Remedial Law Reviewer Large 2017 PDF

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Remedial Law
Reviewer
Jannycer M. Auza
10-17-83
Genesis M. Auza
04-02-91
JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 1

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FOREWORD
First and foremost, there is NO claim of ORIGINALITY in creating this work, except for the
fact of organizing, compiling and editing various sources. This is basically in CODAL form
with annotations, primarily, from Ateneo and San Beda Remedial Law Reviewers, the
Books of Herrera, the works of Atty. Angel Ucat, Lawphil.net, Chan Robles Virtual Law
Library, some selected Supreme Court decisions and classroom discussions of professors.
Some cited cases are personally researched and some are merely copied from different
sources. Provisions not anymore explained are either self-explanatory or are not critical
areas for the Bar Examination. This is created/organized for the purpose of taking the BAR.
This is intended to be used as a PERSONAL Review material in Remedial Law and other
related laws falling under the coverage of the Bar Examination.
DISCLAIMER
This work is PERSONALLY prepared with a very limited time. The text may contain some
clerical and grammatical errors. Too little time was available for the editing of this work.
Nevertheless, this is created with the sincere belief that this is personally helpful to the
author for purposes of the BAR as well as to any person who may, in any way, show
interest. This, however, is NOT intended for sale. It may be copied by friends and person/s
who might be interested in this work. The author is in NO WAY liable for any erroneous
information contained in this work. Questions, suggestions and/or clarifications are,
however, WELCOME.
JANNYCER AUZA
Poblacion, San Miguel, Bohol
CP # 09091289995

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cases where the issues have already been

joined. (C) Yes, since procedural rules have
REMEDIAL
retroactive effect. (D) Yes, since procedural
rules generally apply prospectively to
pending cases.
LAW Remedial Law; Concept (2006)

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

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Jurisdiction over the subject matter is what is being authorized to dismiss the case motu
conferred by law. Jurisdiction over the parties, proprio.
issues, and res is governed by procedural laws.
Exception: Estoppel by Laches- (Tijam vs.
REQUISITES FOR VALID EXECISE OF Sibonghanoy 23 SCRA 29).
JURISDICTION
NOTE: The question of jurisdiction, in the
1. Must have jurisdiction over the parties. case of Tijam, was raised in the first time on
appeal.
 Plaintiff; acquired the moment he files his
complaint, petition, or other initiatory Important: Estoppel by laches, was applied in
pleading. the case pending before the RTC for 15 years,
where the defendant filed an ANSWER and
asserted AFFIRMATIVE RELIEFS
NOTE: Non-payment of the required filing fees at (counterclaim).[Soliven (soliven fast corp.)?
the time of the filing of thee complaint or other vs. CA (2004)].
initiatory pleading fails to vest jurisdiction over the
case. However, when the plaintiff paid the filing fees Jurisdiction; Over the Plaintiff, Subject
assessed by the clerk of court, and the amount Matter (2009) No.III. Amorsolo, a Filipino
turns out to be deficient, the trial court acquires citizen permanently residing in New York
jurisdiction, subject to the payment of the deficiency City, filed with the RTC of Lipa City a
within the prescriptive period (Fedman vs. Agcaoli, complaint for Rescission of Contract of Sale
GR No. 165025). of Land against Brigido, a resident of
Barangay San Miguel, Sto. Tomas,
 Defendant; acquired either by his voluntary Batangas. The subject property, located in
appearance in court and his submission to Barangay Talisay, Lipa City, has an
its authority, or by service of summons or assessed value of 19,700. Appended to the
other coercive process upon him. complaint is Amorsolo’s verification and
certification of non-forum shopping
executed in New York City, duly notarized
Instances of voluntary appearance:
by Mr. Joseph Brown, Esq., a notary public
a. Asking extension of time to
in the State of New York. Brigod filed a
file answer;
motion to dismiss the complaint on the
b. Filing an answer;
following grounds: (a) The court cannot
c. Filing motion for
reconsideration of the acquire jurisdiction over the person of
judgment by default; Amorsolo because he is not a resident of
d. Filing a petition to set aside the Philippines; (2%) SUGGESTED
the judgment of default; ANSWER: The first ground raised lacks
e. When defendant jointly merit because jurisdiction over the
submits a compromise person of a plaintiff is acquired by the
agreement for approval of court upon the filing of plaintiff‟s
the trial court. complaint therewith. Residency or
citizenship is not a requirement for
filing a complaint, because plaintiff
2. Must have jurisdiction over the subject matter
of the controversy. thereby submits to the jurisdiction of
the court.
 Conferred by law and not by agreement of (b) The RTC does not have jurisdiction over
the parties. the subject matter of the action involving
 Determined by the allegations made in the real property with an assessed value of
complaint (NOT from the answer, as a rule) P19,700.00; exclusive and original
 Governed by law at the time the action is jurisdiction is with the Municipal Trial
COMMENCED. Court where the defendant resides; (3%)
and
GR: Lack of jurisdiction over the subject matter SUGGESTED ANSWER: The second
is non-waivable by the parties and may be ground raised is also without merit
raised at any stage of the proceeding, the court because the subject of the litigation,
Rescission of Contract, is incapable of
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pecuniary estimation the exclusive original activity necessary for such execution,
jurisdiction to which is vested by law in the implementation or operation.
Regional Trial Courts. The nature of the
action renders the assessed value of the NOTE: If the action is specific performance OR
land involved irrelevant. damages, look at the amount of damages to
determine jurisdiction. If the action is specific
GR: Court has the authority to dismiss the case performance AND damages, the action is
motu proprio for lack of jurisdiction. Motion to incapable of pecuniary estimation, thus,
dismiss on said ground does not need jurisdiction is with the RTC (Review Lecture).
presentation of evidence.
Exception: In an ejectment case where the Bar Exam Question 2012

defense invokes tenancy relationship. In this case, 9. Preliminary Prohibitive Injunction will
the court must conduct a preliminary hearing on not lie:
said defense of agricultural tenancy. If there is a. to enjoin repeated trespass on land.
indeed tenancy relations, the EXCLUSIVE b. in petitions for certiorari and mandamus.
jurisdiction falls with the DARAB (Concepcion vs. c. to restrain implementation of national
CFI of Bulacan,119 SCRA 222). government infrastructure project.
d. to restrain voting of disputed shares of
JURISDICTION OVER THE NATURE OF THE stock.
ACTION SUGGESTED ANSWER: (c), No court in
Here, a court which ordinarily would have the Philippines shall have jurisdiction to
authority and competence to take a case, is issue any restraining order, preliminary
rendered without it because the type of the action injunction, or preliminary mandatory
has been reposed by law in certain other courts or injunction in any case, dispute, or
quasi-judicial agencies. controversy involving an infrastructure
project, and natural resource
Examples: development projects and public utilities
a. When the offender or the victim in a crime is operated by the Government (Section 1,
a minor, even if the crime is punishable by P.D. 1818).
prision correctional which is cognizable by
an inferior court, the case falls with a proper Bar Exam Question 2012
Family Court, an RTC, specifically 67. The Court of Appeals cannot issue a
designated by the SC;
temporary restraining order in the following
b. Heinous Crimes. Not all RTCs have
cases·, except:
cognizance of said cases. There are special
a. bidding and awarding of a project of
branches of RTCs specially designated as
the national government.
heinous crimes courts;
b. against any freeze order issued by the
c. Intra-corporate controversies now falling
under RTC, but only those RTCs specially AMLC under the antimoney laundering law.
designated by SC in AM No. 00-03; c. against infrastructure projects like the
d. In case involving sales subdivision lots by SLEX extension.
developers to lot buyers or sales of lots in d. against the DAR in the implementation of
memorial parks which fall under HLURB the CARL Law.
(sec. 1, PD 957); SUGGESTED ANSWER:
e. Case between landlord and tenant and (a), There is no law which prohibits the
arising from tenancy relationship which falls Court of Appeals from issuing a
under DARAB (RA 6657); temporary restraining order on the
f. Section 1 of PD 1818 providing that “No bidding and awarding of a project of the
court in the Philippines shall have national government. On the contrary,
jurisdiction to issue any restraining order, there are laws which expressly prohibit
preliminary injunction, or preliminary the Court of Appeals from issuing a
mandatory injunction in any case, dispute, temporary restraining order against any
or controversy involving an infrastructure of the following: (i) freeze order issued by
project… of the government… to prohibit the AMLC under the anti-money
any person or persons, entity or government laundering law, except the Supreme
official from proceeding with, or continuing Court. (R.A. 10167, Sec.10); (ii)
the execution or implementation of any of infrastructure projects like the SLEX
such project… or pursuing any lawful extension because only the Supreme

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Court can issue the same. (Sec.10, R.A. No. 3. Must have jurisdiction over the res
10167 and R.A. No. 8975); and (iii) DAR in (thing or property under litigation).
the implementation of the CARL Law.
(Sec.55, R.A. No. 6657). Jurisdiction over the res applicable only
in actions in rem and quasi-in rem.
Jurisdiction; Subdivision Homeowner (2006)  Acquired either by the seizure of the

What court has jurisdiction over an action for specific property under legal process or as a
performance filed by a subdivision homeowner against result of the institution of legal
a subdivision developer? Choose the correct answer. proceedings, in which the power of
Explain. the court is recognized and made
1 The Housing and Land Use Regulatory Board effective.
2 The Securities and Exchange Commission
3 The Regional Trial Court 4. Must have jurisdiction over the issues.
4 The Commercial Court or the Regional Trial
Court designated by the Supreme Court to hear and
decide "commercial cases."  As raised in the pleadings;
SUGGESTED ANSWER:  Or their agreement in the pre-trial
An action for specific performance by a subdivision order;
homeowner against a subdivision developer is within the  Or tried with their implied consent
jurisdiction of the Housing and Land Use Regulatory (failure to make timely objection).
Board. Sec. 1 of P.D. 1344 provides that the HLURB has
jurisdiction over cases involving specific performance of JURISDICTION vs. EXERCISE OF
contractual and statutory obligations filed by buyers of JURISDICTION
subdivision lots and condominium units against the owner, The authority to decide the case and not the
developer, dealer, broker or salesman (Manila Bankers Life decision rendered therein is what makes up
Insurance Corp. v. Eddy Ng Kok Wei, G.R. No. 139791,
December 12, 2003; Kakilala v. Faraon, G.R. No. 143233,
jurisdiction. Where there is jurisdiction, the
October 18, 2004; Sec. 1, P.D. 1344). decision on all other questions arising in the
case is but an exercise of jurisdiction.
Actions; Specific Performance (2012)
No.IV.A. A bought a Volvo Sedan from ABC Where there is an exercise of jurisdiction in
Cars for P 5.0M. ABC Cars, before delivering to the absence of jurisdiction, the court would
A, had the car rust proofed and tinted by XYZ be committing an error of jurisdiction.
Detailing. When delivered to A, the car's
upholstery was found to be damaged. ABC Where on the other hand, the court acted
Cars and XYZ Detailing both deny any liability. with jurisdiction but committed procedural
Who can A sue and on what cause(s) of action? error or errors in the appreciation of facts or
Explain. (5%) SUGGESTED ANSWER: A can of law, there would be a mere error of
file an action for specific performance and judgment.
damages against ABC Cars since the damage
to the Volvo Sedan‟s upholstery was caused In error of jurisdiction the judgment is void or
before the delivery of the same to A, and at least voidable. Error of judgment does not
therefore prior to the transfer of ownership make the decision void. The former is
to the latter. (Article 1477, New Civil Code). correctible by certiorari. The latter is by
Under Article 1170 of the New Civil Code, appeal.
those who contravene the tenor of the
obligation are liable for damages. Hence, an Error of Jurisdiction vs. Error of Judgment
action for specific performance against ABC (2012) No.III.A. Distinguish error of jurisdiction
Corporation to deliver the agreed Volvo from error of judgment. (5%) SUGGESTED
Sedan in the contract, free from any
ANSWER: An error of judgment is one which
damage or defects, with corresponding
the court may commit in the exercise of its
damages will lie against ABC Cars.
jurisdiction. Such an error does not deprive the
ALTERNATIVE ANSWER: A can sue ABC
Cars for specific performance or rescission court of jurisdiction and is correctible only by
because the former has contractual appeal; whereas an error of jurisdiction is one
relations with the latter. which the court acts without or in excess of its
jurisdiction. Such an error renders an order or
judgment void or voidable and is correctible by

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the special civil action of certiorari. (Dela Cruz vs. law law
Moir, 36 Phil. 213; Cochingyan vs. Claribel, 76 SCRA Fixed by law May be subject to
361; Fortich vs. Corona, April 24, 1998, 289 SCRA agreement by the
624; Artistica Ceramica, Inc. vs. Ciudad Del Carmen parties
Homeowner‟s Association, Inc., G.R. Nos. 167583- Jurisdiction over the Waivable
84, June 16, 2010). subject matter cannot
be waived
KINDS OF JURISDICTION Establishes the Establishes a relation
relation between the between the plaintiff
court and the subject and the defendant
1. As to cases tried; matter
Court can motu proprio Court may not dismiss
 GENERAL jurisdiction – Exercised dismiss the case for the case on the ground
over all kinds of cases, except lack of jurisdiction of improper venue
those withheld from the plenary Deals with substance Deals with
powers of the court. convenience
 LIMITED jurisdiction - Exercised Limitation on the court Limitation on the
over particular or specified cases. plaintiff
2. As to the nature of the cause: Jurisdiction vs. Venue (2006)

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

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

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(B) Courts will not hear and decide cases provision of substantive law. (B) The
involving issues that come within the Supreme Court may disregard the doctrine
jurisdiction of administrative tribunals. in cases of national interest and matters of
(C) No court has the authority to interfere serious implications. (C) A higher court will
by injunction with the judgment of another not entertain direct recourse to it if redress
court of coordinate jurisdiction. (D) A higher can be obtained in the appropriate courts.
court will not entertain direct resort to it (D) The reason for it is the need for higher
unless the redress sought cannot be obtained courts to devote more time to matters
from the appropriate court. within their exclusive jurisdiction.
The doctrine does not apply where the DOCTRINE OF ADHERENCE TO

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

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

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

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

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

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

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

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

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performance would still be considered a real RC NOT APPLICCABLE IN: (C-L-I-N-E)

action where it seeks the conveyance or
transfer of real property, or ultimately, the 1. Election
execution of deeds of conveyance of real
property. (Gochan vs. Gochan, 423 Phil.  An election case cannot be dismissed
491, 501 [2001]; Copioso vs. Copioso, 391 for failure to attach a CAFS (Barroso vs.
SCRA 325 [2002]) Ampig, 328 SCRA 530).
 A protestee cannot insist on the right to
Venue; Real Actions (2008) No.III. (a) Angela, present his evidence after his demurrer
a resident of Quezon City, sued Antonio, a to evidence was denied (Gementiza vs.
resident of Makati City before the RTC of COMELEC, L-140884, March 6, 2001).
Quezon City for the reconveyance of two
parcels of land situated in Tarlac and Nueva 2. Cadastral/land registration
Ecija, respectively. May her action prosper? 3. Naturalization
SUGGESTED ANSWER:
No, the action will not prosper because it
 The CA can deny an application for
was filed in the wrong venue. Since the
naturalization on the basis of an
action for reconveyance is a real action, it
evidence not formally offered in
should have been filed separately in Tarlac
evidence, although the same is contrary
and Nueva Ecija, where the parcels of land
to sec. 34, Rule 132 (Ong Chia vs.
are located (Section 1, Rule 4; United
Republic. 328 SCRA 749).
Overseas Bank of the Philippines vs.
Rosemoore Mining & Development Corp., et
al., G.R. nos. 159669 & 163521, March 12, 4. Insolvency
2007). However, an improperly laid venue 5. Other cases not provided
may be waived, if not pleaded in a timely
motion to dismiss (Sec. 4, Rule 4). Without  Rules of Court Not applicable in court
a motion to dismiss on the ground of martial proceedings (Magno vs. Villa,
improperly laid venue, it would be incorrect 199 SCRA 663).
for the Court to dismiss the action for  Affidavits, though hearsay, allowed in
improper venue. administrative bodies like the NLRC
(b) Assuming that the action was for (Bantolino vs. Coca-Cola Bottlers, L-
foreclosure on the mortgage of the same 153660,June 10, 2003).
parcels of land, what is the proper venue for  Impeachment Proceedings
the action? SUGGESTED ANSWER: The
action must be filed in any province where Except:
any of the lands involved lies – either in
tarlac or in Nueva Ecija, because the action a). by analogy or suppletory in character,
is a real action (BPI vs. Green, 57 Phil. 712;
Sec. 1, Rule 4; Bank of America vs. b). when practicable and convenient.
American Realty Corp., G.R. No. 133876, 29
December 1999). However, an improperly Section 5. Commencement of action. —
laid venue may be waived if not pleaded as a A civil action is commenced by the filing of
ground for dismissal (Sec. 4, Rule 4).
the original complaint in court. If an
[Note: The question is the same as 2009
additional defendant is impleaded in a
Remedial Law Bar question No.II. See
later pleading, the action is commenced
Jurisdiction: Jurisdiction; RTC, Supra –
with regard to him on the dated of the
JayArhSals]
filing of such later pleading, irrespective of
whether the motion for its admission, if
necessary, is denied by the court. (6a)
Section 4. In what case not applicable. —
These Rules shall not apply to election cases,
NOTE: Civil actions are deemed commenced
land registration, cadastral, naturalization
from the date of filing and docketing of the
and insolvency proceedings, and other cases complaint, without taking into account the
not herein provided for, except by analogy or issuance and service of summons (Cabrera vs.
in a suppletory character and whenever Tiano 8 SCRA 542)
practicable and convenient. (R143a)

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Pleadings; Amendment of Complaint; By Leave of Court; NOTE: The amount of damages must be
Prescriptive Period (2000) specified not only in the body of the complaint
X, an illegitimate child of Y, celebrated her 18th birthday but also in the prayer.
on May 2, 1996. A month before her birthday, Y died.
The legitimate family of Y refused to recognize X as an The court may allow the payment of deficient
illegitimate child of Y. After countless efforts to docket fee within a reasonable time but not
convince them, X filed on April 25, 2000 an action for beyond the applicable prescriptive period.
recognition against Z, wife of Y. After Z filed her
answer on August 14, 2000, X filed a motion for leave to As compared to payment of filing fess in the
file an amended complaint and a motion to admit the appeal, the latter requires payment in full of
said amended complaint impleading the three (3) docket and other lawful fees to perfect the
legitimate children of Y. The trial court admitted the appeal.
amended complaint on August 22, 2000. What is the
effect of the admission of the amended complaint? Has An action can be commenced by filing the
the action of X prescribed? complaint by registered mail. In which case, it is
Explain. (5%) the date of mailing that is considered the date of
SUGGESTED ANSWER:
filing and not the date of receipt thereof by the
No. The action filed on April 25, 2000 is still within the
clerk of court.
four-year prescriptive period which started to run on May
2, 1996. The amended complaint impleading the three
legitimate children, though admitted on August 22, 2000 NOTE: date of filing is necessary to determine
beyond the four-year prescriptive period, retroacts to the whether or not the action has prescribed.
date of filing of the original complaint. Amendments
impleading new defendants retroact to the date of the filing EFFECTS OF FILING COMPLAINT:
of the complaint because they do not constitute a new 1. Substantive Aspect – it interrupts the
cause of action. (Verzosa v. Court of Appeals, 299 SCRA 100 running of the prescriptive period.
[1998]). (Note: The four-year period is based on Article 285 of the Civil 2. Procedural Aspect – jurisdiction over
Code)
the person of the plaintiff is acquired.
ALTERNATIVE ANSWER: Under the 1997 Rules of Civil
Procedure, if an additional defendant is impleaded in a
later pleading, the action is commenced with regard to Section 6. Construction. — These Rules
him on the date of the filing of such later pleading, shall be liberally construed in order to
irrespective of whether the motion for its admission, if promote their objective of securing a just,
necessary, is denied by the court. (Sec. 5 of Rule 1). speedy and inexpensive disposition of
Consequently, the action of X has prescribed with every action and proceeding. (2a)
respect to the three (3) legitimate children of Y who are
indispensable parties. Liberal Construction; Rules of Court (1998)
ANOTHER ALTERNATIVE ANSWER: How shall the Rules of Court be construed? [2%]
Under Article 175 of the Family Code, the action must SUGGESTED ANSWER:
be brought within the lifetime of X if the action is based The Rules of Court should be liberally construed in
on a record of birth or an admission of filiation in a order to promote their objective of securing a just,
public document or a private handwritten instrument speedy and inexpensive disposition of every action
signed by Y. In such case, the action of X has not and proceeding. (Sec. 6, Rule 1 1997 Rules of Civil Procedure.)
prescribed. However, if the action is based on the open ADDITIONAL ANSWER:
and continuous possession of the status of an illegitimate However, strict observance of the rules is an
child, the action should have been brought during the imperative necessity when they are considered
lifetime of Y. In such case, the action of X has indispensable to theprevention of needless delays
prescribed. and to the orderly and speedy dispatch of Judicial
business. (Alvero vs. Judge dela Rosa, 76 Phil. 428)
GR: Liberal construction.

Civil actions are commenced by: (considered Exceptions:
filed)
 Reglementary periods
 Rule on forum shopping
a. Filing of the complaint; and  Service of summons
b. Payment of docket fees – Determined not
only by the amount of the claim but also of Technicalities should be avoided so as not to
the amount of damages. defeat a justifiable cause.

