from the finality of judgment in the expropriation on other grounds which under the contract warrant
proceedings, the owners concerned shall have the the foreclosure, such as the violation of the other
right to recover possession of their property [Yujuico v. conditions therein [1 Regalado 852, 2010 Ed.]
Atienza, G.R. No. 164282 (2005)]
Foreclosure may be:
1.   Judicial: governed by Rule 68
10.  Effect of Entry of 2.   Extrajudicial: proper only when so provided in
contracts in accordance with Act 3135; governed
Judgment by A.M. No. 99-10-05
Contents of the judgment Venue
State definitely A foreclosure action must be brought in the RTC of the
a.   By an adequate description, the particular province where the land or any part thereof is situated.
property or interest therein expropriated, and If a mortgage contract covers several distinct parcels
b.   The nature of the public use or purpose for which of land situated in different provinces, the action may
it is expropriated be brought in the Court of First Instance of any of the
[Sec. 13, Rule 67] provinces and the judgment will be enforceable
against any of the parcels of land involved [Monte de
When title to property vests Piedad v. Rodrigo, G.R. No. L-42928 (1936)]
a.   If personal property, upon payment of just
compensation [Sec. 10, Rule 67] Contents of the complaint
b.   If real property, upon 1.   The date and due execution of the mortgage
1.   payment of just compensation; and 2.   Its assignments, if any
2.   registration of property (by recording of the 3.   The names and residences of the mortgagor and
judgment in the registry of deeds where the the mortgagee
property is situated) 4.   A description of the mortgaged property
[Sec. 13, Rule 67] 5.   A statement of the date of the note or other
documentary evidence of the obligation secured
by the mortgage
6.   The amount claimed to be unpaid thereon; and
7.   The names and residences of all persons having
or claiming an interest in the property subordinate
in right to that of the holder of the mortgage, all
of whom shall be made defendants in the action
[Sec. 1, Rule 68]

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Defendants in a judicial foreclosure: When the defendant, after being directed to do so as

1.   Persons obliged to pay the mortgage debt provided in Sec. 2, Rule 68, fails to pay the amount of
2.   Persons who own, occupy, or control the the judgment within the period specified therein, the
mortgaged premises or any part thereof [Soriano court, upon motion, shall order the property to be sold
v. Enriquez, GR No. 7708 (1913)] in the manner and under the provisions of Rule 39 and
3.   Transferee or grantee of the property [De Villa v. other regulations governing sales of real estate under
Fabricante, G.R. No. L-13063 (1959)] execution [Sec. 3, Rule 68]
4.   The second mortgagee or junior encumbrancer, or
any person claiming a right or interest in the A motion for such order of sale is non-litigable and
property subordinate to the mortgage sought to may be made ex parte [Gov’t of the Phil. Islands v. De
be foreclosed; but if the action is by the junior las Cajigas, G.R. No. 33913 (1931)]
encumbrancer, the first mortgagee may also be
joined as defendant [De la Riva v. Reynoso, G.R. Limitation: Such sale shall not affect the rights of
No. 41701 (1935)] [1 Regalado 850-851] persons holding prior encumbrances upon the
property or a part thereof [Sec. 3, Rule 68]
1.   Judgment on Foreclosure If the order of foreclosure sale does not push through,
for Payment or Sale there is a need for re-publication and reposting of the
notice thereof [Metrobank v. Nikko Resources Int’l
If upon the trial in such action the court shall Corp., G.R. No. 178479 (2009)]
a.   Find the facts set forth in the complaint to be true,
it shall ascertain the amount due to the plaintiff Order of confirmation
upon the mortgage debt or obligation, including When confirmed by an order of the court, also upon
interest and other charges as approved by the motion, it shall operate to divest the rights in the
court, and costs, and property of all the parties to the action and to vest their
b.   Render judgment for the sum so found due and rights in the purchaser, subject to such rights of
order that redemption as may be allowed by law [Sec. 3, Rule 68]
1.   The same be paid to the court or to the
judgment obligee within a period of not less Confirmation of the sale of mortgaged real property
than 90 days nor more than 120 days from the vests title in the purchaser including the equity of
entry of judgment, and redemption. It retroacts to the date of the sale. It cuts
2.   In default of such payment the property shall off all the rights or interests of the mortgagor and of
be sold at public auction to satisfy the the mortgagee [Lonzame v. Amores, G.R. No. L-53620
judgment. (1985)]
[Sec. 2, Rule 68]
The motion for the confirmation of the sale requires a
The period of payment by the mortgagor is a hearing to grant an opportunity to the mortgagor to
mandatory directive and constitutes a substantive show cause why the sale should not be confirmed
right of the mortgagor. It cannot be omitted in judicial [Tiglao v. Botones, G.R. No. L-3619 (1951)] (e.g. by
foreclosure nor can the parties by agreement change proof of irregularities therein, gross inadequacy of the
the procedure outlined [1 Regalado 855, 2010 Ed.] price, lack of notice vitiates the confirmation of the
sale) [1 Regalado 857, 2010 Ed.]
Multiple appeals
a.   Multiple appeals are allowed under Rule 68. Writ of possession
b.   Judgment of foreclosure is appealable. General rule: Upon the finality of the order of
c.   Order confirming foreclosure sale is a final confirmation or upon the expiration of the period of
disposition with respect to the issue of validity and redemption when allowed by law, the purchaser at the
regularity of the sale. auction sale or last redemptioner, if any, shall be
d.   Deficiency judgment is a disposition on the merits entitled to the possession of the property. The said
of the correctness of such award [1 Regalado 854, purchaser or last redemptioner may secure a writ of
2010 Ed.] possession, upon motion, from the court which
ordered the foreclosure
2.  S ale of Mortgaged Exception: Third party is actually holding the same
Property; Effect adversely to the judgment obligor
[Sec. 3, Rule 67]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

a.   When the mortgagor is a non-resident and is

3.  Disposition of Proceeds of not found in the Philippines. (Rationale: The
Sale proceeding would be procedurally infeasible
as a deficiency judgment is in personam, and
a.   The amount realized from the foreclosure sale of under this situation, jurisdiction over the
the mortgaged property shall, after deducting the obligor cannot be had [Riano])
costs of the sale, be paid to the person foreclosing b.   When mortgagor dies, mortgagee may file his
the mortgage, and claim with the probate court [Sec. 7, Rule 86]
b.   When there shall be any balance or residue, after c.   If mortgagor is a third party mortgagor but
paying off the mortgage debt due, not solidarily liable with debtor [Phil. Trust Co.
1.   The same shall be paid to junior v. Tan Siua, G.R. No. 29736 (1929)]
encumbrancers in the order of their priority, 2.   In case of a mortgage debt due from the estate of
to be ascertained by the court, or a deceased mortgagor and the mortgage creditor
2.   If there be no such encumbrancers or there be availed of the third remedy which is to rely upon
a balance or residue after payment to them, his mortgage alone and foreclosing the same
then to the mortgagor or his duly authorized within the statute of limitations [Sec. 7, Rule 86]
agent, or to the person entitled to it 3.   When the deficiency arises under an extrajudicial
[Sec. 4, Rule 68] foreclosure. The mortgagee can recover by action
(not by motion) any deficiency in the mortgage
account which was not realized in the foreclosure
4.  D eficiency Judgment sale [PNB v. CA, G.R. No. 121739 (1999)]

If upon the sale of any real property as provided in Sec. When there is a surplus instead of deficiency
5 there be a balance due to the plaintiff after applying It is the duty of the mortgagee to return to the
the proceeds of the sale, mortgagor any surplus in the selling price during the
a.   The court, upon motion, shall render judgment foreclosure sale [Sulit v. CA, G.R. No. 119247 (1997)]
against the defendant for any such balance for
which, by the record of the case, he may be
personally liable to the plaintiff, upon which 5.  J udicial Foreclosure v.
execution may issue immediately if the balance is Extrajudicial Foreclosure
all due at the time of the rendition of the Extrajudicial
judgment; Judicial foreclosure
foreclosure
b.   Otherwise, the plaintiff shall be entitled to
Requires court No court intervention
execution at such time as the balance remaining
intervention necessary
becomes due under the terms of the original
Right of redemption
contract, which time shall be stated in the
exists; mortgagor has a
judgment
There is only an equity right to redeem the
[Sec. 6, Rule 68]
of redemption [Huerta property within one
Alba Resort, Inc. v. CA, year from registration of
A motion for deficiency judgment may be made only
G.R. No. 128567 the deed of sale [Huerta
after the sale and after it becomes known that a
(2000)] Alba Resort, Inc. v. CA,
deficiency exists [Governor of the Philippine Islands v.
G.R. No. 128567
Torralba Vda. de Santos, G.R. No. 41573 (1935)]
(2000), citing Act 3135]
Note: A deficiency judgment is an action in personam Governed by Rule 68 Governed by Act 3135
while a judgment of foreclosure is an action quasi in No deficiency judgment
rem [Ocampo v. Domalanta, G.R. No. L-21011 (1967)] because there is no
There could be a judicial proceeding in
If the debtor dies, the deficiency may be filed as a claim deficiency judgment the foreclosure of the
against his estate [Sec. 7, Rule 86] [Sec. 6, Rule 68] mortgage itself [1
Regalado 859, 2010
Ed.]
a.   Instances when Court Cannot Recovery of deficiency is
Deficiency judgment
Render Deficiency Judgment shall be rendered, on
through an
independent action [1
motion [1 Regalado
1.   Under the Recto Law [Art. 1484, par. 3, CC] Regalado 859, 2010
859, 2010 Ed.]
Ed.]

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Exception: In case of
extrajudicial   Partition
foreclosure, juridical
persons shall have the Partition is the separation, division and assignment of
Exception: Mortgagor a thing held in common among those to whom it may
right to redeem until,
may exercise right of belong. Every act which is intended to put an end to
but not after, the
redemption within one indivision among co-heirs and legatees or devisees is
registration of the
year after the sale, deemed to be a partition [Marcos v. Heirs of Isidro
certificate of foreclosure
when the loan or credit Bangi, G.R. No. 185745 (2014)]
sale with the Register of
accommodation is
Deeds which in no case
granted by a bank [Sec. Partition may be:
shall be more than 3
47, R.A. 8791] 1.   Judicial – Procedure is Rule 69
months after
foreclosure, whichever 2.   Extrajudicial – No court intervention is required
is earlier [Sec. 47, R.A.
8791] Nothing in Rule 69 contained shall be construed so as
to restrict or prevent persons holding real estate jointly
or in common from making an amicable partition
6.  E quity of Redemption v. thereof by agreement and suitable instruments of
Right of Redemption conveyance without recourse to an action [Sec. 12,
Rule 69]
Equity of redemption is the right of defendant
An action for partition and accounting under Rule 69
mortgagor to extinguish the mortgage and retain
is in the nature of an action quasi in rem. Such action
ownership of the property by paying the secured debt
is essentially for the purpose of affecting the
within the 90 to 120 day period after entry of judgment
defendant’s interest in a specific property and not to
or even after the foreclosure sale but prior to its
render a judgment against him [Valmonte v. CA, G.R.
confirmation [Sps. Sibug v. Sps. Suba, G.R. No. 137792
No. 108538 (1996)]
(2003)]
When partition can be done
Equity of redemption Right of redemption
General rule: Prescription does not run in favor of a co-
Right of defendant owner or co-heirs as long as there is a recognition of
mortgagor to the co-ownership, expressly or impliedly [2 Riano 416,
extinguish the Right of the debtor, his 2012 Bantam Ed.]
mortgage and retain successor in interest, or
ownership of the any judicial creditor of Exception: If a co-owner asserts adverse title to the
property by paying the said debtor or any property, in which case, the prescription period runs
secured debt within the person having a lien on from such time of assertion of the adverse title [De
90 to 120-day period the property Castro v. Echarri, G.R. No. 5609 (1911)]
after entry of judgment subsequent to the
or even after the mortgage. When partition cannot be done
foreclosure sale but 1.   When there is a stipulation against it, but not
prior to its confirmation exceeding 10 years; [Art. 494, CC]
Period is 90-120 days 2.   When partition is prohibited by the donor or
after entry of judgment Period is 1 year from testator for a period not exceeding 20 years; [Arts.
or even after date of registration of 494, 1083, CC]
foreclosure sale but certificate of sale 3.   When partition is prohibited by law (e.g. ACP,
prior to confirmation party wall); [Art. 494, CC]
Governed by Sec. 29-31, 4.   When the property is not subject to a physical
Governed by Rule 68
Rule 39 division and to do so would render it
unserviceable for the use for which is it intended;
Note: What Rule 68, Secs. 2-3 provide for is the [Art. 495, CC] or
mortgagor’s EQUITY of redemption. This may be 5.   When the condition imposed upon voluntary heirs
exercised by him even beyond the period to pay the before they can demand partition has not yet been
judgment obligation (i.e. 90-120 days) and even after fulfilled [Art. 1084, CC]
the foreclosure sale itself, provided it be before the
order of the confirmation of sale [Rosales v. Alfonso,
G.R. No. 137792 (2003)]

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these cannot be demanded in another action

1.   Who May File Complaint; (because they are part of the cause of action for
Who Should be Made partition), they are barred if not set up [2 Riano
420, 2012 Bantam Ed.]
Defendants
Who may file 3.  Two Stages in Every
A person having the right to compel the partition of
real estate [Sec. 1, Rule 69]
Action for Partition
First stage - Determination of the propriety of
Who should be made defendants partition
All other persons interested in the property [Sec. 1, This involves a determination of whether the subject
Rule 69] property is owned in common and whether all the co-
owners are made parties in the case [Lacbayan v.
Jurisdiction Samoy, G.R. No. 165427 (2011)]
a.   The primary issue to be determined in an action
for partition boils down to whether or not the The order may also require an accounting of rents and
plaintiff has a right to partition, an issue incapable profits recovered by the defendant. This order of
of pecuniary estimation. Thus, from this partition is appealable [Miranda v. CA, G.R. No. L-
perspective, it may be argued that the action 33007 (1976)]
would be cognizable by the RTC.
b.   However, an action for partition of real property If not appealed, then the parties may partition the
also involves “interest in real property.” Sec. 19(2) common property in the way they want. If they cannot
of B.P. 129, as amended by R.A. 7691, requires that agree, then the case goes into the second stage.
in all civil actions involving the title to, or However, the order of accounting may in the
possession of, real property, or any interest meantime be executed [De Mesa v. CA, G.R.
therein, the jurisdiction should be determined by No.109387 (1994)]
inquiring into the assessed value of the real
property. Under this provision, an action for A final order decreeing partition and accounting may
partition of real property may be filed in the MTC be appealed by any party aggrieved thereby [Sec. 2,
depending on the assessed value of the property. Rule 69]
c.   Perhaps guidance may be obtained from Heirs of
Concha, Sr. v. Lumocso [G.R. No. 158121 (2007): Second stage - Actual partitioning of the subject
1.   Under the old law, there was no substantial property
effect on jurisdiction whether a case is one There can be no partition again because there is no
incapable of pecuniary estimation. more common property [Noceda v. CA, G.R. No. 119730
2.   The distinction between the two classes (1999)]
became crucial with the amendment
introduced by R.A. 7691 in 1994 which The action for partition is subject to multiple appeals
expanded the exclusive original jurisdiction of and would require a record on appeal [Roman Catholic
the first level courts Archbishop of Manila v. CA, G.R. No. 77425 (1991)]
[2 Riano 417, 2012 Bantam Ed.]

2.  M atters to Allege in the 4.  O rder of Partition and

Complaint for Partition Partition by Agreement
a.   Order of partition: If after the trial the court finds
Contents that the plaintiff has the right thereto, it shall
a.   The nature and extent of his title and order the partition of the real estate among all the
b.   Adequate description of the real estate of which parties in interest.
partition is demanded b.   Partition by agreement: Thereupon the parties
c.   Joining as defendants all other persons interested may, if they are able to agree, make the partition
in the property among themselves by proper instruments of
[Sec. 1, Rule 69] conveyance, and the court shall confirm the
d.   Demand for accounting of the rents, profits, and partition so agreed upon by all the parties, and
other income from the property to which he may such partition, together with the order of the court
be entitled to as his share [Sec. 8, Rule 69] Since

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confirming the same, shall be recorded in the interests of the parties, the court may order it assigned
registry of deeds of the place in which the property to one of the parties willing to take the same, provided
is situated. he pays to the other parties such amounts as the
commissioners deem equitable
5.  P artition by Exception: If one of the interested parties asks that the
Commissioners; property be sold instead of being so assigned, in which
case the court shall order the commissioners to sell
Appointment of the real estate at public sale under such conditions
Commissioners, and within such time as the court may determine
[Sec. 5, Rule 69]
Commissioner’s Report;
Commissioner’s report
Court Action upon a.   The commissioners shall make a full and accurate
Commissioner’s Report report to the court of all their proceedings as to
the partition, or the assignment of real estate to
When proper one of the parties, or the sale of the same.
If the parties are unable to agree upon the partition b.   Upon the filing of such report, the clerk of court
[Sec. 3, Rule 69] shall serve copies thereof on all the interested
parties with notice that they are allowed 10 days
Procedure within which to file objections to the findings of
The court shall appoint not more than 3 competent the report, if they so desire.
and disinterested persons as commissioners to make c.   No proceeding had before or conducted by the
the partition, commanding them to set off to the commissioners shall pass the title to the property
plaintiff and to each party in interest such part and or bind the parties until the court shall have
proportion of the property as the court shall direct accepted the report of the commissioners and
[Sec. 3, Rule 69] rendered judgment thereon
[Sec. 6, Rule 69]
Oath of commissioners
Before making such partition, the commissioners shall Hearing on the report
take and subscribe an oath that they will faithfully a.   Upon the expiration of the period of 10 days
perform their duties as commissioners, which oath referred to in Sec. 6, Rule 69, or
shall be filed in court with the other proceedings in the b.   Even before the expiration of such period but after
case [Sec. 4, Rule 69] the interested parties have filed their objections to
the report or their statement of agreement
Duties of commissioners therewith, the court may,
a.   View and examine the real estate, after due notice 1.   Upon hearing, accept the report and render
to the parties to attend at such view and judgment in accordance therewith, or,
examination, and 2.   For cause shown, recommit the same to the
b.   Hear the parties as to their preference in the commissioners for further report of facts, or
portion of the property to be set apart to them and 3.   Set aside the report and appoint new
the comparative value thereof, and commissioners, or
c.   Set apart the same to the parties in lots or parcels 4.   Accept the report in part and reject it in part;
as will be most advantageous and equitable, and
having due regard to the improvements, situation the court may make such order and render such
and quality of the different parts thereof judgment as shall effectuate a fair and just partition of
[Sec. 4, Rule 69] the real estate, or of its value, if assigned or sold as
above provided, between the several owners thereof.
The provision authorizes the commissioners merely to [Sec. 7, Rule 69]
make or effect the partition. It does not grant them the
authority to adjudicate on questions of title or 6.  J udgment and Its Effects
ownership [1 Riano 424, 2012 Bantam Ed.]
Contents of judgment Effects of judgment
Assignment of real estate to one party
If actual partition is properly made
General rule: When it is made to appear to the
Judgment shall state Judgment shall vest in
commissioners that the real estate, or a portion
definitely, by metes and each party to the action
thereof, cannot be divided without prejudice to the

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bounds and adequate

description, the
in severalty the portion
of the real estate   Forcible Entry and
particular portion of the assigned to him
real estate assigned to
Unlawful Detainer
each party
Ejectment cases are summary proceedings intended
If the whole property is assigned to one of the parties
to provide an expeditious means of protecting actual
after payment
possession of property [Tubiano v. Razo, G.R. No.
Judgment shall vest in
Judgment shall state 132598 (2000)]
the party making the
the fact of such
payment the whole of
payment and of the The actions for forcible entry and unlawful detainer
the real estate free from
assignment of the real belong to the class of actions known by the generic
any interest on the part
estate to the party name accion interdictal (ejectment) where the issue is
of the other parties to
making the payment the right of physical or material possession of the
the action
subject real property independent of any claim of
If the property is sold and the sale confirmed by the ownership by the parties involved [A. Francisco Realty
court and Development Corp. v. CA, G.R. No. 125055 (1988)]
Judgment shall state Judgment shall vest the
the name of the real estate in the Accion interdictal comprises two distinct causes of
purchaser or purchasers purchaser or purchasers action:
and a definite making the payment or 1.   Forcible entry (detentacion), where one is deprived
description of the payments, free from the of physical possession of the real property by
parcels of real estate claims of any of the means of force, intimidation, strategy, threats or
sold to each purchaser parties to the action stealth;
[Sec. 11, Rule 69] 2.   Unlawful detainer (desahuico), where one illegally
withholds possession after the expiration or
A certified copy of the judgment shall in either case be termination of his right to hold possession under
recorded in the registry of deeds of the place in which any contract, express or implied
the real estate is situated, and the expenses of such [Sps. Valdez v. CA, G.R. No. 132424 (2006)]
recording shall be taxed as part of the costs of the
action [Sec. 11, Rule 69]
1.   Definitions and
7.  Partition of Personal Distinctions
Property Forcible entry Unlawful detainer
(detentacion) (desahucio)
The provisions of Rule 69 shall apply to partitions of Possession is
estates composed of personal property, or of both real inceptively lawful but it
and personal property, in so far as the same may be Possession of land by
becomes illegal by
applicable [Sec. 13, Rule 69] defendant is unlawful
reason of the
from the beginning as
termination of his right
he acquires possession
8.  P rescription of action by force, intimidation,
to possession of the
property under his
strategy, threat, or
The right of action to demand partition does not contract (express or
stealth (FISTS) [Dikit v.
prescribe [De Castro v. Echarri, G.R. No. 5609 (1911)], implied) with the
Ycasiano, G.R. No. L-
except where one of the interested parties openly and plaintiff [Dikit v.
3621 (1951)]
adversely occupies the property without recognizing Ycasiano, G.R. No. L-
the co-ownership [Cordova v. Cordova, G.R. No. L- 3621 (1951)]
9936 (1958)] in which case, acquisitive prescription No previous demand for
Demand is
may set in. defendant to vacate the
jurisdictional [Sec. 2,
premises is necessary
Rule 70; Medel v.
If a co-owner repudiates the co-ownership and makes [Sec. 2, Rule 70; Medel
Militante, G.R. No.
known such repudiation to the other co- owners, then v. Militante, G.R. No.
16096 (1921)].
partition is no longer a proper remedy of the aggrieved 16096 (1921)]
co-owner. He must file an accion reivindicatoria, which Plaintiff must prove Plaintiff need not have
is prescriptible [Roque v. IAC, G.R. No. 75886 (1988)] that he was in prior been in prior physical
physical possession of possession [Pharma

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

the premises until he Industries, Inc. v. MTC has jurisdiction if value of

was deprived thereof by Pajarillaga, G.R. No. property does not exceed the
defendant [Pharma 53788 (1980)] above amounts
Industries, Inc. v.
Pajarillaga, G.R. No. [Sec. 19 and 33, B.P. 129, as
53788 (1980)] amended]
Period is counted from
The 1-year period is the date of last demand
generally counted from [Sarona v. Villegas, G.R. 3.  How to Determine
date of actual entry on No. L-22984 (1968)]] or
land [1 Regalado 873, last letter of demand Jurisdiction in Accion
2010 Ed.] [DBP v. Canonoy, G.R.
No. L-29422, (1970)]
Publiciana, Accion
Reivindicatoria and Accion
In ejectment cases, possession means nothing more
than actual physical possession, not legal possession Interdictal
in the sense contemplated in civil law [Antazo v.
Doblada, G.R. No. 178908 (2010)] Accion publiciana and accion reivindicatoria
a.   RTC has jurisdiction where the assessed value of
In order to constitute force, the act of going to the the property exceeds PHP 20,000 or, in Metro
property and excluding the lawful possessor necessary Manila, PHP 50,000;
implies the exertion of force over the property which is b.   MTC has jurisdiction if the assessed value does
all that is necessary and sufficient to show that the not exceed said amounts
action is based on Sec. 1, Rule 70 [Bunyi v. Factor, G.R. [Secs. 19 and 33, B.P. 129, as amended by R.A. 7691]
No. 172547 (2009)]
Where the basic issue is not possession but
interpretation, enforcement and/or rescission of the
2.  D istinguished from Accion contract, it is no longer an ejectment suit [Villena v.
Publiciana and Accion Chavez, G.R. No. 148126 (2003)]

Reivindicatoria Accion interdictal

Exclusive original jurisdiction over forcible entry and
Three (3) kinds of action for recovery of possession unlawful detainer suits is with the MTC [Sec. 33(2),
B.P. 129, as amended by R.A. 7691]
Accion Accion Accion
 
interdictal publiciana reivindicatoria
4.  W ho May Institute the
Summary
action for
Plenary action
for recovery of
Action and When; Against
recovery of
physical
real right of An action for Whom the Action May be
possession recovery of
possession
when possession
Maintained
where the
dispossession based on
dispossession a.   In forcible entry: A person deprived of possession
has lasted for ownership [1
has not lasted of any land or building by force, intimidation,
more than one Regalado 872,
for more than strategy, threat, or stealth
year [1 2010 Ed.]
one year [1 b.   In unlawful detainer
Regalado 872,
Regalado 871- 1.   Lessor, vendor, vendee, or other person
2010 Ed.]
872, 2010 Ed.] against whom any land or building is
unlawfully withheld; or
MTC has RTC has jurisdiction if value of the 2.   His legal representatives or assigns
jurisdiction property exceeds P20,000 [Sec. 1, Rule 70]
[Sec. 33(2), outside Metro Manila or P50,000
B.P. 129, as within Metro Manila. Period of filing
amended] Within 1 year after the unlawful deprivation or
withholding of possession [Sec. 1, Rule 70]

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Reckoning points: means of FISTS b.   Eventually, such

a.   For forcible entry: it is counted from date of [Abad v. Farrales, possession became
actual entry on the land [1 Regalado 873, 2010 G.R. No. 178635 illegal upon notice
Ed.]; EXCEPTION: In case of stealth or strategy, (2011), citing Sec. 1, by plaintiff to
from the time plaintiff learned of entry [Vda. de Rule 70] defendant of the
Prieto v. Reyes, G.R. No. L-21740 (1965)] c.   That the complaint termination of the
b.   For unlawful detainer: it is counted from the date was filed within 1 latter's right of
of year from possession
1.   Last demand [Sarona v. Villegas, G.R. No. L- dispossession c.   Thereafter, the
22984 (1968)], or [Sec. 1, Rule 70; 1 defendant
2.   Last letter of demand [Racaza v. Susana Regalado 533, remained in
Realty, Inc., G.R. No. L-20330 (1966); 2010 Ed.] possession of the
Calibayan v. Pascual, G.R. No. L-22645 property and
(1967); DBP v. Canonoy, G.R. No. L-29422, Note: First two deprived the
(1970)] requirements are plaintiff of the
jurisdictional [Abad v. enjoyment thereof,
Against whom may the action be maintained Farrales, G.R. No. and
Person or persons unlawfully withholding or depriving 178635 (2011)] d.   Within one year
of possession, or any person/s claiming under them from the last
[Sec. 1, Rule 70] demand on
defendant to vacate
Notes: the property, the
a.   Action may be maintained only against one in plaintiff instituted
possession at the commencement of the action. the complaint for
b.   Tenant with right of [de facto] possession may ejectment
bring action against another tenant. [French v. CA, G.R. No.
c.   Vendor may bring action for ejectment against 220057 (2017)]
vendee upon failure to pay installments.
d.   Action may lie against the very owner of the Mere failure to pay rent does not ipso facto make
property. unlawful the tenant’s possession. It is the demand to
e.   Action may be maintained against government vacate and refusal to vacate which makes unlawful the
officials or agents acting in behalf of the withholding of possession [Canaynay v. Sarmiento,
government, even if government is not made a G.R. No. L-1246 (1947)]
party to the action
[1 Regalado 874, 2010 Ed.]
6.  A ction on the Complaint
5.  P leadings Allowed Motu proprio dismissal
The court may, from an examination of the allegations
The only pleadings allowed to be filed are the in the complaint and such evidence as may be
a.   Complaint attached thereto, dismiss the case outright on any of
b.   Compulsory counterclaim pleaded in the answer the grounds for the dismissal of a civil action which are
c.   Cross-claim pleaded in the answer, and apparent therein [Sec. 5, Rule 70]
d.   Answers thereto
[Sec. 4, Rule 70] Issuance of summons
If no ground for dismissal is found, it shall forthwith
Note: Pleadings must be VERIFIED [Sec. 4, Rule 70] issue summons [Sec. 5, Rule 70]

What must be alleged in the complaints Answer

Forcible entry Unlawful detainer a.   Within 10 days from service of summons, the
a.   Plaintiff had prior defendant shall file his answer to the complaint
a.   Initially, possession
physical and serve a copy thereof on the plaintiff.
of property by the
possession of the b.   Affirmative and negative defenses not pleaded
defendant was by
property therein shall be deemed waived, except lack of
contract with or by
b.   The defendant jurisdiction over the subject matter.
tolerance of the
deprived him of c.   Cross-claims and compulsory counterclaims not
plaintiff
such possession by asserted in the answer shall be considered barred.

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d.   The answer to counterclaims or cross-claims shall a.   Within 30 days after receipt of the affidavits and
be served and filed within 10 days from service of position papers, or the expiration of the period for
the answer in which they are pleaded. filing the same, the court shall render judgment.
[Sec. 6, Rule 70] b.   However, should the court find it necessary to
clarify certain material facts, it may, during the said
Effect of failure to answer period, issue an order specifying the matters to be
a.   Should the defendant fail to answer the complaint clarified, and require the parties to submit
within the period above provided, the court, motu affidavits or other evidence on the said matters
proprio or on motion of the plaintiff, shall render within 10 days from receipt of said order. Judgment
judgment as may be warranted by the facts shall be rendered within 15 days after the receipt of
alleged in the complaint and limited to what is the last affidavit or the expiration of the period for
prayed for therein. filing the same.
b.   The court may in its discretion reduce the amount c.   The court shall not resort to the foregoing
of damages and attorney’s fees claimed for being procedure just to gain time for the rendition of the
excessive or otherwise unconscionable, without judgment.
prejudice to the applicability of Sec. 3(c), Rule 9 if [Sec. 11, Rule 70]
there are two or more defendants.
[Sec. 7, Rule 70]
7.  When Demand is
Preliminary conference Necessary
a.   Not later than 30 days after the last answer is
filed, a preliminary conference shall be held. The Unless otherwise stipulated, such action by the lessor
provisions of Rule 18 on pre-trial shall be shall be commenced only after demand [Sec. 2, Rule
applicable to the preliminary conference unless 70]
inconsistent with the provisions of Rule 70
b.   The failure of the plaintiff to appear in the Contents
preliminary conference shall be cause for the Demand made upon the lessee to
dismissal of his complaint. a.   Pay or comply with the conditions of the lease and
c.   The defendant who appears in the absence of the b.   Vacate
plaintiff shall be entitled to judgment on his [Sec. 2, Rule 70]
counterclaim in accordance with the next
preceding section. Form
d.   All cross-claims shall be dismissed. a.   By service of written notice of such demand upon
e.   If a sole defendant shall fail to appear, the the person found on the premises, or
plaintiff shall likewise be entitled to judgment in b.   By posting of the written notice on the premises if
accordance with the next preceding section. no person be found thereon
f.   This procedure shall not apply where one of two [Sec. 2, Rule 70]
or more defendants sued under a common cause c.   Oral [Jakihaca v. Aquino, G.R. No. 83982 (1990)]
of action who had pleaded a common defense
shall appear at the preliminary conference. Period to comply with demand
g.   No postponement of the preliminary conference After
shall be granted except for highly meritorious a.   15 days in the case of lands, or
grounds and without prejudice to such sanctions b.   5 days in the case of buildings
as the court in the exercise of sound discretion [Sec. 2, Rule 70]
may impose on the movant.
[Sec. 8, Rule 70] When demand not required:
a.   When parties stipulate that demand shall not be
Submission of affidavits and position papers necessary [Sec. 2, Rule 70]; or
Within 10 days from receipt of the order mentioned in b.   When action is predicated on the expiration of the
the next preceding section, the parties shall submit lease [Labastida v. CA, G.R. No. 110174 (1998)]
the affidavits of their witnesses and other evidence on (Since it is not based on the failure to pay or
the factual issues defined in the order, together with comply with the conditions.)
their position papers setting forth the law and the
facts relied upon by them [Sec. 10, Rule 70] It is only when the defendant fails to comply with the
demand within the periods provided by Sec. 2 that his
Judgment possession becomes unlawful. (Quevada v. Garcia,
G.R. No. 140798 (2006)

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

A demand to pay or vacate does not give rise to a cause MTC can also issue a preliminary mandatory
of action for unlawful detainer [Peñas v. CA, G.R. No. injunction in an unlawful detainer case [Day v. RTC of
112734 (1994)] Zamboanga, G.R. No. 71119 (1990)]

A person who occupies the land of another at the Preliminary preventive injunction
latter's tolerance or permission, without any contract Preliminary preventive injunction is available in either
between them is necessarily bound by an implied case. Note that Sec. 15 makes the provisions of Rule 58
promise that he will vacate upon demand, failing applicable to Rule 70. (1 Regalado 891, 2010 Ed.)
which, an action for unlawful detainer may be
instituted against him [Dakudao v. Consolacion, G.R.
No. L-54753 (1983)]
9.  R esolving the Defense of
Ownership
Note: Demand is not required in forcible entry suits
[Dela Cruz v. CA, G.R. No. 139442 (2006)] The MTC shall exercise exclusive original jurisdiction
over cases of forcible entry and unlawful detainer:
8.  P reliminary Injunction and Provided, That when, in such cases, the defendant
raises the questions of ownership in his pleadings and
Preliminary Mandatory the question of possession cannot be resolved without
deciding the issue of ownership, the issue of
Injunction ownership shall be resolved only to determine the
issue of possession [Sec. 33(2), B.P. 129, as amended
The court may grant preliminary injunction, in by R.A. 7691]
accordance with the provisions of Rule 58, to prevent
the defendant from committing further acts of Refugia guidelines
dispossession against the plaintiff [Sec. 15, Rule 70] a.   The primal rule is that the principal issue must be
that of possession, and that ownership is merely
There is no distinction as to the type of ejectment case ancillary thereto, in which case the issue of
involved. (1 Regalado 891, 2010 Ed.) ownership may be resolved but only for the
purpose of determining the issue of possession.
While a preventive injunction is governed by Rule 58, Thus, as earlier stated, Sec. 33(2), B.P. 129, quoted
mandatory injunction is governed by the rules in Rule above applies only where the inferior court
70. (1 Regalado 891, 2010 Ed.) believes and the preponderance of evidence
shows that a resolution of the issue of possession
Preliminary mandatory injunction is dependent upon the resolution of the question
A possessor deprived of his possession through of ownership.
forcible entry or unlawful detainer may, within 5 days b.   It must sufficiently appear from the allegations in
from the filing of the complaint, present a motion in the complaint that what the plaintiff really and
the action for forcible entry or unlawful detainer for the primarily seeks is the restoration of possession.
issuance of a writ of preliminary mandatory injunction Consequently, where the allegations of the
to restore him in his possession. The court shall decide complaint as well as the reliefs prayed for clearly
the motion within 30 days from the filing thereof [Sec. establish a case for the recovery of ownership, and
15, Rule 70] not merely one for the recovery of possession de
facto, or where the averments plead the claim of
When available material possession as a mere elemental attribute
a.   Within 5 days from the filing of the complaint of such claim for ownership, or where the issue of
[Sec. 15, Rule 70] ownership is the principal question to be resolved,
b.   On appeal to the RTC upon motion of the plaintiff the action is not one for forcible entry but one for
within 10 days from perfection of appeal [Sec. 20, title to real property.
Rule 70] c.   The inferior court cannot adjudicate on the nature
of ownership where the relationship of lessor and
Note: The injunction on appeal is to restore to plaintiff lessee has been sufficiently established in the
in possession if the court is satisfied that ejectment case, unless it is sufficiently established
a.   Defendant’s appeal is frivolous or dilatory, or that there has been a subsequent change in or
b.   The appeal of plaintiff is prima facie meritorious termination of that relationship between the
[Sec. 20, Rule 70] parties. This is because under Sec. 2(b), Rule 131,
the tenant is not permitted to deny the title of his

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

landlord at the time of the commencement of the b.   The defendant to stay execution files a sufficient
relation of landlord and tenant between them. supersedeas bond, approved by the MTC and
d.   The rule in forcible entry cases, but not in those for executed in favor of the plaintiff to pay the rents,
unlawful detainer, is that a party who can prove damages, and costs accruing down to the time of
prior possession can recover such possession even the judgment appealed from, and
against the owner himself. Regardless of the c.   During the pendency of the appeal, he deposits
actual condition of the title to the property and with the appellate court the amount of rent due
whatever may be the character of his prior from time to time under the contract, if any, as
possession, if he has in his favor priority in time, determined by the judgment of the MTC. In the
he has the security that entitles him to remain on absence of a contract, he shall deposit with the
the property until he is lawfully ejected by a RTC the reasonable value of the use and
person having a better right through an accion occupation of the premises for the preceding
publiciana or accion reivindicatoria. Corollarily, if month or period at the rate determined by the
th
prior possession may be ascertained in some judgment of the lower court on or before the 10
other way, then the inferior court cannot dwell day of each succeeding month or period.
upon or intrude into the issue of ownership. [Sec. 19, Rule 70]
e.   Where the question of who has prior possession All these requisites must concur. The deposit is a
hinges on the question of who the real owner of mandatory requirement; hence, if it is not complied
the disputed portion is, the inferior court may with, execution will issue as a matter of right [Antonio
resolve the issue of ownership and make a v. Geronimo, G.R. No. 124779 (2005)]
declaration as to who among the contending
parties is the real owner. In the same vein, where Judgment of the RTC
the resolution of the issue of possession hinges on The judgment of RTC against the defendant shall be
a determination of the validity and interpretation immediately executory, without prejudice to further
of the document of title or any other contract on appeal that may be taken therefrom [Sec. 21, Rule 70]
which the claim of possession is premised, the
inferior court may likewise pass upon these issues. Summary procedure
This is because, and it must be so understood, General rule: All actions for forcible entry and unlawful
that any such pronouncement made affecting detainer shall be governed by the summary procedure
ownership of the disputed portion is to be of Rule 70, irrespective of the amount of damages or
regarded merely as provisional, hence, does not unpaid rentals sought to be recovered
bar nor prejudice an action between the same
parties involving title to the land. Moreover, now- Exceptions:
Sec. 18, Rule 70 expressly provides that the a.   In cases covered by agricultural tenancy laws; or
judgment rendered in an action for forcible entry b.   When the law otherwise expressly provides
or unlawful detainer shall be effective with [Sec. 3, Rule 70]
respect to the possession only and in no wise bind
the title or affect the ownership of the land or Prohibited pleadings and motions
building. a.   Motion to dismiss the complaint except on the
[Refugia v. CA, G.R. No. 118284 (1996)] ground of lack of jurisdiction over the subject
matter, or failure to comply with Sec. 12, Rule 70
Judgment for ejectment cannot be enforced against a (referral for conciliation)
co-owner who was not made a party to the action b.   Motion for a bill of particulars
[Cruzcosa v. Concepcion, G.R. No. L-11146 (1957)] c.   Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial
d.   Petition for relief from judgment
10.  How to Stay Immediate e.   Motion for extension of time to file pleadings,
Execution of Judgment affidavits or any other paper
[Sec. 19, Rule 70] f.   Memoranda
g.   Petition for certiorari, mandamus, or prohibition
Judgment of MTC against any interlocutory order issued by the court
General rule: Judgment of the MTC against defendant h.   Motion to declare the defendant in default
in ejectment cases is immediately executory upon i.   Dilatory motions for postponement
motion. j.   Reply
k.   Third-party complaints
Exceptions: l.   Interventions
a.   An appeal has been perfected and [Sec. 13, Rule 70]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

  Contempt Proof required is proof

Proof required is more
than mere
beyond reasonable
preponderance of
Contempt of court is disobedience to the court by doubt
evidence
acting in opposition to its authority, justice, and If judgment is for
dignity. It signifies not only a willful disregard or If accused is acquitted,
respondent, there can
disobedience to the court’s orders but also conduct there can be no appeal
be an appeal
tending to bring the authority of the court and [1 Regalado 909, 2010 Ed.]
administration of law into disrepute, or, in some
manner, to impede the due administration of justice According to manner of commission
[Siy v. NLRC, G.R. No. 158971 (2012)] a.   Direct contempt: Act committed in the presence
of or so near the court or judge as to obstruct or
The power to declare a person in contempt of court interrupt the proceedings before the same.
and in dealing with him accordingly is an inherent b.   Indirect contempt: One not committed in the
power of the court. It is used as a means to protect and presence of the court. It is an act done at a
preserve the dignity of the court, the solemnity of the distance which tends to belittle, degrade,
proceedings, and administration of justice obstruct, or embarrass the court and justice
[Montenegro v. Montenegro, G.R. No. 156829 (2004)] [Lorenzo Shipping v. Distribution Management, G.R.
No. 155849 (2011)]
Contempt proceedings have a dual function:
1.   Vindication of public interest by the punishment Direct contempt Indirect contempt
of contemptuous conduct; and Committed in the Not committed within
2.   Coercion to compel the contemnor to do what the presence of or so near a the presence of the
law requires him to uphold the power of the court, court court
and also to secure the rights of the parties to a suit
Summary in nature There is charge and
awarded by the court
hearing
[Regalado v. Go, G.R. No. 167988 (2007)]
Punishment Punishment
a.   If committed a.   If committed
1.   Kinds of contempt against the RTC: against RTC: Fine
Fine of not not exceeding PHP
According to nature exceeding PHP 30,000 and/or
a.   Criminal contempt: Conduct directed against the 2,000 and/or imprisonment not
authority and dignity of the court or a judge acting imprisonment not exceeding 6
judicially. exceeding 10 days months or both
b.   Civil contempt: Failure to do something ordered or both b.   If committed
to be done by a court or by a judge for the benefit b.   If committed against MTC: Fine
of the opposing party against the MTC: not exceeding PHP
[Lorenzo Shipping v. Distribution Management, G.R. Fine not exceeding 5,000 and/or
No. 155849 (2011)] PHP 200 and or imprisonment not
imprisonment not exceeding 1 month
Criminal contempt Civil contempt exceeding 1 day or or both
Punitive in nature Remedial in nature both
Purpose is to provide a Remedy is certiorari or Remedy is appeal
Purpose is to preserve remedy for an injured prohibition
the court’s authority suitor and to coerce Otherwise known as Otherwise known as
and to punish for compliance with an Contempt in Facie Constructive Contempt
disobedience of its order; for the Curiae
orders preservation of the [1 Regalado 909, 2010 Ed.]
rights of private persons
Intent is necessary Intent is not necessary Contempt, whether direct or indirect, may be civil or
Instituted by the criminal depending on the nature and effect of
aggrieved party, or his contemptuous act [Montenegro v. Montenegro, G.R.
State is the real successor, or someone No. 156829 (2004)]
prosecutor who has a pecuniary
interest in the right to The real character of the proceedings in contempt
be protected cases is to be determined by the relief sought or by the

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

dominant purpose. The proceedings are to be that he will abide by and perform the judgment
regarded as criminal when the purpose is primarily should the petition be decided against him.
punishment, and civil when the purpose is primarily [Sec. 2, Rule 71]
compensatory or remedial [Montenegro v. Montenegro,
G.R. No. 156829 (2004)] Penalties
Offense Penalty
2.  P urpose and Nature of If RTC or a court of
Fine not exceeding PHP
2,000 or imprisonment
equivalent or higher
Each rank
not exceeding 10 days or
both
DIRECT CONTEMPT Fine not exceeding PHP
For a person to be adjudged guilty of direct contempt, 200 or imprisonment
If lower court
he must commit a misbehavior in the presence of or so not exceeding 1 day or
near a judge as to interrupt the administration of both
justice [SBMA v. Rodriguez, G.R. No. 160270 (2010)] [Sec. 1, Rule 71]

Grounds
Misbehavior in the presence of or so near a court as to
4.  R emedy against Indirect
obstruct or interrupt the proceedings before the same, Contempt; Penalty
including
a.   Disrespect toward the court a.   The judgment or final order of a court in a case of
b.   Offensive personalities toward others, or indirect contempt may be appealed to the proper
c.   Refusal to be sworn or to answer as a witness, or court as in criminal cases.
to subscribe an affidavit or deposition when b.   But execution of the judgment or final order shall
lawfully required to do so not be suspended until a bond is filed by the
[Sec. 1, Rule 71] person adjudged in contempt, in an amount fixed
by the court front which the appeal is taken,
Other examples: conditioned that if the appeal be decided against
a.   Willful and deliberate forum shopping [Sec. 5, him he will abide by and perform the judgment or
Rule 7] final order
b.   Submission of pleadings containing derogatory, [Sec. 11, Rule 71]
offensive, and malicious statements submitted to
the court [Re: Letter of Atty. Noel Sorreda, A.M. No. Generally, a non-party may not be liable for contempt
05-3-4-SC (2005)] unless he is guilty of conspiracy with any of the parties
in violating the court’s orders [Desa Enterprises Inc. v.
Procedure SEC, G.R. No. L-45430 (1982)]
Summarily adjudged in contempt by such court [Sec.
1, Rule 71] A contempt proceeding, whether civil or criminal, is
still a criminal proceeding, hence, acquittal is a bar to
INDIRECT CONTEMPT a second prosecution. The distinction is only for the
See Acts deemed punishable as indirect contempt purpose of determining the character of the
below. punishment to be administered [Santiago v.
Anunciacion, G.R. No. 89318 (1990)]
3.  Remedy against Direct Penalties
Contempt; Penalty Offense Penalty
Fine not exceeding PHP
If committed against
a.   The person adjudged in direct contempt by any 30,000 or
court may not appeal therefrom, but may avail RTC, or a court of
imprisonment not
himself of the remedies of certiorari or equivalent or higher
exceeding 6 months, or
prohibition. rank
both [Sec. 7, Rule 71]
b.   The execution of the judgment shall be Fine not exceeding PHP
suspended pending resolution of such petition, If committed against 500, or imprisonment
provided such person file a bond fixed by the court lower court not exceeding 1 month,
which rendered the judgment and conditioned or both [Sec. 7, Rule 71]

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Offender may also be initiatory pleadings for civil actions in the court
ordered to make concerned. If the contempt charges arose out of or
complete restitution to are related to a principal action pending in the
the party injured by court, the petition for contempt shall allege that
such violation of the fact but said petition shall be docketed, heard and
property involved or decided separately, unless the court in its
such amount as may be discretion orders the consolidation of the
If the contempt consists alleged and proved contempt charge and the principal action for joint
in the violation of a writ [Sec. 7, Rule 71] hearing and decision.
of injunction, TRO, or [Sec. 4, Rule 70]
status quo order If there is nothing more
to return, offender is Where to file charge
personally liable for the a.   Where the charge for indirect contempt has been
restitution of the money committed against a RTC or a court of equivalent
equivalent to the lost or higher rank, or against an officer appointed by
thing [Rosario Textile it, the charge may be filed with such court.
Mills v. CA, G.R. No. b.   Where such contempt has been committed
137326 (2003)] against a lower court, the charge may be filed with
Penalty shall depend the RTC of the place in which the lower court is
upon the provisions of sitting; but the proceedings may also be instituted
If committed against a in such lower court subject to appeal to the RTC of
the law which
person or entity such place in the same manner as provided in Sec.
authorizes penalty for
exercising quasi- judicial 2, Rule 71
contempt against such
functions [Sec. 5, Rule 71]
persons or entities [Sec.
12, Rule 71]
6.  A cts Deemed Punishable
5.  H ow Contempt as Indirect Contempt
Proceedings are
a.   Misbehavior of an officer of a court in the
Commenced performance of his official duties or in his official
transactions
DIRECT CONTEMPT b.   Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including
By whom initiated: the act of a person who, after being dispossessed
a.   Generally, civil contempt proceedings should be or ejected from any real property by the judgment
instituted by an aggrieved party, or his successor, or process of any court of competent jurisdiction,
or someone who has pecuniary interest in the enters or attempts or induces another to enter
right to be protected into or upon such real property, for the purpose of
b.   In criminal contempt proceedings, it is generally executing acts of ownership or possession, or in
held that the State is the real prosecutor any manner disturbs the possession given to the
[People v. Godoy, G.R. Nos. 115908-09 (1995)] person adjudged to be entitled thereto
c.   Any abuse of or any unlawful interference with the
INDIRECT CONTEMPT processes or proceedings of a court not
constituting direct contempt under Sec. 1, Rule 71
Two modes of commencing a proceeding d.   Any improper conduct tending, directly or
a.   Proceedings for indirect contempt may be indirectly, to impede, obstruct, or degrade the
initiated motu proprio by the court against which administration of justice
the contempt was committed by an order or any e.   Assuming to be an attorney or an officer of a court,
other formal charge requiring the respondent to and acting as such without authority;
show cause why he should not be punished for f.   Failure to obey a subpoena duly served
contempt. g.   The rescue, or attempted rescue, of a person or
b.   In all other cases, charges for indirect contempt property in the custody of an officer by virtue of an
shall be commenced by a verified petition with order or process of a court held by him
supporting particulars and certified true copies of [Sec. 3, Rule 71]
documents or papers involved therein, and upon
full compliance with the requirements for filing

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U.P. LAW BOC CIVIL PROCEDURE REMEDIAL LAW

Other examples decide the contempt charge filed before it) [Land Bank
a.   Submission, of a false certification of non-forum v. Listana, G.R. No. 152611 (2003)]
shopping or non-compliance with any of the
undertakings [Sec. 5, Rule 7] Acts or violations against quasi-judicial bodies
b.   Upon a judgment obligor’s failure to pay any such punishable as contempt: Where a person, without
installment when due without good excuse, if the lawful excuse, fails to appear, make oath, give
court orders him to pay the judgment in fixed testimony or produce documents when required to do
monthly installments [Sec. 40, Rule 39] so by the official or body exercising such powers. Other
acts or violations cannot be punished as contempt
unless specifically defined in the governing law as
7.  When Imprisonment Shall contempt of court or if it authorizes the quasi-judicial
be Imposed body to punish for contempt, and providing the
corresponding penalty [1 Regalado 921-922, 2010 Ed.,
a.   When the contempt consists in the refusal or citing People v. Mendoza, G.R. No. L-5059-60 (1953),
omission to do an act which is yet in the power of see Sec. 13, Chapter 3, Book VII, Admin Code]
the respondent to perform, he may be imprisoned
by order of the court concerned until he performs
it [Sec. 8, Rule 71]
b.   When the respondent “carried the keys to his
prison in his own pocket.” [Galvez v. Republic
Surety & Insurance Co., Inc., G.R. No. L-12581
(1959)]

Only the judge who ordered the confinement of the

person for contempt of court can issue the Order of
Release [Inoturan v. Limsiaco, Jr., AM No. MTJ-01-1362
(2005)]

Sec. 8, Rule 71 does not apply to tenants who refused

or failed to pay their rentals to the special
administratrix of the property. The non-payment of
rentals, which is a civil debt, is covered by the
constitutional guarantee against imprisonment [1
Regalado 920, 2010 Ed.]

8.  C ontempt against Quasi-

Judicial Bodies
a.   Unless otherwise provided by law, this Rule shall
apply to contempt committed against persons,
entities, bodies or agencies exercising quasi-
judicial functions, or shall have suppletory effect
to such rules as they may have adopted pursuant
to authority granted to them by law to punish for
contempt.
b.   The RTC of the place wherein the contempt has
been committed shall have jurisdiction over such
charges as may be filed therefor.
[Sec. 12, Rule 71].

It is not within the jurisdiction and competence of

quasi-judicial bodies to decide indirect contempt
cases. The requirement for a verified petition must
also be complied with (e.g. DARAB has no power to

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

SPECIAL PROCEEDINGS
Remedial Law

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

VI.   SPECIAL actions, subject to specific rules prescribed for a

special civil action.

PROCEEDINGS b.   A special proceeding is a remedy by which a party

seeks to establish a status, a right, or a particular
SUBJECT MATTER OF SPECIAL PROCEEDINGS; fact.
APPLICABILITY OF GENERAL RULES [Sec. 3(a), 3(b), Rule 1]

In the absence of special provisions, the rules provided

for in ordinary civil actions shall be, as far as   Settlement of Estate of
practicable, applicable in special proceedings [Sec. 2,
Rule 72]
Deceased Persons
Rules in ordinary actions may be applied in special MODES OF SETTLEMENT OF ESTATE
proceedings as much as possible and where doing so 1.   Extrajudicial (no will, no debts)
would not pose an obstacle to said proceedings. a.   If only one heir – Affidavit of Self-
Nowhere in the Rules of Court (ROC) does it adjudication
categorically say that rules in ordinary actions are b.   If more than one heir and all agree –Deed of
inapplicable or merely suppletory to special Extrajudicial Settlement [Sec. 1, Rule 74]
proceedings. Provisions of the ROC requiring a 2.   Judicial
certification of non-forum shopping for complaints a.   If no will, no debts, more than one heir, and
and initiatory pleadings, a written explanation for should heirs disagree – Partition [Rule 69]
non-personal service and filing, and the payment of b.   Summary Settlement of Estate of Small
filing fees for money claims against an estate would Value [Sec. 2, Rule 74]
not in any way obstruct probate proceedings, thus, c.   Petition for Letters of Administration [Rule
they are applicable to special proceedings such as the 79]
settlement of the estate of a deceased person in the d.   Probate of a Will [Rules 75-79]
present case [Sheker v. Sheker, G.R. No. 157912 (2007)] i.   Petition for Letters Testamentary or
ii.   Petition for Letters of Administration
Action v. special proceedings with the will annexed (if no named
An action is a formal demand of one’s right in a court executor)
of justice in the manner prescribed by the court of by
the law. It is the method of applying legal remedies 1.   Jurisdiction
according to definite established rules. The term
“special proceedings” may be defined as an Exclusive original jurisdiction over all matters of
application or proceeding to establish the status or probate, both testate and intestate, shall lie with
right of a party, or a particular fact. Usually, in special MTC if gross value of the estate
proceedings, no formal pleadings are required unless Outside does not exceed P300,000
the statute expressly so provides. IN special Metro Manila
proceedings, the remedy is granted generally upon If it exceeds such value, then RTC
application or motion [Natcher v. CA, G.R. No. 133000 MTC if gross value of the estate
(2001)] In Metro does not exceed P400,000
Manila
Rule 39 applies only to ordinary civil actions, not to Otherwise, RTC
other or extraordinary proceedings not expressly [Sec. 19 and 31, B.P. 129, as amended by R.A. 7691;
governed by the Rules of Civil Procedure but by some Maloles II v. Philips, G.R. Nos. 129505 and 133359
other specific law or legal modality [Republic v. Nillas, (2000); Lim v. CA, G.R. No. 124715 (2000)]
G.R. No. 159595 (2007)]
Exclusive jurisdiction
Cases governed; civil action v. special proceeding Sec. 1 of Rule 73 refers to courts in the Philippines and
a.   A civil action is one by which a party sues another simply means that once a special proceeding for the
for the enforcement or protection of a right, or the settlement of the estate of a decedent is filed in one of
prevention or redress of a wrong. such courts, that court has exclusive jurisdiction over
said estate and no other special proceedings involving
A civil action may either be ordinary or special. the same subject matter may be filed before any other
Both are governed by the rules for ordinary civil court. Since foreign courts are not contemplated in

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Sec. 1, in no way then can it be validly maintained that Even where the statute uses the word ‘domicile’, it
the District Court of Hawaii has encroached upon the must be construed as meaning residence [Festin 16,
jurisdiction of the probate court by the issuance of the 2011 Ed.]
Reference Order [Republic v. Villarama, Jr., G.R. No.
117733 (1997)] Note: “Jurisdiction” as used in Rule 73 means venue.

The ROC likewise provide that the Court first taking If venue is improperly laid
cognizance of the settlement of the estate of the General rule: Ordinary appeal
decedent, shall exercise jurisdiction to the exclusion of
all other Courts. There should be no impediment to the Exception: Certiorari may be resorted to if impropriety
application of said Rules as they apply suppletorily to of venue (due to residence or location of estate)
the Code of Muslim Personal Laws, there being appears on the record.
nothing inconsistent with the provisions of the latter [Sec. 1, Rule 73]
statute [Musa v. Moson, G.R. No. 95574 (1991)]

Testate proceedings take precedence over intestate

3.  Extent of Jurisdiction of
proceedings of the same estate [Sandoval v. Santiago, Probate Court
G.R. No. L-1723 (1949)]
The probate jurisdiction relates only to matters having
Thus, if in the course of intestate proceedings pending to do with the settlement of the estate and probate of
before a court of first instance, it is found that the wills of deceased persons, and the appointment and
decedent had left a last will and testament, removal of administrators, executors, guardians, and
proceedings for the probate of the latter should trustees [Ramos v. CA, G.R. No. (1989)]
replace the intestate proceedings even if at that stage
an administrator had already been appointed, the General rule: A probate court cannot adjudicate or
latter being required to render final account and turn determine title to properties claimed to be a part of the
over the estate in his possession to the executor estate and which are claimed to belong to outside
subsequently appointed. This, however, is understood parties [Ignacio v. Reyes, G.R. 213192 (2017)]
to be without prejudice that should the alleged will be
rejected or is disapproved, the proceeding shall Exceptions:
continue as an intestacy [Uriarte v. CFI, G.R. No. L- a.   In a provisional manner to determine whether
21938 (1970)] said property should be included or excluded in
the inventory, without prejudice to final
2.  V enue determination of title in a separate action [Cuizon
v. Ramolete, G.R. No. L-51291 (1984)]
b.   With consent of all the parties, without prejudice
Court of the province
Inhabitant of Philippines to the rights of third persons [Trinidad v. CA, G.R.
where decedent
at the time of death No. 75579 (1991)]
resided at time of
(citizen or alien) c.   If the question is one of collation or advancement
death
[Coca v. Borromeo, G.R. No. L-27082 (1978)]
Inhabitant of foreign Court of any province
d.   When the estate consists of only one property
country at the time of where decedent had
[Portugal v. Portugal-Beltran, G.R. No. 155555
death estate
(2005)]
[Sec. 1, Rule 73]
Not the court where petition is first filed but court
Residence
which first takes cognizance
In the application of venue statutes and rules,
The court first taking cognizance of the settlement of
residence rather than domicile is the significant factor.
estate of a decedent, shall exercise jurisdiction to the
The word “resides” means personal, actual, or
exclusion of all other courts [Sec. 1, Rule 73]
physical habitation of a person, or his actual residence
or place of abode. It does not mean legal residence or
Jurisdictional facts
domicile [Fule v. CA, G.R. No. L-40502 (1976); Garcia-
Jurisdictional facts refer to the fact of death of the
Quiazon v. Belen, G.R. No. 189121 (2013); San Luis v.
decedent, his residence at the time of his death in the
San Luis, G.R. Nos. 133743 and 134029 (2007)]
province where the court is sitting, or if he is an
inhabitant of a foreign country, the estate he left in
such province [Palaganas v. Palaganas, G.R. No.
169144 (2011)]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Where estate is settled upon dissolution of marriage

Sec. 2, Rule 73 provides that when the marriage is   Summary Settlement of
dissolved by the death of the husband or the wife, the
community property shall be inventoried,
Estates
administered, and liquidated, and the debts thereof
paid, in the testate or the intestate proceedings of the General rule: The estate of the decedent should be
deceased spouse, and if both spouses have died, the judicially administered through an administrator or
conjugal partnership shall be liquidated in the testate executor.
or intestate proceedings of either. In these settlement
proceedings, the probate court has the authority to Exceptions:
determine if the property is conjugal or community in Law allows heirs to resort to
nature, for purposes of liquidation [Agtarap v. 1.   Extrajudicial settlement of estate (decedent died
Agtarap, G.R. Nos. 177099 and 177192 (2011)] intestate and left no debts) [Sec. 1, Rule 74]
2.   Summary settlement of estate (for estates of
Presumption of death small value, when gross estate does not exceed
Sec. 4, Rule 73 is merely one of evidence which permits P10,000) [Sec. 2, Rule 74]
the court to presume that a person is dead after the
fact that such person had been unheard from for the Recourse to an administration proceeding even if the
periods fixed in the Civil Code. This presumption may estate has no debts is sanctioned only if the heirs have
arise and be invoked and made in a case, either in an good reasons for not resorting to an action for
action or in a special proceeding, which is tried or partition. Where partition is possible, either in or out
heard by, and submitted for decision to, a competent of court, the estate should not be burdened with an
court. Independently of such an action or special administration proceeding without good and
proceeding, the presumption of death cannot be compelling reasons [Sps. Villafria v. Plazo, G.R. No.
invoked, nor can it be made the subject of an action or 187524 (2015)]
special proceeding [Valdez v. People, G.R. No. 180863
(2009), citing In re Szatraw, G.R. No. L-1780 (1948)] 1.   Extrajudicial Settlement
of Estates
4.  P owers and Duties of a
Probate Court Requisites
a.   Decedent died intestate
It is the duty of courts of probate jurisdiction to guard b.   Left no debts
jealously the estates of the deceased person by c.   Heirs are all of age, or minors are represented by
intervening in the administration thereof in order to their legal or judicial representatives, and
remedy or repair any injury that may be done thereto d.   ALL heirs agree
[Dariano v. Fernandez Fidalgo, G.R. No. L-4918 (1909)] [Sec. 1, Rule 74]

There seems, however, to be a general tendency, in the Modes

absence of express and specific restrictions to the a.   If sole heir – Affidavit of Self-adjudication (of the
contrary, to uphold the exercise by the probate court whole estate)
of such incidental powers as are, within the purview of b.   If more than one heir –
their grant of authority, reasonably necessary to 1.   Deed of Extrajudicial Settlement is resorted
enable them to accomplish the objects for which they to if there is no disagreement among the heirs
were invested with jurisdiction and to perfect the same 2.   If there is a disagreement, then they may
[In Re Baldomero Cosme, G.R. No. 43351 (1937)] resort to an action for partition (judicial)
Note: Both the Affidavit and the Deed are public
Ancillary powers of a probate court instruments.
a.   Issue warrants and processes to compel [Sec. 1, Rule 74]
attendance of a witness and to carry into effect
their orders and judgments Affidavit of self-adjudication
b.   Issue warrant for apprehension and imprisonment The general rule is that when a person dies intestate,
of a person who refuses to perform an order or or, if testate, failed to name an executor in his will or
judgment the executor so named is incompetent, or refuses the
c.   All other powers granted to them by law trust, or fails to furnish the bond required by the Rules,
[Sec. 3, Rule 73] then the decedent’s estate shall be judicially
administered and the competent court shall appoint a

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

qualified administrator in the order established in Sec. and after such other notice to interested persons
6, Rule 78. An exception to this rule is found in Sec. 1, as the court may direct.
Rule 74 wherein the heirs of a decedent, who left no
will and no debts due from his estate, may divide the The procedure outlined in Sec. 1 of Rule 74 is an ex
estate either extrajudicially or in an ordinary action for parte proceeding. The rule plainly states, however,
partition without submitting the same for judicial that persons who do not participate or had no notice
administration nor applying for the appointment of an of an extrajudicial settlement will not be bound
administrator by the court [Spouses Villafria v. Plazo, thereby.
G.R. No. 187524 (2015)]
The requirement of publication is geared for the
Where, in the extrajudicial settlement of the estate, protection of creditors and was never intended to
heirs were excluded and minor heirs were not properly deprive heirs of their lawful participation in the
represented, the settlement was not valid and binding decedent's estate [Benatiro v. Heirs of Cuyos, G.R. No.
upon them [Neri v. Heirs of Spouses Yusop, G.R. No. 161220 (2008), citing Cua v. Vargas, G.R. No. 156536
194366 (2012)] (2006)]

An Affidavit of Self-Adjudication is only proper when Validity of compromise agreement

the affiant is the sole heir of the decedent. This is clear Such is VALID, binding upon the parties as individuals,
from the second sentence of Sec. 1, Rule 74 upon the perfection of the contract, even without
[Rebusquillo v. Spouses Galvez, G.R. No. 204029 previous authority of the court to enter into such
(2014)] agreement [Borja v. Vda. De Borja, G.R. No. L-28040
(1972)]
Requirement of public instrument
No law requires partition among heirs to be in writing
and be registered in order to be valid. The requirement 2.  T wo-Year Prescriptive
in Sec. 1, Rule 74 that a partition be put in a public Period
document and registered, has for its purpose the
protection of creditors and the heirs themselves Disputable presumption of no debt
against tardy claims. The requirement of Art. 1358 of It shall be presumed that the decedent left no debts if
the Civil Code that acts which have for their object the no creditor files a petition for letters of administration
creation, transmission, modification or within two (2) years after the death of the decedent
extinguishment of real rights over immovable [Sec. 1, Rule 74]
property, must appear in a public instrument, is only
for convenience, non-compliance with which does not Two-year prescriptive period
affect the validity or enforceability of the acts of the Heirs or other persons deprived of lawful participation
parties as among themselves [Kilario v. CA, G.R. No. in the estate may compel judicial settlement of estate
134329 (2000)] within 2 years from settlement and distribution [Sec. 1,
Rule 74]
Note: The last sentence of the cited doctrine from
Kilario implies that non-compliance with Sec. 1, Rule A lien shall be constituted on the real property of the
74 will be binding only as to the parties to the partition estate and together with the bond, it shall be liable to
but not to non-parties (e.g. creditors who did not know creditors, heirs or other persons for a full period of 2
of the partition). years after such distribution.
Procedure Such lien will not be cancelled before the lapse of two
Division of estate in a public instrument or affidavit years even if a distributee offers to post bond to
of adjudication. answer for contingent claims [Rebong v. Ibanez, G.R.
¯ No. L-1578 (1947)]
Filing of public instrument/affidavit with the
proper Registry of Deeds and posting of a bond if
the estate has personal property (bond equivalent
3.  Summary Settlement of
to amount of personal property). Estates of Small Value
¯
Publication of notice of the fact of extrajudicial When allowed
settlement once a week for 3 consecutive weeks in Whenever the gross value of estate of the decedent
a newspaper of general circulation in the province, does not exceed P10,000

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Procedural requirements Court to proceed summarily, without appointing

a.   Petition by an interested person alleging fact that an executor/administrator, and to
estate does exceed P10,000 a.   Grant allowance of will, if any
b.   Notice (2) Determine persons entitled to estate
1.   Published once a week for 3 consecutive (3) Pay debts of estate which are due
weeks ¯
2.   In a newspaper of general circulation in the
Filing of bond when required by the court [Sec. 3,
province
Rule 74]
c.   Other notice to interested persons as the court
may direct ¯
d.   Hearing Partition of estate
1.   Held not less than 1 month nor more than 3
months COMPARISON
2.   Counted from the date of the last publication Extrajudicial
Summary settlement
of a notice [Sec. 2, Rule 74] settlement
e.   Bond in an amount to be fixed by court if personal Court intervention not Summary judicial
property is to be distributed [Sec. 3, Rule 74] required adjudication needed
Decedent left no will Decedent may or may
Upon fulfillment of the requisites, the court may (allowed only in not have left a will (died
proceed summarily without the appointment of an intestate succession) intestate/testate)
executor/administrator and without delay – Decedent may have left
Decedent left no debts
a.   to grant, if proper, allowance of the will, if there debts
be any Heirs are all of age or
b.   to determine who are persons legally entitled to No such requirement
minors are represented
participate in the estate, and May be instituted by
c.   to apportion and divide the estate among them Instituted only at the any interested party
after the payment of such debts of the estate instance and by even by a creditor
agreement of all heirs without consent of the
The persons legally entitled to participate in the heirs
estate, Gross value of the
a.   in their own right, if of lawful age, or Value of the estate is
estate must not exceed
b.   if otherwise, by their guardians or trustees legally immaterial
P10,000
appointed and qualified, Bond filed with the
will be entitled to receive and enter into possession of Register of Deeds Bond filed with and
the portions of the estate so awarded to them in an amount equal amount to be
respectively [Sec. 2, Rule 74] to the value of the determined by the
personal property court
Procedure of the estate
Death of the decedent
¯ Where the contention that the decedent’s estate is less
Petition for summary settlement with allegation than P5,000 rests on a controversial basis and no
that the gross value of the estate does not exceed evidence was adduced to ascertain the actual value of
P10,000 the estate, the probate court is not precluded from
proceeding with the intestate proceedings [Intestate
¯
Estate of Sebial v. Sebial, G.R. No. L-23419 (1975)]
Publication of notice once a week for 3 consecutive
weeks in a newspaper of general circulation in the
province 4.  R emedies of Aggrieved
¯ Parties after Extrajudicial
Giving of such other notice to interested persons as
the court may direct Settlement of Estate
¯
Within reglementary period of TWO YEARS
Hearing held not less than 1 month nor more than
a.   Claim on the bond for personal properties [Sec. 4,
3 months from the date of the last publication of
Rule 74]
notice
¯

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

b.   Claim on lien on real property, notwithstanding Additional period for claim of minor or incapacitated
any transfers of real property that may have been person
made [Sec. 4, Rule 74] If on the date of the expiration of the period of 2 years
c.   Judicial settlement of estate [Sec. 4, Rule 74] after the settlement or distribution of an estate, the
d.   Action to annul settlement (fraud [4 years] or person authorized to file a claim is
implied trust [10 years]) a.   a minor or mentally incapacitated
b.   in prison, or
When applicable c.   outside Philippines,
If it shall appear at any time within 2 years after the he may present his claim within 1 year after such
settlement and distribution of an estate that an heir or disability is removed [Sec. 5, Rule 74]
other person
a.   has been unduly deprived of his lawful Within the reglementary period, the judge of a probate
participation in the estate court has the power to reopen estate proceedings even
1.   He shall have a right to compel the after the issuance of an order approving a project of
settlement of the estate in the courts for the partition and closing the proceedings. Rather than
purpose of satisfying such lawful requiring an allegedly preterited party to air his
participation. grievances in a separate and independent proceeding,
2.   If annulment on the ground of fraud, an he may, within the reglementary period, claim his
action for reconveyance based on an implied relief sought in the same case by reopening the same
or constructive trust must be filed within 10 even after a project of partition and final accounting
years from accrual of the cause of action had been approved. This is proper to avoid needless
[Amerol v. Bagumbaran, G.R. No. L-33261 delay in the resolution of cases [Jerez v. Nietes, G.R.
(1987); Zuniga-Santos v. Santos-Gran, G.R. No. L-26876 (1969)]
No. 197380 (2014)]
b.   has been unduly deprived of his lawful Even if the original motion did not afford legal
participation payable in money, the court having standing to the three legitimate minor children, under
jurisdiction of the estate may, by order for that Sec. 5, Rule 74, such motion may be lodged with the
purpose, after hearing court within one year after the minors have reached
1.   settle the amount of such debts or lawful majority [In Re: Francisco v. Carreon, G.R. No. L-5033
participation, and (1954)]
2.   may issue execution against the bond or
against the real estate belonging to the OTHER REMEDIES
deceased, or both [Sec. 4, Rule 74] a.   Action for reconveyance of real property – based
on an implied trust, reckoned 10 years from
When not applicable issuance of title [Marquez v. CA, G.R. No. 125715
a.   To persons who have participated or taken part or (1998)]
had notice of the extrajudicial partition b.   Rescission – in case of preterition of compulsory
b.   When the provisions of Sec. 1 of Rule 74 have been heir in partition tainted with bad faith [Art. 1104,
strictly complied with (all persons or heirs of the NCC]
decedent have taken part in the extrajudicial c.   Petition for relief – on ground of fraud, accident,
settlement or are represented by themselves or mistake, excusable negligence. Within 60 days
through guardians) after petitioner learns of judgment or final order,
or other proceedings to be set aside, and not more
The buyer of real property the title of which contains than 6 months after such judgment or order is
an annotation pursuant to Sec. 4, Rule 74 cannot be entered or taken [Rule 38]
considered innocent purchasers for value [David v.
Malay, G.R. No. 132644 (1999)] The foregoing rule
clearly covers transfers of real property to any person,
as long as the deprived heir or creditor vindicates his
rights within two years from the date of the settlement
and distribution of estate. The effects of this provision
are not limited to the heirs or original distributees of
the estate properties, but shall affect any transferee of
the properties [Spouses Domingo v. Roces, G.R. No.
147468 (2003)]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

  Production and Probate b.   within 20 days after he knows that he is named

executor if he obtained such knowledge after the
of Will testator’s death.
[Sec. 3, Rule 75]

1.   Nature of Probate Penalty for neglect without excuse satisfactory to the

court shall be a fine not exceeding P2,000 [Sec. 4,
Proceedings Rule 75]

a.   In rem proceedings Person retaining will may be committed to prison if

b.   Mandatory – no will shall pass either real or a.   He has custody of the will
personal property unless it is proved and allowed b.   There is a court order directing him to deliver the
in the proper court [Sec. 1, Rule 75] will, and
c.   Right to ask for probate does not prescribe c.   He neglects without reasonable cause to deliver
[Guevara v. Guevara, G.R. No. L-5405 (1956)] the same [Sec. 5, Rule 75]
d.   Doctrine of estoppel does not apply [Fernandez v.
Dimagiba, G.R. No. L- 23638 (1967); Testate So much is the concern of the law for the
Estate of Abada v. Abaja, G.R. No. 147145 (2005)] indispensability of probating a will that Sec. 4, Rule 75
penalizes with a fine not exceeding P2,000 the failure
Before any will can have force or validity, it must be of the custodian of a will to deliver the same to the
probated. Until admitted to probate, a will has no court or to the executor named therein, as also the
effect whatsoever and no right can be claimed failure of the executor to present the will to the proper
thereunder [Sps. Pascual v. CA, G.R. No. 115925 court for probate; and under Section of the same rule,
(2003)] such custodian may be detained by order of the court
until he makes the required delivery of the will [Vda.
The presentation of the will for probate is mandatory De Precilla v. Narciso, G.R. No. L-27200 (1972); Uy Kiao
and is a matter of public policy. Unless the will is Eng, G.R. No.176831 (2010)]
probated, the right of a person to dispose of his
property may be rendered nugatory [Maninang v. CA,
G.R. No. L-57848 (1982); Dy Yieng Seangio, et al. v.
Reyes, G.R. Nos. 147371-72 (2006)]

Duty of custodian, executor

Within 20 days after he knows for the testator’s death,
the person who has custody of the will shall deliver the
will to the court having jurisdiction, or to the executor
named in the will [Sec. 2, Rule 75]

In seeking for the production of the original

holographic will, the remedy of mandamus cannot be
availed of because there lies another plain, speedy and
adequate remedy in the ordinary course of law. The
ROC provides for the institution of probate
proceedings for the allowance of the will, whether it be
in the possession of the petitioner or not (Sec. 1, Rule
76). The petition for mandamus with damages may
therefore be dismissed for lack of cause of action [Uy
Kiao Eng v. Lee, G.R. No.176831 (2010)]

The person named executor shall present the will to

the court having jurisdiction, unless the will has
reached it in any manner, and signify
acceptance/refusal of the trust
a.   within 20 days after he knows of the death of the
testator, or

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

  Allowance or 1.   Who May Petition For

Disallowance of Will Probate; Persons Entitled
To Notice
Probate or allowance of wills is the act of proving in
court a document purporting to be the last will and The executor, devisee, or legatee named in the will, or
testament of the deceased for the purpose of its any other person interested in the estate, may, at any
official recognition, registration and carrying out its time after the death of the testator, petition the court
provision in so far as they are in accordance with law having jurisdiction to have the will allowed, whether
[Festin 40, 2011 Ed.] the same be in his possession or not, or is lost or
destroyed [Sections 1 and 2, Rule 76; Palaganas v.
General rule: A probate proceeding only looks at Palaganas, G.R. No. 169144 (2011)]
extrinsic validity.
A will may be probated
Exception: The probate of a will might become an idle a.   Before the testator’s death – By testator himself
ceremony if on its face it appears to be intrinsically (ante-mortem probate)
void. Where practical considerations demand that the
intrinsic validity of the will be passed upon, even Rationale: Easier for courts to determine the
before it is probated, the court should meet the issue mental condition of the testator. Fraud,
[Nepomuceno v. CA, G.R. No. L-62952 (1985)] intimidation, and undue influence are minimized.
If a will does not comply with requirements
Extrinsic validity due execution of the will prescribed by law, it may be corrected at once [3
Due execution of the will means Tolentino 149, 1992 Ed.]
a.   That the will was executed strictly in accordance b.   After the testator’s death – By executor, devisee,
with the formalities required by law or legatee named in the will or any person
b.   That the testator was of sound and disposing interested in the estate [Sec. 1, Rule 76]
mind when the will was executed
c.   That there was no vitiation of consent through Meaning of interest in estate
duress, fear or threats An interested party is one who would be benefited by
d.   That it was not procured by undue and improper the estate such as an heir or one who has claim against
pressure or influence on part of beneficiary or the estate like a creditor [Sumilang v. Ramagosa, G.R.
other person for his benefit No. L-23135 (1967)]
e.   That the testator’s signature is genuine (not
procured through fraud nor trick), and that the Persons entitled to notice
testator intended that what he executed was his a.   Known heirs, legatees and devisees resident in
last will and testament) Philippines
[Sec. 9, Rule 76] b.   Named executor if he is not petitioner, and
c.   Named co-executors not petitioning if their place
The very existence of the will is in itself prima facie of residence is known
proof that the supposed testatrix has willed that her [Sec. 4, Rule 76]
estate be distributed in the manner provided for in the
will and it is incumbent upon the state that, if legally Note: If the testator himself asks for probate of his own
tenable, such desire be given full effect independent will, notice shall be sent only to compulsory heirs [Sec.
of the attitude of the parties affected thereby. It is an 4, Rule 76; Nittscher v. Nittscher, G.R. No. 160530
established rule that a testament may not be (2007)]
disallowed just because the attesting witness declare
against its due execution; neither does it have to be Notice is required to be given to known heirs, legatees,
necessarily allowed just because all the attesting and devisees of the testator. In the will, the respondent
witnesses declare in favor of its legalization; what is was instituted as the sole heir of the decedent.
decisive is that the court is convinced by evidence Petitioners, therefore, as nephews and nieces of the
before it, not necessarily from the attesting witnesses, decedent, are neither compulsory nor testate heirs
although they must testify, that that will was or was who are entitled to be notified of the probate
not duly executed in the manner required by law proceedings under the Rules. The respondent had no
[Baltazar v. Laxa, G.R. No. 174489 (2012)] legal obligation to mention the petitioners in the
petition for probate, or to personally notify them of the
same [Alaban v. CA, G.R. No. 156021 (2005)]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Periods to give notice who explicitly declares that the will and
a.   Personal service – At least 10 days before hearing signature are in the handwriting of the
b.   By mail – at least 20 days before hearing testator, or
[Sec. 4, Rule 76] 2.   In the absence of such competent witness
and the court deems it necessary, expert
Contents of petition for allowance of will testimony may be resorted to
a.   Jurisdictional facts – refer to the fact of death of [Sec. 5, Rule 76]
the decedent, his residence at the time of his
death in the province where the court is sitting, or If the testator himself petitions for probate of
if he is an inhabitant of a foreign country, the holographic will and it is not contested. The fact that
estate he left in such province [Palaganas v. he affirms that the holographic will and the signature
Palaganas, G.R. No. 169144 (2011)] are in his own handwriting shall be sufficient evidence
b.   Names, ages, and residences of the heirs, of genuineness and due execution thereof [Sec. 12,
legatees, and devisees of the testator or decedent Rule 76]
c.   Probable value and character of the property of
the estate It is not mandatory that witnesses be presented first
d.   Name of the person for whom letters are prayed before expert testimony maybe resorted to unlike in
e.   If the will has not been delivered to the court, the notarial wills wherein attesting witnesses must first be
name of the person having custody of it presented [Azaola v. Singson, G.R. No. L-14003
[Sec. 2, Rule 76] (1960)]

Effects of defect in petition Contested will

No defect in petition shall render void the allowance of Anyone appearing to contest the will must state in
will, or the issuance of letters testamentary or of writing his grounds for opposing its allowance and
administration with the will annexed [Sec. 2, Rule 76] serve a copy to petitioner and other interested parties
[Sec. 10, Rule 76]
Jurisdiction, how acquired a.   Notarial Will
Publication of the notice of hearing brings in the whole 1.   All subscribing witness and the notary if
world as a party in the case for probate and vests the present in Philippines and not insane must be
court with jurisdiction to hear and decide it. Thus, presented.
parties not mentioned in the petition for probate 2.   If dead, insane or absent – said fact must be
eventually became parties as a consequence of satisfactorily shown in court.
publication [Alaban v. CA, G.R. No. 156021 (2005)] 3.   If present in Philippines but outside the
province – deposition must be taken.
The notice must be published 3 weeks successively, [Sec. 11, Rule 76; Baltazar v. Laxa, G.R. No. 174489
previous to the time set for hearing, in a newspaper of (2012)]
general circulation in the province [Sec. 3, Rule 76]
Can testimony of the subscribing witnesses be
EVIDENCE REQUIRED IN SUPPORT OF A WILL dispensed with in a contested will? YES. If any or all
of the subscribing witness
Uncontested will 1.   testify against the due execution of the will, or
a.   Notarial Will – Testimony of at least one 2.   do not remember having attested to it, or
subscribing witness that the will was executed as 3.   are otherwise of doubtful credibility
required by law [Sec. 5, Rule 76]
1.   If all subscribing witnesses reside outside of The court may allow the will if it is satisfied from
the province but their deposition can be taken testimony of other witnesses and all evidence
elsewhere, the court may on motion order presented that the will was executed and attested
that it be taken and may authorize making of in the manner required by law [Sec.11, Rule 76]
photocopy of the will to be presented to b.   Holographic wills
witness [Sec. 7, Rule 76] 1.   At least three witness who knows the
2.   If all subscribing witnesses are dead, insane handwriting and signature of the testator
or do not reside in Philippines, other who explicitly declares that the will and
witnesses not subscribing may be presented signature are in the handwriting of the
[Sec. 8, Rule 76] testator
b.   Holographic wills 2.   In the absence of such competent witness
1.   At least one witness who knows the and the court deems it necessary, expert
handwriting and signature of the testator testimony may be resorted to

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

[Sec. 11, Rule 76]

The list is exclusive. Thus, in a petition to admit a
If the testator himself petitions for probate of holographic will to probate the only issue to be
holographic will and it is contested, the resolved are: (1) whether the instrument submitted is,
contestant has the burden of disproving indeed, the decedent’s last will and testament; (2)
genuineness. Testator may present additional whether said will was executed in accordance with the
proof to rebut contestant’s evidence [Sec. 12, Rule formalities pescribed by law; (3) whether the decedent
76] had the necessary testamentary capacity at the time
the will was executed; and (4) whether the execution
Lost will of the will and its signing were the voluntary acts of the
a.   Notarial Wills – even if lost may be proved decendents [Spouses Ajero v. CA, G.R. No. 106720
through the following facts (1994)]
1.   Execution and validity of the will
2.   Its existence at the time of testator’s death or
that it has been fraudulently or accidentally
3.  Effects of Probate
destroyed during testator’s lifetime without
his knowledge, and Effect of probate of will
3.   Provisions of the will clearly and distinctly Decree of probate is conclusive as to its due execution,
proved by at least two credible witnesses subject to the right of appeal [Sec. 1, Rule 75]

If lost will is proved, its provisions must be If a decision admitting a will to probate becomes final,
distinctly stated and certified by the judge, under there can no longer be any challenge to its due
seal of court, and the certificate must be filed and execution and authenticity. Thus, a criminal action will
recorded as other wills are filed and recorded not lie against an alleged forger of a will which had
[Sec. 6, Rule 76] been duly admitted to probate by a court of competent
b.   Holographic Wills jurisdiction [Mercado v. Santos, G.R. No. 45629 (1938)]

General rule: If a holographic will has been lost or Order allowing or disallowing a will may be the subject
destroyed and no other copy is available, the will of an appeal [Sec. 1, Rule 109]
cannot be probated because the best and only
evidence is the handwriting of the testator in said
will.