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EQUITY JURISDICTION Delict or wrongful act Remedial right or right

The inherent power of the SC to waive technical or omission to relief granted by law
rules in order to be able to rule on important to a party to institute
substantial issue. an action against a
person who committed
Note: However, that to justify deviation from the the delict or wrongful
rules, there must be COMPELLING REASONS or act or omission
CONSIDERATIONS. One cannot hark on the rule of Reason for action The remedy
liberal construction for every violation of the rules The formal statement Remedial right granted
(Digital Microwave Corp. vs. CA, 328 SCRA 286 of the operative facts because of the
[2000]), (e.g. case involving transcendental that gives rise to occurrence of alleged
importance where party filing the case has no remedial right facts
standing to sue) A matter of right and Matter of procedure
depends upon and depends upon
substantive law pleadings of parties
Not affected by Affected by such
affirmative defenses defenses
Civil Actions
Cause of action vs. Action (1997)
Distinguish Cause of action from action
Ordinary Civil Actions SUGGESTED ANSWER:
A CAUSE OF ACTION is an act or omission of
one party in violation of the legal right or rights of
the other (Maao Sugar Central vs. Barrios, 79 Phil. 606;
RULE 2 Sec. 2 of new Rule 2), causing damage to another. An
ACTION is an ordinary suit in a court of Justice by
Cause of Action which one party prosecutes another for the
enforcement or protection of a right, or the
prevention or redress of a wrong.(Section 1 of former Rule
Section 1. Ordinary civil actions, basis of. 2).
— Every ordinary civil action must be based
on a cause of action. (n) Actions; Cause of Action vs. Action (1999)
Distinguish action from cause of action. (2%)
Section 2. Cause of action, defined. — A SUGGESTED ANSWER:
cause of action is the act or omission by An ACTION is one by which a party sues another
for the enforcement or protection of a right, or the
which a party violates a right of another. (n)
prevention or redress of a wrong. (Sec. 3(A), Rule )
A CAUSE OF ACTION is the act or omission by
Requisites which a party violates a right of another. (Sec. 2, Rule 2
of
1) Existence of legal right of the plaintiff; the 1997 Rules) An action must be based on a cause
2) Correlative duty on the part of the of action. (Sec. 1, Rule 2 of the 1997 Rules)
defendant to respect the right of the plaintiff;
3) An act or omission of the defendant in Actions; Cause of Action (2013)
violation of plaintiff’s legal right No.VI. While leisurely walking along the
4) Damage (optional) street near her house in Marikina, Patty
unknowingly stepped on a garden tool left
INJURY is the illegal invasion of a legal right. behind by CCC, a construction company
DAMAGE is the loss, hurt, or harm which results based in Makati. She lost her balance as a
from the injury. consequence and fell into an open manhole.
Fortunately, Patty suffered no major
RIGHT OF ACTION injuries except for contusions, bruises and
Requisites: scratches that did not require any
1) Good Cause hospitalization. However, she lost self-
2) Conditions Precedent are complied esteem, suffered embarrassment and
3) Proper Party ridicule, and had bouts of anxiety and bad
dreams about the accident. She wants
vindication for her uncalled for experience
CAUSE OF ACTION RIGHT OF ACTION and hires you to act as counsel for her and

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to do whatever is necessary to recover at least MATTER

Php100,000 for what she suffered. What action The redress, The The thing,
or actions may Patty pursue, against whom, protection, procedure or wrongful act,
where (court and venue), and under what legal award or appropriate contract or
basis? (7%) SUGGESTED ANSWER: Patty coercive legal form of property
may avail any of the following remedies: a) measure relief of action which is
She may file a complaint for damages which the which may be directly
arising from fault or negligence under the plaintiff prays availed by the involved in the
Rules on Small Claims against CCC the court to plaintiff as the action,
Company before the MTC of Marikina City render in his means to concerning
where she resides or Makati City where the favor as obtain the which the
defendant corporation is holding office, at consequence desired relief wrong has
her option (A.M. No. 8-8-7-SC in relation to of the delict been done
Section 2, Rule 4, Rules of Court). committed by and with
b) She may also file an action to recover the defendant respect to
moral damages based on quasi-delict under which the
Article 2176 of the New Civil Code. The law controversy
states that, whoever by act or omission has arisen
causes damage to another, there being fault
or negligence is obliged to pay for the Civil Actions vs. Special Proceedings (1998)
damage done. Such fault or negligence, if Distinguish civil actions from special proceedings.
there is no pre-existing contractual relation [3%] SUGGESTED ANSWER:
between the parties, is called a quasi-delict. A CIVIL ACTION is one by which a party sues
Under Article 2217 of the New Civil Code, another for the enforcement or protection of a right,
moral damages include physical suffering, or the prevention or redress of a wrong. (See. 3[a], Rule
mental anguish, fright, serious anxiety, 1, 1997 Rules of Civil Procedure), while a SPECIAL
besmirched reputation, wounded feelings, PROCEEDING is a remedy by which a party seeks
moral shock, social humiliation, and similar to establish a status, a right or a particular fact. (Sec.
injury. Though incapable of pecuniary 3[C]. Rule 1,1997 Rules of Civil Procedure.)
computation, moral damages may be
Actions; Cause of Actions; Motion to Dismiss; bar by
recovered if they are the proximate result of
prior judgment (2002)
the defendant‟s wrongful act or omission. Rolando filed a petition for declaration of the nullity
Since moral damages are incapable of
of
pecuniary estimation, Patty should file the
his marriage to Carmela because of the alleged
action before the Regional Trial Court of
psychological incapacity of the latter.
Marikina City where she resides or Makati
After trial, the court rendered judgment dismissing
City, where the defendant corporation is
the
holding office, at her option (Section 19(1),
petition on the ground that Rolando failed to prove
B.P. 129).
the psychological incapacity of his wife. The
judgment
c) Patty can also file a civil action for
having become final, Rolando filed another petition,
damages against the City of Marikina for
this time on the ground that his marriage to Carmela
maintaining an open manhole where she
had been celebrated without a license. Is the second
unfortunately fell. Under article 2189 of the
action barred by the judgment in the first? Why?
Civil Code, provinces, cities, and
(2%)
municipalities shall be liable for damages SUGGESTED ANSWER:
for the death of, or injuries suffered by, any No, the second action is not barred by the judgment
person by reason of the defective condition in
of roads, streets, bridges, public buildings, the first because they are different causes of action.
and other public works under their control The first is for annulment of marriage on the ground
or supervision. The proper court having of psychological incapacity under Article 36 of the
jurisdiction over the case is at least Php Family Code, while the second is for declaration of
100,000 for as long as the aggregate of the nullity of the marriage in view of the absence of a
claims for damages does not exceed Php basic
400,000. requirement, which is a marriage license. [Arts, 9 &
35(3),
Family Code]. They are different causes of action
RELIEF REMEDY SUBJECT because
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the evidence required to prove them are not the same. An UNQUALIFIED and POSITIVE REFUSAL to
[Pagsisihan v. Court of Appeals, 95 SCRA 540 perform a contract , though the same is not yet
(1980) and other cases]. due, may, if the renunciation goes into the whole
of the contract, be tested as a complete breach
which will entitle the injured party to bring his
action at once (Blossom and Co. vs. Manila Gas
Section 3. One suit for a single cause of Corp. 55 Phil 226)
action. — A party may not institute more
than one suit for a single cause of action. Actions; Cause of Action; Splitting (1999)
(3a) a) What is the rule against splitting a cause of
action and its effect on the respective rights of the
Section 4. Splitting a single cause of parties for failure to comply with the same? (2%)
action; effect of. — If two or more suits are b) A purchased a lot from B for Pl,500,000.00.
instituted on the basis of the same cause of He gave a down payment of P500,000, signed a
action, the filing of one or a judgment upon promissory note payable thirty days after date, and as
the merits in any one is available as a ground a
for the dismissal of the others. (4a) security for the settlement of the obligation,
mortgaged
the same lot to B. When the note fell due and A
SPLITTING THE CAUSE OF ACTION
failed
It is the act of dividing a single or indivisible cause
to pay, B commenced suit to recover from A the
of action into several parts or claims and bringing
several actions thereon. It is not allowed.
balance of P1,000,000.00. After securing a favorable
judgment on his claim, B brought another action
The rule against splitting the cause of action is against A before the same court to foreclose the
equally applicable to counterclaims and cross- mortgage. A now files a motion to dismiss the
claims, not only to a complaint (Mariscal vs. CA, 311 second
SCRA 51). action on the ground of bar by prior judgment. Rule
on
Purpose: To avoid multiple suits, unnecessary the motion. (2%)
SUGGESTED ANSWER:
vexation and harassment of defendants, cost of
litigation. a. The rule against splitting a cause of action and its
Note; apply also to counterclaims and cross- effect are that if two or more suits are instituted on
claims. the
basis of the same cause of action, the filing of one or
Remedies against splitting a cause of action: a
A. Motion to Dismiss on the ground of: judgment upon the merits in any one is available as a
 Litis Pendentia ( Rule 16, sec. 1[e]) ground for the dismissal of the others. (Sec. 4, Rule
2)
 Res Judicata (Rule 16, sec. 6)
b. The motion to dismiss should be granted. When B
commenced suit to collect on the promissory note,
B. An Answer alleging the aforementioned
grounds as affirmative defenses. he
waived his right to foreclose the mortgage. B split his
GR: A contract embraces only one cause of cause of action.
action even if it contains several stipulations.
Actions; Cause of Action; Splitting (2005)
Exception: A contract to do several things at Raphael, a warehouseman, filed a complaint against
several times is divisible, and judgment for V
single breach of a continuing contract is not a Corporation, X Corporation and Y Corporation to
bar to a suit for subsequent breach (eg. compel them to interplead. He alleged therein that
promissory note payable in installments) the
Exception to exception: three corporations claimed title and right of
 There is an acceleration clause in the possession
contract; over the goods deposited in his warehouse and that
 All the obligations are already mature at he
the time of the commencement of the was uncertain which of them was entitled to the
action; if not included may be barred. goods.
After due proceedings, judgment was rendered by
DOCTRINE OF ANTICIPATORY BREACH the

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court declaring that X Corporation was entitled to the action as he may have against an
goods. The decision became final and executory. opposing party, subject to the following
Raphael filed a complaint against X Corporation for the conditions:
payment of P100,000.00 for storage charges and other
advances for the goods. X Corporation filed a motion to (a) The party joining the causes of
dismiss the complaint on the ground of res judicata. X action shall comply with the rules
Corporation alleged that Raphael should have on joinder of parties;
incorporated in his complaint for interpleader his claim
for storage fees and
NOTE: Elements of joinder of parties
advances and that for his failure he was barred from
(Rule 3, sec. 6)
interposing his claim. Raphael replied that he could not
have
claimed storage fees and other advances in his complaint a) A right to relief in respect to or
for arising out of the same
interpleader because he was not yet certain as to who transaction or series of
was transactions;
liable therefor. Resolve the motion with reasons. (4%) b) Common question of fact and
SUGGESTED ANSWER: law.
The motion to dismiss should be granted. Raphael should
have incorporated in his complaint for interpleader his claim (b) The joinder shall not include special
for storage fees and advances, the amounts of which were civil actions or actions governed by special
obviously determinable at the time of the filing of the
rules;
complaint. They are part of Raphael's cause of action which
he may not be split. Hence, when the warehouseman asks the
court to ascertain who among the defendants are entitled to (c) Where the causes of action are
the goods, he also has the right to ask who should pay for the between the same parties but pertain to
storage fees and other related expenses. The filing of the different venues or jurisdictions, the
interpleader is available as a ground for dismissal of the joinder may be allowed in the Regional
second case. (Sec. 4, Rule 2,) It is akin to a compulsory
Trial Court provided one of the causes of
counterclaim which, if not set up, shall be barred. (Sec. 2, Rule
9, ; Arreza v. Diaz, G.R. No. 133113, August 30, 2001) action falls within the jurisdiction of said
court and the venue lies therein; and
Actions; Cause of Action; Joinder & Splitting (1998) (d) Where the claims in all the causes
Give the effects of the following: action are principally for recovery of
1 Splitting a single cause of action: and (3%| money, the aggregate amount claimed
2 Non-joinder of a necessary party. [2%] shall be the test of jurisdiction. (5a) note
SUGGESTED ANSWER: : ( Totality Rule)
1. The effect of splitting a single cause of action is
found in the rule as follows: If two or more suits are NOTE: Par. (a)-joinder of causes of action –
instituted on the basis of the same cause of action, the does not apply if the situation is “one on one”-
filing of one or a judgment on the merits in any one is one plaintiff against one defendant. Thus, if the
available as a ground for the dismissal of the others. situation is one on one, the complaint may
(Sec. 4 of Rule 2)
include several causes of actions arising from
2. The effect of the non-joinder of a necessary party
different transactions.
may be stated as follows: The court may order the
inclusion of an omitted necessary party if jurisdiction Bar Exam Question 2012
over his person may be obtained. The failure to comply 39. The following are accurate statements
with the order for his inclusion without justifiable cause on joinder of causes of action, except:
to a waiver of the claim against such party. The court a. joinder of actions avoids multiplicity of
may proceed with the action but the judgment rendered suits.
shall be without prejudice to the rights of each necessary b. joinder of actions may include special
party. (Sec. 9 of Rule 3) civil actions.
c. joinder of causes of action is permissive.
d. the test of jurisdiction in case of money
Section 5. Joinder of causes of action. — A claims in a joinder of causes of act1on, is
party may in one pleading assert, in the the "totality rule".
alternative or otherwise, as many causes of SUGGESTED ANSWER: (b), The rule on
joinder of actions under Section 5, Rule

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3 of the 1997 Rules of Civil Procedure, as Where there are several claims or causes of
amended, requires that the joinder shall not action between the same or different parties,
include special civil actions governed by embodied in the same complaint, the amount of
special rules. (Roman Catholic Archbishop the demand shall be the totality of the claims in
of San Fernando Pampanga vs. Fernando all causes of action, irrespective of whether the
Soriano Jr., et al., G.R. No. 153829, August causes arose from the same or different
17, 2011, VIllarama, Jr., J.). transaction.
Bar Exam Question 2011 NOTE: follow the totality rule under BP 129.
(33) A sued B in the RTC of Quezon City, Substantive law prevails over procedural laws.
joining two causes of action: for partition of
real property and breach of contract with Jurisdiction; RTC; Counterclaim (2008)
damages. Both parties reside in Quezon City No.II. Fe filed a suit for collection of
but the real property is in Manila. May the P387,000 against Ramon in the RTC of
case be dismissed for improper venue? (A) Yes, Davao City. Aside from alleging payment as
since causes of action pertaining to different a defense, Ramon in his answer set up
venues may not be joined in one action. (B) No, counterclaims for P100,000 as damages
since causes of action pertaining to and 30,000 as attorney’s fees as a result of
different venues may be joined in the RTC if the baseless filing of the complaint, as well
one of the causes of action falls within its as for P250,000 as the balance of the
jurisdiction. (C) Yes, because special civil purchase price of the 30 units of air
action may not be joined with an ordinary civil conditioners he sold to Fe. (a) Does the RTC
action. (D) No, since plaintiff may unqualifiedly have jurisdiction over Ramon’s
join in one complaint as many causes of action counterclaim, and if so, does he have to pay
as he has against opposing party. docket fees therefor? SUGGESTED
ANSWER:
Yes, applying the totality rule which
Actions; Cause of Action; Joinder of Action (1999) sums up the total amount of claims of
a) What is the rule on joinder of causes of the parties, the RTC has jurisdiction
action? (2%) over the counter claims. Unlike in the
b) A secured two loans from B, one for P500,000.00 and case of compulsory counterclaims, a
the other for P1,000,000.00, payable on different dates. defendant who raises a permissive
Both have fallen due. Is B obliged to file only one counterclaim must first pay docket fees
complaint against A for the recovery of both loans? before the court can validly acquire
Explain. (2%) jurisdiction. One compelling test of
SUGGESTED ANSWER: compulsoriness is the logical relation
a. The rule on JOINDER OF CAUSES OF ACTION is between the claim alleged in the
that a party may in one pleading assert, in the alternative complaint and the counterclaim (Bayer
or otherwise join as many causes of action as he may Phil, Inc. vs. C.A., G.R. No. 109269, 15
have against an opposing party, provided that the rule on September 2000). Ramon does not have
joinder of parties is complied with; to pay docket fees for his compulsory
1.] the joinder shall not include special civil actions or counterclaims. Ramon is liable for
actions governed by special rules, but may include causes docket fees only on his permissive
of action pertaining to different venues or jurisdictions counterclaim for the balance of the
provided one cause of action falls within the jurisdiction purchase price of 30 units of air
of a RTC and venue lies therein; and conditioners in the sum of P250,000, as
2.] the aggregate amount claimed shall be the test of it neither arises out of nor is it
jurisdiction where the claims in all the causes of action connected with the transaction or
are principally for the recovery of money. (Sec. 5, Rule 2 of occurrence constituting Fe‟s claim (Sec.
the 1997 Rules) 19 [8] and 33 [1], B.P. 129; AO 04-94,
b. No. Joinder is only PERMISSIVE (only encouraged) implementing R.A. 7691, approved
since the loans are separate loans which may be March 25, 1994, the jurisdictional;
governed by the different terms and conditions. The two amount for MTC Davao being P300,000
loans give rise to two separate causes of action and may at this time; Alday vs. FGU Insurance
be the basis of two separate complaints. Corporation, G.R. No. 138822, 23
January 2001).
TOTALITY UNDER BP 129

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(b) Suppose Ramon’s counterclaim for the same parties, Ricky and Perry, with respect to the
unpaid balance is P310,000, what will happen loan but not with respect to the partition which
to his counterclaims if the court dismisses the includes Marvin. The joinder is between a partition
complaint after holding a preliminary hearing and a sum of money, but PARTITION is a special
on Ramon’s affirmative defenses? SUGGESTED civil action under Rule 69, which cannot be joined
ANSWER: with other causes of action. (See. 5[b], Rule 2,) Also, the
The dismissal of the complaint shall be causes of action pertain to different venues and
without prejudice to the prosecution in the jurisdictions. The case for a sum of money pertains
same or separate action of a counterclaim to the municipal court and cannot be filed in Pasay
pleaded in the answer (Sec. 3, Rule 17; City because the plaintiff is from Manila while Ricky
Pinga vs. Heirs of German Santiago, G.R. and Marvin are from Batangas City. (Sec. 5, Rule 2,)
No. 170354, June 30, 2006).
(c) Under the same premise as paragraph (b)

above, suppose that instead of alleging Section 6. Misjoinder of causes of
payment as a defense in his answer, Ramon action. — Misjoinder of causes of action is
filed a motion to dismiss on that ground, at the not a ground for dismissal of an action. A
same time setting up his counterclaims, and misjoined cause of action may, on motion
the court grants his motion. What will happen of a party or on the initiative of the court,
to his counterclaims? SUGGESTED ANSWER: be severed and proceeded with
His counterclaims can continue to be
separately. (n)
prosecuted or may be pursued separately at
his option (Sec. 6, Rule 16; Pinga vs. Heirs
of German Santiago, G.R. No. 170354, June
30, 2006).
SPLITTING CAUSE JOINDER OF

OF ACTION CAUSES OF ACTION
There is single cause Contemplates several RULE 3
of action causes of action
PROHIBITED ENCOURAGED Parties to Civil Actions
Causes multiplicity of Minimizes multiplicity
suits and double of suits and Section 1. Who may be parties;
vexation on the part of inconvenience to plaintiff and defendant. — Only natural
the defendant parties or juridical persons, or entities authorized
by law may be parties in a civil action. The
Actions; Cause of Action; Joinder of Action (2005)
term "plaintiff" may refer to the claiming
Perry is a resident of Manila, while Ricky and Marvin are
party, the counter-claimant, the cross-
residents of Batangas City. They are the coowners of a
claimant, or the third (fourth, etc.) —
parcel of residential land located in Pasay City with an
assessed value of P100,000.00. Perry borrowed party plaintiff. The term "defendant" may
P100,000.00 from Ricky which he promised to pay on or refer to the original defending party, the
before December 1, 2004. However, Perry failed to pay defendant in a counter-claim, the cross-
his loan. Perry also rejected Ricky and Marvin's proposal defendant, or the third (fourth, etc.) —
to partition the property. Ricky filed a complaint against party defendant. (1a)
Perry and Marvin in the RTC of Pasay City for the
partition of the property. He also incorporated in his PARTY TO A CIVIL ACTION MUST BE:
complaint his action against Perry for the collection of 1) A natural person;
the latter's P100,000.00 loan, plus interests and attorney's 2) Juridical person; or
fees. State with reasons whether it was proper for Ricky 3) An entity authorized by law:
to join his causes of action in his complaint for partition
against Perry and Marvin in the RTC of Pasay City. a) Estate of deceased person;
(5%) b) Political party
SUGGESTED ANSWER: c) Registered labor union ( sec. 243,
It was not proper for Ricky to join his causes of action PD 442, Labor Code)
against Perry in his complaint for partition against Perry
and Marvin. The causes of action may be between the

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LACK OF LEGAL LACK OF consideration of the merits of the case and is not
CAPACITY TO SUE PERSONALITY TO purely a procedural issue
SUE
Refers to the plaintiff’s PLAINTIFF – One having an interest in the
general disability to matter of the action or in obtaining relief
sue as on account of The plaintiff is not a demanded.
minority, insanity, real party in interest
incompetence, lack of DEFENDANT – One claiming an interest in the
juridical personality or controversy or the subject thereof adverse to the
any other general plaintiff. May also include:
disqualification of a 1) An unwilling plaintiff or one who should
party be joined as plaintiff but refuses to give
Ground to motion to Ground to a motion to his consent thereto;
dismiss on the ground dismiss on the ground 2) The original plaintiff becoming a
of lack of capacity to that the complaint, on defendant in the counter claim of the
sue the face thereof, states original defendant; and
 Exception is no cause of action 3) One necessary for the complete
where the determination or settlement of the
case involves controversy.
a matter of
transcendental Section 2. Parties in interest. — A real
importance, party in interest is the party who stands to
the court still be benefited or injured by the judgment in
hears the the suit, or the party entitled to the avails
case. Motion of the suit. Unless otherwise authorized by
to dismiss is law or these Rules, every action must be
denied. prosecuted or defended in the name of the
real party in interest. (2a)
My Notes:
REAL PARTY IN INTEREST
The party who stands to be benefited or injured by REAL PARTY IN PROPER PARTY
the judgment in the suit of the party entitled to the INTEREST
avails of the suit. Emanates from the Emanates from
Rules of Court constitutional law
CAPACITY TO SUE
Deals with a situation where a person who may In Oposa vs. Factoran 224SCRA 793, minors
have a cause of action is disqualified from bringing represented by their parents were real parties in
a suit under applicable law or is incompetent to interest to file an action to annul the timber
bring a suit or is under some legal disability that licenses issued by the forestry under the
would prevent him from maintaining an action following principles:
unless represented by a guardian ad litem. If the a) Inter- generational responsibility;
person is not disqualified from bringing a suit, then b) Inter- generational justice;
he has capacity to sue c) The right of the Filipino people to a
STANDING TO SUE (locus standi) balanced and healthful ecology;
This term is relevant in the realm of public law. In d) Minors represent themselves and the
certain instances, courts have allowed private future generations to come (Rule 2, sec.
parties to institute actions challenging the validity of 5, Rule on Environmental Cases).
governmental action for violation of private rights or
constitutional principles. In these cases, courts
apply the doctrine of legal standing by determining INDESPENSABLE NECESSARY
whether the party has a direct and personal interest PARTIES PARTIES
in the controversy and whether such party has
Must be joined under Should be joined
sustained or in imminent danger of sustaining an any condition, their whenever possible, the
injury as a result of the act complained of, a
presence being a sine action can proceed
standard which is distinct from the concept of real qua non for the even in their absence
party in interest. The application of the doctrine on
exercise of judicial
legal standing necessarily involves a preliminary power

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The case may be Section 4. Spouses as parties. —

Non- joinder of an determined in court but Husband and wife shall sue or be sued
indispensable party the judgment will not jointly, except as provided by law. (4a)
makes the judgment resolve the entire
void controversy if a My Notes:
necessary party is not GR: spouses should sue and be sued jointly.
joined Exception;
1. Suit involves separate property of the
spouses;
CLASSIFICATION OF PARTIES IN INTEREST 2. Legal separation;
1. Indispensable Party 3. Liability arising from a criminal offense;
2. Necessary Party 4. Action based on occupation or trade;
3. Representative Party – acting in fiduciary 5. Quasi- delict.
capacity such as:
a) Trustees Section 5. Minor or incompetent
b) Guardians persons. — A minor or a person alleged
c) Executors/Administrators to be incompetent, may sue or be sued
with the assistance of his father, mother,
The beneficiary shall be included in guardian, or if he has none, a guardian ad
the title of the case and shall litem. (5a)
be deemed to be the real party in
interest. NOTE: Need not be judicially declared
incompetent, it being sufficient that his
incompetency is alleged in the pleadings.
d) Agent
Section 6. Permissive joinder of
Agent not real party in interest;
parties. — All persons in whom or against
action must be brought of defended
in the name of the principal. whom any right to relief in respect to or
Principal must always be disclosed. arising out of the same transaction or
However, agent, with a SPA may series of transactions is alleged to exist,
sign pleadings including CAFS. whether jointly, severally, or in the
alternative, may, except as otherwise
4. Pro forma party – those who are required to provided in these Rules, join as plaintiffs
be joined as co parties suits by or against or be joined as defendants in one
another (sec. 4). complaint, where any question of law or
5. Quasi Party – those in whose behalf a class fact common to all such plaintiffs or to all
or representative suit is brought. such defendants may arise in the action;
but the court may make such orders as
Section 3. Representatives as parties. — may be just to prevent any plaintiff or
Where the action is allowed to be prosecuted defendant from being embarrassed or put
and defended by a representative or to expense in connection with any
someone acting in a fiduciary capacity, the proceedings in which he may have no
beneficiary shall be included in the title of the interest. (6n)
case and shall be deemed to be the real
property in interest. A representative may be MY NOTES: Permissive Joinder Requisites:
a trustee of an expert trust, a guardian, an 1. Same/Series of transaction;
executor or administrator, or a party 2. Common question of fact and law;
authorized by law or these Rules. An agent 3. Not prohibited by Rules.
acting in his own name and for the benefit of
SERIES OF TRANSACTIONS
an undisclosed principal may sue or be sued
It pertains to transactions connected with the
without joining the principal except when the
same subject matter of the suit.
contract involves things belonging to the
principal. (3a) Section 7. Compulsory joinder of
indispensable parties. — Parties in
interest without whom no final
determination can be had of an action

________________________________________________________________________________________________
shall be joined either as plaintiffs or Complaint. (B) suspension of proceedings.

defendants. (7) (C) contempt of court.
(D) waiver of plaintiff‟s right against the
NOTE: Intervention was allowed during execution unpleaded necessary party.
stage was allowed when the intervenor was an
indispensable party.
Section 10. Unwilling co- plaintiff. – if
In solidary obligations, complaint filed against one the consent of any party who should be
debtor not defective for non-joinder of indispensable joined as plaintiff cannot be obtained, he
parties. Other debtors are only necessary parties may be made a defendant and the reason
(Quisumbing vs. CA, 189 SRA 325).
therefore shall be stated in the complaint.
NOTE: the absence of an indispensable party
renders all actuations of the court null and void for Section 11. Misjoinder and non-joinder
want of authority to act not only as to the absent but of parties. — Neither misjoinder nor non-
also to those present. joinder of parties is ground for dismissal
Ex. Partition of the Estate. of an action. Parties may be dropped or
added by order of the court on motion of
Section 8. Necessary party. — A necessary any party or on its own initiative at any
party is one who is not indispensable but who stage the action and on such terms as are
ought to be joined as a party if complete just. Any claim against a misjoined party
relief is to be accorded as to those already may be severed and proceeded with
parties, or for a complete determination or separately. (11a)
settlement of the claim subject of the action.
(8a) NOTES: Objections to defects in parties should
be made at the earliest opportunity, i.e. the
NOTES: He is an indispensable party in an action moment the defect become apparent, by a
against him, but a necessary party in a suit against MOTION TO STRIKE THE NAMES OF THE
his co- debtor. PARTIES impleaded. Objections to misjoinder
Ex. A Guarantor. cannot be made for the first time on appeal.
The non- joinder of an indispensable or a

Section 9. Non-joinder of necessary necessary party is not in itself ipso pacto a
parties to be pleaded. — Whenever in any ground for the dismissal of the action. The court
pleading in which a claim is asserted a should order the joinder of such party and non-
necessary party is not joined, the pleader compliance of such order would be a ground for
shall set forth his name, if known, and shall the dismissal of the action. By motion or motu
state why he is omitted. Should the court find proprio (Rule 17, sec. 3). But take note that
the reason for the omission unmeritorious, it failure to implead a necessary party is only a
may order the inclusion of the omitted waiver, not a ground for dismissal (par. 2, sec. 9,
Rule 3).
necessary party if jurisdiction over his person
may be obtained.
Partition; Non-joinder (2009) No.XV.A. Florencio
sued Guillermo for partition of a property they
The failure to comply with the order for his
owned in common. Guillermo filed a motion to
inclusion, without justifiable cause, shall be
dismiss the complaint because Florencio failed to
deemed a waiver of the claim against such
implead Herando and Inocencio, the other co-
party in (10)
owners of the property. As Judge, will you grant the
motion to dimiss? Explain. (3%) SUGGESTED
NOTE: Here, there is no dismissal for failure to
ANSWER: NO, because the non-joinder of parties is
obey the order of the court but ONLY a waiver of
claim. not a ground for dismissal of action (Rule 3, Sec.
11). The motion to dismiss should be denied.
Bar Exam Question 2011
(71) Unexplained or unjustified non-joinder in Section 12. Class suit. — When the
the Complaint of a necessary party despite subject matter of the controversy is one of
court order results in (A) the dismissal of the common or general interest to many
persons so numerous that it is

________________________________________________________________________________________________
impracticable to join all as parties, a number

of them which the court finds to be PERMISSIVE
sufficiently numerous and representative as CLASS SUIT JOINDER OF
to fully protect the interests of all concerned PARTIES
may sue or defend for the benefit of all. Any There is one single There are multiple
party in interest shall have the right to cause of action causes of action
intervene to protect his individual interest. pertaining to numerous belonging to several
(12a) persons persons
Requisites of a class suit (clue words only)

Section 13. Alternative defendants. —
a. Common or General interest in the subject Where the plaintiff is uncertain against
matter; who of several persons he is entitled to
relief, he may join any or all of them as
defendants in the alternative, although a
Note: There is no class suit when the
individual interests of numerous persons are right to relief against one may be
identifiable. There is no common or general inconsistent with a right of relief against
interest. the other. (13a)
b. Numerous persons making it impractical to Bar Exam Question 2011

bring together to court; (94) Allan was riding a passenger jeepney
c. Sufficient number of persons representing driven by Ben that collided with a car
the class; driven by Cesar, causing Allan injury. Not
d. The representative sues or defends for the knowing who was at fault, what is the best
benefit of all. that Allan can do? (A) File a tort action
against Cesar. (B) Await a judicial finding
A taxpayer suit or a derivative suit by stockholders regarding who was at fault. (C) Sue Ben for
is in the nature of a class suit although they are breach of contract of carriage. (D) Sue both
subject to other requisites of the laws governing Ben and Cesar as alternative defendants.
them specially on the issue of locus standi.
Section 14. Unknown identity or name
A class suit will not lie when the numerous of defendant. — Whenever the identity
occupants of a parcel of land are sued for ejectment or name of a defendant is unknown, he
from the land because their interest is not common may be sued as the unknown owner heir
to all (Sulo ng Bayan vs. Araneta, 72 SCRA 347). devisee, or by such other designation as
the case may require, when his identity or
Actions; Derivative Suit vs. Class Suit (2005) true name is discovered, the pleading
Distinguish a derivative suit from a class suit. must be amended accordingly. (14)
SUGGESTED ANSWER:
A DERIVATIVE SUIT is a suit in equity that is filed by
REQUISITES:
a minority shareholder in behalf of a corporation to
redress wrongs committed against it, for which the
directors refuse to sue, the real party in interest being the 1. There is a defendant;
corporation itself (Lint v. Lim-Yu, G.IL No. 138343, 2. HIs identity is unknown;
February 19, 2001), while a CLASS SUIT is filed regarding 3. Allegation in the complaint of the fact of
a controversy of common or general interest in behalf of ignorance of the true name of the
many persons so numerous that it is impracticable to defendant;
4. Use of identifying description;
join all as parties, a number which the court finds
5. Amendment when name is later on
sufficiently representative who may sue or defend for the
discovered;
benefit of all. (Sec. 12, Rule 3) It is worth noting that a
6. Defendant is the one principally sued
derivative suit is a representative suit, just like a class
and not just a mere additional
suit. defendant.
GR; Intervention is a matter of discretion.
Except in a class suit any party in interest may NOTE: Service of summons of an unknown
intervene, as a matter of right, to protect his defendant may be made by publication (sec. 14,
individual interest.

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Rule 14). There is no need for conversion to quasi The heirs of the deceased may be allowed
in rem (Review Lecture). to be substituted for the deceased,
without requiring the appointment of an
Section 15. Entity without juridical executor or administrator and the court
personality as defendant. — When two or may appoint a guardian ad litem for the
more persons not organized as an entity with minor heirs.
juridical personality enter into a transaction,
they may be sued under the name by which The court shall forthwith order said legal
they are generally or commonly known. representative or representatives to
appear and be substituted within a period
In the answer of such defendant, the name of thirty (30) days from notice.
and addresses of the persons composing said
entity must all be revealed. (15a) If no legal representative is named by the
counsel for the deceased party, or if the
REQUISITES one so named shall fail to appear within
the specified period, the court may order
1. Two or more persons not organized as a the opposing party, within a specified time
juridical entity; to procure the appointment of an executor
2. Enter into a transaction; or administrator for the estate of the
3. Committing a wrong or delict against third deceased and the latter shall immediately
person in the course of such transaction. appear for and on behalf of the deceased.
The court charges in procuring such
Note that they can be sued under the common appointment, if defrayed by the opposing
name they are known BUT they cannot sue under party, may be recovered as costs. (16a,
that name. 17a)
A complaint against a duly registered partnership NOTE: The heirs cannot be compelled to
may be dismissed on the ground that it does not substitute the deceased. Otherwise, the court
state a cause of action where it is filed against the may require the adverse party to procure the
officers of the partnership instead of the partnership appointment of an administrator of the property.
(Aguila vs. CA, 319 SCRA 345).
CLAIMS NOT EXTINGUISHED BY DEATH:
Service of summons is governed by Rule 14,
Section 8. a. Recovery of real or personal property
against the estate of the deceased;
Service upon entity without juridical personality. b. Enforcement of liens against such
— When persons associated in an entity without properties;
juridical personality are sued under the name by
c. Recovery for an injury to persons or
which they are generally or commonly known, service
may be effected upon all the defendants by serving property by reason of a tort or delict
upon any one of them, or upon the person in charge committed by the deceased.
of the office or place of business maintained in such
name. But such service shall not bind individually any The substitute defendant need not be
person whose connection with the entity has, upon summoned. The order of the substitution
due notice, been severed before the action was shall be served upon the parties substituted
brought. (9a)
to acquire jurisdiction over the substitute
party.
Section 16. Death of party; duty of
counsel. — Whenever a party to a pending INSTANCES WHERE SUBSTITUTION OF
action dies, and the claim is not thereby PARTIES IS PROPER:
extinguished, it shall be the duty of his
counsel to inform the court within thirty (30) 1. Section 16. Death of party;
days after such death of the fact thereof, and 2. Section 17. Death or separation of a
to give the name and address of his legal party who is a public officer;
representative or representatives. Failure of 3. Section 18. Incompetency or incapacity;
counsel to comply with his duty shall be a 4. Section 19. Transfer of interest.
ground for disciplinary action.

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Failure of the court to issue an order of substitution prosecuting claims against the estate of a deceased
in spite of death of defendant did not affect the person. (Sec. 20, Rule 3)
validity of the proceedings where defendant’s heirs
actively participated in the proceedings after their Parties; Death of a Party; Effect (1999)
predecessor’s death (Fabiana C Vda de Salazar vs. When A (buyer) failed to pay the remaining balance
CA, Nov. 23, 1995). of the contract price after it became due and
demandable, B (seller) sued him for collection before
Parties; Death of a Party; Effect (1998) the RTC. After both parties submitted their
A filed a complaint for the recovery of ownership of respective evidence, A perished in a plane accident.
land against B who was represented by her counsel X. Consequently, his heirs brought an action for the
In the course of the trial, B died. However, X failed to settlement of his estate and moved for the dismissal
notify the court of B's death. The court proceeded to of the collection suit.
hear the case and rendered judgment against B. After 1 Will you grant the motion? Explain. (2%)
the Judgment became final, a writ of execution was 2 Will your answer be the same if A died while the
issued against C, who being B's sole heir, acquired the case is already on appeal to the Court of Appeals?
property. If you were counsel of C, what course of Explain. (2%)
action would you take? [3%] 3 In the same case, what is the effect if B died before
SUGGESTED ANSWER: the RTC has rendered judgment? (2%)
As counsel of C, I would move to set aside the writ of SUGGESTED ANSWER:
execution and the judgment for lack of jurisdiction and 1 No, because the action will not be dismissed but
lack of due process in the same court because the judgment shall instead be allowed to continue until entry of
is void. If X had notified the court of B's death, the court final judgment. (Id.)
would have ordered the substitution of the deceased by C, 2 No. If A died while the case was already on appeal
the sole heir of B. (Sec. 16 of Rule 3) The court acquired no in the Court of Appeals, the case will continue
jurisdiction over C upon whom the trial and the judgment because there is no entry yet of final judgment. (Id.)
are not binding. (Ferreira us. Ibarra Vda. de Gonzales, 104 3 The effect is the same. The action will not be
Phil. 143; Vda. De la Cruz vs. Court of Appeals, 88 SCRA 695; dismissed but will be allowed to continue until entry
Lawas us. Court of Appeals, 146 SCRA 173.) I could also file of final judgment. (Id.)
an action to annul the judgment for lack of jurisdiction
because C, as the successor of B, was deprived of due Section 17. Death or separation of a
process and should have been heard before judgment.
(Rule 47)
party who is a public officer. — When a
ALTERNATIVE ANSWER: public officer is a party in an action in his
While there are decisions of the Supreme Court which official capacity and during its pendency
hold that if the lawyer failed to notify the court of his dies, resigns, or otherwise ceases to hold
client's death, the court may proceed even without office, the action may be continued and
substitution of heirs and the judgment is valid and maintained by or against his successor if,
binding on the heirs of the deceased (Florendo vs. within thirty (30) days after the successor
Coloma, 129 SCRA 30.), as counsel of C, I will assail the takes office or such time as may be
judgment and execution for lack of due process. granted by the court, it is satisfactorily
Parties; Death of a Party; Effect (1999) shown to the court by any party that there
What is the effect of the death of a party upon a is a substantial need for continuing or
pending action? (2%) maintaining it and that the successor
SUGGESTED ANSWER:
adopts or continues or threatens to adopt
1. When the claim in a pending action is purely
or continue to adopt or continue the action
personal, the death of either of the parties extinguishes
of his predecessor. Before a substitution is
the claim and the action is dismissed.
made, the party or officer to be affected,
1 When the claim is not purely personal and is not
unless expressly assenting thereto, shall
thereby extinguished, the party should be substituted by
be given reasonable notice of the
his heirs or his executor or administrator. (Sec. 16, Rule 3) 2
If the action is for recovery of money arising from application therefore and accorded an
contract, express or implied, and the defendant dies opportunity to be heard. (18a)
before entry of final judgment in the court in which the
action was pending at the time of such death, it shall not REQUISITES:
be dismissed but shall instead be allowed to continue
until entry of final judgment. A favorable judgment 1. public officer is a party in an action in
obtained by the plaintiff shall his official capacity;
be enforced in the manner provided in the rules for 2. during its pendency dies, resigns, or
otherwise ceases to hold office;

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3. within thirty (30) days after the successor Section 20. Action and contractual
takes office or such time as may be granted money claims. — When the action is for
by the court, it is satisfactorily shown to the recovery of money arising from contract,
court by any party that there is a express or implied, and the defendant dies
substantial need for continuing or before entry of final judgment in the court
maintaining it; in which the action was pending at the
4. that the successor adopts or continues time of such death, it shall not be
or threatens to adopt or continue to
dismissed but shall instead be allowed to
adopt or continue the action of his
continue until entry of final judgment. A
predecessor;
5. The party or officer to be affected, unless favorable judgment obtained by the
expressly assenting thereto, shall be given plaintiff therein shall be enforced in the
reasonable notice of the application manner especially provided in these Rules
therefore and accorded an opportunity to for prosecuting claims against the estate
be heard. of a deceased person. (21a)
Section 18. Incompetency or incapacity. NOTE: The judgment will not or cannot be
— If a party becomes incompetent or enforced by writ of execution but should be filed
incapacitated, the court, upon motion with as a money claim under Rule 86 of the RC
notice, may allow the action to be continued
by or against the incompetent or Section 21. Indigent party. — A party
incapacitated person assisted by his legal may be authorized to litigate his action,
guardian or guardian ad litem. (19a) claim or defense as an indigent if the
court, upon an ex parte application and
Section 19. Transfer of interest. — In case hearing, is satisfied that the party is one
of any transfer of interest, the action may be who has no money or property sufficient
continued by or against the original party, and available for food, shelter and basic
unless the court upon motion directs the necessities for himself and his family.
person to whom the interest is transferred to
be substituted in the action or joined with the Such authority shall include an exemption
original party. (20) from payment of docket and other lawful
fees, and of transcripts of stenographic
 NOTES: The transfer of interest that is referred notes which the court may order to be
to in this section is a transfer that occurs during furnished him. The amount of the docket
the pendency of the case. The transferor would and other lawful fees which the indigent
no longer be a real party in interest if the was exempted from paying shall be a lien
transfer is made before the commencement of on any judgment rendered in the case
the suit. favorable to the indigent, unless the court
 The rule does not consider the transferee an otherwise provides.
indispensable party. Action may proceed
without the need to implead him. Except: when Any adverse party may contest the grant
the joinder is ordered by the court. of such authority at any time before
 The case will be dismissed if the interest of the judgment is rendered by the trial court. If
plaintiff is transferred to the defendant
the court should determine after hearing
(MERGER), unless there are several plaintiffs,
that the party declared as an indigent is in
in which case, the remaining plaintiffs can
proceed with their own cause of action. fact a person with sufficient income or
 The transferee pendente lite, although not property, the proper docket and other
joined in the case involving his predecessor in lawful fees shall be assessed and collected
interest, is bound by the judgment against the by the clerk of court. If payment is not
latter. He has no right to intervene in the case made within the time fixed by the court,
against his predecessor. The remedy is to file a execution shall issue for the payment
motion praying that he be substituted as party- thereof, without prejudice to such other
defendant or joined with the predecessor as sanctions as the court may impose. (22a)
parties defendant (Santiago Land Development
Corp. vs. CA, L-106194, Jan. 28, 1997) Section 22. Notice to the Solicitor
General. — In any action involving the

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validity of any treaty, law, ordinance, that the best interest of the government is upheld
executive order, presidential decree, rules or (COMELEC v. Quyano-Padilla, September 18, 2002).
regulations, the court, in its discretion, may
require the appearance of the Solicitor
General who may be heard in person or a
representative duly designated by him. (23a) RULE 4
NOTE: Rule 63, Section 3. Notice on Solicitor General. — Venue of Actions