Exception: A photostatic copy or xerox of the

holographic will may be allowed because
comparison can be made with the standard
writings of the testator. [Rodelas v. Aranza, G.R.
No. L-58509 (1982)]

2.  G rounds for Disallowing a

Will
The will shall be disallowed if
a.   Not executed and attested as required by law
b.   Testator was insane, or otherwise mentally
incapable to make a will, at the time of its
execution
c.   Executed under duress, or the influence of fear, or
threats
d.   Procured by undue and improper pressure and
influence, on the part of the beneficiary, or of
some other person for his benefit, or
e.   Signature of the testator was procured by fraud or
trick, and he did not intend that the instrument
should be his will at the time of fixing his
signature thereto [Sec. 9, Rule 76 cf. Art. 839, CC]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

  Reprobate c.   After payment of just debts and expenses of

administration, estate shall be disposed of
according to the will
Wills proved and allowed in a foreign country, d.   Residue disposed of in accordance with law [Sec.
according to the laws of such country, may be allowed, 4, Rule 77]
filed, and recorded by the proper court in Philippines
[Sec. 1, Rule 77] Questions as to title to property
General rule:The probate court, whether in a testate or
1.   Requisites before a Will intestate proceeding, can only pass upon questions of
title provisionally. The reason is that the probate
Proved Abroad Would be court’s limited jurisdiction and the principle that
questions of title or ownership, which result in
Allowed in Philippines exclusion or inclusion from the inventory of the
property, can only be settled in a separate action
a.   Duly authenticated copy of will [Aranas v. Mercado, G.R. No. 156407 (2014), citing De
b.   Duly authenticated order or decree of its Leon v. CA, G.R. 128781 (2002); Jimenez v. CA, G.R. No.
allowance in foreign country, and 75773 (1990); Agtarap v. Agtarap, G.R. Nos. 177099
c.   Petition for allowance in Philippines filed by the and 177192 (2011)]
executor or other person interested
[Sec. 2, Rule 77] Exception: If the interested parties are all heirs, or the
question is one of collation or advancement, or the
The court having jurisdiction shall fix a time and place parties consent to the assumption of jurisdiction by the
for the hearing and cause notice thereof to be given as probate court and the rights of third parties are not
in case of an original will presented for allowance [Sec. impaired, the probate court is competent to decide the
2, Rule 77] question of ownership [Cora v. Vda. De Pangilinan,
G.R. Nos. L-27082 and L-29545 (1978); Agtarap v.
Evidence necessary for reprobate Agtarap, G.R. Nos. 177099 and 177192 (2011)]
a.   due execution of the will in accordance with the
foreign laws
b.   testator has his domicile in the foreign country
and not in Philippines
c.   will has been admitted to probate in such country
d.   fact that the foreign tribunal is a probate court,
and
e.   laws of a foreign country on procedure and
allowance of wills
[Vda. De Perez v. Tolete, G.R. No. 76714 (1994)]

Our laws do not prohibit the probate of wills executed

by foreigners abroad although the same have not as
yet been probated and allowed in the countries of their
execution. A foreign will can be given legal effect in
our jurisdiction. The rules do not require proof that the
foreign will has already been allowed and probated in
the country of its execution [Palaganas v. Palaganas,
G.R. No. 169144 (2011)]

2.  E ffect of Reprobate
a.   Will shall have the same effect as if originally
proved and allowed in Philippine court [Sec. 3,
Rule 77]
b.   The grant of letters testamentary or of
administration shall extend to all estate of the
testator in Philippines

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

  Letters Testamentary Executor of an executor shall not, as such, administer

and of Administration estate of first testator [Sec. 2, Rule 78]

Married woman may serve as executor or

1.   When and to Whom administrator and a marriage of a single woman shall
not affect her authority so to serve under a previous
Letters of Administration appointment [Sec. 3, Rule 78]
are Granted
Who are incompetent to serve as executor or
Who may administer the estate of a deceased person? administrator
a.   Executor a.   Minor
b.   Administrator b.   Non-resident
c.   One who, in the opinion of the court, is unfit to
exercise the duties of the trust by reason of
Executor Administrator
1.   Drunkenness
Appointed when
2.   Improvidence
a.   Testator did not
3.   Want of understanding
appoint an
4.   Want of integrity, or
Person named executor
5.   Conviction of an offense involving moral
expressly by deceased b.   The appointment
turpitude
person in his will to was refused
[Sec. 1, Rule 78]
administer, settle, and c.   The executor is
liquidate estate, and incompetent to
To be disqualified to serve as executor or
subsequently appointed serve
administrator under Sec. 1(e), Rule 78, it must be
by court d.   The will was
shown that the conviction must be for an offense
disallowed
involving moral turpitude. Thus, one’s failure to file a
e.   No will (intestate
return as required by the NIRC cannot be a basis for
succession)
disqualification, it not being a crime involving moral
Has duty to present the
turpitude [Republic v. Marcos II, G.R. Nos. 130371 and
will to court within 20
130855 (2009)]
days after (a) he learns
of the death of testator
The courts may delve into the question of the
or (b) after he knew he
suitableness and fitness of an administrator,
was appointed as No such duty
notwithstanding the fact that both are compulsory
executor (if he obtained
heirs, and may in fact appoint one over the other even
such knowledge after
if both possess equal status in the order of preference
death of testator),
[Marcelo Investment and Management Corp. v. Marcelo,
unless will has reached
Jr., G.R. No. 209651 (2014)]
the court in any manner
The testator may Other grounds in jurisprudence
provide that he may a.   In this jurisdiction, one is considered to be
serve without a bond unsuitable for appointment as administrator
Required to file bond
but the court shall when he has adverse interest of some kind or
unless exempted by law
direct him to post a hostility to those immediately interested in the
bond conditioned only estate [Lim v. Diaz-Millarez, G.R. No. L-17633
to pay debts. (1966)]
Compensation provided b.   The administrator should be indifferent between
in the will controls, the estate and claimants of the property, except
unless renounced. to preserve it for due administration, and he
First part of Sec. 7, Rule
85 applies should be removed when his interests conflict
If no provision for with such right and duty [Medina v. CA, G.R. No.
compensation, Sec. 7 of L-34760 (1973)]
Rule 85 applies.
The regular administrator is charged with the task of
Any competent person may serve as an executor or accomplishing and terminating the administration of
administrator. the estate with the utmost reasonable dispatch, with

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

a view to an early distribution of the net estate among the other hand, suffer the consequences of waste,
the heirs and persons entitled thereto [Medina v. CA, improvidence or mismanagement, have the highest
G.R. No. L-34760 (1973)] interest and most influential motive to administer the
estate correctly [Gonzalez v. Aguinaldo, et al., G.R. No.
When are letters testamentary or of administration 74769 (1990)]
granted
Letters testamentary – an authority issued to an The mere demonstration of interest in the estate to be
executor named in the will to administer the estate. It settled does not ipso facto entitle an interested person
is issued once the will has been proved and allowed, to co-administration thereof. Neither does squabbling
and if the executor named is competent, accepts the among the heirs nor adverse interests necessitate the
trust and gives bond [Sec. 4, Rule 78] discounting of the order of preference set forth in
Section 6, Rule 78. Indeed, in the appointment of the
Letters of administration – authority issued by court administrator of the estate of the deceased person, the
to a competent person to administer the estate if principal consideration reckoned with is the interest in
a.   No executor is named in will said estate of the one to be appointed as administrator
b.   Executor or executors named are incompetent, [Suntay III v. Cojuangco-Suntay, G.R. No. 183053
refuse the trust, or fail to give bond, or (2012)]
c.   Person dies intestate
[Sec. 6, Rule 78] Mere failure to apply for letters of administration does
not remove preference [1 ALR 1247]
2.  O rder of Preference Note: The order of preference is not absolute for it
depends on the attendant facts and circumstances of
Order of preference in the grant of letters of each case. The selection of an administrator lies in the
administration sound discretion of the trial court [Aguinaldo-Suntay v.
a.   Surviving spouse, or next of kin, or both, or to such Cojuangco-Suntay, G.R. No.183053 (2010)]
person as the surviving spouse, or next of kin
requests to have appointed, if competent and 30-day period may be waived
willing to serve Just as the order of preference is not absolute and may
b.   If those enumerated above be incompetent or be disregarded for valid cause, so may the 30-day
unwilling, or if the husband or widow, or next of period be likewise waived under the permissive tone in
kin, neglects for 30 days after the death of the paragraph (b) of said rule which merely provides that
person to apply for administration or to request said letters as an alternative, “may be granted to one
that administration be granted to some other or more of the principal creditors” [3-A Herrera 68,
person, one or more of the principal creditors, if 1996 Ed.]
competent and willing to serve
c.   If there is no such creditor, such other person as Co-administrators may be appointed [Matute v. CA,
the court may select G.R. No. L-26751 (1969)]
[Sec. 6, Rule 78]
In the appointment of a co-administrator, the size of,
Next of kin are those entitled by law to receive the and benefits to the estate may be considered by the
decedent’s properties [Ventura v. Ventura, G.R. No. L- court. Thus, where the estate is large or, from any
26306 (1988)] cause, an intricate or perplexing one to settle, the
appointment of co-administrators may be sanctioned
The order of preference in the appointment of a by law [Uy v. CA, G.R. No. 167979 (2006)]
regular administrator as provided in the afore-quoted
provision does not apply to the selection of a special
administrator. The preference under Section 6, Rule 3.  Opposition to Issuance of
78 for the next of kin refers to the appointment of a
regular administrator, and not of a special
Letters Testamentary;
administrator, as the appointment of the latter lies Simultaneous Filing of
entirely in the discretion of the court, and is not
appealable [Tan v. Gedorio, G.R. No. 166520 (2008)] Petition for
Administration
Reason for order of preference
Those who would reap the benefit of a wise, speedy Who may oppose
and economical administration of the estate, or, on Any person interested in a will [Sec. 1, Rule 79]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Meaning of interested person to the known heirs and creditors of the decedent, and
One who would be benefited by the estate, such as an to any other persons believed to have an interest in the
heir, or one who has a claim against the estate, such estate
as a creditor; thus, interest must be material and [Sec. 3, Rule 79]
direct, not merely indirect or contingent [Maloles II v.
Philips, G.R Nos. 129505 and 133359 (2000); Under Sec. 3, Rule 79, the probate court must cause
Saguinsin v. Lindayag, G.R. No. L-17759 (1962)] notice through publication of the petition after it
receives the same. The purpose of this notice is to
Respondent’s photograph with his mother near the bring all the interested persons within the court’s
coffin of the decedent cannot and will not constitute jurisdiction so that judgment therein becomes binding
proof of filiation. Indeed, respondent is not an on all the world. Where no notice as required by Sec.
interested person within the meaning of Section 2, 3, Rule 79 has been given to persons believed to have
Rule 79 entitled to the issuance of letters of an interest in the estate of the deceased person, the
administration [Solinap v. Locsin, Jr., G.R. No. 146737 proceedings for the settlement of the estate is void
(2001)] and should be annulled. The requirement as to notice
is essential to the validity of the proceeding in order
Grounds that no person may be deprived of his right to property
a.   Incompetency of the person/s for whom letters without due process of law [De Guzman v. Angeles,
are prayed, or G.R. No. 78590 (1988)]
b.   Contestant’s own right to the administration (ex.
preferential right under Sec. 6, Rule 78) Simultaneous filing of opposition and petition
[Sec. 4, Rule 79] An interested person opposing the petition for
administration may pray in his opposition that letters
Form required issue to himself, or to any competent person/s named
Grounds for opposition must be stated in writing; in it [Sec. 4, Rule 79]
court shall then hear and pass upon sufficiency of such
grounds [Sec. 1, Rule 79] Order appointing regular administrator is appealable
[Sec. 1, Rule 109]
Contents of petition for letters of administration
a.   Jurisdictional facts When letters of administration are issued
1.   Death of testator If proven at a hearing that
2.   Residence at time of death in the province a.   Notice has been given as required, and
where probate court is sitting, or b.   Decedent left no will, or there is no competent and
3.   If he is an inhabitant of foreign country, his willing executor
having left his estate in such province [Diez v. [Sec. 5, Rule 79]
Serra, G.R. No. L-27650 (1927)]
b.   Names, ages and residences of heirs, and names One who is named as executor in the will or one who
and residences of creditors enjoys preference under the rules is not automatically
c.   Probable value and character of the estate, and entitled to the issuance of letters testamentary/of
d.   Name of person for whom letters is prayed administration. A hearing has to be held in order to
[Sec. 2, Rule 79; Palaganas v. Palaganas, G.R. No. ascertain her fitness to act as executor/administrator
169144 (2011)] [Baluyut v. Cruz Paño, G.R. No. L-42088 (1976)]

While recitals in the death certificate of the decedent Letters of administration may be granted to any
can be considered proof of a decedent’s residence at qualified applicant, though it appears that there are
the time of his death, the contents thereof, however, other competent persons having better right, if such
are not binding on the courts [Garcia-Quiazon v. Belen, persons fail to appear when notified and claim the
G.R. No. 189121 (2013)] issuance of letters to themselves [Sec. 6, Rule 79]

Defect in petition would not render void issuance of

letters of administration [Sec. 2, Rule 79]
4.  P owers and Duties of
Executors and
Publication and notice
Notice of hearing must be given in the manner Administrators;
provided in Sec. 3 and 4, Rule 76, by
a.   Publication, and
Restrictions on the Powers
b.   Personal service or by mail

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Posting of bond G.R. No. 187879 (2010); Heirs of Castillo v. Lacuata-

Before an executor or administrator enters upon the Gabriel, G.R. No. 162934 (2005)]
execution of his trust, and letters testamentary or of
administration issue, he shall give a bond in such sum To reiterate, the role of a special administrator is to
as the court directs [Sec. 1, Rule 81] preserve the estate until a regular administrator is
appointed. Given this duty on the part of the special
Purpose administrator, it would be prudent and reasonable to
The bond posted by the administrators and executors appoint someone interested in preserving the estate
is intended as an indemnity to the creditors, the heirs for its eventual distribution to the heirs. While the
and the estate. court may use its discretion, there is no logical reason
to appoint a person who is a debtor of the estate and
How is liability on the bond enforced? otherwise a stranger to the deceased. To do so would
By motion or in a separate action [Festin 56, 2011 Ed.] be tantamount to grave abuse of discretion
[Manungas v. Loreto, G.R. No. 193161 (2011)]
Conditions on the bond
a.   Make a return to the court, within 3 months, a true The appointment of a special administrator lies
and complete inventory of all goods, chattel, entirely in the discretion of the court, and is not
rights, credits, and estate of the deceased which appealable. Not being appealable, the only remedy
shall come to his possession or knowledge or to against the appointment of a special administrator is
the possession of any other person for him certiorari under Rule 65 [Tan v. Gedorio, G.R. No.
b.   Administer according to these rules, and if an 166520 (2008)]
executor, according to the will of the testator, all
goods, chattel, rights, credits, and estate of the Condition on the bond
deceased which shall come to his possession or to More specifically, the bond is conditioned on the
the possession of any other person for him, and faithful execution of the administration of the
from the proceeds to pay and discharge all debts, decedent’s estate requiring the special administrator
legacies, charges on the same, or dividends as to
decreed by court a.   Make and return true inventory in his possession
c.   Render a true and just account within 1 year and or knowledge
when required by court, and b.   Render accounting when required by court
d.   Perform all orders of the court [Sec. 1, Rule 81] c.   Deliver estate of the deceased to the regular
executor or administrator, or other authorized
If the testator provides in his will that executor shall person
serve without bond, or with only his individual bond, [Sec. 4, Rule 81; Ocampo v. Ocampo, G.R. No. 187879
the court may still allow him to file a bond conditioned (2010)]
only to pay debts of testator. But court may require of
the executor a further bond in case of change in his
circumstances or for other sufficient cause [Sec. 2,
a.   General Powers and Duties of
Rule 81] Executors and Administrators
Bonds of joint executors and administrators Have access to partnership books and property at all
The court may take a separate bond from each times
executor or administrator, or a joint bond from all [Sec. 1.   Have access to, and may examine and take copies
3, Rule 81] of, books and papers relating to the partnership
business
SPECIAL ADMINISTRATOR 2.   Examine and make invoices of the property
A special administrator is an officer of the court who is belonging to such partnership
subject to its supervision and control, expected to work 3.   Request the surviving partner/s to exhibit to him
for the best interest of the entire estate, with a view to all such books, papers, and property in their
its smooth administration and speedy settlement hands or control
[Ocampo v. Ocampo, G.R. No. 187879 (2010)] [Sec. 1, Rule 84]

The probate court is justified in appointing joint Failure to freely permit the exercise of these rights,
special administrators pending determination of the and to exhibit the books, papers, and property may
person or persons to whom letters of administration subject any partner for contempt.
may be issued, inasmuch as there was a disagreement
as to who should be appointed [Ocampo v. Ocampo,

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Keep buildings in tenantable repair 2.   He must account for the excess (when sold for
1.   Maintain the houses and other structures and more than appraisement)
fences belonging to the estate, and 3.   If sold for less, he is not responsible for loss, if sale
2.   Deliver the same in such repair to the heirs or justly made
devisees when directed so to do by the court 4.   If settled claim for less than nominal value, he is
[Sec. 2, Rule 84] entitled to charge in his account only the amount
actually paid on the settlement
When a property is part of an estate and subject to [Sec. 2, Rule 85]
intestate proceedings before the courts, the 5.   Not accountable for debts due the deceased
administrator may only deliver properties of the estate which remain uncollected without his fault [Sec.
to the heirs upon order of the court. Verily, once an 3, Rule 85]
action for the settlement of an estate is filed with the
court, the properties included therein are under the Accountable for income from realty used by him
control of the intestate court. And not even the If executor/administrator uses/occupies any part of
administrator may take possession of any property real estate himself, he shall account for it
that is part of the estate without prior authority of the 1.   as may be agreed upon between him and the
court [Silverio, Jr. v. CA, G.R. No. 178933 (2009)] parties interested, or
2.   as may be adjusted by the court with the parties’
Right to possession and management of the real assent
and personal properties
1.   So long as necessary for the payment of the debts If the parties do not agree upon the sum to be allowed,
and the expenses of administration [Sec. 3, Rule the same may be ascertained by the court, whose
84] determination in this respect shall be final [Sec. 4,
2.   Administrator cannot exercise the right of legal Rule 85]
redemption over a portion of the property owned
in common sold by one of the other co-owners Accountable if he neglects or delays to raise or pay
since this is not within the powers of administrator money
[Caro v. CA, G.R. No. L-46001 (1982)] Damages sustained are considered waste, and may be
charged and allowed against him in his account, and
When the estate of a deceased is already the subject s/he is liable on his/her bond if s/he
of a testate or intestate proceeding, the administrator 1.   Neglects
cannot enter into any transaction involving it without a.   or unreasonably delays to raise money, by
any prior approval of the probate court [Estate of Olave collecting debts or selling real or personal
v. Reyes, G.R. No. L-29407 (1983)] estate of the deceased, or
b.   to pay over money in his hands, and
2.   The value of the estate is thereby lessened or
b.   Restrictions on Powers of unnecessary cost or interest accrues, or the
Executors and Administrators persons interested suffer loss
[Sec. 5, Rule 85]
Executor or administrator chargeable with all estate
and income Only necessary expenses shall be allowed
Chargeable in his account with the whole of the estate 1.   Amount paid by executor/administrator for costs
which has come into his possession, at the value of the awarded against him shall be allowed in his
appraisement contained in the inventory, with administration account, unless it appears that the
1.   Interest action or proceeding in which the costs are taxed
2.   Profit was prosecuted or resisted without just cause, and
3.   Income of such estate and not in good faith [Sec. 6, Rule 85]
4.   Proceeds of as much of the estate as is sold by 2.   When the executor is an attorney, he shall not
him, at the price at which it was sold charge against estate any professional fees for
[Sec. 1, Rule 85] legal services rendered [Sec. 7, Rule 85]

Prohibited from profiting by increase or losing by Necessary expenses of administration

decrease in value Such expenses as are entailed for the preservation and
1.   No executor/administrator shall profit by the productivity of the estate and for its management for
increase, or suffer loss by the decrease or purpose of liquidation, payment of debts, and
destruction, without his fault, of any part of the distribution of the residue among persons entitled
estate thereto [Hermanos v. Abada, G.R. No. 13910 (1919)]

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Not considered as necessary expenses not extend to grandchildren, regardless of their

1.   Expenses on death anniversary of deceased minority or incapacity [Estate of Ruiz v. CA, G.R. No.
because no connection with care, management 118671 (1996)]
and settlement of estate
2.   Expenses for stenographic notes and unexplained In the same way that certain rights still attach by virtue
representation expenses of the blood relation, so too should certain obligations
3.   Expenses incurred by heir as occupant of family which include the exercise of parental authority, in the
home without paying rent (ex. Salary of house event of the untimely passing of the minor offspring’s
helper, light, water bills, gas, etc. adoptive parent. The death of an adoptive parent at
[De Guzman v. De Guzman-Carillo, G.R. No. L-29276 the time when the child was still a minor resulted in
(1978)] the restoration of the natural parent’s authority over
4.   Expenses incurred by an executor or administrator the adopted child. Consequently, since the parent by
to produce a bond [Sison v. Teodoro, G.R. No. L- adoption already died, then the adopted child’s death
9271 (1957)] benefits shall accrue solely to his sole remaining
5.   The administration bond should not be beneficiary, his natural parent [Bartolome v. Social
considered as part of the necessary expenses, not Security System, G.R. No. 192531 (2014)]
being included among the acts constituting the
care, management, and settlement of the estate Executor or administrator to make inventory and
[Ocampo v. Ocampo, G.R. No. 187879 (2010)] render account
Inventory
Attorney’s fees Rendered within 3 months of appointment and
When an attorney assists the administrator or includes an appraisal of all real and personal estate of
executor personally in the execution of his trust, the the deceased which has come into his possession or
liability for the payment of attorney’s fees rests on the knowledge [Sec. 1, Rule 83]
executor or administrator. However, if the fees paid
are beneficial to the estate and reasonable, he is The usage of the word “all” in Sec. 1, Rule 83 demands
entitled to reimbursement from the estate [Uy Tioco v. the inclusion of all the real and personal properties of
Imperial, G.R. No. L-29414 (1928); Quasha Ancheta the decedent in the inventory. However, the word “all”
Peña and Nolasco Law Office v. LCN Construction Corp., is qualified by the phrase “which has come into his
G.R. No. 174873 (2008)] possession or knowledge,” which signifies that the
properties must be known to the administrator to
Allowance to surviving spouse and children belong to the decedent or are in her possession as the
The widow and minor or incapacitated children, administrator. Sec. 1 allows no exception, for the
during the settlement of the estate, shall receive, phrase “true inventory” implies that no properties
under the direction of the court, such allowance as are appearing to belong to the decedent can be excluded
provided by law [Sec. 3, Rule 83] from the inventory, regardless of their being in the
possession of another person or entity [Aranas v.
It is the court hearing the settlement of the estate, not Mercado, G.R. No. 156407 (2014)]
the guardianship court, that should execute the order
for the payment of the widow’s allowance considering Not included
that the properties of the estate are within its a.   Wearing apparel of surviving husband or wife and
jurisdiction, to the exclusion of all the other courts minor children
[Heirs of Sy Bang v. Sy, G.R. Nos. 114217 and 150797 b.   Marriage bed and bedding, and
(2009)] c.   Such provisions and other articles as will
necessarily be consumed in the subsistence of the
Allowances for support under Section 3, rule 83 family of the deceased
should not be limited to the “minor or incapacitated” [Sec. 2, Rule 83]
children of the deceased. Article 188 of the Civil Code
provides that during the liquidation of the conjugal Accounting mandatory
partnership, the deceased’s legitimate spouse and Within 1 year from time of receiving letters
children, regardless of their age, civil status or gainful testamentary or of administration unless court
employment, are entitled to provisional support from otherwise directs [Sec. 8, Rule 85]
the funds of the estate. The right and duty to support
subsist even beyond the age of majority. Be that as it He shall render such further accounts as court may
may, grandchildren are not entitled to provisional require until the estate is wholly settled [Sec. 8, Rule
support from the decedent’s estate. The law clearly 85]
limits the allowance to “widow and children” and does

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Sec. 8, Rule 85 requires the administrator to render an that of a special administrator [Pijuan v. De Gurrea,
account of his administration within one year from G.R. No. L-21917 (1966)]
receipt of the letters testamentary or of administration
[Hilado v. CA, G.R. No. 164108 (2009)] Regular administrator Special administrator
Appointed by the court
The fact that the heirs of the estate have entered into in the following Appointed by the court
an extrajudicial settlement and partition in order to instances when
put an end to their differences cannot in any way be a.   Testator did not a.   there is delay in
interpreted as a waiver of the objections of the heirs to appoint an granting letters
the accounts submitted by the administrator [Joson v. executor testamentary or
Joson, G.R. No. L-9686 (1961)] b.   The appointment administration by
was refused any cause
Examination on oath by court c.   The will was b.   the executor is a
As to the correctness of his account before the same is disallowed claimant of the
allowed d.   No will (intestate estate
succession)
Except Cannot pay debts of the
a.   when no objection is made to the allowance of the Should pay the debts of
estate unless ordered
account, and the estate
by the court
b.   its correctness is satisfactorily established by Order of Appointment is
competent proof Order of Appointment
interlocutory and is not
[Sec. 9, Rule 85] is final and appealable
appealable

The heirs, legatees, distributees, and creditors of the Powers and duties
estate shall have the same privilege as the a.   Take possession and charge of goods, chattels,
executor/administrator of being examined on oath on rights, credits, and estate of deceased, and
any matter relating to an administration account [Sec. b.   Preserve the same for executor/administrator
9, Rule 85] afterwards appointed, and for that purpose may
commence and maintain suits as administrator
5.  A ppointment of Special c.   May sell only such perishable and other property
as the court orders sold
Administrator d.   Not liable to pay any debts of the deceased unless
so ordered by the court
When appointed [Sec. 2, Rule 80]
a.   When there is delay in granting letters
testamentary or administration by any cause, When powers cease
including an appeal from allowance or When letters testamentary/administration are
disallowance of a will [Sec. 1, Rule 80], or granted on the estate of the deceased
b.   When the executor or regular administrator has a a.   Special administrator shall deliver to
claim against the estate, with respect to the executor/administrator goods, chattels, money,
settlement or adjustment of that claim [Sec. 8, and estate of deceased in his hands.
Rule 86] b.   The executor/administrator may prosecute to
final judgment suits commenced by such special
Procedure administrator.
There must first be notice and publication. Notice [Sec. 3, Rule 80]
through publication of the petition is a jurisdictional
requirement even in the appointment of a special Appointment of special administrator is interlocutory
administrator [De Guzman v. Angeles, G.R. No. 78590 and is not appealable [Sec. 1(e), Rule 109]
(1988)]

Appointment of special administrator lies entirely in

6.  R evocation, Death,
the sound discretion of the court [De Gala v. Gonzales, Resignation and Removal
G.R. No. L-30289 (1929)]
of Executors and
The preference laid down under Sec. 6, Rule 78 refers
to the appointment of a regular administrator, not to
Administrators

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Revocation of administration enumerated in the Rules at its discretion, such that the
When the decedent’s will is allowed and proved after need to first pass upon and resolve the issues of fitness
letters of administration have been granted as if he or unfitness and the application of the order of
had died intestate, the administration is deemed preference under Section 6 of Rule 78, as would be
revoked [Sec. 1, Rule 82] proper in the case of a regular administrator, do not
obtain. As long as the discretion is exercised without
Duty of administrator upon revocation of letters grave abuse, and is based on reason, equity, justice,
a.   Surrender letters to court and legal principles, interference by higher courts is
b.   Render his account within such time as court unwarranted [Ocampo v. Ocampo, G.R. No. 187879
directs (2010)]
[Sec. 1, Rule 82]
Effect of removal, death, or resignation
Removal of executor or administrator a.   The remaining executor/administrator may
Grounds administer the trust alone, unless the court grants
a.   Neglects to letters to someone to act with him.
1.   Render his account and settle the estate b.   If there is no remaining executor/administrator,
according to law, or administration may be to any suitable person.
2.   Perform an order or judgment of the court, or [Sec. 2, Rule 82]
a duty expressly provided by these rules
b.   Absconds Sec. 2, Rule 82 provides in clear and unequivocal
c.   Becomes insane, or terms the modes for replacing an administrator upon
d.   Becomes incapable or unsuitable to discharge the his death and absent a showing that the other
trust members of the law firm to which the originally
[Sec. 2, Rule 82] appointed administrator belonged were issued letters
of administration after his death, they can only, at
List enumerated is not exclusive. Court is vested with most, be deemed to have rendered legal services for
ample discretion in removal of administrator for as they may be paid their professional fees [Quasha
long as there is evidence of act or omission on the part Ancheta Peña and Nolasco Law Office v. LCN
of the administrator not conformable to or in disregard Construction Corp., G.R. No. 174873 (2008)]
of rules or orders of the court which it deems as
sufficient or substantial to warrant removal of Complaints against the general competence of the
administrator [Festin 62, 2011 Ed.] administrator, the proper remedy is to seek the
removal of the administrator in accordance with Sec.
Examples of valid removal of an administrator by 2, Rule 82. While the provision is silent as to who may
probate court seek with the court the removal of the administrator, a
a.   Administrator who disbursed funds of estate creditor, even a contingent one, would have the
without judicial approval [Cotia v. Jimenez, G.R. personality to seek such relief [Hilado v. CA, G.R. No.
No. L-12132 (1958)] 164108 (2009)]
b.   False representation by administrator in securing
his appointment [Cobarrubias v. Dizon, G.R. No. L- Validity of acts
225 (1946)] Lawful acts of the executor/administrator before
c.   Administrator who holds interest adverse to that removal/resignation are valid [Sec. 3, Rule 82]
of the estate or his conduct shows unfitness to
discharge the trust [Garcia v. Vasquez, G.R. No. L- The administrator’s lawful acts before the revocation
26615 (1970)] of the letters of administration or before her removal
d.   Administrator who has physical and mental shall have the same validity as if there was no such
inability and consequent unsuitability to manage revocation. It is elementary that the effect of
the estate [De Borja v. Tan, G.R. No. L-6476 revocation of letters testamentary or of administration
(1955)] is to terminate the authority of the executor or
administrator, but the acts of the executor or
Temporary absence in the state does not disqualify administrator, done in good faith prior to the
one to be an administrator of the estate [Gonzales v. revocation of the letters, will be protected and a
Aguinaldo, G.R. No. 74769(1990)] similar protection will be extended to rights acquired
under a previous grant of administration [Vda. De
Removal of Special Administrators Bacaling v. Laguna, G.R. No. L-26694 (1973)]
The probate court may appoint or remove special
administrators based on grounds other than those

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Powers of new executor or administrator

a.   Collect and settle the estate not administered   Claims against the Estate
b.   Prosecute and defend actions commenced by or
against the former executor/administrator, and Estate burdened with lien of creditors
c.   Have execution on judgments recovered in the Upon the death of the person, all his property is
name of the former executor/administrator burdened with all his debts, his debts creating an
d.   Authority to sell granted by court to former equitable lien thereon for the benefit of the creditors.
executor or administrator may be renewed And such lien continues until the debts are
without further notice or hearing extinguished either by the payment, prescription, or
[Sec. 4, Rule 82] satisfaction in one of the modes recognized by law
[Suiliong & Co. v. Chio-Taysan, G.R. No. L-4777 (1908)]

Purpose of presentation of claims against estate

1.   To protect the estate of the deceased
2.   Executor/administrator will be able to examine
each claim, determine whether it is a proper one
which should be allowed
3.   To appraise the administrator and the probate
court of the existence of the claim so that a proper
and timely arrangement may be made for its
payment in full or by pro-rata portion in the due
course of the administration [Estate of Olave v.
Reyes, G.R. No. L-29407 (1983)]

1.   Time within Which Claims

shall be Filed; Exceptions
General rule: Claims must be filed within the time
specified by the court in its notice which shall not be
less than 6 months nor more than 12 months from the
date of the first publication of the notice [Sec. 2, Rule
86]

Exceptions: Belated claims

The Court has the discretion, for cause and upon such
terms as are equitable, to allow contingent claims
presented beyond the period previously fixed provided
they are filed within 1 month from the expiration of
such period but in no case beyond the date of entry of
the order of distribution [Danan v. Buencaminao, G.R.
No. L-57205 (1981); Sec. 2, Rule 86]

Notice to creditors to be published; Affidavit of

publication
Executor/administrator shall, immediately after the
notice to creditors is issued, cause publication of
notice for 3 weeks successively in a newspaper of
general circulation in the province, and its posting in 4
public places in the province, and in 2 public places in
the municipality, where the decedent last resided [Sec.
3, Rule 86]

Printed copy of the published notice shall be filed in

court within 10 days after its publication accompanied
with affidavit setting forth the dates of first and last

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publication and name of newspaper where it was Exceptions:

printed [Sec. 4, Rule 86] a.   When set forth as counterclaims in any action that
the executor/administrator may bring against the
Significance of Notice claimants [Sec. 5, Rule 86]
Publication of notice is constructive notice to creditors b.   Belated claims [Sec. 2, Rule 86]
and, thus, a creditor would not be permitted to file a
claim beyond the period fixed in the notice on the bare Quasi-contracts and contingent claims are included in
ground that he had no knowledge of the claims that should be filed under Rule 86, Sec. 5
administration proceedings [Villanueva v. PNB, G.R. [Metropolitan Bank & Trust Co v. Absolute Management
No. L-18403 (1963)] Corp., G.R. No. 170498 (2013)]

2.  S tatute of Non-Claims Contingent claim

One which by its nature, is necessarily dependent
General rule: Claim must be filed within the time upon an uncertain event for existence or validity, which
may or may not develop into an enforceable claim
limited in the notice; otherwise they are barred forever
[Buan v. Laya, G.R. No. L-7593 (1957)]
[Sec. 5, Rule 86]
When allowed
Purpose to settle the estate with dispatch, so that the
a.   When it becomes absolute
residue may be delivered to the persons entitled
thereto without their being afterwards called upon to b.   Presented to the court or executor/administrator
respond in actions for claims [Rio y Compania v. within 2 years from the time limited for other
Maslog, G.R. No. L-12302 (1959), citing Tan Se Guan v. creditors to present their claims, and
c.   Not disputed by executor/administrator
GaSiu San, 47 Phil. 96]
[Sec. 5, Rule 88]
The filing of a money claim against the decedent’s
If disputed, it may be proved and allowed or
estate is mandatory. The requirement is for the
disallowed by the court as the facts may warrant [Sec.
purpose of protecting the estate of the deceased by
informing the executor or administrator of the claims 5, Rule 88]
against it, enabling him to examine each claim and to
determine whether it is a proper one which should be Where executor/administrator commences action, or
prosecutes action already commenced by deceased in
allowed. The plain and obvious design of the rule is the
his lifetime, debtor may set forth by answer the claims
speedy settlement of the affaits of the deceased and
he has against decedent, instead of presenting them
the early delivery of the property to the distributees,
independently to the settlement court, and mutual
legatees, or heirs [Union Bank of the Philippines v.
claims may be set off against each other in such
Santibañez, G.R. No. 149926 (2005), citing Py Eng
Chong v. Herrera, G.R. No. L-31229 (1976)] action. If debtor obtains a favorable judgment, the
amount shall be considered the true balance against
Claims covered (exclusive) the estate, as though the claim had been presented
directly before the court in the administration
a.   Claims for money against the decedent arising
proceedings [Sec. 5, Rule 86]
from contract
1.   Express or implied
In a labor case where the deceased was found to have
2.   Due or not
illegally dismissed the plaintiff, the money claims of
3.   Contingent or not
b.   Claims for funeral expenses the plaintiff who was adjudged entitled thereto must
c.   Expenses for last sickness be filed against the estate of the deceased [Gabriel v.
d.   Judgment for money against decedent Bilon, G.R. No. 146989 (2007); Sec. 20, Rule 3 in
relation to Sec. 5, Rule 86]
[Sec. 5, Rule 86]
The specific provisions of Sec. 5, Rule 86 prevails over
The period, once fixed by the courts, is mandatory [In
the general provisions of Section 11, Rule 6 of the
Re the Administration of the Estate of Pascual de
same. The settlement of the estate of the decedent is
Villanueva, G.R. No. L-18403 (1961)]
governed by the rules on special proceedings, while
Statute of non-claims supersedes statute of the rules provided for ordinary claims including
limitations when it comes to debts of deceased Section 11, Rule 6 merely apply suppletorily
[Metropolitan Bank & Trust Co. v. Absolute
persons [Sikat v. Vda. De Villanueva, G.R. No. L-35925
Management Corporation, G.R. No. 170498 (2013)]
(1932)]

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The presentation of a money claim may be waived Procedure to follow if the executor/administrator has
[Ignacio v. Pampanga Bus Co., Inc., G.R. No. L-18936 a claim against the estate he represents
(1967)] a.   Executor/Administrator shall give notice thereof,
in writing, to the court
If obligation solidary - file claim against decedent as b.   The court shall appoint a special administrator
if he is the only debtor who shall have the same power and liability as the
If obligation joint - claim confined to the portion general executor/administrator in the adjustment
belonging to the decedent [Sec. 6, Rule 86] of such claim
c.   The court may order the executor /administrator
Where the obligation assumed by the decedent with to pay to the special administrator necessary
his wife is a solidary one, a collection case can proceed funds to defend such claim
and the demands of the creditor may be satisfied by [Sec. 8, Rule 86]
the widow only, even without impleading the estate of
her deceased husband. Thus, under Article 1216 of the
Civil Code, the creditor has the right to proceed
4.  H ow to File For a Claim
against anyone of the solidary debtors or some or all
of them simultaneously. To require the creditor to a.   Deliver the claim with the necessary vouchers to
proceed only as against the estate would deprive him the clerk of court, and
of his substantive rights under the Civil Code. b.   Serve a copy thereof on the
Substantive law cannot be amended by a procedural executor/administrator
rule [Boston Equity Resources, Inc. v. CA, G.R. No. [Sec. 9, Rule 86]
173946 (2013)]
Additional requirements
Alternative remedies of a mortgage creditor upon a.   If the claim be founded on a bond, bill, note, or any
death of debtor other instrument – the original need not be filed,
a.   Abandon the security and prosecute his claim from but a copy thereof with all indorsements shall be
the estate as an ordinary claim – creditor is attached to the claim. On demand, however, of
deemed to have abandoned the mortgage and he executor/administrator, or by order of court or
cannot thereafter file a foreclosure suit if he fails judge, the original shall be exhibited, unless it be
to recover his money claim against the estate lost or destroyed, in which case the claimant must
b.   Foreclose mortgage judicially and prove any accompany his claim with affidavit or affidavits
deficiency as an ordinary claim – suit should be containing a copy or particular description of the
against the executor or administrator as party instrument and stating its loss or destruction.
defendant; creditor may obtain deficiency b.   When the claim is due – it must be supported by
judgment if he fails to fully recover his claim affidavit stating the amount justly due, that no
c.   Rely solely on the mortgage and foreclose it before payments have been made thereon which are not
it is barred by prescription without right to claim for credited, and that there are no offsets to the
deficiency – includes extrajudicial foreclosure of same, to the knowledge of the affiant.
sale and its exercise precludes one from recovery c.   If the claim is not due, or is contingent, when filed
of any balance of debt against the estate and frees – it must also be supported by affidavits stating
the estate from further liability the particulars thereof.
[Sec. 7, Rule 86] d.   When the affidavit is made by a person other than
the claimant, he must set forth therein the reason
It must, however, be emphasized that these remedies why it is not made by the claimant.
are distinct, independent, and mutually exclusive from [Sec. 9, Rule 86]
each other, thus, the election of one effectively bars
the exercise of the others [Heirs of Maglasang v. Manila Answer by executor/administrator
Banking Corporation, G.R. No. 171206 (2013); Shall be filed within 15 days after copy of claim has
Philippine National Bank v. CA, G.R. No. 121597 (2001); been served upon him. Executor/administrator may
Festin 79, 2011 Ed.] interpose any counterclaim. Said counterclaim is
regarded as compulsory, as the failure to file the same
shall bar the claim forever [Sec. 10, Rule 86]
3.  Claim of Executor or
Judgment of court approving or disapproving a claim
Administrator against an shall be appealable as in ordinary cases [Sec. 13, Rule
Estate 86]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Executor/administrator entirely admits claim – claim

shall be submitted by the clerk to the court who may   Actions by and against
approve the same without hearing, but the court in its
discretion before approving the claim, may order that
Executors and
known heirs, legatees, or devisees be notified and
heard. If the latter oppose upon hearing, the court may
Administrators
allow 15 days to file an answer [Sec. 11, Rule 86]
1.   Actions by and against
Executor/administrator disputes claim OR fails to file
answer – clerk of court shall set the claim for trial with
Executors
notice to both parties [Sec. 12, Rule 86]
Actions that may be commenced directly against
executor or administrator
a.   Recovery of real or personal property, or interest
therein, from estate
b.   Enforcement of a lien thereon, and
c.   Recovery of damages for an injury to a person or
property, real or personal
[Sec. 1, Rule 87; Sarsaba v. Vda. De Te, G.R. No. 175910
(2009)]

The aforementioned instances are deemed actions

that survive the death of the decedent [Aguas v.
Llenos, G.R. No. L-18107 (1962); Festin 81, 2011 Ed.]

When an accused, a doctor, died pending appeal of his

conviction in a case arising from the death of his
patient, his criminal liability is extinguished. However,
the recovery of the civil liability subsists as the same is
not based on delict but by contract and the reckless
imprudence he was guilty of under Art. 365 of the
Revised Penal Code. If the same act or omission
complained of arises from quasi-delict, as in this case,
a separate civil action must be filed against the
executor or administrator of the estate of the accused
pursuant to Sec. 1, Rule 87 [Cabugao v. People, G.R.
Nos. 163879 and 165805 (2014)]

NO action upon a claim for the recovery of money or

debt or interest shall be commenced against
executor/administrator [Sec. 1, Rule 87]

Executor or administrator may bring or defend

actions which survive death
For recovery or protection of property or rights of
deceased [Sec. 2, Rule 87]

Covers injury to property i.e. not only limited to injuries

to specific property, but extends to other wrongs by
which personal estate is injured or diminished [Aguas
v. Llenos, G.R. No. L-18107 (1962)]

A mortgage belonging to the estate of the deceased

person, as a mortgagee or assignee of the right of a
mortgagee, may be foreclosed by the
executor/administrator [Sec. 5, Rule 87]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

General rule: Heirs may not sue for recovery of property intended to elicit evidence relative to estate
of the estate against executor/administrator during properties. The RTC which has jurisdiction over the
pendency of administration proceedings [Sec. 3, Rule administration and settlement of the estate has
87; Romero v. CA, G.R. No. 188921 (2012)] limited jurisdiction and is without authority to resolve
issues of ownership with finality especially when third
Exceptions: persons are involved. Separate actions should be
a.   If executor or administrator is unwilling to bring a instituted by the administrator for the purpose
suit [Punongbayan v. Punongbayan, G.R. No. 156842
b.   When the executor or administrator is made a (2004)]
party defendant where he is alleged to have
participated in the act complained of Double Value Rule
c.   Where there is no appointed administrator A person who, before grant of letters testamentary or
[Festin 81-82, 2011 Ed.] of administration over an estate, embezzles or
alienates any money, goods, chattels or effects of
deceased, shall be liable to an action in favor of
2.  R ecovery of Property executor/administrator for double the value of the
Concealed, Embezzled or property sold, embezzled or alienated, to be recovered
for benefit of estate [Sec. 8, Rule 87]
Fraudulently Conveyed
When executor or administrator may bring action for
Proceedings when property concealed, embezzled recovery of property fraudulently conveyed by
or fraudulently conveyed deceased
The court may cite any person suspected of a.   There is deficiency of assets for payment of debts
a.   Having concealed, embezzled, or conveyed away and expenses of administration and the deceased,
any of the money, goods, or chattels of the in his lifetime, had conveyed real or personal
deceased, or property, right or interest therein, or debt or credit
b.   Having in his possession or having knowledge of with intent to defraud his creditors or avoid any
1.   any deed, conveyance, bond, contract, or right, debt or duty, or
other writing which contains evidence of or b.   Deceased had so conveyed such property, right,
tends or discloses the right, title, interest, or interest, debt or credit that by law the conveyance
claim of deceased to real or personal estate, would be void as against the creditors and the
or subject of the attempted conveyance would be
2.   last will and testament of deceased, liable to attachment by any of them in his lifetime
to appear before it and be examined on oath on the [Sec. 9, Rule 87]
matter of complaint by executor or administrator,
heir, legatee, creditor or other individual interested in Process of recovery by the executor or administrator
the estate of the deceased to the court having of property fraudulently conveyed
jurisdiction of the estate. a.   Creditors apply for the commencement of the
action
If the person so cited refuses to appear, or to answer b.   Creditors making the application pay such part of
on such examination or such interrogatories as are put the costs and expenses, or give security therefor
to him, the court may punish him for contempt, and to the executor/administrator, as the court deems
may commit him to prison until he submits to the equitable
order of the court [Sec. 6, Rule 87] c.   Executor/administrator commences and
prosecutes to final judgment an action for the
Purpose recovery of such property, right, interest, debt or
The proceedings under Section 6, Rule 87 is only for credit for benefit of the creditors
purposes of eliciting information or securing evidence [Sec. 9, Rule 87]
from persons suspected of concealing or conveying
some of the decedent’s properties to the prejudice of When recovery by creditor of property fraudulently
creditors. A separate action is necessary for conveyed may be done
determination of ownership and recovery of Any creditor may commence and prosecute to final
possession [Chua v. Absolute Management judgment a like action for recovery of subject of
Corporation, G.R. No. 144881 (2003)] conveyance or attempted conveyance if the following
requisites are satisfied
Similar to Sec. 6, Rule 87, Sec. 7 of the same rule is a.   If executor/administrator failed to commence
merely in the nature of fact-finding inquiries. It is such action

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1.   Action must be Authorized if not

If sale is beneficial to
i.   With court permission inconsistent with
interested persons,
ii.   In the name of executor/administrator provisions of the will
although not necessary
2.   Creditor must file bond, conditioned to and proceeds shall be
to pay debts, expenses,
indemnify the executor/administrator assigned to persons
or legacies [Sec. 4, Rule
against the cost and expenses incurred by entitled to the estate in
89]
such action the proper proportions
b.   If conveyance or attempt is made in favor of To pay debts, expenses Authorized in the same
executor/administrator of administration, or manner as for payment
1.   No need for court permission legacies in foreign of debts or legacies in
2.   No need for bond country [Sec. 5, Rule 89] Philippines
3.   Action in the name of all creditors Not authorized if assets
Such creditor shall have a lien upon any judgment If deceased was in his in hands of
recovered by him in the action for such costs and other lifetime under contract, executor/administrator
expenses incurred therein as the court deems binding in law, to deed will be reduced as to
equitable. real property or interest prevent creditor from
[Sec. 10, Rule 87] therein [Sec. 8, Rule 89] receiving debt or
diminish his dividend
3.  Sales, Mortgages, and Where deceased held
real property in trust for
Other Encumbrances another person [Sec. 9,
Rule 89]
Order of sale of personalty
The court upon application of executor/administrator, Sec. 8 should be differentiated from Secs. 2 and 4 of
and on written notice to heirs and other persons Rule 89, specifically requiring only the executor or
interested, may order the whole or a part of personal administrator to file the application for authority to
estate to be sold, if it appears necessary for sell, mortgage or otherwise encumber real estate for
a.   Paying debts, expenses of administration, or the purpose of paying debts, expenses and legacies
legacies, or (Sec. 2); or for authority to sell real or personal estate
b.   Preservation of the property beneficial to the heirs, devisees or legatees and other
[Sec. 1, Rule 89] interested persons, although such authority is not
necessary to pay debts, legacies or expenses of
When court may authorize sale, mortgage or administration (Sec. 4). Sec. 8, Rule 89 mentions only
encumbrance of realty an application to authorize the conveyance of realty
Situation Restriction under a contract that the deceased entered into while
Authority to sell, still alive. The proper party is one who is to be
mortgage, or encumber benefited or injured by the judgment, or one who is to
so much of real estate, be entitled to the avails of the suit [Heirs of Sandejas v.
in lieu of personal Lina, G.R. No. 141634 (2001)]
estate, if it clearly
When personal estate is The disposal of estate property requires judicial
appears that such sale,
insufficient to pay debts, approval before it could be executed. Implicit in the
etc. would be beneficial
or Where (1) sale of requirement for judicial approval was that the probate
to persons interested
personal estate may
court could rescind or nullify the disposition of a
injure business of
No authority if any property under administration that was effected
persons interested in
person interested in the without its authority [Spouses Lebin v. Mirasol, G.R.
estate, and (2) Property No. 164255 (2011)]
estate gives a bond, in a
appropriated by testator
sum to be fixed by the
in will is insufficient to Conditions of bond
court, conditioned to
pay debts To pay debts, expenses of administration, and legacies
pay debts, expenses of
[Sec. 2, Rule 89] within such time as court directs [Sec. 3, Rule 89]
administration and
legacies, for security of
creditors, Who may claim on the bond
executor/administrator Such bond shall be for security of creditors, as well as
[Sec. 3, Rule 89] of executor/administrator, and may be prosecuted for
benefit of either [Sec. 3, Rule 89]

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Regulations for granting authority to sell, mortgage agreed upon by the parties and approved by the court
or otherwise encumber estate [Liu v. Loy, G.R. No. 145982 (2003)]
a.   The executor/administrator shall file written
petition setting forth Court approval is required in any disposition if the
1.   Debts due from deceased, expenses for decedent’s estate per Rule 89. Reference to judicial
administration, legacies approval, however, cannot adversely affect the
2.   Value of personal estate substantive rights of heirs to dispose of their own pro
3.   Situation of estate to be sold, mortgaged, indiviso shares in the co-heirship or co-ownership. In
encumbered, and other words, they can sell their rights, interests or
4.   Such other facts showing that sale etc., is participation in the property under administration
necessary or beneficial [Heirs of Spouses Sandejas v. Lina, G.R. No. 141634
b.   The court will fix time and place for hearing such (2001)]
petition and cause notice to be given personally or
by mail to persons interested, and by publication
if deem proper
c.   The court may require executor/administrator to
give additional bond conditioned on accounting
for proceeds of sale, etc.
d.   The court may authorize sale to be public or
private
e.   If estate is to be sold at auction, mode of giving
notice shall be governed by provisions concerning
notice of execution sale
f.   Certified copy of the order of the court, plus deed
of executor/administrator for real estate sold,
mortgaged, or encumbered shall be registered in
registry of deeds where property is located
[Sec. 7, Rule 89]

Under Sec. 7, Rule 89, only the executor or

administrator of the estate may be authorized by the
intestate court to mortgage real estate belonging to
the estate. Thus, the order of the estate court
authorizing the heirs to mortgage the realty of the
estate is a nullity [Orola, et al. v. The Rural Bank of
Pontevedra, G.R. No. 158566 (2005)]

Settled is the rule that when an order authorizing the

sale or encumbrance of real property was issued by the
testate or intestate court without previous notice to
the heirs, devisees, and legatees as required by the
Rules, it is not only the contract itself which is null and
void but also the order of the court authorizing the
same [Pahamotang v. PNB, G.R. No. 156403 (2005)]

Deed of sale, mortgage or encumbrance

The deed executed by the executor or administrator
shall be valid as if executed by deceased in his lifetime
[Sec. 7-8, Rule 89]

For sales contracted by the decedent during his

lifetime, Sec. 8, Rule 89 applies. In such cases, the
court having jurisdiction of the estate may, on
application for that purpose, authorize the executor or
administrator to convey such property according to
such contract, or with such modifications as are

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  Payment of Debts of Estate to be retained to meet contingent claims

If court is satisfied that a contingent claim is valid, it
Estate may order executor/administrator to
1.   Retain in his hands sufficient estate for the
purpose of paying such contingent claim when it
Debts paid in full if estate sufficient becomes absolute.
1.   After all money claims heard and their amount 2.   If estate insolvent - Retain a portion equal to the
ascertained, and dividend of the other creditors [Sec. 4, Rule 88]
2.   It appears there are sufficient assets to pay the
debts [Sec. 1, Rule 88] Payment of contingent claim
1.   If claim becomes absolute within 2 years limited
Executor/administrator shall pay the same within the for creditors and allowed by the court - Creditor
time limited for that purpose [Sec. 1, Rule 88] shall receive payment to the same extent as the
other creditors if estate retained by
The heirs of the estate may not demand the closing of executor/administrator is sufficient.
an intestate proceeding at any time where there is a 2.   Claim not presented after becoming absolute
pending case against the administrator of the estate. within 2 year period and allowed by the court –
The court can rightfully hold in abeyance until the civil The assets retained in the hands of
case is settled [Dinglasan v. Chia, G.R. No. L-3342 executor/administrator, not exhausted in
(1951)] payment of claims, shall be distributed by order of
the court to persons entitled; but the assets so
Part of estate from which debt paid (in order of distributed may still be applied to the payment of
preference) the claim when established, and the creditor may
1.   Portion of property designated in the will maintain an action against the distributees to
a.   If testator makes provision by will, or recover the debt, and such distributees and their
designates the estate for the payment of estates shall be liable for the debt in proportion to
debts, expenses of administration, or family the estate they have respectively received from
expenses, they shall be paid according to property of deceased.
such provisions. [Sec. 5, Rule 88]
b.   If not sufficient – part of the estate not
disposed of by will shall be appropriated [Sec. Court to fix contributive shares where devisees,
2, Rule 88] legates, or heirs have been in possession before
2.   Personal property debts have been settled
3.   Real property Where devisees, legatees, or heirs have entered into
[Sec. 3, Rule 88] possession of portions of the estate before debts have
been settled, the court may, by order, after hearing
General rule: Personal estate not disposed of by will 1.   Settle the amount of their several liabilities
shall be first chargeable 2.   Order how much and in what manner each shall
contribute, and
Exceptions: 3.   Issue execution as circumstances require.
1.   Personal estate not sufficient for the purpose, or [Sec. 6, Rule 88]
2.   Its sale will redound to the detriment of the
participants for the estate Liability of heirs and distributees
[Sec. 3, Rule 88] Heirs are not required to respond with their own
property for the debts of their deceased ancestors. But
If the exceptions above are present after partition of an estate, the heirs and distributees
1.   The whole of the real estate not disposed of by are liable individually for the payment of all lawful
will, or so much thereof as is necessary, may be outstanding claims against the estate in proportion to
sold, mortgaged, or otherwise encumbered for the amount or value of the property they have
that purpose by the executor/administrator respectively received from the estate [Gov’t of P.I. v.
2.   Court approval must first be obtained, and Pamintuan, G.R. No. L-33139 (1930)]
3.   Any deficiency shall be met by contributions in
accordance with the provisions of Sec. 6 of Rule Order of payment if estate is insolvent
88 (contributive shares of devisees, legatees, or Executor/administrator shall pay the debts against
heirs in possession). the estate, observing Articles 1059 and 2239 to 2251 of
[Sec. 3, Rule 88] the Civil Code (Preference of credits) [Sec. 7, Rule 88]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Dividends to be paid in proportion to claims When a disputed claim is finally settled, the court shall
If no assets sufficient to pay credits of any one class of order the claim to be paid out of assets retained to the
creditors after paying preferred credits, each creditor same extent and in the same proportion with the
within such class shall be paid a dividend in proportion claims of other creditors.
to his claim. No creditor of any one class shall receive [Sec. 12, Rule 88]
any payment until those of the preceding class are
paid [Sec. 8, Rule 88] Instances when court may make further orders for
distribution of assets
Insolvent non-resident 1.   If whole of debts not paid on first distribution, and
His estate found in Philippines shall be so disposed of 2.   If
in a manner that will ensure that his creditors here and a.   Whole assets not distributed, or
elsewhere may receive each an equal share, in b.   Other assets afterwards come to hands of
proportion to their respective credits [Sec. 9, Rule 88] executor/administrator
[Sec. 13, Rule 88]
Insolvent resident with foreign creditors and foreign
claims proven in another country Creditors to be paid in accordance with terms of
If executor/administrator in Philippines had order
1.   knowledge of presentation of such claims in such When an order is made for distribution of assets
country, and among creditors, executor/ administrator shall, as
2.   opportunity to contest such allowance soon as the time of payment arrives, pay creditors the
amounts of their claims, or the dividend thereon, in
The court shall accordance with the terms of such order [Sec. 14, Rule
1.   Receive a certified list of such claims, when 88]
perfected in such country
2.   Add the same to the list of claims proved against Time for paying debts and legacies
deceased person in Philippines so that a just General rule: Not exceeding 1 year in the first instance
distribution of the whole estate may be made
equally among all its creditors according to their Exception: Court may extend the period, on application
respective claims of the executor/administrator after hearing on notice
[Sec. 10, Rule 88] to all interested persons, on the following conditions
1.   Extension must not exceed 6 months for a single
Principle of reciprocity extension, and
The benefit of this and preceding sections shall not be 2.   The whole period allowed shall not exceed 2 years
extended to creditors in another country if property of [Sec. 15, Rule 88]
the deceased there found is not equally apportioned
to creditors residing in Philippines and other creditors, Extension of time for paying debts and legacies
according to their respective claims [Sec. 10, Rule 88] When executor/administrator dies, and a new
administrator of same estate is appointed, court may
Order for payment of debts extend time
Before expiration of time limited for payment of the 1.   Not exceeding 6 months at a time, and
debts, court shall order 2.   Not exceeding 6 months beyond the time which
1.   payment, and court might have allowed to original
2.   distribution of assets received by the executor/administrator,
executor/administrator for that purpose among and notice shall be given of time and place for hearing
the creditors, as the circumstances of the estate such application, as required in the last preceding
require and in accordance with the provisions of section
this rule [Sec. 16, Rule 88]
[Sec. 11, Rule 88]
Personal property may, upon order, be sold
If appeal taken from a decision of the court 1.   To pay debts, expenses, or legacies, or
concerning a claim 2.   If it appears necessary for preservation of the
The court may property [Sec. 1, Rule 89], or
1.   Suspend order for payment, or 3.   If sale of whole or part will be beneficial to heirs,
2.   Order distribution among creditors whose claims devisees, legatees and other interested persons
are definitely allowed, leaving in the hands of and is not inconsistent with the provisions of the
executor/administrator sufficient assets to pay will [Sec. 4, Rule 89]
the claim disputed and appealed.

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Real property may, upon order, be sold, mortgaged,

encumbered to pay debts   Distribution and Partition
1.   When personal estate is insufficient to pay debts,
or Before there could be a distribution of estate, the
2.   Where following stages must be followed
a.   Sale of personal estate may injure business of 1.   Liquidation of estate i.e. payment of obligations
persons interested in estate, and of deceased
b.   Property appropriated by testator in will is 2.   Declaration of heirs - to determine to whom the
insufficient to pay debts residue of the estate should be distributed
[Sec. 2, Rule 89] a.   Determination the right of a natural child
b.   Determination of proportionate shares of
Writ of execution distributes
General rule: The probate court does not have the Afterwards, the residue may be distributed and
power to issue writs of execution. A writ of execution is delivered to the heirs [3-A Herrera 173, 1996 Ed.]
not the proper procedure for the payment of debts and
expenses of administration. The proper procedure is Payment of the inheritance tax, per se, does not settle
for the court to order the sale of personal estate or the the estate of a deceased person. An estate is settled
sale of mortgaged of real property of the deceased and and distributed among the heirs only after the
all debts or expenses of administration should be paid payment of the debts of the estate, funeral charges,
out of the proceeds of the sale or mortgage [Aldamiz expenses of administration, allowance to the widow,
v. Judge of CFI-Mindoro, G.R. No. L-2360 (1949)] and inheritance tax [Agtarap v. Agtarap, G.R. Nos.
177099 and 177192 (2011)]
Exceptions:
1.   To satisfy the distributive shares of devisees, Court may determine questions as to advancement
legatees, and heirs in possession of the made by decedent
decedent’s assets, or Advancements made or alleged to have been made to
2.   To enforce payment of expenses of the partition, heirs by decedent may be determined by court having
or jurisdiction of estate proceedings; and final order of
3.   To satisfy the costs when a person is cited for the court shall be binding on person raising the
examination in probate proceedings questions and on heir [Sec. 2, Rule 90]
[Festin 86, 2011 Ed.]
Although it is within the jurisdiction of the court
Proper procedure for granting authority to sell, whether or not to permit the advance distribution of
mortgage, or encumber estate the estate, its exercise should be qualified by the
1.   Written petition of executor/administrator following: (1) only part of the estate that is not affected
2.   Written notice to all heirs, legatees, devisees by any pending controversy or appeal may be subject
residing in Philippines of advance distribution (Sec. 2, Rule 109); and (2) the
3.   Hearing distributees must post a bond, fixed by the court,
4.   Court order for sale of personal property or sale, conditioned for the payment of outstanding
mortgage, or encumbrance of real property obligations of the estate (par. 2, Sec. 1, Rule 90)
5.   Recording in registry of deeds of province where [Quasha Ancheta Peña and Nolasco Law Office v. LCN
the real estate concerned is situated of certified Construction Corporation, G.R. No. 174873 (2008)]
copy of court order and deed of
executor/administrator 1.   Liquidation
[Sec. 7, Rule 89]
General rule: Before an order of distribution or
assignment, it must be shown that the debts, funeral
expenses, and expenses of administration, allowance
to widow, and inheritance tax chargeable to the estate
have been paid

Exception: If the distributees give a bond conditioned

for the payment of said obligations [Sec. 1, Rule 90;
Estate of Ruiz v. CA, G.R. No. 118671 (1996)]

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The part distributed must not be subject to any in rem so that all interested persons whether
controversy or appeal [Sec. 2, Rule 109] known to the parties or not may be bound by such
proceeding [Philippine Savings Bank v. Lantin,
G.R. L-33929 (1983)]
2.  P roject of Partition c.   The court acquires jurisdiction over all persons
interested, through the publication of the notice
A project of partition is merely a proposal for the prescribed and any order that may be entered
distribution of the hereditary estate which the court therein is binding against all of them [Ramon v.
may accept or reject [Reyes v. Barretto-Datu, G.R. No. Ortuzar, G.R. No. L-3299 (1951)]
L-17818 (1967); Vda. De Kilayko v. Tengco, G.R. Nos. L-
45425 and L-45965 (1992)] The only instance where a party interested in a probate
proceeding may have a final liquidation set aside is
The executor/administrator has no duty to prepare when he is left out by reason of circumstances beyond
and present the same under the Rules. The court may, his control or through mistake or inadvertence not
however, require him to present such project to better imputable to negligence [Vda. De Alberto v. CA, G.R.
inform itself of the condition of the estate [3 Moran No. L-29759 (1989)]
541, 1980 Ed.]

When order for distribution of residue made 3.  Remedy of an Heir

Court makes that distribution of the estate and
determines the persons entitled thereto
Entitled to Residue but
a.   On application of executor/administrator or of Not Given His Share
person interested in estate
b.   Hearing upon notice The better practice for the heir who has not received
his share is to
Court shall assign the residue of the estate to the a.   Demand his share through a proper motion in the
persons entitled to the same, naming them and the same probate or administrative proceedings, or
proportions, or parts, to which each is entitled. b.   Motion for reopening of the probate or
administrative proceedings if it had already been
Such persons may demand and recover their closed, and not through an independent action
respective shares from the executor/administrator, or [Guilas v. Judge of the CFI of Pampanga, G.R. No. L-
any other person having the same in his possession. 26695 (1972)]

If there is a controversy as to who are lawful heirs or BUT where special proceedings had been instituted
shares such shall be heard and decided as in ordinary but had been finally closed and terminated, however,
cases [Sec. 1, Rule 90] or if a putative heir has lost the right to have himself
declared in the special proceeding as a co-heir and he
The order of a probate court approving the can no longer ask for its re-opening, then an ordinary
compromise had the effect of directing the delivery of civil action can be filed for his declaration as heir in
the residue of the estate to the persons entitled order to bring about the annulment of the partition or
thereto under the compromise agreement. As such, it distribution or adjudication of a property or properties
brought to a close the intestate proceedings and the belonging to the estate of the deceased [Portugal v.
probate court lost jurisdiction over the case, except Portugal-Beltran, G.R. No. 155555 (2005)]
only as regards the compliance and the fulfillment of
the parties of their respective obligations under the
compromise agreement [Reyes-Masugas v. Reyes, G.R. 4.  I nstances When Probate
No. 174835 (2010)] Court May Issue Writ of
Effect of final decree of distribution Execution
a.   In rem; binding against the whole world
b.   Settlement of a decedent’s estate is a proceeding General rule: Writ of Execution is not allowed in
in rem which is binding on the whole world. All probate proceedings [Vda de. Valera v. Ofilada, G.R.
persons having interest in the subject matter No. L-27526 (1974)]
involved, whether they are notified or not, are Exceptions:
equally bound. Consequently, a liquidation of a.   To satisfy the contributive shares of devisees,
similar import or other equivalent general legatees and heirs in possession of the decedent’s
liquidation must also necessarily be a proceeding assets [Sec. 6, Rule 88]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

b.   To enforce payment of expenses of partition [Sec.

3, Rule 90]
c.   To satisfy the costs when a person is cited for
examination in probate proceedings [Sec. 13, Rule
142]

When does a probate court lose jurisdiction of an

estate under administration?
The probate court loses jurisdiction of an estate under
administration only after payment of all debts, and the
remaining estate delivered to the heirs entitled to
receive the same [Guilas v. Judge of the CFI of
Pampanga, G.R. No. L-26695 (1972)]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

  Trustees encumbered to pay

debts
a.   When personal
Note: This rule only applies to express trusts and not estate is insufficient
implied trusts which arise by operation of law [2 to pay debts, or
Regalado 148, 2004 Ed.] b.   Where
1.   Sale of personal
1.   Distinguished From estate may
injure business
Executor/Administrator of persons
interested in
Trustee Executor/Administrator estate; and
Accounts are not under 2.   Property
oath and shall be filed appropriated by
within one (1) year from testator in will
Accounts must be
the time of receiving is insufficient to
under oath and
letters testamentary or pay debts
annually filed [Sec.
of administration, and [Sec. 2, Rule 89]
6(c), Rule 98]
as the court may require Appointed to carry into
Appointed by court to
until the estate is wholly effect the provisions of
settle estate of a
settled [Sec.8, Rule 86] a will or written
decedent
Court which has instrument
jurisdiction: May be exempted from
a.   RTC or MTC in filing of bond if Not exempted from
which will was requested by filing of bond even if
allowed if a.   testator, and such exemption is
appointed to carry Court which has b.   all persons provided in the will;
into effect the jurisdiction may be the beneficially However, bond is only
provisions of a will RTC or MTC [Sec. 19 interested in the conditioned upon
b.   RTC of province in and 31, B.P. 129] trust, being of full payment of debts
which property or age [Sec. 2, Rule 81]
portion affected by [Sec. 5, Rule 98]
the trust is
situated A trustee, like an executor/administrator, holds an
[Sec. 1, Rule 98] office of trust, particularly when the trustee acts as
Personal property may, such under judicial authority [Trusteeship of the Minors
upon order, be sold Benigno, Angela and Antonio Perez y Tuazon, G.R.
a.   To pay debts, Nos. L16185-86 (1962)]
expenses, or
legacies, or The duties of executor/administrator are however,
b.   If it appears fixed and/or limited by law whereas those of the
necessary for trustee of an express trust are, usually governed by
May sell or encumber preservation of the the intention of the trustor or the parties, if
real or personal property [Sec. 1, established by contract. Besides, the duties of
property of estate held Rule 89], or trustees may cover a wider range than those of
in trust if necessary or c.   If sale of whole or executor/administrator of the estate of deceased
expedient upon order part will be persons [Araneta v. Perez, G.R. No. L-16962 (1962)]
of the court on petition beneficial to heirs,
and after due notice devisees, legatees A trustee does not acquire ownership of the assets
and hearing and other interested entrusted to him but merely manages it for the benefit
[Sec. 9, Rule 98] persons and is not of the beneficiary [Home Guaranty Corp. v. R-II
inconsistent with the Builders, Inc., G.R. No. 192649 (2011)]
provisions of the will
[Sec. 4, Rule 89]
2.  C onditions of the Bond
Real property may, upon
order, be sold, General rule: Before entering on the duties of his trust,
mortgaged, a trustee shall file with clerk of court having
jurisdiction of the trust a bond in amount fixed by

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

court, payable to Government of Philippines and Grounds for removal

sufficient and available for protection of any party in a.   Removal appears essential in the interests of
interest petitioners
b.   Trustee is
Exceptions: Trustee may be exempted from filing of 1.   Insane
bond if requested by 2.   Otherwise incapable of discharging his trust,
a.   testator, and or
b.   all persons beneficially interested in the trust, 3.   Evidently unsuitable
being of full age [Sec. 8, Rule 98]
[Sec. 5, Rule 98]
Resignation
Effect of neglect to file bond He may resign his trust if it appears to the court proper
A trustee who neglects to file a bond shall be to allow such resignation [Sec. 8, Rule 98]
considered to have declined or resigned the trust [Sec.
5, Rule 98]
5.  E xtent of Authority of
Conditions Trustee
a.   Inventory: The trustee will make and return to
court, at such time as it may order, a true Nature of Possession
inventory of all real and personal estate The possession of the property by the trustee is not an
belonging to him as trustee, which at time of the adverse possession, but only a possession in the name
making of such inventory shall have come to his and in behalf of the owner of the same.
possession or knowledge.
b.   Faithful management: He will manage and A trustee may acquire the trust estate by prescription
dispose of all such estate, and faithfully provided there is a repudiation of the trust, such
discharge his trust in relation thereto, according repudiation being open, clear and unequivocal,
to law and the will of the testator or the provisions known to the cestui que trust. In that case, prescription
of instrument or order under which he is will commence to run from and after said repudiation
appointed. and the knowledge thereof by the cestui [Salinas v.
c.   Accounting: He will render upon oath at least Tuazon, G.R. No. L-33626 (1931)]
once a year until his trust is fulfilled, unless he is
excused in any year by court, a true account of the Territoriality of authority of trustee
property in his hands and of the management The powers of a trustee appointed by a Philippine
and disposition thereof, and will render such court cannot extend beyond the confines of the
other accounts as the court may order. territory of the Republic.
d.   Settlement of account and delivery of estate: At
expiration of his trust, he will settle his account in This is based on the principle that his authority cannot
court and pay over and deliver all the estate extend beyond the jurisdiction of the Republic, under
remaining in his hands, or due from him on such whose courts he was appointed [3-A Herrera 250,
settlement, to the person or persons entitled 1996 Ed.]
thereto.
[Sec. 6, Rule 98]

3.  Procedural Requisites for

the Removal and
Resignation of a Trustee
a.   Petition by parties beneficially interested
b.   Due notice to the trustee
c.   Hearing
[Sec. 8, Rule 98]

4.  G rounds for Removal and

Resignation of a Trustee

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

  Escheat 2.  R equisites for Filing of

Escheat is a proceeding where the real and personal
Petition
property of a person deceased in Philippines, who dies a.   A person died intestate
without leaving any will and without any legal heirs, b.   He left no heirs or persons by law entitled to the
becomes the property of the State [Municipal Council same
of San Pedro v. Colegio de San Jose, G.R. No. L-45460 c.   Deceased left properties
(1938)] [City of Manila v. Archbishop of Manila, G.R. No. L-
10033 (1917); Sec. 1, Rule 91]
It is an incident or attribute of sovereignty and rests on
the principle of ultimate ownership by the state of all Escheat proceedings may be initiated by the
property within its jurisdiction [Rellosa v. Gaw Chee Government through the Solicitor General or his
Hun, G.R. No. L-1411 (1953)] representative [Sec. 1, Rule 91]
Escheat proceedings are actions in rem, whereby an Procedure
action is brought against the thing itself instead of the Solicitor General or his representative in behalf of
person. Thus, an action may be instituted and carried the Republic of Philippines files the petition [Sec.
to judgment without personal service upon the
1, Rule 91]
depositors or other claimants. Jursidiction is secured
by the power of the court over the res. Consequently, ¯
a judgment of escheat is conclusive upon persons If petition is sufficient in form and substance, court
notified by advertisement, as pubication is considered shall make an order fixing date and place for
a general and constructive notice to all persons hearing, which shall not be more than 6 months
interested [RCBC v. Hi-Tri Development Corp., G.R. No. after entry of order [Sec. 2, Rule 91]
192413 (2012)] ¯
Court shall direct a copy of order to be published
1.   When to File before the hearing at least once a week for 6
consecutive weeks in some newspaper of general
Three instances of Escheats circulation published in the province, as the court
a.   When a person dies intestate leaving property in shall deem best [Sec. 2, Rule 91]
Philippines leaving no heir [Sec. 1, Rule 91] ¯
b.   Reversion proceedings in alienations in violation Court shall hear the case and judge whether or
of Constitution or other statute [Sec. 5, Rule 91] not the estate shall be escheated [Sec. 3, Rule 91]
c.   Unclaimed Balances Act (Act No. 3936, as ¯
amended by PD 679) – dormant accounts for 10 Property escheated will be assigned
years shall be escheated a.   If personal property – to the municipality or
city where the deceased last resided
An action for reversion or escheat of lands sold to b.   If real property – to the municipalities or
aliens disqualified from acquiring lands under the cities, respectively, in which the same is
Constitution may be initiated by the Office of the situated
Solicitor General. However, where the transferees are c.   If the deceased never resided in Philippines –
Filipino citizens, escheat proceedings can no longer whole estate may be assigned to the
prosper [Republic v. Register of Deeds of Roxas City, respective municipalities or cities where the
G.R. No. 158230 (2008)] same is located.
Where to file Such estate shall be for the benefit of public
a.   If Resident – RTC of the province where the schools, and public charitable institutions and
deceased last resided centers in said municipalities or cities.
b.   If Non-resident – RTC of the place where his
estate is located [Sec. 1, Rule 91] Court may order, upon motion or motu propio,
c.   Actions for reversion or escheat of properties that a permanent trust be established so that only
alienated in violation of the Constitution or of any the income from the property shall be used [Sec.
statute — in province where land lies in whole or 3, Rule 91]
in part [Sec. 5, Rule 91]
The right of escheat may be waived, either expressly
or impliedly [Roman Catholic Archbishop of Manila v.
Monte de Piedad, et al., G.R. No. L-45496 (1939)]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

  Guardianship
3.  Remedy of Respondent
against Petition; Period Note: Rules 92-97 are now only applicable to
guardianship over incompetent persons who are not
for Filing a Claim minors.

Period to file a claim to the estate Guardianship over minors is governed by A.M. No. 03-
Within 5 years from date of judgment; otherwise, 02-05 SC or Rule on Guardianship of Minors.
barred forever [Sec. 4, Rule 91]
Who are incompetent persons
A claimant to an escheated property must file his 1.   Those suffering from the penalty of civil
claim “within 5 years from the date of such judgment, interdiction
such person shall have possession of and title to the 2.   Hospitalized lepers
same, or if sold, the municipality or city shall be 3.   Prodigals
accountable for him for the proceeds, after deducting 4.   Deaf and dumb people who are unable to read
the estate, but a claim not made shall be barred and write
forever. The supposed “discovery of the deeds of 5.   Those of unsound mind even though they have
donation” is not enough justification to nullify the lucid intervals
escheat judgment which has long attained finality 6.   Persons by reason of age, disease, weak mind,
[Republic v. CA, G.R. No. 143483 (2002)] and other similar causes, cannot, without outside
aid, take care of themselves and manage their
By whom property, thereby becoming an easy prey for
Devisee, legatee, heir, surviving spouse, or other deceit and exploitation
person entitled to such estate [Sec. 4, Rule 91] [Sec. 2, Rule 92]

Effect of claim by one who is entitled to the estate A finding that a person is incompetent should be
Possession of and title to the estate shall be given. If anchored on clear, positive and definitive evidence.
estate has already been sold, then the Where the sanity of a person is at issue, expert opinion
city/municipality shall be accountable for the is not necessary and that the observations of the trial
proceeds, less reasonable charges for care of estate; judge coupled with evidence establishing the person’s
but a claim not made within 5 years shall be forever state of mental sanity will suffice [Oropesa v. Oropesa,
barred [Sec. 4, Rule 91] G.R. No. 184528 (2012)]

Guardianship
The power of protective authority given by law and
imposed on an individual who is free and in the
enjoyment of his rights, over one whose weakness on
account of his age or other infirmity renders him
unable to protect himself [3-A Herrera 193, 1996 Ed.]

Guardian
A person lawfully invested with power and charged
with the duty of taking care of a person who for some
peculiarity or status or defect of age, understanding
or self-control is considered incapable of
administering his own affairs [3-A Herrera 194, 1996
Ed.]

Basis: parens patriae

It is the State’s duty to protect the rights of
persons/individuals who because of age/incapacity
are in an unfavorable position vis-à-vis other parties.
Unable as they are to take due care of what concerns
them, they have the political community to look after
their welfare [Nery v. Lorenzo, G.R. No. L-23096
(1972)]

Kinds of guardians

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

1.   Legal Guardian – deemed as guardian by 1.   Care and custody of person of his ward and
provision of law, without need of court management of his estate, or
appointment [Art. 225, FC] 2.   Management of estate only
2.   Guardian ad Litem – appointed by court to 3.   Management of property within Philippines (in
prosecute or defend a minor, insane or person case of non-resident ward)
declared to be incompetent, in a court action [Sec. 1, Rule 96]
3.   Judicial Guardian – appointed by the court in
pursuance to law, as guardians for insane By the appointment, it became the guardian’s duty to
persons, prodigals, minor heirs of deceased war care for her aunt’s person, to attend to her physical
veterans and other incompetent persons. and spiritual needs, to assure her well-being, with
a.   Guardian over the person right to custody of her person in preference to
b.   Guardian of the property relatives and friends. It also became the guardian’s
c.   General guardian (both person and property) right and duty to get possession of, and exercise
[2 Regalado 118, 2004 Ed.] control over her ward’s property, both real and
personal, it being recognized that the ward has no
right to possession or control of her property during
1.   Guardianship of her incompetency [Cañiza v. CA, G.R. No. 110427
Incompetent Persons Not (1997)]
Minors Specific duties
1.   To pay just debts of ward out of
Procedure a.   Personal estate and income of his real estate
Filing of petition [Sec. 1, Rule 93] of the ward;
¯ b.   If (a) is not sufficient, real property of ward
Court issues order setting time for hearing [Sec. 3, upon obtaining an order for its sale or
Rule 93] encumbrance [Sec. 2, Rule 96]
2.   To settle all accounts of his ward [Sec. 3, Rule 96]
¯ 3.   To demand, sue for, and receive all debts due
Reasonable notice to the incompetent and him, or, with the approval of the court, compound
persons mentioned in the petition for the same and give discharges to debtor, on
receiving a fair and just dividend of estate and
Notice by publication or otherwise if incompetent effects [Sec. 3, Rule 96]
is a nonresident [Sec. 3, Rule 93] 4.   To appear for and represent ward in all actions
¯ and special proceedings, unless another person is
Filing of written opposition [Sec. 4, Rule 93] appointed for that purpose [Sec. 3, Rule 96]
¯ 5.   To manage property of ward frugally and without
Hearing where the alleged incompetent must be waste, and apply income and profits thereon,
present if able to attend [Sec. 5, Rule 93] insofar as may be necessary, to comfortable and
suitable maintenance of ward and his family. If
¯ such income and profits be insufficient for that
If person in question is incompetent, court purpose, to sell or encumber the real estate, upon
appoints a suitable guardian of his person or being authorized by the court to do so, and apply
estate, or both [Sec. 6, Rule 93] proceeds to such maintenance [Sec. 4, Rule 96]
6.   To assent to partition of real or personal property
The objectives of a hearing on a petition for owned by the ward jointly or in common with
appointment of a guardian under Rule 93 is for the others, upon authority granted by the court,
court to determine: (a) whether a person is indeed a a.   After hearing
minor or an incompetent who has no capacity to care b.   Notice to relatives of ward, and
for himself and/or his properties; and (b) who is most c.   Careful investigation as to the necessity and
qualified to be appointed as his guardian. Thus, propriety of proposed action [Sec. 5, Rule 96]
creditors of the minor or the incompetent need not be 7.   To submit to court a verified sworn inventory of
identified or notified. This is because their presence is the property of the ward
not essential to the proceedings for appointment of a a.   Within three months
guardian [Alamayri v. Pabale, G.R. No. 151243 (2008)] 1.   after appointment, and
2.   after the discovery, succession or
a.   General Powers and Duties of acquisition of property of the ward not
included in the inventory, and
Guardians b.   Annually [Sec. 7, Rule 96]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

8.   To render sworn account to court for settlement Sale must first be confirmed by court and until such
and allowance confirmation, not even equitable title passes [3-A
a.   Annually after appointment, which may be Herrera 222, 1996 Ed.]
compelled upon application of an interested
person [Sec. 7-8, Rule 96] Properties of a ward can only be sold under authority
b.   As often as may be required after one year of the guardianship court. Without such authority, any
from appointment [Sec. 8, Rule 96] sale would necessarily be illegal. The probate court
had no jurisdiction to authorize the sale of any
Expenses and compensation allowed property belonging to an heir who is under
Guardian, other than a parent, shall be allowed guardianship without first requiring the guardian to
1.   his reasonable expenses incurred in execution of secure the corresponding authority from the
his trust, and guardianship court [De Pua v. San Agustin, G.R. No. L-
2.   compensation for his services as court deems just, 27402 (1981)]
not exceeding 15 per centum of net income of
ward [Sec. 8, Rule 96] Contents of order for sale or encumbrance
1.   Causes why sale or encumbrance is necessary or
Embezzlement, concealment, or conveyance of beneficial
ward’s properties 2.   Manner of sale (public or private)
Upon complaint of 3.   Time and manner of payment
1.   Guardian or ward, or 4.   Security, if payment deferred
2.   Any person having actual or prospective interest 5.   Additional bond from guardian, if required
in property of ward as creditor, heir, or otherwise [Sec. 4, Rule 95]

Court may cite anyone suspected of having Duration of order of sale or encumbrance
embezzled, concealed, or conveyed away any No order of sale shall continue in force for more than
1.   Money, goods, or interest, or 1 year after granting of the same, without a sale being
2.   Written instrument, had [Sec. 4, Rule 95]
to appear for examination touching such money,
goods, interest, or instrument and make such orders Investment of proceeds and management of
to secure estate [Sec. 6, Rule 96] property
The court may
General rule: Purpose of the proceeding is to secure 1.   authorize and require guardian to invest proceeds
evidence from persons suspected of embezzling, of sales or encumbrances, and any other money
concealing or conveying any property of the ward so of his ward in his hands, in real or personal estate,
as to enable the guardian to institute the appropriate for best interest of all concerned
action to obtain the possession of and secure title to 2.   make such other orders for management,
said property. The court can neither determine investment, and disposition of estate and effects,
ownership of the property claimed to belong to the as circumstances may warrant
ward nor order its delivery [Sec. 5, Rule 95]

Exception: Court may direct delivery of property to the

guardian only in extreme cases, where the right or title
2.  C onditions of the Bond of
of the ward is clear and indisputable or where his title the Guardian
thereto has already been judicially decided [Cui v.
Piccio, G.R. L-5131 (1952)] Note: Applicable for both Guardianship of Minors and
incompetents
Selling and encumbering the property of the ward a.   To make and return to court, within 3 months
Guardian may present verified petition to court by after issuance of letters of guardianship, true and
which he was appointed for an order authorizing sale complete inventory of all real and personal estate
or encumbrance of estate of his ward which shall come to his possession or
knowledge, or to possession or knowledge of any
Grounds other person from him
1.   When income of estate under guardianship is b.   To faithfully execute duties of his trust, to
insufficient to maintain ward and his family, or manage and dispose of estate according to the
2.   When it appears that it is for the benefit of the Rules for best interests of ward, and to provide for
ward his proper care, custody, and education
[Sec. 1, Rule 95] c.   To render a true and just account of all property
of the ward in his hands, and of all proceeds or
interest derived from them, and of management

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

and disposition of the same, at time designated

by this rule and such other times as court directs At discretion of court, hearing on guardianship
and at the expiration of his trust, to settle his may be closed to public. Records of case shall not
accounts with the court and deliver and pay over be released without court approval [Sec. 9]
all estate, effects, and moneys remaining in his
hands, or due from him on such settlement, to If the minor is non-resident, the court may
person lawfully entitled thereto dispense with his presence [Sec. 12]
d.   To perform all orders of court and such other ¯
duties as may be required by law
Issuance or denial of letters of guardianship
[Sec. 1, Rule 94; Sec. 14, A.M. No. 03-02-05-SC]
¯
Service of final and executory judgment or order
3.  Rule on Guardianship of upon the Local Civil Registrar of municipality or
Minors [A.M. NO. 03-02- city where minor resides and Register of Deeds of
the place where his property or part thereof is
05-SC] situated, who shall annotate the same in the
corresponding title, and report to court their
General rule: Father and mother shall jointly exercise compliance within 15 days from receipt of the
legal guardianship over person and property of their order [Sec. 13]
unemancipated common child without necessity of
court appointment [Sec. 1; also Art. 225, FC] PETITION FOR APPOINTMENT OF GUARDIAN

In case of disagreement, father’s decision shall Who may file

prevail, unless there is a judicial order to the contrary a.   Resident minor
[Art. 225, FC] 1.   Any relative, or
2.   Other person on behalf of a minor, or
However, if market value of property or annual Income 3.   Minor himself, if 14 years of age or over, or
of child exceeds P50,000.00, parent concerned shall 4.   Secretary of DSWD and Secretary of DOH, in
furnish a bond in such amount as court may case of an insane minor who needs to be
determine, but in no case less than 10 per centum of hospitalized [Sec. 2]
the of such property or annual income, to guarantee b.   Non- resident minor who has property in
performance of obligations prescribed for general Philippines
guardians [Sec. 16] 1.   Any relative or friend of such minor, or
2.   Anyone interested in his property, in
Procedure expectancy or otherwise [Sec. 12]
Filing of petition [Sec. 2]
¯ Where to file
Court shall fix time and place for hearing [Sec. 3] Family Court of
Resident minor province or city where
¯ minor actually resides
Reasonable notice to the persons mentioned in Family Court of
the petition and the minor, if 14 years old or over province or city where
Non-resident minor
his property or any part
Other general or special notice [Sec. 8] thereof is situated
[Sec. 3]
Notice to the non-resident minor by publication or
any other means as court may deem proper [Sec. Grounds for filing
12] a.   Death, continued absence, or incapacity of
¯ parents
Social worker must conduct case study of minor b.   Suspension, deprivation or termination of
and all prospective guardians and submit his parental authority
report and recommendation to court for its c.   Remarriage of surviving parent, if latter is found
guidance before scheduled hearing [Sec. 9] unsuitable to exercise parental authority
¯ d.   When best interests of the minor so require
Hearing [Sec. 4]
a.   Compliance with notice requirement must be
shown Qualifications of guardians
b.   Prospective ward shall be presented to court Court shall consider the guardian’s
a.   Moral character

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

b.   Physical, mental and psychological condition POWERS AND DUTIES

c.   Financial status In general
d.   Relationship of trust with minor a.   Guardian of resident minor – Care and custody
e.   Availability to exercise powers and duties of a of person of his ward and management of his
guardian for full period of the guardianship property, or only management of his property
f.   Lack of conflict of interest with minor, and b.   Guardian of non-resident minor – Management
g.   Ability to manage property of minor of all his property within Philippines
[Sec. 5] [Sec. 17]

Order of preference in appointment (in default of Bonds of guardians

parents or a court-approved guardian) Before a guardian enters upon execution of his trust,
a.   Surviving grandparent and in case several or letters of guardianship issue, he may be required to
grandparents survive, court shall select any of post bond in such sum as determined by court and
them taking into account all relevant conditioned on similar grounds as for guardians of
considerations incompetent persons [Sec. 14]
b.   Oldest brother or sister of minor over 21 years of
age, unless unfit or disqualified Whenever necessary, court may require guardian to
c.   Actual custodian of minor over 21 years of age, post new bond and may discharge from further
unless unfit or disqualified liability sureties on the old bond after due notice to
d.   Any other person, who in sound discretion of interested persons, if no injury may result to those
court, would serve best interests of minor interested in the property [Sec. 15]
[Sec. 6]
Liability
Contents of petition In case of breach of any of its conditions, guardian
a.   Jurisdictional facts may be prosecuted in same proceeding for benefit of
b.   Name, age and residence of prospective ward ward or of any other person legally interested in the
c.   Ground rendering appointment necessary or property [Sec. 15]
convenient
d.   Death of parents of minor, or termination, REMOVAL, RESIGNATION AND TERMINATION OF
deprivation or suspension of their parental GUARDIANSHIP
authority
e.   Remarriage of minor’s surviving parent Removal
f.   Names, ages, and residences of relatives within How: Upon reasonable notice to the guardian
4th civil degree of the minor, and of persons Grounds: The guardian
having him in their care and custody a.   Becomes insane or otherwise incapable of
g.   Probable value, character and location of discharging his trust
property of minor b.   Is found to be unsuitable
h.   Name, age and residence of person for whom c.   Wasted or mismanaged property of ward or
letters of guardianship are prayed d.   Failed to render account or make return for thirty
[Sec. 7] days after it is due
[Sec. 24]
Petition shall be verified and accompanied by
certification against forum shopping. No defect in RESIGNATION
petition or verification shall render void issuance of
letters of guardianship [Sec. 7] Ground: Justifiable causes

Who may file opposition Upon removal or resignation of guardian, the court
a.   Any interested person by written opposition [Sec. shall appoint new one.
10]
b.   Social worker ordered to make case study report, No motion for removal or resignation shall be granted
may intervene on behalf of minor if he finds that unless guardian has submitted the proper accounting
petition for guardianship should be denied [Sec. of property of ward and court has approved the same.
9] [Sec. 24]

Grounds for opposition TERMINATION

a.   Majority of minor, or
b.   Unsuitability of person for whom letters are Grounds: Ward has come of age or has died
prayed
[Sec. 10]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

How Terminated
a.   Court motu proprio, or   Writ of Habeas Corpus
b.   Upon verified motion of any person allowed to file
petition for guardianship In general
Essentially a writ of inquiry, granted to test the right
Duty to notify: Guardian shall notify court of fact of under which a person is detained, and to relieve a
coming of age or death of ward within 10 days of its person if such restraint is illegal [Velasco v. CA, G.R.
occurrence [Sec. 25] No. 118644 (1995)]

Final and executory judgment or order shall be served The underlying rationale is not the illegality of the
upon Local Civil Registrar of municipality or city where restraint but the right of custody [Tijing v. CA, G.R. No.
minor resides and Register of Deeds of province or city 125901 (2001)]
where his property or any part thereof is situated, who
shall enter the final and executory judgment or order Purpose
in the appropriate books in their offices [Sec. 26] The purpose of the writ is to inquire into all manner of
involuntary restraint, and to relieve a person
therefrom if such restraint is illegal
1.   To obtain immediate relief from illegal
confinement
2.   To liberate those who may be imprisoned without
sufficient cause
3.   To deliver them from unlawful custody [Velasco v.
CA, G.R. No. 118644 (1995)]

Coverage
Extends to all cases of illegal confinement or
detention by which any person is deprived of his
liberty, or by which the rightful custody of any person
is withheld from the person entitled thereto [Sec. 1,
Rule 102]

Note: The privilege of the writ of habeas corpus can

only be suspended in cases of rebellion or invasion
and when public interest requires it [Sec. 15, Art. III,
Constitution]

Concept of restraint
Actual and effective and not merely nominal or moral
restraint is required [Zagala v. Illustre, G.R. No. L-
23999 (1926)]

Restrictive custody is, at best, nominal restraint which

is beyond the ambit of habeas corpus. It is neither
actual nor effective restraint that would call for the
grant of the remedy prayed for. It is a permissible
precautionary measure to assure the PNP authorities
that the police officers concerned are always
accounted for [Ampatuan v Judge Macaraig, G.R. No.
182497 (2010)]

However, actual physical restraint is not always

required; any restraint which will prejudice freedom of
action is sufficient [Moncupa v. Enrile, G.R. No. L-
63345 (1986)]

The restraint of liberty must be in the nature of an

illegal and involuntary deprivation of freedom of
action [Sambong v. CA, G.R. No. 111876 (1996)]

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In the case of minors The question whether one shall be imprisoned is

1.   Prosecuted for the purpose of determining the always distinct from the question of whether the
right of custody over a child. individual shall be convicted or acquitted of the
2.   Question of identity is relevant and material and charge on which he is tried, and therefore these
must be convincingly established questions are separate, and may be decided in
[Tijing v. CA, G.R. No. 125901 (2001)] different courts [Herrera, citing 4 Cranch, 75, 101]

Who may issue the writ The writ of habeas corpus is not designed to interrupt
1.   The SC, CA, and RTC have concurrent jurisdiction the orderly administration of the laws by a competent
to issue WHC [Sec. 2, Rule 102] court acting within the limits of its jurisdiction, but is
2.   Family courts have jurisdiction to hear petitions available only for the purpose of relieving from illegal
for custody of minors and the issuance of the writ restraint [People v. Valte, G.R. No. L-18760 (1922)]
in relation to custody of minors [Sec. 20, AM 03-
04-04-SC, Re Proposed Rule on Custody of Proceedings on habeas corpus to obtain release from
Minors and Writ of Habeas corpus in Relation to custody under final judgment being in the nature of
Custody of Minors] collateral attack, the writ deals only with such radical
defects as to render the proceeding or judgment
Temporary release may constitute restraint absolutely void, and cannot have the effect of appeal,
1.   Where a person continued to be unlawfully writ of error or certiorari, for the purpose of reviewing
denied one or more of his constitutional rights mere error and irregularities in the proceedings
2.   Where there is present denial of due process [People v. Valte, G.R. No. L-18760 (1922)]
3.   Where the restraint is not merely involuntary but
appear to be unnecessary It is a prerogative writ which does not issue as a matter
4.   Where a deprivation of freedom originally valid of right but in the sound discretion of the court
has in light of subsequent developments become [Mangila v. Judge Pangilinan, G.R. No. 160739 (2013)]
arbitrary [Moncupa v. Enrile, G.R. No. L-63345
(1986)] Habeas corpus is a summary remedy. It is analogous
to a proceeding in rem when instituted for the sole
General rule: Release of detained person, whether purpose of having the person of restraint presented
permanent or temporary, makes the petition for before the judge in order that the cause of his
habeas corpus moot. detention may be inquired into [Caballes v. CA, G.R.
No. 163108 (2005)]
Exception: Doctrine of Constructive Restraint –
Restraints attached to release which precludes WHC may be used with writ of certiorari for
freedom of action, in which case the court can still purposes of review
inquire into the nature of the involuntary restraint The two writs may be ancillary to each other where
necessary to give effect to the supervisory powers of
The essential object and purpose of the writ of habeas higher courts [Galvez v. CA, G.R. No. 114046 (1994)]
corpus is to inquire into all manner of involuntary
restraint. Any restraint which will preclude freedom of WHC reaches the body and the jurisdictional matters,
action is sufficient [Villavicencio v. Lukban, G.R. No. but not the record. Writ of certiorari reaches the
14639 (1919)] record, but not the body [Galvez v. CA, G.R. No. 114046
(1994)]
Nature
Not a suit between private parties, but an inquisition While generally, the WHC will not be granted when
by the government, at the suggestion and instance of there is an adequate remedy like writ of error, appeal,
an individual, but still in the name and capacity of the or certiorari, it may still be available in exceptional
sovereign. There can be no judgment entered against cases [Herrera, citing 39 C.J.S. Habeas corpus §13, 486-
anybody since there is no real plaintiff and defendant 488]
[Alimpos v. CA, G.R. Nos. L-50405-06 (1981)]
Overview of Procedure
Proceedings in habeas corpus are separate and 1.   Application for the writ by petition [Sec. 3, Rule
distinct from the main case from which the 102]
proceedings spring. They rarely touch the merits of 2.   Grant or disallowance of writ and issuance by
the case and require no pronouncement with respect court or judge [Secs. 4-5, Rule 102]
thereto [Ching v. Insular Collector of Customs, G.R. No. 3.   Clerk of court issues the writ under the seal of
10972 (1916)] court (in case of emergency, by the judge himself)
[Sec. 5, Rule 102]

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Note: ROC (Secs. 5 and 12) does not fix the periods a.   Signed by the person who makes it
but uses “forthwith” but the special rules for WHC b.   Sworn by the person who makes it if
relating to minors designates periods. However, in 1.   The prisoner is not produced, and
practice and in jurisprudence, the writ must be 2.   In all other cases, unless the return is made
issued within 24 hours. and signed by a sworn public officer in his
4.   Service official capacity [Sec. 11, Rule 102]
a.   By whom sheriff or other proper officer BUT
in case of emergency where the judge himself By whom made: The person or officer who has the
issues the writ, the judge may depute any person under restraint, or in whose custody the
person to serve the writ [Sec. 5, Rule 102] prisoner is found [Sec. 10, Rule 102]
b.   How leaving the original with the person to
whom it is directed and preserving a copy on Contents
which to make return a.   Whether he has or has not the party in his custody
c.   To whom officer in custody or any officer or power, or under restraint
(when in custody of person other than an b.   If he has the party in his custody or power, or
officer) [Sec. 7, Rule 102] under restraint, the authority and the true and
5.   Writ executed and returned [Sec. 8, Rule 102] whole cause thereof, set forth at large, with a
6.   Hearing by the court (upon return) [Sec. 12, Rule copy of the writ, order execution, or other process,
102] if any, upon which the party is held
7.   Execution of the writ c.   If the party is in his custody or power or is
a.   Officer brings the person before the judge, restrained by him, and is not produced,
and particularly the nature and gravity of the sickness
b.   Officer makes due return [Sec. 8, Rule 102] or infirmity of such party by reason of which he
cannot, without danger, be bought before the
court or judge
1.   Contents of the Petition d.   If he has had the party in his custody or power, or
under restraint, and has transferred such custody
Signed and verified petition must set forth or restraint to another, particularly to whom, at
a.   That the person in whose behalf the application what time, for what cause, and by what authority
is made is imprisoned or restrained of his liberty such transfer was made.
b.   The officer or name of the person by whom he is
so imprisoned or restrained When the return considered evidence, and when
only a plea
If both are unknown or uncertain, such officer or
Custody under warrant
person may be described by an assumed Restraint is by private
of commitment in
appellation, and the person who is served with authority
pursuance of law
the writ shall be deemed the person intended
The return shall be
c.   The place where he is so imprisoned or restrained,
considered only as a
if known The return shall be
plea of the facts
d.   Copy of the commitment or cause of detention of considered prima facie
therein set forth, and
such person, if it can be procured without evidence of the cause
the party claiming the
impairing the efficiency of the remedy of restraint
custody must prove
such facts
If imprisonment or restraint is without any legal
[Sec. 13, Rule 102]
authority, such fact shall appear [Sec. 3, Rule 102]

Who may apply 3.  Distinguish Peremptory

a.   The party for whose relief it is intended, or
b.   By some person on his behalf [Sec. 3, Rule 102] Writ from Preliminary
Citation
Some person – any person who has a legally
justified interest in the freedom of the person Distinction between the writ and the privilege of the
whose liberty is restrained or who shows some writ
authorization to make the application [Velasco v. The writ of habeas corpus is a process that is
CA, G.R. No. 118644 (1995)] tantamount to a summons to appear before the court
issuing it for an inquiry into the cause of the restraint
2.  C ontents of the Return complained of. Its issuance does not amount to an
adjudication of the issue of legality of the restraint. It
Form is just an order to appear and explain.