In any action which involves the validity of a statute,
executive order or regulation, or any other governmental
regulation, the Solicitor General shall be notified by the NOTE: VENUE is the place of trial or the
party assailing the same and shall be entitled to be heard geographic location in which an action or
upon such question. proceeding should be brought.
NOTE: Rule 39, sec. 6[p3]:When the writ of execution is Remember that venue is jurisdictional in criminal
issued in favor of the Republic of the Philippines, or any cases but NOT in civil cases.
officer duly representing it, the filing of such bond shall not
be required, and in case the sheriff or levying officer is
sued for damages as a result of the levy, he shall be Section 1. Venue of real actions. —
represented by the Solicitor General and if held liable Actions affecting title to or possession of
therefor, the actual damages adjudged by the court shall real property, or interest therein, shall be
be paid by the National Treasurer out of such funds as commenced and tried in the proper court
may be appropriated for the purpose. (17a) which has jurisdiction over the area
wherein the real property involved, or a
Jurisdiction; Office of the Solicitor General (2006) portion thereof, is situated.
In 1996, Congress passed Republic Act No. 8189,
otherwise known as the Voter's Registration Act of
Forcible entry and detainer actions shall
1996, providing for computerization of elections.
be commenced and tried in the municipal
Pursuant thereto, the COMELEC approved the Voter's
trial court of the municipality or city
Registration and Identification System (VRIS) Project.
It issued invitations to pre-qualify and bid for the wherein the real property involved, or a
project. After the public bidding, Fotokina was declared portion thereof, is situated. (1[a], 2[a]a)
the winning bidder with a bid of P6 billion and was
issued a Notice of Award. But COMELEC Chairman NOTES:
Gener Go objected to the award on the ground that
under the Appropriations Act, the budget for the  If property is located at the boundaries of
COMELEC's modernization is only P1 billion. He two places; file it at any of the two places;
announced to the public that the VRIS project has been  If the case involves two properties located at
set aside. Two Commisioners sided with Chairman Go, two different places:
but the majority voted to uphold the contract.
Meanwhile, Fotokina filed with the RTC a petition for 1. If the properties is subject of the same
mandamus compel the COMELEC to implement the transaction, file it in any of the places;
contract. The Office of the Solicitor General (OSG), 2. If they are subject of two distinct
representing Chairman Go, opposed the petition on the transactions, separate actions should be
ground that mandamus does not lie to enforce contractual filed unless properly joined.
obligations. During the proceedings, the majority
Commissioners filed a manifestation that Chairman Go was
Section 2. Venue of personal actions.
not authorized by the COMELEC En Banc to oppose the
— All other actions may be commenced
petition.
May the OSG represent Chairman Go before the RTC and tried where the plaintiff or any of the
notwithstanding that his position is contrary to that of principal plaintiffs resides, or where the
the majority? (5%) defendant or any of the principal
SUGGESTED ANSWER: defendants resides, or in the case of a
Yes, the OSG may represent the COMELEC Chairman non-resident defendant where he may be
before the RTC notwithstanding that his position is found, at the election of the plaintiff.
contrary to that of a majority of the Commission members (2[b]a)
in the COMELEC because the OSG is an independent
office; it's hands are not shackled to the cause of its client
RESIDENCE
agency. The primordial concern of the OSG is to see to it

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It should be viewed or understood in its popular Venue; Personal Actions (1997)

sense, meaning the personal, actual, or physical X, a resident of Angeles City, borrowed P300,000.00
habitation of the person, actual residence or place from A, a resident of Pasay City. In the loan
of abode. agreement,
the parties stipulated that "the parties agree to sue
Note: where plaintiff owns a sole proprietorship, and be sued in the City of Manila." a) In case of
venue for personal actions (a collection case) is nonpayment of the loan, can A file his complaint to
residence of either party; place where the business collect the loan from X in Angeles City?
is immaterial. b) Suppose the parties did not stipulate in the loan
agreement as to the venue, where can A file his
Venue may be waived by: complaint against X?
1. Failure to object via motion to dismiss; c) Suppose the parties stipulated in their loan
2. Seeking affirmative relief in the court where agreement that "venue for all suits arising from this
the case is filed; contract shall be the courts in Quezon City," can A
3. Voluntary submission to the court where the file his complaint against X in Pasay City?
case is filed; SUGGESTED ANSWER:
4. Laches. (a) Yes, because the stipulation in the loan agreement
that "the parties agree to sue and be sued in the City
of
Manila" does not make Manila the "exclusive venue
Venue; Improper Venue; Compulsory Counterclaim (1998) thereof." (Sec, 4 of Rule 4, as amended by Circular No. 13 95: Sec.
A, a resident of Lingayen, Pangasinan sued X, a resident 4 of new Rule 4) Hence, A can file his complaint in
of San Fernando La Union in the RTC (RTC) of Angeles City where he resides, (Sec, 2 of Rule 4).
Quezon City for the collection of a debt of P1 million. X (b) If the parties did not stipulate on the venue, A
did not file a motion to dismiss for improper venue but can file his complaint either in Angeles City where
filed his answer raising therein improper venue as an he resides or in Pasay City where X resides, (Id).
affirmative defense. He also filed a counterclaim for (c) Yes, because the wording of the stipulation does
P80,000 against A for attorney's fees and expenses for not
litigation. X moved for a preliminary hearing on said make Quezon City the exclusive venue. (Philbanking
affirmative defense. For his part, A filed a motion to v. Tensuan. 230 SCRA 413; Unimasters Conglomeration,
Inc. v. CA. CR-119657, Feb. 7, 1997)
dismiss the counterclaim for lack of jurisdiction. ALTERNATIVE ANSWER:
1 Rule on the affirmative defense of improper venue. (c) No. If the parties stipulated that the venue "shall
[3%] be
2 Rule on the motion to dismiss the counterclaim on in the courts in Quezon City", A cannot file his
the ground of lack of jurisdiction over the subject complaint in Pasay City because the use of the word
matter. [2%] "shall" makes Quezon City the exclusive venue
SUGGESTED ANSWER:
thereof.
1. There is improper venue. The case for a sum of (Hoechst Philippines vs. Torres, 83 SCRA 297).
money, which was filed in Quezon City, is a personal
action. It must be filed in the residence of either the
plaintiff, which is in Pangasinan, or of the defendant,
which is in San Fernando, La Union. (Sec. 2 of Rule 4) The Section 3. Venue of actions against
fact that it was not raised in a motion to dismiss does nonresidents. — If any of the defendants
not matter because the rule that if improper venue is not does not reside and is not found in the
raised in a motion to dismiss it is deemed waived was Philippines, and the action affects the
removed from the 1997 Rules of Civil Procedure. The personal status of the plaintiff, or any
new Rules provide that if no motion to dismiss has been property of said defendant located in the
filed, any of the grounds for dismissal may be pleaded as Philippines, the action may be commenced
an affirmative defense in the answer. (Sec. 6 of Rule 16.) and tried in the court of the place where
2. The motion to dismiss on the ground of lack of the plaintiff resides, or where the property
jurisdiction over the subject matter should be denied. or any portion thereof is situated or found.
The counterclaim for attorney's fees and expenses of (2[c]a)
litigation is a compulsory counterclaim because it
necessarily arose out of and is connected with the NOTE: [a special rule for non-residents]
complaint. In an original action before the RTC, the
counterclaim may be considered compulsory regardless Section 4. When Rule not applicable. —
of the amount. (Sec. 7 of Rule 6) This Rule shall not apply.

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(a) In those cases where a specific rule or (B) Should the real owner succeed in
law provides otherwise; or recovering his stolen car from buyer X, the
latter shall have recourse under this
(b) Where the parties have validly agreed in contract to seller Y exclusively before the
writing before the filing of the action on the proper Cebu City court.
exclusive venue thereof. (3a, 5a) (C) Venue in case of dispute between the
parties to this contract shall solely be in
the proper courts of Quezon City. (D) Any
dispute arising from this contract of sale
64. The mortgage contract between X, who may be filed in Makati or Quezon City.
resides in Manila, and Y, who resides in Naga,
covering land in Quezon provides that any suit
arising from the agreement may be filed
"nowhere else but in a Makati court". Y must
thus sue only in: The rules on venue does not apply in cases:
a. Makati;
b. Makati and/or Naga; 1. Specific rule or law applies;
c. Quezon and/or Makati; 2. Valid agreement between the parties
d. Naga. providing for an exclusive venue.
SUGGESTED ANSWER: (a), The rules on
venue of actions are merely procedural in Requisites:
character and can be a subject of
stipulation. Where the parties have validly 1) Valid written agreement;
agreed in writing before the filing of the 2) Executed prior to the filing of the action;
action on the exclusive venue of the action, 3) Exclusive nature of venue.
the suit cannot be filed anywhere other
than the stipulated venue. (Rule 4, Sec. 4,
 In the absence of qualifying or restrictive
Rules of Court). Since the stipulation
words, venue stipulation is merely
between X and Y in the mortgage contract permissive meaning that the stipulated
is mandatory and restrictive in character, venue is merely an addition to the venues
the venue of the action is only in Makati provided by the Rules (Polytrade Corp. vs.
City. Blanco 30 SCRA 187)
ALTERNATIVE ANSWER:  Examples of qualifying words: only, solely,
None of the above. The venue of the action exclusively in this court.
should only be Quezon City, the place  Note, however, that when the stipulation on
where the real property is located. The rules venue in a passenger ticket of a vessel
on venue do not apply to actions involving would be contrary to public policy of making
a mortgage. In Ochoa vs. Chinabank, G.R. the courts accessible to all who may need of
No. 192877, March 23, 2011, the Supreme their service, the stipulation would be void
Court held that the exclusive venue of or, at least, unenforceable.
Makati City, as stipulated by the parties
and sanctioned by Section 4, Rule 4 of the NOTE: The Supreme Court has the power and
Rules of Court, cannot be made to apply to authority to order a change of venue to prevent
the Petition for Extrajudicial Foreclosure miscarriage of justice.
filed by respondent bank because the
provisions of Rule 4 pertain to venue of
Note that the court may not motu proprio dismiss
actions, which an extrajudicial foreclosure
the cause on the ground that venue is
is not. There is no reason to depart from
improperly laid (Dacoycoy vs. IAC, 195 SCRA
the doctrinal pronouncement of the
841). The exception is in sec. 4 of The Revised
Supreme Court. Rules of Summary Procedure.

(93) Which of the following stipulations in a
contract will supersede the venue for actions
that the rules of civil procedure fix? (A) In case RULE 5
of litigation arising from this contract of sale,
the preferred venue shall be in the proper Uniform Procedure In Trial Courts
courts of Makati.

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Section 1. Uniform procedure. — The

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

receipt of order,
submission of parties
of affidavits and
position papers
Rendition of judgment
w/in 30 days from last
affidavit or w/in 5days
from last clarificatory
paper
PROHIBITED PLEADINGS/MOTIONS UNDER

THE RULE ON SUMMARY PROCEDURE
RULES OF SUMMARY PROCEDURE IN CIVIL
CASES 1. Motion to dismiss the complaint or to quash
the complaint or information except on lack
Filing of verified Complaint of jurisdiction over the subject matter or
with the MTC failure to comply with prior barangay
conciliation;
2. Motion for Bill of Particulars;
3. Motion for new trial or for reconsideration of
judgment or for re opening of trial;
Court may summon the Court may dismiss the
defendant case outright
Note that MR for interlocutory order is
not prohibited.
W/in 10 days from 4. Petition for relief from judgment;

receipt of summons, If defendant fails to answer in 5. Motion for extension of time to file pleadings,
defendant answers, 10 days, the court, the court or affidavits or any other paper;
incorporating on motion of the plaintiff may 6. Memoranda;
compulsory render judgment based on the 7. Petition for CPM against any interlocutory
counterclaim, or facts alleged in the complaint, order of the court;
cross-claim, and without prejudice to Rule 9 sec. 8. Motion to declare the defendant in default;
serves a copy on 3 (c)
9. Dilatory motion for postponement;
plaintiff
________________________________________________________________________________________________
10. Reply; denied because the petition for certiorari is a

11. Third party complaints; prohibited pleading.
12. Interventions.
The filing of a prohibited pleading will not toll the NOTE: Although filing a motion to dismiss is a
running of the period to file an answer or to appeal. prohibited pleading, its filing after the answer
had been submitted does not constitute a
Bar Exam Question 2011 pleading prohibited by the summary rules. What
(100) In a civil action involving three separate rules proscribe is a motion to dismiss that would
causes of action, the court rendered summary stop the running of the period to file an answer
judgment on the first two causes of action and and cause undue delay (Heirs of Olivas vs. Flor,
tried the third. After the period to appeal from 161 SCRA 393).
the summary judgment expired, the court
issued a writ of execution to enforce the same. Note: While a motion to declare a defendant in
Is the writ of execution proper? (A) No, being default is prohibited by the rules on summary
partial, the summary judgment is interlocutory procedure, the plaintiff may nevertheless file a
and any appeal from it still has to reckon with motion to render judgment as may be warranted
the final judgment. (B) Yes since, assuming the when the defendant fails to answer.
judgment was not appealable, the defendant
should have questioned it by special civil The issuance of the preliminary conference
action of certiorari. (C) No, since the rules do order is important part of summary procedure
not allow a partial summary judgment. (D) No, because its receipt by the parties that begins the
since special reason is required for execution 10-day period to submit the affidavits and other
pending rendition of a final decision in the evidence.
case.
TRIAL PROCEDURE OF CIVIL CASES (Sum-
Prohibited Pleadings (2004) Pro)
Charged with the offense of slight physical injuries under
an information duly filed with the MeTC in Manila No testimonial evidence is required nor cross-
which in the meantime had duly issued an order examination of witnesses allowed. All that is that
declaring that the case shall be governed by the Revised within 10 days from receipt of the pre-trial order,
Rule on Summary Procedure, the accused filed with said they shall submit:
court a motion to quash on the sole ground that the
officer who filed the information had no authority to do 1) Affidavits of their witnesses;
so. The MeTC denied the motion on the ground that it 2) Other evidence on the factual issues set
is a prohibited motion under the said Rule. The accused forth in the pre-trial order, together with
thereupon filed with the RTC in Manila a petition for their position papers, setting forth the
certiorari in sum assailing and seeking the nullification of law and the facts relied upon by them.
the MeTC's denial of his motion to quash. The RTC in
due time issued an order denying due course to the Judgments of inferior courts in cases
certiorari petition on the ground that it is not allowed by governed by sum-pro are appealable to the
the said Rule. The accused forthwith filed with said RTC RTC.
a motion for reconsideration of its said order. The RTC
in time denied said motion for reconsideration on the
The decisions of the RTC, on appeal, in civil
ground that the same is also a prohibited motion under
cases are immediately executory.
the said Rule. Were the RTC's orders denying due course
to the petition as well as denying the motion for
reconsideration correct? Reason. (5%)
SUGGESTED ANSWER: KATARUNGANG PAMBARANGAY LAW
The RTC's orders denying due course to the petition for (KPL)
certiorari as well as denying the motion for reconsideration Title One, Book III, RA 7160
are both not correct. The petition for certiorari is a
prohibited pleading under Section 19(g) of the Revised Rule No complaint, petition, action, or proceeding
on Summary Procedure and the motion for involving any matter within the authority of
reconsideration, while it is not prohibited motion (Lucas v. the Lupon shall be filed or instituted directly
Fabros, AM No. MTJ-99-1226, January 31, 2000, citing Joven v.
in court or any other government office for
Court of Appeals, 212 SCRA 700, 707-708 (1992), should be
adjudication UNLESS:

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1. There has been a CONFRONTATION to dismiss the complaint because there was
BETWEEN THE PARTIES before the no Barangay conciliation. The court should
Lupon Chairman or the Pangkat; and therefore:
2. That no conciliation or settlement has a. dismiss X's complaint for prematurity.
been reached OR unless the settlement b. dismiss X's complaint for lack of cause of
has been repudiated the parties thereto. action.
c. deny Y's motion because it is exempt
KPL covers initiatory pleadings, as a rule, like: from Barangay conciliation.
a) Complaint d. deny Y's motion because of the amount
b) Crossclaim of the loan.
c) Third/fourth, etc. party complaint SUGGESTED ANSWER: (c), As a general
d) Intervention rule, no complaint, petition, action or
e) Counterclaim proceeding involving any matter within
the authority of the Lupon shall be filed
or instituted in court or any other
CASES NOT COVERED BY THE KPL government office for adjudication
(Substantive exceptions): unless there has been a confrontation of
the parties before the Lupon Chairman
1. Where one party is the GOVERNMENT or or the Pangkat and no conciliation or
any subdivision or instrumentality thereof; settlement has been reached as certified
2. Where one party is a PUBLIC OFFICER or by the Lupon Secretary or the Pangkat
employee, and the dispute relates to the Secretary, attested by the Lupon or
performance of his official functions; Pangkat Chairman, or unless the
3. Offenses punishable by imprisonment Settlement has been repudiated.
exceeding 1 year or a fine exceeding 5,000 However, the parties may go directly to
pesos; court in actions coupled with provisional
4. Offenses where there is no private offended remedies such as preliminary injunction,
party; attachment, delivery of personal
5. Where the dispute involves real properties property and support pendent lite.
located in different cities or municipalities,
(Sec.6, P.D. 1508, Katarungang
UNLESS the parties thereto agree to submit
Pambarangay Law). Since X‟s complaint
their differences to amicable settlement
against Y involves collection of sum of
upon an appropriate Lupon;
money with prayer for issuance of
6. Disputes involving parties who actually
preliminary attachment, there is no need
reside in barangays of different cities or
for prior barangay conciliation, and
municipalities,
therefore the Court should deny Y‟s
EXCEPT; Motion to Dismiss.
a) Where such barangay units adjoin each
other; and Bar Exam Question 2012
b) The parties thereto agree to submit their 35. Under the Katarungan Pambarangay
differences to amicable settlement by rules, the execution of an amicable
an appropriate lupon. settlement or arbitration award is started
7. Such other classes of disputes which the by filing a motion for execution with the
PRESIDENT may determine in the interest Punong Barangay, who may issue a notice
of justice; of execution in the name of the Lupon
8. Where one of the parties is a juridical entity. Tagapamayapa. Execution itself, however,
will be done by:
The court at any time of the trial, motu proprio, refer a. a court-appointed sheriff.
the case concerned, to the lupon for amicable b. any Barangay Kagawad.
settlement non-criminal cases not falling within the c. Punong Barangay.
authority of the latter. d. any member of the Pangkat ng
Tagapagsundo.
Bar Exam Question 2012 SUGGESTED ANSWER: (c), The Punong
28. X and Y, both residents of Bgy. II, Barangay shall issue a notice of
Sampaloc, Manila entered into a P 100,000 execution in the name of the Lupong
loan agreement. Because Y defaulted, X sued Y Taga-pamayapa and that if the execution
for collection and the complainant prayed for be for the payment of money, the party
issuance of preliminary attachment. Y moved obliged is allowed a period of five (5)

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days to make a voluntary payment, failing While the dispute is under mediation,
which, the Punong Barangay shall take conciliation, or arbitration, the prescriptive
possession of sufficient personal property period for offenses and cause of action under
located in the barangay. (Sections 5 and 6, existing laws shall be interrupted upon filing of
Article VII, Implementing Rules and the complaint with the Punong Barangay. Such
Regulations of the Katarungang interruption shall not exceed 60 days from the
Pambarangay Rule). time of filing of the complaint with the Punong
Barangay.
Katarungang Pambarangay; Parties (2009) Katarungang Pambarangay; Objective (1999)

No.XV.B. Mariano, through his attorney-in- What is the object of the Katarungang Pambarangay
fact, Marcos filed with the RTC of Baguio City a Law? (2%)
complaint for annulment of sale against Henry. SUGGESTED ANSWER:
Marcos and Henry both reside in Asin Road, The object of the Katarungang Pambarangay Law is
Baguio City, while Mariano resides in Davao to effect an amicable settlement of disputes among
City. Henry filed a motion to dismiss the family and barangay members at the barangay level
complaint on the ground of prematurity for without judicial recourse and consequently help
failure to comply with the mandatory barangay relieve the courts of docket congestion. (Preamble of
P.D. No. 1508, the former and the first Katarungang Pambarangay
conciliation. Resolve the motion with reasons. Law.)
(3%) SUGGESTED ANSWER: The motion to
dismiss should be denied because the
parties in interest, Mariano and Henry, do PARTIES MAY GO DIRECTLY TO COURT IN
not reside in the same city/municipality, or THE FOLLOWING INSTANCES
is the property subject of the controversy (Procedural Exceptions):
situated therein. The required
conciliation/mediation before the proper 1. Where the accused is under CUSTODY or
Barangay as mandated by the Local DETENTION;
Government Code governs only when the 2. Where the person is otherwise deprived of
parties to the dispute reside in the same personal liberty calling for HABEAS
city or municipality, and if involving real CORPUS proceeding;
property, as in this case, the property must 3. Where the action is coupled with
be situated also in the same city or PROVISIONAL REMEDIES such as
municipality. Preliminary Injunction, attachment, delivery
of personal property (Repliven), and Support
pendente lite;
Katarungang Pambarangay; Lupon; Extent of Authority; 4. Where the action may otherwise be
(2001) An amicable settlement was signed before a BARRED by STATUTE OF LIMITATIONS;
Lupon Tagapamayapa on January 3, 2001. On July 6, 5. LABOR Disputes (Montoya vs. Escayo, 171
2001, the prevailing party asked the Lupon to execute SCRA 442);
the amicable settlement because of the non-compliance 6. Any class of disputes which the President
by the other party of the terms of the agreement. The may determine in the interest of justice or
Lupon concerned refused to execute the upon the recommendation of the Secretary
settlement/agreement. of Justice;
a) Is the Lupon correct in refusing to execute the 7. CARL disputes;
settlement/agreement? (3%) 8. Disputes involving the TRADITIONS of
b) What should be the course of action of the indigenous cultural communities;
prevailing party in such a case? (2%) 9. Actions to ANNUL JUDGMENT upon a
SUGGESTED ANSWER: compromise (Sanches vs. Tupaz, 158
a) Yes, the Lupon is correct in refusing to execute the SCRA 459)
settlement/agreement because the execution sought is 10. KPL does not apply to special
already beyond the period of six months from the date proceedings
of the settlement within which the Lupon is authorized
to execute. (Sec. 417, Local Government Code of 1991) The parties may, at any stage of the
b) After the six-month period, the prevailing party proceedings, agree in writing to have the matter
should move to execute the settlement/agreement in in dispute decided upon by arbitration by either
the appropriate city or municipal trial court. (Id.) the Punong Barangay or the Pangkat. In such
case, arbitrational hearings shall follow order of
adjudicative trials.

________________________________________________________________________________________________
The settlement and arbitration agreement may be

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

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

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KATARUNGANG PAMBARANGAY PROCEDURE

Filing of the complaint
with the Punong
Barangay
W/in the next working day At any time during the

proceedings
Issuance of Parties agree to submit

summons to the their dispute to
parties and the arbitration
witnesses
Mediation (hearing) Arbitration proceedings
Failure of Settlement
mediation
efforts
Award to be
Repudiation of
made after the
arbitration
lapse of the
agreement
Execution w/in 6 period to
Constitution of the within 5 days
months from repudiate and
pangkat from date of
date w/in 10 days
agreement
thereafter
Pangkat convenes not Pangkat must arrive at a settlement w/in 15

later than 3 days from its days from the day it convenes.
constitution and Execution w/in 6
summons the parties Cannot be extended except for clearly months from the
meritorious ground for not exceeding 15 date of the
days. award
Conciliation
(HEARING)
Repudiation of
NOTE: Repudiation shall be allowed
settlement
within 10 days only on ground of vitiation of consent,
Settlement from date fraud, violence or intimidation.
thereof
ISSUANCE OF Failure of conciliation at the pangkat

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

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

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

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

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TEST OF SUFFICIENCY OF THE FACTS denial of the allegations sought to be denied.
ALLEGED IN THE COMPLAINT: Determine This arises when the pleader merely repeats the
whether upon the averment of facts, a valid allegations in the negative form.
judgment may be properly rendered.
Section 5. Defenses. — Defenses may
What are not ultimate facts? either be negative or affirmative.
1. Evidentiary or immaterial facts;
2. Legal conclusions, conclusions or inferences of
facts from facts not stated, or incorrect (a) A negative defense is the specific
inferences or conclusions from facts stated; denial of the material fact or facts alleged
3. The details of probative matter or particular in the pleading of the claimant essential to
evidence, statements of law, inferences and his cause or causes of action.
arguments;
(b) An affirmative defense is an allegation
Note: An allegation that a contract is valid or void is of a new matter which, while
a mere conclusion of law. hypothetically admitting the material
allegations in the pleading of the claimant,
Section 4. Answer. — An answer is a would nevertheless prevent or bar
pleading in which a defending party sets forth recovery by him. The affirmative defenses
his defenses. (4a) include fraud, statute of limitations,
release, payment, illegality, statute of
NOTE; Answer may include the response to a frauds, estoppel, former recovery,
counterclaim or a cross-claim. discharge in bankruptcy, and any other
matter by way of confession and
2 Kinds of Defenses that may be set forth in an avoidance. (5a)
answer:
Section 6. Counterclaim. — A
1. AFFIRMATIVE DEFENSES. It is an allegation counterclaim is any claim which a
of anew matter which, while hypothetically defending party may have against an
admitting the material allegations in the pleading opposing party. (6a)
of the claimant, would nevertheless prevent or
bar recovery by him. Affirmative defenses NATURE OF A COUNTERCLAIM
include fraud, prescription, release, payment A Counterclaim is in the nature of a cross-
and other matter by way of confession and complaint. Although it may be alleged in the
avoidance. answer, it is not part of the answer. Upon its
filing, the same proceedings are had as in the
original complaint. For this reason, it must be
answered within 10 days from service.
2. NEGATIVE DEFENSES. It refers to specific
denial of the material facts alleged in the Pleadings; Counterclaim (2007) No.II. (d) A
complaint essential to the cause of action. counderclain is a pleading. (2%) SUGGESTED
ANSWER: True. A counterclaim is a pleading by
Insufficient denial or denial amounting to which a defending party makes a claim against an
admission: opposing party (Sec. 6, Rule 6, Rules of Court).
a) General denial; and Section 7. Compulsory counterclaim. —

b) Denial in the form of a negative A compulsory counterclaim is one which,
pregnant being cognizable by the regular courts of
justice, arises out of or is connected with
NEGATIVE PREGNANT is a denial in such form as the transaction or occurrence constituting
to imply or express an admission of the substantial the subject matter of the opposing party's
fact which apparently is controverted. It is a form of claim and does not require for its
denial, which really admits the important facts adjudication the presence of third parties
contained in the allegations to which it relates. of whom the court cannot acquire
jurisdiction. Such a counterclaim must be
While it is a denial in form, its substance actually within the jurisdiction of the court both as
has the effect of an admission because of too literal to the amount and the nature thereof,

________________________________________________________________________________________________
except that in an original action before the cannot acquire adjudication over whom
Regional Trial Court, the counter-claim may jurisdiction, for its the court cannot
be considered compulsory regardless of the adjudication acquire jurisdiction
amount. (n) Barred if not set up in Not barred if not set up
the action in the action
Counterclaims may either be: Must be answered,
otherwise , the plaintiff
Need not be answered (now defendant of the
1. Compulsory (principle of recoupment); or
counterclaim) may be
2. Permissive (principle of set-off – subject to
declared in default
the KPL).
NOTE: A plaintiff who fails or chooses not to
JURISDICTION over compulsory counterclaims:
answer a compulsory counterclaim may not be
In RTC, regardless of the amount, in city/town court,
declared in default, principally because the
must be within the jurisdictional amount. But RTC
issues raised in the counterclaim are deemed
does not have jurisdiction on a counterclaim if it
automatically joined by the allegations in the
does not have jurisdiction on the subject matter of
complaint (Goyola vs. Goyola, 35 SCRA 557)
such counterclaim. E.g., forcible entry and unlawful
detainer.
Requisites for compulsory
“COMPELLING TEST OF COMPULSORINESS” counterclaim:(clue words only)
It requires logical relationship between the claim and
the counterclaim. That is, conducting separate trial 1. arise/connected with the subject matter;
of the respective claims of the parties would entail a 2. does not require third parties;
substantial duplication of effort and time by the 3. Within jurisdiction of the court.
parties and the court.
GR: Compulsory Counterclaim not set up in the
By its nature, a counterclaim can only be filed answer is deemed barred.
against an opposing party; a cross-claim against a
co-party. By way of exception, section 12, Rule 6 Exception: Rule 11, sec. 9 - . Counterclaim or
(Bringing new parties): cross-claim arising after answer. — A counterclaim or
a cross-claim which either matured or was acquired
Section 12. Bringing new parties. — When the by a party after serving his pleading may, with the
presence of parties other than those to the original permission of the court, be presented as a
action is required for the granting of complete relief in counterclaim or a cross-claim by supplemental
the determination of a counterclaim or cross-claim, pleading before judgment.
the court shall order them to be brought in as
defendants, if jurisdiction over them can be obtained. NOTE: The filing of a motion to Dismiss and the
setting of a compulsory counterclaim are
NOTES: If the counterclaim is filed in the MTC in incompatible remedies. In the event that a
excess of its jurisdictional amount, the excess is defending party has a ground for the dismissal
considered waived (Agustin vs. Bacalan, 135 SCRA and a compulsory counterclaim, at the same
340) time, he must choose only one remedy. If he
decides to file a motion to dismiss, he will loss
The remedy where a counterclaim is beyond the his counterclaim. But if he opts to set up his
jurisdictional amount of the MTC is to set-off the counterclaim, he may still plead his ground for
claims and file a separate action to collect the the dismissal as an affirmative defense in his
balance (Calo vs. Ajax Int’l. 22 SCRA 996) answer.
GR: The Dismissal of the main action carries

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

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

________________________________________________________________________________________________
a. With leave of court, file a supplemental answer Section 11. Third, (fourth, etc.)—party
so that he could allege therein his “after-acquired complaint. — A third (fourth, etc.) —
counterclaim”; or party complaint is a claim that a
defending party may, with leave of court,
b. File a complaint against the plaintiff with his after- file against a person not a party to the
acquired counterclaim as the subject thereof. action, called the third (fourth, etc.) —
Although an after-acquired counterclaim is in the party defendant for contribution,
nature of a compulsory counterclaim, the rule under
indemnity, subrogation or any other relief,
Sec. 2 of Rule 9 that a compulsory counterclaim not
in respect of his opponent's claim. (12a)
set up in the answer shall be barred does not apply.
Said rule applies only to a counterclaim which was
already EXISTING at the time of the filing of the Bar Exam Question 2012
answer. (Sec. 8, Rule 11). An after-acquired 59. Leave of court is always necessary in:
counterclaim is merely PERMISSIVE and not a. a demurrer to evidence in a civil case.
compulsory. Hence, the defendant may file a b. a demurrer to evidence in a criminal
complaint against the plaintiff, this time the parties case.
will be changing sides, the original defendant is now c. motion to amend a complaint.
the plaintiff and the original plaintiff is now the d. third party complaint.
defendant. (Banco de Oro Universal Bank vs. CA, SUGGESTED ANSWER:
et al., 468 SCRA 166; Namarco vs. Federation of (d), A third party complaint is a claim
Namarco Distributors, Inc. 49 SCRA 238). that a defending party may, with leave of
court, file against a person not a party to
the action, called the third party
defendant, for contribution, indemnity,
subrogation or any other relief, in
Section 9. Counter-counterclaims and
respect of his opponent‟s claim. (Rule 6,
counter-crossclaims. — A counter-claim
Sec. 11, Rules of Court). in a third party
may be asserted against an original counter-
complaint, leave of court is always
claimant.
necessary.
A cross-claim may also be filed against an

original cross-claimant. (n)
THIRD-PARTY COMPLAINT IN
Section 10. Reply. — A reply is a pleading, COMPLAINT INTERVENTION
the office or function of which is to deny, or Brings into the action a
allege facts in denial or avoidance of new third person who is not Same
matters alleged by way of defense in the originally a party
answer and thereby join or make issue as to Initiative is with the Initiative is with the
such new matters. If a party does not file person already party third party who seeks
such reply, all the new matters alleged in the to the action to join the action
answer are deemed controverted.
TESTS to determine whether the third-party
If the plaintiff wishes to interpose any claims complaint is in respect of the plaintiff’s
arising out of the new matters so alleged, claim:
such claims shall be set forth in an amended
or supplemental complaint. (11) 1. Whether it arises out of the same
transaction on which the plaintiff’s claim is
based, or although arising out of another
GR: Filing of a Reply is merely optional. New facts different transaction, is connected with the
that were alleged in the answer are deemed plaintiff’s claim;
controverted should a party fails to file a reply. 2. Whether the third-party defendant would be
liable to the plaintiff or to the defendant for
Exceptions; all or part of the plaintiff’s claim against the
1. Where answer is based on ACTIONABLE original defendant; and
DOCUMENT (Rule 8, sec. 8); 3. Whether the third-party defendant may
2. Where the answer alleges the defense of assert any defenses which the third-party
USURY (Rule 8, sec. 11) plaintiff has or may have to the plaintiff’s
claim.

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Summons must be served on the third (fourth, etc- Distinguished from a third party complaint.
party) defendant to obtain jurisdiction over his A 3rd party complaint is proper when not one of
person, since he is not an original party. the third-party defendants therein is party to the
main action. If one or more of the defendants in
NOTE: Where the court has jurisdiction over the a counterclaim or cross-claim is already party to
main case, it also has jurisdiction over third party the action, then the other necessary parties may
complaint, regardless of the amount involved as a be brought in under this section.
third-party complaint is merely an auxiliary to and is
a continuation of the main action (Republic vs. Section 13. Answer to third (fourth,
Central Surety & Insurance Co. 26 SCRA 741). etc.)—party complaint. — A third
(fourth, etc.) — party defendant may
Third party defendant may be held liable to the allege in his answer his defenses,
plaintiff before defendant is held liable to the counterclaims or cross-claims, including
plaintiff. such defenses that the third (fourth, etc.)
— party plaintiff may have against the
Note that a third-party complaint is not proper in an original plaintiff's claim. In proper cases,
action for Declaratory Relief. he may also assert a counterclaim against
the original plaintiff in respect of the
Actions; Cross-Claims; Third Party Claims (1997) latter's claim against the third-party
B and C borrowed P400,000.00 from A. The plaintiff. (n)
promissory note was executed by B and C in a Joint and
several capacity. B, who received the money from A,
gave C P200,000.00. C, in turn, loaned P100,000.00 out
of the P200,000.00 he received to D. RULE 7
a) In an actionfiled by A against B and C with the RTC
of Quezon City, can B file a cross-claim against C for the
amount of P200,000.00? Parts of a Pleading
b) Can C file a thirdparty complaint against D for the
amount of P 100,000.00? Section 1. Caption. — The caption sets
SUGGESTED ANSWER: forth the name of the court, the title of
(a) Yes. B can file a cross-claim against C for the the action, and the docket number if
amount of 200,000.00 given to C. A cross-claim is a assigned.
claim filed by one party against a co-party arising out
of the transaction or occurrence that is the subject The title of the action indicates the names
matter of the original action or a counterclaim therein of the parties. They shall all be named in
and may include a claim that the party against whom it is the original complaint or petition; but in
asserted is or may be liable to the cross-claimant for all
subsequent pleadings, it shall be sufficient
or part of a claim asserted against the crossclaimant. (Sec.
8 Rule 6) if the name of the first party on each side
(b) No, C cannot file a third-party complaint against be stated with an appropriate indication
D because the loan of P100,000 has no connection when there are other parties.
with the opponent's claim. C could have loaned the
money out of other funds in his possession. Their respective participation in the case
ALTERNATIVE ANSWER: shall be indicated. (1a, 2a)
Yes, C can file a third-party complaint against D
because the loan of 100,000.00 was taken out of the PARTS OF A PLEADING;
P200,000 received from B and hence the loan seeks
contribution in respect to his opponent's claim. (Sec. 11 of Caption contains:
Rule 6) 1. Name of court;
2. Title of action;
3. Docket number if assigned.
Section 12. Bringing new parties. — When Body contains:
the presence of parties other than those to 1. Designation;
the original action is required for the granting 2. Allegation of party’s claims and
of complete relief in the determination of a defenses;
counterclaim or cross-claim, the court shall 3. Reliefs prayed for;
order them to be brought in as defendants, if 4. Date of the pleading.
jurisdiction over them can be obtained. (14)

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Section 2. The body. — The body of the remedied if it shall appear that the same
pleading sets fourth its designation, the was due to mere inadvertence and not
allegations of the party's claims or defenses, intended for delay. Counsel who
the relief prayed for, and the date of the deliberately files an unsigned pleading, or
pleading. (n) signs a pleading in violation of this Rule,
or alleges scandalous or indecent matter
(a) Paragraphs. — The allegations in the body therein, or fails promptly report to the
of a pleading shall be divided into paragraphs court a change of his address, shall be
so numbered to be readily identified, each of subject to appropriate disciplinary action.
which shall contain a statement of a single (5a)
set of circumstances so far as that can be
done with convenience. A paragraph may be Bar Exam Question 2013
referred to by its number in all succeeding VII. The signature of counsel in the
pleadings. (3a) pleading constitutes a certification that
__________. (1%) (A) both client and counsel
(b) Headings. — When two or more causes of have read the pleading, that to the best of
action are joined the statement of the first their knowledge, information and belief
there are good grounds to support it, and
shall be prefaced by the words "first cause of
that it is not interposed for delay (B) the
action,'' of the second by "second cause of
client has read the pleading, that to the
action", and so on for the others.
best of the client’s knowledge, information
and belief, there are good grounds to
When one or more paragraphs in the answer support it, and that it is not interposed for
are addressed to one of several causes of delay (C) the counsel has read the pleading,
action in the complaint, they shall be that to the best of the client’s knowledge,
prefaced by the words "answer to the first information and belief, there are good
cause of action" or "answer to the second grounds to support it, and that it is not
cause of action" and so on; and when one or interposed for delay (D) the counsel has
more paragraphs of the answer are read the pleading, that based on his
addressed to several causes of action, they personal information, there are good
shall be prefaced by words to that effect. (4) grounds to support it, and that it is not
interposed for delay (E) The above choices
(c) Relief. — The pleading shall specify the are not totally accurate. SUGGESTED
relief sought, but it may add a general prayer ANSWER: (E), Section 3 of Rule 7
for such further or other relief as may be provides that the signature of counsel
deemed just or equitable. (3a, R6) constitutes a certificate by him that he
has read the pleadings; that to the best
of his knowledge, information, and belief
(d) Date. — Every pleading shall be dated. there is good ground to support it; and
(n) that it is not interposed for delay.
Section 3. Signature and address. — Every

pleading must be signed by the party or
counsel representing him, stating in either
Section 4. Verification. — Except when
case his address which should not be a post
otherwise specifically required by law or
office box.
rule, pleadings need not be under oath,
verified or accompanied by affidavit. (5a)
The signature of counsel constitutes a
certificate by him that he has read the
A pleading is verified by an affidavit that the
pleading; that to the best of his knowledge,
affiant has read the pleading and that the
information, and belief there is good ground allegations therein are true and correct of his
to support it; and that it is not interposed for knowledge and belief.
delay.
A pleading required to be verified which
An unsigned pleading produces no legal contains a verification based on
effect. However, the court may, in its "information and belief", or upon
discretion, allow such deficiency to be "knowledge, information and belief", or

________________________________________________________________________________________________
lacks a proper verification, shall be treated as b. upon motion, be dismissed with
an unsigned pleading. (6a) prejudice.
c. be summarily dismissed with
NOTE: Verification is an oath stating that the prejudice as it may constitute direct
pleading is based on the personal knowledge of the contempt.
affiant or based on authentic records/documents. d. be stricken from the record.
SUGGESTED ANSWER: (c), If the acts of
Verification is required in: the party or his counsel clearly
1. Petitions for CPM (Rule 65); constitute wilful and deliberate forum
2. Pleadings under Summary Procedure; shopping, the same shall be ground for
3. Others specifically required by law or rules. summary dismissal with prejudice and
shall constitute direct contempt, as well
Section 5. Certification against forum as a cause for administrative sanctions
shopping. — The plaintiff or principal party (Rule 7, Sec.5, Rules of Court).
shall certify under oath in the complaint or
other initiatory pleading asserting a claim for Bar Exam Question 2011
(56) A complaint without the required
relief, or in a sworn certification annexed
"verification" (A) shall be treated as
thereto and simultaneously filed therewith:
unsigned. (B) lacks a jurisdictional
(a) that he has not theretofore commenced
requirement. (C) is a sham pleading. (D) is
any action or filed any claim involving the
considered not filed and should be
same issues in any court, tribunal or quasi- expunged.
judicial agency and, to the best of his
knowledge, no such other action or claim is
pending therein; (b) if there is such other FORUM SHOPPING
pending action or claim, a complete It consists of filing multiple suits in different
statement of the present status thereof; and courts, either simultaneously or successively,
(c) if he should thereafter learn that the involving the same parties, to ask the courts to
same or similar action or claim has been filed rule on the same or related causes and/or to
or is pending, he shall report that fact within grant same or substantially the same relief.
five (5) days therefrom to the court wherein
his aforesaid complaint or initiatory pleading 3 COMMON FORMS OF FORUM SHOPPING:
has been filed. a. In the form constituting litis pendentia
b. In the form constituting res judicata
c. Splitting causes of action
Failure to comply with the foregoing
requirements shall not be curable by mere
Test to determine the presence of forum
amendment of the complaint or other shopping: whether in the two or more cases
initiatory pleading but shall be cause for the pending, there is identity in terms of the
dismissal of the case without prejudice, following:
unless otherwise provided, upon motion and a. Parties;
after hearing. The submission of a false b. Rights or causes of actions;
certification or non-compliance with any of c. Relief sought.
the undertakings therein shall constitute
indirect contempt of court, without prejudice Note that the certificate is to be executed by
to the corresponding administrative and petitioner and not by counsel.
criminal actions. If the acts of the party or his
counsel clearly constitute willful and Except: When petitioner is a corporation. The
deliberate forum shopping, the same shall be lawyer must be specifically authorized and
ground for summary dismissal with prejudice who has personal knowledge of the facts
and shall constitute direct contempt, as well required to be disclosed in such document. It
as a cause for administrative sanctions. (n) should be understood that the authority is in the
form of a board resolution. Corporation acts only
through its board.
26. When a party or counsel willfully or Note that generally the CAFS is signed by any of
deliberately commits forum shopping, the its authorized officers (Digital Microwave Corp.
initiatory pleading may: vs. CA, supra).
a. be cured by amendment of the complaint.