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The privilege of the writ, on the other hand, is the writ When WHC is proper
issued to enforce the court’s decision on the merits a.   Remedy for reviewing proceedings for
finding the restraint illegal and directing the release deportation of aliens [De Bisschop v. Galang, G.R.
from custody of the detained individual. No. L-18365 (1963)]
b.   Where the court has no jurisdiction to impose the
Preliminary citation Peremptory writ sentence [Banayo v. President of San Pablo, G.R.
A written document No. 1430 (1903)]
which unconditionally
Requires the
respondent to appear
commands the
respondent to have the
5.  W hen Writ Disallowed or
and show cause why
the peremptory writ
body of the detained Discharged
person before the court
should not be granted
at a time and place a.   When restraint is by lawful order or process
therein specified [Mangila v. Judge Pangilinan, G.R. No. 160739
[Lee Yick Hon v. Collector of Customs, G.R. No. L-16779 (2013); Adonis v. Tesoro, G.R. No. 182855 (2013);
(1921)] Ampatuan v. Judge Macaraig, G.R. No. 182497
(2010)]
The order to present an individual before the court is b.   The person alleged to be restrained of his liberty
a preliminary step in the hearing of the petition. This is in the custody of an officer
order is NOT a ruling on the propriety of the remedy or 1.   Under process issued by the court or judge or
on the substantive matters covered by the remedy. by virtue of a judgment or order of a court of
Thus, the order to produce the body is not equivalent record, and
to a grant of the writ of habeas corpus [In the Matter of 2.   Said court had jurisdiction to issue the
the Petition for Habeas corpus of Alejano v. Cabuay, process, render the judgment or make the
G.R. No. 160792 (2005)] order, or
c.   Jurisdiction appears after the writ is allowed
Quantum of proof for the issuance or non-issuance despite any informality or defect in the process,
of the privilege judgment, or order [Sec. 4, Rule 102]
When respondents' defense to a petition for habeas d.   If it appears that the prisoner was lawfully
corpus is that they released the detainees for whom committed, and is plainly and specifically
the petition was filed, but the allegation of release is charged in the warrant of commitment with an
disputed by petitioners, and it is not denied that the offense punishable by death [Sec. 14, Rule 102]
detainees have not been seen or heard from since e.   Even if the arrest of a person is illegal, the
their supposed release, the respondents have the following supervening events may bar release
burden in law of proving by clear and convincing 1.   Issuance of a judicial process [Sayo v. Chief of
evidence that they released the detainees [Dizon v Police of Manila, G.R. No. L-2128 (1948)]
Eduardo, G.R. No. L-59118 (1988)]
Judicial process is defined as a writ, warrant,
4.  W hen Not Proper or subpoena, or other formal writing issued by
authority of law [Malaloan v. CA, G.R. No.
Applicable 104879 (1994)]
2.   The filing of a complaint before a trial court
When WHC is NOT proper which issued a hold departure order and
a.   For asserting or vindicating the denial of right to denied motion to dismiss and to grant bail
bail [Galvez v. CA, G.R. No. 114046(1994)] [Velasco v. CA, G.R. No. 118644(1995)]
b.   Where the petitioner has the remedy of appeal or 3.   Filing of an information for the offense for
certiorari [Galvez v. CA, G.R. No. 114046(1994)] which the accused is detained bars the
c.   For correcting errors in the appreciation of facts availability of WHC [Velasco v. CA, G.R. No.
or law [Sotto v. Director of Prisons, G.R. No. L- 118644 (1995)]
18871 (1962)]
What is to be inquired into is the legality of a person’s
Exception: If error affects court’s jurisdiction detention as of, at the earliest, the filing of the
making the judgment void [Herrera] application for the writ of habeas corpus, for even if the
d.   For enforcing marital rights including venture detention is at in its inception illegal, may no longer
and living in conjugal dwelling [Ilusorio v. Bildner, be illegal at the time of the filing of the application, by
G.R. No. 139789 (2001)] reason of supervening events [Ampatuan v. Macaraig,
G.R. 182497 (2010)]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Remedy rightful and to provide a

In such cases, instead of availing themselves of the custody is forum to enforce
extraordinary remedy of a petition for habeas corpus, withheld one’s right to the
persons restrained under a lawful process or order of from person truth and to
the court must pursue the orderly course of trial and entitled informational
exhaust the usual remedies. This ordinary remedy is thereto privacy but in
to file a motion to quash the information or the relation to a
warrant of arrest [In the matter of the petition for threat to one’s
habeas corpus of Datukan Malang Salibo v. Warden, right to privacy
G.R. No. 197597 (2015)] in regard to life,
security, and
The object of the writ of habeas corpus is to inquire liberty [Vivares v.
into the legality of the detention, and, if the detention St. Theresa’s
is found to be illegal, to require the release of the College, G.R. No.
detainee. Equally well settled however, is that the writ 202666 (2014)]
will not issue where the person in whose behalf the
writ is sought is out on bail, or is in custody of an The writ of amparo, in its present form, is confined
officer under process issued by a court or judge with only to these two instances of “extralegal killings” and
jurisdiction or by virtue of a judgment or oder of a enforced disappearances [Rev. Fr. Reyes v. CA, G.R.
court of record [Mangila v. Pangilinan, G.R. No. No. 182161 (2009)]
160739 (2013]
The writ of habeas data is not only confined to cases
The writ exists as a speedy and effectual remedy to of extralegal killings and enforced disappearances
relieve persons from unlawful restraint and as an [Vivares v. St. Theresa’s College, G.R. No. 202666
effective defense of personal freedom. It is issued only (2014)]
for the lone purpose of obtaining relief for those
illegally confined or imprisoned wihout sufficient See Comparative Table at the end of Writ of Habeas
legal basis. It is not issued when the person is in Data for a more comprehensive list of distinctions.
custody because of a judicial process or a valid
judgment. Thus, when the detention was by virtue of
a final judgment, the writ of habeas corpus may not 7.  Rules on Custody of
issue [Adonis v. Tesoro, G.R. No. 182855 (2013)] Minors and Writ of Habeas
What is to be inquired into is the legality of his Corpus In Relation To
detention as of, at the earliest, the filing of the
application for the writ, for even if the detention is at
Custody of Minors [A.M.
its inception illegal, it may, by reason of some NO. 03-04-04-SC]
supervening events, such as the instances mentioned
in Section 4, Rule 102, be no longer illegal at the time Rules on Custody of Minors
of the filing of the application [Office of the Solicitor Applicability
General v. De Castro, A.M. No. RTJ-06-2018 (2007)] a.   Petitions for custody of minors and
b.   Writs of habeas corpus in relation thereto [Sec. 1]
6.  D istinguished From Writ ROC shall apply suppletorily [Sec. 1]
of Amparo and Habeas
PETITION FOR CUSTODY OF MINORS
Data
Who may file
Writ of Any person claiming right of custody [Sec. 2]
Writ of Writ of habeas
habeas Party against whom it may be filed shall be
amparo data
corpus designated as the respondent.
Extends to Designed to
ONLY covers
all cases of protect the Where to file
extralegal
illegal image, privacy, Family Court of the province or city
killings and
confinement honor, a.   where the petitioner resides or
enforced
or detention information, and b.   where the minor may be found [Sec. 3]
disappearances
(deprivation freedom of
or threats
of liberty), information of Contents of petition
thereof
or where an individual, The verified petition shall allege the following

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a.   The personal circumstances of the petitioner and discernment, unless grandparent chosen is unfit
of the respondent or disqualified
b.   The name, age and present whereabouts of the d.   The eldest brother or sister over 21 years of age,
minor and his or her relationship to the petitioner unless unfit or disqualified
and the respondent e.   The actual custodian of the minor over 21 years of
c.   The material operative facts constituting age, unless unfit or disqualified
deprivation of custody and f.   Any other person or institution the court may
d.   Such other matters which are relevant to the deem suitable [Sec. 13]
custody of the minor [Sec. 4]
In awarding custody, the court shall consider the best
Answer to the Petition must be verified and filed interests of the minor and shall give paramount
within 5 days after service of summons and copy of consideration to his material and moral welfare [Sec.
petition [Sec. 7] 14]

Motion to dismiss is not allowed except on ground of Interim reliefs

lack of jurisdiction over a.   Temporary visitation rights - court shall provide
a.   Subject matter or in its order awarding provisional custody
b.   Parties [Sec. 6] appropriate visitation rights to the non-custodial
parent or parents.
Case study 1.   Unless the court finds said parent or parents
Upon the filing of the verified answer or the expiration unfit or disqualified.
of the period to file it, the court may order a social 2.   The temporary custodian shall give the court
worker to make a case study of the minor and the and non-custodial parent or parents at least
parties and to submit to the court at least 3 days 5 days' notice of any plan to change the
before pre-trial [Sec. 8] residence of the minor or take him out of his
residence for more than 3 days [Sec. 15]
Pre-trial
Pre-trial is mandatory [Sec. 9] b.   Hold departure order – the minor child shall not
a.   Failure to file the pre-trial brief or to comply with be brought out of the country without prior order
its required contents has same effect as failure to from the court while the petition is pending.
appear at the pre-trial [Sec.10] 1.   The Court, motu proprio or upon application
b.   If the petitioner fails to appear personally at the under oath, may issue ex parte a hold
pre-trial, the case shall be dismissed departure order, addressed to the Bureau of
Immigration and Deportation (BID), directing
Unless his counsel or a duly authorized it not to allow the departure of the minor
representative appears in court and proves a valid from Philippines without court permission.
excuse for the non-appearance of the petitioner 2.   The Family Court issuing the hold departure
[Sec. 11] order shall furnish the DFA and the BID of the
c.   If the respondent has filed his answer but fails DOJ a copy of the hold departure order within
to appear at the pre-trial, the petitioner shall be 24 hours from its issuance.
allowed to present his evidence ex parte. The 3.   The court may recall the hold departure order
court shall then render judgment on the basis of motu proprio or upon verified motion of any
the pleadings and the evidence thus presented of the parties after summary hearing [Sec. 16]
[Sec. 9]
c.   Protection order (PO) - court may issue a PO
Provisional order awarding custody requiring any person
After an answer has been filed or after expiration of 1.   To stay away from the home, school,
the period to file it, the court may issue a provisional business, or place of employment of the
order awarding custody of the minor. As far as minor, other parent or any other party, or
practicable, the following order of preference shall from any other specific place
be observed in the award of custody 2.   To cease and desist from harassing,
a.   Both parents jointly intimidating, or threatening such minor or
b.   Either parent taking into account all relevant the other parent or any person to whom
considerations, especially the choice of the minor custody of the minor is awarded
over seven years of age and of sufficient 3.   To refrain from acts or omission that create
discernment, unless the parent chosen is unfit an unreasonable risk to minor
c.   The grandparent, or if there are several 4.   To permit a parent, or a party entitled to
grandparents, the grandparent chosen by the visitation by a court order or a separation
minor over 7 years of age and of sufficient

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

agreement, to visit the minor at stated it may be made returnable to a Family Court or to any
periods regular court within the region where the petitioner
5.   To permit a designated party to enter the resides or where the minor may be found.
residence during a specified period of time in
order to take personal belongings not If the presiding judge of the Family Court is absent,
contested in a proceeding pending with the then the petition may be filed with a regular court,
Family Court provided that the regular court shall refer the case to
6.   To comply with such other orders as are the regular court as soon as the presiding judge
necessary for the protection of the minor returns to duty.
[Sec. 17]
If there are no Family Courts in the area, then the
Judgment petition may be filed with the regular courts
Court shall render judgment awarding the custody of
the minor to the proper party considering the best The writ is returnable to the Family Court, or to any
interests of the minor. regular court within the judicial region where the
petitioner resides or where the minor may be found,
If both parties are unfit to have the care and custody for hearing and decision on the merits.
of the minor, the court may designate either the
paternal or maternal grandparent of the minor, or his Upon return of the writ, the court shall decide the
oldest brother or sister, or any reputable person to issue on custody of minors.
take charge of such minor, or commit him to any [Sec. 20]
suitable home.
Considering that the writ is made enforceable within
Court may order either or both parents to give an a judicial region, petitions for the issuance of the writ
amount necessary for the support, maintenance and of habeas corpus, whether they be filed under Rule
education of the minor, irrespective of custodianship. 102 or pursuant to Section 20 of A.M. No. 03-04-04-
The court may also issue any order that is just and SC, may therefore be filed with any of the proper RTCs
reasonable permitting the parent who is deprived of within the judicial regional where enforcement
the care and custody of the minor to visit or have thereof is sought [Tujan-Militante v. Cada-Deapera,
temporary custody [Sec. 18] G.R. No. 210636 (2014)]

Appeal Best interest of the child

Appeal from the decision shall be allowed, unless the The best interest of the child prevails over any
appellant has filed a motion for reconsideration or agreement on custody. Any such agreement is void for
new trial within 15 days from notice of judgment. being contrary to Article 213 of the Family Code. In this
case, the child was below seven years when such
An aggrieved party may appeal from the decision by agreement was executed. But since the child had in
filing a Notice of Appeal within 15 days from notice of the meantime turned 15, it is now the best interest of
the denial of the motion for reconsideration or new the child which becomes the standard for custody
trial and serving a copy on the adverse parties [Sec. [Dacasin v. Dacasin, G.R. No. 168785 (2010)]
19]
Habeas corpus may be resorted to in cases where
PETITION FOR WRIT OF HABEAS CORPUS rightful custody is withheld from a person entitled
INVOLVING CUSTODY OF MINORS thereto. Under Art. 211 of the Family Code, husband
and wife have joint parental authority over their son
Where filed; where enforceable and consequently, joint custody. And although the
A verified petition for a writ of habeas corpus involving couple is separated de facto, the issue of custody has
custody of minors is filed with the Family Court of the yet to be adjudicated by the court. In the absence of
province or city where the petitioner resides, or where judicial grant of custody to one parent, both parents
the minor may be found, or with the CA or the SC. are still entitled to the custody of their child. Thus,
where the husband’s cause of action is the deprivation
If filed with the Family Court where the petitioner of his right to see his child, the remedy of habeas
resides, or where the minor may be found, the writ is corpus is available to him [Salientes v. Abanilla, G.R.
enforceable within the judicial region where the No. 162734 (2006)]
Family Court belongs.
Tender age presumption
If filed with the CA or the SC, or with any of its General rule: No child under seven years of age shall
members, the writ shall be enforceable anywhere in be separated from the mother
Philippines. Upon issuance of the writ by the SC or CA,

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Exception: The court finds compelling reasons to order established that such moral lapses have had an
otherwise [Art. 213, FC] adverse effect on the welfare of the child or have
distracted the offending spouse from exercising
The tender age presumption may be overcome only be proper parental care [Pablo-Gualberto v. Gualberto,
compelling evidence of the mother’s unfitness. But G.R. No. 154994 (2005)]
sexual preference or moral laxity alone does not prove
parental neglect or incompetence. It should be clearly

Comparative table on Habeas corpus and Rule on Custody of Minors

Rule on Custody and Habeas Corpus for
Habeas corpus [Rule 102]
Minors [A.M. 03-04-04]
Right to liberty
Rights Involved Petition for the rightful custody of a minor
Rightful custody of the aggrieved party
Unlawful deprivation of rightful custody, or
A minor is being kept from a parent by the
other parent (e.g. which parent shall have the
Actual violation of the aggrieved party’s right
care and custody of a minor, when such
Situations to liberty, or rightful custody [Sec. 1]
parent is in the midst of nullity or legal
Applicable
separation proceedings) [Herrera; Secs. 2 &
20]
Any person claiming rightful custody – this
covers
Party for whose relief it is intended or by a.   Unlawful deprivation of the custody of a
Party authorized
some person in his behalf [Sec. 1] minor
to file
b.   Which parent shall have the care and
custody of a minor [Herrera]
Respondents May or may not be an officer
Petition for Custody of Minors
Family Court of the province or city
a.   where the petitioner resides, or
b.   where the minor may be found
a.   RTC or any judge thereof
b.   CA or any member thereof in instances Petition for Habeas Corpus in relation to
authorized by law Custody of Minors
c.   SC or any member thereof [Sec. 2] a.   Family Court, writ enforceable within its
Before which d.   First level courts in the absence of RTC judicial region
court or judicial judges in a province or city [Sec. 35, B.P. b.   Regular court in the absence of the
authority filed 129] presiding judge of the Family Court,
e.   Sandiganbayan, in aid of appellate provided, however, that the regular court
jurisdiction of the Sandiganbayan [RA shall refer the case to the Family Court
8249 further expanding its jurisdiction] as soon as its presiding judge returns to
duty
c.   Appropriate regular courts in places
where there are no Family Courts [Sec.
20]
The verified petition shall allege the following
Signed, verified either by the party for whose
a.   The personal circumstances of the
relief it is intended, or by some person in his
petitioner and of the respondent
behalf and shall set forth
b.   The name, age and present
a.   That the person in whose behalf the
whereabouts of the minor and his or her
application is made is imprisoned or
Contents of the relationship to the petitioner and the
restrained on his liberty
petition respondent
b.   The officer or name of the person by
c.   The material operative facts
whom he is so imprisoned or restrained
constituting deprivation of custody and
or, if both are unknown or uncertain,
d.   Such other matters which are relevant
such officer or person may be described
to the custody of the minor.
by an assumed appellation, and the

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

person who is served with the writ shall The verified petition shall be accompanied by
be deemed the person intended a certificate against forum shopping, which
c.   The place where he is so imprisoned or the petitioner must sign personally [Sec. 4]
restrained, if known
d.   A copy of the commitment or cause of
detention of such person, if it can be
procured without impairing the
efficiency of the remedy or, if the
imprisonment or restraint is without any
legal authority, such fact shall appear
[Sec. 3]

The writ shall cover

  Writ of Amparo [A.M. 07- 1.   Extralegal killings (killings committed without
due process of law) and
9-12-SC] 2.   Enforced disappearances [Sec. 1]

Elements of enforced disappearance, as statutorily

Writ of Amparo, in General defined in R.A. 9851
Literally means “to protect” 1.   that there be an arrest, detention, abduction or
any form of deprivation of liberty
Came originally from Mexico and evolved into many 2.   that it be carried out by, or with the authorization,
forms support or acquiescence of, the State or a political
1.   Amparo libertad – for protection of personal organization
freedom 3.   that it be followed by the State or political
2.   Amparo contra leyes – for judicial review of the organization’s refusal to acknowledge or give
constitutionality of statutes information on the fate or whereabouts of the
3.   Amaparo casacion – judicial review of person subject of the amparo petition, and
constitutionality and legality of judicial decisions 4.   that the intention for such refusal is to remove
4.   Amparo agrario – for protection of peasants’ rights subject person from the protection of the law for a
[Secretary of Justice v. Manalo, G.R. No. 180906 prolonged period of time
(2008)] [Caram v. Segui, G.R. No. 193652 (2014)]
The remedy of the writ of amparo is an equitable and In our jurisdiction, the contextual genesis for the
extraordinary remedy to safeguard the right of the present Amparo Rule has limited the remedy as a
people to life, liberty and security, as enshrined in the response to extrajudicial killings and enforced
1987 Constitution [De Lima v. Gatdula, G.R. 204528 disappearances, or threats thereof [Spouses Santiago
(2013)] v. Tulfo, G.R. No. 205039 (2015)]
The remedy of the writ of amparo serves both The writ applies only to the right to life, liberty and
preventive and curative roles in addressing the security of persons and not property. The writ of
problem of extralegal killings and enforced amparo does not envisage the protection of concerns
disappearances. that are purely property or commercial in nature [Pador
1.   Preventive – it breaks the expectation of impunity v. Arcayan citing Tapuz v. Del Rosario, G.R. No. 183460
in the commission of offenses (2013)]
2.   Curative – it facilitates the subsequent
punishment of perpetrators by inevitably leading “Right to security” as a guarantee of protection by the
to subsequent investigation and action [Secretary government, is violated by the apparent threat to the
of National Defense v. Manalo, G.R. No. 180906 life, liberty and security of their person.
(2008)]
Right to security includes
1.   Coverage 1.   Freedom from fear
2.   Guarantee of bodily and psychological
Available to any person whose right to life, liberty and integrity or security
security is violated or threatened with violation by an 3.   Guarantee of protection of one’s rights by the
unlawful act or omission of a public official or government
employee, or of a private individual or entity [Sec.1]
Protection includes conducting effective
investigations, organization of the government

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apparatus to extend protection to victims of extralegal The Constitutional provision is a protection of the
killings or enforced disappearances (or threats thereof) people from the unreasonable intrusion of the
and/or their families, and bringing offenders to the bar government, not a protection of the government from
of justice. the demand of the people such as respondents.
[Secretary of National Defense v. Manalo, G.R. No.
180906 (2008)] Instead, the Amparo production order may be likened
to the production of documents or things under
There is a violation of freedom from threat by the Section 1, Rule 27 of the Rules of Civil Procedure i.e.
apparent threat to life, liberty and security of their “Upon motion of any party showing good cause
person from the following facts therefor, the court in which an action is pending may
1.   Threat of killing their families if they tried to (a) order any party to produce and permit the
escape inspection and copying or photographing, by or on
2.   Failure of the military to protect them from behalf of the moving party, of any designated
abduction documents, papers, books of accounts, letters,
3.   Failure of the military to conduct effective photographs, objects or tangible things, not privileged,
investigation which constitute or contain evidence material to any
[Secretary of National Defense v. Manalo, G.R. No. matter involved in the action and which are in his
180906 (2008)] possession, custody or control” [Secretary of National
Defense v. Manalo, G.R. No. 180906 (2008)]
The writ of amparo does not protect the right to travel.
Where the petitioner failed to establish that his right to
travel was impaired in the manner and to the extent
4.  W ho May File
that it amounted to a serious violation of his right to
life, liberty and security, the writ of amparo will not lie a.   Aggrieved party, or
[Reyes v. Gonzales, G.R. No. 182161 (2009)] b.   Qualified person or entity in the following order
1.   Any member of the immediate family namely
Nature the spouse, children and parents of the
The writ of amparo is an extraordinary and aggrieved party
independent remedy that provides rapid judicial relief, 2.   Any ascendant, descendant or collateral
as it partakes of a summary proceeding that requires relative of the aggrieved party within the
only substantial evidence to make the appropriate fourth civil degree of consanguinity or affinity,
interim and permanent reliefs available to the in default of those mentioned in the preceding
petitioner. It is not an action to determine criminal guilt paragraph, or
requiring proof beyond reasonable doubt, or liability 3.   Any concerned citizen, organization,
for damages requiring preponderance of evidence, or association or institution if there is no known
administrative responsibility requiring substantial member of the immediate family or relative of
evidence that will require full and exhaustive the aggrieved party.
proceedings [Rodriguez v. Macapagal-Arroyo, G.R. No.
191805 (2011)] The filing of a petition by the aggrieved party suspends
the right of all other authorized parties to file similar
petitions. Likewise, the filing of the petition by an
2.  D istinguish From Habeas authorized party on behalf of the aggrieved party
suspends the right of all others, observing the order
Corpus and Habeas Data the order established herein [Sec. 2]
See [Habeas Corpus] Distinguished From Writ of Ratio for preference for filing party
Amparo and Habeas Data above and Comparative a.   Necessary for the prevention of indiscriminate and
Table at the end of Writ of Habeas Data. groundless filing of petitions for amparo which
may even prejudice the right to life, liberty or
3.  Amparo v. Search Warrant security of the aggrieved party [Boac v. Cadapan,
G.R. Nos. 184461-62 (2011)]
“The production order under the Amparo Rule should b.   Untimely resort to the writ by a non-member of the
not be confused with a search warrant for law family may endanger the life of the aggrieved
enforcement under Article III, Section 2 of the 1987 party [Phil. Judicial Academy Journal, June-Dec
Constitution. 2008 Vol. 10 Issue 30, p. 243]

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Where to file Who shall issue the writ: clerk of court, however in
a.   RTC where the threat, act or omission was case of urgent necessity, the justice or the judge may
committed or any of its element occurred, or issue the writ under his or her own hand, and may
b.   Sandiganbayan—unlike the writ of habeas corpus, deputize any officer or person to serve it.
because public officials and employees will be
respondents in amparo petitions, or Date and time for summary hearing of the petition
c.   Court of Appeals, or shall be set not later than 7 days from date of issuance
d.   Supreme Court, or [Sec. 6]
e.   Any justice of such courts [Sec. 3]

May be filed on any day, including Saturdays, Sundays,

5.  C ontents of Return
and holidays, from morning until evening.
When to file return
The writ shall be enforceable anywhere in Philippines Respondent must file a verified written return within
[Sec. 3] 72 hours after service of writ, together with
supporting affidavits. The period to file a return cannot
No docket fees be extended even on highly meritorious ground [Sec.
Petitioner shall be exempted from payment of docket 9]
fees and other lawful fees when filing the petition [Sec.
4] Contents of the return
a.   The lawful defenses to show that the respondent
Contents of the petition did not violate or threaten with violation the right
A signed and verified petition shall contain to life, liberty and security of the aggrieved party,
a.   The personal circumstances of the petitioner through any act or omission
b.   The name and personal circumstances of the b.   The steps or actions taken by the respondent to
respondent responsible for the threat, actor determine the fate or whereabouts of the
omission aggrieved party and the person responsible for the
threat, act or omission
If the name is unknown or uncertain, may be c.   All relevant information in the possession of the
described by an assumed appellation respondent pertaining to the threat, act or
omission against the aggrieved party, and
c.   The right to life, liberty and security of the d.   If the respondent is a public official or employee
aggrieved party violated or threatened with the return shall further state the actions that have
violation by an unlawful act or omission of the been or will still be taken
respondent 1.   to verify the identity of the aggrieved party
1.   How such threat or violation is committed 2.   to recover and preserve evidence related to
2.   With the attendant circumstances detailed in the death or disappearance of the person
supporting affidavits identified in the petition which may aid in the
d.   The investigation conducted, if any, specifying prosecution of the person or persons
1.   Names, the personal circumstances and responsible
addresses of the investigating authority or 3.   to identify witnesses and obtain statements
individuals from them concerning the death or
2.   Manner and conduct of the investigation disappearance
3.   Together with any report 4.   to determine the cause, manner, location and
e.   The actions and recourses taken by the petitioner time of death or disappearance as well as any
to determine the fate or whereabouts of the pattern or practice that may have brought
aggrieved party and the identity of the person about the death or disappearance
responsible for the threat, act or omission, and 5.   to identify and apprehend the person or
f.   The relief prayed for. persons involved in the death or
It may include a general prayer for other just and disappearance, and
equitable reliefs [Sec.5] 6.   to bring the suspected offenders before a
competent court., and
Issuance of writ e.   The return shall also state matters relevant to the
Upon filing of petition, writ shall immediately issue if investigation, its resolution and the prosecution of
on its face it ought to issue. the case.

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No general denial of the allegations allowed [Sec. 9]

6.  E ffect of Failure to File
Prohibited pleadings and motions Return
a.   Motion to dismiss
b.   Motion for extension of time to file return, In case the respondent fails to file a return, the court,
opposition, affidavit, position paper and other justice, or judge shall proceed to hear the petition ex
pleadings parte [Sec. 12]
c.   Dilatory motion for postponement
d.   Motion for a bill of particulars
e.   Counterclaim or cross-claim 7.  Omnibus Waiver Rule
f.   Third-party complaint
g.   Reply All defenses shall be raised in the return, otherwise,
h.   Motion to declare respondent in default they shall be deemed waived [Sec. 10]
i.   Intervention
j.   Memorandum 8.  P rocedure for Hearing
k.   Motion for reconsideration of interlocutory orders
or interim relief orders, and Summary hearing
l.   Petition for certiorari, mandamus or prohibition Hearing on the petition shall be summary.
against any interlocutory order
[Sec. 11] BUT The court, justice, or judge may call for a
preliminary conference to simplify the issues and
Prohibited pleadings; Suppletory application of the determine the possibility of obtaining stipulations and
Rules of Court admissions from the parties.
What is prohibited under Sec. 11 of A.M. No. 07-9-12- Hearing shall be from day to day until completed and
SC are motions for reconsideration directed against, given the same priority as petitions for habeas corpus
interlocutory orders or interim relief orders, not [Sec. 13]
those assailing the final judgment or order. The
pleadings and motions enumerated in Sec. 11 of A.M. Judgment
No. 07-9-12-SC would unnecessarily cause delays in The court shall render judgment within ten (10) days
the proceedings; they are, thus, proscribed since they from the time of petition is submitted for decision
would counter to the summary nature of the rule on the [Sec.18]
writ of amparo. A motion seeking reconsideration of a
final judgment or order in such case, obviously, no Appeal
longer affects the proceedings. Any party may appeal from the final judgment or order
to the Supreme Court under Rule 45, 5 working days
Moreover, the ROC applies suppletorily to A.M. No. 07- from the date of notice of the adverse judgment [Sec.
9-12-SC insofar as it is not inconsistent with the latter. 19]
Accordingly, there being no express prohibition to the
contrary, the rules on motions for reconsideration Archiving and revival of cases
under the ROC apply suppletorily to the Rule on the If the case cannot proceed for valid cause, the court
Writ of Amparo. [Mamba, et al. v. Buena, G.R. No. shall not dismiss the petition but shall archive it. If after
191416 (2017)] the lapse of two (2) years from the notice of archiving,
the petition shall be dismissed for failure to prosecute
To whom returnable [Sec. 20]
a.   If filed with RTC, returnable to RTC or any judge
b.   If filed with Sandiganbayan, CA or any justice,
returnable to such court or any justice or the RTC 9.  I nstitution of Separate
where the threat, act or omission was committed
or any of its elements occurred.
Action
c.   If filed with the SC, returnable to the SC or any
justice, or to the CA, SB or any of its justices, or the The Rule shall neither preclude the filing of separate
RTC where the threat, act or omission was criminal, civil or administrative actions [Sec. 21]
committed or any of its elements occurred [Sec. 3]

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1.   Issued only upon verified motion and after due

10.  Effect of Filing a Criminal hearing
Action 2.   Directed to any person in possession or
control of a designated land or other property,
Reliefs under the writ shall be available by motion in a to permit entry for the purpose of inspecting,
criminal case. measuring, surveying, or photographing the
property or any relevant object or operation
Procedure under this Rule shall govern the disposition thereon.
of the reliefs available under the writ of amparo. 3.   The order shall expire five (5) days after the
day of its issuance, unless extended for
When a criminal action has been commenced, no justifiable reasons [Sec. 14(b)]
separate petition for the writ shall be filed [Sec. 22] 4.   Requires hearing, may be availed of both the
petitioner and the respondent
5.   If the court, justice or judge gravely abuses his
11.  Consolidation or her discretion in issuing the inspection
order, the aggrieved party is not precluded
When a criminal action is filed subsequent to the from filing a petition for certiorari with the SC
filing of a petition for the writ, the latter shall be c.   Production Order
consolidated with the criminal action. 1.   Issued only upon verified motion and after due
hearing
When a criminal action and a separate civil action are 2.   Directed to any person in possession, custody
filed subsequent to a petition for a writ of amparo, the or control of any designated documents,
latter shall be consolidated with the criminal action. papers, books, accounts, letters,
photographs, objects or tangible things, or
After consolidation, the procedure under this Rule objects in digitized or electronic form which
shall continue to apply to the disposition of the reliefs constitute or contain evidence relevant to the
on the petition [Sec. 23] petition or the return, to produce and permit
their inspection, copying or photographing by
12.  I nterim Reliefs Available or on behalf of the movant.
3.   In case of opposition, the court, justice or
To Petitioner and judge may conduct a hearing in chambers to
determine the merit of the opposition [Sec.
Respondent 14(c)] Opposition may be had on the following
grounds
When available i.   National security
Upon filing of the petition or at any time before final ii.   Privileged nature of the information
judgment
Not the same as search warrant for law
Interim Reliefs available to the Petitioner enforcement under Art. III, Sec. 2 of the
a.   Temporary Protection Order Constitution since the latter is a protection of the
1.   Issued upon motion or motu proprio people from unreasonable intrusion of the
2.   That the petitioner or the aggrieved party and government, not a protection of the government
any member of the immediate family be from the demand of the people such as
protected in a government agency or by an respondents
accredited person or private institution
capable of keeping and securing their safety. More similar to production of documents or things
If the petitioner is an organization, association under Sec. 1, Rule 27 [Secretary of National Defense
or institution referred to in Section 3(c) of this v. Manalo, G.R. No. 180906 (2008)]
Rule, the protection may be extended to the d.   Witness protection order
officers concerned [Sec. 14(a)] 1.   Issued upon motion or motu proprio
3.   Different from the inspection and production 2.   Order may refer the witnesses to
order in that the temporary protection order i.   The Department of Justice for admission
and the witness protection order do not need to the Witness Protection, Security and
a verification and may be issued motu proprio Benefit Program.
or ex parte. ii.   Other government agencies, or to
b.   Inspection Order accredited persons or private institutions

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capable of keeping and securing their inclusion in the list [Ladaga v. Magapu, G.R. No.
safety [Sec. 14(d)] 189689 (2012)]

Interim reliefs available to the respondent That a public official failed to observe extraordinary
1.   Inspection Order diligence in the performance of his duties does not
2.   Production Order [Sec. 15] result in the automatic grant of the writ. Such failure
does not relieve the petitioner from establishing his
Requisites claim by substantial evidence [Yano v. Sanchez, G.R.
1.   Verified motion of the respondent No. 186640 (2010)]
2.   Due hearing
3.   Affidavits or testimonies of witnesses having For the protective writ of amparo to issue, allegation
personal knowledge of the defenses of the and proof of the persons subject thereof are missing
respondent are not enough. The petitioner is an amparo case has
[Sec. 14(b)] the burden of proving by substantial evidence the
indispensable element of government participation
[Navia v. Pardico, G.R. No. 184467 (2012)]
13.  Q uantum of Proof in
Application for Issuance If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege
of Writ of Amparo of the writ and such reliefs as may be proper and
appropriate; otherwise, the privilege shall be denied
The parties shall establish their claims by substantial [Sec. 18]
evidence.

If respondent is a public official or employee

Must prove that extraordinary diligence as required as
required by the applicable laws, rules and regulations
was observed in the performance of duty.

Cannot invoke the presumption that official duty has

been regularly performed to evade responsibility or
liability

If respondent is a private individual or entity

Must prove that ordinary diligence as required by
applicable laws, rules and regulations was observed in
the performance of duty.
[Sec. 17]

With the secret nature of an enforced disappearance

and the torture perpetrated on the victim during
detention, it logically holds that much of the
information and evidence of the ordeal will come from
the victims themselves. Their statements can be
corroborated by other evidence such as physical
evidence left by the torture or landmarks where
detained [Secretary of National Defense v. Manalo, G.R.
No. 180906 (2008)]

The writ can only be issued upon reasonable certainty.

Substantial evidence is sufficient to grant the writ
because the respondent is the State which has more
resources than the petitioner. However, the SC held
that mere inclusion in an Order of Battle List is
insufficient to grant the writ absent a finding of a direct
relation between prior deaths and the subject list. No
evidence was shown that the deaths occurred due to

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  Writ of Habeas Data then the Court may (a) grant access to the database or
information; (b) enjoin the act complained of; or (c) in
[A.M. No. 08-1-16-SC] case the database or information contains erroneous
data or information, order its deletion, destruction or
rectification [Rodriguez v Macapagal-Arroyo, G.R. No.
1.   Scope of the Writ 191805 (2011)]

The writ of habeas data is a remedy available to any

person whose right to privacy in life, liberty or security
2.  A vailability of Writ
is violated or threatened by an unlawful act or omission Where to file
of a public official or employee, or of a private
a.   RTC, at the option of the petitioner
individual or entity engaged in the gathering,
collecting or storing of data or information regarding
1.   Where petitioner resides, or
the person, family, home and correspondence of the 2.   Where respondent resides, or
aggrieved party [Sec. 1] 3.   Which has jurisdiction over the place where
the data or information is gathered, collected
Purpose or stored
It is an independent and summary remedy designed to b.   SC, CA, SB (when action concerns public data files
protect the image, privacy, honor, information, and of government offices) [Sec. 3]
freedom of information of an individual, and to provide
a forum to enforce one’s right to the truth and to Writ is enforceable anywhere in Philippines [Sec. 4]
informational privacy. It seeks to protect a person’s
right to control information regarding oneself, No fees for indigent petitioners
particularly in instances in which such information is The petition of the indigent shall be docked and acted
being collected through unlawful means in order to upon immediately, without prejudice to subsequent
achieve unlawful ends. There must be a nexus between submission of proof of indigency not later than fifteen
the right to privacy, as well as the violation or (15) days from the filing of the petition [Sec. 5]
threatened violation of the rights to life, liberty, and
security, for the writ to issue [Gamboa v. Chan, G.R. No. Nexus between right to privacy, and right to life,
193636 (2012)] liberty or security
The writ, however, will not issue on the basis merely of
Notes: an alleged unauthorized access to information about
a.   Writ of Habeas data was not enacted solely for the the person. Availment of the writ requires the existence
purpose of complementing the Writ of Amparo in of a nexus between the right to privacy on the one
cases of extralegal killings and enforced hand, and the right to life, liberty or security on the
disappearances. It may be availed of in cases other [Vivares v. St. Theresa’s College, G.R. No. 202666
outside of extralegal killings and enforced (2014)]
disappearances. Habeas data, to stress, was
designed “to safeguard individual freedom from It will not issue to protect purely property or
abuse in the information age.” It can be availed of commercial concerns nor when the grounds invoked in
as an independent remedy to enforce one’s right support of the petition therefor are vague and doubtful
to privacy, more specifically the right to [Manila Electric Company v. Lim, G.R. No. 184769
informational privacy [Vivares v. St Theresa’s (2010)]
College G.R. No. 202666 (2014)]
b.   Nothing in the Rule suggests that the habeas data Where the petitioner was not able to sufficiently allege
protection shall be available only against abuses that his right to privacy in life, liberty or security was or
of a person or entity engaged in the business of would be violated through the supposed reproduction
gathering, storing, and collecting of data [Vivares and threatened dissemination of the subject sex video,
v. St Theresa’s College G.R. No. 202666 (2014)] the petition is dismissible. Even if the petition alleges a
privacy interest in the suppression of the video, the
Nature petitioner failed to explain the connection between
As an independent and summary remedy to protect the such interest and any violation of his right to life,
right to privacy especially the right to informational liberty, or security. Courts cannot speculate or contrive
privacy, the proceedings for the issuance of the writ of versions of possible transgressions. As the rules and
habeas data does not entail any finding of criminal, existing jurisprudence on the matter evoke, alleging
civil or administrative culpability. If the allegations in and eventually proving the nexus between one’s
the petition are proven through substantial evidence, privacy rights to the cogent rights to life, liberty or

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security are crucial in habeas data cases, so much so of the database or information or files kept by the
that a failure on either account certainly renders a respondent.
habeas data petition dismissible [Lee v. Ilagan, G.R. No. f.   In case of threats, the relief may include a prayer
203254 (2014)] for an order enjoining the act complained of, and
g.   Such other relevant reliefs as are just and
Respondent must be engaged in the gathering, equitable [Sec. 6]
collecting or storing of data or information regarding
the person, family, home and correspondence of the Issuance of writ
aggrieved party. However, it is not necessary that the Upon the filing of the petition, the court, justice or
respondent does these acts as a business or for profit. judge shall immediately order the issuance of the writ
[Vivares v. St. Theresa’s College, G.R. No. 202666 if on its face it ought to issue [Sec. 7]
(2014)]
6.  C ontents of the Return
3.  Distinguish from Habeas
a.   The lawful defenses such as national security,
Corpus and Amparo state secrets, privileged communication,
confidentiality of the source of information of
See [Habeas Corpus] Distinguished From Writ of media and others
Amparo and Habeas Data above and Comparative b.   In case of respondent in charge, in possession or in
Table at the end of Writ of Habeas Data. control of the data or information subject of the
petition
4.  W ho May File the Petition 1.   disclosure of the data or information about
the petitioner, the nature of such data or
Any aggrieved party may file a petition for the writ of information, and the purpose for its collection
habeas data. However, in cases of extralegal killings 2.   the steps or actions taken by the respondent
and enforced disappearances, the petition may be to ensure the security and confidentiality of
filed by the data or information, and
a.   Any member of the immediate family of the 3.   the currency and accuracy of the data or
aggrieved party, namely the spouse, children and information held, and
parents, or c.   Other allegations relevant to the resolution of the
b.   Any ascendant, descendant or collateral relative proceeding.
of the aggrieved party within the fourth civil
degree of consanguinity or affinity, in default of A general denial of the allegations in the petition shall
those mentioned in the preceding paragraph [Sec. not be allowed [Sec. 10]
2]
When to file return
Respondent must file a verified written return within
5.  C ontents of the Petition five (5) working days from service of the writ,,
together with supporting affidavits. The 5-day period
Contents of the petition may be reasonably extended by the Court for justifiable
A verified written petition for a writ of habeas data reasons.
should contain
a.   The personal circumstances of the petitioner and Prohibited pleadings and motions
the respondent a.   Motion to dismiss
b.   The manner the right to privacy is violated or b.   Motion for extension of time to file return,
threatened and how it affects the right to life, opposition, affidavit, position paper and other
liberty or security of the aggrieved party pleadings
c.   The actions and recourses taken by the petitioner c.   Dilatory motion for postponement
to secure the data or information d.   Motion for a bill of particulars
d.   The location of the files, registers or databases, e.   Counterclaim or cross-claim
the government office, and the person in charge, f.   Third-party complaint
in possession or in control of the data or g.   Reply
information, if known h.   Motion to declare respondent in default
e.   The reliefs prayed for, which may include the i.   Intervention
updating, rectification, suppression or destruction j.   Memorandum

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

k.   Motion for reconsideration of interlocutory orders When a criminal action is filed subsequent to the
or interim relief orders, and filing of a petition for the writ, the latter shall be
l.   Petition for certiorari, mandamus or prohibition consolidated with the criminal action.
against any interlocutory order
[Sec. 13] When a criminal action and a separate civil action are
filed subsequent to a petition for a writ of habeas data,
To whom returnable the petition shall be consolidated with the criminal
If issued by action.
a.   SC or any of its justices, before such Court or any [Sec. 21]
justice thereof, or CA/SB or any of its justices, or
the RTC of the place where the petitioner or
respondent resides/has jurisdiction over the place
9.  E ffect of Filing Criminal
where the data or information is gathered, stored Action
or collected
b.   CA/SB or any of its justices, before such court or Reliefs under the writ shall be available to an
any justice thereof, or RTC (same with scenario SC aggrieved party by motion in a criminal case.
issued and then returned in RTC)
c.   RTC, returnable before such court or judge Procedure under this Rule shall govern the disposition
[Sec. 4] of the reliefs available under the writ of habeas data

Effect of failure to file return When a criminal action has been commenced, no
In case the respondent fails to file a return, the court, separate petition for the writ shall be filed.
justice, or judge shall proceed to hear the petition ex [Sec. 22]
parte [Sec. 14]

Procedure for hearing 10.  Institution of Separate

Hearing on the petition shall be summary. BUT The Action
court, justice, or judge may call for a preliminary
conference to simplify the issues and determine the The filing of a petition for the writ of habeas data shall
possibility of obtaining stipulations and admissions not preclude the filing of separate criminal, civil or
from the parties [Sec. 15] administrative actions [Sec. 20]

7.  Instances When Defenses 11.  Quantum of Proof in

May Be Heard In Chambers Application for Issuance
a.   Where the respondent invokes the defense that the of Writ of Habeas Data
release of the data or information in question shall
compromise national security or state secrets, or If the allegations in the petition are proven by
b.   When the data or information cannot be divulged substantial evidence, the court shall (a) enjoin the act
to the public due to its nature or privileged complained of, or order the deletion, destruction, or
character rectification of the erroneous data or information AND
[Sec. 12] (b) grant other relevant reliefs as may be just and
equitable; otherwise, the privilege of the writ shall be
Judgment denied [Sec. 16]
The court shall render judgment within ten (10) days
from the time of petition is submitted for decision [Sec. An indispensable requirement before the privilege of
16] the writ may be extended is the showing, at least by
substantial evidence, of an actual or threatened
Appeal violation of the right to privacy in life, liberty or security
Any party may appeal from the final judgment or order of the victim [Roxas v. Arroyo, G.R. No. 189155 (2010)]
to the Supreme Court under Rule 45, 5 working days
from the date of notice of the adverse judgment [Sec. Not only direct evidence, but circumstantial evidence,
19] indicia, and presumptions may be considered, so long
as they lead to conclusions consistent with the
admissible evidence adduced [Saez v. Arroyo, G.R. No.
8.  C onsolidation 183533 (2012)]

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HOWEVER, the right to informational privacy may yield balancing of the alleged intrusion upon a person’s
to an overriding legitimate state interest. The private life and the relevant state interest involved
determination of whether the privilege of the writ of [Gamboa v. Chan, G.R. No. 193636 (2012)]
habeas data may be granted entails a delicate

Comparative table of the writs of habeas corpus, amparo, and habeas data
Habeas corpus Amparo Habeas data
a.   All cases of illegal
confinement and
detention by which any
Involves the right to
person is deprived of his
Involves right to life, liberty privacy in life, liberty or
liberty
and security violated or security violated or
b.   Deprivation of rightful
threatened with violation by threatened by an unlawful
custody of any person
an unlawful act or omission of act or omission of a public
including minors from
a public official or employee official or employee, or of a
the person entitled
Nature, scope, or a private individual or private individual or entity
[Sec. 1]
function entity engaged in the gathering,
collecting or storing of
Actual violation before writ
Covers extralegal killings data or information
issues.
and enforced regarding the person,
disappearances or threats family, home and
Note: Villavicencio v. Lukban
thereof [Sec. 1] correspondence of the
(G.R. No. L-14639, 1919) on
aggrieved party [Sec. 1]
applicability of the writ in
case of constructive
restraint.
May not be suspended
except in cases of invasion Shall not diminish, increase Shall not diminish,
Limitations or rebellion when public or modify substantive rights increase or modify
safety requires it [Sec. 15, [Sec. 23] substantive rights [Sec. 23]
Art. III, 1987 Const.]
Any aggrieved party may
Petition filed by the aggrieved
file a petition.
party or by any qualified
person or entity in the
However, in cases of
following order:
extralegal killings and
a.   Any member of the
enforced disappearances,
immediate family
the petition may be filed
b.   Any ascendant,
by (also successive):
By a petition signed and descendant or collateral
a.   Any member of the
verified by the party for relative of the aggrieved
immediate family of
Who may file whose relief it is intended, or within the 4th civil
the aggrieved
by some person on his degree of affinity or
b.   Any ascendant,
behalf [Sec. 3] consanguinity
descendant or
c.   Any concerned citizen,
collateral relative of
organization, association
the aggrieved party
or institution
within the fourth civil
degree of
Filing by the aggrieved
consanguinity or
suspends the right of all
affinity
others [Sec. 2]
[Sec. 2]
a.   SB, CA, SC, or any justice a.   At the option of
a.   SC or any member
of such courts petitioner, RTC where:
Where filed thereof, on any day and
b.   RTC of place where the 1.   Petitioner resides
at any time
threat, act, or omission or

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b.   CA or any member was committed or any 2.   Respondent

thereof in instances element occurred resides or
authorized by law [Sec. 3] 3.   That which has
c.   RTC or a judge thereof, jurisdiction over
on any day and at any the place where
time, enforceable only the data or
within his judicial district information is
[Sec. 2] gathered,
d.   MTC or first level courts collected or
in the absence of RTC stored
judges in a judicial b.   SC, CA, or SB – If
region [Sec. 35, B.P. 129] public data files of
government offices
[Sec. 3]
If SC/CA issued, anywhere
in Philippines.

If granted by the RTC or

judge thereof, it is
Anywhere in Philippines Anywhere in Philippines
Where enforceable enforceable in any part of
[Sec. 4] [Sec. 3]
the judicial region [Sec. 21,
B.P. 129 which modified the
term judicial district in Sec.
2, Rule 102 into judicial
region] where the judge sits
If issued by:
If issued by:
a.   SC or any of its
a.   SC or any of its justices,
justices, before such
returnable before such
Court or any justice
court or any justice
thereof, or CA/SB or
thereof, or before the
any of its justices, or
CA/SB or any of their
the RTC of the place
justices, or to any RTC of
where the petitioner
the place where the
If issued by: or respondent
threat, act or omission
a.   SC/CA, or a member resides/has
was committed or any of
thereof, returnable jurisdiction over the
its elements occurred
before such court or any place where the data
b.   CA/SB or any of their
member thereof or an or information is
Where returnable justices, returnable
RTC gathered, stored or
before such court or any
b.   RTC, or a judge thereof, collected
justice thereof, or to any
returnable before b.   CA/SB or any of its
RTC of the place where
himself justices, before such
the threat, act, or
[Sec. 2] court or any justice
omission was committed
thereof, or RTC (same
or any of its elements
with scenario SC
occurred
issued and then
c.   RTC or any judge
returned in RTC)
thereof, returnable
c.   RTC, returnable
before such court or
before such court or
judge
judge
[Sec. 3]
[Sec. 4]
None for indigent
Upon the final disposition of
Petitioner shall be exempted petitioner
such proceedings the court
from the payment of the
Docket fees or judge shall make such
docket and other lawful fees Petition shall be docketed
order as to costs as the case
and acted upon
requires [Sec. 19]
immediately, without

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Court, justice or judge shall prejudice to subsequent

docket the petition and act submission of proof of
upon it immediately [Sec 4] indigency not later than 15
days from filing [Sec. 5]
Verified and written
Signed and verified and shall petition shall contain
allege a.   Personal
a.   The personal circumstances of
Signed and verified either by
circumstances of the petitioner and
the party for whose relief it
petitioner respondent
is intended or by some
b.   Name or appellation and b.   Manner the right to
person on his behalf, setting
circumstances of the privacy is violated or
forth
respondent threatened and its
a.   The person in whose
c.   The right to life, liberty, effects
behalf the application
and security violated or c.   Actions and recourses
is made is imprisoned
Essential threatened with violation taken by the
or restrained of his
allegations/ d.   The investigation petitioner to secure
liberty
Contents of petition conducted, if any, plus the data or
b.   Name of the person
circumstances of each information
detaining another or
e.   The actions and d.   The location of the
assumed appellation
recourses taken by the files, registers, or
c.   Place where he is
petitioner databases, the
imprisoned or
f.   Relief prayed for government office,
restrained of his liberty
and the person in
d.   Cause of detention
May include a general prayer charge or control
[Sec. 3]
for other just and equitable e.   The reliefs prayed for
reliefs f.   Such other relevant
[Sec. 5] reliefs as are just and
equitable [Sec. 6]
Court or judge must, when a
petition is presented and it
appears that it ought to Upon filing of the petition,
issue, grant the same and the court, justice, or judge
Upon the filing of the petition,
then: shall immediately order
the court, justice, or judge
•   the clerk of court (CoC) the issuance of the writ if
shall immediately order the
shall issue the writ on its face it ought to
issuance of the writ if on its
under the seal of the issue:
face it ought to issue:
court or •   CoC shall issue the
•   CoC shall issue the writ
•   in case of emergency, writ under the seal of
under the seal of the
the judge may issue the the court and cause it
court or
When proper writ under his own to be served within 3
•   In case of urgent days from issuance or
hand, and may depute
necessity, the justice or
any officer or person to •   In case of urgent
the judge may issue the
serve it necessity, the justice
writ under his or her own
or judge may issue the
hand, and may deputize
Also proper to be issued writ under his or her
any officer or person to
when the court or judge has own hand, and may
serve it
examined into the cause of deputize any officer or
[Sec. 6]
restraint of the prisoner, and person to serve it
is satisfied that he is [Sec. 7]
unlawfully imprisoned
[Sec. 5]
The writ shall be served upon The writ shall be served
Writ may be served in any
the respondent by a judicial upon the respondent by a
Service province by the (a) sheriff,
officer or by a person judicial officer or by a
(b) other proper officer, or
deputized by the court, justice person deputized by the

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(c) person deputed by the or judge who shall retain a court, justice or judge who
court or judge. copy on which to make a shall retain a copy on
return of service. which to make a return of
Service is made by leaving service.
the original with the person In case the writ cannot be
to whom it is directed and served personally on the In case the writ cannot be
preserving a copy on which respondent, the rules on served personally on the
to make return of service. substituted service shall respondent, the rules on
If that person cannot be apply [Sec. 8] substituted service shall
found, or has not the apply [Sec. 9]
prisoner in his custody,
service shall be made on any
other person having or
exercising such custody
[Sec. 7]
A public official or
employee or a private
Respondent is a public official
May or may not be an officer individual or entity
Respondent or employee or private
[Sec. 6] engaged in gathering,
individual or entity [Sec. 1]
collecting or storing data
[Sec. 1]
The officer to whom the writ
is directed shall convey the
person so imprisoned or
restrained before:
•   the judge allowing the
writ, or
•   in his absence or
disability, before some
other judge of the same
court
How executed and Respondent files the return Respondent files the
returned on the day specified in the [Sec. 9] return [Sec. 10]
writ, unless person directed
to be produced is sick or
infirm, and cannot, without
danger, be brought therein.
Officer shall then make due
return of the writ, with the
day and cause of the caption
and restraint according to
the command thereof
[Sec. 8]
On the day specified on the Within 5 working days after
When to file return Same as Amparo [Sec. 10]
writ [Sec. 8] service of the writ [Sec. 9]
When the person to be Within 5 working days after a.   Lawful defenses such
produced is imprisoned or service of the writ, the as national security,
restrained by an officer, the respondent shall file a verified state secrets,
person who makes the written return together with privileged
return shall state, and in supporting affidavits which communications,
Contents of return other cases the person in shall, contain confidentiality of the
whose custody the prisoner a.   Lawful defenses source of information
is found shall state in b.   The steps or actions of media etc.
writing to the court or judge taken to determine the b.   In case of respondent
before whom the writ is fate or whereabouts of in charge, in
returnable: the aggrieved party possession or in

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

a.   Truth of custody/power c.   All relevant information control of the data or

over the aggrieved in the possession of the information subject of
party respondent pertaining to the petition
b.   If he has custody or the threat, act or 1.   A disclosure of
power, or under omission against the the data or
restraint, the authority aggrieved party information about
and the cause thereof, d.   If the respondent is a the petitioner, the
with a copy of the writ, public official or nature of such
order, execution or employee, the return data or
other process, if any shall further state acts information, and
upon which the party is 1.   To verify identity of the purpose for its
held aggrieved party collection
c.   If the party is in his 2.   To recover and 2.   The steps or
custody or power, and preserve evidence actions taken by
is not produced, 3.   To identify and the respondent to
particularly the nature collect witness ensure the
and gravity of the statements security and
sickness or infirmity 4.   To determine cause, confidentiality of
d.   If he has had the party manner, location, the data or
in his custody or power, and time of death or information
and has transferred disappearance 3.   The currency and
such custody or 5.   To identify and accuracy of the
restraint to another, apprehend persons data or
particularly to whom, involved information held
at what time, for what 6.   To bring suspected 4.   Other allegations
cause, and by what offenders before a relevant to the
authority such transfer competent court resolution of the
was made [Sec.9] proceeding
[Sec. 10] [Sec.10]
Return or statement shall be
signed and sworn to by the
person who makes it if the Respondent shall file a Respondent shall file a
prisoner is not produced, verified written return verified written return
Formalities of return
unless the return is made together with supporting together with supporting
and signed by a sworn affidavits [Sec. 9] affidavits [Sec. 10]
public officer in his official
capacity [Sec. 11]
a.   CoC who refuses to a.   Contempt without
issue the writ after prejudice to other a.   Contempt without
allowance and demand, disciplinary actions prejudice to other
or 1.   CoC who refuses to disciplinary actions
b.   A person to whom a writ issue the writ after its 1.   CoC who refuses
is directed, who allowance, or to issue the writ
1.   neglects/refuses to 2.   A deputized person after its
obey or make who refuses to serve allowance, or
Penalties for return of the same the writ 2.   A deputized
refusing to issue or according to the [Sec. 7] person who
serve OR for faulty command thereof, b.   Contempt punishable by refuses to serve
return 2.   or makes false imprisonment or a fine the writ
return, 1.   A respondent who [Sec. 8]
3.   or upon demand refuses to make a b.   Contempt punishable
made by or on return, or by imprisonment or a
behalf of the 2.   A respondent who fine
prisoner, refuses to makes a false return, 1.   A respondent who
deliver to the or refuses to make a
person demanding, 3.   Any person who return, or
within 6 hours a otherwise disobeys

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true copy of the or resist a lawful 2.   A respondent who

warrant or order of process or order of makes a false
commitment, the court return, or
[Sec. 16] 3.   Any person who
shall forfeit to the party otherwise
aggrieved the sum of P1000, disobeys or resist
recoverable in a proper a lawful process
action, and may also be or order of the
punished for contempt court
[Sec. 16] [Sec. 11]
No, not even on highly Yes, for justifiable reasons
meritorious grounds. [Sec. 10]
Is period of return
Note: Motion for extension of Note: Motion for extension
extendable?
time to file a return is a of time to file a return is a
prohibited pleading prohibited pleading [Sec.
[Sec. 11] 13]
Is a general denial
Not allowed [Sec. 9] Not allowed [Sec. 10]
allowed?
Defenses not Deemed waived if not raised
pleaded in return [Sec. 10]
Court, judge, or justice
shall hear the motion ex
parte, granting the
petitioner such reliefs as
Court or justice shall proceed
Effect of failure to the petition may warrant
to hear the petition ex parte
file return
[Sec. 12]
Unless the court in its
discretion requires the
petitioner to submit
evidence [Sec. 14]
Summary.
Summary.
However, the court, justice, or
judge may call for a With possibility of
preliminary conference to preliminary conference
simplify the issues and look at similar to Amparo [Sec. 14]
possibility of obtaining
Nature of Hearing stipulations and admissions Hearing in chambers may
from the parties. be conducted where
respondent invokes the
Hearing shall be from day to defense of national
day until completed same security or state secrets, or
priority as petitions for the data is of privileged
Habeas corpus character [Sec. 12]
[Sec. 13]
As specified in the writ, not
As specified in the writ, not
Date and time of As specified in the writ [Sec. later than 10 working days
later than 7 days from the
hearing 8] from the date of issuance
issuance of the writ [Sec. 6]
writ [Sec. 7]
In custody of minors a a.   Motion to dismiss
motion to dismiss, except b.   Motion for extension of
Prohibited pleadings on the ground of lack of time to file opposition, Same as Amparo [Sec. 13]
jurisdiction [Sec. 6, Rule on affidavit, position paper
Custody of Minors and WHC] and other pleadings

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c.   Dilatory motion for

postponement
d.   Motion for bill of
particulars
e.   Counterclaims or cross-
claims
f.   Third-party complaint
g.   Reply
h.   Motion to declare
respondent in default
i.   Intervention
j.   Memorandum
k.   Motion for
reconsideration of
interlocutory orders or
interim relief orders
l.   Petition for certiorari,
mandamus, or
prohibition
[Sec. 11]
Substantial evidence
a.   if respondent is a private
individual or entity, Substantial evidence
Burden of Clear and convincing
ordinary diligence required to prove the
proof/Standard of evidence [Dizon v. Eduardo,
b.   if public official or allegations in the petition
diligence G.R. No. L-59118 (1988)]
employee, extraordinary [Sec. 16]
diligence
[Sec. 17]
Yes. Consonant with Sec. 13, Public official or employee
stating that if warrant of cannot invoke the
Presumption of
commitment is in pursuance presumption that official duty
official duty
with law, serves as prima has been regularly performed
facie cause of restraint [Sec. 17]
Upon filing of the petition or
at any time before final
judgment, the court, justice or
judge may grant any of the
following reliefs:
Interim reliefs a.   temporary protection
order
b.   inspection order
c.   production order
d.   witness protection order
[Sec. 14]
Within 10 days from the
Within 10 days from the time
time the petition is
Judgment the petition is submitted for
submitted for decision
decision [Sec. 18]
[Sec. 16]
Within 48 hours from notice 5 working days from the date 5 working days from the
of the judgment of final of notice of adverse judgment date of notice of adverse
Appeal
order appealed [Sec. 39, to the SC under Rule 45 [Sec. judgment to the SC under
B.P. 129] 19] Rule 45 [Sec. 19]
Institution of
Not precluded Not precluded
separate actions

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

Consolidated with a
Consolidated with a criminal
Consolidation of criminal action filed
action filed subsequent to the
actions subsequent to the petition
petition [Sec. 23]
[Sec. 21]
No more separate petition
Effect of filing shall be filed. Reliefs
Same as Amparo [Sec. 21]
criminal action available by motion in the
criminal case [Sec. 22]

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

  Change of Name
1.   Distinctions between the Rules [103, 108, R.A. 9048];
Administrative Corrections
[De Leon 537-540]

Rule 103 R.A. 9048, as amended Rule 108

Change of first name or
nickname, day or month
Change of full name or Correction of substantial
(not year) of birthdate,
Scope surname (substantial errors or cancellation of
gender, and correction of
corrections) entries in Civil Registry
clerical errors of entries in
Civil Registry
Judicial: hearing Administrative: no hearing Judicial: Hearing
Nature of proceedings
necessary required necessary; adversarial
Any person having direct Any person interested in
and personal interest in any act, event, order or
A person desiring to correction of a clerical or decree concerning civil
Who may file
change one’s name typographical error in an status of persons which
entry and/or change of has been recorded in civil
first name or nickname register
Signed and verified
Initiatory pleading Sworn affidavit Verified petition
petition
Local civil registry office of
city or municipality where
record being sought to be
corrected or changed is
kept
RTC of province in which RTC of city or province
Where to file petitioner resided for 3 where corresponding civil
Local civil registrar of
years prior to filing registry is located
place where interested
party is presently residing
or domiciled

Philippine consulate
a.   Births
a.   Correction of clerical b.   Marriage
or typographical c.   Deaths
errors, and d.   Legal separations
b.   Change of e.   Judgments of
Correction of clerical or 1.   First name or annulments of
typographical errors in nickname marriage
any entry in civil registry 2.   Day and month in f.   Judgments declaring
documents, except date of birth, or marriages void from
Coverage
corrections involving 3.   Sex of a person the beginning
change in sex, age, where it is g.   Legitimations
nationality and status of a patently clear h.   Adoptions
person that there was a i.   Acknowledgments of
clerical or natural children
typographical j.   Naturalization
error or mistake k.   Election, loss or
in the entry recovery of citizenship
l.   Civil interdiction

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m.   Judicial
determination of
filiation
n.   Voluntary
emancipation of a
minor
o.   Changes of name

Procedure are contained in the body of the petition [Go Chiu Beng
Filing of petition for change of name [Sec. 1] v. Republic, G.R. No. L-29574 (1972)]
¯
Failure to implead the local civil registrar as well as all
Court by order fixes date and place of hearing [Sec.
persons who have or claim any interest did not render
3]
the petition fatally defective. Cagandahan furnished
¯ the local civil registrar a copy of the petition, the order
Publication of court order fixing date and place of to publish, and all pleadings, orders or processes in
hearing, at least once a week for 3 consecutive the course of the proceedings. There was therefore
weeks in a newspaper of general circulation in the substantial compliance of the provisions of Rules 103
province [Sec. 3] and 108 [Republic v. Cagandahan, G.R. No. 166676
¯ (2008)]
Hearing on the petition [Sec. 4]
Change of name requires adversarial proceedings
¯ In order to justify a request for change of name, there
Judgment granting/denying change of name [Sec. must be a proper and compelling reason for the
5] change and proof that the person requesting will be
¯ prejudiced by the use of his official name. To assess
Furnishing of judgment on the civil registrar, who the sufficiency of the grounds invoked therefor, there
shall forthwith enter the same [Sec. 5] must be adversarial proceedings [Republic v
Mercadera, G.R. No. 186027 (2010)]
What is changed
The name that can be changed is the name that
appears in the civil register, and not in the baptismal
2.  G rounds for Change of
certificate or that which the person is known in the Name
community [No Yao Siong v. Republic, G.R. No. L-
20306 (1966)] a.   The name is ridiculous, tainted with dishonor or
extremely difficult to write or pronounce
A change of name granted by the court affects only a b.   Change results as a legal consequence of
petitioner. A separate petition for change of name legitimation
must be filed for his/her spouse and children [Secan c.   The change will avoid confusion
Kok v. Republic, G.R. No. L-27621 (1973)] d.   A sincere desire to adopt a Filipino name to erase
signs of former alienage [Uy v. Republic, G.R. No.
Jurisdictional requirements L-22712 (1965)]
An alien may petition for change of name but he must e.   Having continuously used and been known since
be domiciled in the Philippines [Ong Huan Tin v. childhood by a Filipino name, having been
Republic, G.R. No. L-20997 (1967)] unaware of alien parentage [Ang Chay v. Republic,
G.R. No. L-28507 (1970)]
Verification is a formal, not a jurisdictional, [Republic v. Hernandez, G.R. No. 117209 (1996)]
requirement. The lack of verification is not a ground for f.   When the surname causes embarrassment and
dismissing the petition. However, before setting the there is no showing that the desired change of
petition for hearing, the court should have required name was for a fraudulent purpose or that the
the petitioner to have the petition verified [Oshito v. change of name would prejudice public interest
Republic, G.R. No. L-21180 (1967)] [Republic v. Coseteng-Magpayo, G.R. No. 189476
(2011)]
All aliases of the applicant must be set forth in the g.   Intersexuality is a valid ground for change of
petition’s title. Such defect is fatal, even if said aliases name and change of entry of sex in the civil

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

registry. Where the person is biologically or Note: Olaybar is a very rare exception.
naturally intersex the determining factor in his
gender classification would be what the It is undoubtedly true that if the subject matter of a
individual, having reached the age of majority, petition is not for the correction of clerical errors of a
with good reason, thinks of his sex. Sexual harmless and innocuous nature, but one involving
development in cases of intersex persons makes nationality or citizenship, which is indisputably
the gender classification at birth inconclusive. It is substantial as well as controverted, affirmative relief
at maturity that the gender of such persons is cannot be granted in a proceeding which is summary
fixed [Republic v. Cagandahan, G.R. No. 166676 in nature. However, it is also true that a right in law
(2008)] may be enforced and a wrong may be remedied as
long as the appropriate remedy is used. Thus, even
When not proper substantial errors in a civil registry may be corrected
When what is sought to be changed relates to status and the true facts established provided the parties
aggrieved by the error avail themselves of the
Rule 103 cannot be resorted to for expediency if the appropriate adversarial proceedings [Republic v. Kho,
petition substantially seeks to change one’s status G.R. No. 170340 (2007), citing Republic v. Valencia,
from legitimacy to illegitimacy. When a petition for G.R. L-32181 (1986)]
cancellation or correction of an entry in the civil
register involves substantial and controversial The presentation solely of the divorce decree is
alterations including those on citizenship, legitimacy insufficient and that proof of its authenticity and due
of paternity or filiation, or legitimacy of marriage, a execution must be presented, as required under Secs.
strict compliance with the requirements of Rule 108 is 24 and 25 of Rule 132 which provides that a writing or
mandated. [Republic v. Coseteng-Magpayo, G.R. No. document may be proved as a public or official record
189476 (2011); Republic v. Cagandahan, G.R. No. of a foreign country by either (a) an official publication;
166676 (2008)] or (b) a copy thereof attested by the officer having
legal custody of the document. If the record is not kept
Legal separation is not a ground for the female spouse in the Philippines, such copy must be (a) accompanied
to apply for a change of name under Rule 103 [Laperal by a certificate issued by the proper diplomatic or
v. Republic, G.R. No. L-18008 (1962)] consular officer in the Philippine foreign service
stationed in the foreign country in which the record is
A person’s first name cannot be changed on the kept; and (b) authenticated by the seal of his office
ground of sex reassignment [Silverio v. Republic, G.R. [San Luis v. San Luis, G.R. Nos. 133743 and 134029
No. 184689 (2007)] (2007)]

A petition to correct an alleged erroneous entry in The Rule of Declaration of Absolute Nullity of Void
one’s birth certificate pertaining to the date of Marriages and Annulment of Voidable Marriages
marriage of his parents, notwithstanding the fact that (A.M. No. 02-11-10-SC) does not apply in a petition to
it qualifies as a substantial correction, may be filed recognize a foreign judgment relating to the status of
under Rule 108 [Onde v. Office of the Local Civil the marriage where one of the parties is a citizen of a
Registrar, G.R. No. 197174 (2014)] foreign country. Divorce involves the dissolution of a
marriage, but the recognition of a foreign divorce
A petition for cancellation of entries in a marriage decree does not involve the extended procedure under
contract may prosper when the respondent [petitioner A.M. No. 02-11-10-SC or the rules of ordinary trial.
below] was able to show by overwhelming evidence Thus, since the recognition of a foreign judgment only
that no marriage took place and that she was not even requires proof of fact of the judgment, it may be made
aware of such marriage. To be sure, a petition for in a special proceeding for cancellation or correction
correction or cancellation of an entry in the civil of entries in the civil registry under Rule 108 [Fujiki v.
registry cannot substitute for an action to invalidate a Marinay, G.R. No. 196049 (2013)]
marriage. Respondent indeed sought, not the
nullification of the marriage as there was no marriage The second paragraph of Art. 26 of the Family Code
to speak of, but the correction of the record of such now covers even cases where it is the Filipino spouse
marriage to reflect the truth as set forth by the who initiates the proceedings for divorce. When this
evidence. Otherwise stated, in allowing the correction Court recognized a foreign divorce decree that was
of the subject certificate of marriage by cancelling the initiated and obtained by the Filipino spouse and
wife portion thereof, the trial court did not, in any way, extended its legal effects on the issues of child custody
declare the marriage void as there was no marriage to and property relation, it should not stop short in
speak of [Republic v. Olaybar, G.R. No. 189538 (2014)] likewise acknowledging that one of the usual and

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necessary consequences of absolute divorce is the

right to remarry. Indeed, there is no longer a mutual   Absentees
obligation to live together and observe fidelity. When
the marriage tie is severed and ceased to exist, the civil 1.   Purpose of the Rule
status and the domestic relation of the former spouse
change as both of them are freed from the marital The declaration of absence made in accordance with
bond [Republic v. Manalo, G.R. No. 221029 (2018)] the provisions of the Civil Code has for its sole purpose
to enable the taking of the necessary precautions for
the administration of the estate of the absentee. Since
Roberto left no properties, there was no need to
judicially declare him absent [In Re Petition for
Declaration of Absence of Roberto L. Reyes, G.R. No. L-
32036 (1986)]

General rule: No independent action for declaration of

presumption of death [In Re Petition for the
Presumption of Death of Nicolai V. Szatraw, G.R. No. L-
1780 (1948)]

Exception: For purpose of contracting a second

marriage [Art. 41, FC]

2.  W ho May File; When to

File
PETITION FOR APPOINTMENT OF
REPRESENTATIVE

When filed
To provisionally represent absentee when a person
a.   Disappears from his domicile, his whereabouts
being unknown, and
b.   Has not left an agent to administer his property or
the power conferred upon the agent has expired
[Sec. 1, Rule 107]

Who may file

a.   Any interested party
b.   Relative
c.   Friend
[Sec. 1, Rule 107]

Petition for declaration of absence and appointment

of trustee or administrator
When filed
a.   After 2 years
1.   From disappearance of and without any news
from absentee, or
2.   Since the receipt of the last news about him
b.   After 5 years If the absentee left an administrator
of his property
[Sec. 2, Rule 107]

Who may file

a.   Spouse present

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b.   Heirs instituted in a will, who may present an

authentic copy of the same   Cancellation or
c.   Relatives who would succeed by the law of
intestacy
Correction of Entries in
d.   Those who have over the property of the absentee
some right subordinated to the condition of his
the Civil Registry
death
[Sec. 2, Rule 107] 1.   Entries Subject To
Who may be appointed
Cancellation or Correction
a.   Spouse present shall be preferred when there is under Rule 108
no legal separation
b.   Any competent person if absentee left no spouse, a.   Births
or spouse is incompetent b.   Marriage
[Sec. 7, Rule 107] c.   Deaths
d.   Legal separations
Termination of administration e.   Judgments of annulments of marriage
Trusteeship or administration of property of absentee f.   Judgments declaring marriages void from the
shall cease upon order of court if beginning
a.   Absentee appears personally or through an agent g.   Legitimations
b.   Absentee’s death is proved and heirs appear h.   Adoptions
c.   Third person appears, showing by proper i.   Acknowledgments of natural children
document that he acquired title over the property j.   Naturalization
of the absentee k.   Election, loss or recovery of citizenship
[Sec. 8, Rule 107] l.   Civil interdiction
m.   Judicial determination of filiation
Effects of reappearance n.   Voluntary emancipation of a minor
If the absentee appears, or without appearing his o.   Changes of name
existence is proved, he shall recover his property in the [Sec. 2, Rule 108]
condition in which it may be found, and the price of any
property that may have been alienated or the property Cancellation or correction of entries in the civil
acquired therewith; but he cannot claim either fruits or registry requires adversarial proceedings
rents [Art. 392, NCC] Corrections of entries in the civil register including
those on citizenship, legitimacy of paternity or
The subsequent marriage shall be automatically filiation, or legitimacy of marriage, involve substantial
terminated by the recording of the affidavit of alterations. Substantial errors in a civil registry may be
reappearance of the absent spouse, unless there is a corrected and the true facts established provided the
judgment annulling the previous marriage or parties aggrieved by the error avail themselves of the
declaring it void ab initio [Art. 42, FC] appropriate adversary proceedings [Onde v Office of
the Local Civil Registrar of Las Piñas, G.R. No. 197174
(2014)]

Substantial Change – change that affects the civil

status, citizenship, or nationality of a party [Republic v.
Bautista, G.R. No. L-35316 (1987)]

One where the trial court has conducted proceedings

where all relevant facts have been fully and properly
developed, where opposing counsel have been given
opportunity to demolish the opposite party’s case, and
where the evidence has been thoroughly weighed and
considered [Eleosida v. Local Civil Registrar of Quezon
City, G.R. No. 130277 (2002)]

A petition for cancellation of entries in a marriage

contract may prosper when the respondent [petitioner
below] was able to show by overwhelming evidence

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that no marriage took place and that she was not even will result in changes in the status from “legitimate”
aware of such marriage. To be sure, a petition for to “illegitimate” and the citizenship from “Chinese” to
correction or cancellation of an entry in the civil “Filipino”, the petitioner should have impleaded not
registry cannot substitute for an action to invalidate a only the local civil registrar but also her parents and
marriage. Respondent indeed sought, not the siblings as they are affected by the changes or
nullification of the marriage as there was no marriage corrections. It is clear therefore that when the petition
to speak of, but the correction of the record of such for cancellation or correction of an entry in the civil
marriage to reflect the truth as set forth by the register involves substantial and controversial
evidence. Otherwise stated, in allowing the correction alterations, including those on citizenship, legitimacy
of the subject certificate of marriage by cancelling the or paternity or filiation, or legitimacy of marriage, a
wife portion thereof, the trial court did not, in any way, strict compliance with the requirements of Rule 108 is
declare the marriage void as there was no marriage to mandated, failing in which the petition must be
speak of. [Republic v. Olaybar, G.R. No. 189538 (2014)] dismissed. [Republic v. Lagunsay Uy, G.R. No. 198010
(2013)]
Note: Olaybar is a very rare exception.
Such failure, however, may be excused
Parties to be impleaded a.   where there is the publication of the notice of
a.   Civil registrar, and hearing, and earnest efforts were made by
b.   All persons who have or claim any interest which petitioners in bringing to court all possible
would be affected interested parties
[Sec. 3, Rule 108] b.   where the interested parties themselves initiated
the corrections proceedings
Notice and publication of order fixing time and place c.   when there is no actual or presumptive awareness
for hearing of the existence of the interested parties, or
Reasonable notice to persons named in the petition, d.   when a party is inadvertently left out
and publication once a week for 3 consecutive weeks The procedure recited in Rule 103 regarding change of
[Sec. 4, Rule 108] name and in Rule 108 concerning cancellation or
correction of entries in civil registry are separate and
A reading of Sections 4 and 5 shows that the Rules distinct. They may not be substituted one for the other.
mandate two sets of notices to different potential If both reliefs are to be sought in the same proceedings
oppositors one given to the persons named in the all the requirements of Rule 103 and 108 must be
petition and another given to other persons who are complied with [Republic v. Valencia, G.R. No. L-32181
not named in the petition but nonetheless may be (1986)]
considered interested or affected parties. Summons
must, therefore, be served not for the purpose of Grounds for cancellation or correction
vesting the courts with jurisdiction but to comply with Upon good and valid grounds [Sec. 2]
the requirements of fair play and due process to afford
the person concerned the opportunity to protect his
interest if he so chooses [Republic v. Lugsanay-Uy, G.R.
2.  R .A. 9048, as amended by
No. 198010 (2013)] R.A. 10172
Opposition Procedure
Period to file Within 15 days from notice of petition, or Filing of petition for the correction of a clerical or
from last date of publication of notice [Sec. 5, Rule typographical error in an entry and/or change of
108] first name or nickname in the civil register, with its
supporting documents [Sec. 5]
May be filed by
a.   Civil registrar, and ¯
b.   Any person having or claiming any interest under The city or municipal civil registrar or the consul
entry whose cancellation or correction is sought general shall examine the petition and its
[Sec. 5, Rule 108] supporting documents [Sec. 6]
¯
Effect of failure to implead and notify the affected or If sufficient in form and substance, the examiner
interested parties shall post the petition in a conspicuous place for 10
A petition which seeks the correction of entries in the consecutive days [Sec 6]
birth certificate pertaining to first name, surname and ¯
citizenship is not merely clerical. When the corrections

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In case of a petition for change of first name, the R.A. 9048 proceeding merely a summary
petition has to be published once a week for 2 proceeding
consecutive weeks in a newspaper of general R.A.9048 refers specifically to the administrative
circulation, with the petitioner also submitting a summary proceeding before the local civil registrar [Re
certification that he has no pending case or prior Final Report On The Judicial Audit Conducted At The
criminal record [Sec. 6] Regional Trial Court, Br. 67, Paniqui, Tarlac, Adm.
¯ Matter No. 06-7-414-RTC (2007)]
Within 5 working days after the completion of the
posting and or publication requirement, the city or Ground for cancellation or correction
municipal civil registrar or the consul general shall Clerical or typographical errors
render a decision [Sec. 6]
Meaning of clerical or typographical error
A mistake committed in the performance of clerical
Entries subject to change/cancellation or correction
work in writing, copying, transcribing or typing an
a.   Clerical or typographical errors, and
entry in the civil register that
b.   Change of
a.   Is harmless and innocuous, such as
1.   First name or nickname
1.   Misspelled name or place of birth
2.   Day and month in date of birth, or
2.   Mistake in entry of day and month in date of
3.   Sex of a person where it is patently clear that
birth or sex or the like
there was a clerical or typographical error or
b.   Is visible to the eyes or obvious to the
mistake in the entry,
understanding
can be corrected or changed by the concerned city or
c.   Can be corrected or changed only by reference to
municipal civil registrar or consul general
other existing record or records
[Sec. 1]
d.   Does not involve the change of nationality, age,
status or sex of the petitioner
If the petition is granted
[Sec. 2(3), R.A. 9048, as amended]
The civil registrar general shall, within ten (10) working
days from receipt of the decision granting a petition,
Ground for change of first name or nickname:
exercise the power to impugn such decision by way of
a.   The petitioner finds the first name or nickname to
an objection based on the following grounds
be ridiculous, tainted with dishonor or extremely
a.   The error is not clerical or typographical
difficult to write or pronounce
b.   The correction of an entry or entries in the civil
b.   The new first name or nickname has been
register is substantial or controversial as it affects
habitually and continuously used by the petitioner
the civil status of a person, or
and he has been publicly known by that by that
c.   The basis used in changing the first name or
first name or nickname in the community, or
nickname of a person does not fall under Sec. 4.
c.   The change will avoid confusion
The civil registrar general shall immediately notify the
[Sec. 4]
city or municipal civil registrar or the consul general of
the action taken on the decision. Upon receipt of the
notice thereof, the city or municipal civil registrar or 3.  R.A. 9048 vis-à-vis Rule
the consul general shall notify the petitioner of such
action. 103 and Rule 108
If the civil registrar general fails to exercise his power The intent and effect of the law is to exclude the
to impugn the decision of the city or municipal civil change of first name from the coverage of Rules 103
registrar or of the consul general within the period (Change of Name) and 108 (Cancellation or Correction
prescribed herein, such decision shall become final of Entries in the Civil Registry) of the ROC, until and
and executory. unless an administrative petition for change of
name is first filed and subsequently denied. In sum,
The petitioner may seek reconsideration with the civil the remedy and the proceedings regulating change of
registrar general or file the appropriate petition with first name are primarily administrative in nature, not
the proper court [Sec. 7] judicial [Silverio v. Republic, G.R. No. 174689 (2007)]

If the petition is denied This does not mean, however, that the trial courts are
The petitioner may either appeal the decision to the divested of its authority or jurisdictions over petitions
civil registrar general or file the appropriate petition for correction of entries and change of first name or
with the proper court [Sec 7] nickname. It only means that the local civil registrar
has primary, not exclusive, jurisdiction over such

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U.P. LAW BOC SPECIAL PROCEEDINGS REMEDIAL LAW

petitions for correction of clerical errors and change of

first name or nickname. RA 9048 was enacted to give
the people an option to have the erroneous entries in
their civil records corrected via an administrative
proceeding before the local civil registrar that is less
expensive and more expeditious.

Nonetheless, it would be inappropriate to apply the

procedure prescribed in RA 9048 to petitions for the
correction of entries in the civil registry before the
courts. The promulgation of rules of procedure for
courts of justice is the exclusive domain of the
Supreme Court [Re Final Report On The Judicial Audit
Conducted At The Regional Trial Court, Br. 67, Paniqui,
Tarlac, Adm. Matter No. 06-7-414-RTC (2007)]

SO, if one wants to either

•   Change one’s first name or nickname and the
ground therefor is one of those stated in Sec. 4,
R.A. 9048, or
•   Cancel and or correct any entries in the civil
registry that is clearly a clerical or typographical
error
REMEDY is R.A. 9048

If application is denied, one can either

•   appeal the decision to the proper judicial court, or
•   avail of Rule 103 or Rule 108, filing the appropriate
petition before the proper court

HOWEVER, if one wants to change one’s name (first

name, surname or both) and the ground therefor is
one of those allowed by law and jurisprudence,
REMEDY is Rule 103

AND, if one wants to cancel and or correct any entries

in the civil registry AND the correction and
cancellation entails a modification or increase in
substantive rights, REMEDY is Rule 108

NONETHELESS, whatever the reason for the change,

correction or cancellation, one has the option to just
go directly to the court via Rule 103 or Rule 108.

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

CRIMINAL PROCEDURE
Remedial Law

Page 283 of 438

U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

VII.  CRIMINAL authority to hear and determine a cause [Gomez v.

Montalban, G.R. No. 174414 (2008)]

PROCEDURE The averments in the complaint or information

characterize the crime to be prosecuted [Brodeth v.
  General Matters People, G.R. No. 197849 (2017)], and the court before
which the case must be tried [Avecilla v. People, G.R,
No. 46370 (1992)]
1.   Jurisdiction over Subject
Jurisdiction cannot be fixed by the will of the parties;
Matter and Jurisdiction nor be acquired through waiver nor enlarged by the
omission of the parties; nor conferred by any
over Person of the acquiescence of the court [Gomez-Castillo v.
Accused Distinguished; Commission on Elections, G.R. No. 187231 (2010)], or
by mere administrative policy of any trial court [Cudia
Territorial Jurisdiction v. Court of Appeals, G.R. No. 110315 (1998)]

Jurisdiction over Statute applicable

Jurisdiction over
person of the Jurisdiction of a court to try a criminal action is
subject matter
accused determined by the law in force at the time of the
Refers to the Refers to the institution of the action, and not the law in force at the
authority of the authority of the time of the commission of the crime [People v. Lagon,
Definition
court to hear and court over the G.R. No. 45815 (1990)]
decide the case person charged
May be acquired Imposable penalty
by the arrest of In determining whether or not the court has
the accused, or jurisdiction over an offense, we consider the penalty
Conferred by law; by consent of the which may be imposed upon the accused for the
How cannot be accused, or by charge in the complaint and not the actual penalty
acquired conferred by the waiver of imposed after the trial [People v. Purisima, G. R. No. L-
parties objections as 40902 (1976)]
when the
accused enters Principle of adherence of jurisdiction
his plea General rule: Under the principle of adherence of
Cannot be jurisdiction or continuing jurisdiction, once a court
waived by the acquires jurisdiction over a controversy, it shall
parties; even on continue to exercise such jurisdiction until the final
appeal and even determination of the case [Mendoza v. Comelec, G.R.
if the reviewing No. 188308 (2009)]
Right to object
parties did not
may be waived;
raise the issue of It is not affected by
Waiver of failure of the
jurisdiction, the 1.   A subsequent valid amendment of the
objection accused to object
reviewing court is information [People v. Chupeco, G.R. No. L-19568
in time would
not precluded (1964)]; or
constitute waiver
from ruling that 2.   A new law vesting jurisdiction over such
the lower court proceedings in another tribunal [Palana v. People,
had no G. R. No. 149995 (2007)]
jurisdiction over
the case Exceptions: The succeeding statute
1.   expressly provides, or
On jurisdiction over the subject matter, see Garcia v. 2.   is construed to the effect that it is intended to
Ferro Chemicals, Inc. [G.R. No. 172505 (2014)]; on operate to actions pending before its enactment
jurisdiction over the person, see Santiago v. Vasquez [Palana v. People, G. R. No. 149995 (2007)]
[G.R. No. 99289-90 (1993)]
b.   JURISDICTION OVER THE PERSON OF THE
a.   JURISDICTION OVER SUBJECT MATTER ACCUSED
This refers to the right to act or the power and

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The person charged with the offense must have been any one of its essential ingredients took place within
brought in to its forum for trial the territorial jurisdiction of the court. Thus, it cannot
1.   Forcibly by warrant of arrest; or take jurisdiction over a person charged with an offense
2.   Voluntary appearance or submission of the allegedly committed outside of the limited territory
accused to the jurisdiction of the court [Uy v. CA, G.R. No. 119000 (1997)] One cannot be held
[Antiporda v. Garchitorena, G.R. No. 133289 (1999), to answer for any crime committed by him except in the
citing Arula v. Espino, G.R. No. L-28949 (1969)] jurisdiction where it was committed [People v.
Mercado, G.R. No. L-2760 (1950)]
Voluntary appearance of the accused is
accomplished by
1.   Filing pleadings seeking affirmative relief
2.  R equisites for Exercise of
2.   Giving bail Criminal Jurisdiction
[Santiago v. Vasquez, G.R. No. 99289-90 (1993)]
Criminal jurisdiction
There is no voluntary appearance under item (a) The authority to hear and try a particular offense and
above in case of special appearance to challenge the impose the punishment for it [People v. Mariano, G.R.
jurisdiction of the court over the person [Garcia v. No. L-40527 (1976)]
Sandiganbayan, G.R. Nos. 170122 & 171381 (2009)],
e.g. a motion to quash Requisites
1.   a complaint on the ground of lack of jurisdiction a.   Subject matter jurisdiction: the offense is one
over the person of the accused because failure to which the court is by law authorized to take
file would be a waiver of the defense of lack of cognizance of
jurisdiction over the person, or b.   Territorial jurisdiction: the offense must have
2.   the warrant of arrest because it is the very legality been committed within its territorial jurisdiction
of the court process forcing the submission of the c.   Jurisdiction over the person: the person charged
person of the accused that is the very issue in the with the offense must have been brought in to its
motion to quash a warrant of arrest forum for trial, forcibly by warrant of arrest or
[Miranda v. Tuliao, G.R. No. 158763 (2006)] upon his voluntary submission to the court.
All three requisites must concur before a court can
Voluntary surrender as a mitigating circumstance acquire jurisdiction to try a case
When after the commission of the crime and the [Antiporda v. Garchitorena, G.R. No. 133289
issuance of the warrant of arrest, the accused (1999), citing Arula v. Espino, G.R. No. L-28949
presented himself in the municipal building to post (1969)]
the bond for his temporary release, voluntary
surrender is mitigating. The fact that the order of
arrest had already been issued is no bar to the 3.  Jurisdiction of Criminal
consideration of the circumstances because the law Courts
does not require that the surrender be prior to the
order of arrest [Rivera v. CA, G.R. No. 125867 (2000), Regular (civilian) courts
citing People v. Yecla (erroneously referred to as Yeda), MTC/MeTC/MCTC
G.R. No. 46612 (1939) and People v. Turalba, G.R. No. Except in cases falling within the exclusive original
L-29118 (1974)] jurisdiction of Regional Trial Courts and of the
Sandiganbayan, the MTC/MeTC/MCTC shall exercise
c.   TERRITORIAL JURISDICTION exclusive original jurisdiction over:
a.   All violations of city or municipal ordinances
The place where the criminal offense was committed committed within their respective territorial
not only determines the venue of the action but is an jurisdiction
essential element of jurisdiction [Alfelor v. Intia G.R. b.   All offenses punishable with imprisonment not
No. L-27590 (1976)] exceeding 6 years irrespective of the amount of
fine, and regardless of other imposable accessory
This is to be determined by the facts alleged in the or other penalties, including the civil liability
complaint or information as regards the place where arising from such offenses or predicated thereon,
the offense charged was committed [Buaya v. Polo, irrespective of kind, nature, value, or amount
G.R. No. 167764 (2009)] thereof
c.   Over offenses involving damage to property
For jurisdiction to be acquired by courts in criminal through criminal negligence
cases, the offense should have been committed or

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

[Sec. 32, B.P. 129, as amended by R.A. 7691] amended by R.A. 10630], in places where there
d.   Concurrent original jurisdiction with RTCs over are no family courts [Sec. 4(g), R.A. 9344]
violations of R.A. 7610 (Child Abuse Act), as d.   Exclusive jurisdiction over drug-related cases
amended, in cities or provinces where there are no [Secs. 20, 61, 62, 90, R.A. 9165, see De Lima v.
family courts yet, depending on the penalties Guerrero, G.R. No. 229781 (2017)]
prescribed for the offense charged [Sec. 16-A, R.A. e.   Concurrent original jurisdiction with MTCs over
7610, as amended by R.A. 9231] violations of R.A. 7610 (Child Abuse Act), as
amended, in cities or provinces where there are no
Note: SC Administrative Circular No. 09-94 (1994): family courts yet, depending on the penalties
1.   Item c: The criminal jurisdiction of the first-level prescribed for the offense charged [Sec. 16-A, R.A.
courts under Sec. 32(2) of B.P. 129, as amended by 7610, as amended by R.A. 9231]
R.A. 7691, has been increased to cover offenses f.   Cases of violence against women and children
punishable with imprisonment not exceeding 6 under R.A. 9262 (Anti-VAWC Act), in the absence
years irrespective of the amount of the fine. As a of the RTC designated as a Family Court in the
consequence, the RTCs have no more original place where the offense was committed
jurisdiction over offenses committed by public g.   Violations of intellectual property rights [A.M.
officers and employees in relation to their office, No. 03-03-03-SC (2003); R.A. 8293]
where the offense is punishable by more than 4 h.   Money laundering cases EXCEPT those
years and 2 months up to 6 years. committed by public officers and private persons
2.   Item d: The provisions of Sec. 32(2) of B.P. 129 as who are in conspiracy with such public officers
amended by R.A. 7691, apply only to offenses shall be under the jurisdiction of the
punishable by imprisonment or fine, or both, in Sandiganbayan [Sec. 5, R.A. 9160, as amended]
which cases the amount of the fine is disregarded i.   For offenses cognizable by the Sandiganbayan
in determining the jurisdiction of the court. where the information a) does not allege any
i.   However, in cases where the only penalty damage to the government or any bribery; or b)
provided by law is a fine, the amount the alleged damage to the government or the
thereof shall determine the jurisdiction of bribery arising from the or closely related
the court in accordance with the original transactions are of an amount not exceeding P1
provisions of Sec. 32(2) of B.P. 129 which million [Sec. 4, P.D. 1606, as amended by R.A.
fixed original exclusive jurisdiction of the 10660]
first-level courts over offenses punishable
with a fine of not more P4,000. Sandiganbayan
ii.   If the amount of the fine exceeds P4,000, a.   Violations of:
the RTC shall have jurisdiction, including 1.   RA 3019 (Anti-Graft and Corrupt Practices
offenses committed by public officers and Act)
employees in relation to their office 2.   RA 1379 (An Act Declaring Forfeiture In Favor
iii.   However, this rule does not apply to of The State Any Property Found To Have
offenses involving damage to property Been Unlawfully Acquired by Public Officer or
through criminal negligence which are Employee)
under the exclusive original jurisdiction of 3.   Crimes mentioned in Book 2, Title VII, Section
the first-level courts, irrespective of the 2, Chapter 2 of the RPC (Indirect Bribery,
amount of the imposable fine. Corruption of Public officials, etc.)
where one or more of the accused are officials
RTC occupying the following positions in the
a.   Exclusive original jurisdiction in all criminal cases government, whether in a permanent, acting or
not within the exclusive jurisdiction of any court, interim capacity, at the time of the commission of
tribunal or body, EXCEPT those now falling the offense
under the exclusive and concurrent jurisdiction of i.   officials of the executive branch
the Sandiganbayan which shall hereafter be occupying the positions of regional
exclusively taken cognizance of by the latter [Sec. director and higher, otherwise
20, BP 129] classified as Grade 27 and higher, of
b.   Exclusive appellate jurisdiction over all cases the Compensation and Position
decided by first-level courts within their Classification Act of 1989 [RA 6758]:
territorial jurisdiction [Sec. 22, BP 129] (a)   Provincial governors, vice-
c.   Criminal cases commenced by information governors, members of the
against the child upon determination of probable sangguniang panlalawigan, and
cause by the prosecutor [Sec. 33, R.A. 9344, as provincial treasurers, assessors,

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

engineers, and other provincial committed in relation to the office of the accused or
department heads was necessarily connected with the discharge of their
(b)   City mayors, vice-mayors, functions, the RTC and not the Sandiganbayan, has
members of the sangguniang jurisdiction over the case [People v. Cawaling G.R. No.
panlungsod, city treasurers, 117970 (1998)]
assessors, engineers, and other c.   Criminal cases filed pursuant to and in
city department heads connection with EO 1, 2, 14, 14-A (1986)
(c)   officials of the diplomatic service [Sec. 4, P.D. 1606, as amended by R.A. 10660]
occupying the position of consul
and higher Section 4(b) of P.D. 1606, as amended by R.A. 10660,
(d)   Philippine army and air force is the general law on jurisdiction of the Sandiganbayan
colonels, naval captains, and all over crimes and offenses committed by high-ranking
officers of higher rank public officers in relation to their office. Sec. 90, R.A.
(e)   officers of the PNP while 9165 is the special law excluding from the
occupying the position of Sandiganbayan's jurisdiction violations of R.A. 9165
provincial director and those committed by such public officers. In the latter case,
holding the rank of senior jurisdiction is vested upon the RTCs designated by the
superintendent and higher; Supreme Court as drugs court, regardless of whether
(f)   City and provincial prosecutors the violation of RA 9165 was committed in relation to
and their assistants, and officials the public officials' office [De Lima v. Guerrero, G.R. No.
and prosecutors in the Office of 229781 (2017)]
the Ombudsman and special
prosecutor Military courts
(g)   Presidents, directors or trustees, General rule: Ordinary courts will have jurisdiction over
or managers of GOCCs, state cases involving members of the armed forces, and
universities or educational other persons subject to military law, regardless of
institutions or foundations who the co-accused or victims are.
ii.   Members of Congress and officials
thereof classified as “Grade 27” and up Exception: When the offense is service-oriented, it will
under the Compensation and Position be tried by the court martial; Provided, that the
Classification Act of 198 President may, in the interest of justice, order or direct,
iii.   Members of the judiciary without at any time before arraignment, that any such crimes
prejudice to the provisions of the or offenses be tried by the proper civil courts.
Constitution [Sec. 1, R.A. 7055]
iv.   Chairmen and members of
Constitutional Commissions, without
prejudice to the provisions of the
4.  W hen Injunction May Be
Constitution Issued To Restrain
v.   All other national and local officials
classified as “Grade 27” Criminal Prosecution
b.   Other offenses or felonies whether simple or
complexed with other crimes committed by General rule: Criminal prosecution may NOT be
public officials and employees mentioned above blocked by court prohibition or injunction [Brocka v.
in relation to their office. The following must Enrile, G.R. No. 69863-65 (1990)]
concur:
An offense is deemed committed in relation to his Rationale: If at every turn investigation of a crime will
office when it cannot exist without the office be halted by a court order, the administration of
1.   The office is a constituent element of the criminal justice will meet with an undue setback.
crime as defined in the statute Indeed, the investigative power of the Fiscal may
2.   The offense be intimately connected with the suffer such a tremendous shrinkage that it may end up
office of the offender in hollow sound rather than as a part and parcel of the
3.   The fact that the offense was committed in machinery of criminal justice [Hernandez v. Albano,
relation to the office must be alleged in the G.R. No. L-19272 (1967)]
Information
[People v. Magallanes, G.R. No. 118013-14 (1995)] Exceptions
a.   To afford adequate protection to the
In the absence of any allegation that the offense was constitutional rights of the accused

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

b.   When necessary for the orderly administration of

justice or to avoid oppression or multiplicity of   Prosecution of Offenses
suits
c.   Where there is a prejudicial question which is sub 1.   Criminal Actions; How
judice
d.   Where acts of the officer are without or in excess Instituted
of authority
e.   When the prosecution is under an invalid law, The institution of a criminal action generally depends
ordinance or regulation upon whether the offense is one which requires a
f.   When double jeopardy is clearly apparent preliminary investigation (PI) or not:
g.   When court has no jurisdiction over the offense Offenses requiring PI Other offenses
h.   When it is a case of persecution rather than Those where the
prosecution penalty prescribed by
i.   Where the charges are manifestly false and law is at least 4 years,
motivated by vengeance 2 months and 1 day All other offenses
j.   Where there is no prima facie case and a motion to [Sec. 1, Rule 112, as
quash on that ground has been denied amended by A.M. No.
k.   Where preliminary injunction has been issued by 05-8-26-SC]
the SC to prevent the threatened unlawful arrest a.   The complaint or
of petitioners information is filed
[Brocka v. Enrile, G.R. No. 69863-65 (1990)] directly with the
l.   When it is to prevent the use of the strong arm of MTCs and MCTCs;
the law in an oppressive and vindictive manner or
[Hernandez v. Albano, G.R. No. L-19272 (1967)] b.   The complaint is
filed with the office
The criminal action is
of the prosecutor
instituted by filing the
[Sec. 1(b), Rule 110]
complaint with the
appropriate officer for
In Manila and other
PI [Sec. 1(a), Rule 110]
chartered cities, the
complaint shall be filed
with the office of the
prosecutor unless
otherwise provided in
their charters [Sec. 1(b),
Rule 110]

Effect of institution
The institution of a criminal action shall interrupt the
running of the prescription period of the offense
charged UNLESS otherwise provided in special laws
[Sec. 1, Rule 110]

There is no more distinction between cases under the

RPC and those covered by special laws with respect to
the interruption of the period of prescription [People v.
Pangilinan, G.R. No. 152662 (2012)]

Falling under the authority of the lupon

While the dispute is under mediation, conciliation or
arbitration, the prescriptive periods for offenses and
causes of action under existing laws shall be
interrupted upon the filing of the complaint with the
Punong Barangay [Sec. 410, LGC]

The prescriptive periods shall resume upon receipt by

the complainant

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

a.   of the complaint or pardoned

b.   the certificate of repudiation or the
c.   of the certification to file action issued by the offenders
Lupon or Pangkat Secretary c.  The
Such interruption however shall not exceed 60 days marital
from the filing of the complaint with the punong relation-
barangay ship must
[Sec. 410(c), LGC] still be
subsisting
What criminal cases require prior recourse to the [Pilapil v.
lupon? Ibay-Somera,
offenses punishable by imprisonment not exceeding G.R. No.
one (1) year or a fine not exceeding P5,000 80116,
[Sec. 408(c), LGC] (1989)]
a.   Offended
Exceptions party –
a.   when there is no private offended party includes
b.   when the accused is under police custody or minors, even
detention independently
[Sec. 408(c), LGC] of those in
item b, except
2.  W ho May File; Crimes That if
incompetent
Cannot be Prosecuted De or incapable
b.   Parents,
Oficio grandparents,
guardian -
General rule: No complaint or information may be filed right to file
or dismissed by an investigating prosecutor without the action The offender
the prior written authority or approval of the provincial shall be must not
or city prosecutor or chief state prosecutor or the Seduction, exclusive of have been
Ombudsman or his deputy [Sec. 4, Rule 112, as abduction, all other pardoned by
amended by A.M. 05-8-26-SC] acts of persons and any of a and
lasciviousness shall be b in the
Note: Secs. 3 and 4, Rule 110 discuss who should exercised preceding
subscribe (not file) the complaint or information. successively column
in this order
Exception: CRIMES THAT CANNOT BE c.   State – If the
PROSECUTED DE OFICIO offended
party dies or
Rationale becomes
This was imposed out of consideration for the incapacitated
aggrieved party who might prefer to suffer the outrage before she
in silence rather than go through with the scandal of a can file the
public trial [People v. Yparraguirre, G.R. No. 124391 complaint,
(2000)] and she has
Crime Who May File Conditions no known
a.  Must parents,
include grandparents
both guilty or guardian
parties, if Defamation,
Adultery and both alive which
Offended spouse
concubinage b.  Must not consists of
have imputation of Offended party
consented any of the
to the foregoing
offense or offenses

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Events subsequent to filing offended party or her parents, grandparents or

a.   Death of offended party guardian [Sec. 5, Rule 110]

Death after filing the complaint would not deprive General rule: Pardon must be made before the
the court of jurisdiction. The death of the offended filing of the criminal complaint in court [People v.
party in private crimes is essential not for the Bonaagua, G.R. No. 18897 (2011)]
maintenance of the action but solely for the
initiation thereof [People v. Diego, G.R. No. 1626 Exception: In rape, marriage between the offender
(1937)] and the offended party would be effective as
pardon even when the offender has already
The causes for extinguishment of criminal liability commenced serving his sentence [People v. de
are enumerated in Art. 89 of the Revised Penal Guzman, [G.R. No. 185843 (2010)]
Code. The death of the offended party is not one
of them. Neither is such an event listed among Pardon Consent
the grounds of a motion to quash a criminal Refers to past acts Refers to future acts
complaint or information as provided in Sec. 2, In order to absolve the
Rule 117. No Philippine decision was cited to In order to absolve the
accused from liability, it
support the view espoused by the defendant- accused from liability, it
is sufficient even if
appellee [People v. Bundalian, G.R. No. L-29985 must be extended to
granted only to the
(1982)] both offenders
offending spouse
Given after the
Note: Bundalian concerned a libel case, but Art. commission of the Given before the
89, RPC applies to crimes under the RPC in crime but before the commission of the
general. institution of the crime
criminal action
b.   Desistance by offended party In adultery and concubinage
Desistance of the victim’s complaining mother Either expressly or
does not bar the People of the Philippines from impliedly
prosecuting the criminal action, but it operates as
a waiver of the right to pursue civil indemnity In this jurisdiction
Express only
[People v. Amaca, G.R. No. 110129 (1995)] pardon for adultery and
concubinage must
But note: Ligtas v. CA
c.   Pardon by offended party come before the
[G.R. No. L-47498],
institution of the
where the SC stated,
A pardon of the offended party does not criminal action and
“However, such
extinguish criminal action except as provided in both offenders must be
consent or pardon
Art. 344 of the RPC; but civil liability with regard pardoned by the
cannot be implied
to the interest of the injured party is extinguished offended party if said
when the offended
by his express waiver [Art. 23, RPC] pardon is to be
party allows his wife to
effective. The pardon
continue living in the
Note: Subsequent Marriage below for a can be express or in
conjugal home after her
discussion of Art. 344, RPC. applied. Thus, when
arrest only in order to
the offended party in
take care of their
If there is more than one accused, the pardon writing or in an affidavit
children." This
must be extended to all offenders. asserts that he or she is
statement suggests
pardoning his or her
that consent may be
Pardon for adultery and concubinage must come erring spouse and
implied if the
before the institution of the criminal action and paramour for their
circumstances were
both offenders must be pardoned by the offended adulterous act this is a
different. However,
party if said pardon is to be effective. The pardon case of express
Ligtas concerned the
can be express or implied [Ligtas v. CA, G.R. No. pardon. There is
issue of pardon, not
L-47498 (1987)] implied pardon when
consent.
the offended party
The offenses of seduction, abduction and acts of continued to live with
lasciviousness shall not be prosecuted if the his spouse even after
offender has been expressly pardoned by the commission of the

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

offense. However such 2.   Lodge a complaint before the court having

consent or pardon jurisdiction over the offense;
cannot be implied when 3.   Take up the matter with the Department of Justice
the offended party under the appropriate administrative procedure;
allows his wife to 4.   Institute an administrative charge against the
continue living in the erring prosecutor; and
conjugal home after her 5.   File criminal action against the prosecutor for
arrest only in order to negligence to prosecute or tolerance of the crime
take care of their [Art 208, RPC] with the corresponding civil action
children [Ligtas v. CA, for damages for failure to render service by a public
G.R. No. L-47498 officer [Art 27, NCC]
(1987), citing People v.
Boca (CA), O.G. 2248]
In Seduction, Abduction and Acts of Lasciviousness
3.  Criminal Actions, When
Must be expressly made
Offended party cannot Enjoined
consent to the crime
See When Injunction May Be Issued To Restrain
d.   Subsequent marriage Criminal Prosecution above.