________________________________________________________________________________________________
Forum Shopping; Definition (2006) Absence of CAFS is not a ground for the court
What is forum shopping? (2.5%) to dismiss the case motu proprio.
SUGGESTED ANSWER:
Forum shopping is the act of a party which consists of CAFS not required in a compulsory counterclaim
filing multiple suits, simultaneously or successively, for (UST Hosp. vs. Suria 294 SCRA 382).
the purpose of obtaining a favorable judgment (Leyson v.
Office of the Ombudsman, G.R. No. 134990, April 27, 2000; Foreclosure; Certification Against Non
Yulienco v. CA, G.R. No. 131692, June 10,1999; Chemphil Forum Shopping (2007)
Export & Import Corp. v. CA, G.R. Nos.112438-39,
December 12, 1995). No.X. (a) RC filed a complaint for
annulment of the foreclosure sale against
Forum Shopping; Effects; Lack of Certification (2006) Bank V. In its answer, Bank V set up a
Honey filed with the Regional Trial Court, Taal, counterclaim for actual damages and
Batangas a complaint for specific performance against litigation expenses. RC filed a motion to
Bernie. For lack of certification against forum shopping, dismiss the counterclaim on the ground
the judge dismissed the complaint. Honey's lawyer filed a that Bank V’s Answer with Counterclaim
motion for reconsideration, attaching thereto an was not accompanied by a certification
amended complaint with the certification against forum against forum shopping. Rule. (5%)
shopping. If you were the judge, how will you resolve SUGGESTED ANSWER: A certification
the motion? (5%) against forum shopping is required only
SUGGESTED ANSWER: in initiatory pleadings. In this case, the
If I were the judge, the motion should be denied after hearing counterclaim pleaded in the defendant’s
because, as expressly provided in the Rules, failure to comply Answer appears to have arisen from the
with the requirement of forum shopping is not curable by plaintiff’s complaint or compulsory in
mere amendment of the complaint or other initiatory pleading, nature and thus, may not be regarded as
but shall be cause for the dismissal of the case, without
an initiatory pleading. The absence
prejudice, unless otherwise provided (Sec. 5, Rule 7, 1997 Rules of
Civil Procedure). However, the trial court in the exercise of its
thereof in the Bank’s Answer is not a
sound discretion, may choose to be liberal and consider the fatal defect. Therefore, the motion to
amendment as substantial compliance (Great Southern dismiss on the ground raised lacks merit
Maritime Services Corp. v. Acuna, G.R. No. 140189, February and should be denied (UST v. Suria, 294
28,2005; Chan v. RTC of Zamboanga del Norte, G.R. No. SCRA 382 [1998]).
149253, April 15, 2004; Uy v. Land Bank, G.R. 136100, July 24, On the other hand, if the counterclaim
2000). raised by the defendant Bank’s Answer
was not predicated on the plaintiff’s
Pleadings; Certification Against Forum Shopping (2000)
claim or cause of action, it is considered
As counsel for A, B, C and D, Atty. XY prepared a
a permissive counterclaim. In which
complaint for recovery of possession of a parcel of land
case, it would partake an initiatory
against Z. Before filling the complaint, XY discovered
pleading which requires a certification
that his clients were not available to sign the certification
against forum shopping.
of non-forum shopping. To avoid further delays in the
Correspondingly, the motion to dismiss
filing of the complaint, XY signed the certification and
based on lack of the required certificate
immediately filed the complaint in court. Is XY justified
against forum shopping should be
in signing the certification? Why? (5%)
SUGGESTED ANSWER:
granted.
NO, counsel cannot sign the anti-forum shopping
certification because it must be executed by the “plaintiff
or principal party” himself (Sec. 5, Rule 7; Excorpizo v. Failure to file CAFS not excused by proof that
University of Baguio, 306 SCRA 497, [1999]),
the party concerned (Plaintiff) was not guilty of
forum shopping. On the other hand, party who
since the rule requires personal knowledge by the party
filed two or more related cases is not relieved
executing the certification, UNLESS counsel gives a
from legal effect of forum shopping by admitting
good reason why he is not able to secure his clients’
such fact in his CAFS (Sps. Ong vs. CA, L-
signatures and shows that his clients will be deprived of
144581, July 5, 2002).
substantial justice (Ortiz v. Court of Appeals, 299 SCRA
708, [1998]) or unless he is authorized to sign it by his
GR: A CAFS should be signed by all petitioners
clients through a special power of attorney. because a lone signatory cannot be presumed
to have personal knowledge of facts required to
CAFS is required only for complaint or other be stated in the attestation.
initiatory pleadings such as permissive
counterclaim, cross-claim, etc. EXCEPTION (requisites):

________________________________________________________________________________________________
1. There was reasonable cause for failure of some ultimate facts on which the party pleading
of them to sign the CAFS; and relies for his claim or defense, as the case
2. The outright dismissal of the petition would may be, omitting the statement of mere
defeat the administration of justice. evidentiary facts. (1)
If a defense relied on is based on law, the

Forum Shopping; Certification (2009) No.III.
pertinent provisions thereof and their
Amorsolo, a Filipino citizen permanently
residing in New York City, filed with the RTC of applicability to him shall be clearly and
Lipa City a complaint for Rescission of concisely stated. (n)
Contract of Sale of Land against Brigido, a
resident of Barangay San Miguel, Sto. Tomas, ULTIMATE FACTS (Pactum Probandum) refers
Batangas. The subject property, located in to those directly form the bases of the right
Barangay Talisay, Lipa City, has an assessed sought to be enforced or the defense relied
value of 19,700. Appended to the complaint is upon. If the ultimate facts are not alleged, the
Amorsolo’s verification and certification of non- cause of action would be insufficient.
forum shopping executed in New York City,
duly notarized by Mr. Joseph Brown, Esq., a EVIDENTIARY FACTS (Pactum Probans) refer
notary public in the State of New York. Brigod to those which are necessary to prove the
filed a motion to dismiss the complaint on the ultimate facts or which furnish evidence of the
following grounds: existence of some other facts.
(c) The verification and certification of non-
forum shopping are fatally defective because
TEST TO DISTINGUISH CONCLUSION OF
there is no accompanying certification issued
LAW FROM STATEMENT OF FACTS
by the Philippine Consulate in New York,
If from the facts in evidence, the result can be
authenticating that Mr. Brown is duly
reached by the process of natural reasoning
authorized to notarize the document. (3%) Rule
adopted in the investigation of the truth, it
on the foregoing grounds with reasons.
becomes an ultimate fact to be found as such.
SUGGESTED ANSWER: The third ground
raised questioning the validity of the If, on the other hand, resort must be had to
verification and certification of non-forum artificial processes of law in order to reach a
shopping for lack of certification from the final determination, the result is a conclusion of
Philippine Consulate in New York, law.
authenticating that Mr. Brown is duly
authorized to notarize the document, is ULTIMATE FACTS (Cause of Action)
likewise without merit. The required 1. Right;
certification alluded to, pertains to official 2. Obligation to respect the right;
acts, or records of official bodies, tribunals, 3. Violation;
and public officers, whether of the 4. Damage.
Philippines or of a foreign country: the
requirement in Sec. 24, Rule 132 of the FACTS THAT NEED NOT BE ALLEGED:
1997 Rules refers only to paragraph (a) of 1. Facts presumed by law;
Sec. 29 which does not cover notarial 2. Conclusion of law or fact;
documents. It is enough that the notary 3. Facts within domain of judicial notice.
public who notarized the verification and
certification of non-forum shopping is Section 2. Alternative causes of action
clothed with authority to administer oath in or defenses. — A party may set forth two
that State or foreign country. or more statements of a claim or defense
alternatively or hypothetically, either in
one cause of action or defense or in
RULE 8 separate causes of action or defenses.
When two or more statements are made
Manner of Making Allegations in in the alternative and one of them if made
Pleadings independently would be sufficient, the
pleading is not made insufficient by the
Section 1. In general. — Every pleading insufficiency of one or more of the
shall contain in a methodical and logical form, alternative statements. (2)
a plain, concise and direct statement of the

________________________________________________________________________________________________
NOTE: A party may state as many claims or supporting particulars within the pleader’s
defenses as he has regardless of the consistency knowledge.
but each must be consistent in itself. 5. Malice, intent, knowledge, or other condition
of the mind;
Section 3. Conditions precedent. — In any 6. Judgment of domestic or foreign courts,
pleading a general averment of the tribunals, board, or officers (no need to show
performance or occurrence of all conditions jurisdiction);
7. Official document or act.
precedent shall be sufficient. (3)
FACTS THAT MUST BE ALLEGED WITH
Examples: PARTICULARITY:
1. Barangay conciliation; 1. Fraud;
2. Exhaustion of administrative remedies; 2. Mistake.
3. Earnest efforts towards a compromise in
suits between relatives.
Section 7. Action or defense based on
document. — Whenever an action or
Section 4. Capacity. — Facts showing the
defense is based upon a written
capacity of a party to sue or be sued or the instrument or document, the substance of
authority of a party to sue or be sued in a
such instrument or document shall be set
representative capacity or the legal existence
forth in the pleading, and the original or a
of an organized association of person that is
copy thereof shall be attached to the
made a party must be averred. A party
pleading as an exhibit, which shall be
desiring to raise an issue as to the legal
deemed to be a part of the pleading, or
existence of any party or the capacity of any
said copy may with like effect be set forth
party to sue or be sued in a representative
in the pleading. (7)
capacity, shall do so by specific denial, which
shall include such supporting particulars as
TWO PERMISSIBLE WAYS OF PLEADING AN
are peculiarly within the pleader's knowledge.
ACTIONABLE DOCUMENT:
(4) 1. By setting forth the substance of such
document in the pleading and attaching said
Section 5. Fraud, mistake, condition of document thereto as an exhibit. NOTE that
the mind. — In all averments of fraud or the contents of the document is controlling in
mistake the circumstances constituting fraud case there is variance in the substance of
or mistake must be stated with particularity. the document set forth in the pleading and
Malice, intent, knowledge, or other condition the document attached;
of the mind of a person may be averred 2. By setting forth said document verbatim in
generally.(5a) the pleading.
Section 6. Judgment. — In pleading a Section 8. How to contest such

judgment or decision of a domestic or foreign documents. — When an action or
court, judicial or quasi-judicial tribunal, or of defense is founded upon a written
a board or officer, it is sufficient to aver the instrument, copied in or attached to the
judgment or decision without setting forth corresponding pleading as provided in the
matter showing jurisdiction to render it. (6) preceding section, the genuineness and
due execution of the instrument shall be
FACTS THAT MAY BE AVERRED GENERALLY deemed admitted unless the adverse
1. Condition precedent (BUT there must still be an party, under oath specifically denies them,
allegation that a particular condition precedent and sets forth what he claims to be the
has been complied with, otherwise it will be facts, but the requirement of an oath does
dismissed for failure to state a cause of action); not apply when the adverse party does
2. Capacity to sue and be sued; not appear to be a party to the instrument
3. Capacity to sue and be sued in a representative or when compliance with an order for an
capacity; inspection of the original instrument is
4. Legal existence of an organization; refused. (8a)
NOTE: A party desiring to raise an issue as to
the legal existence or capacity of any party to HOW TO CONTEST AN ACTIONABLE
sue or be sued in a representative capacity shall DOCUMENT:
do so by SPECIFIC DENIAL which shall include

________________________________________________________________________________________________
1. By specific denial under oath; and SUGGESTED ANSWER:
2. By setting forth what is claimed to be the A reply is generally optional. If it is not filed, the
facts. new matters alleged in the answer are deemed
controverted. (Sec. 10 of Rule 6). However, since the
Where the actionable document is properly alleged, contract of lease attached to the answer is the basis
the failure to specifically deny under oath the same of the defense, by not filing a reply denying under
results in: oath the genuineness and due execution of said
a) Admission to the genuineness and due contract, the plaintiff is deemed to have admitted the
execution of said document, EXCEPT that genuineness and due execution thereof. (Secs. 7 and
oath is not required: 8 Rule 8; Toribio v. Bidin, 132 SCRA 162 [1985]).
a) When the adverse party is not party
to the instrument;
b) When compliance with an order for Defenses NOT WAIVED despite failure to
its inspection was refused. specifically deny under oath:
b) The document need not be formally offered 1. Payment;
in evidence. 2. Want or illegality of consideration;
3. Fraud;
GENUINENESS 4. Mistake;
It means nothing more than that the instrument is 5. Compromise;
not spurious, counterfeit, or of different import on its 6. Statute of Limitations;
face from one executed by the party whose 7. Estoppels;
signature it bears has signed it and that at the time it 8. Duress;
was signed, it was In words or figures exactly as set 9. Minority or imbecility.
out in the pleadings. 10. Simulated sale
DUE EXECUTION Ratio: the following defenses are not

It means that the document is signed voluntarily and inconsistent with the genuineness and due
knowingly by the party whose signature appears execution of the document.
thereon, that if signed by somebody else, such
representative was authorized to do so, that it was BUT the following defenses are waived:
duly delivered, and that the formalities were 1. Forgery in signature;
complied with (Hibberd vs. Rhode, 32 Phil 476) 2. Unauthorized signature, as in the
case of an agent signing for his
Bar Exam Question 2011 principal;
(12) Bearing in mind the distinction between 3. The corporation was not authorized
private and public document, which of the under its charter to signed the
following is admissible in evidence without instrument;
further proof of due execution or genuineness? 4. Want of delivery; or
(A) Baptismal certificates. (B) Official record 5. At the time the document was
of the Philippine Embassy in Singapore signed, it was not in words as set
certified by the Vice- Consul with official out in the pleading.
seal. (C) Documents acknowledged before a
Notary Public in Hong Kong. (D) Unblemished NOTE: Failure to specifically deny under oath
receipt dated December 20, 1985 signed by the the genuineness and due execution of an
promisee, showing payment of a loan, found actionable document generally implies an
among the well-kept file of the promissor. admission of the same by the other party.
However, such implied admission is DEEMED

Pleadings; Reply; Effect of Non-Filing of Reply (2000) WAIVED if the party asserting the same has
X files a complaint in the RTC for the recovery of a sum allowed the adverse party to present evidence
of money with damages against Y. Y files his answer contrary to the contents of the document without
denying liability under the contract of sale and praying any objection (Central Surety vs. Hodges, 38
for the dismissal of the complaint on the SCRA 159)
ground of lack of cause of action because the contract of
sale was superseded by a contract of lease, executed and Section 9. Official document or act. —
signed by X and Y two weeks after the contract of sale In pleading an official document or official
was executed. The contract of lease was attached to the act, it is sufficient to aver that the
answer. X does not file a reply. What is the effect of the document was issued or the act done in
non-filing of a reply? Explain. (3%) compliance with law. (9)

________________________________________________________________________________________________
P50.000. In his answer, defendant alleged, inter alia,
Section 10. Specific denial. — A defendant that he had no knowledge of the mortgage deed, and
must specify each material allegation of fact he also denied any liability for plaintiffs contracting
the truth of which he does not admit and, with a lawyer for a fee. Does defendant's answer as
whenever practicable, shall set forth the to plaintiff’s allegation no. 1 as well as no. 2
substance of the matters upon which he sufficiently raise an issue of fact? Reason briefly.
relies to support his denial. Where a (5%)
SUGGESTED ANSWER:
defendant desires to deny only a part of an
As to plaintiffs allegation no. 1, defendant does not
averment, he shall specify so much of it as is
sufficiently raise an issue of fact, because he cannot
true and material and shall deny only the
allege lack of knowledge of the mortgage deed since
remainder. Where a defendant is without
he should have personal knowledge as to whether he
knowledge or information sufficient to form a signed it or not and because he did not deny under
belief as to the truth of a material averment oath the genuineness and due execution of the
made to the complaint, he shall so state, and mortgage deed, which is an actionable document. As
this shall have the effect of a denial. (10a) to plaintiff’s allegation no. 2, defendant did not
properly deny liability as to plaintiffs contracting
Bar Exam Question 2011 with a lawyer for a fee. He did not even deny for
(98) Plaintiff Manny said in his complaint: "3.
lack of knowledge. (Sec. 10 of Rule 8).
On March 1, 2001 defendant Letty borrowed
P1 million from plaintiff Manny and made a
promise to pay the loan within six months." In
her answer, Letty alleged: "Defendant Letty Section 11. Allegations not specifically
specifically denies the allegations in paragraph denied deemed admitted. — Material
3 of the complaint that she borrowed P1 averment in the complaint, other than
million from plaintiff Manny on March 1, 2001 those as to the amount of unliquidated
and made a promise to pay the loan within six damages, shall be deemed admitted when
months." Is Letty’s denial sufficient? (A) Yes, not specifically denied. Allegations of
since it constitutes specific denial of the loan. usury in a complaint to recover usurious
(B) Yes, since it constitutes positive denial of interest are deemed admitted if not
the existence of the loan. (C) No, since it fails denied under oath. (1a, R9)
to set forth the matters defendant relied
upon in support of her denial. (D) No, since GR: Allegations NOT specifically denied are
she fails to set out in par. 2 of her answer her deemed admitted.
special and affirmative defenses.
Exceptions:
1. Amount of unliquidated damages;
3 WAYS OF MAKING A SPECIFIC DENIAL 2. Allegations immaterial to the cause of
1. SPECIFIC ABSOLUTE DENIAL- by specifically action;
denying the averment and, whenever 3. Conclusion of law.
practicable, setting forth the substance of the
matters relied upon for such denial; Section 12. Striking out of pleading or
2. PARTIAL SPECIFIC DENIAL- part admission
matter contained therein. — Upon
and part denial;
motion made by a party before
3. DISAVOWAL OF KNOWLEDGE- by an
allegation of lack of knowledge or information responding to a pleading or, if no
sufficient to form a belief as to the truth of the responsive pleading is permitted by these
averment in the opposing party’s pleading. Rules, upon motion made by a party
within twenty (20) days after the service
of the pleading upon him, or upon the
court's own initiative at any time, the
court may order any pleading to be
Pleadings; Answer; Defense; Specific Denial (2004)
stricken out or that any sham or false,
In his complaint for foreclosure of mortgage to which
redundant, immaterial, impertinent, or
was duly attached a copy of the mortgage deed, plaintiff
scandalous matter be stricken out
PP alleged inter alia as follows: (1) that
defendant DD duly executed the mortgage deed, copy of therefrom. (5, R9)
which is Annex "A" of the complaint and made an
integral part thereof; and (2) that to prosecute his
complaint, plaintiff contracted a lawyer, CC, for a fee of

________________________________________________________________________________________________
NOTE: Allegations of merely evidentiary or
immaterial facts may be expunge from the pleading These defenses may be raised at any stage of
or may be stricken out on motion. the proceedings, even for the first time on
appeal.
NOTE: However, the right to question

jurisdiction over the subject matter may be
barred by laches (Tijam vs. Sibonghanoy 23
SCRA 29).
RULE 9 NOTE: The rule is different in Summary
Procedure – all defenses not pleaded are
Effect of Failure to Plead waived except lack of jurisdiction (sec. 5, RSP).
See also Rule 70, sec. 6.
Section 1. Defenses and objections not
pleaded. — Defenses and objections not Section 2. Compulsory counterclaim, or
pleaded either in a motion to dismiss or in cross-claim, not set up barred. — A
the answer are deemed waived. However, compulsory counterclaim, or a cross-
when it appears from the pleadings or the claim, not set up shall be barred. (4a)
evidence on record that the court has no
jurisdiction over the subject matter, that Section 3. Default; declaration of. — If
there is another action pending between the the defending party fails to answer within
same parties for the same cause, or that the the time allowed therefor, the court shall,
action is barred by a prior judgment or by upon motion of the claiming party with
statute of limitations, the court shall dismiss notice to the defending party, and proof of
the claim. (2a) such failure, declare the defending party
in default. Thereupon, the court shall
Bar Exam Question 2012 proceed to render judgment granting the
73. A court can motu proprio dismiss a case on claimant such relief as his pleading may
the following grounds, except : warrant, unless the court in its discretion
a. failure to prosecute; requires the claimant to submit evidence.
b. lack of jurisdiction over the parties; Such reception of evidence may be
c. litis pendentia; delegated to the clerk of court. (1a, R18)
d. prescription.
SUGGESTED ANSWER: (a) Effect of order of default. — A
(b), A court cannot motu propio dismiss a
party in default shall be entitled to
case on the ground of lack of jurisdiction
notice of subsequent proceedings but
over the parties because the objection on
not to take part in the trial. (2a, R18)
the said ground can be waived by the failure
of the defendant to raise the same in his
motion to dismiss or in his answer as (b) Relief from order of default. — A
affirmative defense. (Rule 9, Sec.1, Rules of party declared in default may at any
Court). time after notice thereof and before
judgment file a motion under oath to set
aside the order of default upon proper
showing that his failure to answer was
[GICANO DOCTRINE] due to fraud, accident, mistake or
excusable negligence and that he has a
meritorious defense. In such case, the
GR: Defenses and objections not raised in a
order of default may be set aside on
MOTION TO DISMISS or in the ANSWER are
deemed waived. such terms and conditions as the judge
may impose in the interest of justice.
Exceptions: (3a, R18)
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia; (c) Effect of partial default. — When a
3. Res judicata; pleading asserting a claim states a
4. Prescription. common cause of action against several
5. Rules on Summary Procedure defending parties, some of whom
6. Small Claims Rules
________________________________________________________________________________________________
answer and the others fail to do so, the 2. If denied, and denial is tainted with GRAVE
court shall try the case against all upon the ABUSE OF DISCRETION, petition for
answers thus filed and render judgment certiorari under Rule 65.
upon the evidence presented. 3. Wait for the judgment by default and then
Appeal the judgment
(d) Extent of relief to be awarded. — A
RIGHTS OF PARTY DECLARED IN DEFAULT
judgment rendered against a party in Entitled to notice of:
default shall not exceed the amount or be a) Motion to declare him in default
different in kind from that prayed for nor b) Order declaring him in default;
award unliquidated damages. c) Subsequent proceedings;
d) Service of final orders or judgments
(e) Where no defaults allowed. — If the
defending party in an action for annulment Bar Exam Question 2012
or declaration of nullity of marriage or for 77. A defendant declared in default may,
legal separation fails to answer, the court after judgment but before finality, file a:
shall order the prosecuting attorney to a. Petition for Relief from Judgment;
investigate whether or not a collusion b. Petition for Certiorari;
between the parties exists, and if there is c. Motion for Reconsideration;
no collusion, to intervene for the State in d. Motion to Set Aside Order of Default.
order to see to it that the evidence SUGGESTED ANSWER:
submitted is not fabricated. (c), A defendant declared in default may
after judgment but before finality file a
Motion for Reconsideration in order to
ORDER OF DEFAULT JUDGMENT BY
give the Court an opportunity to rectify
DEFAULT
its mistakes and set aside the previous
Issued by the court on Rendered by the court
judgment by default before it attains
plaintiff’s motion for following the order of
finality.
failure of the defendant default or after it
to file his responsive received, ex parte, ALTERNATIVE ANSWER:
pleading seasonably plaintiff’s evidence A defendant declared in default may,
Interlocutory- not Final- appealable after judgment but before finality, file a
appealable Motion for New Trial. It is well-settled
that a defendant who has been declared
in default has the following remedies, to
ELEMENTS OF A VALID DECLARATION OF wit: (1) he may, at any time after
DEFAULT:
discovery of the default but before
judgment, file a motion, under oath, to
1. The court must have acquired jurisdiction over set aside the order of default on the
the person of the defendant; ground that his failure to answer was
2. Defendant fails to answer within the time due to fraud, accident, mistake or
allowed; excusable neglect, and that he has a
3. There must be a motion to declare the meritorious defense; (2) if judgment has
defendant in default; already been rendered when he
4. There must be notice to the defendant discovered the default, but before the
5. There must be proof or such failure to answer. same has become final and executor, he
may file a motion for new trial under
NO DEFAULT IN THE FOLLOWING: Section 1(a) of Rule 37; (3) if he
1. Annulment of marriage; discovered the default after the
2. Declaration of Nullity of Marriage; judgment has become final and executor,
3. Legal separation; he may file a petition for relief under
Ratio: (constitutional mandate of protection of Section 2 of Rule 38; and (4) he may also
marriage as the basic social institution) appeal from the judgment rendered
4. Special civil actions of CPM (no answer is against him as contrary to the evidence
required but instead order to comment); or to the law, even if no petition to set
5. Under Summary Procedure. aside the order of default has been
presented by him. (B.D. long Span
RELIEFS FROM ORDER OF DEFAULT: Builders vs. R.S. Ampeloquio Realty
1. A motion to set aside the order of default;
Development, Inc., G.R. No. 169919,
September 11, 2009).
________________________________________________________________________________________________
trial since he had no right to an old trial
Bar Exam Question 2011 on the first place.
(19) Gerry sued XYZ Bus Co. and Rico, its bus
driver, for injuries Gerry suffered when their ALTERNATIVE ANSWER: NO CORRECT
bus ran off the road and hit him. Of the two ANSWER. The Committee may
defendants, only XYZ Bus Co. filed an answer, recommend that the examinee be given
alleging that its bus ran off the road because full credit for any answer because the
one of its wheels got caught in an open question is very tricky. A party declared
manhole, causing the bus to swerve without in default is not deemed to have waived
the driver’s fault. Someone had stolen the any of the above-mentioned rights.
manhole cover and the road gave no warning of
the danger it posed. On Gerry’s motion and A party declared in default loses his
over the objection of XYZ Bus Co., the court standing in Court. He cannot take part
declared Rico, the bus driver, in default and in the trial but he is entitled to notices
rendered judgment ordering him to pay of subsequent proceedings. (Section 3(a),
P50,000 in damages to Gerry. Did the court act Rule 9, Rules of Court). When a
correctly? (A) No, since the court should defendant is declared in default, he does
have tried the case against both defendants not waive any of the above-mentioned
upon the bus company‟s answer. (B) No, the rights. A defendant may still be cited
court should have dropped Rico as defendant and called to testify as a witness since
since the moneyed defendant is the bus he will participate in the trial, not as a
company. (C) Yes, the court can, under the party but merely as a witness. In fact, it
rules, render judgment against the defendant is not a right but rather an obligation of
declared in default. (D) Yes, since, in failing to a defendant cited and called to testify as
answer, Rico may be deemed to have admitted a witness to so appear in court. He may
the allegations in the complaint. also participate in the deposition taking
of witnesses of the adverse party
because the same is at the instance of
the said adverse party and may not yet
NOTE: A defendant declared in default cannot take be considered as part of the trial. The
part in the trial, but he cannot be disqualified from defendant cannot also be said to have
testifying as a witness in favor of non-defaulting waived his right to file a motion for new
defendants (Cavili vs. Florendo, 154 SCRA 610) trial since this is a remedy available
before finality of a judgment declaring a
If the defendant was declared in default upon an party in default (BD Long Span Builders
original complaint, the filing of the amended vs. R.S. Ampeloquio Realty
complaint resulted in the withdrawal of the original Development, Inc., G.R. No.169919,
complaint. Hence, the defendant is entitled to file September 11, 2009).
answer to the amended complaint as to which he
was not in default. Moreover, a petition for certiorari under
Rule 65 is not considered waived
Bar Exam Question 2012 because it is still an available remedy, if
14. Being declared in default does not the declaration of default was tainted
constitute a waiver of all rights. with grave abuse of discretion.
However, the following right is considered In Martinez vs. Republic, G.R. No.
waived: 160895, October 30, 2006, 506 SCRA
a. be cited and called to testify as a witness 134, the Supreme Court has clearly
b. file a motion for new trial discussed the remedies of a party
c. participate in deposition taking of witnesses declared in default in light of the 1964
of adverse party and 1997 Rules of Court and a number of
d. file a petition for certiorari jurisprudence applying and interpreting
SUGGESTED ANSWER: (b), A party declared said rules. Citing Lina vs. Court of
in default cannot take part in the trial but Appeals, No. L-63397, April 9, 1985, 135
is nonetheless entitled to notices of SCRA 637, the High Court enumerated
subsequent proceedings. Thus, a party the following remedies, to wit: (a) The
declared in default is deemed to have defendant in default may, at any time
waived his right to file a motion for new after discovery thereof and before
judgment, file a motion, under oath, to