General rule: In cases of seduction, abduction,

acts of lasciviousness and rape, the marriage of
4.  C ontrol of Prosecution
the offender with the offended party shall
extinguish the criminal action or remit the penalty All criminal actions commenced by a complaint or
already imposed upon him, together with the co- information shall be prosecuted under the direction
principals, accomplices, and accessories after the and control of the prosecutor. BUT a private
fact of the above-mentioned crimes [Art. 344, prosecutor may be authorized in writing by the Chief
RPC] of the Prosecution office or the Regional State
Prosecutor to prosecute the case subject to the
Exceptions: approval of the court [Sec. 5, Rule 110, as amended by
1.   Marriage was invalid or contracted in bad A.M. No. 02-2-07-SC (2002)]
faith to escape criminal liability [People v.
Santiago, G.R. No. L-27972 (1927)] Conditions for a private prosecutor to prosecute a
2.   In multiple rape, insofar as the other accused criminal action
in the other acts of rape respectively a.   The public prosecutor has heavy work schedule
committed by them are concerned [People v. or there is no public prosecutor assigned in the
Bernardo (38 O.G. 3479)] province or the city
b.   The private prosecutor is authorized in writing by
Note: The enumeration in Art. 344, RPC quoted the Chief of the Prosecutor office or the Regional
above does not include: State Prosecutor
a.   Adultery c.   The authority of the private prosecutor was
b.   Concubinage, approved by the Court
c.   Defamation which consists in the imputation d.   The private prosecutor shall continue to
of concubinage, adultery, seduction, prosecute the case up to the end of the trial
abduction, or acts of lasciviousness unless the authority is revoked or otherwise
withdrawn.
Remedies if the prosecutor refuses to file an [Sec. 5, Rule 110, A.M. No. 02-2-07-SC (2002)]
information e.   In case of withdrawal or revocation of authority,
1.   Action for mandamus, in case of grave abuse of the same must be approved by the court [DOJ
discretion; Memorandum Circular No. 25 (2002)]

The moment the prosecutor finds one to be so However, in MTCs or MCTCs when the prosecutor
liable or responsible for the offense, it becomes assigned thereto or to the case is not available, the
his inescapable duty to charge him therewith and offended party, any peace officer, or public officer
to prosecute him for the same. In this moment, it charged with the enforcement of the law violated may
becomes mandatory in character [Metropolitan prosecute the case. This authority shall cease upon
Bank and Trust Company v. Reynaldo, G.R. No. actual intervention of the prosecutor or upon elevation
164538 (2010)] of the case to the RTC [OCA Circular No. 39-02, stating

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

in toto Sec. 5, Rule 110, as amended by A.M. No. 02-2- choose the public prosecutor who will conduct
07-SC] such reinvestigation or preliminary investigation.
[Levista v. Alameda, G.R. No. 182677 (2010)]
Regarding item d of the enumeration above, Note, 3.   Dismissal of the case [Crespo v. Mogul, G.R. No. L-
however, this statement from Mobilia Products Inc. v. 53373 (1987)]
Umezawa, G.R. No. 149357 (2005), “It is necessary 4.   Downgrading of the offense or dropping of
that the public prosecutor be present at the trial until accused before plea [Sec. 14(b) , Rule 110]
the final termination of the case; otherwise, if he is
absent, it cannot be gainsaid that the trial is under his It is the prosecutor’s duty to proceed with the
supervision and control.” However, said statement presentation of his evidence to the court to enable the
was not necessary for the disposition of the case. court to arrive at its own independent judgment as to
whether the accused should be convicted or acquitted
Cases in the Court of Appeals and the Supreme [Crespo v. Mogul, G.R. No. L-53373 (1987)]
Court
General rule: Only the Solicitor General may bring or Once a complaint or information is filed in court, any
defend actions in behalf of the Republic of the disposition of the case as its dismissal or the
Philippines, or represent the People of the Philippines conviction or acquittal of the accused rests on the
or State in criminal proceedings before the SC and the sound discretion of the court. A motion to dismiss
CA [Cariño v. De Castro, G.R. No. 176084 (2008)] should be filed with the court, which has the option to
grant or deny it [Crespo v. Mogul, G.R. No. L-53373
Exceptions: (1987)]
a.   When there is denial of due process of law to the
prosecution and the State or its agents refuse to Limitations on the court’s control
act on the case to the prejudice of the State and a.   The prosecution is entitled to notice of hearing;
the private offended party [Cariño v. De Castro, b.   The court must suspend arraignment, upon
G.R. No. 176084 (2008)], and motion by the proper party, when a petition for
b.   When the private offended party questions the review of the resolution of the prosecutor is
civil aspect of a decision of a lower court [Heirs of pending at either the DOJ, or the OP; provided,
Delgado v. Gonzalez, G.R. No. 184337 (2009)] that the period of suspension shall not exceed 60
days counted from the filing of the petition with
Cases elevated to the Sandiganbayan and the the reviewing office [Sec. 11(c), Rule 116]
Supreme Court c.   The court must make its own independent
The Office of the Ombudsman, through the Special evaluation or assessment of the merits of the case
Prosecutor, shall represent the People of the (e.g. on a motion to dismiss [should be to quash]).
Philippines, except in cases filed pursuant to EO Nos. Otherwise, there will be a violation of private
1,2, 14, 14-A as these are under the PCGG [Sec. 4, P.D. complainant’s right to due process and erroneous
1606, as amended by R.A. 10660] exercise of judicial discretion [Martinez v. CA, [G.R.
No. L-112387 (1994)]
EXTENT OF PROSECUTOR’S CONTROL
Effect of lack of intervention of fiscal
a.   Prior to filing Although the private prosecutor had previously been
Matters which are within the control of the prosecutor authorized by the special counsel to present the
1.   What case to file evidence for the prosecution, in view of the absence of
2.   Whom to prosecute the City Fiscal at the hearing, it cannot be said that the
3.   Manner of prosecution prosecution of the case was under the control of the
4.   Right to withdraw information before City Fiscal. It follows that the evidence presented by
arraignment even without notice and hearing the private prosecutor at said hearing could not be
[Crespo v. Mogul, G.R. No. L-53373 (1987)] considered as evidence for the plaintiff [People v.
Beriales, G.R. No. L-39962 (1976)]
b.   After filing
The following matters are already within the control of It is necessary that the public prosecutor be present at
the court and are no longer within the discretion of the the trial until the final termination of the case;
prosecutor: otherwise, if he is absent, it cannot be gainsaid that
1.   Suspension of arraignment [Sec 1, Rule 116 "Upon the trial is under his supervision and control [Mobilia
motion by proper party"] Products Inc. v. Umezawa, G.R. No. 149357 (2005)]
2.   Granting a reinvestigation; However, when the Note that said statement was not necessary for the
judge grants the reinvestigation, he may not disposition of Mobilia, which involved a motion filed by

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

counsel of complainant without the conformity of the appellation or nickname by which he is known or
public prosecutor. had been known
b.   The designation of the offense given by the
Note: OCA Circular No. 39-02 [stating in toto Sec. 5, statute
Rule 110, as amended by A.M. No. 02-2-07-SC] c.   The acts or omissions complained of as
However, in MTCs or MCTCs when the prosecutor constituting the offense
assigned thereto or to the case is not available, the d.   The name of the offended party
offended party, any peace officer, or public officer e.   The approximate date of the commission of the
charged with the enforcement of the law violated offense, and
may prosecute the case. This authority shall cease f.   The place where the offense was committed
upon actual intervention of the prosecutor or upon When an offense is committed by more than one
elevation of the case to the RTC. person, all of them shall be included in the complaint
or information.
[Sec. 6, Rule 110]
5.  S ufficiency of Complaint
or Information The test for sufficiency of the complaint or
information is whether the crime is described in
Complaint intelligible terms with such particularity as to apprise
A complaint is a sworn written statement charging a the accused with reasonable certainty of the offense
person with an offense, subscribed by the offended charged [Lazarte v. Sandiganbayan, G.R. No. 180122
party, any peace officer or other public officer charged (2009)]
with the enforcement of the law violated [Sec. 3, Rule
110] When there is ambiguity in the accusation, the case
must be resolved in favor of the accused [People v. Ng
Information Pek, G.R. No. L-1895 (1948)]
An information is an accusation in writing, charging a
person with an offense, subscribed by the prosecutor General rule: A defective information cannot support a
and filed with the court [Sec. 4, Rule 110] judgment of conviction

Complaint Information Exception: Where the defect in the information was

Subscribed by the cured by evidence during the trial and no objection
prosecutor [Sec. 4, Rule appears to have been raised
Subscribed by the 110] [Abunado v. People, G.R. No. 159218 (2004)]
offended party, any
peace officer or other (Indispensable An accused is deemed to have waived his right to
officer charged with the requirement. Lack of assail the sufficiency of the information when he
enforcement of the law authority of the officer voluntarily entered a plea when arraigned and
violated [Sec. 3, Rule signing it cannot be participated in the trial [Frias v. People, G.R. No. 171437
110] cured by silence, (2007)]
acquiescence or even
express consent.) Objections relating to the form of the complaint or
May be filed either in information cannot be made for the first time on
court or in the Filed with the court appeal. The accused should have moved for a bill of
prosecutor’s office [Sec. [Sec. 4, Rule 110] particulars or for quashal of information before
1, Rule 110] arraignment, otherwise he is deemed to have waived
Requires no oath [Sec. his objections to such a defect [People v. Teodoro, G.R.
4, Rule 110] No. 172372 (2009)]
Must be sworn hence,
under oath [Sec. 3, Rule The fiscal filing the a.   Name of the accused
110] information is acting 1.   The complaint or information must state the
under the oath of his name and surname of the accused or any
office. appellation or nickname by which he has
been or is known.
CONTENTS OF A VALID INFORMATION 2.   If his name cannot be ascertained, he must be
A complaint or information is sufficient if it states described under a fictitious name with a
a.   The name and surname of the accused; or any statement that his true name is unknown.
3.   If the true name of the accused is thereafter

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

disclosed by him or appears in some other d.   Name of the offended party

manner to the court, such name shall be
inserted in the complaint or information and The complaint or information must state the
record. name and surname of the person against whom
[Sec. 7, Rule 110] or against whose property the offense was
committed, or any appellation or nickname by
An information against all accused described as which such person has been or is known. If there
“John Does” is void, and an arrest warrant against is no better way of identifying him, he must be
them is also void [Pangandaman v. Casar, G.R. described under a fictitious name [Sec. 12, Rule
No. L-71782 (1988)] 110]

b.   Place of commission Offenses against property

If the name of the offended party is unknown, the
General rule: The complaint or information is property must be described with such particularity
sufficient if it can be understood from its as to properly identify the offense charged [Sec.
allegations that the offense was committed or 12(a), Rule 110]
some of its essential ingredients occurred at some
place within the jurisdiction of the court. If the true name of the person against whom or
against whose property the offense was
Exception: The particular place where it was committed is thereafter disclosed or ascertained,
committed constitutes an essential element of the the court must cause such true name to be
offense charged or is necessary for its inserted in the complaint or information and the
identification record [Sec. 12(b), Rule 110]
[Sec. 10, Rule 110]
Offended party is a juridical person
c.   Date of commission The complainant or offended party must state its
name, or any name or designation by which it is
General rule: It is not necessary to state in the known, or by which it may be identified, without
complaint or information the precise date the need of averring that it is a juridical person or that
offense was committed. The offense may be it is organized in accordance with law [Sec. 12(c),
alleged to have been committed on a date as near Rule 110]
as possible to the actual date of the commission.

Exception: When it is a material ingredient of the

6.  D esignation of Offense
offense
[Sec. 11, Rule 110] The complaint or information shall state the
designation of the offense given by the statute, aver
Allegation in an information of a date different the acts or omissions constituting the offense, and
from the one established during the trial would specify its qualifying and aggravating circumstances.
not, as a rule, be considered as an error fatal to If there is no designation of the offense, reference shall
the prosecution. Erroneous allegation is just be made to the section or subsection of the statute
deemed supplanted by the evidence presented punishing it [Sec. 8, Rule 110]
during the trial or may even be corrected by a
formal amendment of the information. Specific acts of accused do not have to be described in
detail in the information, as it is enough that the
Variance in the date of commission of the offense offense be described with sufficient particularity to
only becomes fatal when such discrepancy is so make sure the accused fully understands what he is
great that it induces the perception that the being charged with [Guy v. People, G.R. No. 166794-96
information and the evidence are no longer (2009)]
pertaining to one and the same offense. In this
event, the defective allegation in the information Allegations prevail over the designation of the offense.
is struck down for violating right of accused to be The facts, acts or omissions alleged and not its title,
informed of specific charge determine the nature of the crime. The designation of
[People v. Delfin, G.R. No. 201572 (2014)] the offense is only the conclusion of the prosecutor
[People v. Magdowa, G.R. No. 48457 (1941)]

An accused may be convicted of a crime more serious

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

than that named in the title if such crime is covered by General rule: whenever a person accused of the
the facts alleged in the body of the Information and its commission of a crime claims to be within the
commission is established by evidence [Buhat v. CA, statutory exception, it is more logical and convenient
G.R. No. 119601 (1996)] that he should aver and prove the fact than that the
prosecutor should anticipate such defense, and deny
The minute details of participation and cooperation on it [Cabrera v. Marcelo, G.R. Nos.. 157419-20 (2004),
Illegal Drug Trading are matters of evidence that need citing People v. San Juan, G.R. No. L-22944 (1968)],
not be specified in the Information but presented and citing US v. Chan Toco, G.R. No. 3851 (1908)]
threshed out during trial [De Lima v. Guerrero, G.R. No.
229781 (2017)] Exception: Where the exemptions are so incorporated
in the language defining the crime that the ingredients
of the offense cannot be accurately and clearly set
7.  Cause of the Accusation forth if the exemption are omitted, the indictment, to
be sufficient, must show that the person charged does
QUALIFYING AND AGGRAVATING not fall within the exemptions [People v. San Juan, G.R.
CIRCUMSTANCES No. L-22944 (1968), citing US v. Pompeya, G.R. No. L-
10255 (1915)]
General rule: The acts or omissions complained of as
constituting the offense and the qualifying and WHERE COMPLEX CRIME IS CHARGED
aggravating circumstances must be stated:
a.   In ordinary and concise language; and The allegations do not necessarily have to charge a
b.   Not necessarily in the language used in the complex crime as defined by law. It is sufficient that
statute; but the Information contains allegations which show that
c.   In terms sufficient to enable a person of common one offense was a necessary means to commit the
understanding to know what offense is being other [People v. Alagao, G.R. No. L-20721 (1966)]
charged as well as its qualifying and aggravating
circumstances and for the court to pronounce Where what is alleged in the information is a complex
judgment crime and the evidence fails to support the charge as
[Sec. 9, Rule 110] to one of the component offenses, the defendant can
only be convicted of the offense proven [Gonzaludo v.
Qualifying and aggravating circumstances must be People, G.R. No. 150910 (2006)]
alleged in the Information. Otherwise, they are not to
be considered even if proven during the trial [Viray v.
People, G.R. No. 205180 (2013)] 8.  D uplicity of the Offense;
The failure to allege such cannot be cured by an
Exception
amendment of the information after the accused
entered his plea [People v. Antonio, G.R. No. 142727 Duplicity of the offense in an information or complaint
(2002)] means the joinder of two or more separate and distinct
offenses in one and the same information or complaint
If the aggravating circumstances were not alleged, [Loney v. People, G.R. No. 152644 (2006)]
they can still be basis for the awarding of exemplary
damages. The basis, however, is no longer Art. 2230 of General rule: A complaint or information must charge
the NCC, but Art. 2229 (by way of example or only one offense
correction for the public good) [People v. Dalisay, G.R.
No. 188106 (2009)] Exception:Multiple offenses may be charged when the
law prescribes a single punishment for various
The aggravating circumstance of habitual offenses: [Sec. 13, Rule 110]
delinquency a.   Complex crimes – e.g. Acts committed in
furtherance of rebellion are crimes in themselves
The Information must specify the following but are absorbed in the single crime of rebellion.
a.   The commission of the previous crimes The test is whether the act was done in
b.   The last conviction or release furtherance of a political end [Enrile v. Salazar
[People v. Venus, G.R. No. 45141 (1936)] G.R. No. 92163 (1990)]
b.   Special complex crimes
RULE ON NEGATIVE AVERMENTS c.   Continuous crimes
1.   Plurality of acts performed separately during
a period of time

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2.   Unity of penal provision violated in the event of conviction;

3.   Unity of criminal intent 2.   One which does not charge another offense
[People v. Ledesma, G.R. No. L-41522 (1976)] distinct from that already charged;
d.   Crimes susceptible of being committed in various 3.   Additional allegation which do not alter the
modes prosecution’s theory of the case so as to
surprise the accused or affect the form of
In case of crimes susceptible of being committed in defense he has or will assume;
various modes, the allegations in the information 4.   One which does not adversely affect any
of the various ways of committing the offense substantial right of the accused, such as his
would be regarded as a description of only one right to invoke prescription
offense and information is not rendered defective. [Teehankee Jr. v. Madayag, G.R. No. 103102 (1992)]
[Jurado v. Suy Yan, G.R. No. L-20714, (1971)]
e.   Crimes of which another offense is an ingredient An amendment due to a supervening event is
[People v. Camerino, G.R. No. L-13484 (1960)] considered only a formal amendment as it did not
f.   When a single act violates different statutes adversely affect any substantial right of the
[Loney v. People, G.R. No. 152644 (2006)] appellant [People v. Degamo, G.R. No. 121211
(2003)]
Remedy
The filing of a motion to quash is the remedy in case of b.   Substantial amendment consists of the recital of
duplicity of offense in an information [Sec. 3(f), Rule facts constituting the offense charged and
117] determinative of the jurisdiction of the court
[Teehankee v. Madayag, G.R. No. 103102 (1992)]
Objection to a complaint or information which charges
more than one offense must be timely interposed Examples
before the accused enters his plea [Sec 1, Rule 117] 1.   Stating a different manner of committing the
felony
Failure to do so constitutes a waiver [People v. Tabio, 2.   Including conspiracy because such involves a
G.R. No. 179477 (2008)] and the court may convict the change in the basic theory of the prosecution
accused of as many offenses as are charged and 3.   Change in the date of commission of the
proved, and impose on him the penalty for each offense that will be prejudicial to the accused
offense [Sec. 3, Rule 120]
Since the date of commission of the offense is not
required with exactitude, the allegation in an
9.  A mendment or information of a date of commission different
Substitution of Complaint from the one eventually established during the
trial would not, as a rule, be considered as an error
or Information fatal to prosecution. In such cases, the erroneous
allegation in the information may be corrected by
AMENDMENT a formal amendment in the information. The
A change in either the form or substance of the same foregoing rule, however, is concededly not
offense in the Information. It is not a new charge; it just absolute. Variance in the date of commission of
supersedes the original Information but relates back the offense as alleged in the information and as
to the date at which the original information was filed established in evidence becomes fatal when such
[Teehankee Jr. v. Madayag, G.R. No. 103102 (1992)] discrepancy is so great that it induces the
perception that the information and the evidence
KINDS OF AMENDMENT are no longer pertaining to one and the same
offense. [People v. Opemia, G.R. No. L-7987
a.   Formal amendment merely states with (1956)]
additional precision something which is already
contained in the original information, and which, An amendment that would change the date of the
therefore adds nothing essential for conviction for commission of the offense from 1947 to 1952 is
the crime charged [Gabionza v. CA, G.R. No. certainly not a matter of form [People v. Delfin,
140311 (2001)] G.R. No. 201572 (2014), citing People v. Opemia,
G.R. No. L-7987 (1956)]
Examples
1.   New allegations which relate only to the The test as to whether the amendment is merely
range of penalty that the court might impose formal is whether or not a defense under the

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original information would be equally available General rule:Amendment as to substance at this

after the amendment and whether or not any stage of the case is proscribed [People v. Zulueta,
evidence the accused might have would be G.R. No. L-4017 (1951)]
equally applicable in one form as in the other
[People v. Degamo, G.R. No. 121211 (2003), citing Rationale
Teehankee v. Madayag, G.R. No. 103102 (1992)] 1.   It violates the right to be informed of the
nature and cause of the accusation during his
WHEN TO AMEND plea [Buhat v. People, G.R. No. 119601 (1996)]
2.   It violates the rule on double jeopardy.
a.   Before plea or arraignment "Substantial amendments to the information
after the plea has been taken cannot be made
General rule: Any formal or substantial over the objection of the accused, for if the
amendment, made before the accused enters his original information would be withdrawn, the
plea may be done without leave of court [Sec. 14, accused could invoke double jeopardy"
Rule 110] [Tehankee v. Madayag, G.R. No. 103102,
(1992)]
Exception: If the amendment downgrades the
nature of the offense charged in, or excludes any Exception: Amendment may be allowed if it is
accused from, the complaint/information, it can beneficial to the accused, e.g. amending
be made only Information for murder after arraignment by
1.   Upon motion of the prosecutor deleting the qualifying circumstances and
2.   With notice to the offended party and downgrading the offense to homicide [People v.
3.   With leave of court Janairo, G.R. No. 129254 (2007)]

The court is mandated to state its reasons in SUBSTITUTION

resolving the motion of the prosecutor and to If it appears at any time before judgment that a
furnish all parties, especially the offended party, mistake has been made in charging the proper
of copies of its order offense, the court shall dismiss the original complaint
[Sec. 14, Rule 110] or information upon the filing of a new one charging
the proper offense in accordance with Sec. 19, Rule 119,
Not all defects in an information may be cured by provided the accused shall not be placed in double
an amendment. An Information which is void ab jeopardy. The court may require the witnesses to give
initio cannot be amended to obviate a ground for bail for their appearance at the trial [Sec. 14, Rule 110]
quashal. An amendment which operates to vest
jurisdiction is impermissible [Leviste v. Alameda Sec. 19, Rule 119 states that when it becomes manifest
G.R. No. 182677 (2010)] at any time before judgment that a mistake has been
made in charging the proper offense and the accused
Granting without conceding that the information cannot be convicted of the offense charged or any
contains averments which constitute the other offense necessarily included therein, the
elements of Direct Bribery or that more than one accused shall not be discharged if there appears good
offence is charged or as in this case, possibly cause to detain him. In such case, the court shall
bribery and violation of R.A. 9165, still the commit the accused to answer for the proper offense
prosecution has the authority to amend the and dismiss the original case upon the filing of the
information at any time before arraignment proper information.
pursuant to Sec. 14, Rule 110 [De Lima v. Guerrero,
G.R. No. 229781 (2017)] Limitations of substitution
a.   At any time before judgment [Sec. 14, Rule 110]
b.   After plea and during trial b.   The accused cannot be convicted of the offense
charged or of any other offense necessarily
Formal amendment included therein [Sec. 19, Rule 119]
Amendment as to form can only be made under c.   The accused would not be placed in double
two conditions: jeopardy [Sec. 14, Rule 110]
1.   With leave of court; and
2.   It does not cause prejudice to the rights of the Amendment and Substitution Distinguished
accused Amendment Substitution
[Sec 14, Rule 110] The same Involves
Applicability
attempted, different offense

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frustrated, [Sec. 4, Rule 120]

necessarily The accused will be
When the offense proved
includes or convicted of the
is GREATER than the
included offense offense charged
offense charged
Formal or [Sec. 4, Rule 120]
Substantial
Scope substantial The case should be
changes When the offense proved
changes dismissed and a new
is DIFFERENT and NOT
Amendment Information should be
NECESSARILY
before plea has filed, charging the
Necessity of INCLUDED/INCLUDES
been entered Must be with proper offense.
leave of the offense charged
Can be effected leave of court [Sec. 14, Rule 110]
court
without leave of
court
When
10.  Venue of Criminal Actions
amendment is Another PI is
Necessity of General rule: In all criminal prosecutions, the action
Only as to form, entailed and
new PI and must be instituted and tried in the courts of the
no need for accused has to
plea municipality or territory where
another PI and plead anew
retaking of plea (1)   The offense was committed, or
(2)   Any of its essential ingredients occurred
The amended
[Sec. 15(a), Rule 110]
information
refers to the
Involves a Unlike in civil cases, in criminal cases venue is
same offense
different offense jurisdictional [People v. Metropolitan Trial Court of
charged in the
which does not Quezon City, Br. 32, G.R. No. 123263 (1996)]
original
Offense include those
information or
involved provided in the The court has no jurisdiction to try an offense
to an offense
original charge; committed outside its territorial jurisdiction [People v.
which is
cannot invoke Pineda, G.R. No. 44205 (1993)]
included in the
double jeopardy
original charge;
can invoke Exceptions:
double jeopardy Crime Venue
The accused Felonies under Art. 2,
could invoke RPC (offense on board
The accused a PH ship or airship,
double jeopardy
cannot claim forgery or
if the new
double counterfeiting of Proper court where
information is a
jeopardy; coins, public officers criminal action was first
substantial
Presupposes abroad in the exercise filed [Sec. 15, Rule 110]
amendment
that the new of their duties, crimes
and it was done
Double information against national
after the plea
jeopardy involves a security and the law of
because such
different offense nations)
would Refer to
which does not In the court of any
Part the same
include or is not Those committed on a municipality or territory
offense charged
included in the railroad train, aircraft, where such train, aircraft,
or to an offense
original charge. or any other public or or other vehicle passed
necessarily
includes or private vehicle in the during its trip, including
included court of its trip place of departure and
[Teehankee Jr. v. Madayag, G.R. No. 103102, (1992)] arrival[Sec. 15, Rule 110]
In the proper court of the
Variance between Allegation and Proof first port of entry or of any
Variance Consequence Those committed on municipality or territory
board a vessel in the through which such vessel
When the offense proved The accused will be
course of its voyage passed during its voyage,
is LESS than the offense convicted of the
subject to the generally
charged offense proved
accepted principles of

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international law[Sec. 15, cases (R.A. 8042 or to file the case in his place
Rule 110] Migrant Workers Act) of residence or in the
May be instituted place where the crime
Piracy, which has no anywhere [People v. Lol-lo was committed [Sto
territorial limits and Saraw, G.R. No. Tomas v. Salac G.R. No.
17958 (1922)] 152642 (2012)]
If one of the offended RTCs have jurisdiction
parties is a private over any violation of the
individual, (a) Where the Violations of RA 10175 provisions of the Act,
libelous article is printed (Cybercrime including any violation
and first published, or Prevention Act of committed by a Filipino
(b) Where said individual 2012) national regardless of the
actually resides place of commission
[Sec. 21]
If one of the offended SC has the power to order
parties is a public official, In exceptional a change of venue or
a.   Where the official circumstances to place of trial to avoid
holds office at the ensure a fair trial and miscarriage of justice
time of the impartial inquiry [Sec. 5(4), Art. VII,
commission of the Constitution]
offense The courts of the
1.   If the office is in territories where the
Manila, then CFI essential ingredients of
Manila the crime took place have
2.   If the office is any Transitory or concurrent jurisdiction.
other city or continuing offenses The first court taking
Libel
province, then cognizance of the case
file where he will exclude the others
holds office [People v. Grospe, G.R. No.
b.   Where the libelous L-74053 (1988)]
article is printed and
first published
11.  Intervention of Offended
For online libel, the same Party
measure cannot be
reasonably expected General rule: An offended party has the right to
when it pertains to intervene in the prosecution of a crime, where the civil
defamatory material action for recovery of civil liability is instituted in the
appearing on the Internet criminal action [Sec. 16, Rule 110]
or on a website as there
would be no way of Note: The offended party may intervene by counsel in
determining the situs of the prosecution of the offense [Sec. 16, Rule 110] but
its printing and first the prosecution of the case is still subject to the control
publication [Bonifacio v. of the prosecutor [Ricarze v. People, G.R. No. 160451
RTC of Makati, G.R. No. (2007)]
184800 (2010)]
May be filed in the place Exceptions:
where the check was a.   Where, from the nature of the crime and the law
dishonored or issued. In defining and punishing it, no civil liability arises
the case of a cross-check, in favor of a private offended party (e.g. treason,
Cases filed under B.P.
in the place of the rebellion, espionage and contempt) [Rodriguez v.
22
depositary or collecting Ponferrada, G.R. No. 155531-34 (2005)]
bank [People v. Grospe, b.   Where, from the nature of the offense, the private
G.R. No. L-74053-54, offended party is entitled to civil indemnity arising
(1988)] therefrom but he has
Illegal recruitment The victim has the option 1.   waived the same or

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2.   expressly reserved his right to institute a

separate civil action or   Prosecution of Civil
3.   already instituted such action
[Rodriguez v. Ponferrada, G.R. No. 155531-34
Action
(2005)]
1.   Rule on Implied
Institution of Civil Action
with Criminal Action
General rule: The civil action for the recovery of civil
liability arising from the offense charged is deemed
instituted with the criminal action.

Exception: The civil action is not deemed so instituted

if the offended party
a.   Waives the civil action
b.   Reserves the right to institute it separately
c.   Institutes the civil action prior to the criminal
action;
[Sec. 1, Rule 111]

2.  W hen Civil Action May

Proceed Independently
a.   Independent civil actions
When the accused in a criminal prosecution is
acquitted on the ground that his guilt has not been
proved beyond reasonable doubt, a civil action for
damages for the same act or omission may be
instituted [Art 29, NCC]

Actions under the Civil Code, specifically for quasi-

delict, violation of constitutional rights, defamation,
fraud, physical injuries, refusal or failure to render aid
or protection by the members of the police or the
prosecuting attorney [Art. 32, 33, 34, 35 and 2176]
remain separate, distinct, and independent of any
criminal prosecution although based on the same act
[Phil. Rabbit Bus Lines v. People, G.R. No. 147703
(2004); Sec. 3, Rule 111]

Only a preponderance of evidence is required but in no

case may the offended party recover damages TWICE
for the same act or omission charged in the criminal
action [Sec. 3, Rule 111]

b.   Reservation of right to file civil action

When reservation shall be made

1.   Before the prosecution starts to present its
evidence
2.   Under circumstances affording the offended party
a reasonable opportunity to make such
reservation. [Sec. 1, Rule 111]

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Instances where reservation to file the civil action The criminal case shall be
separately shall not be allowed dismissed without prejudice
1.   B.P. 22 cases [Sec. 1(b), Rule 111] Before to any civil action that the
2.   Cases cognizable by the Sandiganbayan [Sec. 4, arraignment offended party may file
P.D. 1606, as amended by R.A. 10660] against the estate of the
3.   Tax cases [Sec. 7(b)(1), RA 9282] deceased [Sec. 4, Rule 111]
The civil liability is
c.   Separate action filed by the accused extinguished. But,
No counterclaim, cross-claim or third-party complaint a.   An independent civil
may be filed by the accused in the criminal case, but action enforcing
any cause of action which could have been the subject liabilities under Art. 32,
thereof may be litigated in a separate civil action [Sec. 33, 34, 35 and 2176 may
1, Rule 111] be continued against the
After arraignment estate or legal
3.  When Separate Civil and during
pendency of the
representative of the
accused, after proper
Action Is Suspended criminal action substitution.
b.   If the civil action has
a.   After the criminal action has been commenced, been reserved and
the separate civil action arising therefrom cannot subsequently filed, the
be instituted until final judgment has been civil action shall proceed
entered in the criminal action after substitution of
b.   If the criminal action is filed after the civil action parties.
has already been instituted, the civil action shall [Sec. 4, Rule 111]
be suspended in whatever stage it may be found Civil and criminal liabilities
before judgment on the merits. The suspension are extinguished [People v.
During appeal
shall last until final judgment is rendered on the Alison, G.R. No. L-30612
criminal action. (1983)]
c.   The civil action may be consolidated with the The civil liability is not
criminal action in the court trying the criminal extinguished. Claims shall be
case, upon motion of the offended party and After judgment filed against the estate of the
before judgment is rendered on the merits of the accused under Rule 86 of the
civil action. The evidence already adduced in the ROC. [Sec. 5, Rule 86]
civil action will be automatically reproduced in the
criminal action.
[Sec. 1, Rule 111]
5.  P rejudicial Question
Note: The Rules preclude a motu proprio suspension One which arises in a case, where
by the judge of the civil action; it must be by petition of the resolution of which is a logical
the defendant [Yap v. Paras, G.R. No. 101236 (1992)] antecedent of the issue involved
therein and the cognizance of which
During the pendency of the criminal action, the pertains to another tribunal [People
running of the period of prescription of the civil action v. Consing, G.R. No. 148193 (2003)]
which cannot be instituted separately or whose
proceeding has been suspended shall be tolled [Sec. There is a prejudicial question only
2, Rule 111] when the matter that has to be
priorly decided by another authority
Definition
is one where the cognizance of
4.  E ffect of Death of the which pertains to that authority and
Accused or Convict On should not, under the
circumstances, be passed upon by
Civil Action the court trying the criminal case
[Rojas v. People, G.R. No. L-22237
Upon the death of the accused or convict, criminal (1974)]
liability is extinguished [Art. 89, RPC]
It is a question based on a fact
distinct and separate from the crime

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but so intimately connected with it G.R. No. 174168 (2009)]

that it determines the guilt or The nullity and forgery of the prior
innocence of the accused [Ras v. deed of sale is based on the very
Rasul, G.R. No. L-50411 (1980)] same facts which would be
a.   The previously instituted civil necessarily determinative of the
action involves an issue similar accused’s guilt or innocence in the
or intimately related to the Example case for estafa. If the first alleged
issue raised in the subsequent sale is void or fictitious, then there
Elements criminal action. would have been no double sale
b.   The resolution of such issue and the accused would be declared
determines whether or not the innocent [Ras v. Rasul, G.R. No.
criminal action may proceed. 50411 (1980)]
[Sec. 7, Rule 111]
Suspension of the criminal action Not a prejudicial question
[Sec. 6, Rule 111] Although both are based on fraud, civil case for the
revocation of a management contract did not affect
Effect
It does not prescribe the dismissal the criminal cases for estafa for executing a chattel
of the criminal action [Yap v. Paras, mortgage on personal property in favor of another
G.R. No. 101236, (1992)] without the consent of the previous mortgagee [Rojas
a.   office of the prosecutor (in the v. People, G.R. No. L-22237 (1974)]
PI stage);
b.   Court conducting the PI; or The issue of the validity of the receipt was not
Where filed c.   Court where criminal action has determinative of the guilt or innocence for estafa
been filed for trial, at any time because even if that receipt was annulled on the basis
before the prosecution rests of fraud, duress or intimidation, the accused’s guilt
[Sec. 6, Rule 111] could still be established when evidence can be shown
A petition for suspension of the that they had actually received the sum for the fishing
criminal action by reason of a boat but instead of purchasing one, they
prejudicial question in a civil action misappropriated and failed to return the money to him
may be filed in upon demand. But, it could have been a prejudicial
a.   the office of the prosecutor or question had the criminal case been for falsification of
the the same receipt involved in the civil action [Jimenez v.
b.   court conducting the PI Averia, G.R. No. L-22759 (1968)]

When the criminal action has

already been filed for trial, the
petition shall be filed in the same
criminal action at any time before Where petition for suspension based upon
the prosecution rests [Sec. 6, Rule prejudicial question may be filed
Application 111] A petition for suspension of the criminal action based
upon the pendency of a prejudicial question in a civil
Sec. 6, Rule 111 of the 1985 Rules of action may be filed in the office of the prosecutor or
Criminal Procedure plainly says that the court conducting the preliminary investigation.
the suspension may be made only When the criminal action has been filed in court for
upon petition and not at the trial, the petition to suspend shall be filed in the same
instance of the judge alone, and it criminal action at any time before the prosecution
also says suspension, and not rests [Sec. 6, Rule 111]
dismissal [Yap v. Paras, G.R. No..
No. 101236 (1992)] Prejudicial question where civil and administrative
cases, but no criminal case, involved
Note: Both the 1985 Rules (involved The actions involved being respectively civil (forcible
in Yap) and the 2000 Rules refer to entry) and administrative (before the Land Authority
a petition for suspension. regarding the right to possession) in character, it is
To avoid two conflicting decisions in obvious that technically, there is no prejudicial
Rationale the civil case and in the criminal question to speak of. Equally apparent, however, is the
case [Sy Thiong Shiou v. Sy Chim, intimate correlation between said two proceedings,
stemming from the fact that the right of private

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

respondents to eject petitioner from the disputed 3.   If the amounts are not so alleged but any of
portion depends primarily on the resolution of the these damages are subsequently awarded by
pending administrative case. Thus, the SC ruled that the court, the filing fees based on the amount
the more prudent course for the trial court to have awarded shall constitute a first lien on the
taken is to hold the ejectment proceedings in judgment.
abeyance until after a determination of the [Sec. 1, Rule 111]
administrative case [Quiambao v. Osorio, G.R. No. L- b.   Estafa – The offended party shall pay in full the
48157 (1988)] filing fees based on the amount involved [See
Sec. 20, Rule 141]
Prejudicial question where administrative and
criminal cases, but no civil case, involved
The case of San Miguel Properties, Inc. v. Perez [G.R.
No. 166836 (2013)] involved an administrative case for
specific performance before the HLURB and a criminal
prosecution for violation of Sec. 25 of P.D. 957. San
Miguel argued that the concept of a prejudicial
question involves a civil action and a criminal action
and there can be no prejudicial question to speak of
because no civil action was pending. The SC said the
HLURB case raises a prejudicial question that sufficed
to suspend the criminal proceedings since the action
before the HLURB was “civil in nature” and could not
be instituted elsewhere except in the HLURB whose
jurisdiction over the action was exclusive and original.

6.  R ule on Filing Fees in Civil

Action Deemed Instituted
With the Criminal Action
General rule:
a.   No filing fees shall be required for actual
damages.
b.   Where the amount of moral, exemplary, nominal,
temperate (except actual) damages is specified in
the complaint/information, the corresponding
filing fees shall be paid by the offended party
upon the filing thereof in court.
c.   Where the amount of moral, exemplary, nominal,
temperate damages is NOT specified in the
complaint/Information, the filing fees shall
constitute a first lien on the judgment awarding
such damages
[Sec. 1, Rule 111]

Exception:
a.   Violations for B.P.22
1.   The offended party shall pay in full the filing
fees based on the amount of the check
involved, which shall be considered as the
actual damages claimed.
2.   Where the complaint or information also
seeks to recover liquidated, moral, nominal,
temperate or exemplary damages, the
offended party shall pay additional filing fees
based on the amounts alleged therein.

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  Preliminary Investigation When the accused waives his right to PI, the fiscal may
forthwith file the corresponding information with the
proper court [People v. Perez, G.R. No. L-15231 (1960)]
1.   Nature of Right
An application for or admission to bail shall not bar
It is an inquiry or proceeding to determine whether the accused from assailing the regularity or
there is sufficient ground to engender a well-founded questioning the absence of a PI of the charge against
belief that a crime has been committed and the him provided that he raises the challenge before
respondent is probably guilty thereof, and should be entering his plea [Sec. 26, Rule 114]
held for trial [Sec. 1, Rule 112, as amended by A.M. No.
05-8-26-SC] When right deemed waived
a.   Express waiver or by silence [Pilapil v.
Preliminary Investigation is “merely inquisitorial, and Sandiganbayan, G.R. No. 101978 (1993)]
it is often the only means of discovering the persons b.   Failure to invoke it during arraignment [People v.
who may reasonably be charged with a crime, to De Asis, G.R. No. 105581 (1993)]; and
enable the prosecutor to prepare his complaint or c.   Consenting to be arraigned and entering a plea of
information. It is not a trial of the case on the merits” not guilty without invoking the right to PI [People
and does not place the persons against whom it is v. Bulosan, G.R. No. L-58404 (1988)]
taken in jeopardy [Paderanga v. Drilon, G.R. No.
96080 (1991)] The waiver, whether express or implied, must be in a
clear and unequivocal manner [Larranaga v. CA. G.R.
It is an executive, not a judicial function. Such No. 130644 (1998)]
investigation is not part of the trial, hence, a full and
exhaustive presentation of the parties' evidence is not The right cannot be raised for the first time on appeal
required, but only such as may engender a well- [Pilapil v. Sandiganbayan, G.R. No. 101978 (1993)]
grounded belief that an offense has been committed
and that the accused is probably guilty thereof When right not deemed waived
[Metropolitan Bank and Trust Company v. Tonda, G.R. a.   Failure to appear before the prosecutor during the
No. 134436 (2000)] clarificatory hearing or when summoned, when
the right was invoked at the start of the
Right to preliminary investigation proceeding [Larranaga v. CA, G.R. No. 130644
Neither the 1935 nor the 1973 Constitution requires the (1998)]; or
holding of a PI. The right thereto is of statutory b.   When the accused filed an application for bail and
character and may be invoked only when specifically was arraigned over his objection and the accused
created by statute. It is not a fundamental right and demand that PI be conducted [Go v. CA, G.R. No.
may be waived expressly or by silence [Marinas v. 101837 (1992)]
Siochi, G.R. Nos.. L-25707 (1981)]
2.  P urposes of Preliminary
Note: This doctrine is still applicable since the 1987
Constitution does not require a PI. Investigation
The right to have a PI conducted before being bound a.   To determine whether or not a crime has been
over to trial for a criminal offense and hence formally committed and whether or not there is probable
at risk of incarceration or some other penalty, is not a cause to believe that the accused is guilty [Raro v.
mere formal or technical right; it is a substantive right. Sandiganbayan, G.R. No. 108431 (2000)]
To deny the accused’s claim to a PI would be to deprive b.   To secure the innocent against hasty, malicious
him of the full measure of his right to due process and oppressive prosecution, and to protect him
[Sales v. Sandiganbayan, G.R. No. 143802 (2001)] from an open and public accusation of a crime,
from the trouble, expense, anxiety of a public trial,
Waiver of right and also protect the state from useless and
The right to PI is a personal right which the accused expensive trials [Tandoc v. Resultan, G.R. No.
may waive either expressly or by implication but at all 59241-44 (1989)]
times must be unequivocal. Mere failure of a
defendant and/or his counsel to appear during PI
cannot be construed as a waiver [Larranaga v. CA, G.R.
No. 130644 (1998)]

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

People, G.R. No. 197293 (2014)]

3.  Who May Conduct
Determination of The PI conducted by the fiscal is terminated upon the
filing of the information in the proper court [Crespo v.
Existence of Probable Mogul, G.R. No. L-53373 (1987)]
Cause b.   Court
Probable cause The judicial determination of probable cause is one
Probable cause means the existence of such facts and made by the judge to ascertain whether a warrant of
circumstances as would excite the belief, in a arrest should be issued against the accused [Sec. 2,
reasonable mind, acting on the facts within the Art. III, Constitution]
knowledge of the prosecutor, that the person charged
was guilty of the crime for which he was prosecuted Note: RTC judges have no power to conduct PI; and
[Allado v. Diokno, G.R. No. 113630 (1994)] MTC judges cannot conduct PI anymore after A.M. No.
05-8-26-SC eliminated judges of the MTC and MCTC
The quantum of evidence now required in PI is such from those authorized to conduct a PI effective
evidence sufficient to “engender a well-founded October 3, 2005.
belief” as to the fact of the commission of a crime and
the respondent's probable guilt thereof. A PI is not the c.   COMELEC
occasion for the full and exhaustive display of the The COMELEC may conduct investigation as regards
parties’ evidence; it is for the presentation of such election offenses [Sec. 2(6), Art. IX-C, Constitution;
evidence only as may engender a well-grounded belief Sec. 265, Omnibus Election Code]
that an offense has been committed and that the
accused is probably guilty thereof [Estrada v. d.   Ombudsman
Ombudsman, G.R. No. 212140 (2015)] The Ombudsman and his deputies, as protectors of
the people, shall act promptly on complaints filed in
The determination of probable cause during a PI or any form or manner against public officials or
reinvestigation is recognized as an executive function employees of the Government, or any subdivision,
exclusively of the prosecutor. A prosecutor cannot agency or instrumentality thereof, including GOCCs
then be compelled by mandamus to file a case against and shall, in appropriate cases, notify the
an alleged criminal. The only exception is when such complainants of the action taken and the result
prosecutor acted with grave abuse of discretion thereof [Sec. 12, Art. XI, Constitution]
amounting to grave abuse of discretion amounting to
lack or excess of jurisdiction [Hegerty v. CA, 409 SCRA Only one motion for reconsideration or reinvestigation
285 (2003)] of an approved order or resolution shall be allowed,
the same to be filed within 5 days from notice thereof
Hearsay evidence is admissible during PI [De Lima v. with the Office of the Ombudsman, or the proper
Guerrero, G.R. No. 229781 (2017), citing Estrada v. Deputy Ombudsman as the case may be, with
Ombudsman, G.R. No. 212140 (2015)] corresponding leave of court in cases where
information has already been filed in court [Sec. 7.
In general, the following may conduct the Rule II, Rules of Procedure of the Office of the
determination of existence of probable cause in a PI Ombudsman]
(1)   Provincial/city prosecutors and their assistants
(2)  National and regional state prosecutors The Ombudsman is authorized to conduct PI and to
(3)  Other officers as may be authorized by law prosecute all criminal cases involving public officers
[Sec. 2, Rule 112, as amended by A.M. No. 05-8-26-SC] and employees, not only those within the jurisdiction
(4)   Ombudsman (see below) of the Sandiganbayan, but also those within the
jurisdiction of regular courts as well [Uy v.
a.   Prosecutor Sandiganbayan, G.R. No. 105965-70 (2001)]
The executive determination of probable cause is one
made during the PI. It is a function that properly Courts should not interfere with the Ombudsman’s
pertains to the public prosecutor who is given a broad investigatory power, exercised through the Special
range of discretion to determine whether probable Prosecutor, except when the finding is tainted with
cause exists for purposes of indictment. Such finding GAD amounting to lack or excess of jurisdiction. On
will not be disturbed by the court unless there is the other hand, if the Special Prosecutor files a motion
finding of grave abuse of discretion [Mendoza v. to dismiss/motion for leave to file a motion to
withdraw the information after reinvestigation, the

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resolution of such motion rests on the sound discretion evidence at his expense [Sec. 3(b), Rule 112, as
of the anti-graft court [Fuentes v. Sandiganbayan, G.R. amended by A.M. No. 05-8-26-SC]
No. 164664 (2006)] ¯
Respondent’s counter-affidavit
A person under PI by the Ombudsman is entitled to file
a motion for reconsideration of the adverse resolution,
It must be made within 10 days from receipt of
under Sec. 7 of the Rules of Procedure of the
subpoena with the complaint, and must comply
Ombudsman. The filing of the information without
with the same requirements as a complaint.
first affording the accused his right to file a motion for Respondent is not allowed to file a motion to
reconsideration renders PI conducted in this case dismiss in lieu of counter-affidavit [Sec. 3(c), Rule
incomplete. The inevitable conclusion is that the
112, as amended by A.M. No. 05-8-26-SC]
accused was not only effectively denied the
opportunity to file a motion for reconsideration of the
If the respondent cannot be subpoenaed, of if
Ombudsman’s final resolution but also deprived of his
subpoenaed, does not submit counter-affidavits
right to a full PI preparatory to the filing of the
within the ten (10) day period, the investigating
information against him [Sales v. Sandiganbayan, G.R.
officer shall resolve the complaint based on the
No. 143802 (2001)] evidence presented by the complainant [Sec. 3(d),
Rule 112, as amended by A.M. No. 05-8-26-SC]
Procedure for Preliminary Investigation
This situation would have the effect of an ex-parte
Filing of the complaint, which investigation [Riano 210, 2016 Ed.]
a.   States the respondent’s address
b.   Includes the affidavits of the complainant and ¯
his witnesses, and other supporting Clarificatory hearing
documents to establish probable cause. The
affidavits shall be subscribed and sworn to The investigating officer may set a hearing if there
before any prosecutor or government official are facts and issues to be clarified from a party or a
authorized to administer oath or if absent or witness. The parties can be present at the hearing
unavailable, before a notary public, each of but without the right to examine or cross-examine.
whom must certify that he personally They may, however, submit to the investigating
examined the affiants and that he is satisfied officer questions which may be asked to the party
that they voluntarily executed and understood or witness concerned [Sec. 3(e), Rule 112, as
their affidavits. amended by A.M. No. 05-8-26-SC]
c.   Shall be in such number of copies as there are
respondents, plus 2 copies for the official file The hearing shall be held within 10 days from
[Sec. 3(a), Rule 112, as amended by A.M. No. 05-8- submission of the counter-affidavits and other
26-SC] documents or from the expiration of the period for
their submission. It shall be terminated within five
¯ (5) days [Sec. 3(e), Rule 112, as amended by A.M.
Action of the investigating officer No. 05-8-26-SC]
a.   Within 10 days after the filing of the complaint,
the investigating officer will either: ¯
1.   Dismiss, if he finds no ground to continue Determination
the investigation; or
2.   Issue a subpoena to the respondent, Within ten (10) days after the investigation, the
attaching the complaint and supporting investigating officer shall determine whether or
affidavits and documents not there is sufficient ground to hold the
[Sec. 3(b), Rule 112, as amended by A.M. No. respondent for trial [Sec. 3(f), Rule 112, as
05-8-26-SC] amended by A.M. No. 05-8-26-SC]
3.   If the respondent cannot be subpoenaed,
the investigating officer shall resolve the Note: During the conduct of PI, the prosecutor is under
complaint based on the evidence no duty to provide the respondent with the counter-
presented by the complainant [Sec. 3(d), affidavits of his/her co-respondents [Estrada v.
Rule 112, as amended by A.M. No. 05-8- Ombudsman, G.R. No. 212140-41 (2015)]
26-SC]
b.   Respondent has the right to examine the
evidence submitted by complainant which he
may not have been furnished and to copy

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4.  R esolution of the corresponding information without conducting

another preliminary investigation, or to dismiss or
Investigating Prosecutor move for dismissal of the complaint or information
with notice to the parties. The same rule shall
If he finds probable cause to hold respondent for trial, apply in preliminary investigations conducted by
he shall prepare the resolution and information and the officers of the Office of the Ombudsman.
shall certify under oath in the information that: [Sec. 4, Rule 112, as amended by A.M. No. 05-8-26-SC]
a.   He, or as shown by the record, an authorized
officer has personally examined the complainant The Secretary of Justice (SOJ) may review resolutions,
and his witnesses; via petition for review to the SOJ, of his subordinates
b.   There is reasonable ground to believe that a crime in criminal cases despite the information being filed in
has been committed and the accused is probably court [Community Rural Bank of Guimba v. Talavera,
guilty thereof; A.M. No. RTJ-05-1909 (2005); see also DOJ Circ. No.
c.   The accused was informed of the complaint and 70]
of the evidence against him; and
d.   He was given opportunity to submit controverting A motion for reconsideration may be filed against the
evidence SOJ’s resolution [DOJ Circ. No. 70 (2000)]
If he finds no probable cause, he shall recommend
the dismissal of the complaint [Sec. 4, Rule 112, as The resolution of the Secretary of Justice may be
amended by A.M. No. 05-8-26-SC] nullified in a petition for certiorari under Rule 65 on
grounds of grave abuse of discretion resulting to lack
or excess of jurisdiction [Ching v. Sec. of Justice, G.R.
5.  R eview No. 164317 (2006)]
Within 5 days from the resolution, the investigating The DOJ resolution is appealable administratively
officer shall forward the case to the before the Office of the President and the decision of
provincial/city/chief state prosecutor, or to the the latter may be appealed before the CA pursuant to
Ombudsman or his deputy in cases cognizable by Rule 43 [De Ocampo v. Sec. of Justice, G.R. No. 147932
the Sandiganbayan in the exercise of its original (2006)]
jurisdiction.
¯ Note: As provided under Memorandum Circular No. 58
Within 10 days from receipt of the resolution, the (2003), no appeal from or petition for review of
Prosecutor/Ombudsman shall act on the decisions/orders/resolutions of the Secretary of
resolution and shall immediately inform the Justice on preliminary investigations shall be
parties of such action. entertained by the Office of the President, except
those involving offenses punishable by reclusion
¯ perpetua to death [Angeles v. Gaite, G.R. No. 176596
No complaint/information may be filed or
(2011)]
dismissed by an investigating prosecutor without
the prior written authority or approval of the
Thus, in De Ocampo involving homicide in relation to
provincial/city/chief state prosecutor, or
Sec. 10(a), Art. VI of R.A. 7610 punishable by reclusion
Ombudsman or his deputy.
perpetua, appeal to the OP was available. However, in
Angeles involving libel, appeal to the OP was not
Where the investigating prosecutor recommends
allowed.
the dismissal of the complaint but the
prosecutor/Ombudsman or his deputy disapproves
The Court of Appeals is clothed with jurisdiction to
his recommendation, the latter may file the
review the resolution issued by the Secretary of the
information by himself or direct another
DOJ through a petition for certiorari under Rule 65 …
assistant/state prosecutor to do so without
solely on the ground that the Secretary of Justice
conducting a new PI.
committed grave abuse of his discretion amounting to
¯ excess or lack of jurisdiction [Argovan v. San Miguel
If upon petition by a proper party under such rules Corporation, G.R. No. 188767 (2013)]
as the Department of Justice may prescribe or
motu proprio, the Secretary of Justice reverses or “While they are correct in stating that the right to
modifies the resolution of the provincial or city preliminary investigation is a substantive, not merely
prosecutor or chief state prosecutor, he shall direct a procedural right, petitioners are wrong in arguing
the prosecutor concerned either to file the that the Information filed, without affording the

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

respondent his right to file a motion for the exercise of its original jurisdiction [Sec. 5(c), Rule
reconsideration of an adverse DOJ resolution, is fatally 112, as amended by A.M. No. 05-8-26-SC]
premature” [Aguinaldo and Perez v. Ventus and Joson,
G.R. No. 176033 (2015)] The PI for the determination of a sufficient ground for
the filing of the information is executive in nature. It is
The CA has jurisdiction to review the resolution issued part of the prosecution's job [P/Supt. Cruz v. Judge
by the Secretary of Justice through a petition for Areola, A.M. No. RTJ-01-1642 (2002)]
certiorari under Rule 65 albeit solely on the ground
that the Secretary committed grave abuse of his The PI conducted by the judge which is properly called
discretion amounting to excess or lack of jurisdiction. preliminary examination is for the determination of
Petitioners could have easily availed themselves of probable cause for the issuance of warrant of arrest
such recourse instead of directly assailing the same [P/Supt. Cruz v. Judge Areola, A.M. No. RTJ-01-1642
before the SC [Chong v. Dela Cruz, G.R. No. 184948 (2002)]
(2009)]
NOTE: Trial judges determine probable cause in the
exercise of their judicial functions. A trial judge’s
6.  W hen Warrant of Arrest finding of probable cause for the issuance of a search
May Issue warrant is accorded respect by reviewing courts when
the finding has substantial basis [Worldwide Web
By the RTC Corp. v. People, G.R. No. 161106 (2014)]
a.   Within 10 days from the filing of the complaint or
information, the judge shall personally evaluate The judge had no positive duty to first resolve the
the resolution of the prosecutor and its supporting Motion to Quash before issuing a warrant of arrest.
evidence. Sec. 5(a), Rule 112 required the judge to evaluate the
b.   He may immediately dismiss the case if the prosecutor's resolution and its supporting evidence
evidence on record clearly fails to establish within a limited period of only 10 days [De Lima v.
probable cause. Guerrero, G.R. No. 229781 (2017)]
c.   If he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the
accused has already been arrested pursuant to a
7.  Cases Not Requiring
warrant issued by the judge who conducted the PI Preliminary Investigation
or when the complaint or information was filed
pursuant to Sec. 7 of Rule 112, as amended by A.M.
nor Covered By the Rule
No. 05-8-26-SC. on Summary Procedure
d.   In case of doubt on the existence of probable
cause, the judge may order the prosecutor to If the complaint is filed directly with the prosecutor
present additional evidence within 5 days from involving an offense punishable by an imprisonment
notice and the issue must be resolved by the court of less than 4 years, 2 months and 1 day, the procedure
within 30 days from the filing of the complaint or outlined in Sec. 3(a), Rule 112, as amended by A.M. No.
information. 05-8-26-SC shall be observed. The prosecutor shall
[Sec. 5(a), Rule 112, as amended by A.M. No. 05-8-26- act on the complaint based on the affidavits and other
SC] supporting documents submitted by the complainant
within ten (10) days from its filing [Sec. 8(a), Rule 112,
By the MTC as amended by A.M. No. 05-8-26-SC]
The procedure for the issuance of a warrant of arrest
by the judge shall be governed by Sec. 5(a) quoted Sec. 3(a), Rule 112, as amended by A.M. No. 05-8-26-
above [Sec. 5(b), Rule 112, as amended by A.M. No. 05- SC states that:
8-26-SC] a.   The complaint shall state the address of the
respondent and shall be accompanied by
When warrant of arrest shall not issue affidavits of the complainant and his witnesses, as
A warrant of arrest shall not issue if the accused is well as other supporting documents to establish
already under detention pursuant to a warrant issued probable cause.
by the municipal trial court in Section 5(b) quoted b.   They shall be in such number of copies as there
above, or if the complaint or information was filed are respondents, plus 2 copies for the official file.
pursuant to Sec. 6, Rule 112 (When accused lawfully The affidavits shall be subscribed and sworn to
arrested without warrant) or is for an offense before any prosecutor or government official
penalized by fine only. The court shall then proceed in

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

authorized to administer oath, or, in their absence

or unavailability, before a notary public, each of The trial court, instead of dismissing the information,
whom must certify that he personally examined should hold in abeyance the proceedings and order
the affiants and that he is satisfied that they the public prosecutor to conduct a PI [Villaflor v. Vivar,
voluntarily executed and understood their G.R. No. 134744 (2001)]
affidavits.
After the filing of the complaint/information in court
If the complaint or information is filed with the without a PI, the accused may within 5 days from the
MTC/MCTC for an offense covered by this section time he learns of its filing, ask for a PI with the same
a.   The procedure in Sec. 3(a) quoted above shall be right to adduce evidence in his defense as provided in
observed. Rule 112 [Sec. 6, Rule 112, as amended by A.M. No. 05-
b.   If within 10 days after the filing of the complaint of 8-26-SC]
information, the judge finds no probable cause
after personally evaluating the evidence, or after The right cannot be raised for the first time on appeal
personally examining in writing and under oath [Pilapil v. Sandiganbayan, G.R. No. 101978 (1993)]
the complainant and his witnesses in the form of
searching questions and answers, he shall Restraining preliminary investigation
dismiss the same. General rule: The power of the Fiscal to investigate
c.   He may, however, require the submission of crimes committed within his jurisdiction will,
additional evidence, within 10 days from notice, to ordinarily, not be restrained.
determine further the existence of probable
cause. Exceptions: Extreme cases may exist where relief in
d.   If the judge still finds no probable cause despite equity may be availed of to stop a purported
the additional evidence, he shall, within 10 days enforcement of a criminal law where it is necessary:
from its submission or expiration of said period, a.   For the orderly administration of justice;
dismiss the case. b.   To prevent the use of the strong arm of the law in
e.   When he finds probable cause, he shall issue a an oppressive and vindictive manner;
warrant of arrest, or a commitment order if the c.   To avoid multiplicity of actions;
accused had already been arrested, and hold him d.   To afford adequate protection to constitutional
for trial. rights [Hernandez v. Albano, G.R. No. L-19272
f.   However, if the judge is satisfied that there is no (1967)]
necessity for placing the accused under custody, e.   In proper cases, because the statute relied upon is
he may issue summons instead of a warrant of unconstitutional, or was “held invalid” [Ladlad v.
arrest. Velasco, G.R. No. 172070-72 (2007)]
[Sec. 8(b), Rule 112, as amended by A.M. No. 05-8-26-
SC]

8.  R emedies of Accused If
There Was No Preliminary
Investigation
Effect of denial of right
The absence of a PI does not impair the validity of an
information or render it defective. Neither does it
affect the jurisdiction of the court or constitute a
ground for quashing the information [Villaflor v. Vivar,
G.R. No. 134744 (2001)]

Remedies of the accused if there was no PI

a.   Call the attention of the court to the deprivation of
the required PI before entering his plea
[Larranaga v. CA. G.R. No. 130644 (1998)]
b.   File a certiorari, if refused and such refusal is
tainted with grave abuse of discretion [Riano 186,
2016 Ed.]

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

  Arrest arrested without the necessity of a warrant if

he attempts to depart from the Philippines
without permission of the court where the
1.   Arrest, How Made case is pending [Sec. 23, Rule 114]

Arrest Note: A legitimate warrantless arrest necessarily

Arrest is the taking of a person into custody in order includes the authority to validly search and seize from
that he may be bound to answer for the commission of the offender (1) dangerous weapons, and (2) those that
an offense [Sec. 1, Rule 113] may be used as proof of the commission of an offense
[People v. Montilla, G.R. No. 123872, (1998)]
How made
a.   by actual restraint of a person to be arrested; a.   IN FLAGRANTE DELICTO
b.   by his submission to the custody of the person
making the arrest [Sec. 2, 1st par., Rule 113] A peace officer or a private person may, without
warrant, arrest a person when, in his presence, the
Application of actual force, manual touching of the person to be arrested:
body, physical restraint or a formal declaration of 1.   Has committed
arrest is not required. It is enough that there be an 2.   Is actually committing, or
intent on the part of one of the parties to arrest the 3.   Is attempting to commit
other and an intent on the part of the other to submit, an offense
under the belief and impression that submission is [Sec. 5(a), Rule 113]
necessary [Sanchez v. Demetriou, G.R. No. 111771
(1993)] “Reliable information” alone, absent any overt act
indicative of a felonious enterprise in the presence and
No violence or unnecessary force shall be used in within the view of the arresting officers, are not
making an arrest [Sec. 2, 2nd par., Rule 113] sufficient to constitute probable cause that would
justify an in flagrante delicto arrest [People v. Molina,
An arrest may be made on any day and at any time of G.R. No. 133917 (2001)]
the day or night [Sec. 6, Rule 113]
To constitute a valid in flagrante delicto arrest, the
following requisites must concur
2.  A rrest without Warrant, 1.   The person to be arrested must execute an overt
act indicating that he has just committed, is
When Lawful actually committing, or is attempting to commit a
crime, and
General rule: No peace officer or person has the power 2.   Such overt act is done in the presence or within
or authority to arrest anyone without a warrant except the view of the arresting officer
in those cases expressly authorized by law [Umil v. [Zalameda v. People, G.R. No. 183656 (2009); People
Ramos, G.R. No. 81567 (1991)] v. Laguio, G.R. No. 128587 (2007)]
Exceptions: “In his presence” means:
a.   In flagrante delicto [Sec. 5(a), Rule 113] 1.   He sees the offense, even though at a distance, or
b.   Hot pursuit arrest [Sec. 5(b), Rule 113] 2.   He hears the disturbances created by the offense
c.   Arrest of escaped prisoner [Sec. 5(c), Rule 113] and proceeds at once to the scene
d.   Other lawful warrantless arrests [People v. Evaristo, G.R. No. 93828 (1992)]
1.   If a person lawfully arrested escapes or is
rescued, any person may immediately pursue The following are instances of this type of arrest
or retake him without a warrant at any time without warrant
and in any place within the Philippines [Sec. 1.   An arrest made after an entrapment does not
13, Rule 113] require a warrant inasmuch as it is considered a
2.   For the purpose of surrendering the accused, valid warrantless arrest pursuant to Sec. 5(a),
the bondsmen may arrest him or, upon Rule 113 [Teodosio v. CA, G.R. No. 124346 (2004)]
written authority endorsed on a certified copy This is different from instigation, which means
of the undertaking, cause him to be arrested luring the accused into a crime that he, otherwise,
by a police officer or any other person of had no intention to commit, in order to prosecute
suitable age and discretion [Sec. 23, Rule 114] him, and leads to acquittal [People v. Dansico,
3.   An accused released on bail may be re- G.R. No. 178060 (2011)]

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

2.   When a person is caught in flagrante as a result of should be gathered (i.e. just after the commission of
the buy-bust operation, the policemen are not the crime). This required time element acts as a
only authorized but are also under obligation to safeguard to ensure that the police officers have
apprehend the drug pusher even without a gathered the facts or perceived the circumstances
warrant of arrest [People v. de Lara, G.R. No. within a very limited time frame, such that the chances
94953 (1994)] of contamination of facts is minimal. It does not
require actual presence at the scene while a crime
A buy-bust operation is a valid form of in flagrante was being committed; it is enough that evidence of the
delicto arrest. It is a valid form of entrapment [People recent commission of the crime is patent and the
v. Araneta, G.R. No. 191062 (2010)] police officer has probable cause to believe based on
personal knowledge of facts or circumstances, that
b.   HOT PURSUIT ARREST the person to be arrested has recently committed the
A peace officer or a private person may, without crime [Pestilos v. Generoso, G.R. No. 182601 (2014)]
warrant, arrest a person when an offense has just been
committed and the officer or private person has Note: Where a warrantless arrest is made under the in
probable cause to believe, based on personal flagrante and hot pursuit exceptions, the person
knowledge of facts or circumstances that the person arrested without a warrant shall be forthwith delivered
to be arrested has committed it [Sec. 5(b), Rule 113] to the nearest police station or jail and shall be
proceeded against in accordance with Sec. 7 of Rule
Requisites: 112 [Sec. 5, 2nd par., Rule 113]
1.   An offense has just been committed. There must
be a large measure of immediacy between the Sec. 7 of Rule 112 states that when a person is lawfully
time the offense was committed and the time of arrested without a warrant involving an offense which
the arrest. If there was an appreciable lapse of requires a PI, the complaint or information may be
time between the arrest and the commission of filed by a prosecutor without need of such
the crime, a warrant of arrest must be secured investigation provided an inquest has been conducted
[People v. del Rosario, G.R. No. 127755 (1999); in accordance with existing rules.
People v. Agojo , G.R. No. 181318 (2009)]; and
2.   The person making the arrest has probable cause Inquest is defined as an informal and summary
to believe, based on personal knowledge of facts investigation conducted by a public prosecutor in
and circumstances, that the person to be arrested criminal cases involving persons arrested and
has committed it. detained without the benefit of a warrant of arrest
issued by the court for the purpose of determining
The phrase covers facts, or in the alternative, whether said persons should remain under custody
circumstances. Circumstances may pertain to events and correspondingly be charged in court [Leviste v.
or actions within the actual perception, personal Alameda, G.R. No. 182677 (2010), citing Sec. 1, DOJ
evaluation or observation of the police officer at the Circ. No. 61 (1993)]
scene of the crime. Thus, even though the police officer
has not seen someone actually fleeing, he could still General rule: PI is required to be conducted before a
make a warrantless arrest if, based on his personal complaint/information is filed for an offense where
evaluation of the circumstances at the scene of the the penalty prescribed by law is at least 4 years, 2
crime, he could determine the existence of probable months and 1 day, without regard to the fine [Sec. 1,
cause. However, the determination of probable cause Rule 112, , as amended by A.M. No. 05-8-26-SC]
and the gathering of facts and circumstances should
be made immediately after the commission of the Exception: When a person is lawfully arrested without
crime in order to comply with the element of a warrant involving an offense that requires a PI, a
immediacy [Pestilos v. Generoso, G.R. No. 182601 complaint/information may be filed without
(2014)] conducting the PI if the necessary inquest is
conducted.
Probable cause must be based on personal knowledge
which means an actual belief or reasonable grounds In the absence of an inquest prosecutor, the offended
of suspicion [Abelita III v. Doria, G.R. No. 170672 party or peace officer may directly file the complaint in
(2009)] court [Sec. 6, Rule 112, as amended by A.M. No. 05-8-
26-SC]
The clincher in the element of “personal knowledge of
facts or circumstances” is the required element of Remedy of a person arrested without a warrant:
immediacy within which these facts or circumstances 1.   BEFORE the complaint or information is filed,

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arrested person may ask for PI arrested is a prisoner who has escaped
i.   he must sign a waiver of the provisions of 1.   from a penal establishment or place where he is
Article 125 of RPC, in the presence of his serving final judgment or temporarily confined
counsel; while his case is pending; or
ii.   he may apply for bail; 2.   While being transferred from one confinement to
iii.   the investigation must be terminated another
within 15 days from its inception [Sec. 5(c), Rule 113]
2.   AFTER the filing of the complaint but BEFORE
arraignment, the accused may ask for PI within 5 Escapee may be immediately pursued or re-arrested
days without a warrant at any time and in any place within
[Sec. 6, Rule 112, as amended by A.M. No. 05-8-26-SC] the Philippines [Sec. 13, Rule 113]

Procedure Rationale
An inquest is considered commenced upon receipt by At the time of arrest, the escapee is in continuous
the Inquest officer from the law enforcement commission of a crime (i.e., evasion of service of
authorities of the complaint/referral documents which sentence). [Parulan v. Director of Prisons, G.R. No. L-
should include: 28519 (1968)]
1.   Affidavit of arrest, investigation report, statement
of the complainant and witnesses, all of which RULES ON ILLEGALITY OF ARREST
must be subscribed and sworn to before him;
2.   Other supporting evidence gathered by the police Effect
in the course of the latter's investigation of the The legality of the arrest affects only the jurisdiction of
criminal incident involving the arrested or the court over the person of the accused [People v.
detained person. Nuevas, G.R. No. 170233 (2007)]
[Sec. 3, DOJ Circ. No. 61 (1993)]
Waiver
The inquest proceedings must be terminated within Any objection involving the arrest or the procedure in
the period prescribed under the provisions of Art. 125, the court’s acquisition of jurisdiction over the person of
RPC. [Sec. 3, DOJ Circ. No. 61 (1993)] an accused must be made before he enters his plea;
otherwise the objection is deemed waived [Zalameda
Duty of inquest officer v. People, G.R. No. 183656 (2009)]
1.   Determine whether warrantless arrest is valid.
[Sec. 8, DOJ Circ. No. 61 (1993)] An accused may be estopped from assailing the
2.   If warrantless arrest is improperly made, Inquest legality of his arrest if he failed to move for the
officer recommends to the City Prosecutor the quashing of the Information against him before his
release of the arrested person [Sec. 9, DOJ Circ. arraignment. Any objection involving the arrest or the
No. 61 (1993)] procedure in the court's acquisition of jurisdiction over
3.   If warrantless arrest is validly made, the Inquest the person of an accused must be made before he
officer asks the detained person if he desires a PI. enters his plea; otherwise, the objection is deemed
If he desires to avail of a PI. If he does, he must waived [People v. Badilla, G.R. No. 218578 (2016)]
execute a waiver of Art. 125, RPC, with the
assistance of a lawyer and, in case of non- An application for or admission to bail shall not bar
availability of a lawyer, a responsible person of his the accused from challenging the validity of his arrest
choice [Sec. 10, DOJ Circ. No. 61 (1993)] or the legality of the warrant issued , provided that he
4.   If detained person does not opt for a PI or refuses raises the objection before he enters his plea. The
to execute the waiver, the Inquest officer court shall resolve the matter as early as practicable
determines the probable cause that the accused but not later than the start of the trial of the case [Sec.
is probably guilty [Sec. 11, DOJ Circ. No. 61 (1993)] 26, Rule 114]
5.   If there is probable cause, the Inquest officer
prepares the complaint/information and forward A waiver of the right to question an illegal warrantless
it, together with the records of the case, to the City arrest does not also mean a waiver of the
Prosecutor for appropriate action [Sec. 13, DOJ inadmissibility of evidence seized during an illegal
Circular No. 61 (1993)] warrantless arrest [People v. Nuevas, G.R. No. 170233
(2007)]
c.   ARREST OF ESCAPED PRISONER
A peace officer or a private person may, without When invalid arrest is cured
warrant, arrest a person when the person to be 1.   When the accused voluntarily submits to the

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jurisdiction of the trial court [Dolera v. People, G.R. police authorities without having the warrant in
No. 180693 (2009); People v. Alunday, G.R. No. their possession at that precise moment [Mallari v.
181546 (2008)] CA, G.R. No. 11069 (1996)]
2.   by the filing of an information in court and the 5.   The officer executing the warrant shall arrest the
subsequent issuance by the judge of a warrant of accused and deliver him to the nearest police
arrest [Sanchez v. Demetriou, G.R. No. 111771 station or jail without unnecessary delay [Sec. 3,
(1993)] Rule 113];
6.   No violence or unnecessary force shall be used in
Note: In Sanchez v. Demitriou [G.R. No. 111771 (1993)], making an arrest. The person arrested shall not be
the Court held that the original warrantless arrest of subject to a greater restraint than is necessary for
the petitioner was doubtless illegal. Nevertheless, the his detention [Sec. 2, 2nd par., Rule 113]
RTC lawfully acquired jurisdiction over the person of
the petitioner by virtue of a warrant of arrest … it Rights of the arresting officer
issued against him …. It was belated, to be sure, but it 1.   To orally summon as many persons as he deems
was nonetheless legal. necessary to assist him in effecting the arrest [Sec.
10, Rule 113]
The issuance of the corresponding warrant of arrest, 2.   To break into building or enclosure when the
against a person invalidly detained will cure the defect following concur:
of that detention or at least deny him the right to be a.   he person to be arrested is or is reasonably
released because of such defect [Sanchez v. believed to be in said building;
Demetriou, G.R. No. 111771 (1993)] b.   He has announced his authority and purpose
of entering therein; and
c.   He has requested and been denied
3.  Method of Arrest admittance.
[Sec. 11, Rule 113]
a.   By Officer with Warrant 3.   To break out from the building/enclosure when
necessary to liberate himself [Sec. 12, Rule 113];
Duties of arresting officer 4.   To search the person arrested for dangerous
1.   Execution of warrant weapons or anything which may have been used
a.   The head of the office to whom the warrant of or constitute proof in the commission of an
arrest was delivered shall cause the warrant offense without a warrant [Sec. 13, Rule 126]
to be executed within 10 days from its receipt.
b.   Within ten (10) days after the expiration of the b.   By Officer without Warrant
period, the officer to whom it was assigned for
execution shall make a report to the judge General rule: The officer shall inform the person to be
who issued the warrant. arrested of:
c.   In case of his failure to execute the warrant, 1.   His authority; and
he shall state the reasons therefor. 2.   The cause of the arrest
[Sec. 4, Rule 113]
2.   The officer shall inform the person to be arrested Exceptions:
of the cause of the arrest and the fact that a 1.   When the person to be arrested is engaged in the
warrant has been issued for his arrest commission of the offense;
3.   This duty does not apply: 2.   When he is pursued immediately after its
a.   When the person to be arrested flees; commission;
b.   When he forcibly resists before the officer has 3.   When he has escaped, flees or forcibly resists
opportunity to so inform him; before the officer has the opportunity to so inform
c.   When the giving of such information will him; or
imperil the arrest 4.   When the giving of such information will imperil
[Sec. 7, Rule 113] the arrest.
4.   The officer need not have the warrant in his [Sec. 8, Rule 113]
possession at the time of the arrest but after the
arrest, if the person arrested so requires, the
warrant shall be shown to him as soon as c.   By Private Person (Citizen’s
practicable [Sec. 7, Rule 113] Arrest)
This is not a case of a warrantless arrest but 1.   The private person shall inform the person to be
merely an instance of an arrest effected by the

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arrested of the intention to arrest him and the SC states that the procedure for the issuance of a
cause of the arrest except in the same cases as warrant of arrest by the judge shall be governed by
those for arrest by an officer without a warrant Sec. 5(a). (See Part D.6 of this (Criminal Procedure)
[Sec. 9, Rule 113] reviewer.)
2.   The private person must deliver the arrested
person to the nearest police station or jail, and he Sec. 6 of Rule 112, as amended by A.M. No. 05-8-26-
shall be proceeded against in accordance with SC states that when a person is lawfully arrested
Sec. 7, Rule 112 [Sec. 5, Rule 113] Otherwise, the without a warrant involving an offense which requires
private person may be held liable for illegal a PI, the complaint or information may be filed by a
detention [Art. 125, RPC] prosecutor without need of such investigation
provided an inquest has been conducted in
accordance with existing rules.
4.  R equisites of a Valid
Warrant of Arrest The court shall then proceed in the exercise of its
original jurisdiction [Sec. 5(c), Rule 113]
Essential requisites
The warrant must: Note: If complaint or information is filed with the MTC
a.   Be issued upon probable cause determined judge, and the judge finds probable cause, he shall
personally by the judge after examination under issue a warrant of arrest, or a commitment order if the
oath or affirmation of the complainant and the accused had already been arrested. However, if the
witnesses he may produce; and judge is satisfied that there is no necessity for placing
b.   Particularly describe the person to be arrested the accused under custody, he may issue summons
[Sec. 2, Art. III, Constitution] instead of a warrant of arrest [Sec. 8(b), Rule 112, as
amended by A.M. No. 05-8-26-SC]
When Issued
A judge issues a warrant of arrest upon the filing of the a.   Determination of Probable
information by the public prosecutor and after
personal evaluation by the judge of the prosecutor’s Cause For Issuance of Warrant
resolution and supporting evidence [Sec. 5(a), Rule of Arrest
112, as amended by A.M. No. 05-8-26-SC]
Probable cause, in connection with the issuance of a
The judge does not have to personally examine the warrant of arrest, assumes the existence of facts and
complainant and his witnesses. Established doctrine circumstances that would lead a reasonably discreet
provides, he shall personally evaluate the report and and prudent man to believe that a crime has been
the supporting documents submitted by the fiscal committed and that it was likely committed by the
regarding the existence of probable cause: person sought to be arrested [People v. Tan, G.R. No.
a.   If he finds probable cause, he shall issue a warrant 182310 (2009)]
of arrest, or
b.   If on the basis thereof he finds no probable cause,
he may disregard the fiscal’s report and require b.   Probable Cause of Prosecutor
the submission of supporting affidavits of and Judge Distinguished
witnesses
[People v. Gray, G.R. No. 180109 (2010); AAA v. Prosecutor Judge
Carbonell, G.R. No. 171465 (2007)] Executive
Judicial
determination of
When warrant of arrest is not necessary determination of
Nature PC [Mendoza v.
A warrant of arrest shall not issue PC [Sec. 2, Art. III,
People, G.R. No.
a.   if the accused is already under detention pursuant Constitution]
197293 (2014)]
to a warrant issued by the municipal trial court in Determination of
accordance with Sec. 5(b) of Rule 112; or Determination of
PC to hold a
b.   if the complaint or information PC for the arrest
person for trial
1.   was filed pursuant to Sec. 6 of Rule 112 or of the accused
Purpose [Sec. 1, Rule 112,
2.   is for an offense penalized by fine only [Baltazar v.
as amended by
[Sec. 5(c), Rule 112, as amended by A.M. No. 05-8-26- People, G.R. No.
A.M. No. 05-8-
SC] 174016 (2008)]
26-SC]
Standard Sufficient ground Set of facts and
Sec. 5(b), Rule 112, as amended by A.M. No. 05-8-26-

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

to engender a
well-founded
circumstances
which would lead   Bail
belief that a a reasonably
crime has been discreet and 1.   Nature
committed, and prudent man to
that the believe that the Definition
respondent is offense charged Bail is the security given for the release of a person in
probably guilty in the custody of the law, furnished by him or a bondsman,
thereof and Information or to guarantee his appearance before any court as
should be held any offense required under the conditions hereinafter specified
for trial [Sec. 1, included therein [Sec. 1, Rule 114]
Rule 112, as has been
amended by A.M. committed by Purpose
No. 05-8-26-SC] the person a.   To relieve an accused from imprisonment until his
sought to be conviction and yet secure his appearance at the
arrested trial [People v. Hon. Donato, G.R. No. 79269 (2011)
[Baltazar v. & Enrile v. Sadiganbayan, G.R. No. 213847 (2016)]
People, G.R. No. b.   To honor the presumption of innocence until his
174016 (2008)] guilt is proven beyond reasonable doubt [Sec. 14,
Art. III, Constitution]; and
The preliminary inquiry made by a Prosecutor does not c.   To enable him to prepare his defense without
bind the Judge. It merely assists him in making the being subject to punishment prior to conviction
determination of probable cause for issuance of the [Cortes v. Judge Catral, A.M. No. RTJ-97-1387
warrant of arrest. The Judge does not have to follow (1997)]
what the Prosecutor presents to him. by itself, the
Prosecutor’s certification of probable cause is Note: The right to bail flows from the right to be
ineffectual. It is the report, the affidavits, the presumed innocent. It is accorded to a person in the
transcripts of stenographic notes (if any), and all other custody of the law who may be allowed provisional
supporting documents behind the Prosecutor’s liberty upon filing of a security to guarantee his
certification which are material in assisting the Judge appearance before any court, as required under
in making his determination [Baltazar v. People, G.R. specified conditions. Before conviction, bail is either a
No. 174016 (2008)] matter of right or of discretion.

Bail is a matter of right when the offense charged is

punishable by any penalty lower than reclusion
perpetua. Bail is a matter of discretion when it comes
to cases penalized by reclusion perpetua, murder being
of these cases. Bail may be granted in such cases if the
evidence of guilt is not strong.
[Tanog v. Balindog, G.R. No. 187464 (2015)]

A person is allowed to petition for bail as soon as he is

deprived of his liberty by virtue of his arrest or
voluntary surrender. An accused need not wait for his
arraignment before filing a petition for bail [Serapio v.
Sandiganbayan, G.R. No. 148468 (2003)]

Requirement of custody
General rule: Custody of the law is required before the
court can act on an application for bail [Miranda v.
Tuliao, G.R. No. 158763 (2006)]

Exceptions: Custody is not required in cases of

witnesses posting bail:
a.   When bail is required to guarantee the appearance
of a material witness [Sec. 14, Rule 119];

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

b.   When bail is required to guarantee the appearance death [Sec. 6, Rule 114]
of a prosecution witness in cases where there is
substitution of the information [Sec. 14, Rule 110] The capital nature of the offense is determined by the
penalty prescribed by law and not the one actually
imposed [Riano, 335, 2016 Ed., citing Bravo v. De Borja,
2.  W hen a Matter of Right; G.R. No. L-65228 (1985)]
Exceptions
Note: R.A. 9346 (An Act Prohibiting the Imposition of
Bail is a matter of right Death Penalty in the Philippines) enacted on June 24,
a.   Before or after conviction, but pending appeal, by 2006 (which repealed R.A. 8177 and R.A. 7659)
the first-level courts; prohibited the imposition of the death penalty.
b.   Before conviction by RTC of an offense not
punishable by death, reclusion perpetua, or life Generally not applicable to extradition proceedings
imprisonment General rule: Right to bail is available only in criminal
[Sec. 4, Rule 114] proceedings and does not apply to extradition
proceedings because extradition courts do not render
Bail on offenses where minors are accused judgments of conviction or acquittal [Gov. of USA v.
For purposes of recommending the amount of bail, the Purganan and Jimenez, G.R. No. 148571 (2002)]
privileged mitigating circumstance of minority shall be
considered [Sec. 34, R.A 9344] Exception: Only upon clear and convincing evidence:
a.   That once granted, the applicant will not be flight
Where a child is detained, the court shall order risk or will not pose danger to the community; and
a.   the release of the minor on recognizance to b.   That there exists special humanitarian and
his/her parents and other suitable person; compelling circumstances [Gov. of USA v.
b.   the release of the child in conflict with the law on Purganan and Jimenez, G.R. No. 148571 (2002)]
bail; or
c.   the transfer of the minor to a youth detention Exception to the exception: When the accused is a
home/youth rehabilitation center minor, he is entitled to bail regardless of whether the
The court shall not order the detention of a child in a evidence of guilt is strong [See Part F.4 of this
jail pending trial or hearing of his/her case [Sec. 35, (Criminal Procedure) reviewer.]
R.A. 9344]
Note: Bail is a matter of discretion in extradition
Children detained pending trial may be released on proceedings [Govt. of HK Special Administrative Region
bail or recognizance as provided for under Secs. 34 v. Olalia, G.R. No. 153675 (2007)]
and 35 under this Act. In all other cases and whenever
possible, detention pending trial may be replaced by When not available
alternative measures, such as close supervision, Right to bail is also not available
intensive care or placement with a family or in an a.   After a judgment of conviction has become final;
educational setting or home. Institutionalization or
detention of the child pending trial shall be used only If he applied for probation before finality, he may
as a measure of last resort and for the shortest be allowed temporary liberty under his bail;
possible period of time [Sec. 36, R.A. 9344] b.   After the accused has commenced to serve his
sentence
Exception: When the offense involved is a capital [Sec. 24, Rule 114]
offense, admission to bail may only be denied when c.   To military personnel accused under general
evidence of guilt is strong [Sec. 5, Rule 114] courts martial [Comendador v. de Villa, G.R. No.
93177 (1991)]
Recognizance
Recognizance is a mode of securing the release of any
person in custody or detention for the commission of
3.  When a Matter of
an offense who is unable to post bail due to abject Discretion
poverty [Sec. 1, R.A. 10389]
Upon conviction by the RTC of an .offense not
Capital offense punishable by death, reclusion perpetua, or life
A capital offense is an offense which under the law imprisonment, admission to bail is discretionary [Sec.
existing at the time of commission and of the 5, Rule 114]
application for admission to bail is punishable by

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The application for bail may be filed in and acted upon In general
by the RTC despite the filing of notice of appeal, At the hearing of an application for bail filed by a
provided that it has not transmitted the original person in custody for the commission of an offense
record to the appellate court [Sec. 5, Rule 114] punishable by reclusion perpetua or life imprisonment,
the prosecution has the burden of showing that
If the RTC decision changed the nature of the offense evidence of guilt is strong [Sec. 8, Rule 114]
from non-bailable to bailable, the application for bail
can only be filed with and resolved only by the Evidence of guilt in the Constitution and the Rules
appellate court [Sec. 5, Rule 114] refers to a finding of innocence or culpability,
regardless of the modifying circumstances [Bravo v.
If the conviction by the trial court is for a capital De Borja, G.R. No. L-65228 (1985)]
offense, the accused convicted of a capital offense is
no longer entitled to bail, and can only be released Gacal v. Judge Infante [A.M. No. RTJ-04-1845 (2011)]
when the conviction is reversed by the appellate court involved an Information that charged the accused of
[Sec. 13, Article III, Constitution] murder but the public prosecutor recommended bail
in the amount of P400,000. For this reason, the SC
If the penalty imposed by the trial court is held, “The offense of murder is punishable by reclusion
imprisonment exceeding 6 years, the accused shall be temporal in its maximum period to death (Art. 248,
denied bail or his bail shall be cancelled upon showing RPC). By reason of the penalty prescribed by law,
by the prosecution, with notice to the accused, of any murder is considered a capital offense and, grant of
of the following [Sec. 5, Rule 114]: bail is a matter of discretion which can be exercised
a.   Recidivism, quasi-recidivism, or habitual only by respondent judge after the evidence is
delinquency or commission of a crime aggravated submitted in a hearing. Hearing of the application for
by reiteration of the accused bail is absolutely indispensable before a judge can
b.   The accused previously escaped from legal properly determine whether the prosecution’s
confinement, evaded sentence or violated bail evidence is weak or strong.” The SC later stated, “The
conditions without valid justification fact that the public prosecutor recommended bail for
c.   Commission of offense while under probation, Ancheta did not warrant dispensing with the hearing.
parole or conditional pardon The public prosecutor’s recommendation of bail was
d.   Probability of flight; not material in deciding whether to conduct the
e.   Undue risk of the commission of another crime mandatory hearing or not.”
during the pendency of the appeal
[Sec. 5, Rule 114] Duties of judge hearing the petition for bail when
capital offenses are involved
Upon conviction of the RTC, the bail posted earlier as a.   In all cases whether bail is a matter of right or
a matter of right loses its force and the accused must discretion, notify the prosecutor of the hearing of
file a new and separate petition for bail. the application for bail or require him to submit
his recommendation [Sec. 18, Rule 114]
In deportation proceedings, bail is discretionary upon b.   Where bail is a matter of discretion, conduct a
the Commissioner of Immigration and Deportation hearing of the application for bail regardless or
[Harvey v. Defensor-Santiago, G.R. No. 82544 (1990)] whether or not the prosecution refuses to present
evidence to show that the guilt of the accused is
Note: In Enrile v. People [G.R. No. 213847 (2015)], the strong for the purpose of enabling the court to
Court ruled that an accused should be granted bail if exercise its sound discretion [Sec. 7-8, Rule 114]
it is shown that: (1) the detainee will not be a flight risk c.   Decide whether the guilt of the accused is strong
or a danger to the community; and (2) there exist based on the summary of evidence of the
special, humanitarian, and compelling circumstances. prosecution
The SC further explained that bail for the provisional d.   If the guilt of the accused is not strong, discharge
liberty of the accused, regardless of the crime charged the accused upon the approval of the bail bond
should be allowed independently of the merits [Sec. 19, Rule 114]. Otherwise, the petition should
charged, provided his continued incarceration is be denied.
injurious to his health and endanger his life. [Gacal v. Infante, A.M. No. RTJ- 04-1845 (2011)]

Note: Evidence presented during the bail hearing are

4.  H earing of Application for automatically reproduced at the trial, but upon motion
Bail in Capital Offenses of either party, the court may recall any witness for
additional examination unless the latter is dead,

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

outside the Philippines, or otherwise unable to testify city/municipality where he is held

[Sec. 8, Rule 114] [Sec. 17, Rule 114, as amended by A.M. No. 05-8-26-
SC]
A.M. No. 12-11-2-SC (Guidelines for Decongesting
Holding Jails by Enforcing the Rights of Accused Note: Where the grant of bail is a matter of discretion,
Persons to Bail and to Speedy Trial) or the accused seeks to be released on recognizance,
a.   The hearing of the accused's motion for bail in the application may only be filed in the court where the
offenses punishable by death, reclusion perpetua case is pending, on trial, or appeal [Sec. 17, Rule 114, as
or life imprisonment shall be summary, with the amended by A.M. No. 05-8-26-SC]
prosecution bearing the burden of showing that
the evidence of guilt is strong. The accused may at When bail is filed with a court other than where the
his option, if he wants the court to consider his case is pending, the judge who accepted the bail shall
evidence as well, submit in support of his motion forward it, together with the order of release and other
the affidavits of his witnesses attesting to his supporting papers, to the court where the case is
innocence. pending, which may, for good reason, require a
b.   At the hearing of the accused's motion for bail, the different one to be filed [Sec. 19 Rule 114]
prosecution shall present its witnesses with the
option of examining them on direct or adopting
the affidavits they executed during the
preliminary investigation as their direct
testimonies.
c.   The court shall examine the witnesses on their
5.  G uidelines in Fixing
direct testimonies or affidavits to ascertain if the Amount of Bail
evidence of guilt of the accused is strong. The
court's questions need not follow any particular The considerations are primarily, but not limited, to
order and may shift from one witness to another. the following factors
The court shall then allow counsels from both a.   Financial ability of the accused
sides to examine the witnesses as well. The court b.   Nature and circumstances of the offense
shall afterwards hear the oral arguments of the c.   Penalty for the offense charged
parties on whether or not the evidence of guilt is d.   Character and reputation of the accused
strong. e.   Age and health of the accused
d.   Within 48 hours after hearing, the court shall f.   Weight of the evidence against the accused
issue an order containing a brief summary of the g.   Probability of the accused appearing at the trial
evidence adduced before it, followed by its h.   Forfeiture of other bail
conclusion of whether or not the evidence of guilt i.   Fact that accused was a fugitive from justice when
is strong. Such conclusion shall not be regarded arrested
as a pre-judgment on the merits of the case that j.   Pendency of other cases where the accused is on
is to be determined only after a full-blown trial. bail
[Sec. 6] [Sec. 9, Rule 114]

Where application for bail is filed The amount should be high enough to assure the
General rule: The application may be filed with the presence of the accused when required but no higher
court where the case is pending. than is reasonably calculated to fulfill this purpose. To
fix bail at an amount equivalent to the civil liability of
Exceptions: which petitioner is charged is to permit the impression
a.   If the judge of the court where the case is pending that the amount paid as bail is an exaction of the civil
is absent or unavailable, the application may be liability that accused is charged of; this we cannot
filed with any RTC/MTC/MeTC/MCTC judge in allow because bail is not intended as a punishment,
the province, city or municipality; nor as a satisfaction of civil liability which should
b.   Where the accused is arrested in a province, necessarily await the judgment of the appellate court
city/municipality other than where the case is [Yap Jr. v. CA G.R. No. 141529 (2001)]
pending, the application may be filed with any
RTC of the said place, or, if no judge is available,
then with any MeTC/MTC/MCTC judge in the said 6.  W hen Bail Not Required
place.
c.   When a person is in custody but not yet charged, When bail is not required
he may apply with any court in the province or a.   When a person has been in custody for a period

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

equal to or more than the possible maximum Reduced bail

imprisonment of the offense charged A person in custody for a period equal to or more than
b.   If the maximum penalty is destierro, he shall be the minimum of the principal penalty prescribed for
released after 30 days of preventive imprisonment the offense charged may be released on a reduced
[Sec. 16, Rule 114] bond [Sec. 16, Rule 114]
c.   In cases where a person is charged with violation of
a municipal/city ordinance, a light felony and/or
criminal offense, the penalty of which is not higher
8.  F orfeiture and
than 6 months imprisonment and/or a fine of Cancellation of Bail
P2,000, or both, where it is established that he is
unable to post the required cash or bail bond [Sec. Forfeiture of bail
1, R.A. 6036]. NOTE: The title of R.A. 6036 reads When the presence of the accused out on bail is
“arresto mayor” instead of “6 months”. required by court or Rules of Court and he failed to
appear, his bail shall be declared forfeited and the
When bail is nonetheless required bondsmen are given 30 days within which to:
a.   When accused was caught committing the a.   Produce their principal
offense in flagrante; b.   Show cause why no judgment should be rendered
b.   When accused confesses to the commission of the against them for the amount of their bail
offense unless he later repudiates the same in a c.   Produce the body of their principal or give the
sworn statement or in open court as having been reason for his non-production; and
extracted through force or intimidation; d.   Explain why the accused did not appear before the
c.   When accused is found to have previously court when first required to do so
escaped legal confinement, evaded sentence, or [Sec. 21, Rule 114]
jumped bail;
d.   When accused is found to have violated Section 2, Failing in items (3) and (4) above, a judgment shall be
R.A. 6036, which provides that the violation of the rendered against the bondsmen, jointly and severally,
accused of the sworn statement (required instead for the amount of the bail. The court shall not reduce
of bail) binding himself, pending final decision of or otherwise mitigate the liability of the bondsmen,
his case, to report to the Clerk of the Court hearing unless the accused has been surrendered or is
his case periodically every two weeks shall justify acquitted [Sec. 21, Rule 114]
the court to order his immediate arrest, if the
failure of the accused to report is not justified; For the purpose of surrendering the accused, the
e.   Accused is a recidivist or habitual delinquent or bondsmen may arrest him or, upon written authority
has been previously convicted for an offense to endorsed on a certified copy of the undertaking, cause
which the law/ordinance attaches an him to be arrested by a police officer or any other
equal/greater penalty or for two/more offenses to person of suitable age and discretion [Sec. 23, Rule
which it attaches a lighter penalty 114]
f.   Accused committed the offense while on parole or
under conditional pardon; Judgment against the bondsmen cannot be entered
g.   Accused has previously been pardoned for unless such judgment is preceded by an order of
violation of municipal/city ordinance for at least forfeiture and an opportunity given to the bondsmen
two times to produce the accused or to adduce satisfactory
[Sec. 1, R.A. 6036] reason for their inability to do so. An order of forfeiture
is interlocutory and is different form the judgment on
7.  Increase or Reduction of the bond which is issued if the accused was not
produced within the 30-day period [Mendoza v.
Bail Alarma, G.R. No. 151970 (2008)]

After the accused is admitted to bail, the court may, CANCELLATION OF BAIL
upon good cause, increase or decrease the amount
[Sec. 20, Rule 114] Application by bondsmen
Upon application of the bondsmen with due notice to
Increased bail the prosecutor, bail may be cancelled upon:
The accused may be committed to custody if he does a.   Surrender of the accused; or
not give bail in the increased amount within a b.   Proof of his death
reasonable period [Sec. 20, Rule 114] [Sec. 22(1), Rule 114]

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In order to cancel a bail on the ground of surrender, SC Circular 39-97 deals only with criminal cases
the surrender must be voluntary. In this case, the pending in the RTC. As to those cases pending in the
accused was not surrendered, he was charged and MTC as well as those under PI, the DOJ promulgated
arrested for another crime [Esteban v. Alhambra, G.R. DOJ Circular No. 41 governing the issuance of HDO,
No. 135012 (2004)] Watchlist Orders, and Allow Departure Orders.

Automatic cancellation HOWEVER, the SC has declared DOJ Circular No. 41

a.   Upon acquittal of the accused as unconstitutional. The Secretary of Justice has no
b.   Upon dismissal of the case, or power to issue HDOs and WLOs. The issuance of HDOs
c.   Upon execution of judgment of conviction shall pertain only to criminal cases within the exclusive
[Sec. 22, Rule 114] jurisdiction of the RTC, to the exclusion of criminal
cases falling within the jurisdiction of the MTC and all
other cases. The reason lies in seeking the balance
9.  A pplication not a Bar to between the state's interest over the prosecution of
Objections on Illegal the case considering the gravity of the offense involved
and the individual's exercise of his right to travel
Arrest, Lack of or Irregular [Genuino v. De Lima, G.R. No. 197930 (2018)]
Preliminary Investigation
Bail is no longer a waiver of these objections [Leviste v.
Alameda, G.R. No. 182677 (2011)]

Thus, provided that the accused raises them before

entering his plea, an application or an admission to
bail shall not bar the accused from challenging or
questioning the:
a.   Validity of his arrest
b.   Legality of the arrest warrant
c.   Regularity of PI, or
d.   Absence of PI
The court shall resolve the objections as early as
practicable but not later than the start of the trial of
the case.
[Sec. 26, Rule 114]

10.  Hold/Allow Departure

Order and Bureau of
Immigration Watchlist
An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts to
depart from the Philippines without permission of the
court where the case is pending [Sec. 23, Rule 114]

The accused may be prohibited from leaving the

country during the pendency of his case [People v. Uy
Tuising, G.R. No. 42118-20 (1935); Manotoc v. CA, G.R.
No. L-62100 (1986)]

A hold-departure order may be issued only in criminal

cases within the exclusive jurisdiction of the RTCs. The
judgment of acquittal or dismissal of the case shall
include the cancellation of the HDO [SC Circ. No. 39-
97]

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  Arraignment and Plea renders him unable to fully understand the

charge against him and to plead intelligently.
In such case, the court shall order his mental
1.   Arraignment and Plea; examination and, if necessary, his
confinement for such purpose.
How Made 2.   Existence of a prejudicial question;
3.   A petition for review of the resolution of the
Arraignment prosecutor is pending at either the DOJ
It is the stage where the issues are joined and without Secretary or the Office of the President for a
which the proceedings cannot advance further or, if period of suspension not exceeding 60 days
held, will otherwise be void [People v. Albert, G.R. No. from filing of petition with the reviewing office
114001 (1995)] [Sec. 11, Rule 116]
c.   Motion to quash the complaint or information:
The accused must be arraigned before the court where on any of the grounds under Sec. 3, Rule 117 in
the complaint or information was filed or assigned for relation to Sec. 1, Rule 117
trial. The arraignment shall be made in open court by d.   Challenge the validity of the arrest or legality of
the judge or clerk by furnishing the accused with a the warrant or assail the regularity or question the
copy of the complaint or information, reading the absence of PI of the charge [Sec. 26, Rule 114]
same in the language or dialect known to him, and
asking him whether he pleads guilty or not guilty. The If the accused does not question the legality of the
prosecution may call at the trial witnesses other than arrest or search, this objection is deemed waived
those named in the complaint or information [Sec. 1(a), [People v. Racho y Raquero, G.R. No. 186529 (2010)]
Rule 116]
Procedure of Arraignment
Rationale The court shall issue an order directing the
The importance of arraignment is based on the public prosecutor to submit the record of the PI
constitutional right of the accused to be informed. It is to the branch COC for the latter to attach the
at this stage that the accused, for the first time, is same to the record of the case.
given the opportunity to know the precise charge that ¯
confronts him [Kummer v. People, G.R. No. 174461
The court shall inform the accused of his right to
(2013)]
counsel and ask him if he desires to have one.
Unless the accused is allowed to defend himself in
Plea person or has employed counsel of his choice, the
Pertains to the matter which the accused, on his court must assign a counsel de oficio to defend
arraignment, alleges in answer to the charge against
him [Sec. 6, Rule 114]
him
¯
Duty of the court before arraignment a.   If the accused pleads not guilty, either:
The court shall 1.   The accused admits the act or omission
a.   Inform the accused of his right to counsel; charged in the complaint or information
b.   Ask him if he desires to have one; and but interposes a lawful defense, the order
c.   Must assign a counsel de oficio to defend him, of trial may be modified [Sec. 11(e), Rule
unless the accused: 119]
1.   Is allowed to defend himself in person; or 2.   He raises a negative defense, that is, he
2.   Has employed a counsel of his choice denies the charge, in which case regular
[Sec. 6, Rule 116] trial proceeds
b.   If the accused pleads guilty:
Before arraignment and plea, the accused may avail 1.   For a non-capital offense, the court the
of any of the following court may receive evidence to determine
a.   Motion for bill of particulars: to enable him to the penalty to be imposed [Sec. 4, Rule
properly plead and prepare for trial [Sec. 9, Rule 116]
116] 2.   For a capital offense, the court shall
b.   Motion to suspend arraignment: upon motion by conduct a searching inquiry into the
the proper party, the arraignment shall be voluntariness and full comprehension of
suspended the consequences of his plea and shall
1.   Accused appears to be suffering from require the prosecution to prove his guilt
unsound mental condition which effectively and the precise degree of culpability [Sec.

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

3, Rule 116] enter a plea of guilty to a lesser offense which is

necessarily included in the offense charged with the
If the accused does not enter any plea or makes a conformity of the trial prosecutor alone [Sec. 1(f), Rule
conditional plea, a plea of not guilty is entered by 116; Part B(2), A.M. No. 03-1-09-SC]
the court [Sec. 1(c), Rule 116]
The presence of the accused is not only a personal
How made right but also a public duty, irrespective of the gravity
a.   Before the court where the complaint or of the offense and the rank of the court.
information has been filed or assigned for trial;
b.   In open court There can be no trial in absentia without first
c.   by the judge or clerk of court; arraigning the accused; otherwise, the judgment is
d.   by furnishing the accused with a copy of the null and void [Riano 394, 2016 Ed., citing Taglay v.
complaint or information; Daray, G.R. No. 164258 (2012)]
e.   Reading it in a language or dialect known to the
accused; Specific rules
f.   Asking the accused whether he pleads guilty or a.   Trial in absentia may be conducted only after valid
not guilty. arraignment [Sec. 14(2), Art. III, Constitution]
g.   The accused must be present and must personally b.   Accused must personally appear during
enter his plea. arraignment and enter his plea; counsel cannot
h.   Both arraignment and plea shall be made on enter plea for the accused [Sec. 1[b], Rule 116]
record but failure to enter of record shall not affect c.   Accused is presumed to have been validly
the validity of the proceedings arraigned in the absence of proof to the contrary
[Sec. 1(a) and (b), Rule 116] [see Sec. 3(m), Rule 131]
d.   Generally, judgment is void if accused has not
There can be no arraignment or plea in absentia. been validly arraigned [Riano 394, 2016 Ed., citing
Under both the 1964 and 1985 Rules, a defendant Taglay v. Daray, G.R. No. 164258, (2012)]
must be present at the arraignment and must e.   If accused went into trial without being arraigned,
personally enter his plea [Nolasco v. Enrile, G.R. No. L- subsequent arraignment will cure the error
68347 (1985)] The 2000 Rules contains the same provided that the accused was able to present
requirement (See Part (7) of the enumeration above). evidence and cross examine the witnesses of the
prosecution during trial
When held
General rule: The accused should be arraigned within If an information is amended in substance which
30 days from the date the court acquires jurisdiction changes the nature of the offense (not merely as to
over his person [Sec. 1(g), Rule 116] form), arraignment on the amended information is
mandatory [Teehankee v. Madayag, G.R. No. 103102
Exceptions: Unless a shorter period is provided by (1992)]
special law or Supreme Court circular [Sec. 1(g), Rule
116] The need for arraignment is imperative in an amended
a.   When an accused is under preventive detention, information or complaint. This, however, pertains only
his case should be raffled within 3 days from filing to substantial and not to formal amendments
and accused shall be arraigned within 10 days [Kummer v. People, G.R. No. 174461 (2013)]
from receipt by the judge of the records of the case
[RA 8493 (Speedy Trial Act)]; Whatever procedural infirmity in the arraignment of
b.   Where the complainant is about to depart from the accused was rectified when he was re-arraigned
the Philippines with no definite date of return, the and entered a new plea. Accused did not question the
accused should be arraigned without delay [R.A. procedural errors in the first arraignment and having
4908] failed to do so, he is deemed to have abandoned his
right to question the same and waived the errors in
Presence of the offended party procedure [People v. Magat, G.R. No. 130026 (2000)]
The private offended party shall be required to appear
in the arraignment for the purpose of
a.   Plea bargaining
2.  W hen a Plea of Not Guilty
b.   Determination of civil liability, and Should Be Entered
c.   Other matters requiring his presence
In case of failure of the offended party to appear a.   When the accused so pleaded
despite due notice, the court may allow the accused to b.   When he refuses to plead or makes a conditional

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

plea [Sec. 1(c), Rule 116] necessary [Sec. 2, Rule 116]

c.   When he pleads guilty but presents exculpatory
evidence [Sec. 1(d), Rule 116] AFTER TRIAL HAS BEGUN
d.   Where the plea of guilty was compelled by
violence or intimidation [Riano 402, 2016 Ed., After the prosecution has rested its case, a change of
citing People v. Baetiong, 2 Phil. 126] plea to a lesser offense may be granted by the judge,
e.   When the plea is indefinite or ambiguous [Riano with the approval of the prosecutor and the offended
403, 2016 Ed., citing People v. Strong, G.R. No. L- party if the prosecution does not have sufficient
38626 (1975)] evidence to establish the guilt of the accused for the
crime charged. The judge cannot on its own grant the
Plea of guilty is mitigating if it is made before change of plea [People v. Villarama,G.R. No. 99287
prosecution starts to present evidence [Art. 13(7), RPC] (1992)]

Retaking of plea
Accused did not fully comprehend the consequences
4.  A ccused Pleads Guilty to
of a plea of guilty, or even what crimes he was Capital Offense; What the
pleading guilty to. Hence, the necessity of a re-
arraignment and retaking of his plea [People v. Nuelan, Court Should Do
G.R. No. 123075 (2001)]
Conditions that the trial court must observe to obviate
Plea of not guilty should be entered an improvident plea of guilty by the accused
a.   When the accused did not fully understand the a.   Conduct a searching inquiry into the voluntariness
meaning and consequences of his plea and full comprehension of the consequences of
b.   Where the information is insufficient to sustain the pleas; and
conviction of the offense charged b.   Require prosecution to present evidence to prove
c.   Where the information does not charge an the guilt and precise degree of culpability of the
offense, any conviction thereunder being void accused;
d.   Where the court has no jurisdiction c.   Accused may present evidence in his behalf
[Sec. 3, Rule 116]
3.  When Accused May Enter Note: A plea of guilty to a capital offense does not
a Plea of Guilty to a Lesser result to an immediate rendering of judgment [Riano,
407, 2016 Ed.]
Offense
DURING ARRAIGNMENT
5.  S earching Inquiry
Requisites The procedure in Sec. 3, Rule 116, when the accused
a.   The lesser offense is necessarily included in the pleads guilty to a capital offense, is mandatory. [Riano
offense charged 407, 2016 Ed., citing People v. Oden, G.R. No. 155511-
b.   The plea must be with the consent of both the 22 (2004)]
offended party and the prosecutor
[Sec. 2, Rule 116] The plea must be clear, definite and unconditional. It
must be based on a free and informed judgment.
In case of failure of the offended party to appear
despite due notice, the court may allow the accused to The judge must ask whether the accused was assisted
enter a plea of guilty to a lesser offense which is by counsel during custodial investigation and PI; ask
necessarily included in the offense charged with the questions on age, educational attainment and socio-
conformity of the trial prosecutor alone {Sec. 1(f), Rule economic status; and ask the defense counsel whether
116] or not he conferred with the accused [People v. Nadera,
G.R. Nos. 181384-87 (2000)]
AFTER ARRAIGNMENT BUT BEFORE TRIAL
A plea of guilt to a capital offense can be held null and
After arraignment but before trial, the accused may void where the trial court has inadequately discharged
still be allowed to plead guilty to said lesser offense the duty of conducting the prescribed "searching
after withdrawing his plea of not guilty. No inquiry” [People v. Durango, G.R. Nos. 135438-39
amendment of the complaint or information is (2000)]

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Rationale or reenact the crime or furnish its missing details

This is to enjoin courts to proceed with more care [People v. Pastor, G.R. No. 140208 (2002)]
where the possible punishment is in its severest form
and to avoid improvident pleas of guilt [People v.
Samontanez, G.R. No. 134530 (2000)]
6.  I mprovident Plea of Guilty
to a Capital Offense
Guidelines for conducting a search inquiry
a.   Ascertain from the accused himself An improvident plea is one without proper information
1.   How he was brought into the custody of the as to all the circumstances affecting it; based upon a
law mistaken assumption or misleading
2.   Whether he had the assistance of a information/advice [Black’s Law Dictionary]
competent counsel during the custodial and
preliminary investigations, and General rule: If the accused does not clearly and fully
3.   Under what conditions he was detained and understand the nature of the offense charged, if he is
interrogated during the investigations. This is not advised as to the meaning and effect of the
intended to rule out the possibility that the technical language so often used in formal complaints
accused has been coerced or placed under a and informations in qualifying the acts constituting
state of duress either by actual threats of the offense, or if he does not clearly understand the
physical harm coming from malevolent consequences by way of a heavy and even a capital
quarters or simply because of the judge’s penalty flowing from his admission of his guilt of the
intimidating robes. crime in the precise technical manner and form in
b.   Ask the defense counsel a series of questions as to which it is charged, his plea of guilty should not be
whether he had conferred with, and completely accepted and if accepted it should not be held to be
explained to, the accused the meaning and sufficient to sustain a conviction [People v. De Ocampo
consequences of a plea of guilty. Gonzaga, G.R. No. L-48373 (1984)]
c.   Elicit information about the personality profile of
the accused, such as his age, socio-economic Exception: If the accused appears guilty beyond
status, and educational background, which may reasonable doubt from the evidence adduced by the
serve as a trustworthy index of his capacity to give prosecution and defense
a free and informed plea of guilty.
d.   Inform the accused the exact length of When improvident plea may be withdrawn
imprisonment or nature of the penalty under the At any time before judgment of conviction becomes
law and the certainty that he will serve such final, the court may permit an improvident plea of
sentence. For not infrequently, an accused pleads guilty to be withdrawn and be substituted by a plea of
guilty in the hope of a lenient treatment or upon not guilty [Sec. 5, Rule 116]
bad advice or because of promises of the
authorities or parties of a lighter penalty should The withdrawal of a plea of guilty is not a matter of
he admit guilt or express remorse. It is the duty of right of the accused but of sound discretion of the trial
the judge to ensure that the accused does not court [People v. Lambino, G.R. No. L-10875 (1958)]
labor under these mistaken impressions because
a plea of guilty carries with it not only the The reason for this is that trial has already begun and
admission of authorship of the crime proper but the withdrawal of the plea will change the theory of
also of the aggravating circumstances attending the case and put all past proceedings to waste.
it, that increase punishment.
e.   Inquire if the accused knows the crime with which Moreover, at this point, there is a presumption that the
he is charged and fully explain to him the plea was made voluntarily.
elements of the crime which is the basis of his
indictment. Failure of the court to do so would
constitute a violation of his fundamental right to 7.  Grounds for Suspension of
be informed of the precise nature of the
accusation against him and a denial of his right to
Arraignment
due process. a.   Unsound mental condition of the accused at the
f.   All questions posed to the accused should be in a time of the arraignment
language known and understood by the latter. When the accused can neither comprehend the full
g.   The trial judge must satisfy himself that the import of the charge nor can he give an intelligent
accused, in pleading guilty, is truly guilty. The plea, the court shall order his mental examination
accused must be required to narrate the tragedy

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

and, if necessary, his confinement [People v. Estrada arraigned, especially if it would upgrade the offense.
[G.R. No. 130487 (2000)]
If petition for review is not resolved within 60 days,
The need for suspension may be determined from court may insist on the arraignment.
physical and outward manifestations at the time of
arraignment indicative of a mental disorder which the With the arraignment of the accused, the DOJ
court had observed and defense counsel had called Secretary can no longer entertain the appeal or
attention to [People v. Alcalde, G.R. Nos.. 139225-28 petition for review because petitioner had already
(2002)] waived or abandoned the same [Gandarosa v. Flores,
G.R. No. 167910 (2007)]
In People v. Dungo [G.R. No. 89420 (1991)], there are
three major criteria to determine insanity d.   Other pending incidents
1.   Delusion test, where insanity is manifested by a Such as
false belief for which there is no reasonable basis 1.   Motion to quash
and which would be incredible under the given 2.   Motion for inhibition, and
circumstances; 3.   Motion for bill of particulars
2.   Irresistible impulse test, where the accused has
lost the power to choose between right and
wrong, to avoid the act in question, his free agency
being at that time destroyed.
3.   Right and wrong test, where a perverted
condition of mental and mortal faculties afflicts
the accused as to render him incapable of
distinguishing between right and wrong.

In People v. Pascual [G.R. No. 95029 (1993)], there are

two tests to determine insanity
1.   Test of cognition, which requires complete
deprivation of intelligence in committing the
criminal act. It is the test adopted in this
jurisdiction.
2.   Test of volition, which requires a total deprivation
of free will.

b.   Existence of prejudicial question

Rationale
A prejudicial question would be determinative of guilt
or innocence. [Ty-de Zuzuarregui v. Villarosa, G.R. No.
183788 (2010)]

It may be raised during PI. If the information is filed in

court, it may be raised as ground to suspend the
arraignment [Sec. 6, Rule 111]

c.   Pendency of petition for review

Upon motion by the proper party, the arraignment
shall be suspended in case a petition for review of the
resolution of the prosecutor is pending at either the
DOJ, or the OP; provided, that the period of
suspension shall not exceed 60 days counted from the
filing of the petition with the reviewing office [Sec. 11,
Rule 116]

Rationale
This is to observe judicial courtesy and avoid legal
complications in case the resolution would be
different from the offense for which the accused was

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

  Motion to Quash 1.   Grounds

Nature of motion to quash (MTQ) In general
1.   Mode by which an accused assails the validity of a a.   Facts charged do not constitute an offense;
criminal complaint or information filed against b.   Court trying the case has no jurisdiction over the
him for insufficiency on its face in point of law or offense charged;
defects which are apparent in the face of the c.   Court trying the case has no jurisdiction over the
information [Riano 328, 2011 Ed.] person of the accused;
2.   Hypothetical admission of the facts alleged in the d.   officer who filed the information had no authority
information to do so;
e.   The information does not conform substantially to
Note: Fundamental test in determining sufficiency the prescribed form;
of the material averments in an information: WON f.   More than one offense is charged, except when a
the facts alleged which are hypothetically single punishment for various offenses is
admitted would establish the essential elements prescribed by law;
of the crime defined by law. g.   Criminal action or liability has been extinguished;
3.   Evidence aliunde or matters extrinsic of the h.   Averments which, if true, would constitute a legal
information are not to be considered. excuse or justification;
i.   Accused has been previously convicted or
Note: A motion to quash based on double jeopardy or acquitted of the offense charged, or the case
extinction of the criminal action or liability, may, by against him was dismissed or otherwise
their nature, be based on matters outside of the terminated without his express consent
allegations of the information or complaint [Riano] [Sec. 3, Rule 117]

Form and contents The following grounds are exclusive. [Galzote v.

1.   In writing People, G.R. No. 164682 (2011)]
2.   Signed by the accused or his counsel, and
3.   Distinctly specify the factual and legal grounds General rule: Failure of the accused to assert any
[Sec. 2, Rule 117] ground on a MTQ before he pleads, either because he
did not file MTQ or failed to allege said ground in the
When filed MTQ shall be deemed a waiver of any objections
General rule: At any time before entering his plea, the
accused may move to quash the complaint or Exceptions:
information [Sec. 1, Rule 117] a.   Facts charged do not constitute an offense
b.   Court trying the case has no jurisdiction over the
Exception: When the grounds relied upon the motion offense charged
are: c.   Criminal action or liability has been extinguished
1.   Failure to charge an offense d.   Accused has been previously convicted, or in
2.   Lack of jurisdiction over the offense charged jeopardy of being convicted, or acquitted of the
3.   Extinction of the offense or penalty offense charged
4.   Accused has been previously convicted, or in [Sec. 9, Rule 117]
jeopardy of being convicted, or acquitted of the e.   Officer who filed information had no authority to
offense charged do so [Quisay v. People, G.R. No. 216920 (2016)]
They shall not be deemed waived if the accused failed
to fail MTQ or to allege them in the motion. Note: In cases covered by the Rules on Summary
[Sec. 9, Rule 117] Procedure, MTQ is allowed only if made on the
grounds of lack of jurisdiction over the subject matter
Need not be resolved before issuing warrant of or failure to comply with barangay conciliation
arrest proceedings [Sec. 19, Rules on Summary Procedure]
The judge had no positive duty to first resolve the MTQ
before issuing a warrant of arrest. Sec. 5(a), Rule 112 Facts charged do not constitute an offense
required the judge to evaluate the prosecutor's Where it is clear that the information does not really
resolution and its supporting evidence within a limited charge an offense, the case against the accused must
period of only 10 days [De Lima v. Guerrero, G.R. No. be dropped immediately [Dela Chica v.
229781 (2017)] Sandiganbayan, G.R. No. 144823 (2003)]
The test is whether the facts alleged, if hypothetically

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

admitted, would establish the essential elements of prosecutor assigned thereto or to the case is not
the offense, as defined by law without considering available
matters aliunde [People v. Romualdez, G.R. No. 166510 [Sec. 5, Rule 110]
(2008)] 3.   Commission on Elections regarding violations of
election laws [Sec. 2(6), Art. IX-C, Constitution]
That the missing element may be proved during the
trial or that the prosecution has presented evidence to The prosecutor who signed the information must have
establish the same cannot have the effect of validating territorial jurisdiction to conduct PI of the offense
the void information or of proving an offense which [Cudia v. CA, G.R. No. 110315 (1998)]
does not exist [People v. Asuncion, G.R. No. 80066
(1988)] Note: The following may conduct preliminary
investigations
The defect is not cured by a failure to move to quash 1.   Provincial or City Prosecutors and their assistants;
or by a plea of guilty [Suy Sui v. People, G.R. No. L-5278 2.   National and Regional State Prosecutors; and
(1953)] 3.   Other officers as may be authorized by law
[Sec. 2, Rule 112, as amended by A.M. No. 05-8-26-SC]
If a MTQ is based on the ground that the facts charged
do not constitute an offense, the prosecution shall be No complaint or information may be filed or dismissed
given by the court an opportunity to correct the defect by an investigating prosecutor without the prior
by amendment. The motion shall be granted if the written authority or approval of the provincial or city
prosecution fails to make the amendment, or the prosecutor or chief state prosecutor or the
complaint or information still suffers from the same Ombudsman or his deputy [Sec. 4, Rule 112]
defect despite the amendment [Sec. 4, Rule 117]
An information filed in the Sandiganbayan must be
Court has no jurisdiction over the offense charged signed by a graft investigating officer with prior
In a criminal prosecution, the place where the offense approval of the Ombudsman.
was committed not only determines venue, but is an
essential element of jurisdiction [Sec. 15, Rule 110; For election offenses, it must be signed by the duly
Lopez v. City Judge, G.R. No. L-25795 (1966)] deputized prosecutors and legal officers of the
COMELEC [Sec. 265, Art. XXII, Omnibus Election
In private crimes, the complaint of the offended party Code]
is necessary to confer authority to the court [Donio-
Teves v. Vamenta Jr., G.R. No. L-38308 (1984)] Lack of authority of the officer is not cured by silence,
acquiescence, express consent or even by
Court has no jurisdiction over the person of the amendment. [Cudia v. CA, G.R. No. 110315 (1998)]
accused
When the accused files a MTQ based on this ground, Complaint or information does not conform
he must do so only on this ground. If he raises other substantially to the prescribed form
grounds, he is deemed to have submitted his person The formal and substantial requirements are provided
to the jurisdiction of the court [Sanchez v. Demetriou, for in Secs. 6-12, Rule 110.
G.R. No. L-11171-77 (1993)]
General rule: Lack of substantial compliance renders
When the objection is raised, the court should resolve the accusatory pleading nugatory.
it before conducting trial to avoid unnecessary
expenditure of time and money [Mead v. Argel, G.R. Exception: Mere defects in matter of form may be
No. L-41958 (1982)] cured by amendment [Sec. 4, Rule 117]

Officer who filed the information had no authority to Objections not raised are deemed waived, and the
do so accused cannot seek affirmative relief on such ground
nor raise it for the first time on appeal [People v. Garcia,
Authority to file and prosecute criminal cases is vested G.R. No. 120093 (1997)]
in:
1.   Prosecutor Vague or broad allegations are generally not grounds
2.   Any peace officer, or public officer charged with for a MTQ. The correct remedy is to file for a bill of
the enforcement of the law, in Municipal Trial particulars [Sec. 9, Rule 116; Enrile v. People, G.R. No.
Courts or Municipal Circuit Trial Courts when the 213455 (2015)]

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The accused may, before arraignment, move for a bill 2.   Exempting circumstances [Art. 12, RPC]
of particulars to enable him properly to plead and 3.   Absolutory causes
prepare for trial. The motion shall specify the alleged
defects of the complaint or information and the details Accused has been previously convicted or acquitted
desired [Sec. 9, Rule 116] of the offense charged, or the case against him was
dismissed or otherwise terminated without his
More than one offense is charged consent

General rule: A complaint or information must charge 1.   Double jeopardy

only one offense [Sec. 13, Rule 110]
See Double Jeopardy below.
Exceptions:
1.   When the law prescribes a single punishment for 2.   Dismissal without express consent
various offenses [Sec. 13, Rule 110]
2.   Complex and compound crimes, except where This refers only to dismissal or termination of the
one offense was committed to conceal another case. It does not Refer to Part the conviction or
3.   An offense incidental to the gravamen of the acquittal [People v. Labatete, G.R. No. L-12917
offense charged (1960)]
4.   A specific crime set forth in various counts, each of
which may constitute a distinct offense If consent is not express, dismissal will be
regarded as final (i.e., with prejudice to refilling)
However, this ground is waivable. The accused may be [Caes v. IAC, G.R. Nos. 74989-90 (1989)]
convicted of all the offenses alleged and proved if he
goes to trial without objecting to the inclusion of two The dismissal of a criminal case resulting in
or more separate offenses in the same information acquittal made with the express consent of the
[People v. Villamor, G.R. No. 124441 (1998)] accused or upon his own motion will not place the
accused in double jeopardy, except in the
Criminal action or liability has been extinguished following cases:
i.   Insufficiency of the prosecution’s evidencer
When criminal liability is extinguished: ii.   Denial of the right to a speedy trial
1.   Death of the accused, but liability for pecuniary [Almario v. CA, G.R. No. 127772 (2001)]
penalties is extinguished only if death occurs
before final judgment; When dismissal constitutes acquittal
2.   Service of sentence, which must be by virtue of a Dismissal constitutes acquittal when it is granted:
final judgment and in the form prescribed by law; 1.   Upon demurrer to evidence; [Riano 439, 2016 Ed.,
3.   Amnesty; citing People v.Tan, G.R. No. 167526 (2010)]
4.   Absolute pardon; 2.   Due to violation of right to speedy trial (even if
5.   Prescription of the crime; dismissal was upon motion of the accused or with
6.   Prescription of the penalty; his express consent) [Riano 439-440, 2016 Ed.,
7.   Pardon in private offenses citing Andres v. Cacdac, G.R. No. L-45650 (1982)]
[Art. 89, Revised Penal Code]
Dismissal Acquittal
Protection from prosecution under a statute of Always based on the
limitation is a substantive right. Where the statute Does not decide the
merits. Defendant’s
fixes a period of limitation as to a prosecution for a case on the merits.
guilt was not proven
particular offense, the limitation so fixed is Does not determine
beyond reasonable
jurisdictional, and the time within which the offense is innocence or guilt
doubt
committed is a jurisdictional fact, it being necessary Double jeopardy will Double jeopardy always
that the indictment or information be actually filed not always attach attaches
within the time prescribed [People v. Sandiganbayan,
G.R. No. 101724 (1992)] See Provisional Dismissal below.

Contains averments that if true would constitute a

legal excuse or justification

Examples:
1.   Justifying circumstances [Art. 11, RPC]

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2.  D istinguish Motion to the right to

present evidence
Quash from Demurrer to and submits the
case for judgment
Evidence [Sec. 23, Rule 119]

Demurrer to
Motion to quash
evidence 3.  Effects of Sustaining the
Filed before
Filed after the Motion to Quash
When prosecution has
entering plea
filed rested its case a.   Filing another complaint or information
[Sec. 1, Rule 117]
[Sec. 23, Rule 119]
Based upon the General rule: Court may order that another complaint
insufficiency of or information be filed [Sec. 5, Rule 117)
Basis for Does not go into
the evidence
grant or the merits of the
adduced by the Exception: If MTQ was based on the following:
denial case
prosecution [Sec. 1.   Criminal action or liability has been extinguished
23, Rule 119] 2.   Double jeopardy.
Ground is
Grounds are “insufficiency of b.   Discharge of the accused
Grounds stated in Sec. 3 , evidence” to
Rule 117 convict [Sec. 23, General rule: If in custody, the accused shall not be
Rule 119] discharged unless admitted to bail [Sec. 5, Rule 117]
May be filed The order granting the MTQ must state either release
Does not require
either with leave of the accused or cancellation of his bond.
Leave of a prior leave of
or without leave
court court [Sec. 1,
of court [Sec. 23, Exception: The accused, if in custody, shall be
Rule 117]
Rule 119] discharged if:
Grant does not 1.   No order is made; or
Grant is deemed
necessarily 2.   Having been made, no new information is filed
an acquittal and
follow a within
would preclude
dismissal (Court i.   The time specified in the order; or
Effect of the filing of
may order the ii.   Such further time as the court may allow for
grant another
filing of a new good cause
information or
complaint or [Sec. 5, Rule 117]
appeal by the
information)
prosecution
[Sec. 4, Rule 117] Exception to the exception: The accused shall not be
The order denying discharged if he is in custody for another charge [Sec.
the motion for 5, Rule 117]
leave to file a
demurrer “shall c.   Remedies of the prosecution
not be reviewable
by appeal or by General rule: The court shall order that an amendment
If the court, in certiorari before be made:
denying the judgment” 1.   If the MTQ is based on an alleged defect of the
motion to quash If the court denies complaint or information which can be cured by
acts with grave the demurrer to amendment
Remedy
abuse of evidence filed 2.   If the MTQ is based on the ground that the facts
discretion, then with leave of charged do not constitute an offense
certiorari or court, the [Sec. 4, Rule 117]
prohibition lies accused may
adduce evidence Exception: Prosecution is precluded where the ground
in his defense. for quashal would bar another prosecution for the
When the same offense.
demurrer is filed The prosecution may appeal from the order of quashal
without leave, the to the appellate court.
accused waives

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If the information was quashed because it did not

allege the elements of the offense charged, but the
5.  D ouble Jeopardy
facts so alleged constitute another offense under a
specific statute, the prosecution may file a complaint The right against double jeopardy prohibits the
for such specific offense where dismissal is made prior prosecution for a crime of which he has been
to arraignment and on MTQ [People v. Purisima, G.R. previously convicted or acquitted [Caes v. IAC, G.R. No.
No. L-42050-66 (1978)] 74989-90 (1989)]

RULE OF DOUBLE JEOPARDY

Order denying MTQ Order granting MTQ
Interlocutory Final Order
Conditions
Not appealable absent Immediately
a.   When
a showing of GAD. If appealable but subject
1.   an accused has been convicted or acquitted,
there is GAD, then file to rules on double
or
petition for certiorari jeopardy
2.   the case against him dismissed or otherwise
Does not dispose of the Disposes of the case terminated without his express consent
case upon its merits upon its merits when b.   by a court of competent jurisdiction
the ground is the c.   Upon a valid complaint or information or other
extinguishment of formal charge sufficient in form and substance to
liability or double sustain a conviction and
jeopardy d.   After the accused had pleaded to the charge,
Proper remedy: appeal Proper remedy: appeal
after the trial the order Effect
Consequence: Consequence: The conviction or acquittal of the accused or the
Arraignment Amend information if dismissal of the case shall be a bar to another
possible prosecution
a.   for the offense charged, or
Note: The remedy for an order denying a MTQ is to go b.   for any attempt to commit the same or frustration
to trial, without prejudice to reiterating the special thereof, or
defenses invoked in their MTQ [Serana v. c.   for any offense which necessarily includes or is
Sandiganbayan, G.R. No. 162059 (2008)] However, if necessarily included in the offense charged in the
the court in denying the motion to quash acts without former complaint or information
or in excess of jurisdiction or with grave abuse of [Sec. 7, Rule 117]
discretion, then certiorari or prohibition lies [Lazarte v.
Sandiganbayan, G.R. No. 180122 (2009); Javier v. Kinds of double jeopardy
Sandiganbayan, G.R. Nos.. 147026-27 (2009)] a.   No person shall be put twice in jeopardy for the
same offense [Sec. 21, Art. III, Constitution]
4.  E xception to the Rule that 1.   General rule: There is identity between the
two offenses not only when the second
Sustaining the Motion is offense is exactly the same as the first, but
Not a Bar to another also when the second offense is an attempt to
or frustration of or is necessarily included in
Prosecution the offense charged in the first information.
[Teehankee Jr. v. Madayag, G.R. 103102
General rule: Grant of the MTQ will not be a bar to (1992)]
another prosecution for the same offense 2.   Exceptions:
i.   The graver offense developed due to
Exception: It will bar another prosecution when the supervening facts arising from the
MTQ is based on same act or omission constituting the
a.   The criminal action or liability has been former charge;
extinguished; or ii.   The facts constituting the graver
b.   The accused has been previously convicted, or in charge became known or were
jeopardy of being convicted, or acquitted of the discovered only after a plea was
offense charged entered in the former complaint or
[Sec. 6, Rule 117] information;
iii.   The plea of guilty to the lesser offense
was made without the consent of the

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prosecutor and of the offended party Requisites for first jeopardy to attach
except when offended party failed to a.   Valid indictment
appear during such arraignment. b.   Before a competent court;
[Sec 7, Rule 117] c.   Arraignment
3.   What: The offenses are penalized either by d.   A valid plea entered, and
different sections of the same law or by e.   The accused has been convicted or acquitted, or
different statutes. The essential elements of the case dismissed or otherwise validly
each must be examined. terminated without his express consent
4.   Test: Whether or not evidence that proves [People v. Honrales, G.R. No. 182651 (2010)]
one likewise proves the other, e.g. The mere
fact that two offenses (slander by deed and However, a dictated, coerced and scripted verdict of
slight physical injuries) may have taken place acquittal is a void judgment. It neither binds nor bars
on the same occasion, or that one preceded anyone [Galman v. Sandiganbayan, G.R. No. 72670
the other, both proceeding from the same (1986)]
impulse, does not make the two a single act
or a single offense for one is certainly
distinguishable from the other. It is clear that
6.  P rovisional Dismissal
two different acts were committed one
preceding the other, resulting in two different Provisional dismissal
offenses. As jeopardy prohibits making a Provisional dismissal is dismissal without prejudice to
person liable twice for the same act, it is not its being refiled or revived [Los Baños v. Pedro, G.R. No.
present in the case where the offender is 173588 (2009)]
being made liable for two distinct acts
constituting two distinct offenses [People v. Cases are provisionally dismissed where there has
Ramos, G.R. No. L-15958 (1961)] already been arraignment and the accused consented
b.   When an act punished by a law and an ordinance, to a provisional dismissal.
conviction or acquittal under either shall be a bar
to another prosecution for the same act [Sec. 21, A case shall not be provisionally dismissed except with
Art. III, Constitution] the express consent of the accused and with notice to
1.   The second sentence of the constitutional the offended party [Sec. 8, Rule 117]
protection was precisely intended to extend
to situations not covered by the first sentence. Grounds for provisional dismissal
Although the prior offense charged under an The delimitation of the grounds available in a MTQ
ordinance be different from the offense suggests that a MTQ is a class in itself, with specific
charged under a national statute, the and closely-defined characteristics under the Rules of
constitutional protection is available Court. A necessary consequence is that where the
provided that both arise from the same act or grounds cited are those listed under Sec. 3, Rule 117,
set of acts [People v. Relova, G.R. No. L-45129 then the appropriate remedy is to file a motion to
(1987)] quash, not any other remedy. Conversely, where a
2.   But: An offense penalized by ordinance is, by ground does not appear under Sec. 3, then a motion to
definition, different from an offense quash is not a proper remedy. A motion for provisional
penalized under a statute. Hence, they would dismissal may then apply if the conditions required by
never constitute double jeopardy [People v. Sec. 8 obtain [Los Baños v. Pedro, G.R. No. 173588
Relova, G.R. No. L-45129 (1987)] (2007)]

Requisites to successfully invoke double jeopardy When dismissal becomes permanent (Time-bar
a.   A first jeopardy must have attached; rule)
b.   The first jeopardy must have been validly a.   One year after issuance of the order without the
terminated; and case having been revived for offenses punishable
c.   The second jeopardy must be for the same offense 1.   by imprisonment not exceeding 6 years, or
or the second offense necessarily includes or is 2.   by fine of any amount, or
necessarily included in the offense charged in the 3.   by both
first information, or is an attempt to commit the b.   Two years after issuance of the order without the
same or a frustration thereof case having been revived for offenses punishable
[People v. Espinosa, G.R. Nos. 153714-20 (2003)] by imprisonment of more than 6 years
[Sec. 8, Rule 117]

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Exception to the periods: The State may revive beyond

the periods provided there is a justifiable necessity for   Pre-Trial
the delay.
Its main objective is to achieve an expeditious
The Court is not mandated to apply Sec. 8 retroactively resolution of the case.
simply because it is favorable to the accused. The
time-bar under the new rule was fixed for the benefit Application of Judicial Affidavit Rule
of the State and the accused, and not for the accused a.   The Judicial Affidavit Rule shall apply to all
only [People v. Lacson, G.R. No. 149453 (2003)] criminal actions:
1.   Where the maximum of the imposable
What to file? penalty does not exceed six years;
Motion for permanent dismissal [Prof. Sanidad] 2.   Where the accused agrees to the use of
judicial affidavits, irrespective of the penalty
Note: A provisional dismissal is not equivalent of an involved; or
acquittal because the dismissal is with the express 3.   With respect to the civil aspect of the actions,
consent of the accused [Saldariega v. Panganiban, whatever the penalties involved are.
G.R. Nos.. 211933 & 211690 (2015)] b.   The prosecution shall submit the judicial
affidavits of its witnesses not later than five days
The following are conditions sine qua non for the before the pre-trial, serving copies of the same
application of the time-bar rule upon the accused. The complainant or public
a.   The prosecution, with the express conformity of the prosecutor shall attach to the affidavits such
accused, or the accused moves for the provisional documentary or object evidence as he may have,
(sin perjucio) dismissal of the case; or both the marking them as Exhibits A, B, C, and so on. No
prosecution and the accused move for a provisional further judicial affidavit, documentary, or object
dismissal of the case [Sec. 8, Rule 117] evidence shall be admitted at the trial.
b.   The offended party is notified of the motion for the c.   If the accused desires to be heard on his defense
provisional dismissal of the case after receipt of the judicial affidavits of the
c.   The court issues an order granting the motion and prosecution, he shall have the option to submit his
dismissing the case provisionally judicial affidavit as well as those of his witnesses
d.   The public prosecutor is served with a copy of the to the court within ten days from receipt of such
order of provisional dismissal of the case affidavits and serve a copy of each on the public
[People v. Lacson, G.R. No. 149453 (2003)] and private prosecutor, including his
documentary and object evidence previously
A case may be revived by marked as Exhibits 1, 2, 3, and so on. These
a.   Refiling of the information affidavits shall serve as direct testimonies of the
b.   Filing of a new information for the same offense accused and his witnesses when they appear
or one necessarily included in the original offense before the court to testify.
charged [Sec. 9, AM 12-8-8-SC]

General rule: Upon revival of the case, there is no need 1.   Matters to Be Considered
for a new PI
During Pre-Trial
Exceptions:
a.   If the original witnesses have recanted their Coverage
testimonials or have died In all criminal cases cognizable by the Sandiganbayan,
b.   If the accused is charged under a new criminal RTC, MeTC, MTCC, MTC and MCTC [Sec. 1, Rule 118]
complaint for the same offense
c.   If the original charge is upgraded Period
d.   If the criminal liability is upgraded from accessory General rule: The court shall order a pre-trial
to principal conference after arraignment and within 30 days from
the date the court acquires jurisdiction over the person
of the accused.

Exception: A shorter period may be provided by special

laws or SC circulars [Sec. 1, Rule 118]

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

Things considered Role of the judge

a.   Plea bargaining During the pre-trial, the judge shall be the one to ask
b.   Stipulation of facts questions on issues raised therein and all questions
c.   Marking for identification of evidence must be directed to him to avoid hostilities between
d.   Waiver of objections to admissibility of evidence the parties [Item B.7, A.M. No. 03-1-09-SC]
e.   Modification of the order of trial if accused admits
the charge but interposes a lawful defense (reverse
trial)
2.  W hat the Court Should Do
f.   Other matters that will promote a fair and When Prosecution and
expeditious trial of the civil and criminal aspects of
the case [Sec. 1, Rule 118] Offended Party Agree to
the Plea Offered by the
Plea bargaining
Plea bargaining has been defined as "a process Accused
whereby the accused and the prosecution work out a
mutually satisfactory disposition of the case subject to The Court shall
court approval" [Estipona Jr. v. Lobrigo, G.R. No. a.   Issue an order which contains the plea bargaining
226679 (2017)] arrived at
b.   Proceed to receive evidence on the civil aspect of
It usually involves the defendant pleading guilty to a the case; and
lesser offense or to one or some of the counts of a c.   Render and promulgate judgment of conviction,
multi-count indictment in return for a lighter sentence including the civil liability or damages duly
than that for the graver charge [People v. Mamarion, established by the evidence
G.R. No. 137554 (2003)] [Item B.5, A.M. No. 03-1-09-SC]

The conviction of the accused of the lesser offense General rule: Court approval is required.
precludes the filing and prosecution of the offense
originally charged in the information, except when the Exception: Agreements not covering matters referred
plea of guilty to a lesser offense is without the consent to in Sec. 1, Rule 118, need not be so approved [Item
of the offended party and the prosecutor [People v. De B.8, A.M. No. 03-1-09-SC]
Luna, G.R. No. L-77969 (1989); Sec. 7(c), Rule 117, see
Sec. 2, Rule 116] Effect
The stipulations become binding on the parties who
With Sec. 23 of R.A. 9165 being declared made them. They become judicial admissions of the
unconstitutional in Estipona Jr. v. Lobrigo [G.R. No. fact or facts stipulated [Bayas v. Sandiganbayan, G.R.
226679 (2017)], offenses involving dangerous drugs No. 143689-91 (2002)])
may now be the subject of plea bargain [see DOJ
Circular No. 61 (2017)] Even if placed at a disadvantageous position, a party
may not be allowed to rescind them unilaterally; he
Stipulation of facts must assume the consequences of the disadvantage
This is no longer prohibited in criminal cases [People v. [Bayas v. Sandiganbayan, G.R. No. 143689-91 (2002)]
Hernandez, G.R. No. 108028 (1996)]

However, in a case of rape with the allegation that the

3.  Pre-Trial Agreement
victim is below 12 years of age which qualifies said
crime and increases its penalty to death, nothing short Requirements
of proof beyond reasonable doubt of every fact a.   Reduced in writing;
necessary to constitute the elements of the crime must b.   Signed by the accused and counsel;
be established. Circumstances that qualify a crime c.   With approval of court if agreements cover
and increases its penalty to death cannot be the matters in Sec. 1, Rule 118
subject of stipulation [People v. Sitao, G.R. No. 146790 [Sec. 2, Rule 118]
(2002)]
If this is not followed, the admissions cannot be used
Marking for identification of evidence against the accused (i.e., inadmissible in evidence)
Proffer of exhibits is not allowed. It ought to be done [Item I-B[8], A.M. No. 03-1-09-SC (2004)] The
at the time a party closes the presentation of evidence. constitutional right to present evidence is waived
[People v. Santiago, G.R. No. L-80778 (1989)] expressly.

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

The accused must have voluntarily waived his right to injustice

present evidence and with full comprehension. [Rivera [Sec. 4, Rule 118]
v. People, G.R. No. 163996 (2005)]
The procedure is substantially the same in civil cases,
except that any modification of the pre-trial order in
4.  N on-Appearance during civil cases must be made before the trial. No such
Pre-Trial limitation is provided for in criminal cases.

The court may impose proper sanctions or penalties, if

counsel for the accused or the prosecutor to enforce
6.  R eferral of Some Cases for
the mandatory character of the pre-trial in criminal Court-Annexed Mediation
cases:
a.   Does not appear at the pre-trial conference; and
and Judicial Dispute
b.   Does not offer an acceptable excuse for his lack of Resolution
cooperation [Sec. 3, Rule 118]
After the arraignment, the court shall forthwith set the
Note: The accused is not included because his pre-trial conference within 30 days from the date of
constitutional right to remain silent may be violated. arraignment, and issue an order:
The accused is not required to attend (unless ordered a.   Requiring the private offended party to appear
by the court) and is merely required to sign the written thereat for purposes of plea-bargaining except for
agreement arrived at in the pre-trial conference, if he violations of the Comprehensive Dangerous
agrees to the contents of such. The complainant is also Drugs Act of 2002, and for other matters
not required to appear during pre-trial. It is the requiring his presence;
prosecutor who is required to appear at the pre-trial b.   Referring the case to the Branch COC, if
[People v. Judge Tac-An, G.R. No. 148000 (2003)] warranted, for a preliminary conference to be set
at least three days prior to the pre-trial to mark
5.  P re-Trial Order the documents or exhibits to be presented by the
parties and copies thereof to be attached to the
Issuance records after comparison and to consider other
The pre-trial order is: matters as may aid in its prompt disposition; and
a.   Issued by the trial judge; c.   Informing the parties that no evidence shall be
b.   Within 10 days after the termination of the pre- allowed to be presented and offered during the
trial pre-trial trial other than those identified and marked
[Item B.10, A.M. No. 03-1-09-SC] during the pre-trial except when allowed by the
court for good cause shown.
Judgment of acquittal based on pre-trial despite In mediatable cases, the judge shall refer the parties
disputed documents and issues of fact amounts to and their counsel to the PMC unit for purposes of
grave error and renders the judgment void [People v. mediation if available.
Santiago, G.R. No. L-80778 (1989)] [Item B.2, A.M. No. 03-1-09-SC]

Content
a.   Actions taken
b.   Facts stipulated
c.   Evidence marked
[Sec. 4, Rule 118]
d.   Admissions made;
e.   The number of witnesses to be presented; and
f.   The schedule of trial
[Item B.10, A.M. No. 03-1-09-SC]

Effect
a.   Binds the parties
b.   Limits the trial to those matters not disposed of;
and
c.   Controls the course of the action during trial,
unless modified by the court to prevent manifest

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

  Trial 2.  R equisites Before Trial

Can be Suspended on
1.   Instances When Presence Account of Absence of
of Accused is Required by Witness
Law
Requisites
In all criminal prosecutions, the accused shall have the a.   Absence or unavailability
right to be present and defend in person and by 1.   “Absent” means that his whereabouts are
counsel at every stage of the proceedings, from unknown or cannot be determined by due
arraignment to promulgation of the judgment [Sec. diligence
1(c), Rule 115] 2.   “Unavailable” means that his whereabouts
are known but his presence for trial cannot be
Note: The presence of the accused is required in the obtained by due diligence
following cases: b.   of an essential witness
a.   At arraignment; [Sec. 1(b), Rule 116] [Sec. 3(b), Rule 119]
b.   At the promulgation of judgment, unless the
conviction is for a light offense [Sec. 6, Rule 120] “Essential” means indispensable, necessary, or
important in the highest degree [Riano 530, 2011
Waiver of right Updated Ed., citing 5 Black’s Law Dictionary 490]
General rule: The accused may waive his presence at
the trial pursuant to the stipulations set forth in his Effect of absence of witness
bail [Sec. 1(c), Rule 115] Any period of delay resulting from the absence or
unavailability of an essential witness shall be excluded
Exception: Unless his presence is specifically ordered in computing the time within which trial must
by the court for purposes of identification [Sec. 1(c), commence [Sec. 3, Rule 119]
Rule 115]
Private counsel for the accused, the public attorney, or
Prosecution may require the presence of the accused the prosecutor who knowingly allows the case to be
for the purposes of identification by its witnesses set for trial without disclosing that a necessary witness
[Carredo v. People, G.R. No. 77542, March 19, 1990] would be unavailable for trial, may be punished by the
court as follows
Exception to the exception: The presence of the a.   by imposing on a counsel privately retained in
accused is no longer required when he unqualifiedly connection with the defense of an accused, a fine
admits in open court after arraignment that he is the not exceeding ₱20,000.00;
person named as defendant in the case on trial b.   by imposing on any appointed counsel de oficio,
[Carredo v. People, G.R. No. 77542, March 19, 1990] public attorney, or prosecutor a fine not exceeding
₱5.000.00; and
Other instances of waiver c.   by denying any defense counsel or prosecutor the
a.   The absence of the accused without justifiable right to practice before the court trying the case
cause at the trial of which he had notice shall be for a period not exceeding 30 days
considered a waiver of his right to be present The punishment provided for by this section shall be
thereat. without prejudice to any appropriate criminal action or
b.   When an accused under custody escapes, he shall other sanction authorized under the Rules [Sec. 8,
be deemed to have waived his right to be present Rule 119]
on all subsequent trial dates until custody over
him is regained Conditional examination
[Sec. 1(c), Rule 115] a.   A witness for the prosecution may forthwith be
conditionally examined before the court where
When trial should be commenced the case is pending when it satisfactorily appears
Pursuant to Sec. 8(d) of the Guidelines for that he
Decongesting Holding Jails by Enforcing the Rights of 1.   Is too sick or infirm to appear at the trial as
the Accused Persons to Bail and to Speedy Trial [A.M. directed by the court, or
No. 12-11-2 SC], trial shall be set not later than thirty 2.   Has to leave the Philippines with no definite
(30) days from the termination of pre-trial conference. date of returning.

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b.   Such examination, shall be conducted in the same Modification of order of trial; reverse trial
manner as an examination at the trial When the accused admits the act or omission charged
1.   In the presence of the accused, or in the complaint or information but interposes a lawful
2.   In his absence after reasonable notice to defense, the order of trial may be modified [Sec. 11(e),
attend the examination has been served on Rule 119]
him
c.   Failure or refusal of the accused to attend the
examination after notice shall be considered a
4.  R emedy When Accused is
waiver. The statement taken may be admitted in Not Brought to Trial
behalf of or against the accused.
[Sec. 15, Rule 119] within the Prescribed
Period
Remedy to secure appearance of a material witness
a.   When the court is satisfied, upon On motion of the accused, the information may be
1.   proof or dismissed on the ground of denial of his right to
2.   oath, speedy trial if the accused is not brought to trial within
that a material witness will not testify when required, the time limit required by
it may, upon motion of either party, order the witness a.   Sec. 1(g), Rule 116; and
to post bail in such sum as may be deemed proper. b.   Sec. 1, as extended by Section 6 of Rule 119.
[Sec. 9, Rule 119]
b.   Upon refusal to post bail, the court shall commit
him to prison until he complies or is legally Sec. 1(g), Rule 116: Unless a shorter period is provided
discharged after his testimony has been taken by special law or Supreme Court circular, the
[Sec. 14, Rule 119] arraignment shall be held within thirty (30) days from
the date the court acquires jurisdiction over the person
3.  Trial in Absentia of the accused. The time of the pendency of a motion
to quash or for a bill of particulars or other causes
Requisites justifying suspension of the arraignment shall be
a.   Accused has been arraigned excluded in computing the period.
b.   He was duly notified of trial
c.   His failure to appear is unjustified [Bernardo v. Sec. 1, Rule 119: After a plea of not guilty is entered, the
People, G.R. No. 166980 (2007)] accused shall have at least 15 days to prepare for trial.
The trial shall commence within 30 days from receipt
This is to speed up disposition of cases [People v. of the pre-trial order.
Agbulo, G.R. No. 73875 (1993)]
Sec. 6, Rule 119: Notwithstanding the provisions of
Order of Trial section 1(g), Rule 116 and the preceding section 1, for
a.   The prosecution shall present evidence to prove the first twelve-calendar-month period following its
the charge and, in the proper case, the civil effectivity on September 15, 1998, the time limit with
liability. respect to the period from arraignment to trial
b.   The accused may present evidence to prove his imposed by said provision shall be 180 days. For the
defense and damages, if any, arising, from the second twelve-month period, the time limit shall be
issuance of a provisional remedy in the case. 120 days, and for the third twelve-month period, the
c.   The prosecution may present rebuttal and sur- time limit shall be 80 days.
rebuttal evidence unless the court, in furtherance
of justice, permits it to present additional Factors to consider
evidence bearing upon the main issue. a.   Duration of the delay
d.   The defense may present rebuttal and sur- b.   Reason therefor
rebuttal evidence unless the court, in furtherance c.   Assertion of the right or failure to assert it, and
of justice, permits it to present additional d.   Prejudice caused by such delay
evidence bearing upon the main issue. [Corpuz v. Sandiganbayan, G.R. No. 162214 (2004)]
e.   Upon admission of evidence of the parties, the
case shall be deemed submitted for decision Failure of the accused to move for dismissal prior to
unless the court directs them to argue orally or to trial shall constitute a waiver of the right to dismiss on
submit written memoranda the ground of denial of his right to speedy trial [Sec. 9,
[Sec. 11(a) to (d), Rule 119] Rule 119]

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Burden of proof accused in the complaint/information. He may ask the

a.   The accused has the burden of proving the ground court to discharge one of them after complying with
of denial of right to speedy trial for the motion. the conditions prescribed by law. This applies only
b.   The prosecution has the burden of going forward when the information has already been filed in court.
with the evidence to establish the exclusion of Thus, even the state witness is included as accused
time under Sec. 3, Rule 119. prior to discharge.
c.   The dismissal shall be subject to the rules on
double jeopardy. While all the accused may be given the same penalty
[Sec. 9, Rule 119] by reason of conspiracy, one may be considered the
least guilty if we take into account his degree of
No provision of law on speedy trial and no rule participation in the perpetration of the offense [People
implementing the same shall be interpreted as a bar v. Ocimar, G.R. No. 94555 (1992)]
to any charge of denial of the right to speedy trial
guaranteed by Sec. 14(2), Art. III, Constitution [Sec. 10,
Rule 119]
6.  E ffects of Discharge of
Accused as State Witness
5.  R equisites for Discharge General rule: The order of discharge shall:
of Accused to Become a a.   Amount to an acquittal of the discharged
accused;
State Witness b.   Bar future prosecutions for the same offense
Requisites Exception: If the accused fails/refuses to testify
a.   Two or more persons are jointly charged with the against his co-accused in accordance with his sworn
commission of any offense. statement constituting the basis for his discharge,
b.   Upon motion of the prosecution before resting its these effects do not set in.
case [Sec. 18, Rule 119]
c.   After requiring the prosecution to present
evidence and the sworn statement of each Any error in asking for and in granting the discharge
proposed state witness at a hearing in support of cannot deprive the one discharged of the acquittal and
the discharge the constitutional guaranty against double jeopardy
d.   The court is satisfied of the following: [People v. Verceles, G.R. No. 130650 (2002)]
1.   Absolute necessity for the testimony of the
accused whose discharge is requested Conviction of the accused against whom discharged
state witness testified is not required.
He alone has the knowledge of the crime, and
not when his testimony would simply Subsequent amendment of the information does not
corroborate or strengthen the evidence in the affect discharge [People v. Taruc, G.R. No. L-14010
hands of the prosecution [Flores v. (1962)]
Sandiganbayan, G.R. No. L-63677 (1983)];
2.   There is no other direct evidence available for Notes:
the proper prosecution of the offense, except a.   Evidence adduced in support of the discharge
the testimony of the said accused shall automatically form part of the trial.
3.   The testimony can be substantially b.   If the court denies the motion for discharge of the
corroborated in its material points accused as state witness, his sworn statement
4.   The accused does not appear to be the most shall be inadmissible in evidence.
guilty [Sec. 18, Rule 119]
5.   The accused has not, at any time, been
convicted of any offense involving moral
turpitude 7.  Demurrer to Evidence
[Sec. 17, Rule 119]
e.   Petition for discharge is filed before the defense It is defined as “an objection or exception by one of the
has offered its evidence [People v. Aniñon, G.R. parties in an action at law, to the effect that the
No. L-39083 (1988)] evidence which his adversary produced is insufficient
in point of law (whether true or not) to make out his
Discharge of a co-accused case or sustain the issue” [Pasag v. Parocha, G.R. No.
It is the duty of the prosecutor to include all the 155483 (2007), citing Black’s Law Dictionary]

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General rule: An order granting the accused’s demurrer 1.   Filing the demurrer even without leave, or
to evidence amounts to an acquittal [Riano 491-492, 2.   Adducing evidence for his defense
2016 Ed., citing People v. Go, G.R. No. 191015 (2014)] [Sec. 23, Rule 119]
b.   Order denying the motion for leave or order
Exception: When there is a finding that there was grave denying the demurrer itself, is not reviewable by
abuse of discretion on the part of the trial court in appeal or by certiorari before judgment [Sec. 23,
dismissing a criminal case by granting the accused’s Rule 119];
demurrer to evidence [Hon. Mupas v. People, G.R. No. c.   It is interlocutory, but it may be assigned as error
189365 (2011)] and reviewed in the appeal that may be taken
from the decision on the merits [Cruz v. People,
The order granting the demurrer is not appealable but G.R. No. 121422 (1999)]
may be reviewed via certiorari under Rule 65 [People v.
Sandiganbayan, G.R. No. 164577 (2010)] Right of the accused to present evidence after
demurrer is denied
Rationale Filed with leave Filed without leave
This is to prevent the filing of demurrer based on of court of court
frivolous and flimsy grounds. May adduce evidence in Waives the right to
his defense [Sec. 23, present evidence [Sec.
How initiated Rule 119] 23, Rule 119]
a.   by the court motu proprio, after giving the Purpose is to determine
prosecution the opportunity to be heard; or Submits the case for
whether or not the
b.   Upon demurrer to evidence filed by the accused: judgment on the basis
demurrer was filed
1.   With leave of court; of the evidence for the
merely to stall the
2.   Without leave of court prosecution
proceedings
[Sec. 23, Rule 119] If there are 2 or more
accused and only one
Motion for leave to file demurrer presents a demurrer
a.   It must specifically state its grounds. without leave of court,
b.   It must be filed within a non-extendible period of the court may defer
5 days after the prosecution rests its case (i.e. resolution until decision
after the court shall have ruled on the Implied leave of court is
is rendered on the other
prosecution’s formal offer). Prosecution may then no longer sufficient and
accused if it can be
oppose within a non-extendible period of 5 days prevents accused from
shown from the
from receipt. presenting evidence
decision that the
c.   If leave of court is granted, the demurrer must be (e.g. accused files
resolution on the
filed within a non-extendible period of 10 days motion with reservation
demurrer was rendered
from notice. Prosecution may oppose the to present evidence in
not only on the basis of
demurrer within a similar period case motion is denied)
the prosecution’s
[Sec. 23, Rule 119] evidence but also on
the evidence adduced
Effect granting demurrer by his co-accused, then
The court dismisses the action on the ground of the demurrer is deemed
insufficiency of evidence [Sec. 23, Rule 119] This resolved
amounts to acquittal of the accused [People v.
Sandiganbayan, G.R. No. 164577 (2010)] Demurrer in CIVIL Demurrer in CRIMINAL
CASE CASE
Sufficient evidence for frustrating a demurrer is Anchored upon the
evidence that proves: failure of the plaintiff to Predicated upon
a.   Commission; and show that upon the prosecution’s
b.   Precise degree of participation [Singian, Jr.v. facts and the law, he is insufficiency of evidence
Sandiganbayan, G.R. Nos.. 195011-19 (2013)] entitled to relief [Sec. 1 [Sec. 23, Rule 119]
Test: Whether the prosecution evidence is sufficient Rule 33]
enough to warrant the conviction of the accused Requires prior leave of May be filed with or
beyond reasonable doubt [Riano] court relief [Sec. 1, Rule without leave of court
33] [Sec. 23, Rule 119]
Effect of denial of motion for leave to file demurrer When demurrer is Defense may present
a.   Accused may choose between

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

denied, defendant does

not lose his right to
evidence upon denial of
demurrer if the Defense   Judgment
present his evidence filed the demurrer with
leave of court. Judgment is the adjudication by the court that the
accused is guilty or not guilty of the offense charged
When without leave of and the imposition on him of the proper penalty and
court, demurrer was civil liability, if any [Sec. 1, Rule 120]
denied,
defense/accused 1.   Requisites of a Judgment
waives his right to
present evidence and a.   Written in the official language
submits the case for
judgment on the basis If given verbally, it is incomplete [People v.
of evidence offered by Catolico, G.R. No. L-31260 (1972)]
the prosecution. b.   Personally and directly prepared by the judge
If the demurrer is c.   Signed by the judge
granted, plaintiff may No appeal is allowed d.   Contains clearly and distinctly a statement of the
appeal and if the when a demurrer is facts and the law upon which judgment is based
dismissal is reversed, granted because the [Sec. 1, Rule 120]
the defendant is dismissal is deemed an
deemed to have waived acquittal [People v. Tan, There is sufficient compliance if the decision
his right to present his G.R. No. 167526 (2010)] summarizes the evidence of both parties, synthesizes
evidence the findings and concisely narrates how the offense
It is the defendant who was committed.
The court may, on its
invokes demurrer by
own initiative, may
moving for the Jurisdictional requirements
dismiss the action after
dismissal of the case. a.   Jurisdiction over the subject matter
giving the prosecution
an opportunity to be b.   Jurisdiction over the territory
The court does not so c.   Jurisdiction over the person of the accused
heard.
on its own inititiative [Riano, 499, 2016 Ed., citing Cruz v. CA, G.R. No.
[Riano 498, 2016 Ed.] 123340 (2002) and Antiporda v. Garchitorena, G.R. No.
133289 (1999)]

Judge who renders decision

The judge who presided over the entire trial would be
in a better position to ascertain the truth or falsity of
the testimonies. But the judge who only took over can
render a valid decision by relying on the transcript. It
does not violate due process [People v. Badon, G.R. No.
126143 (1999)]

The fact alone that the judge who heard the evidence
was not the one who rendered the judgment but
merely relied on the record of the case does not render
his judgment erroneous or irregular, especially when
the evidence on record is sufficient to support its
conclusion [People v. Alfredo, G.R. No. 188560 (2010)]

2.  C ontents of Judgment
a.   CONVICTION
The judgment of conviction shall state:
1.   The legal qualification of the offense constituted
by the acts committed by the accused and the
aggravating/mitigating circumstances which
attended its commission

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

2.   The participation of the accused in the offense, necessarily includes the offense proved, the accused
whether as principal, accomplice or accessory after shall be convicted of the offense proved which is
the fact included in the offense charged, or of the offense
3.   The penalty imposed upon the accused charged which is included in the offense proved [Sec.
4.   The civil liability or damages caused by his 4, Rule 120]
wrongful act/omission to be recovered from the 1.   The accused can be convicted of an offense only
accused by the offended party, if there is any, when it is both charged and proven.
unless the enforcement of the civil liability by a 2.   The mere fact that the evidence presented would
separate civil action has been reserved/waived indicate that a lesser offense outside the court’s
[Sec. 2, Rule 120] jurisdiction was committed does not deprive the
court of its jurisdiction, which had vested in it
The penalty should not be imposed in the alternative. under the allegations in the information
There should be no doubt as to the offense committed [People v. Ocaya, G.R. No. L-47448 (1978)]
and the penalty for it.
Exception to the exception: Where there are facts that
Proof beyond reasonable doubt supervened after the filing of the information which
It is that degree of proof which produces conviction in change the nature of the offense.
an unprejudiced mind [People v. Bacalzo, G.R. No.
89811 (1991)] When an offense includes or is included in another
1.   An offense charged necessarily includes the
Conviction of the accused must rest, not on the offense proved when some of the essential
weakness of the defense, but on the strength of the elements/ingredients of the former, as alleged in
prosecution. The burden to prove guilt beyond the complaint/information, constitute the latter.
reasonable doubt is on the prosecution [Boac v.
People, G.R. No. 180597 (2008)] Examples: Murder includes homicide; Serious
physical injuries include less serious or slight
Judgment for two or more offenses physical injuries; Robbery includes theft [Riano]
2.   An offense charged is necessarily included in the
Also known as duplicitous complaint or information offense proved when the essential ingredients of
[Prof. Sanidad] the former constitute or form part of those
constituting the latter [Sec. 5, Rule 120]
When two or more offenses are charged in a single
complaint or information but the accused fails to Examples: Less serious physical injuries are
object to it before trial, the court may convict him of as included in serious physical injuries; Acts of
many offenses as are charged and proved, and impose lasciviousness are included in rape; Theft is
on him the penalty for each offense, setting out included in robbery [Riano]
separately the findings of fact and law in each offense
[Sec. 3, Rule 120] The right to be informed of the charges has not been
violated because where an accused is charged with a
Variance between allegation and proof specific crime, he is duly informed also of lesser
Also known as the Variance Doctrine [Riano 503, 2016 crimes/offenses included therein [People v. Noque,
Ed.] G.R. No. 175319 (2010)]

General rule: The defendant can be convicted only of Where a complex crime is charged and the evidence
the crime with which he is charged [Riano 504, 2016 fails to support the charge as to one of the component
Ed.] offenses, the accused can be convicted of the one
which is proven [People v. Llaguno, G.R. No. 91262
However, a minor variance between the information (1998)]
and the evidence does not alter the nature of the
offense, nor does it determine or qualify the crime or b.   ACQUITTAL
penalty, so that even if a discrepancy exists, this The judgment of acquittal shall state whether
cannot be pleaded as a ground for acquittal [People v. 1.   The evidence of the prosecution absolutely failed
Noque, G.R. No. 175319 (2010)] to prove the guilt of the accused; or
2.   Merely failed to prove his guilt beyond reasonable
Exception: When there is variance between the offense doubt.
charge in the complaint or information and that In either case, the judgment shall determine if the act
proved, and the offense as charged is included in or or omission complained from which the civil liability

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

might arise did not exist. In general

[Sec. 2, Rule 120] Promulgation of judgment is an official proclamation
or announcement of the decision of the court [Pascua
Acquittal Dismissal v. Court of Appeals, G.R. No. 140243 (2000), citing
Terminates the case Jacinto, Sr. 521, Commentaries and Jurisprudence on
Decision on the merits Not on the merits but no the Revised Rules of Court [Criminal Procedure], 1994
based on a finding that finding that accused is Ed.]
the accused is not guilty not guilty
Requisites
Reasonable doubt is doubt engendered by an a.   There must be a court legally organized or
investigation of the whole proof and an inability, after constituted; and there must be a judge, or judges,
such investigation, to let the mind rest upon the legally appointed or elected and actually acting,
certainty of guilt [People v. Nito, G.R. No. 70305 either de jure or de facto [Luna v. Rodriguez, G.R.
(1993)] No. 12647 (1917)]
b.   Said judgment must be duly signed and
Acquittal based on failure to prove guilt beyond promulgated during the incumbency of the judge
reasonable doubt does not extinguish the civil liability who penned it [Payumo v. Sandiganbayan, G.R.
arising from his acts, since the civil liability arose not No. 151911 (2011)]
from a crime but from the damage caused by such c.   The judgment is promulgated by reading it in the
acts, which can be proven by a lower quantum of presence of the accused and any judge of the
evidence. Thus, it does not bar a separate civil action court in which it was rendered [Sec. 6, Rule 120]
based on quasi-delict [Lontoc v. MD Transit, G.R. No.
L-48949 (1988)] Failure to promulgate
Where there is no promulgation of judgment, no right
The court may hold the accused civilly liable even to appeal accrues. Merely reading the dispositive
when it acquits him. Acquittal extinguishes civil portion of the decision is not sufficient [Pascua v. CA,
liability only when the judgment includes a G.R. No. 140243 (2000)]
declaration that the facts from which the civil liability
might arise did not exist [Lontoc v. MD Transit, G.R. No. Notice for promulgation
L-48949 (1988)] Thus: The proper clerk of court shall give notice to the
1.   The court may nonetheless hold the accused accused personally or through his bondsman or
civilly liable in favor of the offended party, or it warden and counsel, requiring him to be present at the
may deny the award of civil damages expressly or promulgation of the decision. If the accused was tried
impliedly by being silent on the matter. in absentia because he jumped bail or escaped from
2.   The losing party may appeal the ruling on the civil prison, the notice to him shall be served at his last
liability, as in any other ordinary appeal, in his known address [Sec. 6, Rule 120]
name and not in the name of the People.
Sin perjuicio judgment
The judge acquitting an accused cannot punish him at It is a judgment without a statement of the facts in
the same time. support of its conclusion to be later supplemented by
the final judgment. This practice is discouraged by the
General rule: The court has authority to express courts [Dizon v. Lopez, A.M. No. RTJ-96-1338 (1997)]
disapproval of certain acts even if judgment is for This is a practice which should not be followed and
acquittal. cannot be looked upon with favor [Director of Lands v.
Sanz, G.R. No. 21183 (1923)]
Exception: The court is not permitted to censure the
accused in a judgment for acquittal – no matter how PROMULGATION IN CERTAIN CIRCUMSTANCES
light, a censure is still a punishment.
a.   When the judge is absent or outside the
province or city
3.  Promulgation of
Judgment; Instances of The judgment may be promulgated by the clerk of
court [Sec. 6, Rule 120]
Promulgation of Judgment
in Absentia b.   Where Presence of Accused Is Required;
Exceptions

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

General rule: Presence of the accused is mandatory in When does judgment become final?
the promulgation of judgment. a.   After the lapse of the period for perfecting an
appeal;
Exception: If the conviction is for a light offense, the b.   When the sentence has been partially/totally
judgment may be pronounced in the presence of his satisfied or served;
counsel or representative [Sec. 6, Rule 120] c.   The accused has waived in writing his right to
appeal;
If the judgment is for conviction and the failure of the d.   When the accused has applied for probation,
accused to appear was without justifiable cause, he
shall lose the remedies available in the Rules against Except: where the death penalty is imposed
the judgment and the court shall order his arrest. [Sec. 7, Rule 120]
However, within 15 days from promulgation of
judgment, he may surrender and file a motion for leave Judgment also becomes final when judgment is an
of court to avail of these remedies. He shall state the acquittal [People v. Sandiganbayan, G.R. No. 164577
reasons for his absence. If he proves his absence was (2010)]
for a justifiable cause, shall be allowed to avail of the
remedies within 15 days from notice [Sec. 6, Rule 120; After finality, the TC is divested of authority to
People v. De Grano, G.R. No. 167710 (2009)] amend/alter the judgment, except to correct clerical
errors. See Quirino v. PNB [G.R. No. L-9159 (1957)]
Effect of failure of the accused to appear at the
scheduled date of promulgation
Promulgation is made by recording the judgment in
the criminal docket and serving a copy at the accused’s
last known address or through counsel [Sec. 6, Rule
120]

c.   If the accused is confined or detained in another

province or city

The judgment may be promulgated by the executive

judge of the RTC having jurisdiction over the place of
confinement or detention upon request of the court
which rendered the judgment. The court promulgating
the judgment shall have authority to accept the notice
of appeal and to approve the bail bond pending
appeal; provided, that if the decision of the trial court
convicting the accused changed the nature of the
offense from non-bailable to bailable, the application
for bail can only be filed and resolved by the appellate
court [Sec. 6, Rule 120]

d.   Promulgation when a judge is no longer a judge

A judgment promulgated after the judge who signed
the decision has ceased to hold office is not valid and
binding. In like manner, it cannot be promulgated
after the retirement of the judge [Nazareno v. CA, G.R.
No. 111610 (2002)]

4.  W hen Does Judgment

Become Final
Modification of judgment
A judgment of conviction may, upon motion of the
accused, be modified or set aside before the judgment
becomes final or before appeal is perfected [Sec. 7,
Rule 120, Rules of Court]

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

  New Trial or introduced and admitted would probably change the

judgment [Estino v. People, G.R. No. 163957-58
Reconsideration (2007)]

The determinative test is the presence of due or

1.   Grounds for New Trial reasonable diligence to locate the thing to be used as
evidence in the trial [Briones v. People, G.R. No.
a.   Errors of law or irregularities prejudicial to the 156009 (2009)]
substantial rights of the accused have been
committed during the trial Requisites
The evidence
General rule: Errors of the defense counsel in the a.   Was discovered after the trial
conduct of the trial is neither an error of law nor b.   Could not have been discovered and produced at
an irregularity [Ceniza-Manantan v. People, G.R. the trial even with the exercise of reasonable
No. 156248 (2007)] diligence
c.   Is material, not merely cumulative/
Exception: They become an error of law or corroborative/impeaching; and
irregularity when acquittal would, in all d.   Is of such weight that it would probably change
probability, have followed the introduction of the judgment if admitted
certain testimony which was not submitted at the [Tadeja v. People, G.R. No. 145336 (2013)]
trial under improper or injudicious advice of
incompetent counsel of the accused. [Aguilar v. The accused has the burden of proving item (2) above
Court of Appeals, G.R. No. 114282 (1995)] [US v. Torrente, G.R. No. 1001 (1922)]

Irregularities must be with such seriousness as to It must be of weighty influence and will affect the
affect prejudicially the substantial rights of the result of the trial [People v. Alfaro, G.R. Nos. 136742-
accused. [Sec. 2(a), Rule 121; Tabobo v. People, 43 (2003)]
G.R. No.220977 (2017)]
b.   New and material evidence has been discovered Interest of justice as gauge for introduction of new
which the accused could not with reasonable evidence
diligence have discovered and produced at the In People v. Almendras [G.R. No. 145915 (2003)], the
trial and which if introduced and admitted would court ruled that a motion for a new trial may be
probably change the judgment granted on a ground not specifically provided in the
-   See Part L.3 of this (Criminal Procedure) rules, provided that it is sought in the interest of
reviewer justice. In that case, the relief of a new trial was
[Sec. 2, Rule 121] granted to a client who has suffered by reason of
his/her counsel’s gross mistake and negligence.
2.  G rounds for Form of motion for reconsideration & new trial
Reconsideration a.   must be in writing
b.   state the grounds on which it is based
The court shall grant reconsideration on the ground of c.   if based on newly-discovered evidence, motion
errors of law or fact in the judgment, which requires no must be supported by:
further proceedings [Sec. 3, Rule 121] 1.   the affidavits of the witnesses by whom such
evidence is expected to be given, or
2.   duly authenticated copies of documents
3.  Requisites Before a New which are proposed to be introduced in
evidence
Trial May be Granted on Notice of the motion shall be given to the prosecutor
Ground of Newly [Sec. 4, Rule 120]
Discovered Evidence
4.  E ffects of Granting New
The court shall grant a new trial when new and Trial or Reconsideration
material evidence has been discovered which the
accused could not with reasonable diligence have In general
discovered and produced at the trial and which if a.   The original judgment set aside or vacated; and

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

b.   A new judgment is rendered accordingly The “fresh period rule” enunciated in Neypes also
[Sec. 6, Rule 121] applies to criminal actions, particularly to Sec. 6 of
Rule 122 [Yu v. Tatad, G.R. No. 170979 (2011)]
Other effects of granting new trial or
reconsideration depending on ground
Action of the
Ground Effect
court
All proceedings
and evidence
affected shall
be set aside
The court will
and taken
Errors of law or allow
anew.
irregularities introduction of
If error or
committed additional
irregularity
during the trial evidence in the
goes into the
interest of
jurisdiction, the
justice.
entire
proceeding is
void and must
be set aside.
Evidence
already
adduced shall
stand and the
The court will
newly-
allow
discovered and
Newly- introduction of
such other
discovered other such
evidence shall
evidence evidence in the
be taken and
interest of
considered
justice.
together with
the evidence
already in the
record.
[Sec. 6, Rule 121]

5.  A pplication of the Neypes

Doctrine in Criminal Cases
The Neypes doctrine allows a fresh period of 15 days
within which to file the notice of appeal in the RTC,
counted from receipt of the order dismissing a MNT or
MR. Neypes v. CA [G.R. No. 141534 (2005)] declared
that:

“Henceforth, this ‘fresh period rule’ shall also apply to

Rule 40 governing appeals from the Municipal Trial
Courts to the Regional Trial Courts; Rule 42 on
petitions for review from the Regional Trial Courts to
the Court of Appeals; Rule 43 on appeals from quasi-
judicial agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme
Court.”