________________________________________________________________________________________________
set aside the order of default on the ground
that his failure to answer was due to fraud,
accident, mistake, or excusable neglect, and
that he has meritorious defenses; (Sec.3,
Rule 18, Rules of Court); (b) If the judgment If plaintiff If plaintiff fails
proves his to prove his
has already been rendered when the allegations allegations,
defendant discovered the default, but before judgment by case is
the same has become final and executor, he Case set for pre-trial default is dismissed
may file a motion for new trial under rendered
Section 1(a) of Rule 37, Rules of Court; (c) If
the defendant discovered the default after
the judgment has become final and PARTIAL DEFAULT
executor, he may file a petition for relief
under Section 2 of Rule 38, Rules of Court; A. The pleading asserting a claim
and (d) He may also appeal from the states a common cause of action
judgment rendered against him as contrary against several defending parties;
to the evidence or to the law, even if no B. Some of the defending parties
petition to set aside the order of default has answers and others fail to do so;
been presented by him. (Rule 41, Sec.2, C. The answer interposes a common
Rules of Court) (Rebecca T. Arquero vs. defense.
Court of Appeals, G.R. No. 168053, Sept.
21, 2011, Peralta, J.). Effect of partial default
The court will try the case against all the
defendants upon the answer of some EXCEPT
where the defense is personal to the one who
DEFAULT answered, in which case, it will not benefit those
who did not answer.
After the lapse of
Motion denied,
time to file an defendant
answer the allowed to file
plaintiff may answer
move to declare REMEDIES FROM THE JUDGMENT BY
the defendant in DEFAULT (FLOW CHART)
default
Defendant
answers
Judgment by default
Motion granted:
Court issues order of Motion for New trial/Reconsideration at any time after
default and renders service of judgment by default and within 15 (30) days
judgment or require therefrom
the plaintiff to
submit evidence ex
parte
Failure to file motion for new trial/ denial of said

motion
Before judgment by default Court maintains

is rendered. Defendant may: order of default
a) Move to set aside Perfect appeal from said judgment by default within
the order of the balance of 15 (30) day period
default ( FAME +
Meritorious
defense);
b) Rule 65 when
proper Failure to appeal without defendant’s fault
Petition for relief from judgment within 60 days

from notice of the judgment but within 6
Presentation of
months from entry thereof
Court sets aside plaintiff’s evidence
JANNYCER
ex parte
M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 54
order of default and
defendant is allowed
to file his answer
________________________________________________________________________________________________
filed with Municipal Trial Court on which basis the
court rendered judgment in favor of plaintiff?
Explain.
Annulment of judgment under Rule 47 (2%)
SUGGESTED ANSWER:
The claim of defendant is valid, because although
summary procedure requires merely the submission
Extent of relief to be awarded in a judgment by of position papers, the evidence submitted with the
default position paper must be admissible in evidence. (Sec. 9
Shall not exceed the amount or be different in kind of the Revised Rule on Summary Procedure). Photocopies of
from that prayed for or award unliquidated damages. official receipts and affidavits are not admissible
without proof of loss of the originals. (Sec. 3 of Rule
OTHER INSTANCES WHEREIN DEFENDANT 130)
MAY BE DECLARED IN DEFAULT:
1. Failure to furnish plaintiff with a copy of his Default (2001)
answer despite its due filing in court (Banres Mario was declared in default but before judgment
vs. Flordeliza, 51 Phil. 786); was
2. Non-compliance with the order of the court rendered, he decided to file a motion to set aside the
to file a bill of particulars or in case of order of default. a) What should Mario state in his
insufficient compliance therewith (sec. 4,
motion in order to justify the setting aside of the
Rule 12);
order of default?(3%)
3. Refusal to comply with the modes of
b) In what form should such motion be filed? (2%)
discovery (sec. 3[c], Rule 29). SUGGESTED ANSWER:
a) In order to justify the setting aside of the order of
default, Mario should state in his motion that his
Default (2000) failure to answer was due to fraud, accident, mistake
Defendant was declared in default by the RTC (RTC). or excusable negligence and that he has a
Plaintiff was allowed to present evidence in support of meritorious defense. [Sec. 3(b) of Rule 9,].
his complaint. Photocopies of official receipts and b) The motion should be under oath. (Id.)
original copies of affidavits were presented in court, Default; Order of Default; Effects (1999)
identified by plaintiff on the witness stand and marked as 1 When may a party be declared in default? (2%)
exhibits. Said documents were offered by plaintiff and 2 What is the effect of an Order of Default? (2%)
admitted in evidence by the court on the basis of which 3 For failure to seasonably file his Answer despite
the RTC rendered judgment in favor of the plaintiff, due notice, A was declared in default in a case
pursuant to the relief prayed for. Upon receipt of the instituted against him by B. The following day, A's
judgment, defendant appeals to the Court of Appeals mistress who is working as a clerk in the sala of the
claiming that the judgment is not valid because the RTC Judge before whom his case is pending, informed
based its judgment on mere photocopies and affidavits him of the declaration of default. On the same day,
of persons not presented in court. Is the A presented a motion under oath to set aside the
claim of defendant valid? Explain. (3%) order of default on the ground that his failure to
SUGGESTED ANSWER:
The claim of defendant is not valid because under the answer was due to fraud and he has a meritorious
1997 Rules, reception of evidence is not required. After a defense. Thereafter, he went abroad. After his return
defendant is declared in default, the court shall proceed a week later, with the case still undecided, he
to render judgment granting the claimant such relief as received the order declaring him in default. The
his pleading may warrant, unless the court in its motion to set aside default was opposed by B on the
discretion requires the claimant to submit evidence, ground that it was filed before A received notice of
which may be delegated to the clerk of court. (Sec. 3, Rule his having been declared in default, citing the rule
9) that the motion to set aside may be made at anytime
ALTERNATIVE ANSWER: after notice but before judgment. Resolve the
The claim of defendant is valid, because the court Motion. (2%)
received evidence which it can order in its own SUGGESTED ANSWER:
discretion, in which case the evidence of the plaintiff 1. A party may be declared in default when he fails
must pass the basic requirements of admissibility. to answer within the time allowed therefor, and
upon motion of the claiming party with notice to the
Evidence; Admissibility; Photocopies (2000) defending party, and proof of such failure. (Sec. 3, Rule
If the photocopies of official receipts and photocopies 9)
of affidavits were attached to the position paper 2. The effect of an Order of Default is that the court
submitted by plaintiff in an action for unlawful detainer may proceed to render judgment granting the
claimant such relief as his pleading may warrant

________________________________________________________________________________________________
unless the court in its discretion requires the claimant to present her evidence ex parte. Thereafter, the court
submit evidence (Id.) The party in default cannot take rendered its Decision in favor of Jojie. Joe hired Jose
part in the trial but shall be entitled to notice of as his counsel. What are the remedies available to
subsequent proceedings. (Sec. 3[A]) him? Explain. (5%)
3. Assuming that the motion to set aside complies with SUGGESTED ANSWER:
the other requirements of the rule, it should be granted. The remedies available to a party against whom a
Although such a motion may be made after notice but default decision is rendered are as follows:
before judgment (Sec. 3[B] of Rule 9), with more reason may 1. BEFORE the judgment in default becomes final
it be filed after discovery even before receipt of the and executory: Motion for Reconsideration under
order of default. Rule 37;Motion for New Trial under Rule 37; And
2. AF T ER the judgment in default becomes final
Default; Remedies; Party Declared in Default (1998) and executory: Petition for Relief under Rule 38;
What are the available remedies of a party declared In Annulment of Judgment under Rule 47; and
default: c. Certiorari under Rule 65. (See Talsan Enterprises,
1 Before the rendition of judgment; [1%] Inc. v. Baliwag Transit, Inc., G.R. No. 126258, July 8,
1999)
2 After judgment but before its finality; and [2%1
3 After finality of judgment? [2%] Default; Remedies; Substantial Compliance (2000)
SUGGESTED ANSWER:
The available remedies of a party declared in default For failure of K.J. to file an answer within the
are as follows: reglementary period, the Court, upon motion of LM,
declared KJ in default. In due time, KJ filed an
1. BEFORE THE RENDITION OF JUDGMENT
unverified motion to lift the order of default without
(a) he may file a motion under oath to set aside the order
an affidavit of merit attached to it. KJ however
of default on the grounds of fraud, accident, mistake or
attached to the motion his answer under oath,
excusable negligence and that he has a meritorious
stating in said answer his reasons for his failure to
defense (Sec. 3[b], Rule 9); and if it is denied, he may move
file an answer on time, as well as his defenses. Will
to reconsider, and if reconsideration is denied, he may
the motion to lift the order of default prosper?
file the special civil action of certiorari for grave abuse of
Explain. (3%)
discretion tantamount to lack or excess of the lower SUGGESTED ANSWER:
court's jurisdiction. (Sec. 1, Rule 65) or Yes, there is substantial compliance with the rule.
(b) he may file a petition for certiorari if he has been Although the motion is unverified, the answer
illegally declared in default, e.g. during the pendency of attached to the motion is verified. The answer
his motion to dismiss or before the expiration of the contains what the motion to lift the order of default
time to answer. and the affidavit of merit should contain, which are
(Matute vs. Court of Appeals, 26 SCRA 768; Acosta-Ofalia vs.
the reasons of movant’s failure to answer as well as
Sundiam, 85 SCRA 412.)
his defenses. (Sec. 3 [b] of Rule 9, 1997 Rules of
2. AFTER JUDGMENT BUT BEFORE ITS FINALITY, he
Civil Procedure; Cf. Citibank, N.A. v. Court of
may file a motion for new trial on the grounds of fraud,
Appeals, 304 SCRA 679, [1999]; Consul v.
accident, mistake, excusable negligence, or a motion for
Consul, 17 SCRA 667, 671
reconsideration on the ground of excessive damages,
[1966]; Tolentino v. Carlos, 66 Phil, 1450, 143-144
insufficient evidence or the decision or final order being
[1938], Nasser v. Court of Appeals, 191 SCRA 783
contrary to law (Sec. 2, Rule 37): and thereafter. If the
[1992]).
motion is denied, appeal to available under Rules 40 or
41, whichever to applicable. Bar Exam Question 2013
3. AFTER FINALITY OF THE JUDGMENT, there are I. In a complaint filed by the plaintiff, what
three ways to assail the judgment, which are: is the effect of the defendant’s failure to file
a) a petition for relief under Rule 38 on the grounds of an answer within the reglementary period?
fraud, accident, mistake or excusable negligence; (1%) (A) The court is allowed to render
b) annulment of judgment under Rule 47 for extrinsic judgment motu proprio in favor of the
fraud or lack of jurisdiction; or c) certiorari if the plaintiff. (B) The court motu proprio may
judgment to void on its face or by the judicial record. declare the defendant in default, but only
(Balangcad vs. Justices of the Court of Appeals, G.R. No. after due notice to the defendant. (C) The
83888. February 12, 1992, 206 8CRA 171).
court may declare the defendant in default
Default; Remedies; Party Declared in Default (2006) but only upon motion of the plaintiff and
Jojie filed with the Regional Trial Court of Laguna a with notice to the defendant.
complaint for damages against Joe. During the pretrial, (D) The court may declare the defendant
Jojie (sic) and her (sic) counsel failed to appear despite in default but only upon motion of the
notice to both of them. Upon oral motion of Jojie, Joe plaintiff, with notice to the defendant,
was declared as in default and Jojie was allowed to

________________________________________________________________________________________________
and upon presentation of proof of the  Amendment of the complaint may be
defendant‟s failure to answer. admitted even though it changes the nature
(E) The above choices are all inaccurate. of the action or movant’s theory of the case.
SUGGESTED ANSWERS: (D), Under Section

3 of Rule 9, if the defending party fails to Pleadings; Amendment of Complaint; Matter of Right
answer within the time allowed, the court (2005)
shall, upon motion of the claiming party On May 12, 2005, the plaintiff filed a complaint in
with notice to the defending party, and the RTC of Quezon City for the collection of
proof of such failure, declare the defending P250,000.00. The defendant filed a motion to
party in default (Narciso vs. Garcia, G.R. No. dismiss the complaint on the ground that the court
196877, November 21, 2012, Abad J.). had no jurisdiction over the action since the claimed
(E), D may not be the correct answer amount of P250,000.00 is within the exclusive
because the Rule provides that if the jurisdiction of the Metropolitan Trial Court, of
defending party fails to answer within the Quezon City. Before the court could resolve the
time allowed therefor, the court shall, upon motion, the plaintiff, without leave of court,
motion of the claiming party with notice to amended his complaint to allege a new cause of
the defending party, and proof of such action consisting in the inclusion of an additional
failure, declare the defending party in amount of P200,000.00, thereby increasing his total
default. Notably, the Rule uses the word claim to P450,000.000. The plaintiff thereafter filed
“shall and not may.” his opposition to the motion to dismiss, claiming
that the RTC had jurisdiction, over his action. Rule
on the motion of the defendant with reasons. (4%)
SUGGESTED ANSWER:
RULE 10
The motion to dismiss should be denied. Basic is the
rule
Amended and Supplemental Pleadings that a motion to dismiss is not a responsive pleading.
Under the Rules, a pleader may amend his pleading
Section 1. Amendments in general. — as a matter of right before the other party has served
Pleadings may be amended by adding or his responsive pleading. (Sec. 2, Rule 10, Rules of Court)
striking out an allegation or the name of any The court, in allowing the amendment, would not be
party, or by correcting a mistake in the name acting without jurisdiction because allowing an
of a party or a mistaken or inadequate amendment as a matter of right does not require the
allegation or description in any other respect, exercise of discretion. The court therefore would not
so that the actual merits of the controversy be "acting" and thus, could not have acted without
may speedily be determined, without regard jurisdiction. It would have been different had the
to technicalities, and in the most expeditious amendments been made after a responsive pleading
and inexpensive manner. (1) had been served. The court then would have been
exercising its discretion in allowing or disallowing
the amendment. It cannot do so however, because it
Section 2. Amendments as a matter of would be then acting on an amendment of a
right. — A party may amend his pleading complaint over which it has no jurisdiction. (Soledad v.
once as a matter of right at any time before a Mamangun, G.R. No. L-17983, May 30, 1963; Gumabay v.
responsive pleading is served or, in the case Baralin, G.R. No. L-30683, May 31, 1977; Prudence
of a reply, at any time within ten (10) days Realty v. CA, G.R. No. 110274, March 21, 1994)
after it is served. (2a) ALTERNATIVE ANSWER:
The motion to dismiss should be granted.
Jurisdiction must be conferred by the contents of the
NOTES:
original complaint. Amendments are not proper and
 A motion to dismiss is not a responsive
should be denied where the court has no jurisdiction
pleading. As such, an amendment after the
over the original complaint and the purpose of the
denial of the motion to dismiss is still considered
amendment is to confer jurisdiction on the court.
as a matter of right. Hence, it may be done (Rosario v. Carandang, G.R. No. L-7076, April 28, 1955)
without leave of court. While a plaintiff is entitled to amend the complaint
before a responsive pleading is served (Sec. 2, Rule 10,
 Subsequent amendments should only be made 1997 Rules of Civil Procedure; Remington Industrial Sales
with leave of court. Corporation v. Court of Appeals, G.R. No. 133657, May
29, 2002), still, a complaint cannot be amended to
confer

________________________________________________________________________________________________
jurisdiction on a court where there was none to begin of action (Sec. 6, Rule 10). However, if
with. no cause of action is alleged in the
original complaint, it cannot be cured by
the filing of a supplement or amendment
Pleadings; Amendment of Complaint (2008) to allege the subsequent acquisition of a
No.XI. Arturo lent P1M to his friend Robert on cause of action (Swagman Hotels &
the condition that Rober execute a promissory Travel, Inc. vs. C.A., G.R. No. 161135, 08
note for the loan and a real estate mortgage April 2005).
over his property located in Tagaytay City.
Rober complied. In his promissory note dated
September 20, 2006, Robert undertook to pay
the loan within a year from its date at 12% per Section 3. Amendments by leave of
annum interest. In June 2007, Arturo court. — Except as provided in the next
requested Robert to pay ahead of time but the preceding section, substantial
latter refused and insisted on the agreement. amendments may be made only upon
Arturo issued a demand letter and when leave of court. But such leave may be
Robert did not comply, Arturo filed an action to
refused if it appears to the court that the
foreclose the mortgage. Robert moved to
motion was made with intent to delay.
dismiss the complatint for lack of cause of
Orders of the court upon the matters
action as the debt was not yet due. The
provided in this section shall be made
resolution of the motion to dismiss was delayed
because of the retirement of the Judge. (a) On upon motion filed in court, and after
October 1, 2007, pending resolution of the notice to the adverse party, and an
motion to dismiss, Arturo filed an amended opportunity to be heard. (3a)
complaint alleging Robert’s debt had in the
meantime become due but that Robert still NOTE: The prevailing theory now is that
refused to pay. Should the amended complaint amendment, even if it changes the nature of the
be allowed considering that no answer has cause of action or the movant’s theory of the
been filed? SUGGESTED ANSWER: case (Shaffer vs. Palma, 22 SCRA 934). The
No, the complaint may not be amended 1997 Rules deleted the other ground, under the
under the circumstances. A complaint may old Rules, for the denial of amendment, if such
be amended as of right before answer (Sec. amendment would substantially alter the cause
2, Rule 10; See Ong Peng vs. Custodio, G.R. of action or defense.
No. 14911, 12 March 1961; Toyota Motors
[Phils} vs. C.A., G.R. No. 102881, 07 Instances when amendments with leave of
December 1992; RCPI vs. C.A., G.R. No. court may not be allowed:
121397, 17 April 1997, citing Prudence 1. Amendment is to confer jurisdiction to
the court
Realty & Dev‟t. Corp. vs. C.A., G.R. No.
2. Amendment to cure a pre-mature or
110274, 21 March 1994; Soledad vs.
non-existing cause of action;
Mamangun, 8 SCRA 110), but the
3. Amendment for purposes of delay.
amendment should refer to facts which
occurred prior to the filing of the original
Q: Can amendment cure lack of jurisdiction?
complaint. It thus follows that a complaint
whose cause of action has not yet accrued A: Yes if filed before a responsive pleading is
cannot be cured or remedied by an amended served. If otherwise, it cannot cure lack of
or supplemental pleading alleging the jurisdiction.
existence or accrual of a cause of action
while the case is pending (Swagman Hotels Evidence on a matter not alleged in the pleading
& Travel, Inc. vs. C.A., G.R. No. 161135, 08 (complaint) may be allowed without amendment
April 2005). thereof over the objections of the adverse party.
(b) Would your answer be different had Arturo In this case, the defendant failed to satisfy the
filed instead a supplemental complaint stating court that the admission of the evidence would
that the debt became due after the filing of the prejudice him in the maintaining his defense
original complaint? SUGGESTED ANSWER: A upon the merits (Sps. Ong vs. CA, L-144581,
supplemental complaint may be filed with July 5, 2002). This is an EXCEPTIONAL case.
leave of court to allege an event that arose The plaintiff was allowed to present evidence
after the filing of the original complaint that indeed earnest efforts towards an amicable
that should have already contained a cause