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

  Appeal jurisdiction of the

inferior court

1.   Effect of an Appeal In criminal cases

involving offenses for
An appeal in a criminal proceeding throws the whole which the penalty
case open for review and it becomes the duty of the imposed is death or life
appellate court to correct an error as may be found in imprisonment
the appealed judgment WON it is made the subject of
assignment of errors [People v. Calayca, G.R. No. Other offenses, which,
121212 (1999)] although not so
punished, arose out of
the same occurrence or
2.  W here to Appeal which may have been
committed by the
For cases decided by Appeal to accused on the same
RTC [Sec. 2(c), Rule occasion, as that giving
MTC/MeTC/MCTC
122] rise to the more serious
RTC or MTC/MeTC/ offense
MCTC (if it is Sandiganbayan [Sec. 4 CA [Sec. 2(c), Rule 122] SC [Sec. 2(c), Rule
government duty- (c) PD 1606 as or Sandiganbayan 122]
related, i.e., filed under amended by RA 8249]
E.O. 1, 2, 4 and 14-A)
RTC (if it involves
3.  How Appeal Taken
questions of fact and of CA
The right to appeal is not a natural right nor a part of
law)
due process but merely a statutory privilege and may
CA (notice of appeal)
be exercised only in the manner and in accordance
with the provisions of the law [Estarija v. People, G.R.
If the CA imposes
No. 173990 (2009)]
reclusion perpetua or
Where the RTC life imprisonment, it
Decided by Appeal to Mode
imposed the penalty of will render and enter
reclusion perpetua or judgment. The MTC/MeTC/M Filing of notice
RTC
life imprisonment subsequent appeal to CTC of appeal with
the SC the court
is by notice of appeal which
[Sec. 3(a)(c), Rule 122; rendered the
People v. Mateo, G.R. order
RTC (original
No. 147678 (2004)] CA appealed from
jurisdiction)
CA (automatic review) and serving a
copy thereof to
the adverse
If CA imposes
party
Where the RTC death, it will render
imposed judgment but will not Petition for
RTC (appellate
the penalty of death enter, and will certify CA review (Rule
jurisdiction)
the case to the 42)
SC for review [Sec. 3(d) Appeal to the Filing of notice
and 10 , Rule 122 ] SC in cases of appeal with
RTC where the the court
If it involves questions penalty which
of law only imposed by rendered the
If it involves the RTC is order
SC death, appealed from
constitutionality or
validity of any treaty/ reclusion and serving a
law/ordinance/EO/ perpetua, or copy thereof to
regulation or the life the adverse
imprisonment, party (Except

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

or where a when the Within 5 days from perfection of the appeal, the
lesser penalty penalty COC shall transmit the original record to the
is imposed but imposed is appropriate RTC [Sec. 9(a), Rule 122]
for offenses death as such ¯
committed on is subject to Notification of parties
the same automatic Upon receipt of the complete record, TSN and
occasion or review) evidence of the case, the RTC COC shall notify the
which arose parties of such fact [Sec. 9(b), Rule 122]
out of the
same ¯
occurrence Submission of memoranda/briefs
that gave rise Within 15 days from receipt of said notice, the
to the more parties may submit memoranda/briefs, or may be
serious required by the RTC to do so [Sec. 9(c), Rule 122]
offense for ¯
which the Decision
penalty of After submission of such memoranda/briefs or
death, upon the expiration of the period to file the same,
reclusion the RTC shall decide the case on the basis of the
perpetua, or entire record of the case and of such
life memoranda/briefs as may have been filed [Sec.
imprisonment 9(c), Rule 122]
is imposed.
Petition for General rule: The procedure to be observed in the
All other
review on MeTC/MTC/MCTC shall be the same as that in the
appeal to the
certiorari (Rule RTC.
SC
45)
[Sec. 3, Rule 122] Exceptions:
a.   Where a particular provision applies only to either
Who may appeal of said courts;
b.   Criminal cases governed by the Revised Rules on
General rule: Any party may appeal from a judgment or Summary Procedure
final order [Sec. 1, Rule 122] [Sec. 1, Rule 123]

Exceptions: Offenses falling under the jurisdiction of the

a.   A party may not appeal if the accused will be MTC/MCTC
placed in double jeopardy by such action [Sec. 1, Notwithstanding the uniform procedure rule, if the
Rule 122]; offense falls under the jurisdiction of the MTC/MCTC,
b.   If the judgment is for conviction and the accused complaint/information may be filed directly with said
fails to appear without justifiable cause, he would courts or with the City Prosecutor’s office [Salcedo v.
lose the remedy to appeal [Sec. 6, Rule 120] Nobles-Bans, G.R. No. L-67540 (1985)]

PROCEDURE IN THE LOWER COURTS Offenses falling under the jurisdiction of MeTC
When appeal to be taken In Metro Manila and other chartered cities, criminal
Wwithin 15 days from promulgation of the cases shall be commenced only by information; thus,
judgment or from notice of the final order the complaint may be filed only with the office of the
appealed from. City Prosecutor [Sec. 1(b), Rule 110]

The period to appeal shall be suspended from the If the case is directly filed with the court, the case
time a MNT or MR is filed until notice of the order should not be dismissed. The court should just refer it
overruling the motion has been served upon the to the City Prosecutor for the filing of the
accused or his counsel. corresponding information [Salcedo v. Nobles-Bans,
G.R. No. L-67540 (1985)]
[Sec. 6, Rule 122]
¯
Transmission of record to RTC

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

PROCEDURE IN THE COURT OF APPEALS The briefs in criminal cases shall have the same
contents as provided in Secs. 13 to 14, Rule 44. A
Parties and title certified true copy of the decision or final order
In all criminal cases appealed to the CA, the party appealed from shall be appended to the brief of the
appealing shall be called the “appellant” and the appellant [Sec. 7, Rule 124]
adverse party the “appellee” but the title of the case
shall remain as it was in the court of origin (i.e., People DISMISSAL OF APPEAL FOR ABANDONMENT OR
v. John Doe) [Sec. 1, Rule 124] FAILURE TO PROSECUTE; GROUNDS

BRIEFS Appellant fails to file his brief within the prescribed

time
Brief for the appellant The CA may, upon motion of the appellee or motu
Within thirty (30) days from receipt by the appellant or proprio and with notice to the appellant in either case,
his counsel of the notice from the clerk of court of the dismiss the appeal if the appellant fails to file his brief
Court of Appeals that the evidence, oral and with the time prescribed, except where the appellant
documentary, is already attached to the record, the is represented by a counsel de oficio [Sec. 8, Rule 124]
appellant shall file seven (7) copies of his brief with the
clerk of court which shall be accompanied by proof of If failure to file brief on time is the ground, appellant
service of two (2) copies thereof upon the appellee must be given notice to give him opportunity to reason
[Sec. 3, Rule 124] out why his appeal should not be dismissed [Baradi v.
People, G.R. No. L-2658 (1948)]
Brief for the appellee
Within thirty (30) days from receipt of the brief of the However, dismissal is proper despite lack of notice:
appellant, the appellee shall file seven (7) copies of the a.   If appellant has filed a MFR or motion to set aside
brief of the appellee with the clerk of court which shall the order dismissing the appeal, in which he
be accompanied by proof of service of two (2) copies stated the reason why he failed to file his brief on
thereof upon the appellant [Sec. 4, Rule 124] time and the appellate court denied the motion
after considering reason [Baradi v. People, G.R.
Reply to appellee’s brief No. L-2658 (1948)]
Within twenty (20) days from receipt of the Brief of the b.   If appeal was dismissed without notice but
appellee, the appellant may file a reply brief appellant took no steps to have the appeal
traversing matters raised in the former but not covered reinstated. Such action amounts to abandonment
in the brief of the appellant [Sec. 4, Rule 124] [Salvador v. Reyes, G.R. No. L-2606 (1949)]

With the use of the word “may”, filing a reply is Appellant escapes, jumps bail, or flees
optional. The CA may also, upon motion of the appellee or motu
proprio, dismiss the appeal if the appellant escapes
Extension of time for filing briefs from prison/confinement, jumps bail or flees to a
foreign country during the pendency of the appeal
General rule: Extension of time for the filing of briefs is [Sec. 8, Rule 124]
not allowed.
Likewise, when accused flees after the case has been
Exception: Extension may be granted for good and submitted for decision, he is deemed to have waived
sufficient cause and only if the motion for extension is his right to appeal [People v. Ang Gioc, G.R. No. L-
filed before the expiration of the time sought to be 48547 (1941)]
extended [Sec. 5, Rule 124]
However, the appeal will not be dismissed despite
The court may grant as many extensions as may be escape
asked [Gregorio v. CA, G.R. No. L-43511 (1976)] a.   In one exceptional case, the appellant took
advantage of a mass jailbreak (because,
Form of briefs according to his counsel de oficio he was innocent
Briefs shall either be printed, encoded or typewritten and wanted to elude an unjust punishment) but
in double space on legal size, good quality unglazed was recaptured two hours after, the SC ruled that
paper, 330 mm. in length by 216 mm. in width [Sec. 6, these circumstances were not sufficient to justify
Rule 124] dismissal of the appeal which, upon the
conclusion arrived at by the Court on the merits,
Content of briefs would entail a clear miscarriage of justice [People

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

v. Valencia, G.R. No. L-1369 (1949)] b.   Involving claims for damages arising from
b.   In case of automatic review [People v. Cornelio, provisional remedies;
G.R. No. L-1289 (1971)] c.   Where the court grants a new trial based only on
the ground of newly-discovered evidence
Prompt disposition of appeal [Sec. 12, Rule 124]
Appeals of accused who are under detention shall be
given precedence in their disposition over other CA’s trials and hearings must be continuous and
appeals. The Court of Appeals shall hear and decide completed within three months, unless extended by
the appeal at the earliest practicable time with due the Chief Justice. [Sec. 9, BP 129 as amended by RA
regard to the rights of the parties. The accused need 7902]
not be present in court during the hearing of the
appeal [Sec. 9, Rule 124] POST-CA JUDGMENT

Reversal or modification of judgment on appeal Certification or appeal of cases to the SC

Whenever the CA finds that the penalty of death,
General rule: No judgment shall be reversed or reclusion perpetua, or life imprisonment should be
modified. imposed in a case, the court, after discussion of the
evidence and the law involved, shall render judgment
Exception: When the CA, after an examination of the imposing the penalty of death, reclusion perpetua, or
record and of the parties’ evidence, is of the opinion life imprisonment as the circumstances warrant.
that error was committed and such error injuriously However, it shall refrain from entering the judgment
affected the appellant’s substantial rights and forthwith certify the case and elevate the entire
[Sec. 10, Rule 124] record thereof to the Supreme Court for review [Sec.
13, Rule 124]
When it involves credibility of witnesses, appellate
courts will not generally disturb the TC’s findings Judgment transmitted and filed in the TC
[People v. Cabiling, G.R. No. L-38091 (1976)] When the CA’s entry of judgment is issued, a certified
true copy of the judgment shall be attached to the
original record. These shall be remanded to the clerk
Ratio: The TC is in a better position to decide the of the court from which the appeal was taken [Sec. 17,
question, having seen and heard the witnesses Rule 124]
themselves [People v. Cabiling, G.R. No. L-38091
(1976)] This copy of the entry serves as the formal notice to the
court from which the appeal was taken of the
Scope of the CA’s judgment disposition of the case in the appellate court, so that
The CA may: the judgment may be executed and/or placed or noted
a.   Reverse/affirm/modify the judgment; in the proper file.
b.   Increase/reduce the penalty imposed by the TC;
c.   Remand the case to the RTC for new trial or MNT during the pendency of appeal
retrial; a.   Appellant may file MNT on the ground of newly
d.   Dismiss the case discovered evidence material to his defense any
[Sec. 11, Rule 124] time:
1.   After the appeal from the lower court has
When the accused appeals from the sentence of the been perfected; but
TC, he waives the constitutional safeguard against 2.   Before the CA judgment convicting him
double jeopardy and throws the whole case open to becomes final;
the review of the appellate court, which is then called b.   The motion shall conform to Sec. 4, Rule 121 [Sec.
upon to render such judgment as law and justice 14, Rule 124];
dictate, WON favorable to the accused and WON c.   If the CA grants a MNT, it may either:
made the subject of assignment of errors [Ko Bu Lin v. (a)  Conduct the hearing and receive evidence;
CA, G.R. No. L-57170 (1982)] (b)  Refer the trial to the court of origin
[Sec. 15, Rule 124]
CA’s power to receive evidence
The CA has power to try cases and conduct hearings, Motion For New Trial
receive evidence and perform any and all acts RTC [Rule 121] CA [Rule 124]
necessary to resolve factual issues in cases: Grounds: Ground:
a.   Falling within its original jurisdiction; a.   errors of law or a.   newly-discovered

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

irregularities evidence material such errors as may be found in the judgment appealed
prejudicial to the to his defense from, whether or not they were assigned as errors
substantial rights of [People v. Olfindo, G.R. No. L-22679 (1924)]
the accused have
been committed It may examine the judgment as to the qualification of
during the trial; the crime and the degree of the penalty imposed
b.   new and material [Macali v. Revilla, G.R. No. L-25308 (1926)]
evidence has been
discovered It may also assess and award civil indemnity [Quemuel
Filed after judgment, Filed after appeal from v. CA, G.R. No. L-22794 (1946)]
but before finality of lower court is perfected
conviction but before judgment Modes by which a case may reach the SC
CA can either conduct a.   Automatic review
Cannot remand to Automatic review is not a matter of right on the part of
the evidentiary hearing
lower court in its the accused, but a matter of law.
by itself, or it will
exercise of appellate
remand the case to the
jurisdiction It is available when:
court of origin
1.   The RTC judgment upon the accused imposes
Reconsideration of CA judgment death penalty [Sec. 10, Rule 122]
MFR may be filed within 15 days from notice of the CA 2.   The RTC decision is appealed to CA and the latter
judgment or final order, with copies served on the is of the opinion that the penalty imposed should
adverse party, setting forth the grounds in support be death or life imprisonment. CA judgment is
thereof. The mittimus shall be stayed during the MFR’s imposed but no entry of judgment is made;
pendency [Sec. 16, Rule 124] instead, the case is certified and the entire record
is elevated to the SC for review [Sec. 13, Rule 124]
General rule: No party shall be allowed a second MFR
of a judgment or final order [Sec. 16, Rule 124; Sec. 11, b.   Ordinary appeal
BP 129] It is available when
1.   The penalty imposed by the RTC is life
Exception: Where the first MFR resulted in a reversal imprisonment, decision is appealable directly to
or substantial modification of the original decision or the SC by filing a notice of appeal with the RTC
final resolution. In this case, the party adversely [Sec. 3, Rule 122]
affected by the reversal/modification may himself file 2.   An accused was charged with two or more
a MFR of the latest judgment of the court, because offenses committed on the same occasion or
with respect to him, said motion is a first pleading of arising out of the same occurrence, and in one of
that nature those 2 cases, he was sentenced to life
imprisonment or death penalty, the appeal with
Applicable Civil Procedure Rules respect to the others, though punished with a
Provisions of Rules 42, 44-46 and 48-56 relating to lesser penalty, is to the SC [Sec. 3, Rule 122]
procedure in the CA and the SC in original and 3.   The penalty of reclusion perpetua or death is
appealed civil cases, shall be applied to criminal cases imposed on some of the defendants and a lesser
insofar as they are applicable and not inconsistent penalty on the other co-defendants, on account of
with the provision of this Rule [Sec. 18, Rule 124] their varying degree of participation in the
commission of the offense or due to the presence
PROCEDURE IN THE SUPREME COURT of modifying circumstances, in which case the
decision on the non-life convicts is directly
Uniform procedure appealable to the SC [People v. Carino (2002)]

General rule: The procedure in the SC in original and in In these cases, the SC reviews not only errors of law
appealed cases shall be the same as in the CA. but also the findings of fact by the TC.

Exception: The Constitution or law otherwise provides. c.   Petition for review on certiorari
[Sec. 1, Rule 125] It is available when
1.   The constitutionality or validity of any treaty,
What the SC may do on review executive agreement, law, ordinance or executive
In a criminal case, an appeal to the SC throws open the order or regulation is in question [Sec. 5(2)(a), Art.
whole case for review and it becomes its duty to correct VIII, 1987 Constitution]

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

2.   When validity of law is questioned by an accused e.   When the findings of facts are conflicting
convicted under it by the TC, the SC cannot review f.   When the CA, in making its findings, went beyond
the evidence or pass upon any other question of the issues of the case and the same are contrary
law which may appear on the record, but will only to the admissions of both appellant and appellee
confine itself to the question of the in/validity of [Napolis v. CA, G.R. No. L-28865 (1972)]
that law [Trinidad v. Sweeney, G.R. No. 2487 [Napolis v. CA, G.R. No. L-28865 (1972)]
(1904)]
3.   When the jurisdiction of any inferior court is in Failure to specify appellate court
issue Failure of appellant to specify in his notice of appeal
4.   When only an error or question of law is involved the court to which the appeal is being made is not fatal
[Sec. 6(a), Rule 45] [R.A. 296]

On decisions of the CA and the Sandiganbayan, as a Erroneous mode of appeal

rule, review here is limited to errors of law [Sec. 6(a), In the case of People v. Resuello [GR No. L-30165
Rule 45] (1969)], the contention of the adverse party that the
ordinary appeal filed by appellant be dismissed
General rule: Certiorari is used to correct only errors of because the proper remedy is petition for review on
jurisdiction and not errors of judgment of an inferior certiorari (only questions of law were involved) was
court. For errors of judgment, ordinary appeal is rejected. The SC said that in cases similarly situated,
available [Tagle v. Equitable PCI, G.R. No. 172299 and as long as the steps formally required for the
(2008)] perfection of an appeal were taken in due time, appeal
may be given due course, without prejudice to
Exceptions: requiring the appellant to file the necessary petition
In the following cases, certiorari is granted despite for review on certiorari which is also a form of appeal.
existence of the remedy of appeal:
a.   Where public welfare and advancement of public Decision if opinion is equally divided
policy so dictate; When the Supreme Court en banc is equally divided in
b.   Where the broader interests of justice so require; opinion or the necessary majority cannot be had on
c.   Where the orders complained of were found to be whether to acquit the appellant, the case shall again
completely null and void; be deliberated upon and if no decision is reached after
d.   Where appeal was not considered as the re-deliberation, the judgment of conviction of the
appropriate remedy. lower court shall be reversed and the accused
[Department of Education v. Cuanan, G.R. No. 169013 acquitted [Sec. 3, Rule 125]
(2008)]

Review of CA decisions
4.  E ffect of Appeal by Any of
Several Accused
The procedure for the review by the SC of CA decisions
on criminal shall be the same as in civil cases [Sec. 2, General rule:
Rule 125] a.   An appeal taken by one or more of several
accused shall not affect those who did not appeal.
General rule: The appellate jurisdiction of the SC in b.   As to the appealing party, the execution of
cases brought to it from the CA is limited to reviewing judgment appealed from is stayed upon the
and revising the errors of law incurred by the latter. perfection of the appeal.
The CA’s findings of fact are final. If an appeal in the [Sec. 11, Rule 122]
SC involves questions of facts, the SC has no
jurisdiction and should dismiss appeal [Guico v. As to the co-accused who did not appeal, the
Mayuga, G.R. Nos.. L-45274-5 (1936)] judgment of the TC insofar as it relates to him
becomes final and the appellate court has no power to
Exceptions: interfere with it [Salvatierra v. CA, G.R. No. 107797
a.   When the conclusion is a finding founded entirely (1996)]
on speculations/surmises/conjectures
b.   When the inference made is manifestly Exception: Insofar as the judgment of the appellate
mistaken/absurd/impossible court is favorable and applicable to those who did not
c.   When there is GAD appeal or who withdrew his appeal [Sec. 11, Rule 122;
d.   When the judgment is based on a People v. Gandia, G.R. No. 175332 (2008)]
misapprehension of facts

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

The appeal of the offended party from the civil aspect

shall not affect the criminal aspect of the judgment or   Search and Seizure
order appealed from [Sec. 11, Rule 122]
1.   Nature of Search Warrant
5.  G rounds for Dismissal of
In general
Appeal It is an order in writing; issued in the name of the
People of the Philippines; signed by a judge; and
When appeal by the people will not lie directed to a peace officer, commanding him to search
The People/State cannot appeal when it will put the for personal property described in the warrant and
accused in double jeopardy. The constitutional bring it before the court [Sec. 1, Rule 126]
mandate against double jeopardy prohibits not only a
subsequent prosecution in a new and independent Nature
cause but extends also to appeal in the same case by A search warrant is in the nature of a criminal process
the prosecution after jeopardy had attached [Republic akin to a writ of discovery, employed by the state to
v. CA, G.R. No. L- 41115 (1982)] procure relevant evidence of a crime [Malaloan v. CA,
G.R. No. 104879 (1994)]
The prosecution cannot appeal from a judgment of
acquittal [Central Bank v. CA, G.R. No. 41859 (1989)] It is not available to individuals in the course of civil
proceedings.
Rationale
A verdict of that nature is immediately final and to try It is interlocutory in character – it leaves something
on the merits, even in an appellate court, places the more to be done, which is the determination of the
accused in double jeopardy [Central Bank v. CA, G.R. guilt of the accused.
No. 41859 (1989)]
Constitutional safeguard
Dismissal of case upon filing of demurrer by the No search warrant or warrant of arrest shall issue
accused was held to be final even though based on except upon probable cause to be determined
erroneous interpretation of the law. Hence, an appeal personally by the judge after the examination under
therefrom by the prosecution would constitute double oath/affirmation of the complaint and the witness he
jeopardy [People v. Sandiganbayan, G.R. No. 174504 may produce, and particularly describing the place to
(2011), citing People v. Nieto, 103 Phil. 1133] be searched, and the things/persons to be seized [Sec.
2, Art. III, Constitution]
Where the TC has jurisdiction but mistakenly
dismisses the complaint/information on the ground of Under the exclusionary rule, any evidence obtained in
lack of it, the order of dismissal is unappealable violation of this is inadmissible for any purpose in any
[People v. Duran, G.R. No. L-13334 (1960)] proceeding [Sec. 3, 2nd par., Art. III, Constitution]

An appeal by the People will not lie if the purpose is to The constitutional guarantee is not a blanket
correct the penalty imposed by the trial court or to prohibition against all searches and seizures. It
include in a judgment a penalty erroneously omitted operates only against “unreasonable” searches and
[People v. Paet, G.R. No. L-9551 (1956)] seizures.

The preclusion against appeal by the State from What constitutes a reasonable or unreasonable search
judgments or final orders having the effect of acquittal or seizure in any particular case is purely a judicial
applies even though accused did not raise question of question, determinable from a consideration of the
jeopardy [People v. Ferrer, G.R. No. L-9072 (1956)] circumstances involved, including the purpose of the
search, the presence or absence of probable cause, the
manner in which the search and seizure was made, the
place or thing searched, and the character of the
articles procured [Rodriguez v. Villamiel, L-44328
(1937)]

Directed upon acts of the government, not private

persons
The constitutional protection is directed against the

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

acts of the government and its agents, not private

persons [People v. Marti, G.R. No. 81561 (1991)] Exceptions:
a.   Search incidental to a lawful arrest;
However, if the private person is acting upon orders of b.   Consented search;
government officials, the principle of agency applies, c.   Search of moving vehicle;
because in fact such private person is acting in the d.   Checkpoints;
interest of government, and is therefore subject to the e.   Plain view;
prohibition against unreasonable searches and f.   Stop and frisk;
seizures. g.   Customs search;
h.   Other exceptions, such as exigent circumstances,
General rule: Search of property is unreasonable unless buy-bust operations, and private searches.
it has been authorized by a valid search warrant.

2.  D istinguish From Warrant of Arrest

Search warrant Warrant of arrest
Order in writing issued in the name of the
Order directed to the peace officer to execute
People of the Philippines, signed by the judge
Nature and the warrant by taking the person stated
and directed to the peace officer to search
purpose therein into custody that he may be bound to
personal property described therein and to
answer for the commission of the offense
bring it to court [Sec. 1, Rule 126]
Sec. 2, Art. III of the Constitution does not
mandatorily require the judge to personally
The judge must personally examine in the examine the complainant and her witnesses.
form of searching questions and answers, Instead, he may opt to personally evaluate
under oath, the complainant and witnesses the report and supporting documents
Determination of
he may produce on facts personally known to submitted by the prosecutor or he may
Probable cause
them and attach to the record their sworn disregard the prosecutor’s report and require
statements, together with the affidavits the submission of supporting affidavits of
submitted [Sec. 5, Rule 126] witnesses [People v. Grey,, G.R. No. 180109
(2010), citing Soliven v. Makasiar, G.R. No. L-
82585 (1988)]
It must particularly describe the place to be
searched and the things to be seized [Sec. 2, It must particularly describe the person to be
Form
Art. III, Constitution], which may be anywhere arrested [Sec. 2, Art. III, Constitution]
in the Philippines [Sec. 4, Rule 126]
The warrant must direct that it be served in
the day time, unless the affidavit asserts that
the property is on the person or in the place No such limitation under Sec. 2, Art. III,
When executed
ordered to be searched, in which case a Constitution and Rule 113
direction may be inserted that it be served at
any time of the day or night [Sec. 9, Rule 126]
Does not expire

The 10-day period referred to in Sec. 4, Rule

Valid for 10 days from its date [Sec. 10, Rule
Validity 113 refers to the time within which the head of
126]
the office to whom the warrant of arrest was
delivered for execution shall cause the
warrant to be executed.

Exception: For compelling reasons, which must be

3.  Application for Search stated in the application, it may also be filed:
Warrant; Where Filed a.   If the place of the commission of the crime is
known, any court within the judicial region where
General rule: It may be filed in any court within whose the crime was committed
territorial jurisdiction the crime was committed. b.   Any court within the judicial region where the
warrant shall be enforced

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However, if the criminal action has already been filed, return has already been made [Mustang Lumber v. CA,
the application shall only be made in the court where G.R. No. 104988 (1996)]
the criminal action is pending [Sec. 2, Rule 126]
SERVICE OF THE SEARCH WARRANT
Under A.M. No. 03-8-02-SC, Executive Judges and,
whenever they are on official leave of absence or are Right to break door or window to effect search
not physically present in the station, the Vice- The officer, if refused admittance to the place of
Executive Judges of Manila and Quezon City RTCs directed search after giving notice of his purpose and
shall have authority to act on applications for search authority, may break open any outer or inner door or
warrants involving window of a house or any part of a house or anything
a.   Heinous crimes therein to execute the warrant to liberate himself or
b.   Illegal gambling any person lawfully aiding him when unlawfully
c.   Illegal possession of firearms and ammunitions detained therein [Sec. 7, Rule 126]
d.   Violations of the Comprehensive Dangerous
Drugs Act of 2000 Knock and announce principle
e.   Violations of the Intellectual Property Code Generally, officers executing a search must do the
f.   Violations of the Anti-Money Laundering Act of following acts:
2001 a.   Announce their presence;
g.   Violations of the Tariff and Customs Code, and b.   Identify themselves to the accused and to the
h.   Other relevant laws that may hereafter be persons who rightfully have possession of the
enacted by Congress and included herein by the premises to be searched;
Supreme Court. c.   Show to them the search warrant; and
d.   Explain the warrant in a language or dialect
Substance of application known and understood by them
A search warrant shall not issue except [People v. Huang Zen Hua, G.R. No. 139301 (2004)]
a.   Upon probable cause
b.   In connection with one specific offense When unannounced intrusion permissible
c.   To be determined personally by the judge a.   Person in the premises refuses to open it upon
d.   After examination under oath or affirmation of the demand;
complainant and the witness he may produce b.   Person in the premises already knew of the
e.   Particularly describing the place to be searched identity and authority of the officers;
and the things to be seized which may be anywhere c.   When the officers have an honest belief that there
in the Philippines [Sec. 4, Rule 126] is an imminent danger to life and limb;
d.   When those in the premises, aware of the
Issuance and form of search warrant presence of someone outside, are then engaged
If the judge is satisfied of the existence of facts upon in activities which justifies the officers to believe
which the application is based or that there is probable that an escape or the destruction of evidence is
cause to believe that they exist, he shall issue the imminent.
warrant, which must be substantially in the form [People v. Huang Zen Hua, G.R. No. 139301 (2004)]
prescribed the Rules [Sec. 6, Rule 126]
Search in presence of two witnesses
Thus, the search warrant must be in writing and No search of a house, room, or any other premises
contain shall be made except in the presence of the lawful
a.   Name of person against whom it is directed occupant thereof or any member of his family or in the
b.   Offense for which it was issued absence of the latter, two witnesses of sufficient age
c.   The place to be searched, and and discretion residing in the same locality [Sec. 8,
d.   The description of the specific things to be seized Rule 126]
e.   A directive to law enforcement officers to search
and seize and for them to bring in court the things Time of making search
seized General Rule: The search shall be made at day time
f.   Signature of the judge issuing it
Exception: Unless the affidavit asserts that the
Validity of the search warrant property is on the person or in the place ordered to be
The search warrant is valid for 10 days from its date. searched, in which case a direction may be inserted
Thereafter, it shall be void [Sec. 10, Rule 126] that it be served at any time of the day or night [Sec. 9,
Rule 126]
The lifetime of the search warrant also ends when a

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A search warrant violates Sec. 9, Rule 126 if the time items seized cannot be interfered with. Custody lasts
for making the search is left blank, thus enabling the until the institution of the appropriate criminal action
officers to conduct the search in the evening of the with the proper court [Tenorio v. CA, G.R. No. 110604
appointed search, causing untold conveniences to the (2003)]
person searched.

Where a search is to be made during the night time,

4.  P robable Cause (in Search
the authority for executing the same at that time Warrants)
should appear in the directive on the face of the search
warrant [Asian Surety v. Herrera, G.R. No. L-25232 Probable cause means such facts and circumstances
(1973)] which would lead a reasonably discreet and prudent
man to believe that an offense has been committed,
Post-service and that objects sought in connection with the
offense are in the place sought to be searched
Receipt of property seized [Santos v. Pryce Gases Inc., G.R. No. 165122 (2007)]
a.   If the lawful occupant is present: the officer
seizing the property under the search warrant This probable cause must be shown to be within the
must give a detailed receipt for the same to the personal knowledge of the complainant or the
lawful occupant of the premises in whose witnesses he may produce and not based on mere
presence the search and seizure were made. hearsay. The probable cause must refer only to one
b.   If the lawful occupant is not present: the officer specific offense [Roan v. Gonzales, G.R. No. 71410
seizing the property under the search warrant (1986)]
must, in the presence of at least two witnesses of
sufficient age and discretion residing in the same Note: Probable cause to arrest does not necessarily
locality, leave a receipt in the place in which he involve a probable cause to search and vice-versa.
found the seized property
[Sec. 11, Rule 126]
5.  P ersonal Examination by
Delivery and inventory of property Judge of the Applicant and
a.   The officer must forthwith deliver the property
seized to the judge who issued the warrant, Witnesses
together with a true inventory thereof duly verified
under oath. Aside from the requirements mandated by Sec. 4, Rule
b.   Ten days after issuance of the search warrant, the 126, the Rules require the judge to comply with a
issuing judge shall ascertain if the return has been specific procedure in the conduct of the examination
made, and if none, shall summon the person to of the complainant and the witnesses he may produce
whom the warrant was issued and require him to a.   The examination must be personally conducted
explain why no return was made. by the judge;
c.   If the return has been made, the judge shall b.   The examination must be in the form of searching
ascertain whether Sec. 11, Rule 126, on giving or questions and answers;
receipts, has been complied with and shall require c.   The complainant and the witnesses shall be
that the property seized be delivered to him. The examined on those facts personally known to
judge shall see to it that delivery has been them;
complied with. d.   The statements must be in writing and under
d.   The return on the search warrant shall be filed and oath; and
kept by the custodian of the log book on search e.   The sworn statements of the complainant and the
warrants who shall enter therein the date of the witnesses, together with the affidavits submitted,
return, the result, and other actions of the judge. shall be attached to the record.
[Sec. 12, Rule 126] [Sec. 5, Rule 126]

The court which issued the search warrant acquires Searching questions and answers
jurisdiction over the items seized under the said Searching questions are such questions which have
warrant. Goods seized lawfully on the basis of the said the tendency to show the commission of a crime and
warrant or its accepted exceptions are in custodia the perpetrator thereof [Luna v. Plaza, G.R. No. 27511
legis. Only that court which issued the warrant may (1968)]
order the release or disposition thereof. The
jurisdiction, custody and control of the court over the In search cases, the application must be supported by

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substantial evidence efforts, ascertain and identify the place intended

a.   That the items sought are in fact seizable by virtue [People v. Veloso, G.R. No. L-23051 (1925)]
of being connected with criminal activity; and
b.   That the items will be found in the place to be An apparent typographical error will not necessarily
searched invalidate the search warrant, as long as the
[People v. Tuan, G.R. No. 176066 (2010)] application contains the correct address [Burgos v.
Chief of Staff, G.R. No. L-64261 (1984)]
A search warrant issued by a judge who did not ask
searching questions but only leading ones and in a Particularity of things to be seized
general manner is invalid [Uy v. BIR, G.R. No. 129651 The scope of the search warrant is limited to personal
(2000)] property. It does not issue for seizure of immovable
properties [see Sec. 3, Rule 126]
Although there is no hard-and-fast rule governing
how a judge should conduct his investigation, it is General rule: Things to be seized must be described
axiomatic that the examination must be probing and particularly. General search warrants are not allowed.
exhaustive, not merely routinary, general, peripheral, Otherwise, the search and seizure of the items in the
perfunctory or pro forma. The judge must not simply implementation of such search warrant is illegal and
rehash the contents of the affidavit but must make his the items seized are inadmissible in evidence [Sec. 2,
own inquiry on the intent and justification of the Art. III, Constitution]
application [Yao v. People, G.R. No. 168306 (2007)]
A general warrant is defined as "(a) search or arrest
A warrant not based on personal knowledge is void. warrant that is not particular as to the person to be
arrested or the property to be seized." It is one that
Examination under oath allows the "seizure of one thing under a warrant
The judge must examine under oath or affirmation the describing another" and gives the officer executing the
complainant and the witness he may produce [Sec. 2, warrant the discretion over which items to take
Art. III, Constitution] [Worldwide Web Corporation v. People, G.R. No. 161106
(2014)]
Oath includes any form of attestation by which a party
signifies that he is bound in conscience to perform an Such discretion is abhorrent, as it makes the person,
act faithfully and truthfully. The oath required must against whom the warrant is issued, vulnerable to
refer to the truth of the facts within the personal abuses. Our Constitution guarantees our right against
knowledge of the petitioner or his witnesses, because unreasonable searches and seizures, and safeguards
the purpose thereof is to convince the committing have been put in place to ensure that people and their
magistrate, not the individual making the affidavit and properties are searched only for the most compelling
seeking the issuance of the warrant, of the existence of and lawful reasons [Worldwide Web Corporation v.
probable cause [Alvarez v. CFI, G.R. No. 45358 (1937)] People, G.R. No. 161106, January 13, 2014]

Mere affidavits of the complainant or his witnesses are Search warrants authorizing the seizure of books of
not sufficient. The examining judge has to take accounts and records “showing all the business
depositions in writing of the complaint or his transactions” of certain persons, regardless of
witnesses, and attach the same to the record whether the transactions were legal or illegal, are
[Prudente v. Judge Dayrit, G.R. No. 82870 (1989)] general warrants prohibited by law [Stonehill v.
Diokno, G.R. No. L-19550 (1967)]
6.  P articularity of Place to Be Where the language used is too all-embracing as to
Searched and Things to Be include all the paraphernalia of petitioner in the
operation of its business, the SW is constitutionally
Seized objectionable [Columbia Pictures v. Flores, G.R. No.
78631 (1993)]
Warrant issued must particularly describe the place to
be searched and the things to be seized [Sec. 2, Art. III, Exceptions:
Constitution] Where, by the nature of the goods to be seized, their
description must be rather general, it is not required
Particularity of place to be searched that a technical description be given, for this would
Description of place to be searched is sufficient if the mean that no search warrant could issue [People v.
officer with the search warrant can, with reasonable Rubio, G.R. No. L-35500 (1932)]

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The general description of the documents listed in the 2.   Buy-Bust Operation

search warrant does not render it void if it is severable, 3.   Private Searches
and those items not particularly described may be cut
off without destroying the whole [Uy v. BIR, G.R. No. Items (1) to (3), (5) to (7) and (8)(a) are enumerated in
129651 (2000)] Veridiano v. People [G.R. No. 200370 (2017)] The other
items are sanctioned by the SC in other cases. See the
Although the warrant was defective in the respects discussion below.
noted, it does not follow that it was invalid as a whole.
It would be a drastic remedy indeed if a warrant is to SEARCH INCIDENTAL TO LAWFUL ARREST
be invalidated in toto because the judge erred in In a search incidental to an arrest, even without a
authorizing a search for other items not supported by warrant, the person arrested may be searched for:
the evidence [People v. Salinguit, 356 SCRA 683 1.   Dangerous weapons
(2001)] 2.   Anything which may have been used in the
commission of an offense, or
Note: The law does not require that the things must be 3.   Anything which may constitute proof in the
described in precise and minute detail as to leave no commission of the offense [Sec. 13, Rule 126]
room for doubt on the part of the searching
authorities. Otherwise, it would be virtually impossible Purpose
for the applicants to obtain a warrant as they would When an arrest is made, it is reasonable for the
not know exactly what kind of things they are looking arresting officer to search the person arrested in order
for [Vallejo v. People, G.R. No. G.R. No. 156413 (2004), to remove any weapon that the latter might use in
Kho v. Makalintal, G.R. Nos.. 94902-06 (1999)] order to resist arrest or effect his escape. Otherwise,
the officer’s safety might well be endangered, and the
arrest itself frustrated. In addition, it is entirely
7.  Personal Property to be reasonable for the arresting officer to search for and
Seized seize any evidence on the arrestee’s person in order to
prevent its concealment or destruction [People v.
What may be seized Calantiao, G.R. No. 203984 (2014), citing Valeroso v.
a.   Personal property subject of the offense; CA, G.R. No. 164815 (2009)]
b.   Personal property stolen/embezzled and other
proceeds/fruits of the offense; Scope
c.   Personal property used or intended to be used as A valid arrest allows the seizure of evidence or
the means of committing an offense dangerous weapons either on the person of the one
[Sec. 3, Rule 126] arrested or within the area of his immediate control.
The phrase “within the area of his immediate control”
The rule does not require that the property to be seized means the area from within which he might gain
should be owned by the person against whom the possession of a weapon or destructible evidence. A
search warrant is directed. It is sufficient that the gun on a table or in a drawer in front of one who is
person against whom the warrant is directed has arrested can be as dangerous to the arresting officer
control of possession of the property sought to be as one concealed in the clothing of the person arrested
seized [Burgos v. Chief of Staff, G.R. No. L-64261 [People v. Calantiao, G.R. No. 203984 (2014), citing
(1984)] Valeroso v. CA, G.R. No. 164815 (2009)]

“Lawful arrest”
8.  E xceptions to the Search Although, generally, a warrant is necessary for a valid
Warrant Requirement arrest, Sec. 5, Rule 113 provides the exceptions such as
arrests in flagrante delicto, arrests effected in hot
a.   Search Incidental to Lawful Arrest pursuit, and arrests of escaped prisoners [People v.
b.   Consented Search Mariacos, G.R. No. 188611 (2010)]
c.   Search of a Moving Vehicle
d.   Checkpoints; Body Checks in Airport In searches incident to a lawful arrest, the arrest must
e.   Plain View precede the search; generally, the process cannot be
f.   Stop and Frisk reversed. Nevertheless, a search substantially
g.   Enforcement of Customs Law contemporaneous with an arrest can precede the
h.   Other Exceptions arrest if the police have probable cause to make the
1.   Exigent and Emergency Circumstances arrest at the outset of the search [Sy v. People, G.R. No.
182178 (2011) citing People v. Racho (erroneously

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

referred to as Rancho), G.R. No. 186529 (2010)] 5.   The presence of coercive police procedures;
6.   The defendant's belief that no incriminating
When an individual is lawfully arrested, he/she may be evidence will be found;
frisked for concealed weapons that may be used 7.   The nature of the police questioning;
against the arresting officer and all unlawful articles 8.   The environment in which the questioning took
found in his person, or within his immediate control, place; and
may be seized [OCA v. Barron, A.M. No. RTJ-98-1420 9.   The possibly vulnerable subjective state of the
(1998)] person consenting.
[Caballes v. CA, G.R. No. 136292 (2002)]
Illegal search
The rule assumes that the arrest is legal. If the arrest SEARCH OF A MOVING VEHICLE
is illegal, then the search is illegal and as a result, the When a vehicle is stopped and subjected to an
things seized are inadmissible as evidence [People v. extensive search, such a warrantless search should be
Aruta, G.R. No. 120195 (1998)] constitutionally permissible only if the officers
conducting the search have reasonable or probable
Where a search is first undertaken, and an arrest was cause to believe, before the search, that either:
effected based on evidence produced by such search, 1.   the motorist is a law-offender; or
both search and arrest are illegal [Lui v. Matillano, G.R. 2.   they will find the instrumentality or evidence
No. 141176 (2004)] pertaining to a crime in the vehicle to be searched
[Caballes v. CA, G.R. No. 136292 (2002)]
CONSENTED SEARCH
Jurisprudence requires that in case of consented Rationale
searches or waiver of the constitutional guarantee Peace officers may lawfully conduct searches of
against obtrusive searches, it must first appear that: moving vehicles without need of a warrant as it is
1.   The right exists; impracticable to secure a judicial warrant before
2.   The person involved had knowledge, either actual searching a vehicle since it can be quickly moved out
or constructive, of the existence of such right; and of the locality or jurisdiction in which the warrant may
3.   The said person had an actual intention to be sought [People v. Tuazon, G.R. No. 175783 (2007)]
relinquish the right.
[People v. Nuevas, G.R. No. 170233 (2007)] However, these searches would be limited to visual
inspection and the vehicles or their occupants cannot
Consent to a search is not to be lightly inferred, but be subjected to physical or body searches, except
must be shown by clear and convincing evidence. It is where there is probable cause to believe that the
the State which has the burden of proving, by clear occupant is a law offender or the contents of the
and positive testimony, that the necessary consent vehicles are instruments or proceeds of some criminal
was obtained and that it was freely and voluntarily offense.
given [Valdez v. People, G.R. No. 170180 (2007)]
The search and seizure without warrant of vessel and
A peaceful submission to a search or seizure is not a aircrafts for violation of customs laws has been a
consent or an invitation thereto, but is merely a traditional exception to the requirement of search
demonstration of regard for the supremacy of the law warrant [Roldan v. Arca, G.R. No. L-25434 (1975)]
[People v. Nuevas, G.R. No. 170233 (2007)]
When a vehicle is stopped and subjected to an
Consented search is reasonable only if kept within the extensive search, such would be constitutionally
bounds of the actual consent. A person’s consent may permissible only if the officers made it upon probable
limit the extent/scope of a warrantless search in the cause, i.e., upon a belief, reasonably arising out of
same way that the specifications of a warrant limit the circumstances known to the seizing officer, that an
search pursuant thereto. automobile or other vehicle contains a[n] item, article
or object which by law is subject to seizure and
Relevant to the determination of consent are the destruction [People v. Breis, G.R. No. 205823 (2015),
following characteristics of the person giving consent citing People v. Libnao, G.R. No. 136860 (2003)]
and the environment in which consent is given:
1.   The age of the defendant; CHECKPOINTS; BODY CHECKS IN AIRPORT
2.   Whether he was in a public or secluded location; Searches conducted in checkpoints are valid as long
3.   Whether he objected to the search or passively as they are warranted by the exigencies of public order
looked on; and conducted in a way least intrusive to motorists.
4.   The education and intelligence of the defendant;

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Although the general rule is that motorists and their incriminating object
vehicles as well as pedestrians passing through
checkpoints may only be subjected to a routine Even if an object is in plain view, before it can be seized
inspection, vehicles may be stopped and extensively without a search warrant, its incriminating nature
searched when there is probable cause which justifies must first be apparent
a reasonable belief of the men at the checkpoints that
either the motorist is a law offender or the contents of Where police officers are on the premises pursuant to
the vehicle are or have been instruments of some a valid consent to a search, an item falling into their
offense [People v. Vinecario, G.R. No. 141137 (2004)] plain view may properly be seized even if the item is
not connected with their purpose in entering as long
Routine inspections are not regarded as violative of an as its discovery was inadvertent, and the item was
individual’s right against unreasonable search incriminating [United Laboratories v. Isip, G.R. No.
1.   Where the officer merely draws aside the curtain 163858 (2005)]
of a vacant vehicle which is parked on the public
fair grounds Rationale
2.   officer simply looks into a vehicle The doctrine is a recognition of the fact that when the
3.   officer flashes a light therein without opening police come across immediately recognizable
car’s doors incriminating evidence not named in the warrant, they
4.   Occupants not subjected to a physical search should not be required to close their eyes to it,
5.   Inspection is limited to visual search or visual regardless of whether it is evidence of the crime they
inspection, or are investigating or evidence of some other crime. The
6.   Routine check is conducted in a fixed area doctrine is also a recognition of the fact that it would
[Caballes v. CA, G.R. No. 136292 (2002)] be needless inconvenience to require the police to
th
obtain another warrant [US v. Gray, 484 F.2d 352 (6
PLAIN VIEW SITUATION Cir., 1978)]
Requisites
1.   A prior valid intrusion i.e., based on the valid STOP AND FRISK SITUATION
warrantless arrest in which the police are legally Stop and frisk is a limited protective search of outer
present in the pursuit of their official duties clothing for weapon [Malacat v. CA, G.R. No. 123595
2.   Evidence was inadvertently discovered by the (1997)]
police who have a right to be where they are
3.   Evidence must be immediately and apparently Where a police officer observes unusual conduct,
illegal (i.e., drug paraphernalia) which leads him reasonably to conclude in the light of
4.   Plain view justified mere seizure of evidence his experience that criminal activity may be afoot, and
without further search that a person with whom he is dealing may be armed
[People v. Martinez, G.R. No. 191366 (2010)] and presently dangerous, he is entitled to conduct a
stop and frisk search.
It is clear that an object is in plain view if the object
itself is plainly exposed to sight. Where the object Where in the course of investigating this behavior he
seized was inside a closed package, the object is not in identifies himself as a policeman and makes
plain view and therefore cannot be seized without a reasonable inquiries, and where nothing in the initial
warrant. However, if the package proclaims its stages of the encounter serves to dispel his reasonable
contents, whether by its distinctive configuration, its fear for his own or others’ safety, he is entitled for the
transparency, or if its contents are obvious to an protection of himself and others in the area to conduct
observer, then the contents are in plain view and may a carefully limited search of the outer clothing of such
be seized [People v. Doria, G.R. No. 125299 (1999)] persons in an attempt to discover weapons which
might be used to assault him [Malacat v. CA, G.R. No.
Limitations 123595 (1997), citing Terry v. Ohio, 392 U.S. 1 (1968)]
1.   It may not be used to launch unbridled searches
and indiscriminate seizures Genuine reason required
2.   It does not extend to a general exploratory search Other notable points of Terry are that while probable
made solely to find evidence of defendant’s guilt cause is not required to conduct a “stop and frisk,” it
[People v. Musa, G.R. No. 96177 (1993)] nevertheless Other notable points of Terry are that
while probable cause is not required to conduct a
The doctrine is usually applied where a police officer is “stop and frisk,” it nevertheless holds that mere
not searching for evidence against the accused, but suspicion or a hunch will not validate a “stop and
nonetheless inadvertently comes across an frisk.” A genuine reason must exist, in light of the

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U.P. LAW BOC CRIMINAL PROCEDURE REMEDIAL LAW

police officer’s experience and surrounding conditions, any trunk/package/box/envelope or any person
to warrant the belief that the person detained has on board, or stop and examine any
weapons concealed about him [Malacat v. CA, G.R. No. vehicle/beast/person suspected of
123595 (1997), citing Terry v. Ohio, 392 U.S. 1 (1968)] holding/conveying any dutiable/prohibited
article introduced into the Philippines contrary to
Test of reasonableness law [Sec. 221, CMTA]
The test of reasonableness is the concept of
suspiciousness present in the situation the officer finds General rule: The CMTA does not require a warrant for
himself. This is subject to the experiences of the officer such searches
for them to determine whether the situation does feel
suspicious based on the facts presented to them. In Exception: In the search of a dwelling house, a search
jurisprudence, seeing a person with red eyes or is warrant is required [Sec. 220, CMTA]
walking in swaying manner would amount to a
suspicious situation [People v. Cogaed, G.R. No. Note: RTCs are devoid of any competence to pass upon
200334 (2015)] the validity or regularity of seizure and forfeiture
proceedings conducted by the Bureau of Customs and
Dual purpose of stop-and-frisk to enjoin or otherwise interfere with these
1.   The general interest of effective crime proceedings. It is the Collector of Customs, sitting in
prevention and detection, which underlies the seizure and forfeiture proceedings, who has exclusive
recognition that a police officer may, under jurisdiction to hear and determine all questions
appropriate circumstances and in an appropriate touching on the seizure and forfeiture of dutiable
manner, approach a person for purposes of goods [Asian Terminals, Inc. v. Bautista-Ricafort, G.R.
investigating possible criminal behavior even No. 166901 (2006)]
without probable cause; and
2.   The more pressing interest of safety and self- OTHER EXCEPTIONS
preservation which permit the police officer to
take steps to assure himself that the person with Exigent and emergency circumstances
whom he deals is not armed with a deadly weapon In one case, there was a prevailing general chaos and
that could unexpectedly and fatally be used disorder because of an ongoing coup, and the raid of
against the police officer. the office/building was precipitated by an intelligence
[Malacat v. CA, G.R. No. 123595 (1997)] report that said office was being used as HQ by the
RAM. Also, the surveillance team before the raid was
Stop and Frisk v. Search Incidental to Lawful Arrest fired upon by the people inside. The raiding team had
Stop and frisk is usually confused with search no opportunity to apply for warrant as the court then
incidental to lawful arrest. The latter happens when was closed [People v. de Gracia, G.R. Nos.. 102009-10
one is caught in flagrante delicto, the former is done in (1994)]
order to prevent a crime from occurring [People v.
Cogaed, G.R. No. 200334 (2015)] Buy-bust operation
This is a form of entrapment legally employed by
"Stop and frisk" searches are also conducted to peace officers as an effective way of apprehending
prevent the occurrence of a crime and should be used drug dealers in committing an offense. There is no
when dealing with a rapidly unfolding and potentially need for a search warrant (or warrant of arrest)
criminal situation in the city streets where unarguably because the accused is caught in flagrante delicto.
there is no time to secure a search warrant [Manalili v.
CA, G.R. No. 113447 (1997)] Private searches
In one case, the evidence was obtained by a private
ENFORCEMENT OF CUSTOMS LAW person acting in a private capacity, while performing
For the enforcement of customs duties and tariff laws, company standard operating procedures and without
the Collector of Customs is authorized to effect state participation and intervention. It was held that
searches and seizure [General Travel Services v. David, the constitutional rights cannot be invoked when there
G.R. No. L-19259 (1966)] is no government interference [People v. Marti, G.R.
No. 81561 (1991)]
The Customs Modernization and Tariff Act (CMTA)
authorizes customs officers to:
1.   Enter, pass through or search any land, enclosure,
warehouse [Sec. 219, CMTA]
2.   Inspect/search/examine any vessel or aircraft and

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[Abuan v. People, G.R. No. 168773 (2006)]

9.  R emedies From Unlawful
Search And Seizure In Abuan v. People [G.R. No. 168773 (2006)], the SC
ruled that the accused did not waive her right to file a
WHO MAY AVAIL MTQ the search warrant in question and for the
Only the party whose rights have been impaired suppression of the evidence seized by the police
thereby; the objection to an unlawful search and officers. She reserved her right to question the warrant
seizure is purely personal and cannot be availed of by when she filed her motion for bail and rejected the
third parties [Stonehill v. Diokno, G.R. No. L-19550 prosecution’s proposal during pre-trial to admit the
(1967); Santos v. Pryce Gases Inc., G.R. No. 165122 validity of the warrant. She adduced her evidence
(2007)] supporting her motion during the trial and objected to
the admission of the warrant and the evidence
REMEDIES confiscated.
a.   Employ any means to prevent the search
Without a search warrant, the officer cannot insist on Failure to file motion to quash
entering a citizen’s premises. If he does so, he Where no MTQ the search warrant was filed in or
becomes an ordinary intruder. resolved by the issuing court, the interested party may
move in the court where the criminal case is pending
The person to be searched may resist the search and for the suppression as evidence of the personal
employ any means necessary to prevent it, without property seized under the warrant if the same is
incurring any criminal liability [People v. Chan Fook, offered therein for said purpose. Since two separate
G.R. No. L-16968 (1921)] courts with different participations are involved in this
situation, a MTQ a search warrant and a motion to
b.   File criminal action against officer suppress evidence are alternative and not
A public officer/employee who procures a search cumulative remedies. In order to prevent forum
warrant without just cause is criminally liable under shopping, a motion to quash shall consequently be
Art. 129, RPC, on search warrants maliciously obtained governed by the omnibus motion rule, provided,
and abuse in the service of those legally obtained. however, that objections not available, existent or
known during the proceedings for the quashal of the
c.   File a motion to quash the illegal warrant warrant may be raised in the hearing of the motion to
This remedy is employed if search is not yet conducted. suppress. The resolution of the court on the motion to
suppress shall likewise be subject to any proper
Who may file remedy in the appropriate higher court [Malaloan v.
1.   Person who will potentially be injured; CA, G.R. No. 104879 (1994)]
2.   Person to be searched;
3.   Owner of the property to be searched. d.   File a motion to return things seized
This is the remedy used if the search was already
Where to file conducted and goods were seized as a consequence
1.   Motions to quash a search warrant and/or to thereof.
suppress evidence obtained thereby may be filed
in and acted upon only by the court where the Where the motion will be filed follows the same rules
action has been instituted. as in a motion to quash.
2.   If no criminal action has been instituted, motion
may be filed in and resolved by the court that An accused may file a motion to suppress evidence if
issued the warrant. he is not among the persons who can file a motion to
3.   If such court failed to resolve the motion, and a quash.
criminal case is subsequently filed in another
court, the motion shall be resolved by the latter General rule: Goods seized by virtue of an illegal
court. warrant must be returned.
[Sec. 14, Rule 126]
Exception: The illegality of the search warrant does not
Grounds call for the return of the things seized, the possession
A MTQ a search warrant may be based on grounds of which is prohibited by law [Castro v. Pabalan, G.R.
extrinsic of the search warrant, such as (1) the place No. L-28642 (1976)]
searched or the property seized are not those specified
or described in the search warrant; and (2) there is no Where the accused obtained goods from another
probable cause for the issuance of the search warrant through payment of bouncing checks and thereafter

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sold said goods to a buyer in good faith, but said goods waived expressly/impliedly only by the person whose
were taken from the purchaser with the use of a search right is being invaded or one who is expressly
warrant although the criminal case for estafa against authorized to do so in his behalf [Pasion v. Locsin, G.R.
the accused was still pending, the goods should be No. L-45950 (1938)]
returned to the buyer. The buyer is entitled to
possession of goods until restitution is ordered by the Requisites
court in the criminal case [Yu v. Honrado, G.R. No. a.   It must appear that the right exists
50025 (1980)] b.   The person involved had knowledge (actual or
constructive) of the existence of such right
e.   Motion to suppress evidence c.   The person had an actual intention to relinquish
This refers to a motion to suppress as evidence the the right
objects illegally taken pursuant to the exclusionary [Pasion v. Locsin, G.R. No. L-45950 (1938)]
rule, which states that any evidence obtained through
unreasonable searches and seizures shall be
inadmissible for any purpose in any proceeding

CIVIL AND CRIMINAL LIABILITY FROM

UNREASONABLE SEARCH AND SEIZURE
The following offenses may result from unreasonable
search and seizure
a.   Violation of domicile [Art. 128, RPC]
b.   Search warrant maliciously obtained [Art. 129,
RPC]
c.   Searching domicile without witnesses [Art. 130,
RPC]
d.   Unjust interlocutory order [Art. 206, RPC]

The public officer or employee may be held liable for:

a.   Entering without authority; against the will;
refuses to leave
b.   A search warrant procured without just cause or if
with just cause, exceeds his authority or uses
unnecessary severity of force
c.   Conducting the search without the required
witnesses.

The judge may be held liable for

a.   Knowingly rendering an unjust interlocutory order
[Art. 206, RPC]
b.   Inexcusable negligence or ignorance [Art. 205,
RPC]

It may also result in civil liability for

a.   Violation of rights and liberties [Art. 32(9), CC]
b.   Malicious prosecution and acts referred to Art. 32
[Art. 2218, CC]

Malice or bad faith is not required.

Not only official actions, but all persons who are

responsible for the violation are liable for damages
[MHP Garments v. CA, G.R. No. 86720 (1994)]

Waiver of immunity against unreasonable search

and seizure
The constitutional immunity against unreasonable
searches and seizure is a personal right that may be

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  Provisional Remedies 1.   When the accused is about to abscond from the

Philippines
2.   When the criminal action is based on a claim for
1.   Nature money or property embezzled or fraudulently
misapplied or converted to the use of the accused
Provisional remedies in civil actions, insofar as they are who is a public/corporate officer, attorney, factor,
applicable, may be availed of in connection with the broker, agent or clerk, in the course of his
civil action deemed instituted with the criminal action employment as such, or by any other person in a
[Sec. 1, Rule 127] fiduciary capacity, or for a willful violation of duty
3.   When the accused has concealed, removed or
If civil action has been waived, reserved, or instituted disposed of his property, or is about to do so
separately, provisional remedy applicable may not be 4.   When the accused resides outside the Philippines
availed of in criminal action. Instead, provisional [Sec. 2, Rule 127]
remedy should be applied for in separate civil action
instituted [Riano 571, 2011 Updated Ed.] Issuance and implementation
The writ may be issued ex parte before acquisition of
If the civil action is suspended on account of filing of jurisdiction over the accused [Cuarter v. CA, G.R No.
the criminal action, the court with which the civil case 102448 (1992))
is filed is not thereby deprived of its authority to issue
auxiliary writs that do not go into the merits of the case However, it may be enforced only after acquisition of
[Ramcar, Inc v. de Leon, G.R. No. L-1329 (1947)] jurisdiction over the person of the accused [Gonzalez v.
State Properties, G.R. No. 140765 (2001)]
Provisional remedies are not available when
a.   Offended party has waived the civil claim A public prosecutor has the authority to apply for
b.   Offended party has reserved the civil claim preliminary attachment to protect the interest of the
c.   Offended party has already instituted a separate offended party, particularly considering that the
civil action corresponding civil liability of the culprits is to be
d.   Criminal action carries with it no civil liability. determined therein, no reservation having been made
of the right to enforce it in a separate civil action
[Santos v. Judge Flores, G.R. No. L-18251 & L-18252
(1962)]
2.  K inds of Provisional
No notice to the adverse party, or hearing on the
Remedies application is required before a writ of preliminary
attachment may issue as a hearing would defeat the
In general purpose of the provisional remedy. The time which
Reference to provisional remedies in Sec. 1, Rule 127 is such hearing would take could be enough to enable
made in general terms, hence preliminary injunction, the defendant to abscond or dispose of his property
preliminary attachment, receivership, replevin or before a writ of attachment may issue [Mindanao
support pendente lite may be availed of [Riano 572, Savings and Loan Assoc. v. CA, G.R. No. 84481 (1989)]
2011 Updated Ed.]
b.   INJUNCTION
However, only preliminary attachment is provided for
under the same rule. General rule: Criminal prosecution may not be stayed
or restrained by injunction, preliminary or final.
The accused may present evidence to prove his
defense and damages, if any, arising from the issuance Exceptions:
of a provisional remedy in the case [Sec. 11(b), Rule 119] 1.   To afford adequate protection to the
constitutional rights of the accused
a.   PRELIMINARY ATTACHMENT 2.   When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of
When proper actions;
When the civil action is properly instituted in the 3.   When there is a pre-judicial question which is sub
criminal action, the offended party may have the judice
property of the accused attached as security for the 4.   When the acts of the officer are without or in
satisfaction of any judgment that may be recovered excess of authority
from the accused in the following cases: 5.   Where the prosecution is under an invalid law,

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ordinance or regulation
6.   When double jeopardy is clearly apparent
7.   Where the court has no jurisdiction over the
offense
8.   Where it is a case of persecution rather than
prosecution
9.   Where the charges are manifestly false and
motivated by the lust for vengeance
10.   When there is clearly no prima facie case against
the accused and a motion to quash on that ground
has been denied, and
11.   Preliminary injunction has been issued by the
Supreme Court to prevent the threatened
unlawful arrest of petitioners
[Brocka v. Enrile, G.R. No. 69863 (1990)]

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

EVIDENCE
Remedial Law

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VIII.  EVIDENCE Witness Rule, Rules on Electronic Evidence, Rules

on DNA Evidence]

  General Principles No Vested Right of Property in Rules of Evidence

The general rule is that there is no vested right of
property in rules of evidence [Aldeguer v. Hoskyn, G.R.
1.   Concept of Evidence No. 1164 (1903)] Any evidence inadmissible according
to the laws in force at the time the action accrued, but
The means, sanctioned by these rules, of ascertaining admissible according to the laws in force at the time of
in a judicial proceeding, the truth respecting a matter trial, is receivable [Francisco 8, 1996 Ed., citing
of fact [Sec. 1, Rule 128] Aldeguer v. Hoskyn, G.R. No. 1164 (1903)]

Rules of Evidence May be Waived

2.  S cope and Applicability of According to Francisco [9, 1996 Ed., citing American
cases], there are rules of evidence established merely
the Rules of Evidence for the protection of the parties. If, according to the
well-established doctrine, the parties may waive such
a.   Scope of Application rules during the trial of a case, there is no reason why
they cannot make the waiver in a contract (ex. a
Under the Rules of Court (ROC), the rules of evidence contract of insurance requiring the testimony of
are specifically applicable only to judicial proceedings eyewitness as the only evidence admissible
[Sec. 1, Rule 128] concerning the death of the insured person' is valid or
a contract waiving the privilege against the disclosure
This rule must be read as referring to the rules of of confidential communications made by a patient to
evidence AS CONTAINED in the ROC, because – physician). However, if the rule of evidence waived by
obviously – constitutional evidentiary rules permeate the parties has been established on grounds of public
ALL proceedings and is the constant, bottomline policy, the waiver is void (ex. waiver of the privilege
yardstick for the validity of ALL acts in Philippine against the disclosure of state secrets).
territory [Prof. Avena]

Judicial proceedings are of THREE KINDS ONLY

3.  Evidence in Civil Cases v.
1.   Civil action – which is of two kinds Evidence in Criminal Cases
a.   ordinary civil action, and
b.   special civil action Preponderance of Proof beyond
2.   Criminal action evidence reasonable doubt [Sec.
3.   Special Proceeding [Sec. 1, Rule 133] 2, Rule 133]
[Sec. 3, Rule 1] Offer of compromise Offer of compromise by
NOT an admission of the accused may be
Note: All other proceedings are NON-JUDICIAL, any liability, and is not received in evidence as
hence, application of the rules of evidence in the ROC admissible in evidence an implied admission of
is not mandatory unless provided to be so by law or against the offeror guilt.
regulation [see Sec. 4, Rule 1] [Sec. 27, Rule 130], as a
general rule [Tan v. Exceptions:
b.   Uniformity of Application Rodil Enterprises, G. R. a.  for quasi-offenses or
No. 168071 (2006)] b.  those allowed by law
to be compromised,
General rule: The rules of evidence shall be the same in
Exceptions: The party examples:
all courts and in all trials and hearings [Sec. 2, Rule
making the offer 1.  Sec 204, RA 8424
128]
admits the existence of (Tax Reform Act of
an indebtedness 1997), which
Exceptios:
combined with a provides that
If otherwise provided by:
proposal to settle the payment of any
1.   Law [e.g. 1987 Constitution, statutes]
claim amicably. In Tan, internal revenue
2.   Rules of Court
petitioner made tax and all criminal
[Sec. 2, Rule 128]
categorical judicial violations may be
3.   SC issuances [e.g., Judicial Affidavit Rule, Rules
admissions, not only as compromised,
on Procedure for Environmental Cases, Child

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to his liability, but also, except those presumption that a

as to the amount of already filed in person is innocent of
indebtedness in the Court and those wrong [Sec. 3(a), Rule
form of rentals due: involving fraud; 131]. See also Sec. 3(m),
a.   Petitioner agreed 2.  In rape cases, the (p), (x), (aa), and (ff),
in open court to subsequent valid Rule 131; Sec. 3(4), Rule
pay the amount of marriage between 132; and Sec. 5, Rule
P440,000.00, the offended party 133.
representing shall extinguish the
petitioner’s unpaid criminal action or An offer to pay or the payment of medical, hospital or
rentals from the penalty other expenses occasioned by an injury is NOT
September 1997 to imposed. In case it admissible as proof of criminal or civil liability for the
June 2000; and is the legal injury [Sec. 27, Rule 130]
that petitioner will husband who is the
pay the monthly offender, the The following distinctions may also be noted
rentals computed subsequent a.   In terms of evidence in connection with
at P13,750.00 on or forgiveness by the constitutional law doctrines – e.g., under par. 4,
before the 5th day wife as the Sec. 12, Art. III, Constitution, an uncounselled
of each month after offended party extra-judicial confession elicited during custodial
30 June 2000, as shall extinguish the investigation will be inadmissible in any criminal
detailed by the criminal action or case against the accused, but will be admissible
Order of the MeTC; the penalty: in a civil case for damages by the latter against the
and Provided, That the violator
b.   In his Motion to crime shall not be b.   In terms of evidence arising from procedure – e.g.:
Allow Defendant to extinguished or the 1.   Judicial Affidavit Rule [A.M. No. 12-8-8-SC] –
Deposit Rentals, penalty shall not be does not apply to criminal case where penalty
petitioner stated abated if the exceeds six years)
that the rentals marriage is void ab 2.   Guidelines in the Conduct of Pre-Trial and
due on the initio [Art. 266-C, Use of Deposition-Discovery Measures [A.M.
premises in RPC, as inserted by No. 03-1-09-SC] – “All agreements or
question from R.A. 8353] admissions made or entered during the pre-
September 1997 up trial conference shall be reduced in writing
to the present A plea of guilty later and signed by the accused and counsel,
amounted to withdrawn or an otherwise, they cannot be used against the
P467,500.00, as of unaccepted offer of a accused. The agreements covering the
the date of filing plea of guilty to a lesser matters referred to in Section 1 of Rule 118
the Motion. offense, is not shall be approved by the court.” (par. 8, Part
admissible in evidence B)
against the accused c.   The rules on search and seizure in
who made the plea or constitutional law in connection with criminal
offer [Sec. 27, Rule 130] procedure do not apply in civil actions
Constitutional involving infringement of intellectual
presumption of property, where the applicable rule is A.M.
innocence does NOT No. 02-1-06-SC (Rule on Search and Seizure
apply [Sec. 14, Art. III, in Civil Actions for Infringement of
Constitution refers only Intellectual Property Rights)
to “in all criminal Presumption of
prosecutions”] innocence a
constitutional
4.  P roof v. Evidence
However, the ROC guarantee on the
requires meeting the accused [Sec. 14, Art. III, Proof Evidence
burden of proof [Sec. 1, Constitution] Result or effect Mode and manner of proving
Rule 131] of of evidence [2 competent facts in judicial
preponderance of Regalado 698, proceedings [Bustos v. Lucero,
evidence [Sec. 1, Rule 2008 Ed.] G.R. No. L-2068, (1948)]
133]. Note also the The end result The means to an end
disputable

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5.  F actum Probans v. Factum Cumulative

evidence
Corroborative
evidence
Probandum Evidence of the same Additional evidence of a
kind and to the same different character to the
Factum state of facts same point
Factum probans [2 Regalado 702, 2008 Ed.]
probandum
Evidentiary fact Ultimate fact
Fact by which the factum Fact sought to Cumulative evidence refers to pieces of evidence of the
probandum is to be to be same form, e.g. testimonies. Corroborative evidence
established established refers to pieces of evidence of different forms, e.g.
object and testimonial.
Materials which establish that
Proposition
proposition
8.  P rima facie and Conclusive
[2 Regalado 698-699, 2008 Ed.]
Evidence
6.  C lasses of Evidence Prima facie Conclusive
According to Form Class of evidence
which the law does
a.   Object - those addressed to the senses of the not allow to be
court [Sec. 1, Rule 130] contradicted [2
b.   Documentary - consists of writings or any Regalado 703, 2008
material containing letters, words, numbers, Ed.]
figures, symbols or other modes of written
expressions offered as proof of their contents Note: This statement
[Sec. 2, Rule 130] refers only to the
c.   Testimonial - evidence elicited from the mouth of second part of the
a witness [Riano 180, 2016 Ed., citing Black’s Law Standing alone, definition of
Dictionary] It involves two levels of perception: unexplained or conclusive evidence
that of the witness perceiving the event, and that uncontradicted, is (i.e., its exclusionary
of the judge evaluating the witness sufficient to maintain the feature).
proposition affirmed [2
There is no hierarchy with respect to the physical forms Regalado 703, 2008 Ed.] The first part refers to
of evidence. A fact may be proved by any kind; the the fact that a rule of
court may admit. There is no rule (in general) that law has provided that
prefers one form rule as against another [Adzuara v. it constitutes factum
C.A., G.R. No. 125134 (1999)] probans that
sufficiently
In Adzuara, the petitioner claimed that the medical establishes the
certificate presented by the prosecution was factum probandum
uncorroborated by actual testimony of the physician without need of any
who accomplished the same and as such has no other evidence [Prof.
probative value insofar as the physical injuries Avena]
suffered by the victim are concerned. The SC e.g. (1) The decree of
disagreed, ruling that the fact of the injury resulting registration and the
from the collision may be proved in other ways such as certificate of title
the testimony of the injured person. issued shall become
e.g. official records such
incontrovertible,
as Police blotter [Sec. 44,
upon the expiration
7.  Cumulative and Rule 130; public
documents such as
of the one-year
Corroborative Evidence notarial register [Sec. 23,
period within which
any person deprived
Rule 132]
of land or of any
Note: This distinction refers to the uniformity of
estate or interest
evidentiary form, not the distinction between forms of
therein by such
evidence per se [Prof. Avena]
adjudication or

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confirmation of title satisfactory if uncontradicted, but which may be

obtained by actual contradicted and overcome by other evidence).
fraud, to file in the b.   Sources of above presumptions other than the
proper court a Rules of Court:
petition for 1.   law
reopening and review 2.   SC issuances
of the decree of
registration [Sec. 32,
P.D. 1529]; (2) The
10.  Primary and Secondary
child shall be Evidence
considered
legitimate although Primary evidence is that which the law regards as
the mother may have affording the greatest certainty of the fact in question
declared against its [1 Regalado 703, 2010 Ed.]
legitimacy or may
have been sentenced Examples of primary evidence
as an adulteress. The filiation of legitimate children is established by
[Art. 167, FC]. Factum any of the following
probans that the a.   The record of birth appearing in the civil register
child was conceived or a final judgment; or
or born during the b.   An admission of legitimate filiation in a public
marriage of its document or a private handwritten instrument
parents conclusively and signed by the parent concerned.
establishes the
factum probandum In the absence of the foregoing evidence, the
of the legitimate legitimate filiation shall be roved by:
status of that child, a.   The open and continuous possession of the status
and by providing that of a legitimate child; or
this factum b.   Any other means allowed by the Rules of Court
probandum subsists and special laws
“although the [Art. 172, FC]
mother may have
declared against its Illegitimate children may establish their illegitimate
legitimacy or may filiation in the same way and on the same evidence as
have been sentenced legitimate children [Par. 1, Art. 175, FC]
as an adulteress,”
Art. 167 is in effect Best Evidence Rule: When the subject of inquiry is the
saying that any contents of a document, no evidence shall be
factum probans admissible other than the original document itself
presented and [Sec. 3, Rule 130]
offered to prove the
truth of the latter Secondary evidence
declaration (of the In the context of the Best Evidence rule in Sec. 3, Rule
mother) will be 130, secondary evidence may be admitted
inadmissible in a.   When the original document has been lost or
evidence. destroyed, or cannot be produced in court, the
offeror, upon proof of its execution or existence
9.  D isputable and Conclusive and the cause of its unavailability without bad
faith on his part, may prove its contents by a copy,
Presumption or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the
a.   The technical definition of “conclusive order stated [Sec. 5, Rule 130]
presumption” is implied by way of contra- b.   If the document is in the custody of under the
distinction with that for the term “disputable control of the adverse party, he must have
presumption” in sec. 3 of Rule 131 of the Rules of reasonable notice to produce it. If after such
Court (the latter being a presumption that is notice and after satisfactory proof of its existence,
he fails to produce the document, secondary

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evidence may be presented as in the case of its

loss [Sec. 6, Rule 130]   Admissibility of Evidence
c.   When the original of a document is in the custody
of a public officer or is recorded in a public office, Admissibility of evidence refers to the question of
its contents may be proved by a certified copy whether or not the circumstance (or evidence) is to be
issued by the public officer in custody thereof [Sec. considered at all. On the other hand, the probative
7, Rule 130] value of evidence refers to the question of whether or
not it proves an issue [PNOC Shipping and Transport
Generic, non-technical term “best evidence” as Corporation v. C.A., G.R. No. 107518 (1998)]
used in Vitarich
A receipt, which is a written and signed Admissibility does not concern weight
acknowledgment that money and goods have been Admissibility of evidence should not be equated with
delivered, is the best evidence of the fact of payment weight of evidence. The admissibility of evidence
although not exclusive [Vitarich v. Losin, G.R. No. depends on its relevance and competence, while the
181560 (2010)] weight of evidence pertains to evidence already
admitted and its tendency to convince and persuade.
In using the term “best evidence”, the SC in Vitarich is Thus, a particular item of evidence may be admissible,
referring to probative weight, not to admissibility. The but its evidentiary weight depends on judicial
term “not exclusive” in Vitarich means that the term evaluation within the guidelines provided by the Rules
“best evidence” in the same case is not intended to be of Court [Dela Llana v. Biong, G.R. No. 182356 (2013)]
exclusionary.
Weight involves the effect of evidence admitted, its
Lastly, in another case, the SC ruled that a statement tendency to convince and persuade. It is not
in a written instrument regarding the payment of determined mathematically by the numerical
consideration is merely in the nature of a receipt and superiority of the witnesses testifying to a given fact,
may be contradicted [Philippine Banking Corporation v. but depends upon its practical effect in inducing belief
C.A., G.R. No. 133710 (2004)]. The receipt in the on the part of the judge trying the case [Francisco 11,
Philippine Banking case was not excluded as evidence, 1996 Ed.]
but was not given much weight. The respondent-
defendant in Philippine Banking denied receiving the 1.   Requisites for
loan proceeds and presented evidence that on the day
the bank claimed to have credited the subject amount, Admissibility
it was again debited or withdrawn by the bank,
admittedly upon the instruction of the officials from a.   Relevant to the issue; and
the bank’s head office. b.   Not excluded by law or the ROC [Sec. 3, Rule 128]
The second item is called “competence” [2 Regalado
704, 2008 Ed.]

The Importance of Offer In Relation To Admissibility

Parties are required to inform the courts of the
purpose of introducing their respective exhibits to
assist the latter in ruling on their admissibility in case
an objection thereto is made [Star Two v. Ko, G.R. No.
185454 (2011)]

Objection
a.   Objection to evidence offered orally must be made
immediately after the offer is made.
1.   As regards the testimony of a witness, the
offer must be made at the time the witness is
called to testify.
2.   Documentary and object evidence shall be
offered after the presentation of a party’s
testimonial evidence. Such offer shall be
done orally unless allowed by the court to be
done in writing.
[Sec. 35, Rule 132]

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b.   Objection to a question propounded in the course Matters other than the fact in issue and which are
of the oral examination of a witness shall be made offered as a basis for inference as to the existence or
as soon as the grounds therefor shall become non-existence of the facts in issue [2 Regalado 708,
reasonably apparent. 2008 Ed.]
c.   An offer of evidence in writing shall be objected to
within three (3) days after notice of the offer General rule: Evidence on collateral matters is NOT
unless a different period is allowed by the court. allowed [Sec. 4, Rule 128]
d.   In any case, the grounds for the objections must
be specified. Exceptions: When it tends in any reasonable degree to
[Sec. 36, Rule 132] establish the probability or improbability of the fact in
issue [Sec. 4, Rule 128]
Every objection to the admissibility of evidence shall
be made at the time such evidence is offered, or as Note: What the Rules prohibit is evidence of irrelevant
soon thereafter as the objection to its admissibility collateral facts [2 Regalado 708, 2008 Ed.]
have become apparent, otherwise the objection shall
be considered waived [Abrenica v. Gonda, G.R. No. L- Example
10100 (1916)] In an administrative case for sexual harassment, the
respondent did not offer evidence that has a bearing
Form When objection made on the complainant’s chastity. What he presented are
Objection to the qualification of charges for grave oral defamation, grave threats,
the witness must be made at the unjust vexation, physical injuries, malicious mischief,
time he is called to the stand etc. filed against her. These pieces of evidence do not
establish the probability or improbability of the
If the witness is qualified, the offense charged [Civil Service Commission v. Belagan,
Testimonial G.R. No. 132164 (2004)]
objection should be raised when
evidence
the objectionable question is
asked or after the answer is given Note:The SC in this case discussed Sec. 51(a), Rule 130
if the objectionable feature (character evidence in criminal cases) in relation to
became apparent by reason of relevance but after the above-quoted statement
such answer clarifies, “Obviously, in invoking the above provision,
Must be made either: what respondent was trying to establish is
a.   At the time it is presented in Magdalena’s lack of credibility and not the probability
Object or real or the improbability of the charge. In this regard, a
ocular inspection or
evidence different provision applies” (i.e. Sec. 11, Rule 132). .
demonstration, or
b.   When it is formally offered
Documentary
At the time it is formally offered 3.  Multiple Admissibility
evidence
[2 Regalado 705, 2008 Ed.] Where the evidence is relevant and competent for two
or more purposes, such evidence should be admitted
2.  R elevance of Evidence and for any or all the purposes for which it is offered,
provided it satisfies all the requisites of law for its
Collateral Matters admissibility therefor [2 Regalado 706, 2008 Ed.]

Relevancy When a fact is offered for one purpose, and is

Evidence is relevant when it has “such a relation to the admissible insofar as it satisfies all rules applicable to
fact in issue as to induce belief in its existence or non- it when offered for that purpose, its failure to satisfy
existence” [Sec. 4, Rule 128] e.g., Evidence as to the some other rule which would be applicable to it if
age of a person who has been raped is relevant in a offered for another purpose does not exclude it. Thus,
situation where the age would qualify the offence to a confession of an accused may not be competent as
statutory rape against his co-accused, being hearsay as to the latter,
or to prove conspiracy between them without the
Determinable by the rules of logic and human conspiracy being established by other evidence,
experience [2 Regalado 704, 2008 Ed.] nonetheless, the confession of the accused may be
admitted as evidence of his own guilt [Francisco 11,
Collateral matters 1996 Ed.]

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c.   the combination of all the circumstances is such

4.  C onditional Admissibility as to produce conviction beyond reasonable
doubt
Where the evidence at the time of its offer appears to [Sec. 4, Rule 133]
be immaterial or irrelevant unless it is connected with
the other facts to be subsequently proved, such The totality of the evidence must constitute an
evidence may be received on condition that the other unbroken chain showing the guilt of the accused
facts will be proved thereafter; otherwise, the evidence beyond reasonable doubt [People v. Matito, G.R. No.
already given shall be stricken out [2 Regalado 705, 144405 (2004)]
2008 Ed.]
Note: Circumstantial evidence is not a weaker form of
5.  C urative Admissibility evidence vis-a-vis direct evidence [People v. Matito,
G.R. No. 144405 (2004)]
A party has the right to introduce incompetent
evidence in his behalf where the court has admitted 7.  Positive and Negative
incompetent evidence adduced by the adverse party,
[2 Regalado 706, 2008 Ed.] Evidence
What determines the rule of curative admissibility Positive evidence Negative evidence
a.   Whether the incompetent evidence was Witness affirms Witness states he/she did
seasonably objected to - Lack of objection to that a fact did or not see or know of the
incompetent evidence constitutes waiver by the did not occur occurrence of a fact
party against whom it was introduced but the [2 Regalado 703, 2008 Ed.]
opposing party is not deprived of his right to
similar rebutting evidence; and
b.   Whether the admission of such evidence will 8.  C ompetent and Credible
cause a plain and unfair prejudice to the party Evidence
against whom it was admitted
[2 Regalado 707, 2008 Ed.] Competence
Evidence is competent when it is not excluded by (i)
6.  D irect and Circumstantial law or (ii) the ROC [Sec. 3, Rule 128; 2 Regalado 704,
2008 Ed.]
Evidence
Determined by the prevailing exclusionary rules of
Direct evidence Circumstantial evidence evidence [2 Regalado 704, 2008 Ed.]
Proof of facts from which,
Proves the fact in
taken collectively, the Note: Exclusionary rules may affect due process. To
dispute without
existence of a particular fact the extent that they might prejudice substantive
the aid of any
in dispute may be inferred as rights, therefore, they cannot be made to apply
inference or
a necessary or probable retroactively.
presumption
consequence
[Francisco 2, 1996 Ed.] EXCLUSIONARY RULES OF EVIDENCE
a.   Constitutional exclusionary rules
Circumstantial evidence is the evidence of collateral 1.   Unreasonable searches and seizures [Sec. 2,
facts or circumstances from which an inference may be Art. III]
drawn as to the probability or improbability of the fact 2.   Privacy of communication and
in dispute. They are evidence of relevant collateral correspondence [Sec. 3, Art. III]
facts [2 Regalado 708, 2008 Ed.] 3.   Right to counsel, prohibition on torture, force,
violence, threat, intimidation or other means
Requisites to warrant a conviction based on which vitiate the free will; prohibition on
circumstantial evidence secret detention places, solitary,
a.   there is more than one circumstance; incommunicado [Sec. 12, Art. III]
b.   the facts from which the inferences are derived are 4.   Right against self-incrimination [Sec. 17, Art.
proven; and III]
b.   Statutory exclusionary rules

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1.   Lack of documentary stamp tax to documents

required to have one makes such document   Burden of Proof and
inadmissible as evidence in court until the
requisite stamp/s shall have been affixed
Burden of Evidence
thereto and cancelled [Sec. 201, NIRC];
2.   any communication obtained by a person, not Burden of proof is the duty of a party to present
being authorized by all the parties to any evidence on the facts in issue necessary to establish
private communication, by tapping any his claim or defense by the amount of evidence
wire/cable or using any other required by law [Sec. 1, Rule 131]
device/arrangement to secretly
overhear/intercept/record such information In civil cases, the quantum of evidence required to
by using any device, shall not be admissible sustain the proponent of an issue is preponderance of
in evidence in any judicial/quasi- evidence [Sec. 1, Rule 133] The burden of proof is on the
judicial/legislative/administrative hearing or party who would be defeated if no evidence were given
investigation [Secs. 1 and 4, R.A. 4200 (Wire- on either side [2 Regalado 816, 2008 Ed.], the plaintiff
Tapping Act)] with respect to his complaint, the defendant with
c.   Under the ROC, Rule 130 is the applicable rule respect to his counterclaim, and the cross-claimant,
in determining the admissibility of evidence. with respect to his cross-claim.
d.   Court issuances, such as
1.   Rule on Electronic Evidence, e.g. compliance In criminal cases:
with authentication requirements for •   For the issuance of warrant of arrest - evidence of
electronic evidence probable cause that there exist a reasonable
2.   Rule on Examination of a Child Witness, e.g. ground that the accused has committed an
sexual abuse shield rule offense [Algas v. Garrido, A.M.289-MJ, (1974))
3.   Judicial Affidavit Rule •   To warrant the filing of an information – if there
is sufficient ground to engender a well-founded
Competence Credibility belief that a crime has been committed and the
Eligibility of evidence to be Worthiness of belief; respondent is probably guilty thereof, and should
received as such “believability” be held for trial [Sec. 1, Rule 112]
•   To sustain a conviction - evidence of guilt beyond
Note: Credibility does not, per se, exclude. It only does reasonable doubt [Sec. 2, Rule 133]
in so far as it makes the piece of evidence irrelavant to •   To deny bail when discretionary – when the
the fact in issue. (e.g. the cross-examination of a evidence of guilt is strong
witness is primarily about his credibility) •   To accept a plea of guilty to a capital offense –
that the accused voluntarily and fully
comprehended the consequences of his plea [Sec.
3, Rule 116]
•   To grant demurrer to evidence – the evidence is
insufficient to sustain a conviction [Sec. 23, Rule
119]

The burden of proof rests on the prosecution [Boac v

People, G.R. No. 180597 (2008)]

A party will have the burden of evidence only (i.e., will

have to be a proponent) if there is any factum
probandum (whether evidentiary or otherwise) that
the adverse party has already established (whether by
law, rule, or by virtue of evidence that he has
presented) that he (the potential proponent) has to
overcome. That factum probandum may, but does not
have to be, nor is limited to a "prima facie
presumption." Likewise, a party will not have any
burden of evidence at all if the adverse party has not
established any factum probandum in the first place
[Prof. Avena]

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The burden of proof does not shift as it remains

throughout the trial with the party upon whom it is   Presumptions
imposed; the burden of evidence shifts from party to
party depending upon the exigencies of the case in the Presumptions are inferences as to the existence of a
course of the trial [2 Regalado 816, 2008 Ed., see fact not actually known, arising from its usual
Bautista v. Sarmiento, G.R. No. L-45137 (1985)] connection with another which is known, or a
conjecture based on past experience as to what course
The burden of proof is generally determined by the human affairs ordinarily take. Presumptions embody
pleadings filed by the party; the burden of evidence is values and revealed behavioral expectations under a
generally determined by the developments at the trial, given set of circumstances [University of Mindanao,
or by the provisions of the substantive law or Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 194964-65
procedural rules which may relieve the party from (2016)]
presenting evidence on the fact alleged, i.e.,
presumptions, judicial notice and admissions [2 A rule of law that attaches probative value to specific
Regalado 816-817, 2008 Ed.] facts, or directs that an inference be drawn as to
existence of a fact, not actually known, arising from its
In both civil and criminal cases, the burden of evidence usual connection with other particular facts which are
lies with the party who asserts an affirmative known or established [Francisco at 51]
allegation [2 Regalado 817, 2008 Ed.]
A presumption can rest only upon ascertained facts. It
Example cannot be based on other presumptions, assumptions,
In a case for collection of a sum of money, if the probabilities or inferences [ibid. At 52]
defendant asserts that she has paid, then she has the
burden of proving that she had, not on the creditor Presumptions are not allegations, nor do they supply
that she had not. While the creditor had needed to their absence. Presumptions are conclusions. They do
prove the existence of a debt, the burden shifts to the not apply when there are no facts or allegations to
debtor because she alleged an affirmative defense, support them [University of Mindanao, Inc. v. Bangko
which admits the creditor’s allegation [Vitarich v. Sentral ng Pilipinas, G.R. No. 194964-65 (2016)]
Losin, G.R. No. 181560 (2010)]
Presumption of fact Presumption of law
Equipoise Rule or Equipoise Doctrine Praesumptiones hominis Praesumptiones juris [2
The doctrine refers to the situation where the evidence [2 Regalado 819, 2008 Regalado 819, 2008
of the parties are evenly balanced or there is doubt on Ed.] Ed.]
which side the evidence preponderates. In this case, Those which the law
Those which the
the decision should be against the party with the requires to be drawn
experience of mankind
burden of proof [Rivera v. C.A., G.R. No. 115625 (1998); from the existence of
has shown to be valid,
Marubeni v. Lirag, G.R. No. 130998, (2001)] established facts in the
founded on general
absence of contrary
knowledge and
In criminal cases, the equipoise rule provides that evidence; derived from
information; essentially
where the evidence is evenly balanced, the the law itself rather
an inference
constitutional presumption of innocence tilts the from common logic or
scales in favor of the accused [Malana v. People, G.R. probability
e.g. Inference of guilt
No. 173612, (2008)]
upon discovery of
e.g. Presumption of
bloodied garment in
innocence in favor of
possession of accused
the accused

Conclusive Disputable
Inferences which the law Satisfactory if
makes so peremptory that it uncontradicted,
will not allow them to be but may be
overturned by any contrary contradicted and
proof however strong [Datalift overcome by
Movers v. Belgravia Realty, other evidence
G.R. No. 144268 (2006)] [Sec. 3, Rule 131]

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doer of the whole act; otherwise, that things which

1.   Conclusive Presumptions a person possesses or exercises acts of ownership
over are owned by him;
a.   A party is not permitted falsify a thing whenever: k.   Person in possession of an order on himself for the
1.   By his own declaration, act or omission; payment of the money, or the delivery of anything,
2.   He intentionally and deliberately led another has paid the money or delivered the thing
to believe a particular thing is true; accordingly;
3.   To act upon such belief; and l.   Person acting in a public office was regularly
4.   The litigation arises out of such declaration appointed or elected to it;
act or omission. m.   Official duty has been regularly performed;
b.   A tenant is not permitted to deny the title of his n.   A court, or judge acting as such, whether in the
landlord at the time of the commencement of the Philippines or elsewhere, was acting in the lawful
relation of landlord and tenant between them exercise of jurisdiction;
[Sec. 2, Rule 131] o.   All the matters within an issue raised in a case
were laid before the court and passed upon by it;
These conclusive presumptions are based upon the and in like manner that all matters within an issue
doctrine of estoppel in pais, see Arts. 1431-1439, Civil raised in a dispute submitted for arbitration were
Code [2 Regalado 820, 2008 Ed.] laid before the arbitrators and passed upon by
them;
Once a contract of lease is shown to exist between the p.   Private transactions have been fair and regular;
parties, the lessee cannot by any proof, however q.   Ordinary course of business has been followed;
strong, overturn the conclusive presumption that the r.   There was a sufficient consideration for a
lessor has a valid title to or a better right of possession contract;
to the subject premises than the lessee [Santos v. s.   Negotiable instrument was given or indorsed for a
National Statistics Office., G.R. No. 171129, (2011)] sufficient consideration;
t.   An indorsement of a negotiable instrument was
What a tenant is estopped from denying is the title of made before the instrument was overdue and at
his landlord at the time of the commencement of the the place where the instrument is dated;
landlord-tenant relation. If the title asserted is one u.   A writing is truly dated;
that is alleged to have been acquired subsequent to v.   Letter duly directed and mailed was received in
the commencement of that relation, the presumption the regular course of the mail;
will not apply. Hence, the tenant may show that the w.   Presumptions concerning absence:
landlord's title has expired or been conveyed to 1.   Ordinary but continued absence of:
another or himself; and he is not estopped to deny a i.   7 years, it being unknown WON the
claim for rent, if he has been ousted or evicted by title absentee still lives, he is considered
paramount [Ermitaño v Paglas, G.R. No. 174436 dead for all purposes, except for those
(2013)] of succession
ii.   10 years—the absentee shall be
2.  D isputable Presumptions considered dead for the purpose of
opening his succession; but if he
a.   Person is innocent of crime or wrong; disappeared after the age of 75 years,
b.   Unlawful act is done with an unlawful intent; an absence of 5 years shall be
c.   Person intends the ordinary consequences of his sufficient to open his succession
voluntary act; iii.   4 consecutive years—the spouse
d.   Person takes ordinary care of his concerns; present may contract a subsequent
e.   Evidence willfully suppressed would be adverse if marriage if s/he has a well-founded
produced; belief that the absent spouse is already
f.   Money paid by one to another was due to the dead; but where there is danger of
latter; death, an absence of only 2 years shall
g.   Thing delivered by one to another belonged to the be sufficient for remarriage
latter; 2.   Qualified absence – The following shall be
h.   Obligation delivered up to the debtor has been considered dead for all purposes including
paid; the division of the estate among the heirs
i.   Prior rents or installments had been paid when a i.   A person on board a vessel lost during
receipt for the later ones is produced; a sea voyage, or an aircraft which is
j.   A person found in possession of a thing taken in missing, who has not been heard of for
the doing of a recent wrongful act is the taker and

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4 years since the loss of the vessel or hh.   A printed/published book, purporting to contain
aircraft reports of cases adjudged in tribunals of the
ii.   A member of the armed forces who has country where the book is published, contains
taken part in armed hostilities, and has correct reports of such cases;
been missing for 4 years ii.   A trustee or other person whose duty it was to
iii.   A person who has been in danger of convey real property to a particular person has
death under other circumstances and actually conveyed it to him when such
whose existence has not been known presumption is necessary to perfect the title of
for 4 years such person or his successor in interest;
x.   Acquiescence resulted from a belief that the thing jj.   Presumptions regarding survivorship: (Applicable
acquiesced in was conformable to the law or fact for all purposes except succession)
y.   Things have happened according to the ordinary 1.   When 2 persons perish in the same calamity
course of nature and the ordinary habits of life 2.   It is not shown who died first; and
z.   Persons acting as co-partners have entered into a 3.   There are no particular circumstances from
contract of co-partnership; which it can be inferred,
aa.   A man and woman deporting themselves as The survivorship is determined from the probabilities
husband and wife have entered into a lawful resulting from the strength and the age of the sexes:
contract of marriage; Person
bb.   Property acquired by a man and a woman who are Situation presumed to
capacitated to marry each other and who live have survived
exclusively with each other as husband and wife Both < 15 y/o The older
without the benefit of marriage or under a void Both > 60 y/o The younger
marriage, has been obtained by their joint efforts, One < 15 y/o,
work or industry; The one < 15
the other > 60 y/o
cc.   In cases of cohabitation by a man and a woman Both > 15 and < 60 y/o, of
who are not capacitated to marry each other and The male
different sexes
who have acquired property through their actual Both > 15 and <60 y/o, of the
joint contribution of money, property or industry, The older
same sex
such contributions and their corresponding One < 15 or > 60 y/o, and the The one between
shares including joint deposits of money and other between those ages those ages
evidences of credit are equal;
dd.   Presumptions governing children of women who kk.   As between 2 or more persons called to succeed
contracted another marriage within 300 days each other: If there is a doubt as to which of them
after termination of her former marriage (in the died first, whoever alleges the death of one prior
absence of proof to the contrary): to the other, shall prove the same. In the absence
When Child was Born Presumption of proof, they shall be considered to have died at
Considered to have the same time.
been conceived during [Sec. 3, Rule 131]
Before 180 days after
the former marriage,
the solemnization of
provided it be born No presumption of legitimacy or illegitimacy
the subsequent
within 300 days after There is no presumption of legitimacy or illegitimacy
marriage
the termination of the of a child born after 300 days following the dissolution
former marriage of marriage or the separation of spouses. Whoever
Considered to have alleges the legitimacy or illegitimacy of such child
been conceived during must prove his allegation [Sec. 4, Rule 131]
the subsequent
After 180 days following
marriage, even though The application of disputable presumptions on a given
the celebration of the
it be born within the circumstance must be based on the existence of
subsequent marriage
300 days after the certain facts on which they are meant to operate
termination of the [University of Mindanao, Inc. v. Bangko Sentral ng
former marriage. Pilipinas, G.R. No. 194964-65 (2016)]
ee.   A thing once proved to exist continues as long as
is usual with things of the nature; MCMP contends that the Contract presented by
ff.   The law has been obeyed; Monark is not the contract that they entered into. Yet,
gg.   A printed/published book, purporting to be it has failed to present a copy of the Contract even
printed/published by public authority, was so despite the request of the trial court for it to produce
printed/published;

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

its copy of the Contract. Normal business practice

dictates that MCMP should have asked for and   Liberal Construction of
retained a copy of their agreement. Thus, MCMP's
failure to present the same and even explain its failure
the Rules of Evidence
gives rise to the disputable presumption adverse to
MCMP that "evidence willfully suppressed would be The Rules of Court, including the Revised Rules on
adverse if produced [MCMP Construction v. Monark Evidence, shall be liberally construed in order to
Equipment, G.R. No. 201001 (2014)] promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding
The adverse presumption of suppression of evidence is [Sec. 6, Rule 1]
not applicable when:
a.   The suppression is not willful; Rules on Electronic Evidence shall likewise be liberally
b.   The evidence suppressed or withheld is merely construed [Sec. 2, Rule 2, Rules on Electronic
corroborative or cumulative; Evidence]
c.   The evidence is at the disposal of both parties; and
d.   The suppression is an exercise of a privilege
[Tarapen v. People, G.R. No. 173824 (2008)]

The presumption of regularity in the performance of

official duty obtains only when there is no deviation
from the regular performance of duty. Where the
official act in question is irregular on its face, no
presumption of regularity can arise [People v.
Casabuena, G.R. No. 186455 (2014)]

When there is gross disregard of the procedural

safeguards set forth in Republic Act No. 9165
(Comprehensive Dangerous Drugs Act of 2002),
serious uncertainty is generated as to the identity of
the seized items that the prosecution presented in
evidence. Such doubt cannot be remedied by merely
invoking the presumption of regularity in the
performance of official duties [People v. Lagahit, G.R.
No. 200877 (2014)]

There is a disputable presumption that things have

happened according to the ordinary course of nature
and the ordinary habits of life. All of the foregoing
evidence, that a person with typical Filipino features is
abandoned in Catholic Church in a municipality where
the population of the Philippines is overwhelmingly
Filipinos such that there would be more than a 99%
chance that a child born in the province would be a
Filipino, would indicate more than ample probability if
not statistical certainty, that petitioner's parents are
Filipinos. That probability and the evidence on which
it is based are admissible under Rule 128, Section 4 of
the Revised Rules on Evidence [Poe-Llamanzares v.
COMELEC, G.R. No. 221697 (2016)]

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  Quantum of Evidence 3.  Substantial Evidence

(Weight and Sufficiency a.   Degree of evidence required in cases filed before
of Evidence) administrative or quasi-judicial bodies
b.   Definition: Amount of relevant evidence which a
reasonable mind might accept as adequate to
1.   Proof beyond Reasonable justify a conclusion.
[Sec. 5, Rule 133]
Doubt
Also applies to petitions under the Rule on the Writ of
In a criminal case, the accused is entitled to an Amparo [Sec. 17, Rule on the Writ of Amparo] and the
acquittal, unless his guilt is shown beyond reasonable Rule on the Writ of Habeas data [Sec. 16, Rule on the
doubt. Proof beyond reasonable doubt does not mean Writ of Habeas data]
such a degree of proof as, excluding possibility of
error, produces absolute certainty. Moral certainty Substantial Evidence Rule
only is required, or that degree of proof which Factual findings, especially when affirmed by the
produces conviction in an unprejudiced mind [Sec. 2, Court of Appeals, are accorded not only great respect
Rule 133] but also finality, and are deemed binding upon this
Court so long as they are supported by substantial
The burden is on the prosecution to prove guilt beyond evidence [Tan Brothers Corp. v. Escudero, G.R. No.
reasonable doubt, NOT on the accused to prove 188711 (2013)]
his/her innocence [Boac v People, G.R. No. 180597,
(2008)]
4.  C lear and Convincing
The prosecution must not rely on the weakness of the Evidence
evidence of the defense [Ubales v People, G.R. No.
175692, (2008); People v. Hu, G.R. No. 182232, (2008)] The standard of proof required in granting or denying
bail in extradition cases is “clear and convincing
2.  P reponderance of evidence” that the potential extradee is not a flight risk
and will abide with all the orders and process of the
Evidence extradition court [Government of Hongkong Special
Administrative Region v. Olalia, Jr., G.R. No. 153675,
Applicable quantum of evidence in civil cases [Sec. 1, (2007)]
Rule 133]
It must be added that the defenses of denial and
Means that the evidence adduced by one side is, as a improper motive can only prosper when substantiated
whole, superior to or has greater weight than that of by clear and convincing evidence [People v. Colentava,
the other [Habagat Grill v. DMC-Urban Property G.R. No. 190348 (2015)]
Developer, Inc., G.R. No. 155110, (2005); Bank of the
Philippine Islands v. Reyes, G.R. No. 157177, (2008)] It is used for overturning disputable presumptions,
such as the presumption of regularity in the
In determining preponderance of evidence, the court performance of official duties [Portuguez v. People,
may consider: G.R. No. 194499, (2015)] or the existence of a valuable
a.   All the facts and circumstances of the case; consideration [Tolentino v. Sps. Jerera, G.R. No. 179874
b.   The witnesses’ manner of testifying, their (2015)]
intelligence, their means and opportunity of
knowing the facts to which they testify, the nature Note however: The addressee's “direct denial” of
of the facts to which they testify, the probability or receipt of mail alleged to have been mailed to it
improbability of their testimony, their interest or defeats the presumption in Sec. 3(v), Rule 131 and
want of interest, and also their personal credibility shifts the burden upon the party favored by the
so far as the same may legitimately appear upon presumption to prove that the mailed letter was
the trial; indeed received by the addressee [Commissioner of
c.   Number of witnesses (although preponderance is Internal Revenue v. Metro Star, G.R. No. 185371 (2010)]
not necessarily with the greater number) [Sec. 1,
Rule 133] It is also the standard of proof for invoking the
justifying circumstance of self-defense for the defense

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

and proving the aggravating circumstance of

treachery for the prosecution [People v. C.A.sas, G.R.   Judicial Notice and
No. 212565 (2015)] The former is because having
admitted the killing requires the accused to rely on the
Judicial Admissions
strength of his own evidence, not on the weakness of
the Prosecution’s, which, even if it were weak, could 1.   What Need Not Be Proved
not be disbelieved in view of his admission [People v.
Mediado, G.R. No. 169871 (2011)] a.   Facts of Judicial Notice
b.   Judicial Admissions
Clear and convincing evidence is more than mere c.   Conclusive Presumptions
preponderance, but not to extent of such certainty a
sis required beyond reasonable doubt as in criminal Note: Evidence is also not required when the issue is
cases [Manalo v. Roldan-Confesor, G.R. No. 102358 purely a question of law. The definition of “evidence”
(1992)] in Sec. 1, Rule 128 refers to “a matter of fact”.

2.  M atters of Judicial Notice

Judicial Notice
Judicial notice is the cognizance of certain facts that
judges may properly take and act on without proof
because these facts are already known to them. Put
differently, it is the assumption by a court of a fact
without need of further traditional evidentiary
support. The principle is based on convenience and
expediency in securing and introducing evidence on
matters which are not ordinarily capable of dispute
and are not bona fide disputed [Republic v.
Sandiganbayan, G.R. No. 166859, (2011)]

a.   When Mandatory
1.   Existence and territorial extent of states;
2.   Their political history, forms of government, and
symbols of nationality;
3.   Law of nations;
4.   Admiralty and maritime courts of the world and
their seals;
5.   Political constitution and history of the
Philippines;
6.   Official acts of the legislative, executive and
judicial departments of the Philippines;
7.   Laws of nature;
8.   Measure of time; and
9.   Geographical divisions [Sec. 1, Rule 129]

Note: Even if not raised or alleged by petitioner, courts

should take mandatory judicial notice of an
amendment to the Rules of Court [Siena Realty v. Gal-
lang, G.R. No. 145169 (2004)]

The Management Contract entered into by petitioner

and the PPA is clearly not among the matters which
the courts can take judicial notice of. It cannot be
considered an official act of the executive department.
The PPA was only performing a proprietary function

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when it entered into a Management Contract with Note: The principal guide in determining what facts
petitioner. As such, judicial notice cannot be applied may be assumed to be judicially-known is that of
[Asian Terminals v. Malayan Insurance, G.R. No. 171406 notoriety. Hence, it can be said that judicial notice is
(2011)] limited to facts evidenced by public records and facts
of general notoriety. Morever, a judicially-noticed fact
The RTC declared that the discrepancy arose from the must be one not subject to a reasonable dispute in that
fact that Barrio Catmon was previously part of Barrio it is either (1) generally known within the territorial
Tinajeros. The RTC has authority to declare so because jurisdiction of the trial court; or (2) capable of accurate
this is a matter subject of mandatory judicial notice. and ready determination by resorting to sources
Geographical divisions are among matters that courts whose accuracy cannot reasonably be questionable
should take judicial notice of [B.E. San Diego, Inc. v. [Riano 76-77, 2016 Ed.]
C.A., G.R. No. 159230 (2010)]
c.   When Hearing Necessary
b.   When Discretionary
During the Trial
1.   Matters of public knowledge; The court, on its own initiative, or on request of a party,
2.   Matters capable of unquestionable may announce its intention to take judicial notice of
demonstration; and any matter and allow the parties to be heard thereon
3.   Matters ought to be known to judges because of [Sec. 3, Rule 129]
their judicial functions [Sec. 2, Rule 129]
After the Trial and Before Judgment or on Appeal
Requisites The proper court, on its own initiative or on request of
1.   The matter must be one of common and general a party, may take judicial notice of any matter and
knowledge; allow the parties to be heard thereon if such matter is
2.   It must be well and authoritatively settled and not decisive of a material issue in the case [Sec. 3, Rule
doubtful or uncertain; 129]
3.   It must be known to be within the limits of the
jurisdiction of the court With Respect to the Court’s Own Acts and Records
[State Prosecutors v, Muro, A.M. No. RTJ-92-876 A court will take judicial notice of its own acts and
(1994)] records in the same case, of facts established in prior
proceedings in the same case, of the authenticity of its
Judicial notice is not judicial knowledge. The mere own records of another case between the same
personal knowledge of the judge is not the judicial parties, of the files of related cases in the same court,
knowledge of the court, and he is not authorized to and of public records on file in the same court
make his individual knowledge of a fact, not generally [Republic v. C.A., G.R. No. 119288 (1997)]
or professionally known, the basis of his action.
Judicial cognizance is taken only of those matters
which are "commonly" known [State Prosecutors v,
d.   With Respect to Records of
Muro, A.M. No. RTJ-92-876 (1994)] Other Cases
With Respect to Ordinances General rule: Courts are not authorized to take judicial
Municipal trial courts are required to take judicial notice of the contents or records of other cases even if
notice of the ordinances of the municipality or city both cases may have been tried or are pending
wherein they sit [2 Regalado 833, 2008 Ed.] before the same judge [Prieto v. Arroyo, G.R. No. L-
17885 (1965)]
Regional Trial Courts must take judicial notice of such
ordinances only: Exceptions:
1.   When required to do so by statute e.g. in Manila In the absence of objection, and as a matter of
as required by the city charter [City of Manila v. convenience to all parties, a court may properly treat
Garcia, et al., G.R. No. L-26053 (1967)]; and all or any part of the original record of a case filed in
2.   In a case on appeal before them and wherein the its archives as read into the record of a case pending
inferior court took judicial notice of an ordinance before it, when:
involved in said case [U.S. v. Blanco, G.R. No. 1.   With the knowledge of the opposing party,
12435 (1917); U.S. v. Hernandez, G.R. No. 9699 reference is made to it for that purpose, by name
(1915)] and number or in some other manner by which it
is sufficiently designated; or

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

2.   The original record of the former case or any part locations [Atienza v. Board of Medicine, G.R. No.
of it, is actually withdrawn from the archives by 177407 (2011)]
the court's direction, at the request or with the
consent of the parties, and admitted as a part of The distance between places may be taken as a matter
the record of the case then pending of judicial notice [Maceda v. Vda. De Macatangay, G.R.
[US v Claveria, G.R. No. G.R. No. 9282 (1915)] No. 164947 (2006)]

Courts may also take judicial notice of proceedings in The Court may take judicial notice of the assessed
other causes because of their: value of the property. Considering that the subject
1.   Close connection with the matter in controversy. land was more than 4 million square kilometers, RTC
Ex: In a separate civil action against the acted properly when it took judicial notice of the total
administrator of an estate arising from an appeal area of the property involved and the prevailing
against the report of the committee on claims assessed value of the titled property, and it would also
appointed in the administration proceedings of be at the height of absurdity if the assessed value of
the said estate, the court took judicial notice of the the property with such an area is less than P20,000
record of the administration proceedings to [Bangko Sentral ng Pilipinas v. Legaspi, G.R. No.
determine whether or not the appeal was taken on 205966 (2016)]
time,
2.   To determine whether or not the case pending is The Court may not take judicial notice of contracts
a moot one or whether or not a previous ruling is entered into by GOCCs in the exercise of their
applicable in the case under consideration. proprietory function. These cannot be considered an
3.   The other case had been decided by the same official act of the executive department [Asian
court, involving the same subject matter, with the Terminals v. Malayan Insurance, G.R. No. 171406
same cause of action, and was between the same (2011)]
parties (which was not denied), and constituted
res judicata on the current cause before the court
[Tiburcio v. PHHC, G.R. No. L-13479, (1959)]
3.  Judicial Admissions
Courts cannot take judicial notice that vehicular In General
accidents cause whiplash injuries [Dela Llana v Biong, To be a judicial admission, the same:
G.R. No. 182356 (2013)] a.   Must be made by a party to the case;
b.   Must be made in the course of the proceedings in
The classification of the land is obviously essential to the same case; and
the valuation of the property. The parties should thus c.   May be verbal or written
have been given the opportunity to present evidence [Sec. 4, Rule 129]
on the nature of the property before the lower court
took judicial notice of the commercial nature of a Note: The admission, to be judicial, must be made in
portion of the subject landholdings [LBP v. Honeycomb the course of the proceedings in the same case. Thus,
Farms, G.R. No. 166259 (2012)] an admission made in another judicial proceeding will
not be deemed a judicial adminission in another case
It can be considered of public knowledge and judicially where the adminission is not made. Instead, it will be
noticed that the scene of the rape is not always nor considered an extrajudicial admission for purposes of
necessarily isolated or secluded for lust is no respecter the other proceeding where such admission is offered
of time or place. The offense of rape can and has been [Riano 87, 2016 Ed.]
committed in places where people congregate, e.g.
inside a house where there are occupants, a five (5) Judicial admissions may be made in
meter room with five (5) people inside, or even in the a.   the pleadings filed by the parties,
same room which the victim is sharing with the b.   in the course of the trial, either by verbal or written
accused's sister [People v. Tundag, G.R. Nos. 135695- manifestations or stipulations, or
96. (2000)] c.   in other stages of the judicial proceeding; as in the
pre-trial of the case.
Laws of nature involving the physical sciences, Admissions obtained through depositions, written
specifically biology, include the structural make-up interrogatories or requests for admission are also
and composition of living things such as human considered judicial admissions [2 Regalado 836-837,
beings. The Court may take judicial notice that a 2008 Ed.]
person’s organs were in their proper anatomical

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

Examples of item (c) above are could never leave the country. His silence on this and
1.   Stipulations of facts by the parties in a pre-trial other related suggestions can be taken as an
conference. See People v. Hernandez [G.R. No. admission by him [Estrada v. Desierto, G.R. Nos.
108028 (1996)] 146710-15 (2001)]
2.   Motions, see Republic v. de Guzman, G.R. No.
175021 (2011), where allegations made in a motion Judicial Proceeding [Sec. 3, Rule 1]
to dismiss were considered to be, among others a.   Civil – includes special civil actions
requiring denial by the adverse party and absence b.   Criminal
of such led to the application of Sec. 4, Rule 129 c.   Special Proceeding

Note: Examples of statements made that are not judicial

a.   Sec. 8, Rule 10 provides that “[a]n amended admissions
pleading supersedes the pleading that it amends. a.   Statements made during preliminary
However, admissions in superseded pleadings investigation
may be received in evidence against the b.   Statements in a memorandum filed with the
pleader.” Thus, admissions in superseded Labor Arbiter
pleadings have to be “received in evidence” c.   Statements during Court-Annexed Mediation
precisely because they become extra-judicial in
nature the moment the pleading containing them Note: Execution of judgment is part of a judicial
are superseded by virtue of amendment. See proceeding. The Court retains control over the case
Bastida v. Menzi & Co, Inc [G.R. No. L-35840 until the full satisfaction of the final judgment [People
(1933)], cited in 2 Regalado 837, 2008 Ed. v. Gallo, G.R. No. 124736 (1999)]
b.   Admissions made by a party pursuant to a request
for admission is for the purpose of the pending
action only [Sec. 3, Rule 26]
a.   Effect of Judicial Admissions
c.   In criminal cases, all agreements or admissions
made or entered during the pre-trial conference It does NOT require proof and CANNOT be
shall be reduced in writing and signed by the contradicted [Sec. 4, Rule 129]
accused and counsel, otherwise, they cannot be
used against the accused [Sec. 2, Rule 118] An original complaint, after being amended, loses its
However, in the civil case instituted with the character as a judicial admission, which would have
criminal case, such admission will be admissible required no proof. It becomes merely an extra-judicial
against any other party. admission requiring a formal offer to be admissible
[Torres v. C.A., G.R. No. L-37420, (1984)]
There are averments made in pleadings which are not
deemed admissions even if the adverse party fails to A party who judicially admits a fact cannot later
make a specific denial of the same like immaterial challenge that fact as judicial admissions are a waiver
allegations [Sec. 11, Rule 8], conclusions, non-ultimate of proof; production of evidence is dispensed with
facts in the pleading [Sec. 1, Rule 8] as well as the [Alfelor v Halasan, G.R. No. 165987 (2006)]
amount of liquidated damages [Sec. 11, Rule 8] [Riano
89, 2016 Ed.] b.   How Judicial Admissions May
Note: The theory of adoptive admission has been
be Contradicted
adopted by the court in this jurisdiction. An adoptive
As an exception to the general rule, judicial
admission is a party’s reaction to a statement or action
admissions may be contradicted only by showing that:
by another person when it is reasonable to treat the
1.   It was made through palpable mistake; or
party’s reaction as an admission of something stated
2.   No such admission was made
or implied by the other person. The basis for
[Sec. 4, Rule 129]
admissibility of admissions made vicariously is that
arising from the ratification or adoption by the party of
the statements which the other person had made. In This may be invoked when the statement of a party is
the Angara Diary, Estrada’s options started to taken out of context or that his statement was made
not in the sense it is made to appear by the other party
dwindle when the armed forces withdrew its support.
[Phil. Health Care Providers v. Estrada, G.R. No. 171052,
Thus, Executive Secretary Angara had to ask Senate
(2008), citing Atillo, III v. C.A. (1997)]
President Pimentel to advise petitioner to consider the
option of dignified exit or resignation. Estrada did not
object to the suggested option but simply said he

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

well and generally known such as when they are

4.  J udicial Notice of Foreign well and generally known or they had been ruled
Laws, Law of Nations and upon in other cases before it and none of the
parties claim otherwise [PCIB v Escolin G.R. L-
Municipal Ordinance 27860 and L-27896 (1974], citing Moran]
b.   When the foreign law is part of a published
FOREIGN LAWS treatise, periodical or pamphlet and the writer is
recognized in his/her profession or calling as
General rule: Courts cannot take judicial notice of expert in the subject [Sec. 46, Rule 130]
foreign laws. They must be alleged and proved as any
other fact [Yao-Kee v. Sy-Gonzales, G.R. No. L-55960 Law Of Nations
(1988)] The Philippines adopts the generally accepted
principles of international law as part of the law of the
Written foreign law may be proved by: land [Sec. 2, Art. II, Constitution]
a.   An official publication; or
b.   A duly attested and authenticated copy Being part of the law of the land, they are therefore in
[Sec. 24, Rule 132] the nature of local laws, and hence, subject to
mandatory judicial notice under Sec. 1 of Rule 129.
Attested copy
a.   Attestation must be made by the officer having MUNICIPAL ORDINANCE
legal custody of the record or by his deputy [Sec.
24, Rule 132] Municipal trial courts are required to take judicial
1.   It must state, in substance, that the copy is a notice of the ordinances of the municipality or city
correct copy of the original, or a specific part wherein they sit [2 Regalado 833, 2008 Ed.]
thereof [Sec. 25, Rule 132]
2.   It must be under the official seal of the Regional Trial Courts must take judicial notice of such
attesting officer, if there be any, or if he be a ordinances only:
clerk of court having a seal, under the seal of a.   When required to do so by statute e.g. in Manila
such court [Sec. 25, Rule 132] as required by the city charter [City of Manila v.
b.   It must be accompanied by a certificate that Garcia, et al., G.R. No. L-26053 (1967)]; and
attesting officer has custody. The certificate may b.   In a case on appeal before them and wherein the
be made by a secretary of the embassy or inferior court took judicial notice of an ordinance
legation, consul general, consul, vice consul, or involved in said case [U.S. v. Blanco, G.R. No.
consular agent or by any officer in the foreign 12435 (1917); U.S. v. Hernandez, G.R. No. 9699
service of the Philippines stationed in the foreign (1915)]
country in which the record is kept, and
authenticated by the seal of his office [Sec. 24,
Rule 132]

Unwritten foreign law

Where the foreign law sought to be proved is
"unwritten," the oral testimony of expert witnesses is
admissible, as are printed and published books of
reports of decisions of the courts of the country
concerned if proved to be commonly admitted in such
courts [Wildvalley Shipping Co., Ltd. v. C.A., G.R. No.
119602 (2000)]

Doctrine of Processual Presumption

In the absence of proof, the foreign law will be
presumed to be the same as the laws of the jurisdiction
hearing the case [Northwest Orient Airlines v. C.A., G.R.
No. 112573 (1995)]

The court may take judicial notice of the foreign law

a.   Where the foreign law is within the actual
knowledge of the court such as when the law is

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

  Object (Real) Evidence Exceptions: Court may refuse exhibition of object

evidence and rely on testimonial evidence alone if—
a.   Exhibition is contrary to public policy, morals or
1.   Meaning of Object decency;
b.   It would result in delays, inconvenience,
Evidence unnecessary expenses, out of proportion to the
evidentiary value of such object; [People v. Tavera,
Object Evidence G.R. No. L-23172 (1925)]
Those addressed to the senses of the court [Sec. 1, c.   Evidence would be confusing or misleading.
Rule 130] d.   The testimonial or documentary evidence already
presented clearly portrays the object in question
A person’s appearance, where relevant, is admissible as to render a view thereof unnecessary
as object evidence, the same being addressed to the
senses of the court [People v. Rullepa y Guinto, G.R. No. COMPETENT AND AUTHENTICATED
131516 (2003)] Evidence must be authenticated
To authenticate the object is to show that the object
An ocular inspection of the body of the accused is is the very thing that is either the subject matter of the
permissible [Villaflor v. Summers, G.R., No. 16444 lawsuit or the very one involved to prove an issue in the
(1920)] case

The right against self-incrimination CANNOT be Authentication must be made by competent witness
invoked against object evidence [People v. Malimit, To authenticate the object, the witness must have the
G.R. No. 109775 (1996)] capacity to identify the object as the very thing
involved in the litigation
2.  R equisites for A witness can testify to those facts which he/she
Admissibility knows of his/her personal knowledge [Sec. 36, Rule
130]
Basic requisites for admissibility
a.   Evidence must be relevant; 3.  Categories of Object
b.   Evidence must be authenticated;
c.   Authentication must be made by a competent Evidence
witness; and
d.   Object must be formally offered [Sec. 34, Rule 132] The “thing itself”
[Riano 101, 2016 Ed.] (according to means of authentication)
E.g., a caliber
Objects that have
Requisites for the admissibility of tape recording Unique 45 pistol by
readily identifiable
a.   A showing that the recording was capable of objects virtue of its
marks
taking testimony serial number
b.   A showing that the operator of the recording E.g., a typical
device is competent Objects with no
kitchen knife
c.   Establishment of the authenticity and correctness Objects unique
with identifying
of recording made characteristic but
marks placed
d.   A showing that no changes, deletions, or unique are made readily
on it by the
additions have been made on the recordings identifiable
witness
e.   A showing of the manner of preservation of the Objects with no
recording Non-
identifying marks E.g., narcotic
f.   Identification of speakers unique
and cannot be substances
g.   A showing that the testimony elicited was objects
marked
voluntarily made without any kind of inducement
[Torralba v. People, G.R. No. 153699 (2005))
4.  D emonstrative Evidence
RELEVANT
General rule: When an object is relevant to the fact in Not the actual thing, rather it represents or
issue, it may be exhibited to, examined or viewed by “demonstrates” the real thing, e.g., photographs,
the court [Sec. 1, Rule 130] motion pictures and recordings [Riano 102, 2016 Ed.]

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Audio, photographic and video evidence of events,

acts or transactions shall be admissible provided it   Documentary Evidence
shall be:
a.   shown, presented or displayed to the court, and 1.   Meaning of Documentary
b.   identified, explained or authenticated
1.   by the person who made the recording, or Evidence
2.   by some other person competent to testify on
the accuracy thereof Consist of writings or any material containing letters,
[Sec. 1, Rule 11, Rules on Electronic Evidence] words, numbers, figures, symbols or other modes of
written expressions offered as proof of their contents
[Sec. 2, Rule 130] If offered for some other purpose,
5.  V iew of an Object or Scene they constitute object evidence.
When an object is relevant to the fact in issue, it may
be exhibited to, examined or viewed by the court [Sec. 2.  R equisites for
1, Rule 130]
Admissibility
The “view” is expressly authorized by Sec. 1, Rule 130
but even without this express provision, it is well- 1.   The document must be relevant;
recognized that the court has an inherent power to 2.   The evidence must be authenticated;
order a view when there is a need to do so (See Sec. 5, 3.   The document must be authenticated by a
Rule 135.) [Riano 106, 2016 Ed.] competent witness;
4.   The document must be formally offered in
The inspection or view outside the courtroom should evidence
be in made in the presence of the parties or at least [Riano 132, 2016 Ed.]
with previous notice to them in order that they may
show the object to be viewed [5 Moran 81, 1970 Ed., a.   Rules on Electronic Evidence
cited in In re Climaco, A.C. No. 134-J (1974), Teehankee,
J.]
(A.M. No. 01-7-01-SC)
An electronic document is admissible in evidence if it
complies with the rules on admissibility prescribed by
the Rules of Court and related laws and is
authenticated in the manner prescribed by these
Rules [Sec. 2, Rule 3]

3.  Best Evidence Rule

a.   Meaning of the Rule
When the subject of inquiry is the contents of a
document, no evidence shall be admissible other than
the original document itself [Sec. 3, Rule 130]

b.   When Applicable
When applicable (General Rule)
Only when the subject of inquiry is the contents of a
document [Sec. 3, Rule 130]

When not applicable

When the issue is only as to whether or not such
document was actually executed or in the
circumstances relevant to its execution [People v
Tandoy, G.R. No. 80505, (1990)]

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

Hence, the Best Evidence Rule applies only when the b.   Upon proof of its execution or existence;
terms of a writing are in issue. When the evidence c.   Without bad faith on the offeror’s part
sought to be introduced concerns external facts, such [Sec. 5, Rule 130]
as the existence, execution or delivery of the writing,
without reference to its terms, the Best Evidence Rule Proponent must prove due execution or existence, and
cannot be invoked. In such a case, secondary evidence the cause of the loss, destruction or unavailability of
may be admitted even without accounting for the the original [Sec. 5, Rule 130] and reasonable diligence
original. The Best Evidence Rule was not applicable and good faith in the search for/attempt to produce
because the terms of the deed of sale with right to the original [Tan v. C.A., G.R. No. L-56866 (1985)]
repurchase were not the issue [Heirs of Prodon v.
Alvarez, G.R. No. 170604 (2013)] ALL duplicates or counterparts must be accounted for
before using copies [De Vera v. Aguilar, GR. No. 83377
Affidavits and depositions are considered as not being (1993)]
the best evidence, hence not admissible if the affiants
or deponents are available as witnesses [2 Regalado Due execution of the document should be
721, 2008 Ed., citing 4 Martin 82] proved through the testimony of either:
a.   the person or persons who executed it;
b.   the person before whom its execution was
c.   Meaning of Original Document acknowledged; or
c.   any person who was present and saw it executed
1.   The original of a document is one the contents of and delivered, or who, after its execution and
which are the subject of inquiry. delivery, saw it and recognized the signatures, or
2.   When a document is in two or more copies by a person to whom the parties to the
executed at or about the same time, with identical instruments had previously confessed the
contents, all such copies are equally regarded as execution thereof
originals. [Director of Lands v. C.A., G.R. No. L-29575 (1971))
3.   When an entry is repeated in the regular course of
business, one being copied from another at or What to present instead (in this order)
near the time of the transaction, all the entries are a.   By a copy
likewise equally regarded as originals. b.   By a recital of its contents in some authentic
[Sec. 4, Rule 130] document
c.   By the testimony of witnesses [Rule 130, Sec. 5]
Carbon copies are deemed duplicate originals.
[People v Tan, G.R. No. L-14257 (1959); Skunac v. 2.   WHEN THE ORIGINAL IS IN THE CUSTODY OR
Sylianteng, G.R. No. 205879 (2014)] UNDER THE CONTROL OF THE PARTY
AGAINST WHOM IT IS OFFERED, AND THE
The picture images of the ballots, as scanned and LATTER FAILS TO PRODUCE IT AFTER
recorded by the PCOS, are likewise ‘official ballots’ REASONABLE NOTICE
that faithfully capture in electronic form the votes cast
by the voter, as defined by Sec. 2(3) of RA 9369. As What to present instead
such, the printouts thereof are the functional Same as when lost, destroyed, or cannot be produced
equivalent of the paper ballots filled out by the voters in court [Sec. 6, Rule 130]
and, thus, may be used for purposes of revision of
votes in an electoral protest [Vinzons-Chato v. House 3.   WHEN THE ORIGINAL CONSISTS OF
of Representatives Electoral Tribunal, G.R. No. 199149 NUMEROUS ACCOUNTS OR OTHER
(2013)] DOCUMENTS WHICH CANNOT BE EXAMINED
IN COURT WITHOUT GREAT LOSS OF TIME,
d.   Requisites for Introduction of AND THE FACT SOUNDS TO BE ESTABLISHED
FROM THEM IS ONLY THE GENERAL RESULT
Secondary Evidence OF THE WHOLE
1.   WHEN THE ORIGINAL HAS BEEN LOST OR 4.   WHEN THE ORIGINAL IS A PUBLIC RECORD IN
DESTROYED, OR CANNOT BE PRODUCED IN
THE CUSTORY OF A PUBLIC OFFICER OR IS
COURT
RECORDED IN A PUBLIC OFFICE
a.   When the original has been lost or destroyed, or
What to present instead
cannot be produced in court;

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

Certified copy issued by the public officer in custody 2.   Failure of the written agreement to express the
thereof true intent and agreement of the parties thereto
3.   Validity of the written agreement
5.   WHEN ORIGINAL IS OUTSIDE THE 4.   Existence of other terms agreed to by the parties
JURISDICTION OF THE COURT or their successors in interest after the execution
of the written agreement.
When the original is outside the jurisdiction of the
court, secondary evidence is admissible [Regalado INTRINSIC AMBIGUITY, MISTAKE OR
784, 2008 Ed., citing PNB v. Olila, G.R. No. L-8189 IMPERFECTION IN THE WRITTEN AGREEMENT
(1956), unreported]
Intrinsic ambiguity – writing admits of two
constructions both of which are in harmony with the
4.  P arol Evidence Rule language used [Ignacio v. Rementeria, 99 Phil. 1054
(Unrep.)]
Parol evidence
Any evidence aliunde, whether oral or written, which is American jurisprudence also refers to a situation.
intended or tends to vary or contradict a complete and where an ambiguity partakes of the nature of both
enforceable agreement embodied in a document [2 patent and latent ambiguity, that is, an intermediate
Regalado 730, 2008 Ed.] ambiguity, because the words of the writing, though
seemingly clear and with a settled meaning, is actually
a.   Application of the Parol equivocal and admits of two interpretations. Parol
evidence, in such a case is admisaible to clarify the
Evidence Rule ambiguity [2 Regalado 734, 2008 Ed., citing 20 Am.
Jur 1011]
General Rule
When the terms of an agreement (including wills) have Mistake refers to mistake of fact which is mutual to
been reduced to writing, it is considered as containing the parties [BPI v. Fidelity and Surety, Co., G.R. No. L-
all the terms agreed upon and there can be, between 26743 (1927)]
the parties and their successors in interest, no
evidence of such terms other than the contents of the Imperfection includes an inaccurate statement in the
written agreement [Sec. 9, Rule 130] agreement or incompleteness in the writing, or the
presence of inconsistent provisions [2 Regalado 732,
Where not applicable 2008 Ed.]
It does not apply when third parties are involved or
those not privy to the written instrument in question FAILURE OF THE WRITTEN AGREEMENT TO
and does not base a claim or assent a right originating EXPRESS THE TRUE INTENT AND AGREEMENT OF
in the instrument [Lechugas v. C.A., G.R. No. L-39972 THE PARTIES THERETO
& L-40300 (1986)]
Purpose
b.   When Parol Evidence Can Be To enable court to ascertain the true intention of the
parties [Tolentino v. Gonzales Sy Chiam, G.R. No.
Introduced 26085 (1927)]
How Parol Evidence Can Be Introduced VALIDITY OF THE WRITTEN AGREEMENT
General rule: Ground/s for presenting parol evidence is
Parol evidence may be admitted to show:
put in issue in the pleading [Sec. 9, Rule 130]
a.   True consideration of a contract
b.   Want/Illegality of consideration
Exception: Even if it is not explicitly stated in the words
c.   Incapacity of parties
of the law, if the facts in the pleadings all lead to the
d.   Fictitious/absolutely simulated contract
fact that it is being put in issue then the Parol Evidence
e.   Fraud in inducement
exception may apply [Sps. Paras v. Kimwa Corporation, [2 Regalado 733, 2008 Ed.]
G. R. No. 171601 (2015)]
EXISTENCE OF OTHER TERMS AGREED TO BY THE
When Can Parole Evidence Can Be Introduced
PARTIES OR THEIR SUCCESSORS IN INTEREST
1.   Intrinsic ambiguity, mistake or imperfection in the
AFTER THE EXECUTION OF THE WRITTEN
written agreement
AGREEMENT.

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

c.   Distinction between the Best

Evidence Rule and Parol 5.  A uthentication and Proof
Evidence Rule of Documents
Best Evidence Rule Parol Evidence Rule a.   Meaning of authentication
Contemplates the
situation wherein the
The preliminary step in showing the admissibility of
original writing is not Presupposes that the
evidence
available and/or there is original document is
a dispute as to whether available in court
Proving that the objects and documents presented in
said writing is the
evidence are not counterfeit
original
Prohibits the
introduction of b.   Public and Private Documents
substitutionary evidence Prohibits the varying of
in lieu of the original the terms of a written Private Documents Public Documents
document regardless of agreement When offered as
WON it varies the authentic, due Admissible without
contents of the original execution and further proof of its due
Applies only to authenticity must be execution and
Applies to all kinds of documents proved [Sec. 20, Rule authenticity
writings contractual in nature 132]
and to wills
Can be invoked only Public Documents
when the controversy 1.   Written official acts or records of the official acts
Can be invoked by any
is between the parties of the sovereign authority, official bodies and
party to an action
to the written tribunals, and public officers, whether of the
regardless of WON such
agreement, their Philippines or of a foreign country
party participated in the
privies or any party 2.   Public records, kept in the Philippines, of private
writing involved
directly affected documents required by law to be entered therein
thereby 3.   Notarial documents (except last wills and
[2 Regalado 731, 2008 Ed.] testaments)
[Sec. 19, Rule 132]
COLLATERAL AGREEMENTS
All other writings are private [Sec. 19, Rule 132]
General rule: Parol Evidence Rule applies (i.e., no
evidence of such terms other than the contents of the A public document enjoys the presumption of
written agreement) [Sec. 9, Rule 130] regularity. It is a prima facie evidence of the truth of the
Exceptions: facts stated therein and a conclusive presumption of
1.   Collateral agreement is not inconsistent with the its existence and due execution. To overcome this
terms of the written contract [Robles v. Lizarraga presumption, there must be clear and convincing
Hermanos, G.R. No. 26173 (1927)] evidence [Chua v. Westmont Bank, G.R. No. 182650
2.   Collateral agreement has not been integrated in (2012)]. Note: Compare this statement with:
and is independent of the written contract 1.   Documents consisting of entries in public records
3.   Collateral agreement is subsequent to [Filpinas made in the performance of a duty by a public
Manufacturers Bank v. Eastern Rizal Fabricators, officer are prima facie evidence of the facts therein
G.R. No. 62741 (1987)] or novatory of the written stated. All other public documents are evidence,
contract [Canuto v. Mariano, G.R. No. 11346 (1918)] even against a third person, of the fact which gave
4.   Collateral agreement constitutes a condition rise to their execution and of the date of the latter
precedent which determines whether the written [Sec. 20, Rule 132]
contract may become operative or effective 2.   Every instrument duly acknowledged or proved
[Peabody & Co. v. Bromfield, G.R. No. 13510 (1918)], and certified as provided by law, may be
but this exception does not apply to a condition presented in evidence without further proof, the
subsequent not stated in the agreement certificate of acknowledgment being prima facie
[2 Regalado 730, 2008 Ed.]

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

evidence of the execution of the instrument or Additional Modes of Authentication under American
document involved [Sec. 30, Rule 132] Jurisprudence
1.   Doctrine of Self-Authentication – Where the
A public document is self-authenticating and requires facts in writing could only have been known by the
no further authentication in order to be presented as writer
evidence in court [Patula v. People, G.R. No. 164457 2.   Rule of Authentication of the adverse party –
(2012)] Where the reply of the adverse party refers to and
affirms the transmittal to him and his receipt of
Private Documents the letter in question, a copy of which the
A private document is any other writing, deed, or proponent is offering as evidence
instrument executed by a private person without the [2 Regalado 859, 2008 Ed.]
intervention of a notary or other person legally
authorized by which some disposition or agreement is
proved or set forth [Patula v. People, G.R. No. 164457
d.   When Evidence of Authenticity
(2012)] of a Private Writing is Not
Required (Ancient Documents)
c.   When a Private Writing
The requirement of authentication of a private
Requires Authentication; document is excused only in four instances,
Proof of Private Writing specifically:
1.   when the document is an ancient one which is:
General rule: Before any private document offered as a.   More than 30 years old;
authentic is received in evidence, its due execution and b.   Produced from a custody in which it would
authenticity must be proved [Sec. 20, Rule 132] naturally be found if genuine; and
c.   Unblemished by any alterations or
How to Prove Due Execution and Authenticity circumstances of suspicion [Sec. 21, Rule 132]
1.   By anyone who saw the document executed or 2.   when the genuineness and authenticity of the
written; OR actionable document have not been specifically
2.   By evidence of the genuineness of the signature or denied under oath by the adverse party;
handwriting of the maker [Sec. 20, Rule 132] 3.   when the genuineness and authenticity of the
document have been admitted; or
Before a private document is admitted in evidence, it 4.   when the document is not being offered as
must be authenticated either by: genuine.
1.   the person who executed it,
2.   the person before whom its execution was OTHER INSTANCES WHEN AUTHENTICATION IS
acknowledged, NOT REQUIRED
3.   any person who was present and saw it executed, 1.   Writing is a public document/record [Sec. 19, Rule
or 132]
4.   who after its execution, saw it and recognized the 2.   Notarial document acknowledged,
signatures, or proved/certified [Sec. 30, Rule 132]
5.   the person to whom the parties to the instruments 3.   When authenticity and due execution has been
had previously confessed execution thereof admitted as in the case of actionable documents
[Malayan Insurance v. Phil. Nails and Wires Corp., G.R. under Sec. 8, Rule 8
No. 138084 (2002)] 4.   That which it is claimed to be: Authentication not
necessary [Sec. 20, Rule 132]
Private documents in the custody of PCGG are not
public documents. What became public are not the
private documents (themselves) but the recording of it
e.   How to Prove Genuineness of a
in the PCGG. If a private writing itself is inserted Handwriting
officially into a public record, its record, its
recordation, or its incorporation into the public record 1.   By any witness who believes it to be the
becomes a public document, but that does not make handwriting of such person because:
the private writing itself a public document so as to a.   he has seen the person write; or
make it admissible without authentication [Republic v b.   he has seen writing purporting to be his upon
Sandiganbayan, G.R. No. 188881 (2014)] which the witness has acted or been charged,

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and has thus acquired knowledge of the service of the Philippines stationed in the foreign
handwriting of such person [Sec. 22, Rule 132] country in which the record is kept;
2.   A comparison by the witness or the court of the 2.   Must state that such officer has the custody; and
questioned handwriting, and admitted genuine 3.   Must be authenticated by the seal of his office
specimens thereof or proved to be genuine to the [Sec. 24, Rule 132]
satisfaction of the judge [Sec. 22, Rule 132]
3.   Expert evidence [Sec. 49, Rule 130] Exception: The United States Agency for International
Development (USAID) is the principal United States
agency to extend assistance to countries recovering
f.   Public Documents as from disaster, trying to escape poverty, and engaging
Evidence; Proof of Official in democratic reforms. It is an independent federal
Records government agency that receives over-all foreign
policy guidance from the Secretary of the State. Given
Documents consisting of entries in public records this background, it is highly improbable that such an
made in the performance of a duty by a public officer agency will issue a certification containing unreliable
are prima facie evidence of the facts therein stated. All information regarding an employee’s income. Besides,
other public documents are evidence, even against a there exists a presumption that official duty has been
third person, of the fact which gave rise to their regularly performed. Absent any showing to the
execution and of the date of the latter [Sec. 23, Rule contrary, it is presumed that Cruz, as Chief of Human
132] Resources Division of USAID, has regularly performed
his duty relative to the issuance of said certification
Proof of official record referred to in Sec. 19(a), Rule and therefore, the correctness of its contents can be
132 relied upon. This presumption remains especially so
1.   By an official publication thereof; or where the authenticity, due execution and correctness
2.   By an attested copy of the document of said certification have not been put in issue either
before the trial court or the CA [Heirs of Ochoa v. G&S
Note: Documents without documentary stamp affixed Transport, G.R. No. 170071 (2011)]
thereto, unless specifically exempted by law, may not
be admitted or used in evidence in any court until the h.   Public Record of Private
requisite stamp shall have been affixed [Sec. 201,
NIRC] Also, there is a presumption that the requisite
Documents
stamps have been affixed in the original copy when
only the carbon copies of the same is available 1.   By the original record; or
[Mahilum v. C.A., G.R. No. L-17666 (1966)) 2.   By a copy thereof, attested by the legal custodian
of the record, with an appropriate certificate that
such officer has the custody [Sec. 27, Rule 132]
g.   Attestation of a Copy of a
Document or Record See Sec. 25, Rule 132

1.   Must be made by the officer having the legal i.   Proof of Lack of Record
custody of the record, or by his deputy [Sec. 24,
Rule 132] 1.   Written statement
2.   Must state that the copy is a correct copy of the a.   Signed by an officer having the custody of an
original or a specific part thereof, as the case may official record or by his deputy
be [Sec. 25, Rule 132] b.   Must state that after diligent search, no
3.   Must be under the official seal of the attesting record or entry of a specified tenor is found to
officer, if there be any, or if he be the clerk of a exist in the records of his office
court having a seal, under the seal of such court 2.   Certificate
[Sec. 25, Rule 132] a.   Accompanying the written statement
b.   Must state that that such officer has the
If the record is not kept in the Philippines, attested custody
copy must be accompanied with a certificate, which: [Sec. 28, Rule 132]
1.   May be made by a secretary of the
embassy/legation, consul-general, consul, vice-
consul, consular agent or any officer in the foreign

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j.   How Judicial Record is m.  Documentary Evidence in an

Impeached Unofficial Language
Establish: NOT admissible unless accompanied by a translation
1.   Want of jurisdiction in the court or judicial officer; into English or Filipino. Parties or their attorneys are
2.   Collusion between the parties; OR directed to have the translation prepared before trial
3.   Fraud in the party offering the record, with respect [Sec. 33, Rule 132]
to the proceedings
[Sec. 29, Rule 132] The OCT written in the Spanish language already
formed part of the records of the case for failure of the
adverse parties to interpose a timely objection when it
k.   Proof of Notarial Documents was offered as evidence. Any objection to the
admissibility of such evidence not raised will be
Notarial Documents considered waived and said evidence will have to form
Every instrument duly acknowledged or proved and part of the records of the case as competent and
certified as provided by law which may be presented in admitted evidence [Heirs of Doronio v. Heirs of Doronio,
evidence without further proof, the certificate of G.R. No. 169454 (2007)]
acknowledgment being prima facie evidence of the
execution of the instrument or document involved
[Sec. 30, Rule 132]

Such notarized documents are evidence, even against

3rd persons, of the facts which gave rise to their
execution and of the date of execution [Sec. 23, Rule
132]

Note: Last wills and testaments are not public

documents [Sec. 19, Rule 132]

l.   How to Explain Alterations in

a Document
When Applicable and Whose Burden of Proof
The party producing a document as genuine which has
been altered and appears to have been altered after
its execution, in a part material to the question in
dispute, must account for the alteration. If he fails to
do that, the document shall not be admissible in
evidence [Sec. 31, Rule 132]

How to Account for Alteration

Party producing a document as genuine may show
that the alteration
1.   Was made by another, without his concurrence;
2.   Was made with the consent of the parties affected
by it;
3.   Was otherwise properly or innocently made; or
4.   Did not change the meaning or language of the
instrument.
[Sec. 31, Rule 132]

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  Testimonial Evidence With respect to children of tender years, competence

at the time of the occurrence is also taken into
account.
1.   Qualifications of a Witness
In case person is convicted of a crime
Witness General rule: Not disqualified
A witness is one who, being present, personally sees The fact that a witness has been convicted of felony is
or perceives a thing, a beholder, spectator or a circumstance to be taken into consideration as
eyewitness. One who testifies to what he has seen or affecting his character and credibility [Enrile, et al. v.
heard, or otherwise observed [Herrera citing Black’s Roberto, et al. G.R. No. L-42309 (1935)]
Law Dictionary]
Exception: Otherwise provided by law, e.g. under Art.
Qualifications of a Witness 821 of the Civil Code, a person convicted of any of the
All persons who can perceive, and perceiving, can following crimes cannot be a witness to a will:
make known their perception to others, may be a.   Falsification of documents,
witnesses. b.   Perjury; or
c.   False testimony
Religious/political belief, interest in the outcome of
the case, or conviction of a crime unless otherwise 2.  C ompetency v. Credibility
provided by law, shall not be ground for
disqualification [Sec. 20, Rule 130] of a Witness
Qualifications of a Witness COMPETENCY
a.   To observe, the testimonial quality of perception;
[Sec. 20, Rule 130] Competency of a Witness
b.   To remember, the testimonial quality of memory; One is qualified to take the witness stand if:
c.   To relate, the testimonial quality of narration; a.   He is capable of perceiving at the time of the
[Sec. 20, Rule 130] occurrence of the fact; and
d.   To recognize a duty to tell the truth, the b.   He came make his perception known
testimonial quality of sincerity; [Sec. 1, Rule 132] [Sec. 20, Rule 130]
e.   He must not possess any of the disqualifications
imposed by the law or rules [Sec. 20, Rule 130] Competency Presumed
[Herrera] A person who takes the witness stand is presumed to
possess the qualifications of a witness. His
A deaf-mute is competent to be a witness so long as competence may be questioned by the other party by
he/she has the faculty to make observations and interposing an objection [Herrera]
he/she can make those observations known to others
[People v. Aleman y Longhas, G.R. No. 181539 (2013)] Remedy for Errors or Questions on Competence
Appeal, not certiorari, is the proper remedy for the
Parties declared in default are not disqualified from correction of any error as to the competency of a
taking the witness stand for non-disqualified parties. witness committed by an inferior court in the course of
The law does not provide default as an exception the trial [Icutanim v. Hernandez, G.R. No. L-1709, June
[Marcos v. Heirs of Navarro, G.R. No. 198240 (2013)] 8, 1948]

There is no substantive or procedural rule which Credibility

requires a witness for a party to present some form of Credibility of a witness is a question of fact, which is
authorization to testify as a witness for the party not reviewable by the Supreme Court [Addenbrook v.
presenting him or her [AFP Retirement and Separation People, G.R. No. L-22995 (1967)]
Benefits System v. Republic, G.R. No. 188956 (2013)]
Competency Distinguished from Credibility
When determined Competence Credibility
Qualification of a witness is determined at the time the A matter of law and of Has nothing to do
said witness are produced for examination or at the rules with the law or rules
taking of their depositions. Refers to the basic
Refers to the weight
qualifications of a witness
and trustworthiness
as his capacity to perceive

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and his capacity to or reliability of the

communicate his testimony When incapacity matters for disqualification
perception to others In case of Sec. 21(a): At the time of their production for
examination
Two Kinds of Incompetency to Testify
Absolute Partial In case of Sec. 21(b): At the time of perception
Forbidden to testify (“perceiving the facts”) and of examination (“relating
only on certain matters them truthfully”)
specified under Secs.
Forbidden to testify on Presumption of sanity
22-23, Rule 130 due to
any matter General rule: The law presumes that every person is of
interest or relationship,
or to privileges of the sound mind, in the absence of proof to the contrary
parties [Art. 800, Civil Code]
[Herrera]
Exception: if the witness is a lawful inmate of an
Incompetence and Privilege asylum for the insane [Herrera citing Torres v. Lopez
Incompetence Privilege (1926)]
Excuses a witness from
Disqualifies a witness A mental retardate is not therefore, per se, disqualified
testifying
[Herrera] from being a witness. As long as his senses can
perceive facts and if he can convey his perceptions in
court, he can be a witness [People v. Española, G.R. No.
3.  Disqualifications of 119308 (1997), citing People v. Salomon, G.R. No.
Witnesses 96848 (1994)]

Unsound mind
Effect of Interest In The Subject Matter 1.   Includes any mental aberration
A person is not disqualified (except if covered by the (organic/functional), induced by drugs/hypnosis
Dead Man’s statute)
2.   Not disqualified as long as the witness can convey
ideas by words/signs
Interest only affects credibility, not competency.
Deaf-Mutes
EFFECT OF RELATIONSHIP
Deaf-mutes are competent witnesses where they have
sufficient knowledge to understand and appreciate
General rule: Mere relationship does not impair the sanctity of an oath and comprehend the facts as to
credibility [People v. De Guzman, G.R. 130809 (2000)] which they wish to speak, and are capable of
communicating their Ideas with respect thereto
Exception:
[People v. Hayag, G.R. No. L-38635 (1980)]
To warrant rejection, it must be clearly shown:
a.   Testimony was inherently improbable or defective
They may give evidence by signs, or through an
b.   Improper/evil motives had moved the witness to
interpreter or in writing, and such testimony, through
incriminate falsely
an interpreter, is not hearsay. But sign language must
[People v. Daen Jr., G.R. No. 112015 (1995)] be capable of verification [People v. Hayag, G.R. No. L-
38635 (1980)]
a.   DQ by Reason of Mental
Child Witness
Capacity or Immaturity The competency of a child witness is determined by his
capacity for observation, recollection and
The following persons cannot be witnesses:
communication [People v. Mendoza, G.R. No. 113791
1.   Those whose mental condition, at the time of their
(1996)]
production for examination, is such that they are
incapable of intelligently making known their
perception to others; b.   DQ by Reason of Marriage
2.   Children whose mental maturity is such as to
render them incapable of perceiving the facts Also known as Martial Disqualification Rule [Alvarez
respecting which they are examined and of v. Ramirez, G.R. No. 143439 (2005)] or Spousal
relating them truthfully [Sec. 21, Rule 130] Immunity

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

Elements
1.   During their marriage Waiver of Disqualification
2.   Neither the husband nor the wife If one spouse imputes the commission of a crime
3.   May testify for or against the other against the other, the latter may testify against the
4.   Without the consent of the affected spouse former [People v. Francisco, G.R. No. L-568 (1947)]
[Sec. 22, Rule 130]
Spouses as Co-Accused
Except: Spouse may testify for or against the other The other cannot be called as an adverse party witness
even without the consent of the latter under this Rule
1.   In a civil case by one against the other; or
2.   In a criminal case for a crime committed by one
against the other or the latter's direct
c.   DQ by Reason of Death or
descendants/ascendants Insanity of Adverse Party
[Sec. 22, Rule 130]
Also known as Dead Man’s Statute or Survivorship
Rationale Rule [Sunga v. Chua, G.R. No. 143340 (2001)]
1.   There is identity of interests between husband
and wife; Elements
2.   If one were to testify for or against the other, there 1.   Parties or assignors of parties to a case, or persons
is a consequent danger of perjury; in whose behalf a case is prosecuted
3.   Policy of the law is to guard the security and 2.   Against:
confidence of private life, and to prevent domestic a.   An executor or administrator or other
disunion and unhappiness; and representative of a deceased person, or
4.   Where there is want of domestic tranquility, there b.   A person of unsound mind
is danger of punishing one spouse through the 3.   Upon a claim or demand against
hostile testimony of the other a.   The estate of such deceased person, or
[Alvarez v. Ramirez, G.R. No. 143439 (2005)] b.   Such person of unsound mind
4.   Cannot testify as to any matter of fact occurring
Duration before
General rule: During the marriage [Sec. 22, Rule 130] a.   The death of such deceased person
b.   Such person became of unsound mind
Exception: Where the marital and domestic relations [Sec. 23, Rule 130]
are so strained that there is no more harmony to be
preserved nor peace and tranquility which may be Applicability
disturbed, the reason based upon such harmony and This rule is applied only to civil cases.
tranquility fails. In such a case, identity of interests
disappears and the consequent danger of perjury It is still applicable even if the property has already
based on that identity is non-existent [Alvarez v. been judicially adjudicated to the heirs regardless
Ramirez, G.R. No. 143439 (2005)] whether the deceased died before or after the suit

Compare the occasions in which the exception was Rationale

applied: To close lips of the plaintiff when death has closed the
1.   People v. Francisco [G.R. No. L-568 (1947)]: The lips of the defendant in order to discourage perjury
wife testified against her husband after the latter, and protect the estate from fictitious claims [Icard v.
testifying in his own defense, imputed upon her Masigan, G.R. No L-47442 (1947)]
the killing of their little son.
2.   Alvarez v. Ramirez [G.R. No. 143439 (2005)]: The Scope
wife testified against her husband as the first Facts favorable to the deceased are not prohibited
witness of the prosecution. The rule does not operate to exclude testimony
favorable to the deceased because the rule seeks to
Scope of Rule protect his interests [Herrera, citing Go Chi Gun v. Co
The rule also includes utterance as to facts or mere Cho, G.R. No. L-13342 (1962), which cited Jones on
production of documents. It does not only prevent Evidence]
disclosure of matters communicated in nuptial
confidence but is an absolute prohibition against the When the Dead Man’s statute is not applicable
spouse’s testifying to any facts affecting the other 1.   The survivor may testify against the estate of the
however these facts may have been acquired [Herrera] deceased where the latter was guilty of fraud

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

which fraud was established by evidence other Confidential nature of the privilege; to preserve
than the testimony of the survivor [Ong Chua v. marital and domestic relations
C.A.rr, G.R. No. L-29512 (1929))
2.   He may also testify where he was the one sued by Elements
the decedent’s estate since the action then is not 1.   The husband or the wife
against the estate [Tongco v. Vianzon, G.R. No. 2.   During or after the marriage
27498 (1927)) 3.   Cannot be examined
3.   He may likewise testify where the estate had filed 4.   Without the consent of the other
a counterclaim against him or where the estate 5.   As to any communication received in confidence
cross-examined him as to matters occurring by one from the other during the marriage
during the lifetime of the deceased [Goñi v. C.A., [Sec. 24(a), Rule 130]
G.R. No. L-27434 (1986)]
4.   No application to a mere witness Except: Spouse may testify for or against the other
5.   No application to nominal parties, officers and even without the consent of the latter
stockholders against corporations [Lichauco v. 1.   In a civil case by one against the other, or
Atlantic Gulf and Pacific Co., G.R. No. L-2016 2.   In a criminal case for a crime committed by one
(1949)] against the other or the latter’s direct
6.   Cannot be used in a negative testimony descendants or ascendants
[Mendezona v. Vda. De Goitia, G.R. No. L-31739] [Sec. 24(a), Rule 130]
7.   If the defendant did not object
8.   When the party cross-examines the witness [Goni A widow of a victim allegedly murdered may testify as
v. C.A., G.R. No. L-27434 (1986)] to her husband’s dying declaration as to how he died
9.   Where the purpose of the oral testimony is to the since the same was not intended to be confidential
prove a lesser claim than what might be [US v. Antipolo, G.R. No. L-13109 (1918)]
warranted by clear written evidence, to avoid
prejudice to the estate of the deceased [Icard v. Scope: “Any communication”
Marasigan, G.R. No. L-47442 (1941)] Includes utterances, either oral or written, or acts
10.   Agent of the deceased as to transactions or [Herrera]
communications with the deceased or
incompetent person which were made with an When not applicable
agent of such person in cases in which the agent 1.   When the communication was not intended to be
is still alive and competent to testify [Goñi v. C.A., kept in confidence
G.R. No. L-27434 (1986)] 2.   When the communication was made prior to the
marriage
What the Dead Man’s Statute proscribes is the 3.   When the communication was overheard/comes
admission of testimonial evidence upon a claim which into the hands of a third party whether legally or
arose before the death of the deceased. The not [People v. C.A.rlos, G.R. No. 22948 (1925)]
incompetency is confined to the giving of testimony 4.   Waiver of the privilege
[Sanson v. C.A., G.R. No. 127745 (2003)] [Herrera]

Waiver
d.   DQ by Reason of Privileged 1.   Failure of the spouse to object; or
Communications 2.   Calling spouse as witness on cross examination
3.   Any conduct constructed as implied consent.
Privilege [Herrera]
A privilege is a rule of law that, to protect a particular
relationship or interest, either permits a witness to The objection to the competency of the spouse must
refrain from giving testimony he otherwise could be be made when he or she is first offered as a witness.
compelled to give, or permits someone usually one of The incompetency is waived by failure to make a timely
the parties, to prevent the witness from revealing objection to the admission of spouse’s testimony
certain information [Herrera] [People v. Pasensoy, G. R. No. 140634 (2002)]

HUSBAND AND WIFE Marital

Marital Privilege [Sec.
Disqualification [Sec.
Also known as marital privilege 24(a)]
22]
One spouse should be a Neither of the spouses
Rationale party to the case; need to be a party;

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

Applies only if the 7.   When the communication has something to do

Does not cease even
marriage is existing at with a client’s contemplated criminal act [People
after the marriage is
the time the testimony v. Sandiganbayan, G.R. Nos. 115439-41 (1997)]
dissolved; and
is offered; and 8.   When there is a controversy between the client
Constitutes a total Prohibition is limited to and attorney
prohibition on any testimony on [Herrera]
testimony for or against confidential
the spouse of the communications Identity of Client
witness between spouses General rule The attorney-client privilege may not be
invoked to refuse to divulge the identity of the client.
ATTORNEY AND CLIENT
Exceptions:
Elements 1.   When a strong probability exists that revealing
As regards an attorney the name would implicate that person in the very
1.   Without the consent of his client same activity for which he sought the lawyer’s
2.   Cannot be examined as to advice;
a.   Any communication made by the client to 2.   When disclosure would open the client to liability;
him, or 3.   When the name would furnish the only link that
b.   His advice given thereon in the course of, or would form the chain of testimony necessary to
with a view to, professional employment convict
[Sec 24(b), Rule 130] [Regala v. Sandiganbayan, G.R. No. 105938 and G.R.
No. 108113 (1996)]
As regards an attorney’s secretary, stenographer, or
clerk Duration of the privilege
1.   Without the consent of the client and his In the absence of a statute, the privilege is permanent.
employer It may even be claimed by a client’s executor or
2.   Cannot be examined administrator after the client’s death [Herrera]
3.   Concerning any fact the knowledge of which has
been acquired in such capacity PHYSICIAN AND PATIENT
[Sec. 24(b), Rule 130]
Elements
Subject-matter of the privilege 1.   A person authorized to practice medicine, surgery
1.   Communications or obstetrics
2.   Observations by the lawyer (regardless of medium 2.   In a civil case
of transmission which may include oral or written 3.   Without the consent of the patient
words and actions) 4.   Cannot be examined as to
3.   Tangible evidence delivered to a lawyer a.   Any advice or treatment given by him or
4.   Documents entrusted to a lawyer b.   Any information which he may have acquired
[Herrera] in attending such patient in a professional
capacity, which information was necessary to
When not applicable enable him to act in that capacity, and
1.   When the communication made was not for the 5.   Which would blacken the reputation of the patient
purpose of creating relationship (even if [Sec. 24(c), Rule 130]
afterwards he become counsel)
2.   When the communication was intended to be Physician-patient relationship need not be entered
made public into voluntarily.
3.   When the communication was intended to be
communicated to others When not applicable
4.   When the communication was intended for an 1.   Communication was not given in confidence
unlawful purpose 2.   Communication was irrelevant to the professional
5.   When the communication was received from third employment
persons not acting in behalf/as agents of clients 3.   Communication was made for an unlawful
6.   When the communication was made in the purpose
presence of third parties stranger to the attorney- 4.   Communication was intended for the
client relationship commission/concealment of a crime
5.   Communication was intended to be made
public/divulged in court

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

6.   When there was a waiver compelling the physician to testify on privileged

7.   When the doctor was presented as an expert matters he gained while dealing with the patient,
witness and only hypothetical problems were without the latter’s prior consent [Chan v. Chan, G.R.
presented to him [Lim v. C.A., G.R. No. 91114 No. 179786 (2013)]
(1992)]
PRIEST AND PENITENT
Waiver
1.   Express waiver – may only be done by the patient Elements
2.   Implied waiver 1.   A minister or priest
a.   By failing to object 2.   Without the consent of the person making the
b.   When the patient testifies confession
c.   A testator procures an attending doctor to 3.   Cannot be examined as to any
subscribe his will as an attesting witness a.   confession made to or
d.   Disclosure of the privileged information b.   advice given by him
either made or acquiesced by the privilege 4.   in his professional character
holder before trial 5.   in the course of discipline enjoined by the church
e.   Where the patient examines the physician as to which the minister or priest belongs
to matters disclosed in a consultation [Sec. 24(d), Rule 130]
f.   Also check Rule 28 on Mental or Physical
Examination [Rules on Civil Procedure] This disqualification only applies if the confession is
[Herrera] given in the context of penitence [Prof. Avena].

Professional capacity PUBLIC OFFICERS

When the doctor attends to a patient for curative
treatment, or for palliative or preventive treatment Elements
[Herrera] 1.   A public officer
2.   During his term of office or afterwards
Extent of rule 3.   Cannot be examined as to communications made
The privilege extends to communications which have to him in official confidence
been addressed to physician’s assistants or agents 4.   When the court finds that the public interest
[Herrera] would suffer by the disclosure
[Sec. 24(e), Rule 130]
Physician allowed to testify as an expert
A doctor is allowed to be an expert witness when he Elements of “presidential communications
does not disclose anything obtained in the course of privilege”
his examination, interview and treatment of a patient 1.   Must relate to a “quintessential and non-
[Lim v. C.A., G.R. No. 91114 (1992)] delegable presidential power;”
2.   Must be authored or “solicited and received” by a
Autopsical information close advisor of the President or the President
If the information was not acquired by the physician in himself; and
confidence, he may be allowed to testify thereto. But if 3.   Privilege may be overcome by a showing of
the physician performing the autopsy was also the adequate need such that the information sought
deceased’s physician, he cannot be permitted either “likely contains important evidence” and by the
directly or indirectly to disclose facts that came to his unavailability of the information elsewhere [Neri v.
knowledge while treating the living patient [Herrera, Senate, G.R. No. 180643 (2008)]
citing US Case Travelers’ Insurance Co. v. Bergeron]
Purpose
Duration of privilege The privilege is not intended for the protection of
The privilege continues until the death of the patient. public officers but for the protection of the public
It may be waived by the personal representative of the interest. When no public interest would be prejudiced,
decedent [Herrera] this privilege cannot be invoked [Banco Filipino v.
Monetary Board, G.R. No. 70054 (1986)).
Hospital Records during discovery procedure
To allow the disclosure during discovery procedure of
the hospital records would be to allow access to
evidence that is inadmissible without the patient’s
consent. Disclosing them would be the equivalent of

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

Parental and Filial Privilege Rule

Art. 315, Exception: Court or a House/Committee of Congress
Sec. 25, Rule CC finds that such revelation is demanded by security of
Art. 215, FC
130 (repealed the State
by FC)
No Note: This is without prejudice to his liability under the
descendant civil and criminal laws
No person may [R.A. 53, as amended by R.A. 1477]
can be
be compelled to No descendant
compelled,
testify against his shall be 2.   Information in Conciliation Proceedings
in a
1.   Parents compelled, in a All information and statements made at conciliation
criminal
2.   other direct criminal case, to proceedings shall be treated as privileged
case, to
ascendants testify against communications [Art. 233, Labor Code]
testify
3.   children or his parents and
against his
4.   other direct grandparents 3.   Data Privacy Act
parents
descendants Personal information controllers may invoke the
and
ascendants principle of privileged communication over privileged
Except when information that they lawfully control or process.
such testimony Subject to existing laws and regulations, any evidence
is indispensable gathered on privileged information is inadmissible
in a crime [Sec. 15, RA 10173]
1.   against the
NONE descendant NONE 4.   Food and Drug Administration Act
or Prohibits the use of a person to his own advantage, or
2.   by one revealing, other than to the Secretary of Health or
parent officers or employees of the Department of Health or
against the to the courts when relevant in any judicial proceeding
other under this Act, any information acquired under
authority Board of Food Inspection and Board of Food
Applicability and Drug, or concerning any method or process which
The rule is applied to both civil and criminal cases as a trade secret is entitled to protection [Secs. 9, 11 (f)
[Herrera] and 12, RA 3720]

The privilege cannot apply between stepmothers and 5.   TRIPS Agreement

stepchildren because the rule applies only to direct Undisclosed information or trade secrets are
ascendants and descendants, a family tie connected considered privileged communication [Air Phils. Corp.
by a common ancestry. A stepdaughter has no v. Penswell Inc., G.R. No. 172835 (2007)]
common ancestry by her stepmother [Lee v. C.A., G.R.
No. 177861 (2010)] It is protected information if it complies with 3
requisites:
A child can waive the filial privilege and choose to a.   A secret in a sense that it is not generally known
testify against his father. The rule refers to a privilege among or readily accessible to persons within the
not to testify, which can be invoked or waived like other circles that normally deal with the kind of info in
privileges [People v. Invencion y Soriano, G.R. No. question,
131636 (2003)] b.   Has commercial value because it is a secret;
c.   Has been subject to reasonable steps, under the
OTHER PRIVILEGED COMMUNICATION NOT IN circumstances by the person lawfully in control of
THE RULES OF COURT the information, to keep it a secret [Art. 39, TRIPS
Agreement]
1.   Newsman’s Privilege
Electronic Document as Privileged Communication
General rule: Publisher, editor or duly accredited The confidential character of a privileged
reporter of any newspaper, magazine or periodical of communication is not solely on the ground that it is in
general circulation cannot be compelled to reveal the the form of an electronic document [Sec. 3, Rule 3,
source of any news-report or information appearing in Rules on Electronic Evidence]
said publication which was related in confidence to
such publisher, editor or reporter

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

when made; but such evidence must be received

4.  E xamination of a Witness with caution.
[Sec. 16, Rule 132]
Shall be done
a.   in open court, and When part of transaction, writing or record given in
b.   under oath or affirmation. evidence, the remainder admissible.
a.   When part of an act, declaration, conversation,
Answers shall be given orally, unless the writing or record is given in evidence by one party,
a.   witness is incapacitated to speak, or the whole of the same subject may be inquired
b.   question calls for a different mode of answer into by the other
[Sec. 1, Rule 132] b.   When a detached act, declaration, conversation,
writing or record is given in evidence, any other
Proceedings to be recorded, including act, declaration, conversation, writing or record
a.   the questions propounded to a witness and his necessary to its understanding may also be given
answers thereto in evidence
b.   the statements made by the judge or any of the [Sec. 17, Rule 132]
parties, counsel, or witnesses with reference to
the case Right to inspect writing shown to witness
by means of shorthand or stenotype or by other Whenever a writing is shown to a witness, it may be
means of recording found suitable by the court inspected by the adverse party [Sec. 18, Rule 132]
[Sec. 2, Rule 132]

Transcript deemed prima facie correct a.   Judicial Affidavit Rule [A.M.

A transcript of the record of the proceedings made by 12-8-8-SC]
the official stenographer, stenotypist or recorder and
certified as correct by him shall be deemed prima facie SCOPE AND WHERE APPLICABLE
a correct statement of such proceedings [Sec. 2, Rule
132] Where Applicable
Applies to all actions and proceedings, and incidents
Exclusion and separation of witnesses requiring the reception of evidence before:
The judge may 1.   Courts (but not to small claims cases)
a.   On any trial or hearing, exclude from the court any 2.   Investigating officers and bodies authorized by
witness not at the time under examination, so that the SC to receive evidence, including the IBP
he may not hear the testimony of other witnesses 3.   Quasi-judicial bodies, whose rules of procedure
b.   Cause witnesses to be kept separate and to be are subject to disapproval of the Supreme Court,
prevented from conversing with one another until insofar as their existing rules of procedure
all shall have been examined contravene the provisions of this Rule
[Sec. 15, Rule 132] [Sec. 1]
When witness may refer to memorandum Submission of Judicial Affidavits and Exhibits in
a.   A witness may be allowed to refresh his memory Lieu of Direct Testimonies
respecting a fact 1.   The parties shall file with the court and serve on
1.   by anything written or recorded the adverse party, personally or by licensed
2.   by himself or under his direction courier service, not later than five days before pre-
3.   at the time when the fact occurred, or trial or preliminary conference or the scheduled
immediately thereafter, or at any other time hearing with respect to motions and incidents, the
when the fact was fresh in his memory and following
4.   he knew that the same was correctly written a.   The judicial affidavits of their witnesses,
or recorded which shall take the place of such witnesses'
5.   the writing or record must be produced and direct testimonies; and
may be inspected by the adverse party, who b.   The parties' documentary or object evidence,
may, if he chooses, cross-examine the witness if any, shall be marked and attached to the
upon it, and may read it in evidence. judicial affidavits
b.   A witness may also testify from such a writing or 2.   Should a party or a witness desire to keep the
record, though he retain no recollection of the original document or object evidence in his
particular facts, if he is able to swear that the possession, he may, after the same has been
writing or record correctly stated the transaction identified, marked as exhibit, and authenticated,

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

warrant in his judicial affidavit that the copy or A false attestation shall subject the lawyer mentioned
reproduction attached to such affidavit is a to disciplinary action, including disbarment.
faithful copy or reproduction of that original. In [Sec. 4]
addition, the party or witness shall bring the
original document or object evidence for PROCEDURE
comparison during the preliminary conference
with the attached copy, reproduction, or pictures, Offer of and objections to testimony in judicial
failing which the latter shall not be admitted. This affidavit
is without prejudice to the introduction of 1.   The party presenting the judicial affidavit of his
secondary evidence in place of the original when witness in place of direct testimony shall state the
allowed by existing rules. purpose of such testin1ony at the start of the
[Sec. 2] presentation of the witness.
2.   The adverse party may move to disqualify the
CONTENTS AND PROCEDURE witness or to strike out his affidavit or any of the
answers found in it on ground of inadmissibility.
Contents 3.   The court shall promptly rule on the motion and,
Shall be prepared in the language known to the if granted, shall cause the marking of any
witness and, if not in English or Filipino, accompanied excluded answer by placing it in brackets under
by a translation in English or Filipino [Sec. 3] the initials of an authorized court personnel,
without prejudice to a tender of excluded evidence
1.   The name, age, residence or business address, under Section 40 of Rule 132 of the Rules of Court.
and occupation of the witness [Sec. 6]
2.   The name and address of the lawyer who
conducts or supervises the examination of the Examination of the witness on his judicial affidavit
witness and the place where the examination is 1.   The adverse party shall have the right to cross-
being held examine the witness on his judicial affidavit and
3.   A statement that the witness is answering the on the exhibits attached to the same.
questions asked of him, fully conscious that he 2.   The party who presents the witness may also
does so under oath, and that he may face criminal examine him as on re-direct.
liability for false testimony or perjury 3.   In every case, the court shall take active part in
4.   Questions asked of the witness and his examining the witness to determine his credibility
corresponding answers, consecutively numbered, as well as the truuth of his testimony and to elicit
that the answers that it needs for resolving the issues.
a.   Show the circumstances under which the [Sec. 7]
witness acquired the facts upon which he
testifies Oral offer of and objections to exhibits
b.   Elicit from him those facts which are relevant 1.   Upon the termination of the testimony of his last
to the issues that the case presents; and witness, a party shall immediately make an oral
c.   Identify the attached documentary and object offer of evidence of his documentary or object
evidence and establish their authenticity in exhibits, piece by piece, in their chronological
accordance with the Rules of Court order, stating the purpose or purposes for which
5.   The signature of the witness over his printed name he offers the particular exhibit.
6.   A jurat with the signature of the notary public who 2.   After each piece of exhibit is offered, the adverse
administers the oath or an officer who is authorized party shall state the legal ground for his objection,
by law to administer the same if any, to its admission, and the court shall
[Sec. 3] immediately make its ruling respecting that
7.   A sworn attestation at the end, executed by the exhibit.
lawyer who conducted or supervised the 3.   Since the documentary or object exhibits form
examination of the witness, to the effect that: part of the judicial affidavits that describe and
a.   He faithfully recorded or caused to be authenticate them, it is sufficient that sucfl
recorded the questions he asked and the exhibits are simply cited by their n1arkings during
corresponding answers that the witness gave; the offers, the objections, and the rulings,
and dispensing with the description of each exhibit.
b.   Neither he nor any other person then present [Sec. 8]
or assisting him coached the witness
regarding the latter's answers.

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

APPLICATION TO CRIMINAL ACTIONS Deemed to have waived his

Counsel’s failure to client’s right to cross-
This Judicial Affidavit Rule shall apply to all criminal appear examine the witnesses there
actions: present
1.   Where the maximum of the imposable penalty Judicial affidavit cannot be
does not exceed six years; admitted as evidence
2.   Where the accused agrees to the use of judicial
affidavits, irrespective of the penalty involved; or The court may, however,
3.   With respect to the civil aspect of the actions, allow only once the
whatever the penalties involved are subsequent submission of
[Sec. 9] Non-compliance
the conmliant replacement
with content and
affidavitsbefore the hearing
Procedure attestation
or trial provided
1.   The prosecution shall submit the judicial requirements
1.   the delay (a) is for a valid
affidavits of its witnesses not later than five days reason, (b) would not
before the pre-trial, serving copies ·of the sarne prejudice the opposing
upon the accused. party and
2.   The complainant or public prosecutor shall attach 2.   the defaulting party pays
to the affidavits such documentary or object a fine.
evidence as he may have, marking them as [Sec. 10]
Exhibits A, B, C, and so on.
3.   No further judicial affidavit, documentary, or Issuance of Subpoena
object evidence shall be admitted at the trial. If the government employee or official, or the
4.   If the accused desires to be heard on his defense requested witness, who is neither the witness of the
after receipt of the judicial affidavits of the adverse party nor a hostile witness, unjustifiably
prosecution, he shall have the option to submit his declines to execute a judicial affidavit or refuses
judicial affidavit as well as those of his witnesses without just cause to make the relevant books,
to the court within ten days fron1 receipt of such documents, or other things under his control available
affidavits and serve a copy of each on the public for copying, authentication, and eventual production
and private prosecutor, including his in court, the requesting party may avail himself of the
documentary and object evidence previously issuance of a subpoena ad testificandum or duces
marked as Exhibits 1, 2, 3, and so on. These tecum under Rule 21 of the Rules of Court. The rules
affidavits shall serve as direct testimonies of the governing the issuance of a subpoena to the witness in
accused and his witnesses when they appear this case shall be the same as when taking his
before the court to testify. deposition except that the taking of a judicial affidavit
[Sec. 9] shall be understood to be ex parte [Sec. 5]

EFFECT OF NON-COMPLIANCE Adverse party witnesses and hostile witnesses are

excluded since they are not covered by Sec. 5 [Tam v.
Non-compliant China Banking Corporation, G.R. No. 214054 (2015)]
Consequence
behavior
Deemed to have waived their EFFECT ON OTHER RULES
submission
The provisions of the Rules of Court and other rules of
Note: Court may allow, only procedure in the investigative or quasi-judicial bodies
once late submission, covered by this rule are repealed or modified insofar as
Party’s failure to provided these are inconsistent with the provisions of this Rule
submit 1.   the delay (a) is for a valid [Sec. 11]
reason, (b) would not
prejudice the opposing
party and
5.  R ights and Obligations of
2.   the defaulting party pays a Witness
a fine.
Witness’ failure to Obligation
Affidavit shall not be To answer questions, although his answer may tend to
appear at the
considered by the court establish a claim against him.
scheduled hearing

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

Rights testimony. This is an essential element of due process

1.   To be protected from irrelevant, improper, or [Herrera, citing Alford v. US (1931)]
insulting questions, and from harsh or insulting
demeanor The right to cross-examine under the constitution is
2.   Not to be detained longer than the interests of superior to technical rules on evidence [Herrera, citing
justice require People v. Valero, G.R. No. L-45283-84 (1982)]
3.   Not to be examined except only as to matters
pertinent to the issue Partial cross-examination is sufficient where the
4.   Not to give an answer which will tend to subject witness was cross-examined on material points, and
him to a penalty for an offense unless otherwise full cross-examination was not due to prosecutors’
provided by law fault but that of the defense who repeatedly moved for
postponement, direct examination cannot be thrown
Example of this right: Sec. 8, R.A. 1379 and other off the case [Herrera, citing People v. Caparas, G.R. No.
immunity statutes which grant the witness L-47411 (1981)]
immunity from criminal prosecution for offenses
admitted Effect of denial of right to cross-examine
5.   Not to give an answer which will tend to degrade Most courts require that the testimony given on direct
his reputation, unless it to be the very fact at issue examination be stricken off – provided the
or to a fact from which the fact in issue would be unavailability of the witness is through no fault of the
presumed. But a witness must answer to the fact party seeking to cross-examine [Herrera]
of his previous final conviction for an offense
[Sec. 3, Rule 132] Cross-examination must be completed or finished.
When cross-examination is not and cannot be done or
One-Day Examination of Witness Rule completed due to causes attributable to the party
A witness has to be fully examined in one (1) day only. offering the witness, the uncompleted testimony is
It shall be strictly adhered to subject to the courts' thereby rendered incompetent [Herrera, citing Ortigas,
discretion during trial on whether or not to extend the Jr. v. Lufthansa German Airlines, G.R. No. L-28773
direct and/or cross-examination for justifiable reasons (1975)]
[A.M. No. 03-1-09-SC]
c.   Re-Direct Examination
6.  O rder of Examination of
The witness may be re-examined by the party calling
an Individual Witness him, to explain or supplement his answers given
during the cross-examination. Questions on matters
a.   Direct Examination not dealt with during the cross-examination, may be
allowed by the court in its discretion [Sec. 7, Rule 132]
Examination-in-chief of a witness by the party
presenting him on the facts relevant to the issue [Sec. d.   Re-Cross Examination
5, Rule 132]
The adverse party may re-cross-examine the witness
b.   Cross-Examination on matters stated in his re-direct examination, and
also on such other matters as may be allowed by the
The witness may be cross-examined by the adverse court in its discretion [Sec. 8, Rule 132]
party as to any matters stated in the direct
examination, or connected therewith, with sufficient e.   Recalling the Witness
fullness and freedom
1.   to test his accuracy and truthfulness and freedom After the examination of a witness by both sides has
from interest or bias, or the reverse, and been concluded, the witness cannot be recalled
2.   to elicit all important facts bearing upon the issue without leave of the court. The court will grant or
[Sec. 6, Rule 132] withhold leave in its discretion, as the interests of
justice may required [Sec. 9, Rule 132]
Right to cross-examination
Cross-examination is the most reliable and effective Why conducted
way known of testing the credibility and accuracy of 1.   Particularly identified material points were not
covered in cross-examination

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U.P. LAW BOC EVIDENCE REMEDIAL LAW

2.   Particularly described vital documents were not party, but such cross-examination must only be on the
presented to the witness subject matter of his examination-in-chief.
3.   Cross-examination was conducted in so inept a [Sec. 12, Rule 132]
manner as to result in a virtual absence thereof
[People v. Rivera, G.R. No. 98376 (1991)]
8.  M ethods of Impeaching an
7.  Leading and Misleading Adverse Party’s Witness
Questions a.   By contradictory evidence;
b.   By evidence that his general reputation for truth,
Leading question: A question which suggests to the honesty or integrity is bad;
witness the answer which the examining party c.   By evidence that he has made at other times
statements inconsistent with his present
General rule: Not allowed testimony

Except: But NOT by evidence of particular wrongful acts,

a.   On cross examination; EXCEPT that it may be shown by the examination of
b.   On preliminary matters; the witness, or the record of the judgment, that he has
c.   When there is difficulty in getting direct and been convicted of an offense
intelligible answers from a witness who is [Sec. 11, Rule 132]
ignorant, or a child of tender years, or is of feeble
mind, or a deaf-mute;
d.   Of an unwilling or hostile witness; or
9.  H ow the Witness is
e.   Of a witness who is an adverse party or an officer, Impeached by Evidence of
director, or managing agent of a public or private
corporation or of a partnership or association Inconsistent Statements
which is an adverse party (Laying the Predicate)
[Sec. 10, Rule 132]
a.   The statements must be related to him, with the
Misleading question: One which assumes as true a circumstances of the times and places and the
fact not yet testified to by the witness, or contrary to persons present, and
that which he has previously stated. It is not allowed b.   He must be asked whether he made such
[Sec. 10, Rule 132] statements, and if so, allowed to explain them.
c.   If the statements be in writing they must be shown
When witness considered unwilling or hostile to the witness before any question is put to him
Only if so declared by the court upon adequate concerning them
showing of his [Sec. 13, Rule 132]
a.   adverse interest
b.   unjustified reluctance to testify, or
c.   having misled the party into calling him to the 10.  Evidence of the Good
witness stand
[Sec. 12, Rule 132]
Character of a Witness
Party may not impeach his own witness NOT admissible until such character has been
EXCEPT with respect to impeached [Sec. 14, Rule 132]
a.   An unwilling or hostile witness; or
b.   A witness who is an adverse party or an officer, Because a witness is presumed to be truthful and of
director, or managing agent of a public or private good character, the party presenting him does not
corporation or of a partnership or association have to prove he is good because he is presumed to be
which is an adverse party good.

How impeached: The unwilling or hostile witness so 11.  Admissions and

declared, or the witness who is an adverse party, may
be impeached by the party presenting him in all Confessions
respects as if he had been called by the adverse party,
except by evidence of his bad character. He may also
be impeached and cross-examined by the adverse

Page 402 of 438

U.P. LAW BOC EVIDENCE REMEDIAL LAW

a.   Res Inter Alios Acta Rule No man would make any declaration against himself
unless it is true [Republic v. Bautista, G.R. No. 169801
Things done between strangers ought not to injure (2007)]
those who are not parties to them [Black’s Law
Dictionary] Admission Must be Made in Context
It is a rule that a statement is not competent as an
Two Branches admission where it does not, under reasonable
1.   First branch: Admission by a third party [Sec. 28, construction, appear to admit or acknowledge the fact
Rule 130] which is sought to be proved by it [CMS Logging, Inc.
2.   Second branch: Similar acts as evidence [Sec. 34, v. C.A., G.R. No. L-41420 (1992)]
Rule 130]
[2 Regalado 758, 774, 2008 Ed.] Lacbayan v. Samoy, Jr. [G.R. No. 165427 (2011)]:
Issue: WON a Partition Agreement between partners
having an extramarital affair is an admission against
b.   Admission by a Party interest such that a party to it who admitted the
existence of co-ownership can no longer assail the
Elements agreement.
1.   The act, declaration or omission Held: No. The question on the Partition Agreement
2.   Of a party indicates a question of law to determine whether the
3.   As to a relevant fact parties have the right to freely divide among
[Sec. 26, Rule 130] themselves the subject properties. An admission must
4.   Against his interest (Sec. 26, Rule 130 states “may involve matters of fact and not of law.
be given in evidence against him”)
5.   Made out of court (Those made in court are Judicial and Extrajudicial Admissions
governed by Sec. 4, Rule 129.) [2 Regalado 754, Judicial Extrajudicial
2008 Ed.] Made in connection
6.   Offered and presented in court in an admissible with a judicial Any other admission
manner (e.g. non-hearsay) proceeding in which it is [Secs. 26 and 32, Rule
offered [Sec. 4, Rule 130]
EXTRAJUDICIAL ADMISSIONS 129]
Any statement of fact made by a party against his Must still be formally
interest or unfavorable to the conclusion for which he offered in evidence
contends or is inconsistent with the facts alleged by Does not require proof
(Note language of Sec.
him. [2 Regalado 754, 2008 Ed., citing 31 C.J.S. 1022] [Sec. 4, Rule 129]
26, Rule 130: “may be
given in evidence”)
A statement by the accused, direct or implied, of facts May be conclusive
pertinent to the issue, and tending in connection with unless contradicted Rebuttable
proof of other facts, to prove his guilt [People v. [Sec. 4, Rule 129]
Lorenzo, G.R. No. 110107 (1995)] May be written, oral express or implied [Sec. 4,
Rule 129; Sec. 26, Rule 130]
Requisites for Admissibility
1.   They must involve matters of fact;
2.   They must be categorical and definite; c.   Admission by a Third Party
3.   They must be knowingly and voluntarily made;
and General rule: The rights of a party cannot be prejudiced
4.   Is adverse to admitter’s interests by an act, declaration, or omission of another [Sec. 28,
[2 Regalado 754, 2008 Ed.] Rule 130]

Effect of an Admission Admission by a third party is inadmissible as against

It may be given in evidence against the admitter [Sec. another. The act, declaration or omission of another is
26, Rule 130] generally irrelevant, and that in justice, a person
should not be bound by the acts of mere unauthorized
Flight from justice is an admission by conduct and strangers
circumstantial evidence of consciousness of guilt [US
v. Sarikala, G.R. No. L-12988 (1918)] The rule is well-settled that a party is not bound by any
agreement of which he has no knowledge and to which
Rationale he has not given his consent and that his rights cannot

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be prejudiced by the declaration, act or omission of The word “joint” must be construed according to its
another, except by virtue of a particular relation meaning in the common law system, that is, in solidum
between them for the whole [Jaucian v. Querol, G.R. No. L-11307
(1918)]
Exceptions:
1.   Partner’s or Agent’s Admission [Sec. 29, Rule 130] A mere community of interests between several
2.   Admission by conspirator [Sec. 30, Rule 130] persons is not sufficient to make the admissions of one
3.   Admission by privies [Sec. 31, Rule 130] admissible against all [Herrera]

Basis of exception Just like in partnership and agency, the interest must
A third party may be so united in interest with the be a subsisting one unless for the admission to be
party-opponent that the other person’s admissions admissible [Herrera]
may be receivable against the party himself. The term
“privy” is the orthodox catchword for the relation.
e.   Admission by a Conspirator
d.   Admission by a Co-Partner or Requisites for Admissibility
Agent 1.   The act or declaration
2.   Of a conspirator
Requisites for Admissibility 3.   Relating to the conspiracy and during its
1.   The act or declaration existence,
2.   Of a partner or agent of the party 4.   May be given in evidence against the co-
3.   Within the scope of his authority conspirator
4.   During the existence of the partnership or agency, 5.   After the conspiracy is shown by evidence other
5.   May be given in evidence against such party than such act or declaration
6.   After the partnership or agency is shown by [Sec. 30, Rule 130]
evidence other than such act or declaration
[Sec. 29, Rule 130] An exception to the res inter alios acta rule is an
admission made by a conspirator under Sec. 30, Rule
This rule also applies to the act or declaration of a joint 130. This provision states that the act or declaration of
owner, joint debtor, or other persons jointly interested a conspirator relating to the conspiracy, and during its
with the party [Sec. 29, Rule 130] existence, may be given in evidence against the co-
conspirator after the conspiracy is shown by evidence
Statements made after partnership is dissolved other than such act or declaration [People v. Cachuela,
As a rule, statements made after the partnership has G.R. No. 191752 (2013)]
been dissolved do not fall within the exception, but
where the admissions are made in connection with Existence of the conspiracy may be inferred from acts
the winding up of the partnership affairs, said of the accused [People v. Belen, G.R. No. L-13895
admissions are still admissible as the partner is acting (1963)).
as an agent of his co-partners in said winding up [2
Regalado 759, 2008 Ed.] Applies only to extra-judicial statements, not to
testimony given on the stand [People v. Serrano, G.R.
Admissions by counsel No. L-7973 (1959)] or at trial where the party adversely
Admissions by counsel are admissible against the affected has the opportunity to cross-examine [People
client as the former acts in representation and as an v. Palijon, G.R. No. 123545 (2000]
agent of the client, subject to the limitation that the
same should not amount to a compromise [Sec. 23, As regards extrajudicial admissions AFTER
Rule 138] or confession of judgment [Acenas, et al. v. termination of conspiracy, BEFORE trial
Sison, et al., G.R. No. L-17011 (1963)] General rule: Not admissible [People v. Badilla, G.R. No.
23792 (1926); People v. Yatco, G.R. No. L-9181 (1955)]
Joint interests
1.   The joint interest must be first made to appear by Exceptions:
evidence other than the admission itself 1.   Made in the presence of the co-conspirator who
2.   The admission must relate to the subject-matter expressly/impliedly agreed (tacit admission)
of joint interest [Herrera] 2.   Facts in admission are confirmed in the
independent extrajudicial confessions made by

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the co-conspirators after apprehension [People v. g.   Admission by Silence

Badilla, G.R. No. 23792 (1926)]
3.   As a circumstance to determine credibility of a Requisites: When silence is deemed an admission
witness [People v. Narciso, G.R. No. L-24484 1.   Person heard or understood the statement;
(1968)] 2.   That he was at a liberty to make a denial;
4.   Circumstantial evidence to show the probability of 3.   That the statement was about a matter affecting
the latter’s participation his rights or in which he was interested and which
[2 Regalado 761, 2008 Ed.] naturally calls for a response;
4.   That the facts were within his knowledge; and
Doctrine of interlocking confessions 5.   That the fact admitted from his silence is material
Extrajudicial statements of co-accused may be taken to the issue
as circumstantial evidence against the person [People v. Paragsa, G.R. No. L-44060 (1978); Sec. 32,
implicated to show the probability of the latter’s Rule 130]
actual participation, provided that the statements are
made by several accused are: This rule applies even when a person was surprised in
1.   Made without collusion the act [US v. Bay, G.R. No. 9341 (1914)] or even if he
2.   Identical with each other in their essential details; was already in the custody of the police [People v.
3.   Corroborated by other evidence on record Ancheta, G.R. No. 143935 (2004)]
[People v. Molleda, G.R. No. L-34248 (1978), People v.
Tuniaco, G.R. No. 185710 (2010)] When not applicable
1.   Statements adverse to the party were made in the
Applicable to extrajudicial statements course of an official investigation [U.S. v. De la
The evidence adduced in court by the conspirators as Cruz, G.R. No. 4740 (1908)], as where he was
witnesses are not declarations of conspirators, but pointed out in the course of a custodial
direct testimony to the acts to which they testify. This investigation and was neither asked to reply nor
is applicable only when it is sought to introduce comment on such imputations [People v. Alegre,
extrajudicial declarations and statements of the co- G.R. No. L-30423 (1979)]
conspirators [Herrera, citing People v. Vizcarra, G.R. 2.   Party had justifiable reason to remain silent, e.g.
No. L-38859 (1982)] acting on advice of counsel
[2 Regalado 763, 2008 Ed.]
f.   Admission by Privies
Failure to file a comment
Privies Respondent’s failure to file a comment despite all the
Persons who are partakers or have an interest in any opportunities afforded him constituted a waiver of his
action or thing, or any relation to another [Riano 262, right to defend himself. In the natural order of things,
2016 Ed., citing Black’s Law Dictionary] a man would resist an unfounded claim or imputation
against him. It is generally contrary to human nature
It denotes the idea of succession, not only be right of to remain silent and say nothing in the face of false
heirship and testamentary legacy, but also that of accusations. As such, respondents silence may be
succession by singular title, derived from acts inter construed as an implied admission and
vivos, and for special purposes. (example: assignee of acknowledgement of the veracity of the allegations
a credit and one subrogated to it are privies.) [Alpuerto against him [OCA v. Amor, A.M. No. RTJ-08-2140
v. Perez Pastor and Roa, G.R. No. L-12794 (1918)] (2014)]

Requisites for Admissibility h.   Confessions

1.   One derives title to property from another
2.   The act, declaration, or omission The declaration of an accused acknowledging his guilt
a.   of the latter (the person from whom title is of the offense charged, or of any offense necessarily
derived) included therein, may be given in evidence against him
b.   while holding the title [Sec. 33, Rule 130]
c.   in relation to the property
3.   is evidence against the former (one who derives An acknowledgment in express words or terms, by a
title from another) party in a criminal case, of his guilt of the crime
[Sec. 31, Rule 130] charged [People v. Lorenzo, G.R. No. 110107 (1995)]

Requisites

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1.   Express and categorical acknowledgement of Substance of the crime; the fact that a crime has
guilt [U.S. v. Corrales, G.R. No. 9230 (1914)] actually been committed [People v. De Leon, G.R. No.
2.   Facts admitted constitutes a criminal offense 180762 (2009)]
[U.S. v. Flores, G.R. No. 9014 (1913)]
3.   Given voluntarily [People v Nishishima, G.R. No. As Distinguished from Admissions of a Party
35122 (1932)] Admission of a Party Confession
4.   Intelligently made [Bilaan v Cusi, G.R. No. L-18179 Acknowledgment of
(1962)], realizing the importance or legal A statement of fact [2
guilt or liability [2
significance of the act [U.S. v. Agatea, G.R. No. Regalado 754, 2008
Regalado 754, 2008
15177 (1919)] Ed.]
Ed.]
5.   No violation of Secs. 12 and 17, Art. III of the Maybe express or tacit Must be express [2
Constitution [2 Regalado 754, 2008 Regalado 754, 2008
[2 Regalado 765, 2008 Ed.] Ed.] Ed.]
Maybe made by 3rd Can be made only by
If the accused admits having committed the act in parties, and in certain the party himself, and
question but alleges a justification therefore, the same cases, admissible admissible against his
is merely an admission [Ladiana v. People, G.R. No. against a party [2 co-accused in some
144293 (2002)] Regalado 754, 2008 instances [2 Regalado
Ed.] 754, 2008 Ed.]
Any confession, including a re-enactment, without Acts, declarations or
admonition of the right to silence and to counsel, and Declarations [Sec. 33,
omissions [Sec. 26,
without counsel chosen by the accused is inadmissible Rule 130]
Rule 130]
in evidence [People v. Yip Wai Ming, G.R. No. 120959 May be in any
(1996)] proceeding
Criminal case (Sec. 33,
[T]he basic test for the validity of a confession is – was (Sec. 26, Rule 130 refers Rule 130 refers to
it voluntarily and freely made. The term "voluntary" to a party without “accused”)
means that the accused speaks of his free will and distinction as to nature
accord, without inducement of any kind, and with a full of proceeding)
and complete knowledge of the nature and
consequences of the confession, and when the
speaking is so free from influences affecting the will of i.   Similar Acts as Evidence
the accused, at the time the confession was made, that
it renders it admissible in evidence against General rule: Evidence that one did or did not do a
him. Plainly, the admissibility of a confession in certain thing at one time is not admissible to prove
evidence hinges on its voluntariness [People v. Satorre, that he did or did not do the same or similar thing at
G.R. No. 133858 (2003)] another time

An extrajudicial confession may be given in evidence Exceptions: Said evidence may be received to prove a
against the confessant but not against his co-accused 1.   specific intent or knowledge
(since) they are deprived of the opportunity to cross- 2.   identity
examine him. A judicial confession is admissible 3.   plan, system, or scheme
against the declarant’s co-accused since the latter are 4.   habit
afforded the opportunity to cross-examine the former 5.   custom or usage and the like
[People v. Palijon, G.R. No. 123545 (2000), cited in [Sec. 34, Rule 130]
People v. Janjalani, G.R. No. 188314 (2011)]
2nd Branch of res inter alios acta rule [2 Regalado 774,
Effect of Extrajudicial Confession of Guilt 2008 Ed.]
General rule: An extrajudicial confession made by an
accused, shall not a sufficient ground for conviction Reason for General Rule
The rule is founded upon reason, justice and judicial
Exception: When corroborated by evidence of corpus convenience. The lone fact that a person committed
delicti the same or similar act at some prior time affords, as
[Sec. 3, Rule 133] a general rule, no logical guaranty that he committed
the act in question. A man’s mind and even his modes
Corpus Delicti of life may change; and objectively, the conditions
which he may find himself at a given time make

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likewise change and induce him to act a different way Repeated failure to cross-examine is an implied waiver
[Herrera, citing Moran] [Savory Luncheonette v. Lakas ng Manggagawang
Pilipino, G.R. No. L-38964 (1975)]
Metrobank v. Custodio [G.R. No. 173780 (2011)]:
Facts: Respondent was accused of being responsible
for cash shortage in the bank’s Laoag branch.
b.   Reason for Exclusion of
Metrobank argued that respondent Custodio’s prior Hearsay Evidence
involvement in a cash shortage in its Cubao branch is
admissible as evidence to prove a scheme or habit on The underlying rule against hearsay are serious
her part. concerns about the worth (trustworthiness, reliability)
Held: Respondent’s prior involvement in a cash of hearsay evidence. Because such evidence:
shortage in the bank’s Cubao branch does not 1.   was not given under oath or solemn affirmation;
conclusively prove that she is responsible for the loss and
of PhP600,000 in the Laoag City branch, subject of 2.   was not subject to cross-examination by opposing
the instant case. If the prior cash shortage in Cubao counsel to test the perception, memory, veracity
showed a reasonable intent or habit on her part, then and articulateness of out-of-court declarant or
there was no reason for Metrobank to continue to actor upon whose reliability on which the worth of
employ her, considering the degree of trust and the out-of-court testimony depends
confidence required of a bank teller. Nevertheless, [Herrera]
Custodio continued to serve the bank even after the
case in petitioner Metrobank’s Cubao branch. Jurisprudence instructs that evidence of statement
made or a testimony is hearsay if offered against a
party who has no opportunity to cross-examine the
12.  H earsay Rule witness. Hearsay evidence is excluded precisely
because the party against whom it is presented is
a.   Meaning of Hearsay deprived of or is bereft of opportunity to cross-examine
the persons to whom the statements or writings are
It is an out-of-court statement which is offered by the attributed [Philippines Free Press v. C.A., G.R. No.
witness in court to prove the truth of the matters 132864 (2005)]
asserted by the statement
c.   Exceptions to the hearsay rule
It is any evidence, whether oral or documentary, if its
probative value is not based on personal knowledge of 1.   Dying declaration
witness but on knowledge of some other person not on 2.   Declaration against interest
witness stand [2 Regalado 776, 2008 Ed.] 3.   Act or declaration about pedigree
4.   Family reputation or tradition regarding pedigree
Elements 5.   Common reputation
1.   Declarant is out of court 6.   Part of the res gestae
2.   Out of court declaration is offered as proof of its 7.   Entries in the course of business
contents 8.   Entries in official records
3.   Absence of opportunity for cross-examination 9.   Commercial lists and the like
10.   Learned treaties
General Rule on Hearsay 11.   Testimony or deposition at a former trial
A witness can testify only as to those facts which he
knows of his personal knowledge, that is, which are DYING DECLARATION
derived from his own perception [Sec. 36, Rule 130]
Also known as “antemortem statement” or
The hearsay rule is not limited to oral testimony or “statement in articulo mortis” [People v. Mendoza, G.R.
statements; it applies to written, as well as oral No. 142654 (2001)]
statements [Consunji v. C.A., G.R. No. 137873 (2001)]
Requisites for Admissibility
If a party does not object to hearsay evidence, the a.   Declaration of a dying person
same is admissible, as a party can waive his right to b.   Declaration was made under the consciousness of
cross-examine [People v. Ola, G.R. No. L-47147 (1987)] an impending death
c.   Declaration may be received in any case wherein
his death is the subject of inquiry, as evidence of

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the cause and surrounding circumstances of such However, the Court appreciated the testimony as part
death of res gestae. Conviction of accused was sustained.
[Sec. 37, Rule 130]
d.   Declarant is competent as a witness had he Objections to the dying declaration
survived [Geraldo v People, G.R. No. 173608 May be premised on any of the requisites for its
(2008)); and admissibility embodied in Sec. 37, Rule 130. Counsel
e.   Declarant should have died [People v. Macandog, who wants a dying declaration excluded must have to
G.R. No. 129534 and 1411691 (2001)] deal with the primary question of whether or not the
evidentiary foundations for the introduction where
Rationale for Admissibility met [Riano 302, 2016 Ed.]
As a general rule, when a person is at the point of
death, every motive to falsehood is silenced [People v Dying declarations are admissible in favor of the
Bacunawa, G.R. No. 136859 (2001)] defendant as well as against him [US v. Antipolo, 37
Phil. 726 (1918)]
The law considers the point of death as a situation so
solemn and awful as creating an obligation equal to DECLARATION AGAINST INTEREST
that which is imposed by an oath administered by the
court. [People v. Cerilla, G.R. No. 177147 (2007)] Requisites for Admissibility
a.   Declarant is dead or unable to testify;
The foreboding may be gleaned from surrounding b.   Declaration relates to a fact against the interest of
circumstances, such as the nature of the declarant’s the declarant;
injury and conduct that would justify a conclusion that c.   At the time he made said declaration, declarant
there was consciousness of impending death [People was aware that the same was contrary to his
v. Latayada, G.R. No. 146865 (2004)] interest; and
d.   Declarant had no motive to falsify and believed
The admissibility of an ante mortem declaration is not such declaration to be true [Sec. 38, Rule 130]
affected by the fact that the declarant died hours or
several days after making his declaration. It is Inability to testify means that the person is dead,
sufficient that he believe himself in imminent danger mentally incapacitated or physically incompetent.
of death at the time of such declaration [Herrera, citing Mere absence from the jurisdiction does not make him
People v. Ericta 77 SCRA 199] ipso facto unavailable. [Fuentes v. C.A., G.R. No.
111692 (1996)]
People v. Quisayas [G.R. No. 198022 (2014)]:
Facts: Victim Januario was stabbed by respondents on Declaration against interest made by the deceased, or
his way home. Policemen patrolling the area saw by one unable to testify, is admissible even against the
Januario lying on the street. He was brought by the declarant’s successors-in-interest or even against
policemen to the hospital. While in the vehicle, the third persons [Sec. 38, Rule 130]
police asked him who hurt him. He answered that it
was the respondents. He eventually died because of Actual or real interest
the stab wounds. It is essential that at the time of the statement, the
Issue: WON the testimony of the accused was a dying declarant’s interest affected thereby should be actual,
declaration. real or apparent, not merely contingent, future or,
Held: No. It does not appear that the declarant was conditional; otherwise the declaration would not in
under the consciousness of his impending death when reality be against interest. (example: declarations
he made the statements. No questions relative to the regarding a declarant’s inheritance are not admissible
second requisite was propounded to Januario. The rule because these are future interests) [Herrera]
is that, in order to make a dying declaration
admissible, a fixed belief in inevitable and imminent Admissible against third persons
death must be entered by the declarant. It is the belief If all the requisites for admission of a declaration
in impending death and not the rapid succession of against interest are present, the admission is
death in point of fact that renders a dying declaration admissible not only against the declarant but against
admissible. The test is whether the declarant has third persons [Herrera, citing Viacrusis v. C.A., 44 SCRA
abandoned all hopes of survival and looked on death 176]
as certainly impending. Thus, the utterances made by
Januario could not be considered as a dying
declaration.

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As Distinguished from Admissions Exception: The general rule does not apply where the
Declaration against claim is sought to reach the estate of the declarant
Admission by a party
Interest [Sec. 38, Rule himself, and not merely to establish a right through his
[Sec. 26, Rule 130]
130] declarations to the property of some other member of
Admitter is a party Declarant is neither a the family [Tison v. C.A., G.R. No. 121027 (1997)]
himself, or in privity party nor in privity with
with such party a party Pedigree declaration by conduct
Admissible whether or Admissible only when This rule may also consist of proof of acts or conduct
not admitter is declarant is unavailable of relatives and the mode of treatment in the family of
available as a witness as a witness one whose parentage is in question [Herrera 649]
Can be made any time, Must have been made
even during trial ante litem motam Not applicable to adoption
Admissible only against Admissible even The rule allowing proof of pedigree is not applicable to
the admitter against 3rd persons adoption. The absence of proof of an order of adoption
Admissible as an by the court, as provided by statute, cannot be
Admissible not as an substituted by parol evidence that the child has lived
exception to the
exception to any rule with a person, not his parent, and was treated as child
hearsay rule
Made against one’s during the latter’s lifetime [Herrera, citing Lazatin v.
Made against one’s Campos, G.R. No. L-43955-56 (1979)]
claim or defense,
pecuniary or moral
although not moral or
interest FAMILY REPUTATION OR TRADITION REGARDING
pecuniary interest
Primary evidence Secondary evidence PEDIGREE
[Estrada v. Desierto, G.R. Nos. 146710-15 (2001)]
Requisites for Admissibility
ACT OR DECLARATION ABOUT PEDIGREE a.   Witness must be a member, by consanguinity or
affinity, of the same family as the subject; and
Requisites for Admissibility b.   Such reputation or tradition must have existed in
a.   The act or declaration that family ante litem motam [Sec. 40, Rule 130]
b.   Of a person deceased or unable to testify
c.   In respect to the pedigree of another person Other Admissible Evidence
related to him by birth or marriage a.   Entries in family bibles or other family books;
d.   May be received in evidence where the b.   Charts;
act/declaration occurred before the controversy; c.   Engravings on rings;
and d.   Family portraits and the like
e.   Relationship between the declarant and the [Sec. 40, Rule 130]
person whose pedigree is in question must be
shown by evidence other than such act or This enumeration, by ejusdem generis, is limited to
declaration [Sec. 39, Rule 130] "family possessions," or those articles which
represent, in effect, a family's joint statement of its
Pedigree includes belief as to the pedigree of a person [Jison v. C.A., G.R.
a.   Relationship; No. 124853. (1998)]
b.   Family genealogy;
c.   Birth; A person’s statement as to his date of birth and age,
d.   Marriage; as he learned of these from his parents or relatives, is
e.   Death; an ante litem motam declaration of a family tradition
f.   Dates when these facts occurred; [Gravador v. Mamigo, G.R. No. L-24989, (1967)]
g.   Places where these facts occurred;
h.   Names of relatives; and Distinguished from Declaration about Pedigree
i.   Facts of family history intimately connected with Sec. 40 – Family
Sec. 39 – Declaration
pedigree [Sec. 39, Rule 130] Reputation or
about Pedigree
Tradition
“Proof other than declaration” There must be a The witness testifying
General rule: Proof of relationship must be shown in declarant and a witness to the family reputation
evidence other than the declaration. The witness need not be and tradition must be a
a relative of the person member of the family
whose pedigree is in member of the person

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question, it must be the whose pedigree is in existence of marital relations [In re: Florencio Mallare,
declarant. controversy. AM No. 533 (1974)]
The witness may testify
Independent evidence is on the relationship PART OF THE RES GESTAE
needed to establish between such
relationship between relationship himself. Res gestae
declarant and person The author of the This expression signifies merely “transactions” or
whose pedigree is in reputation need not be “things done” and is used in common law as meaning
issue established by the circumstances which are automatic and
independent evidence. undersigned incidents of the particular act in issue,
[Herrera] and which are admissible in evidence when illustrative
and explanatory of the act [Herrera]
COMMON REPUTATION
Res gestae, as an exception to the hearsay rule, refers
Definition: the definite opinion of the community in to those exclamations and statements made by either
which the fact to be proved is known or exists. It means the participants, victims, or spectators to a crime
the general or substantially undivided reputation, as immediately before, during, or after the commission of
distinguished from a partial or qualified one, although the crime, when the circumstances are such that the
it need not be unanimous [2 Regalado, 787, 2008 Ed.] statements were made as a spontaneous reaction or
utterance inspired by the excitement of the occasion
Requisites for Admissibility and there was no opportunity for the declarant to
a.   Common reputation existed ante litem motam deliberate and to fabricate a false statement [DBP
b.   Reputation pertains to: Pool of Accredited Insurance Companies v. Radio
i.   facts of public or general interest more Mindanao Network, Inc., G.R. No. 147039 (2006)]
than 30 years old,
ii.   marriage, or A dying declaration can be made only by the victim,
iii.   moral character while a statement as part of the res gestae may be that
[Sec. 41, Rule 130] of the killer himself after or during the killing [2
Regalado 788, 2008 Ed., citing People v. Reyes, G.R.
Other Admissible Evidence Nos. L-1846–48 (1949)]
a.   Monuments
b.   Inscriptions in public places A statement not admissible as dying declaration
[Sec. 41, Rule 130] because it was not made under consciousness of
impending death, may still be admissible as part of res
Pedigree may be established by reputation in the gestae if made immediately after the incident [People
family, but not in the community [Secs. 40-41, Rule v. Gueron, G.R. No. L-29365 (1983)]
130]
Requisites for res gestae
Common reputation is hearsay like any other Spontaneous
Verbal Acts
exception to the hearsay rule, but is admissible Statements
because of trustworthiness [Riano 327, 2016 Ed., citing a.   The res gestae or
a.   The principal act,
Reg. v. Bedforshire, 4 E & B 535, 82 ECL 535, 542] principal act or to
the res gestae, be a
be characterized
startling
The character of a place as an opium joint may be must be equivocal;
occurrence
proved by its common reputation in the community b.   Such act must be
b.   The statements
[U.S. v. Choa Chiok, G.R. No. 12423, (1917)] material to the
were made before
issue
the declarant had
Reputation has been held admissible as evidence of c.   The statements
the opportunity to
age, birth, race, or race-ancestry, and on the question must accompany
contrive
of whether a child was born alive [In re: Florencio the equivocal act.
c.   The statements
Mallare, A.M. No. 533 (1974)] d.   The statements
must refer to the
give a legal
occurrence in
Unlike that of matters of pedigree, general reputation significance to the
question and its
of marriage may proceed from persons who are not equivocal act
attending
members of the family — the reason for the distinction [Talidano v. Falcon
circumstances
is the public interest that is taken in the question of the Maritime, G.R. No.
[Talidano v. Falcon
172031 (2008)]

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Maritime, G.R. No. [2 Regalado 790, 2008 If the entrant is available as a witness, the entries will
172031 (2008)]] Ed.] not be admitted, but they may nevertheless be availed
of by said entrant as a memorandum to refresh his
[2 Regalado 788, 2008 memory while testifying on the transactions reflected
Ed., citing People v. therein [Cang Yui v. Gardner, G.R. No. L-9974 (1916)]
Siscar, G.R. No. 55649
(1985)] Business records as exception to the hearsay rule
Spontaneous under the Rules on Electronic Evidence
exclamations may have Verbal act must have a.   A memorandum, report, record or data
been made before, been made at the time, compilation
during or immediately and not after, the b.   Of acts, events, conditions, opinions, or
after the startling equivocal act was being diagnoses,
occurrence equivocal performed equivocal act c.   Made by electronic, optical or other similar means
act [2 Regalado 790, 2008 d.   At or near the time of or from transmission or
[2 Regalado 790, 2008 Ed.] supply of information by a person with knowledge
Ed.] thereof, and
e.   Kept in the regular course or conduct of a business
Sec. 37. Dying activity, and
Sec. 42. Res gestae f.   Such was the regular practice to make the
Declaration
Statement may be memorandum, report, record, or data compilation
made by the killer by electronic, optical or similar means,
himself g.   All of the preceding items are shown by the
after or during the Can be made only by testimony of the custodian or other qualified
killing [People v. Reyes, the victim witnesses, is excepted from the rule on hearsay
G.R. Nos. L-1846–48 evidence
(1949)] OR that of a [Sec. 1, Rule 8, Rules on Electronic Evidence]
3rd person. This presumption (more accurately, exception),
May precede, however, may be overcome by evidence of the
accompany or be made Made only after the untrustworthiness of the source of information or the
after the homicidal attack has method or circumstances of the preparation,
homicidal attack was been committed transmission or storage thereof [Sec. 2, Rule 8, Rules
committed on Electronic Evidence]
Trustworthiness based
Justification in the upon in its Entries in the payroll, being entries in the course of
spontaneity of the being given in business, enjoy the presumption of regularity [Sapio v.
statement. awareness of Undaloc Construction, G.R. No. 155034 (2008)]
impending death
[2 Regalado 788-789, 2008 Ed.] Reason for rule
The duty of the employees to communicate facts is of
ENTRIES IN THE COURSE OF BUSINESS itself a badge of trustworthiness of the entries
[Security Bank and Trust Company v. Gan, G.R. No.
Requisites for Admissibility 150464 (2006)]
a.   Entries were made at, or near the time of the
transactions referred to; These entries are accorded unusual reliability because
b.   Such entries were made in the ordinary or regular their regularity and continuity are calculated to
course of business or duty; discipline record keepers in the habit of precision [LBP
c.   Entrant was in a position to know the facts stated v. Monet’s Export and Manufacturing Corp., G.R. No.
in the entries; 184971 (2010)]
d.   Entrant did so in his professional capacity, or in
the performance of duty and in the regular course ENTRIES IN OFFICIAL RECORDS
of business; and
e.   Entrant is now dead or unable to testify. Requisites for Admissibility
[Northwest Airlines v. Chiong, G.R. No. 155550 a.   Entries in official records were made by a public
(2008); Sec. 43, Rule 130] officer in the performance of his duties or by a
person in the performance of a duty specially
enjoined by law [Sec. 44, Rule 130];

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b.   Entrant must have personal knowledge of the There should be requirements of preliminary proof of
facts stated by him or such facts acquired by him trustworthiness before such lists are rendered
from reports made by persons under a legal duty admissible. Some proof must be shown how or in what
to submit the same [Barcelon, Roxas Securities v. manner it was made up, where the information it
CIR, G.R. 157064 (2006)]; and contained was obtained, or whether the quotation of
c.   Entries were duly entered in a regular manner in prices made were derived from actual sales or
the official records [People v. Mayingque, G.R. No. otherwise [Herrera]
179709 (2010)]
LEARNED TREATISES
The trustworthiness of public documents and the
value given to the entries made therein could be Requisites for Admissibility
grounded on : a.   Published treatise, periodical or pamphlet is on a
a.   the sense of official duty in the preparation of subject of history, law, science, or art; and
the statement made; b.   Court takes either:
b.   the penalty which is usually affixed to a breach of i.   judicial notice of it, or
that duty; ii.   a witness expert in the subject testifies that
c.   the routine and disinterested origin of most such the writer of the statement in the treatise,
statements; and periodical or pamphlet is recognized in his
d.   the publicity of record which makes more likely profession or calling as expert in the
the prior exposure of such errors as might have subject
occurred [Sec. 46, Rule 130]
[Herce, Jr. v Municipality of Cabuyao, Laguna, GR. No.
166645 (2005)] TESTIMONY OR DEPOSITION AT A FORMER TRIAL

A sheriff’s return is an official statement by a public Requisites for Admissibility

official in the performance of a duty specially enjoined a.   Witness is dead or unable to testify;
by law and is prima facie evidence of the facts therein b.   His testimony or deposition was given in a former
stated. Being an exception to the hearsay rule, the case or proceeding, judicial or administrative,
sheriff need not testify in court as to the facts stated in between the same parties or those representing
said return [Manalo v Robles Trans.Co., GR. No. L-8171, the same interests;
(1956)] c.   Former case involved the same subject as that in
the present case although on different causes of
Entries in official records, just like entries in the course action;
of business, are merely prima facie evidence of the d.   Issue testified to by the witness in the former trial
facts therein stated [Secs. 43-44, Rule 130] is the same issue involved in the present case; and
e.   Adverse party had the opportunity to cross-
Entries in a police blotter are not conclusive proof of examine the witness in the former case
the truth of such entries [People v. C.A.buang, G.R. No. [Sec. 47, Rule 130; Manliclic v. Calaunan, G.R. No.
103292 (1993)] 150157 (2007)]

Baptismal certificates or parochial records of baptism Inability to testify (meaning and standard)
are not official records [Fortus v. Novero, G.R. No. L- The inability of the witness to testify must proceed
22378 (1968)] from a grave cause, almost amounting to death, as
when the witness is old and has lost the power of
COMMERCIAL LISTS AND THE LIKE speech. Mere refusal shall not suffice [Tan v. C.A., G.R.
No. L-22793 (1967)]
Requisites for Admissibility
a.   Evidence of statements of matters of interest to OTHER EXCEPTIONS OUTSIDE THE RULES OF
persons engaged in an occupation COURT
b.   Such statements are contained in a list, register, a.   Affidavit in the Rules of Summary Procedure -
periodical, or other published compilations shall not be considered as competent evidence for
c.   Compilation is published for use by persons the party presenting the affidavit, but the adverse
engaged in that occupation; and party may utilize the same for any admissible
d.   It is generally used and relied upon by them purpose [Sec. 14, Rules on Summary Procedure]
[Sec. 45, Rule 130] b.   Under the Rule on Examination of a Child Witness,
hearsay exception in child abuse cases [see Sec.
Need of preliminary proof of trustworthiness 28]

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DOCTRINE OF INDEPENDENTLY RELEVANT Expert witness is one who has made the subject upon
STATEMENTS which he gives his opinion a matter of particular study,
practice or observation and he must have particular
Statements or writings attributed to a person not on and special knowledge on the subject [People v.
the witness stand, which are being offered not to prove Dekingco, G.R. No. 87685 (1990)]
the truth of the facts stated therein, but only to prove
that such were actually made. ADMITTING EXPERT TESTIMONY

These are not covered by the hearsay rule [People v. Question in admitting expert testimony
Cusi, G.R. No. L-20986 (1965)] Whether the opinion called for will aid the fact finder
in resolving an issue, or whether the jury or the judge
These are statements which are relevant is as well qualified as the witness to draw its own or his
independently of whether they are true or not [Estrada own deductions from the hypothetical facts [Herrera]
v. Desierto, G.R. No. 146710 (2001)]
Court discretion to exclude or include expert
Two classes of independently relevant statements: evidence
1.   Statements which are the very facts in issue, and If men of common understanding are capable of
2.   Statements which are circumstantial evidence of comprehending the primary facts and drawing correct
the facts in issue. They include the following: conclusions from them, expert testimony may be
a.   Statement of a person showing his state of excluded by the Court [Herrera]
mind, that is, his mental condition,
knowledge, belief, intention, ill will and other Competency of witness is a preliminary question
emotions; before testimony is admitted
b.   Statements of a person which show his It must be shown that the witness is really an expert;
physical condition, as illness and the like; determination of competency is a preliminary question
c.   Statements of a person from which an [Herrera]
inference may be made as to the state of mind
of another, that is, the knowledge, belief, HYPOTHETICAL QUESTIONS
motive, good or bad faith, etc. of the latter;
d.   Statements which may identify the date, Test
place and person in question; and Fairness is the ultimate test of hypothetical questions.
e.   Statements showing the lack of credibility of The Court shall reject a question which unfairly selects
a witness [Estrada v. Desierto, G.R. No. 146710 parts of the facts proved or omits material facts. If it
(2001)] omits facts, it may be opposed on the ground that it is
misleading [Herrera]
13.  O pinion Rule Admissibility of hypothetical question
Admissibility of hypothetical questions depends on
Opinion whether it furnishes the tribunal with the means of
Opinion is an inference or conclusion drawn from facts knowing upon what premises of fact the conclusion is
observed [Black’s Law Dictionary] based [Herrera, citing Magiore v. Sheed (195 A. 392, 173
Md 33)]
General rule: The opinion of witness is not admissible
[Sec. 48, Rule 130] EXAMINING AN EXPERT WITNESS
Exceptions: Mode of examination of expert witness
a.   Expert witness [Sec. 49, Rule 130] He may base his opinion either on a first-hand
b.   Ordinary witness [Sec. 50, Rule 130] knowledge of the facts or on the basis of hypothetical
questions where the facts are presented to him
a.   Opinion of Expert Witness hypothetically, and on the assumption that they are
true, formulates his opinion on this hypothesis
The opinion of a witness on a matter requiring special [Herrera]
knowledge, skill, experience or training which he
shown to possess, may be received in evidence [Sec. The lack of personal examination and interview of the
49, Rule 130] respondent, or any other person diagnosed with
personality disorder, does not per se invalidate the
testimonies of the doctors. Neither do their findings

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automatically constitute hearsay that would result in Identification by voice is recognized by the courts,
their exclusion as evidence. Within their especially in a case where it was impossible to see the
acknowledged field of expertise, doctors can diagnose accused but the witness has known the accused since
the psychological make up of a person based on a their childhood [Herrera, citing US v. Manabat]
number of factors culled from various sources. A
person afflicted with a personality disorder will not HANDWRITING WITH WHICH HE HAS SUFFICIENT
necessarily have personal knowledge thereof FAMILIARITY
[Camacho-Reyes v Reyes, G.R. No. 185286 (2010)]
The ordinary witness must be acquainted with the
How to present an expert witness characteristics of the handwriting of a person. He may
1.   Introduce and qualify the witness; only draw on the knowledge which he already has and
2.   Let him give his factual testimony, if he has which enables him to recognize the handwriting.
knowledge of the facts;
3.   Begin the hypothetical question by asking him to Only experts are allowed to give conclusions from the
assume certain facts as true; comparison of samples of handwriting of a person
4.   Conclude the question, by first asking the expert if whose handwriting he is not familiar with [Herrera]
he has an opinion on a certain point
5.   assuming that these facts are true and secondly, MENTAL SANITY OF A PERSON WITH WHOM HE IS
asking him, after he has answered affirmatively, SUFFICIENTLY ACQUAINTED
to give his opinion on the point;
6.   After he has stated his opinion, ask him to give his These are allowed where the witness can adequately
reasons. describe the actions, looks or symptoms of a person’s
sanity or insanity which is impossible for the court to
Despite the fact that petitioner is a physician and even determine [Herrera]
assuming that she is an expert in neurology, she was
not presented as an expert witness. As an ordinary IMPRESSIONS OF THE EMOTION, BEHAVIOR,
witness, she was not competent to testify on the CONDITION OR APPEARANCE OF A PERSON
nature, and the cause and effects of whiplash injury
[Dela Llana v. Biong, G.R. No. 182356 (2013)] The rule recognizes instances when a witness may be
permitted to state his inferences that are drawn from
minute facts and details which the witness cannot fully
b.   Opinion of Ordinary Witness and properly describe in court. Such expressions are
expressed to the countenance, the eye and the general
The opinion of an ordinary witness is admissible when: manner and bearing of the individual; appearance
1.   If proper basis is given, and which are plainly enough recognized by a person of
2.   Regarding: good judgment, but which he cannot otherwise
a.   Identity of a person about whom he has communicate by an expression of results in the shape
adequate knowledge; of an opinion [Herrera, citing US case Hardy v. Merill]
b.   Handwriting with which he has sufficient
familiarity;
c.   Mental sanity of a person with whom he is 14.  Character Evidence
sufficiently acquainted; and
d.   Impressions of the Character distinguished from reputation
i.   emotion, 'Character' is what a man is, and 'reputation' is what
ii.   behavior, he is supposed to be in what people say he is.
iii.   condition, or 'Character' depends on attributes possessed, and
iv.   appearance of a person 'reputation' on attributes which others believe one to
[Sec. 50, Rule 130] possess. The former signifies reality and the latter
merely what is accepted to be reality at present [Lim v.
IDENTITY OF A PERSON ABOUT WHOM HE HAS C.A., G.R. No. 91114 (1992)].
ADEQUATE KNOWLEDGE
General rule: [Sec. 51, Rule 130]
Statements of a witness as to identity are not to be Character evidence is not admissible.
rejected because he is unable to describe features of
the person in question [Herrera] Exceptions:
a.   Criminal cases [Sec. 51(a), Rule 130]
b.   Civil case [Sec. 51(b), Rule 130]

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c.   In the case provided for in Sec. 14, Rule 132 •   In a murder case: If the crime was committed
(Evidence of good character of witness is not through treachery and evident premeditation
admissible until such character has been [People v. Soliman, G.R. No. L-9723 (1957)]
impeached). •   In a rape case: If through violence and
a.   Criminal Cases intimidation [People v. Blance, G.R. No. 20063,
(1923)]
1.   Accused – May prove his good moral character,
which is pertinent to the moral trait involved in the Rape Shield Rule
offense charged. In prosecution for rape, evidence of complainant’s
2.   Prosecution – May not prove the bad moral past sexual conduct, opinion thereof or of his/her
character of the accused, except in rebuttal. reputation shall not be admitted unless, and only to
3.   Offended Party – His/her good or bad moral the extent that the court finds that such evidence is
character may be proved if it tends to establish in material and relevant to the case [Sec 6, R.A. 8505]
any reasonable degree the probability or
improbability of the offense charged. Sexual Abuse Shield Rule
[Sec. 51, Rule 130] The following evidence is not admissible in any
criminal proceeding involving alleged child sexual
Good moral character of accused abuse:
The purpose of presenting evidence of good moral 1.   Evidence to prove that the alleged victim engaged
character is to prove the improbability of his doing the in other sexual behavior; and
act charged. The accused may prove his good moral 2.   Evidence offered to prove the sexual
character only if it is pertinent to the moral trait predisposition of the alleged victim [Sec 30, Rule
involved in the offense charged [Herrera] on Examination of a Child Witness]

Bad moral character of accused in rebuttal b.   Civil cases

Unless and until the accused gives evidence of his
good moral character the prosecution may not Moral character is admissible only when pertinent to
introduce evidence of his bad character [Herrera, citing the issue of character involved in the case [Sec. 51(b),
People v. Rabanes, G.R. No. 93709 (1992)] Rule 130]

Good or bad moral character of offended party Evidence of the witness’ good character is not
This is usually offered in rape cases and where the admissible until such character has been impeached
accused invokes the defense of self-defense. [Sec. 14, Rule 130]

In rape cases, the character of a woman may be

relevant and admissible on the question of the
presence or absence of her consent. While in homicide
and assault cases, it may be used as evidence of the
victim’s character for turbulence and violence
warranting the response of the accused [Herrera]

Note: Rape is no longer a crime against chastity (R.A.

8353).

Character evidence must be limited to the traits and

characteristics involved in the type of offense
charged. Thus:
•   on a charge of rape : character for chastity
•   on a charge of assault: character for
peaceableness or violence
•   on a charge of embezzlement : character for
honesty [CSC v. Belagan, G.R. No. 132164 (2004)]

Proof of the bad character of the victim is not

admissible:

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  Offer and Objection a.   In a summary proceeding because it is a

proceeding where there is no full-blown trial;
b.   Documents judicially admitted or taken judicial
1.   Offer of Evidence notice of;
c.   Documents, affidavits, and depositions used in
General rule: The court shall consider no evidence rendering a summary judgment;
which has not been formally offered. The purpose for d.   Documents or affidavits used in deciding quasi-
which the evidence is offered must be specified [Sec. judicial or administrative cases [Bantolino v. Coca
34, Rule 132] Cola Bottlers, G.R. No. 153660 (2003)]
e.   Lost objects previously marked, identified,
Exception: described in the record, and testified to by witness
Evidence not formally offered may be admissible when who had been subjects of cross-examination in
two essential conditions concur: respect to said objects [Tabuena v. C.A., G.R. No.
a.   the same must have been duly identified by 85423 (1991), citing People v. Napat-a, G.R. No.
testimony duly recorded and, 84951 (1989)]
b.   the same must have been incorporated in the [Riano 343, 2016 Ed.]
records of the case f.   When duly identified in a testimony duly recorded
[Star Two v. Ko, G.R. No. 185454 (2011)] and it was incorporated in the records of the case
[Vda. de Oate v. C.A., G.R. No. 116149 (1995)]
As Distinguished from Identification of
Documentary Evidence The Republic offered the negotiated contracts solely
to prove that the Bakunawas had been incorporators
Identification of Formal Offer of
or owners, or had held key positions in the
Documentary Evidence Evidence
corporations that entered into the contracts. The
Done in the course of
Sandiganbayan correctly ruled, therefore, that the
the trial and Done only when the
contracts could be considered and appreciated only
accompanied by the party rests his/her case
for those stated purposes, not for the purpose of
marking of the evidence
proving the irregularity of the contracts. Evidence can
[Interpacific Transit v. Aviles, G.R. No. 86062 (1990)]
be considered only for the purposes it was specifically
offered [Republic v Reyes-Bakunawa, G.R. No. 180418
Why Formal Offer is Necessary
(2013)]
Parties are required to inform the courts of the
purpose of introducing their respective exhibits to
Waiver of Right to Make Formal Offer
assist the latter in ruling on their admissibility in case
It is deemed waived by a party if it fails to submit within
an objection thereto is made. Without a formal offer of
a considerable period of time its formal offer [Heirs of
evidence, courts are constrained to take no notice of
Pasag v. Parocha, G.R. No. 155483 (2007)]
the evidence even if it has been marked and identified
[Star Two v. Ko, G.R. No. 185454 (2011)]
In this case, the court did not allow the petitioners to
present their formal offer 10 years after resting its
No evidentiary value can be given to pieces of evidence
case. In an earlier case of Constantino v. C.A. [G.R. No.
not formally offered [Dizon v. CTA, G.R. No. 140944
116018 (1996)], the Court did not allow a formal offer
(2008)]
even only after three months because such would,
“condone an inexcusable laxity if not non-compliance
However, where the absence of an offer of a
with a court order which, in effect, would encourage
testimonial evidence was not objected to as when the
needless delays and derail the speedy administration
witness was cross-examined by the adverse party
of justice.”
despite failure to make an offer of the testimony, the
court must consider the testimony.
A party is not deemed to have waived objection to
admissibility of documents by his failure to object to
The provisions of the ROC on the inclusion on appeal
the same when they were marked, identified and then
of documentary evidence or exhibits in the records,
introduced during the trial. This is because objection
cannot be stretched as to include such pleadings or
to documentary evidence must be made at the time it
documents not offered at the hearing of the case
is formally offered and not earlier [Interpacific Transit
[Candido v. C.A., G.R. No. 107493 (1996)]
v. Aviles, G.R. No. 86062 (1990)]
When Formal Offer is NOT Required

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a.   When to Make an Offer judge and it was his duty to do so [Loper v. Standard
Oil Company, G.R. No. 2345 (1906)]
Kind of evidence When to offer
When a party desires the court to reject the evidence
At the time the witness is
Testimonial offered, he must so state in the form of objection.
called to testify
Without such objection, he cannot raise the question
Documentary and After the presentation of a
for the first time on appeal [People v. Diaz, G.R. No.
Object party’s testimonial evidence
197818 (2015)]
[Sec. 35, Rule 132]
MANNER
The party who terminated the presentation of
evidence must make an oral offer of evidence on the Excluding inadmissible evidence
very day the party presented the last witness. 1.   One has to object to inadmissible evidence;
Otherwise, the court may consider the party’s 2.   The objection must be timely made; and
documentary or object evidence waived [Heirs of Pasag 3.   The grounds for the objection must be specified
v. Sps. Parocha, G.R. No. 155483 (2007)] [Herrera]
Manner of Offer Purposes Of Objection
General rule: Offer shall be done orally 1.   Made to keep out inadmissible evidence that
would cause harm to client’s cause (rules of
Exception: Allowed by the court in writing evidence are not self-operating);
[Sec. 35, Rule 132] 2.   To protect the record (for future appeal);
3.   To protect witness from being embarrassed or
While the trial court may allow the offer to be done in harassed;
writing, this can only be tolerated in extreme cases 4.   To expose adversary’s unfair tactics;
where the object evidence or documents are large in 5.   To give trial court an opportunity to correct its own
number––say from 100 and above, and only where errors and at the same time warn the court that a
there is unusual difficulty in preparing the offer [Heirs ruling adverse to the objector may supply a reason
of Pasag v. Sps. Parocha, G.R. No. 155483 (2007)] to invoke a higher court’s appellate jurisdiction;
and
Absence of an offer is a defect which is waived when a 6.   To avoid a waiver of inadmissibility
party fails to object when the ground became [Riano]
reasonably apparent, as when the witness is called to
testify without any prior offer [Catuira v. C.A., G.R. No. Objections must be specific enough to adequately
105813 (1994)] inform the court the rule of evidence or of substantive
law that authorizes the exclusion of evidence [Riano]
The defect caused by the absence of formal offer of
exhibits can be cured by the identification of the CLASSIFICATION OF OBJECTIONS
exhibits by testimony duly recorded and the
incorporation of the said exhibits in the records of the General Objections
case [People v. Mate, G.R. No. L-34754 (1981)] Do not clearly indicate to the judge the ground upon
which the objections are predicated [Riano 348, 2016
The defendant cannot offer his evidence before the Ed.]
plaintiff has rested [Herrera, citing Engersail v.
Malabon Sugar Co., 53 Phil. 7450] In cases where the incompetency of the evidence is so
palpable that a mere general objection is deemed
The Court shall consider the evidence solely for the sufficient and where the portion of the evidence
purpose for which it is offered, not for any other objected to is clearly pointed out, and its illegality is
purpose [Spouses Ragudo v Fabella Estate Tenants apparent on its face, then the objection must be
Association, Inc., G.R. No. 146823, (2005)]. allowed [Riano 349, 2016 Ed., citing 75 Am Jur 257
citing Scott v. Times-Mirro Co., 181 Cal 345, 184 P 672,
b.   Objection 12 ALR 1007; Sparf v. United States, 156 US 51, 39 L Ed
343, 15 S. Ct. 273]
Concept
A party (e.g. the defendant) has a right to object to Specific Objection
evidence which he considered not admissible under States why or how the evidence is irrelevant or
the complaint, even if the questions were asked by the incompetent.

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Formal Objection c.   Repetition of an Objection

Directed against the alleged defect in the formulation
of the question When it becomes reasonably apparent in the course of
examination of a witness that the questions being
Substantive propounded are of the same class as those to which
Made and directed against the very nature of the objection was sustained or overruled, it shall not be
evidence necessary to repeat the objection, it being sufficient for
the adverse party to record his continuing objection to
When to Object such class of questions [Sec. 37, Rule 132]
What to object to When to object
Evidence offered orally Immediately after offer A court may, motu proprio, treat the objection as a
(testimonial evidence) is made continuing one [Keller v. Ellerman & Bucknall
A question propounded As soon as the grounds Steamship, G.R. No. L-12308 (1918)]
in the course of oral become reasonably
examination apparent An objection must be seasonably made at the time it
Within 3 days after is formally offered. Objection prior to the formal offer
notice of the offer, is premature and could not be considered by the Court
Offer of evidence done in
unless a different as basis for a continuing one [Interpacific Transit v.
writing
period is allowed by the Aviles, G.R. No. 86062 (1990)]
court
The grounds for objection must be specified in any Where a continuing objection had been interposed on
case. prohibited testimony, the objection is deemed waived
[Sec. 37, Rule 132] where the objecting counsel cross-examined the
witness on the very matters subject of the prohibition
The issue of the admissibility of documentary evidence [De Abraham v. Recto-Kasten, G.R. No. L-16741 (1962)]
arises only upon formal offer thereof. This is why
objection to the documentary evidence must be made A Comment/Opposition to a formal offer of evidence,
at the time it is formally offered, and not earlier when objected to as being "immaterial, irrelevant and
[Republic v. Sandiganbayan, G.R. No. 188881 (2014)] impertinent," is an admission of the authenticity of the
entries in the passport [Dycoco v. Orina, G.R. No.
Objection to a question propounded in the course of 184843 (2010)]
the oral examination of a witness shall be made as
soon as the ground therefor becomes reasonably
apparent [Bayani v. People, G.R. No. 155619 (2007)] d.   Ruling
When a party desires the court to reject the evidence General rule: The ruling of the court must be given
offered, he must so state in the form of objection. immediately after the objection is made
Without such objection, he cannot raise the question
for the first time on appeal [People v. Hernandez, G.R. Exception: The court desires to take a reasonable time
No. 184804, 2009] to inform itself on the question presented; but the
ruling shall always be made during the trial and at
Waiver of Objection such time as will give the party against whom it is
When there is failure to point out some defect, made an opportunity to meet the situation presented
irregularity or wrong in the admission or exclusion of by the ruling.
evidence. Such failure may take various forms and may [Sec. 38, Rule 132]
either be expressed or implied [Riano 353, 2016 Ed.]
In that event it is perfectly proper for the court to take
Effect of waiver a reasonable time to study the question presented by
Although hearsay evidence may be admitted because the objection; but a ruling should always be made
of lack of objection, it is nonetheless without probative during the trial [Lopez v. Valdez, G.R. No. L-9113 (1915)]
value, unless the proponent can show that the
evidence falls within the exception to the hearsay A reasonable time must not extend beyond the ninety
evidence rule [Bayani v. People, G.R. No. 155619 (90)-day reglementary period from the date of
(2007)] submission of the formal offer of evidence [Beltran v.
Paderanga, AM No. RTJ-03-1747 (2003)]

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The reason for sustaining or overruling an objection Other cases when motion to strike is proper
need not be stated. However, if the objection is based 1.   When the answer is premature
on two or more grounds, a ruling sustaining the 2.   When the answer of the witness is unresponsive;
objection on one or some of them must specify the 3.   When the witness becomes unavailable for cross-
ground/s relied upon [Sec. 38, Rule 132] examination through no fault of the cross-
examining party;
Reservation of a ruling by the court on an objection to 4.   When the testimony is allowed conditionally and
the admissibility of evidence, without subsequently the condition for its admissibility was not fulfilled;
excluding the same, amounts to a denial of an [Riano]
objection [People v. Tavera, G.R. No. L-23172 (1925)] 5.   Where evidence has been properly received, and
its effect has been destroyed by other evidence, or
Por Lo Que Puedo Valer Principle its admissibility has afterward become apparent;
The Supreme Court encourages the admission or [Herrera]
borderline evidence for whatever it is worth or por lo
que puedo valer [Prats & Co. v. Phoenix Insurance, 52 Motion to strike out should specify objection
Phil. 807 (1930)] A motion to strike out should specify the objection as
well as the portion of the evidence which is objected to
No Express Ruling Needed [Herrera]
The trial court need not make an express ruling
admitting the exhibits if there is no objection
interposed to their admission [Herrera, citing Boix v.
f.   Tender of Excluded Evidence
Rivera, CA Rep. 2d 104]
The procedure in Section 40 is known as offer of proof
The ruling of the court is required only when there is or tender of excluded evidence and is made for
an objection to a question or to the admission of an purposes of appeal. If an adverse judgment is
exhibit [Herrera] eventually rendered against the offeror, he may in his
appeal assign as error the rejection of the excluded
The ruling on an objection must be given immediately evidence. The appellate court will better understand
after an objection is made. However, objections based and appreciate the assignment of error if the evidence
on irrelevancy and immateriality need no specification involved is included in the record of the case [Cruz-
or explanation. Relevancy or materiality of evidence is Arevalo v. Querubin-Layosa, AM No. RTJ-06-2005
a matter of logic, since it is determined simply by (2006)]
ascertaining its logical connection to a fact in issue in
the case [Cruz-Arevalo v. Querubin-Layosa, AM No. If an exhibit sought to be presented in evidence is
RTJ-06-2005 (2006)] rejected, the party producing it should ask the courts
permission to have the exhibit attached to the record.
Any evidence that a party desires to submit for the
e.   Striking Out an Answer consideration of [a higher] court must be formally
offered by him otherwise it is excluded and rejected
Motion to Strike and cannot even be taken cognizance of on appeal
A motion to strike out goes to admissibility and not to [Catacutan v. People, G.R. No. 175991 (2011)]
weight; evidence should not be stricken out because of
its little probative value [Herrera] Before tender of excluded evidence is made, the
evidence must have been formally offered before the
1.   Court may sustain an objection and order the court. And before formal offer of evidence is made, the
answer given to be stricken off the record if: evidence must have been identified and presented
a.   witness answers the question before the before the court [Yu v. C.A., G.R. No. 154115 (2005)]
adverse party had the opportunity to object,
and Documents marked as exhibits during the hearing but
b.   such objection is found to be meritorious. which were not formally offered in evidence cannot be
2.   The court may also, upon motion, order the considered as evidence nor shall they have evidentiary
striking out of answers, which are value [Vda. De Flores v. Workmen’s Compensation
a.   incompetent, Commission, G.R. No. L-43316 (1977)]
b.   irrelevant or
c.   otherwise improper
[Sec. 39, Rule 132]

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How to Tender Evidence to the sound discretion fo the court [Republic v.

Kind of Sandiganbayan, G.R. No. 152375 (2011)].
How to tender the evidence
evidence
Offeror may have the same
Documentary attached or made part of the
record
Offeror may state for the record
the name and other personal
Testimonial circumstances of the witness and
the substance of the proposed
testimony
[Sec. 40, Rule 132]

Rationale
1.   to allow the court to know the nature of the
testimony or the documentary evidence and
convince the trial judge to permit the evidence or
testimony; and
2.   even if he is not convinced to reverse his earlier
ruling, the tender is made to create and preserve
a record for appeal
[Riano 360, 2016 Ed.]

Two Methods of making the Tender

1.   Where the counsel tells the court what the
proposed testimony would be;
2.   By using the question and answer form
[Riano 361-362, 2016 Ed.]

Erroneous Way of Making Tender

To make a mere general “offer of proof” without
producing the witness or stating the evidence where
by the fact in issue is to be proved [Riano 364, 2016
Ed., Douillard v. Wood, 20 C2d 670, 128 P2d 6 (1942)]

The SC had advised trial courts to allow the rejected

[documentary] evidence to be attached to the record
to enable the appellate court to examine the same and
determine whether the exclusion of the same was
proper or not [Herrera, citing Banez v. C.A., G.R. No. L-
30351 (1974)]

Harmless error rule

In dealing with evidence improperly admitted in trial,
we examine its damaging quality and its impact to the
substantive rights of the litigants. If the impact is
slight and insignificant, we disregard the error as it will
not overcome the weight of the properly admitted
evidence against the prejudiced party [People v.
Teehankee, G.R. No. 111206 (1995)]

The Rules of Court does not prohibit a party from

requesting the court to allow it to present additional
evidence even after it has rested it s case.Any such
opportunity, however, for the ultimate purpose of the
admission of additional evidence is already addressed

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SPECIAL RULES
Remedial Law

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U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

IX.   REVISED RULES ON   Prohibited Pleadings and

SUMMARY Motions
PROCEDURE Prohibited Pleadings
1.   Complaint
2.   Compulsory counterclaim, pleaded in the answer
  Cases Covered by the 3.   Cross-claim, pleaded in the answer
4.   Answer to these pleadings
Rule [Sec. 3]

Rule shall govern the summary procedure in the MTC, Prohibited motions
MTC in Cities, MCTC in the following cases falling 1.   Motion to dismiss the complaint or to quash the
within their jurisdiction: [Sec. 1] complaint or information except on the ground of
lack of jurisdiction over the subject matter, or
Civil cases failure to comply with the preceding section
1.   Cases of forcible entry and unlawful detainer (Referral to Lupon for conciliation)
a.   Irrespective of the amount of damages or 2.   Motion for a bill of particulars
unpaid rentals sought to be recovered 3.   Motion for new trial, or for reconsideration of a
b.   Where attorney’s fees are awarded, it shall judgment, or for opening of trial
not exceed P20,000 4.   Petition for relief from judgment
2.   All other civil cases where total amount of 5.   Motion for extension of time to file pleadings,
plaintiff’s claim does not exceed PHP 100,000 or affidavits or any other paper
PHP 200,000 in Metropolitan Manila, exclusive 6.   Memoranda
of interest and costs 7.   Petition for certiorari, mandamus, or prohibition
EXCEPT: probate proceedings against any interlocutory order issued by the
[Sec. 1, as amended by A.M. 02-11-09-SC] court
8.   Motion to declare the defendant in default
Criminal cases 9.   Dilatory motions for postponement
1.   Traffic laws, rules, and regulations violations 10.   Reply
2.   Rental law violations 11.   Third party complaints
3.   Municipal or city ordinance violations 12.   Interventions
4.   All other criminal cases where penalty prescribed [Sec. 19]
by law for offense charged is imprisonment not
exceeding 6 months and/or a fine not exceeding In a civil case governed by the Rules on Summary
P1,000 Procedure, no hearing is conducted. Instead, the
a.   Irrespective of other imposable penalties, parties are required to submitt heir respective position
accessory or otherwise, or of civil liability papers [Five Star Marketing Corporation v. Booc, G.R.
arising therefrom 143331 (2007)].
b.   In offenses involving damage to property
through criminal negligence, this rule shall Outright dismissal
govern where imposable fine does not exceed 1.   After the court determines that the case falls
P10,000 under summary procedure, it may, from an
[Sec. 1] examination of the allegations therein and such
evidence as may be attached thereto, dismiss the
Where rule shall not apply case outright on any of the grounds apparent
1.   To a civil case where plaintiff’s cause of action is therefrom for the dismissal of a civil action.
pleaded in the same complaint with another 2.   If no ground for dismissal is found it shall
cause of action subject to ordinary procedure forthwith issue summons which shall state that
2.   To a criminal case where offense charged is the summary procedure under this Rule shall
necessarily related to another criminal case apply
subject to ordinary procedure [Sec. 4]
[Sec. 1]
Answer
1.   Within 10 days from service of summons, the
defendant shall file his answer to the complaint
and serve a copy thereof on the plaintiff.
2.   Affirmative and negative defenses not pleaded
therein shall be deemed waived, except for lack of
jurisdiction over the subject matter.

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3.   Cross-claims and compulsory counterclaims not

asserted in the answer shall be considered barred.   Effect of failure to answer
4.   The answer to counterclaims or cross-claims shall
be filed and served within 10 days from service of 1.   Should the defendant fail to answer the
the answer in which they are pleaded complaint within the period above provided, the
[Sec. 5] court, motu proprio, or on motion of the plaintiff,
shall render judgment as may be warranted by the
facts alleged in the complaint and limited to what
is prayed for therein: Provided, however, that the
court may in its discretion reduce the amount of
damages and attorney's fees claimed for being
excessive or otherwise unconscionable.
2.   This is without prejudice to the applicability of
now-Sec. 3(c), Rule 9 of ROC, if there are two or
more defendants. [Sec. 6]

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  Preliminary Conference immediately executory without prejudice to

further appeal.
and Appearances of [Sec. 21].

Parties Note: When the case is already in the Regional Trial

Court, the Rule on Summary Procedure no longer
1.   Not later than thirty (30) days after the last applies. It applies only in cases filed before the MTCs.
answer is filed, a preliminary conference shall be [Jakihaca v. Aquino, G.R. 83982 (1990)]
held.
2.   The rules on pre-trial in ordinary cases shall be
applicable to the preliminary conference unless
inconsistent with the provisions of this Rule.
3.   The failure of the plaintiff to appear in the
preliminary conference shall be a cause for the
dismissal of his complaint.
4.   The defendant who appears in the absence of
the plaintiff shall be entitled to judgment on his
counterclaim in accordance with Sec. 6
5.   All cross-claims shall be dismissed.
6.   If a sole defendant shall fail to appear, the
plaintiff shall be entitled to judgment in
accordance with Sec. 6. This Rule shall not apply
where one of two or more defendants sued under
a common cause of action who had pleaded a
common defense shall appear at the preliminary
conference.
[Sec. 7]

Subsequent proceedings
1.   The court shall issue an order stating the matters
taken up therein, not limited to the matters stated
in Sec. 8, within 5 days after the termination of the
preliminary conference [Sec. 8]
2.   Within 10 days from the receipt of the order
mentioned in (1), the parties shall submit the
affidavits of their witnesses and other evidence on
the factual issues defined in the order, together
with their position papers setting forth the law
and the facts relied upon by them [Sec. 9]

Affidavits
1.   The affidavits shall state only facts of direct and
personal knowledge of the affiants which are
admissible in evidence, if not, such affidavit or
portion thereof shall be expunged from the
record.
2.   Violation of this rule may subject party or counsel
who submitted the defective affidavit is subject to
disciplinary action. [Sec. 20]

Rendition of judgment
Within thirty days after receipt of the last affidavits
and position papers, or the expiration of the period for
filing the same, the court shall render judgment. [Sec
30]

Appeals
1.   The judgment or final order of the MTC shall be
appealable to the appropriate RTC.
2.   The decision of the RTC in civil cases governed by
the Rule on Summary Procedure shall be

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U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

X.   RULES OF c.   does not require for its adjudication the

joinder of third parties; and

PROCEDURE FOR d.   is not the subject of another pending action,

the claim shall be filed as a counterclaim in the

SMALL CLAIMS Response; otherwise, the defendant shall be

barred from suing on the counterclaim.

CASES 2.   The defendant may also elect to file a

counterclaim against the plaintiff that does not
arise out of the same transaction or occurrence,
[AM No. 08-8-7-SC, effective February 2016] provided that the amount and nature thereof are
within the coverage of this Rule and the
Purpose prescribed docket and other legal fees are paid.
The purpose of the small claims process is to provide [Sec. 15]
an inexpensive and expeditious means to settle
disputes over small amounts. Note: In ordinary civil actions, docket fees need not be
paid for the imposition of docket fees on compulsory
Parties are encouraged to file small claims court counterclaims has been suspended in OCA Circular
actions to resolve their minor disputes as opposed to 96-2009. [Villanueva-Ong v. Senator Enrile, G.R. No.
resorting to self-help or forcible means to seek their 212904 (2017)]
remedy [Explanatory note to A.M. 08-8-7-SC]

  Scope and Applicability

of the Rule
Scope
This Rule shall govern the procedure in actions before
the MeTC, MTC in Cities, MTC and MCTC for payment
of money where the value of the claim does not exceed
PHP 200,000 exclusive of interest and costs [Sec. 2]

Applicability
1.   This Rule is applicable in all actions which are
purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment or
reimbursement of sum of money
2.   These claims or demands may be
a.   For money owned under any of the following;
i.   Contract of Lease
ii.   Contract of Loan
iii.   Contract of Services
iv.   Contract of Sale;
v.   Contract of Mortgage
b.   For liquidated damages arising from
contracts;
c.   The enforcement of a barangay amicable
settlement or an arbitration award involving
a money claim covered by this Rule pursuant
to Sec. 417, LGC.
[Sec. 5]

Counterclaims within the Coverage of Small Claims

1.   If at the time the action is commenced, the
defendant possesses a claim against the plaintiff
that
a.   is within the coverage of this Rule, exclusive
of interest and costs;
b.   arises out of the same transaction or event
that is the subject matter of the plaintiff’s
claim;

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U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

  Commencement of Small 4.   If the plaintiff is engaged in the business of

banking, lending and similar activities, the amount
Claims Action; Response of filing and other legal fees shall be the same as
those applicable to cases filed under the regular
rules.
How commenced 5.   A claim filed with a motion to sue as indigent shall
By filing with the court an accomplished and verified be referred to the Executive Judge for immediate
STATEMENT OF CLAIM in duplicate [Sec. 6] action in case of multi-sala courts.
a.   If the motion is granted by the Executive
Note: The plaintiff must state in the Statement of Judge, the case shall be raffled off or
Claim if he/she/it is engaged in the business of assigned to the court designated to hear
lending, banking and similar activities, and the small claims cases.
number of small claims cases filed within the calendar b.   If the motion is denied, the plaintiff shall be
year regardless of judicial station [Sec. 6] given 5 days within which to pay the docket
fees, otherwise, the case shall be dismissed
Plaintiffs engaged in the aforementioned businesses without prejudice.
who have a branch within the municipality/city where 6.   In no case shall a party, even if declared an
the defendant resides must file the Statement of indigent, be exempt from the payment of the
Claim/s in such municipality/city. Other plaintiffs are P1,000.00 fee for service of summons and
subject to the regular rules on venue. [Sec. 7] processes.
[Sec. 10]
If a plaintiff who is engaged in the aforementioned
businesses but misrepresents that he/she/it is not Dismissal
engaged in them, then the Statement of Claim/s shall 1.   After the court determines that the case falls
be dismissed with prejudice; the plaintiff shall be under these Rules, it may, from an examination of
meted the appropriate sanctions, such as direct the allegations of the Statement of Claim/s and
contempt [Sec. 11] such evidence attached thereto, by itself, dismiss
the case outright on any of the grounds for the
Attachments to the Statement of Claim dismissal of the case. The order of dismissal shall
1.   Certification of Non-forum Shopping, Splitting a state if it is with or without prejudice.
Single Cause of Action, and Multiplicity of Suits 2.   If, during the hearing, the court is able to
2.   Two (2) duly certified photocopies of the determine that there exists a ground for dismissal
actionable document/s subject of the claim of the Statement of Claim/s, the court may, by
3.   Affidavits of witnesses and other evidence to itself, dismiss the case even if such ground is not
support the claim pleaded in the defendant’s Response.
[Sec. 6] 3.   If plaintiff misrepresents that he/she/ it is not
engaged in the business of banking, lending or
Note: No evidence shall be allowed during the hearing similar activities when in fact he/she/it is so
which was not attached to or submitted together with engaged, the Statement of Claim/s shall be
the Claim. UNLESS good cause is shown for dismissed with prejudice and plaintiff shall be
admission of additional evidence [Sec. 6] meted the appropriate sanctions, such as direct
contempt.
No formal pleading, other than the Statement of 4.   However, if the case does not fall under this Rule,
Claim, is necessary to initiate a small claims action but falls under summary or regular procedure, the
[Sec. 6] case shall not be dismissed. Instead, the case
shall be re-docketed under the appropriate
Payment of filing fees procedure, and returned to the court where it was
1.   The plaintiff shall pay the docket and other legal assigned, subject to payment of any deficiency in
fees prescribed under Rule 141, unless allowed to the applicable regular rate of filing fees.
litigate as an indigent. 5.   If a case is filed under the regular or summary
2.   Exemption from the payment of filing fees shall procedure, but actually falls under this Rule, the
be granted only by the SC. case shall be referred to the Executive Judge for
3.   However, if more than 5 small claims are filed by appropriate assignment.
one party within the calendar year, regardless of [Sec. 11]
the judicial station, an additional filing fee of PHP
500 shall be paid for every claim filed after the 5th Even if not included in the grounds in the Rules of
claim, and an additional 100.00 or a total of Court, the court may dismiss the complaint for lack of
600.00 for every claim filed after the tenth 10th cause action if the plaintiff failed to preponderantly
claim, and another 100.00 or a total of 700 for establish its claim against the defendant by clear and
every claim filed after the 15th claim, convincing evidence. [Lourdes Suites v. Binarao, G.R.
progressively and cumulatively. No. 204729 (2014)]

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U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

Response   Prohibited Pleadings and

If no ground for dismissal is found, the court shall
issue Summons directing defendant to submit a
Motions
verified response [Sec. 12]
1.   Motion to dismiss the compliant except on the
The defendant shall file with the court and serve on ground of lack of jurisdiction;
the plaintiff a duly accomplished and verified 2.   Motion for a bill of particulars;
Response within a non - extendible period of 10 days 3.   Motion for new trial, or for reconsideration of a
from receipt of summons [Sec. 13] judgment, or for reopening of trial;
4.   Petition for relief from judgment;
Attachments (to Response): 5.   Motion for extension of time to file pleadings,
1.   Certified photocopies of documents affidavits, or any other paper;
2.   Affidavits of witnesses 6.   Memoranda;
3.   Evidence in support 7.   Petition for certiorari, mandamus, or prohibition
[Sec. 13] against any interlocutory order issued by the
court;
General rule: No evidence shall be allowed during 8.   Motion to declare the defendant in default;
hearing which was not attached or submitted together 9.   Dilatory motions for postponement;
with the Response. 10.   Reply and Rejoinder;
11.   Third-party complaints; and
Exception: Unless good cause is shown for the 12.   Interventions
admission of additional evidence [Sec. 13] [Sec. 16]

Should the defendant fail to file his response within

the required period, and likewise fail to appear on the
date set for hearing – the court by itself shall render
judgment as may be warranted by the facts alleged in
the Statement of claim [Sec. 14]

Should the defendant fail to file his response within

the required period, but appears on the date set for
hearing – the court shall ascertain what defense
he/she/it has to offer which shall constitute
his/her/its Response, and proceed to hear or
adjudicate the case on the same day as if a Response
has been filed [Sec. 14]

Note: The following is not expressly provided in the

section: “The court may, in its discretion, reduce the
amount of damages for being excessive or
unconscionable.”

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U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

  Appearances   Hearing; Duty of the

1.   The parties shall personally appear on the Judge
designated date of hearing.
2.   Appearance through a representative must be for At the beginning of the court session, the judge shall
a valid cause. read aloud a short statement explaining the nature,
3.   The representative of an individual-party must purpose and the rule of procedure of small claims
not be a lawyer, and must be related to or next- cases [Sec. 22]
of-kin of the individual-party.
4.   Juridical entities shall not be represented by a At the hearing, the judge shall first exert efforts to
lawyer in any capacity. bring the parties to an amicable settlement of their
5.   The representative must be authorized under a dispute [Sec. 23]
Special Power of Attorney to enter into an
amicable settlement of the dispute and to enter If the attempt at an amicable settlement fails, the
into stipulations or admissions of facts and of hearing shall so proceed in an informal and
documentary exhibits. expeditious manner and shall be terminated within
[Sec. 18] the same day [Sec. 23]

Attorneys not allowed Any settlement or resolution of the dispute shall be:
1.   No attorney shall appear in behalf of or represent 1.   Reduced into writing;
a party at the hearing, unless the attorney is the 2.   Signed by the parties; and,
plaintiff or defendant 3.   Submitted to the court for approval
2.   If the court determines that a party cannot [Sec. 23]
properly present his/her claim or defense and
needs assistance, the court may, in its discretion,
allow another individual who is not an attorney to
assist that party upon the latter’s consent.
[Sec. 19]

Failure to appear
1.   If plaintiff fails to appear – it shall be a cause for
dismissal without prejudice. Defendant present
shall be entitled to judgment on permissive
counterclaim.
2.   If defendant fails to appear – same effect as
failure to file Response.
3.   If both plaintiff and defendant fail to appear –
dismissal with prejudice of both the Statement of
Claim and the Counterclaim
[Sec. 20]

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U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

  Finality of Judgment
1.   After the hearing, the court shall render its
decision within 24 hours from termination of the
hearing, based on the facts established by the
evidence.
2.   The decision shall immediately be entered by the
Clerk of Court in the court docket for civil cases
and a copy thereof forthwith served on the parties.
3.   The decision shall be final, executory, and
unappealable
[Sec. 24]

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U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

XI.   RULES OF 17.   R.A. No. 8550, Philippine Fisheries Code;

18.   R.A. No. 8749, Clean Air Act;

PROCEDURE FOR 19.   R.A. No. 9003, Ecological Solid Waste

Management Act;

ENVIRONMENTAL 20.   R.A. No. 9072, National Caves and Cave Resource
Management Act;

CASES 21.   R.A. No. 9147, Wildlife Conservation and

Protection Act;
22.   R.A. No. 9175, Chainsaw Act;
[A.M. No. 09-6-8-SC] 23.   R.A. No. 9275, Clean Water Act;
24.   R.A. No. 9483, Oil Spill Compensation Act of
  Scope and Applicability 2007; and
25.   Provisions in C.A. No. 141, The Public Land Act;
of the Rule R.A. No. 6657, Comprehensive Agrarian Reform
Law of 1988; R.A. No. 7160, Local Government
Code of 1991; R.A. No. 7161, Tax Laws
These Rules shall govern the procedure in Incorporated in the Revised Forestry Code and
1.   civil, Other Environmental Laws [Amending the NIRC];
2.   criminal and R.A. No. 7308, Seed Industry Development Act of
3.   special civil actions 1992; R.A. No. 7900, High-Value Crops
Development
Before 26.   Rules of Procedure for Environmental Cases Act;
1.   Regional Trial Courts, R.A. No. 8048, Coconut Preservation Act; R.A.
2.   Metropolitan Trial Courts No. 8435, Agriculture and Fisheries
3.   Municipal Trial Courts in Cities Modernization Act of 1997; R.A. No. 9522, The
4.   Municipal Trial Courts and Philippine Archipelagic Baselines Law; R.A. No.
5.   Municipal Circuit Trial Courts 9593, Renewable Energy Act of 2008; R.A. No.
9637, Philippine Biofuels Act; and other existing
Involving enforcement or violations of laws that relate to the conservation,
environmental and other related laws, rules and development, preservation, protection and
regulations such as but not limited to the following: utilization of the environment and natural
1.   Act No. 3572, Prohibition Against Cutting of resources [Sec. 3, Rule 1]
Tindalo, Akli, and Molave Trees;
2.   P.D. No. 705, Revised Forestry Code;
3.   P.D. No. 856, Sanitation Code;
4.   P.D. No. 979, Marine Pollution Decree;
5.   P.D. No. 1067, Water Code;
6.   P.D. No. 1151, Philippine Environmental Policy of
1977;
7.   P.D. No. 1433, Plant Quarantine Law of 1978;
8.   P.D. No. 1586, Establishing an Environmental
Impact Statement System Including Other
Environmental Management Related Measures
and for Other Purposes;
9.   R.A. No. 3571, Prohibition Against the Cutting,
Destroying or Injuring of Planted or Growing
Trees, Flowering Plants and Shrubs or Plants of
Scenic Value along Public Roads, in Plazas, Parks,
School Premises or in any Other Public Ground;
10.   R.A. No. 4850, Laguna Lake Development
Authority Act;
11.   R.A. No. 6969, Toxic Substances and Hazardous
Waste Act;
12.   R.A. No. 7076, People’s Small-Scale Mining Act;
13.   R.A. No. 7586, National Integrated Protected
Areas System Act including all laws, decrees,
orders, proclamations and issuances establishing
protected areas;
14.   R.A. No. 7611, Strategic Environmental Plan for
Palawan Act;
15.   R.A. No. 7942, Philippine Mining Act;
16.   R.A. No. 8371, Indigenous Peoples Rights Act;

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  Civil Procedure Issuance of Notice of Pre-trial within 2 days from

filing of Answer [Sec. 1, Rule 3]
Who May File ¯
Any real party in interest, including the government Submission of Pre-Trial Briefs 3 days before pre-
and juridical entities authorized by law, may file a civil trial [Sec. 2, Rule 3]
action involving the enforcement or violation of any ¯
environmental law [Sec.4, Rule 2]. Referral to Mediation, Mediation and Mediation
Report [Sec. 3, Rule 3]
Citizen Suit ¯
1.   Any Filipino citizen in representation of others, Preliminary Conference [Sec. 4, Rule 3]
including minors or generations yet unborn,
may file an action to enforce rights or obligations ¯
under environmental laws. Pre-trial Conference/s [Sec. 5, Rule 3]
2.   Upon the filing of a citizen suit, the court shall ¯
issue an order which shall contain a brief Pre-trial Order [Sec. 9, Rule 3]
description of the cause of action and the reliefs
prayed for, requiring all interested parties to
¯
manifest their interest to intervene in the case Continuous Trial [Sec. 1, Rule 4]
within 15 days from notice thereof. ¯
3.   The plaintiff may publish the order once in a Judgment and Execution [Rule 5]
newspaper of a general circulation in the
Philippines or furnish all affected barangays
copies of said order.
1.   Prohibition against
4.   Citizen suits filed under R.A. 8749 (Clean Air Act) Temporary Restraining
and R.A. 9003 (Ecological Solid Waste
Management Act) shall be governed by their Order and Preliminary
respective provisions.
[Sec. 5, Rule 2]
Injunction
Except the SC, no court can issue a TRO or writ of
Declaration of Default Motu Proprio
preliminary injunction against lawful actions of
Should the defendant fail to answer the complaint
government agencies that enforce environmental
within the period provided, the court shall declare
laws or prevent violations thereof [Sec. 10, Rule 2].
defendant in default and upon motion of the plaintiff,
shall receive evidence ex parte and render judgment
Where the issuance of a TEPO is premised on the
based thereon and the reliefs prayed for [Sec. 15, Rule
violation of an environmental law or a threatened
2]
damage or injury to the environment by any person,
even the government and its agencies, the prohibition
Procedure
against the issuance of a TRO or preliminary
Filing of verified Complaint accompanied by injunction is premised on the presumption of
1.   affidavits of witnesses, documentary evidence, regularity on the government and its agencies in
and if possible, object evidence, and enforcing environmental laws and protecting the
2.   certification against forum shopping [Sec. 3, environment [Annotation to the Rules of Procedure for
Rule 2] Environmental Cases, Supreme Court Sub-Committee].
¯
Referral/Assignment by raffle to branch of court
2.  P re-Trial Conference;
¯
Issuance of Temporary Environmental Protection Consent Decree
Order (TEPO), when proper, effective for 72 hours
from receipt and, during the same period, conduct a.   The judge shall put the parties and their counsels
of a summary hearing for the extension of the under oath, and they shall remain under oath in
effectivity of the TEPO [Sec. 8, Rule 2] all pre-trial conferences.
b.   The judge shall exert best efforts to persuade the
¯ parties to arrive at a settlement of the dispute.
Service of Summons [Sec. 13, Rule 2] The judge may issue a consent decree approving
¯ the agreement between the parties in accordance
Filing of verified Answer within 15 days from with law, morals, public order and public policy to
receipt of summons [Sec. 14, Rule 2] protect the right of the people to a balanced and
¯ healthful ecology.

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c.   Evidence not presented during the pre-trial, Period to Try and Decide
except newly-discovered evidence, shall be a.   The court shall have a period of 1 year from the
deemed waived. filing of the complaint to try and decide the case.
[Sec. 5, Rule 3] b.   Before the expiration of the 1-year period, the
court may petition the SC for the extension of the
Consent decree refers to a judicially-approved period for justifiable cause.
settlement between concerned parties based on c.   The court shall prioritize the adjudication of
public interest and public policy to protect and environmental cases.
preserve the environment [Sec. 4(b), Rule 1]. [Sec. 5, Rule 4]

3.  Prohibited Pleadings and 5.  J udgment and Execution;

Motions Reliefs in a Citizen Suit
The following pleadings or motions shall not be Judgment Not Stayed By Appeal
allowed: Any judgment directing the performance of acts for
a.   Motion to dismiss the complaint; the protection, preservation or rehabilitation of the
b.   Motion for a bill of particulars; environment shall be executory pending appeal
c.   Motion for extension of time to file pleadings, unless restrained by the appellate court [Sec. 2, Rule
except to file answer, the extension not to exceed 5].
15 days;
d.   Motion to declare the defendant in default; Reliefs in a Citizen Suit
e.   Reply and rejoinder; and a.   If warranted, the court may grant to the plaintiff
f.   Third party complaint [Sec. 2, Rule 2] proper reliefs which shall include—
1.   the protection, preservation or rehabilitation
of the environment and
4.  T emporary Environmental 2.   the payment of attorney’s fees, costs of suit,
Protection Order (TEPO) and other litigation expenses
b.   The court may also require the violator
Ground for Issuance 1.   to submit a program of rehabilitation or
If it appears from the complaint with a prayer for the restoration of the environment, the costs of
issuance of an EPO that which shall be borne by the violator or
a.   the matter is of extreme urgency and 2.   to contribute to a special trust fund for that
b.   the applicant will suffer grave injustice and purpose subject to the control of the court
irreparable injury [Sec. 8, Rule 2] [Sec. 1, Rule 5].

Period of Effectivity No Damages Can Be Awarded In a Citizen Suit

Seventy-two (72) hours from date of the receipt of the This measure is in line with the policy that a citizen suit
TEPO by the party or person enjoined [Sec. 8, Rule 2]. is filed in the public interest, and in effect, it is the
environment which is vindicated in the action. The only
Duty of Court recourse of a party or person who wishes to recover
The court where the case is assigned, shall periodically damages for injury suffered is to file a separate action
monitor the existence of acts that are the subject under Sec. 4, Rule 2 [Annotation to the Rules of
matter of the TEPO even if issued by the executive Procedure for Environmental Cases, Supreme Court
judge, and may lift the same at any time as Sub-Committee].
circumstances may warrant [Sec. 8, Rule 2].
6.  P ermanent Environmental
The judge shall report any action taken on a TEPO,
EPO, TRO or a preliminary injunction, including its Protection Order; Writ of
modification and dissolution, to the Supreme Court,
through the Office of the Court Administrator, within
Continuing Mandamus
10 days from the action taken [Sec. 11, Rule 2].
In the judgment, the court may—
Ground to Dissolve TEPO a.   convert the TEPO to a permanent EPO OR
The TEPO may be dissolved if it appears after hearing b.   issue a writ of continuing mandamus directing the
that its issuance or continuance would cause performance of acts which shall be effective until
irreparable damage to the party or person enjoined the judgment is fully satisfied
while the applicant may be fully compensated for such [Sec. 3, Rule 5]
damages as he may suffer and subject to the posting
of a sufficient bond by the party or person enjoined
[Sec. 9, Rule 2].

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Continuing mandamus The hearing on the defense of a SLAPP shall be

A writ issued by a court in an environmental case summary in nature [Secs. 3, Rule 6]. The affirmative
directing any agency or instrumentality of the defense of a SLAPP shall be resolved within 30 days
government or officer thereof to perform an act or after the summary hearing [Secs. 4, Rule 6].
series of acts decreed by final judgment which shall
remain effective until judgment is fully satisfied [Sec. Quantum of Evidence
4(c), Rule 1] a.   Party seeking the dismissal of the case must
prove by substantial evidence that his acts for the
The court may, by itself or through the appropriate enforcement of environmental law is a legitimate
government agency, monitor the execution of the action for the protection, preservation and
judgment and require the party concerned to submit rehabilitation of the environment
written reports on a quarterly basis or sooner as may b.   Party filing the action assailed as a SLAPP shall
be necessary, detailing the progress of the execution prove by preponderance of evidence that the
and satisfaction of the judgment. The other party may, action is not a SLAPP and is a valid claim
at its option, submit its comments or observations on [Secs. 3, Rule 6]
the execution of the judgment [Sec.3, Rule 5]
Resolution of the Defense of a SLAPP
a.   If action is dismissed, dismissal is with prejudice
7.  Strategic Lawsuit Against b.   If defense of SLAPP is rejected, action will proceed
Public Participation and evidence adduced during the summary
hearing shall be treated as evidence of the parties
(SLAPP) on the merits of the case
[Sec. 4, Rule 6]
SLAPP refers to a legal action filed to harass, vex,
exert undue pressure or stifle any legal recourse that
any person, institution or the government has taken or
may take in the enforcement of environmental laws,
protection of the environment or assertion of
environmental rights [Sec. 1, Rule 6].

The SLAPP provisions apply not only to suits that have

been filed in the form of a countersuit, but also to suits
that are about to be filed with the intention of
discouraging the aggrieved person from bringing a
valid environmental complaint before the court
[Annotation to the Rules of Procedure for Environmental
Cases, Supreme Court Sub-Committee].

Illustrations:
a.   X files a complaint in an environmental case
against A [violator of environmental laws] and the
A retaliates by filing a complaint for damages
against X;
b.   X is a witness in a pending environmental case
against A and A retaliates by filing a complaint for
damages or libel against X; or
c.   X is an environmental advocate who rallies for the
protection of environmental rights and a
complaint for damages is filed against him by A
[Annotation to the Rules of Procedure for
Environmental Cases, Supreme Court Sub-
Committee]

SLAPP as a Defense
If the suit is a SLAPP, such may be raised as an
affirmative defense in the Answer along with other
defenses.

If SLAPP is interposed as a defense, it is mandatory for

adverse party to file an Opposition [Sec. 2, Rule 6].

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U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

  Special Civil Actions e.   Counterclaim or cross-claim;

f.   Third-party complaint;
g.   Reply; and
1.   Writ of Kalikasan h.   Motion to declare respondent in default
[Sec. 9, Rule 7]
Who May File
a.   natural or juridical person, 3.  Discovery Measures
b.   entity authorized by law,
c.   people’s organization, non-governmental A party may file a verified motion for the following
organization, or any public interest group reliefs:
accredited by or registered with any government a.   Ocular Inspection
agency, on behalf of persons whose constitutional b.   Production or inspection of documents and things
right to a balanced and healthful ecology is The motion must show that the order granting either
violated, or threatened with violation by an relief is necessary to establish the magnitude of the
unlawful act or omission of a public official or violation or the threat as to prejudice the life, health or
employee, or private individual or entity, involving property of inhabitants in two or more cities or
environmental damage of such magnitude as to provinces [Sec. 12, Rule 7].
prejudice the life, health or property of
inhabitants in two or more cities or provinces OCULAR INSPECTION
[Sec. 1, Rule 7] Purpose
To order any person in possession or control of a
Acts Covered By the Writ designated land or other property to permit entry for
Unlawful act or omission of a public official or the purpose of inspecting or photographing the
employee, or private individual or entity, involving property or any relevant object or operation thereon
environmental damage of such magnitude as to [Sec. 12, Rule 7]
prejudice the life, health or property of inhabitants in
two or more cities or provinces [Sec. 1, Rule 7] PRODUCTION OR INSPECTION OF DOCUMENTS
AND THINGS
Where to File Purpose
The petition shall be filed with the SC or with any of To order any person in possession, custody or control
the stations of the CA [Sec. 3, Rule 7] of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible
Procedure things, or objects in digitized or electronic form, which
Filing of verified Petition with Certificate Against constitute or contain evidence relevant to the petition
Forum Shopping [Sec. 2, Rule 7] or the return, to produce and permit their inspection,
¯ copying or photographing by or on behalf of the
Issuance of Writ of Kalikasan within 3 days from movant [Sec. 12, Rule 7]
filing of petition [Sec. 5, Rule 7]
APPEAL
¯ Within 15 days from the date of notice of the adverse
Service of the Writ [Sec. 6, Rule 7] judgment or denial of motion for reconsideration, any
¯ party may appeal to the Supreme Court under Rule 45
Filing of a verified Return within a non- of the Rules of Court. The appeal may raise questions
extendible period of 10 days after service of the of fact [Sec. 16, Rule 7]
writ [Sec. 7, Rule 7]
¯ 4.  W rit of Continuing
Hearing (court may call for preliminary
conference) [Sec. 11, Rule 7] Mandamus
¯ When Available
Judgment [Sec. 15, Rule 7] a.   Any agency or instrumentality of the government
or officer thereof:
2.  P rohibited Pleadings and 1.   unlawfully neglects the performance of an
act which the law specifically enjoins as a
Motions duty resulting from an office, trust or station
in connection with the enforcement or
The following pleadings and motions are prohibited: violation of an environmental law, rule or
a.   Motion to dismiss; regulation or a right therein OR
b.   Motion for extension of time to file return; 2.   unlawfully excludes another from the use or
c.   Motion for postponement; enjoyment of such right; AND
d.   Motion for a bill of particulars;

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U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

b.   there is no other plain, speedy and adequate persons whose right

remedy in the ordinary course of law to a balanced and
[Sec. 1, Rule 8] healthful ecology
is violated or
Where to File threatened to be
a.   RTC exercising jurisdiction over the territory violated [Sec. 1, Rule
where the actionable neglect or omission 7]
occurred Respondent
b.   CA; or May be public or
c.   SC Government or its
private individual or
[Sec. 2, Rule 8] officers[Sec. 1, Rule 8]
entity [Sec. 1, Rule 7]
Docket Fees
Procedure Exempted [Sec. 4,
File a verified Petition with prayer that respondent Exempted [Sec. 3, Rule 8]
Rule 7]
be ordered to do an act or series of acts until the Venue
judgment is fully satisfied, and to pay damages a.   RTC exercising
sustained by the petitioner + Certification Against territorial jurisdiction,
Forum Shopping [Sec. 1, Rule 8] SC or CA [Sec. 2, Rule
b.   CA,
7]
¯ c.   SC
Issuance of Writ of Continuing Mandamus and [Sec. 3, Rule 8]
Order to Comment [Sec. 4, Rule 8] Discovery Measures
¯ Ocular Inspection
Filing of Comment within 10 days after receipt of and Production or
None
Order [Sec. 4, Rule 8] Inspection Order
[Sec. 12, Rule 7]
¯ Damages
Summary Hearing [Sec. 6, Rule 8] None [Sec. 17, Rule 7] Allowed [Sec. 1, Rule 78
¯
Judgment [Sec. 7, Rule 8]
¯
Return of the Writ [Sec. 8, Rule 8]

Distinctions Between Writ of Kalikasan and Writ of

Continuing Mandamus
Kalikasan Continuing Mandamus
Subject Matter
Directed against
Available against an
[a] the unlawful neglect in
unlawful
the performance of an
act or omission of a
act specifically enjoined
public official or
by law in connection with
employee, or private
the enforcement/
individual or entity,
violation of an
involving
environmental rule or
environmental
[b] the unlawfully
damage of such
exclusion of another from
magnitude as to
the use or enjoyment of
prejudice the life,
such right and in both
health or property of
instances, there is no
inhabitants in two or
other plain, speedy and
more cities or
adequate remedy in the
provinces [Sec. 1,
ordinary course of law
Rule 7[
[Sec. 1, Rule 8]
Who May File
a.   natural and
juridical persons Person personally
b.   entities aggrieved by the unlawful
authorized by law act or omission [Sec. 1,
c.   POs, NGOs, PIG, Rule 8]
on behalf of

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U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

  Criminal Procedure 4.  S trategic Lawsuit Against

Public Participation
1.   Who May File [SLAPP]
a.   Offended party; The manner by which to allege that a criminal action
b.   Peace officer; is a SLAPP is through a motion to dismiss [Sec. 1, Rule
c.   Public officer charged with the enforcement of an 19] rather than a motion to quash. A motion to dismiss
environmental law allows the action to be challenged as a SLAPP, while
[Sec. 1, Rule 9] a motion to quash is directed at the Information.
Moreover, granting a motion to dismiss bars the
2.  I nstitution of Criminal and refiling of a SLAPP in accordance with the law of the
case. In contrast, the grant of a motion to quash does
Civil Action not bar the filing of a subsequent Information
[Annotation to the Rules of Procedure for Environmental
a.   When a criminal action is instituted, the civil Cases, Supreme Court Sub-Committee]
action for the recovery of civil liability arising from
the offense charged, shall be deemed instituted
with the criminal action unless the complainant 5.  P rocedure in the Custody
waives the civil action, reserves the right to and Disposition of Seized
institute it separately or institutes the civil action
prior to the criminal action. Items
b.   Unless the civil action has been instituted prior to
the criminal action, the reservation of the right to The applicable rules and regulations of the concerned
institute separately the civil action shall be made government agency shall be followed [Sec. 1, Rule 12].
during arraignment.
c.   In case civil liability is imposed or damages are In the absence of such rules and regulations, the
awarded, the filing and other legal fees shall be following procedure shall be observed:
imposed on said award in accordance with Rule a.   Inventory. The apprehending officer having initial
141 of the Rules of Court, and the fees shall custody and control of the seized items,
constitute a first lien on the judgment award. The equipment, paraphernalia, conveyances and
damages awarded in cases where there is no instruments shall physically inventory and
private offended party, less the filing fees, shall whenever practicable, photograph the same in
accrue to the funds of the agency charged with the the presence of the person from whom such items
implementation of the environmental law were seized.
violated. The award shall be used for the b.   Return. The apprehending officer shall submit to
restoration and rehabilitation of the environment the issuing court the return of the search warrant
adversely affected within 5 days from date of seizure or in case of
[Sec. 1, Rule 10] warrantless arrest, submit within 5 days from
date of seizure, the inventory report, compliance
report, photographs, representative samples and
3.  Arrest Without Warrant, other pertinent documents to the public
When Valid prosecutor for appropriate action.
c.   Sale Upon Motion. Upon motion by any
a.   When, in his presence, the person to be arrested interested party, the court may direct the auction
has committed, is actually committing or is sale of seized items, equipment, paraphernalia,
attempting to commit an offense; or tools or instruments of the crime. The court shall,
b.   When an offense has just been committed, and he after hearing, fix the minimum bid price based on
has probable cause to believe based on personal the recommendation of the concerned
knowledge of facts or circumstances that the government agency. The sheriff shall conduct the
person to be arrested has committed it. auction. The auction sale shall be with notice to
Individuals deputized by the proper government the accused, the person from whom the items
agency who are enforcing environmental laws shall were seized, or the owner thereof and the
enjoy the presumption of regularity under Section concerned government agency. The notice of
3(m), Rule 131 of the Rules of Court when effecting auction shall be posted in three conspicuous
arrests for violations of environmental laws places in the city or municipality where the items,
[Sec. 1, Rule 11] equipment, paraphernalia, tools or instruments of
the crime were seized.
d.   Disposition of Proceeds. The proceeds shall be
held in trust and deposited with the government

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U.P. LAW BOC SPECIAL RULES REMEDIAL LAW

depository bank for disposition according to the conference to be set at least three days prior to the
judgment pre-trial [Sec. 2, Rule 15]
[Sec. 2, Rule 12]
Parties are required to be under oath in pre-trial in
order to obviate the use of false or misleading
6.  B ail statements at this stage [Annotation to the Rules of
Procedure for Environmental Cases, Supreme Court
Written Undertaking by Accused Sub-Committee]
a.   To appear before the court that issued the warrant
of arrest for arraignment purposes on the date
scheduled, and if the accused fails to appear 9.  S ubsidiary Liabilities
without justification on the date of arraignment,
accused waives the reading of the information In case of conviction of the accused and subsidiary
and authorizes the court to enter a plea of not liability is allowed by law, the court may, by motion of
guilty on behalf of the accused and to set the case the person entitled to recover under judgment,
for trial; enforce such subsidiary liability against a person or
b.   To appear whenever required by the court where corporation subsidiary liable under Article 102 and
the case is pending; and Article 103 of the Revised Penal Code [Sec. 1, Rule 18]
c.   To waive the right of the accused to be present at
the trial, and upon failure of the accused to
appear without justification and despite due
notice, the trial may proceed in absentia
[Sec. 2, Rule 14]

If the court grants bail, the court may issue a hold-

departure order in appropriate cases [Sec. 1, Rule 14]
[Rule 13, Sec.1]

7.  Arraignment and Plea

When
The court shall set the arraignment of the accused
within 15 days from the time it acquires jurisdiction
over the accused, with notice to the public prosecutor
and offended party or concerned government agency
that it will entertain plea-bargaining on the date of the
arraignment [Sec. 1, Rule 15]

Plea-Bargaining
a.   On the scheduled date of arraignment, the court
shall consider plea-bargaining arrangements.
b.   Where the prosecution and offended party or
concerned government agency agree to the plea
offered by the accused, the court shall:
1.   Issue an order which contains the plea-
bargaining arrived at;
2.   Proceed to receive evidence on the civil
aspect of the case, if any; and
3.   Render and promulgate judgment of
conviction, including the civil liability for
damages
[Sec. 2, Rule 15]

8.  P re-trial
After the arraignment, the court shall set the pre-trial
conference within 30 days. It may refer the case to the
branch clerk of court, if warranted, for a preliminary

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  Evidence
1.   Precautionary Principle
When there is a lack of full scientific certainty in
establishing a causal link between human activity and
environmental effect, the court shall apply the
precautionary principle in resolving the case before it.
The constitutional right of the people to a balanced
and healthful ecology shall be given the benefit of the
doubt.
[Sec. 1, Rule 20]

For purposes of evidence, the precautionary principle

should be treated as a principle of last resort, where
application of the regular Rules of Evidence would
cause in an inequitable result for the environmental
plaintiff (a) settings in which the risks of harm are
uncertain; (b) settings in which harm might be
irreversible and what is lost is irreplaceable; and (c)
settings in which the harm that might result would be
serious. When these features — uncertainty, the
possibility of irreversible harm, and the possibility of
serious harm — coincide, the case for the
precautionary principle is strongest [ISAAA v.
Greenpeace, G.R. No. 209271 (2015)]

Standards for application

In applying the precautionary principle, the following
factors, among others, may be considered: (1) threats
to human life or health; (2) inequity to present or
future generations; or (3) prejudice to the environment
without legal consideration of the environmental
rights of those affected [Sec. 2, Rule 20]

2.  D ocumentary Evidence
a.   Photographs, videos and similar evidence of
events, acts, transactions of wildlife, wildlife by-
products or derivatives, forest products or mineral
resources subject of a case shall be admissible
when authenticated by the person who took the
same, by some other person present when said
evidence was taken, or by any other person
competent to testify on the accuracy thereof [Sec.
1, Rule 21]
b.   Entries in official records made in the
performance of his duty by a public officer of the
Philippines, or by a person in performance of a
duty specially enjoined by law, are prima facie
evidence of the facts therein stated [Sec. 2, Rule
21]

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