________________________________________________________________________________________________
settlement was had, which was, however, not Q: May issues not raised in the pleadings be
alleged in the complaint. raised on trial?
Pleadings; Amendment of Complaint; By Leave of Court A: generally no because of Rule 9, sec. 1. The
(2003) exception is under Rule 10, sec. 5.
After an answer has been filed, can the plaintiff amend
his complaint, with leave of court, by changing entirely Bar Exam Question 2012
the nature of the action? 4% 78. With leave of court, a party may amend
SUGGESTED ANSWER: his pleading if:
Yes, the present rules allow amendments substantially a. there is yet no responsive pleading
altering the nature of the cause of action. (Sec. 3, Rule 10, served.
1977 Rules of Civil Procedure; Heirs of Marcelino Pagobo v. Court b. the amendment is unsubstantial.
of Appeals, 280 SCRA 870 [1997]). This should only be true, c. the amendment involves clerical errors of
however, when the substantial defect in the designation of a party.
change or alteration in the cause of action or defense hall d. the amendment is to conform to the
serve the higher interests of substantial justice and evidence.
revent delay and equally promote the laudable objective SUGGESTED ANSWER: (d), When issues
of the rules which is to secure a just, speedyand not raised by the pleadings are tried with
inexpensive disposition of every action and proceeding. the express or implied consent of the
(Valenzuela v. Court of Appeals, 363 SCRA 779 [2001]). parties, they shall be treated in all
respects as if they had been raised in the
Section 4. Formal amendments. — A defect pleadings. Such amendment of the
in the designation of the parties and other pleadings as may be necessary to cause
clearly clerical or typographical errors may be them to conform to the evidence and to
summarily corrected by the court at any raise these issues may be made upon
stage of the action, at its initiative or on motion of any party at any time, even
motion, provided no prejudice is caused after judgment; but failure to amend
thereby to the adverse party. (4a) does not affect the result of the trial of
these issues. (Rule 10, Sec. 5, Rules of
SUBSTANTIAL AMENDMENTS- there is a change Court).
the cause of action or the line of defense.
FORMAL AMENDMENTS- there is NO change in Bar Exam Question 2013

the cause of action or line of defense. XIX. Danny filed a complaint for damages
against Peter. In the course of the trial,
Section 5. Amendment to conform to or Peter introduced evidence on a matter not
authorize presentation of evidence. — raised in the pleadings. Danny promptly
When issues not raised by the pleadings are objected on the ground that the evidence
tried with the express or implied consent of relates to a matter not in issue. How should
the parties they shall be treated in all the court rule on the objection? (1%) (A)
respects as if they had been raised in the The court must sustain the objection. (B)
pleadings. Such amendment of the pleadings The court must overrule the objection.
as may be necessary to cause them to (C) The court, in its discretion, may
conform to the evidence and to raise these allow amendment of the pleading if
doing so would serve the ends of
issues may be made upon motion of any
substantial justice. (D) The court, in its
party at any time, even after judgment; but
discretion, may order that the allegation in
failure to amend does not affect the result of
the pleadings which do not conform to the
the trial of these issues. If evidence is
evidence presented be stricken out. (E) The
objected to at the trial on the ground that it matter is subject to the complete discretion
is not within the issues made by the of the court.
pleadings, the court may allow the pleadings
to be amended and shall do so with liberality SUGGESTED ANSWER: (C), (B), or (A),
if the presentation of the merits of the action Under Section 5 of Rule 10 of the Rules
and the ends of substantial justice will be of Civil Procedure, when issues not
subserved thereby. The court may grant a raised by the pleadings are tried with the
continuance to enable the amendment to be express or implied consent of the parties
made. (5a) they shall be treated in all respects as if

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they had been raised in the pleadings. Such
amendment of the pleadings as may be Admissibility; Document; Not raised in the Pleading
necessary to cause them to conform to the (2004)
evidence and to raise these issues may be In a complaint for a sum of money filed before the
made upon motion of any party at any time, MM RTC, plaintiff did not mention or even just hint
even after judgment; but failure to amend at any demand for payment made on defendant
does not effect the result of the trial of before commencing suit. During the trial, plaintiff
these issues. If evidence is objected to at duly offered Exh. "A" in evidence for the stated
the trial on the ground that it is not within purpose of proving the making of extrajudicial
the issues made by the pleadings, the court demand on defendant to pay P500.000, the subject
may allow the pleadings to be amended and of the suit. Exh. "A" was a letter of demand for
shall do so with liberality if the defendant to pay said sum of money within 10 days
presentation of the merits of the action and from receipt, addressed to and served on defendant
the ends of substantial justice will be served some two months before suit was begun. Without
thereby. The court may grant a continuance objection from defendant, the court admitted Exh.
to enable the amendment to be made. The "A" in evidence. Was the court's admission of Exh.
Court may sustain the objection because "A" in evidence erroneous or not? Reason. (5%)
the evidence introduced by Danny is SUGGESTED ANSWER:
immaterial, being a matter which was not The court's admission of Exh. "A" in evidence is not
raised as an issue in the pleading. On the erroneous. It was admitted in evidence without
other hand, the Court also overrule the objection on the part of the defendant. It should be
objection and allow an amendment of the treated as if it had been raised in the pleadings. The
pleading if doing so would serve the ends of complaint may be amended to conform to the
justice. evidence, but if it is not so amended, it does not
affect the result of the trial on this issue. (Sec. 5 of Rule
10).
Pleadings; Amendment of Complaint; To Conform w/
Evidence (2004) Section 6. Supplemental pleadings. —
During trial, plaintiff was able to present, without Upon motion of a party the court may,
objection on the part of defendant in an ejectment case, upon reasonable notice and upon such
evidence showing that plaintiff served on defendant a terms as are just, permit him to serve a
written demand to vacate the subject property before the supplemental pleading setting forth
commencement of the suit, a matter not alleged or transactions, occurrences or events which
otherwise set forth in the pleadings on file. May the have happened since the date of the
corresponding pleading still be amended to conform to pleading sought to be supplemented. The
the evidence? Explain. (5%) adverse party may plead thereto within
SUGGESTED ANSWER:
ten (10) days from notice of the order
Yes. The corresponding pleading may still be amended
to conform to the evidence, because the written demand admitting the supplemental pleading. (6a)
to vacate, made prior to the commencement of the
ejectment suit, was presented by the plaintiff in evidence An AMENDED ANSWER is proper if the
without objection on the part of the defendant. Even if counterclaim or cross-claim already existed at
the demand to vacate was jurisdictional, still, the the time the original answer was filed, but due to
amendment proposed was to conform to the evidence oversight, inadvertence, or excusable
that was already in the record and not to confer negligence, it was not set up.
jurisdiction on the court, which is not allowed. Failure to
amend, however, does not affect the result of the trial on A SUPLEMENTAL ANSWER is proper if the
counterclaim or cross-claim matures or is
these issues. (Sec. 5 of Rule 10).
acquired after the answer is filed.
ALTERNATIVE ANSWER: It depends. In forcible
entry, the motion may be allowed at the discretion of
NOTE: The cause of action stated in the
the court, the demand having been presented at the
supplemental complaint must be the same as
trial without objection on the part of the defendant. In
that stated in the original complaint. Otherwise,
unlawful detainer, however, the demand to vacate is the court should not admit the supplemental
jurisdictional and since the court did not acquire complaint (Asset Privatization Trust vs. CA, 229
jurisdiction from the very beginning, the motion to SCRA 627)
conform to the evidence cannot be entertained. The
amendment cannot be allowed because it will in effect
confer jurisdiction when there is otherwise no AMENDED SUPLEMENTAL
jurisdiction.
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PLEADING PLEADING When to File Responsive Pleadings
Refers to facts existing Refers to facts arising
at the time of the after the original Section 1. Answer to the complaint. —
commencement of the pleading has bee filed The defendant shall file his answer to the
action complaint within fifteen (15) days after
Takes the place of the Taken together with service of summons, unless a different
original pleading the original pleading period is fixed by the court. (la)
Can be made as a
matter of right when no Always with leave of
responsive pleading court Section 2. Answer of a defendant
has been filed foreign private juridical entity. —
When an amended Supplemental pleading Where the defendant is a foreign private
pleading is filed, a new does not require the juridical entity and service of summons is
copy of the entire filing of a new copy of made on the government official
pleading must be filed the entire pleading designated by law to receive the same,
the answer shall be filed within thirty (30)
Section 7. Filing of amended pleadings. — days after receipt of summons by such
When any pleading is amended, a new copy entity. (2a)
of the entire pleading, incorporating the
amendments, which shall be indicated by NOTE: In case of foreign private juridical
appropriate marks, shall be filed. (7a) entity:
1) If it has a resident agent- Within 15 days

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

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Where its filing is not a matter of right, the Section 9. Counterclaim or cross-claim
defendant shall answer the amended arising after answer. — A counterclaim
complaint within ten (l0) days from notice of or a cross-claim which either matured or
the order admitting the same. An answer was acquired by a party after serving his
earlier filed may serve as the answer to the pleading may, with the permission of the
amended complaint if no new answer is filed. court, be presented as a counterclaim or a
cross-claim by supplemental pleading
This Rule shall apply to the answer to an before judgment. (9, R6)
amended counterclaim, amended cross-claim,
amended third (fourth, etc.)—party Section 10. Omitted counterclaim or
complaint, and amended complaint-in- cross-claim. — When a pleader fails to
intervention. (3a) set up a counterclaim or a cross-claim
through oversight, inadvertence, or
If no answer is filed, answer to the original excusable neglect, or when justice
pleading shall be deemed to be the answer to requires, he may, by leave of court, set up
the amended pleading. the counterclaim or cross-claim by
amendment before judgment. (3, R9)
Section 4. Answer to counterclaim or
cross-claim. — A counterclaim or cross- Section 11. Extension of time to plead.
claim must be answered within ten (10) days — Upon motion and on such terms as may
from service. (4) be just, the court may extend the time to
plead provided in these Rules.
Section 5. Answer to third (fourth, etc.)-
party complaint. — The time to answer a The court may also, upon like terms, allow
third (fourth, etc.)—party complaint shall be an answer or other pleading to be filed
governed by the same rule as the answer to after the time fixed by these Rules. (7)
the complaint. (5a)
REQUISITES:
Section 6. Reply. — A reply may be filed
within ten (10) days from service of the 1) There must be a motion;
pleading responded to. (6) 2) With service of such motion to other
party; and
3) On such terms as may be just.
Section 7. Answer to supplemental
complaint. — A supplemental complaint may
be answered within ten (10) days from notice
of the order admitting the same, unless a
different period is fixed by the court. The RULE 12
answer to the complaint shall serve as the
answer to the supplemental complaint if no Bill of Particulars
new or supplemental answer is filed. (n)
Section 1. When applied for; purpose.
NOTE: As in the case of filing of an amended — Before responding to a pleading, a
pleading with leave of court, the filing of party may move for a definite statement
supplemental complaint requires leave of court. or for a bill of particulars of any matter
However, unlike the former, the court may fix a which is not averted with sufficient
different period for answering the supplemental definiteness or particularity to enable him
complaint, in lieu of the 10-day reglementary period. properly to prepare his responsive
pleading. If the pleading is a reply, the
Section 8. Existing counterclaim or cross- motion must be filed within ten (10) days
claim. — A compulsory counterclaim or a from service thereof. Such motion shall
cross-claim that a defending party has at the point out the defects complained of, the
time he files his answer shall be contained paragraphs wherein they are contained,
therein. (8a, R6) and the details desired. (1a)
Pleadings; Motions; Bill of Particulars (2003)

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1 When can a bill of particulars be availed of? pleading and may issue any other order
2 What is the effect of non-compliance with the order of at its discretion (Sec. 4, Rule 12).
a bill of particulars? 4%
SUGGESTED ANSWER: Bar Exam Question 2012
1 Before responding to a pleading, a party may move for 6. X filed a motion for Bill of Particulars,
a bill or particulars of any matter which is not averred after being served with
with sufficient definiteness or particularity to summons and a copy of the complaint
enable him properly to prepare his responsive pleading. However, X's motion did not contain a
If the pleading is a reply, the motion must be filed within notice of hearing. The court may therefore:
ten (10) days from service thereof. (Sec. 1 of Rule 12) a. require the clerk of court to calendar the
2 If the order is not complied with, the court may order motion.
the striking out of the pleading or the portions thereof to b. motu proprio dismiss the motion for
which the order was directed or make such other order not complying with Rule 15.
as it deems just. (Sec. 4 of Rule 12) c. allow the parties the opportunity to be
NOTE: An action cannot be dismissed on the heard.
ground that the complaint is vague or indefinite. The d. return the motion to X's counsel for
remedy of the defendant is to move for a bill of amendment.
particulars or avail of the proper modes of discovery SUGGESTED ANSWER: (b), A motion for
(Galeon vs. Galeon, 60 SCRA 234) bill of particulars which does not contain
When filed; within the period to file a responsive a notice of hearing is considered pro
pleading. forma. As such, the motion is a useless
piece of paper without force and effect
The motion shall point out: which must not be taken cognizance by
1. The defects complained of; the Court. (Preysler, Jr. Vs. Manila
2. The paragraphs wherein they are contained;
Southcoast Development Corporation,
3. The details desired.
G.R. No. 171872, June 28, 2010).
ALTERNATIVE ANSWER: (c), Under
Section 2. Action by the court. — Upon the Section 2, Rule 12 of the Rules of Court,
filing of the motion, the clerk of court must upon filing of a Motion for Bill of
immediately bring it to the attention of the particulars, the Clerk of Court must
court which may either deny or grant it immediately bring it to the attention of
outright, or allow the parties the opportunity the court which may either deny or
to be heard. (n) grant it outright, or allow the parties the
opportunity to be heard.
Pleadings; Motions; Bill of Particulars (2008)
No.V. Within the period for filing a responsive
pleading, the defendant filed a motion for bill of Section 3. Compliance with order. — If
particulars that he set for hearing on a certain the motion is granted, either in whole or
date. However, the defendant was surprised to in part, the compliance therewith must be
find on the date set for hearing that the trial effected within ten (10) days from notice
court had already denied the motion on the
of the order, unless a different period is
day of its filing, stating that the allegations of
fixed by the court. The bill of particulars
the complaint were sufficiently made. (a) Did
or a more definite statement ordered by
the judge gravely abuse his discretion in acting
the court may be filed either in a separate
on the motion without waiting for the hearing
set for the motion? SUGGESTED ANSWER: or in an amended pleading, serving a copy
There is no need to set the motion for thereof on the adverse party. (n)
hearing. The duty of the clerk of court is to
bring the motion immediately to the EFFECTS OF MOTION:
attention of the judge, who may act on it at 1. If motion is granted, in whole or in part, the
once (Sec. 2, Rule 12). (b) If the judge grants movant can wait until the bill of particulars is
the motion and orders the plaintiff to file and served on him by the opposing party and
serve the bill of particulars, can the trial judge then he will have the balance of the
dismiss the case if the plaintiff does not comply reglementary period within which to file his
with the order? SUGGESTED ANSWER: Yes, responsive pleading;
the judge may dismiss the case for failure of 2. If the motion is denied, he will still have such
the plaintiff to comply with its order (Sec. balance of the reglementary period to file his
3, Rule 17) or order the striking out of the responsive pleading counted from service of
the order denying his motion.
________________________________________________________________________________________________
Section 1. Coverage. — This Rule shall
In either case, he shall have not less than 5 days to govern the filing of all pleadings and other
file his responsive pleading. papers, as well as the service thereof,
except those for which a different mode of
The bill of particulars may be filed in either in a service is prescribed. (n)
separate or an amended pleading, serving a copy
thereof on the adverse party. It becomes part of the
pleading it sought to be clarified. Section 2. Filing and service, defined.
— Filing is the act of presenting the
pleading or other paper to the clerk of
Section 4. Effect of non-compliance. — If
court.
the order is not obeyed, or in case of
insufficient compliance therewith, the court
Service is the act of providing a party
may order the striking out of the pleading or
with a copy of the pleading or paper
the portions thereof to which the order was
concerned. If any party has appeared by
directed or make such other order as it
counsel, service upon him shall be made
deems just. (1[c]a)
upon his counsel or one of them, unless
service upon the party himself is ordered
by the court. Where one counsel appears
EFFECTS OF NON-COMPLIANCE:
1. — If the order is not obeyed, or in case of for several parties, he shall only be
insufficient compliance therewith, the court may entitled to one copy of any paper served
order: upon him by the opposite side. (2a)
A. Order the striking out of the pleading or
the portion thereof to which the order is NOTE: Notice given to a party who is duly
directed; represented by counsel is a nullity, unless
B. Make such order as it may deem just. service thereof on the party himself was ordered
by the court or the technical defect was waived.
2. If the plaintiff fails to obey, his complaint may be
dismissed with prejudice unless otherwise Bar Exam Question 2012
ordered by the court (Rule 12, sec. 4 in relation 48. Atty. A drafts a pleading for his client 8
to Rule 17, sec. 3); wherein B admits certain facts prejudicial
3. If defendant fails to obey, his answer will be to his case. The pleading was never filed
stricken off and his counterclaim dismissed, and but was signed by Atty. A. Opposing
he will be declared in default upon motion of the counsel got hold of the pleading and
plaintiff(Rule 12, sec. 4 in relation to Rule 17, presents the same in court. Which
sec. 4 and Rule 9, sec. 3). statement is the most accurate?
a. The prejudicial statements are not
Section 5. Stay of period to file admissible because the unfiled document
responsive pleading. — After service of the is not considered a pleading.
bill of particulars or of a more definite b. The prejudicial statements are not
pleading, or after notice of denial of his admissible because the client did not sign
motion, the moving party may file his the pleading.
responsive pleading within the period to c. The prejudicial statements are not
which he was entitled at the time of filing his admissible because these were not made by
motion, which shall not be less than five (5) the client in open court.
days in any event. (1[b]a) d. The prejudicial statements are not
admissible because these were made
outside the proceedings.
Section 6. Bill a part of pleading. — A bill SUGGESTED ANSWER:
of particulars becomes part of the pleading (a), Pleadings are defined as written
for which it is intended. (1[a]a) statements of the respective claims and
defenses of the parties submitted to the
court for appropriate judgment. (Rule 6,
Sec.1, Rules of Court). Filing is the act of
RULE 13 presenting the pleading or other paper to
the clerk of court. (Rule 13, Sec.2, Rules
Filing and Service of Pleadings, of Court). Since Atty. A and his client B
Judgments and Other Papers did not file the pleading, and it was

________________________________________________________________________________________________
merely the opposing counsel which d. the date when the case is officially
presented the same in court, it should not raffled.
be considered to have been filed at all, and SUGGESTED ANSWER: (b), Under the
shall not prejudice Atty. A and his client B. Rules, the manner of filing of pleadings,
After all, no person may be prejudiced by appearances, motions, notices,
the acts of unauthorized strangers. judgments and all other papers shall
ALTERNATIVE ANSWER: (d), The Committee only be made by presenting the original
considers this as an alternative answer for a copies thereof, plainly indicated as such,
more liberal view. personally to the clerk of court or by
sending them by registered mail. (Rule
13, Sec.3). Nonetheless, if the complaint
Section 3. Manner of filing. — The filing of was filed with the court through a
pleadings, appearances, motions, notices, private letter-forwarding agency, the
orders, judgments and all other papers shall established rule is that the date of
be made by presenting the original copies delivery of pleadings to a private letter-
thereof, plainly indicated as such, personally forwarding agency is not to be
to the clerk of court or by sending them by considered as the date of filing in court,
but rather the date of actual receipt by
registered mail. In the first case, the clerk of
the court, is deemed to be the date of
court shall endorse on the pleading the date
filing of the pleading. (Benguet Electric
and hour of filing. In the second case, the
Cooperative, Inc. vs. National Labor
date of the mailing of motions, pleadings, or
Relations Commission, G.R. No. 89070,
any other papers or payments or deposits, as May 18, 1992). Hence, the date of the
shown by the post office stamp on the actual receipt by the court is considered
envelope or the registry receipt, shall be as the date of filing of the complaint.
considered as the date of their filing,
payment, or deposit in court. The envelope
shall be attached to the record of the case.
Section 4. Papers required to be filed
(1a)
and served. — Every judgment,
resolution, order, pleading subsequent to
Manner of Filing: the complaint, written motion, notice,
appearance, demand, offer of judgment or
1. Personal filing;
similar papers shall be filed with the court,
2. By Registered mail.
and served upon the parties affected. (2a)
Filing by mail should be trough the registry service
which is made by the deposit of the pleading in the Section 5. Modes of service. — Service
post office, and not trough any other means of of pleadings motions, notices, orders,
transmission. judgments and other papers shall be
made either personally or by mail. (3a)
If registry service is not available in the locality of
either sender or addressee, service (filing) may be MODES OF SERVICE:
done by ordinary mail.
1. Section 6. Personal service;
If a Private Carrier is availed by the party, the date 2. Section 7. Service by mail;
of actual receipt by the court of such pleading, and 3. Section 8. Substituted service
not the delivery to the carrier, is deemed the date of
filing of that pleading (Benguet Electric Cooperative
Section 6. Personal service. — Service
Inc. vs. NLRC, 209 SCRA 55).
of the papers may be made by delivering
Bar Exam Question 2012 personally a copy to the party or his
87. X filed a complaint with the RTC through counsel, or by leaving it in his office with
ABC, a private letter forwarding agency. The his clerk or with a person having charge
date of filing of the complaint shall be: thereof. If no person is found in his office,
a. the date stamped by ABC on the envelope or his office is not known, or he has no
containing the complaint. office, then by leaving the copy, between
b. the date of receipt by the Clerk of Court. the hours of eight in the morning and six
c. the date indicated by the receiving clerk of in the evening, at the party's or counsel's
ABC. residence, if known, with a person of

________________________________________________________________________________________________
sufficient age and discretion then residing SUBSTITUTED SUBSTITUTED
therein. (4a) SERVICE OF SERVICE OF
PLEADINGS and SUMMONS (sec. 7,
Note: Compare with Rule 14, sec. 6 other papers (sec. 8, Rule 14)
Rule 13)
Allowed only if Applicable only where
Section 7. Service by mail. — Service by
personal service and the defendant is a
registered mail shall be made by depositing service by mail cannot resident of the
the copy in the post office in a sealed be made Philippines, but service
envelope, plainly addressed to the party or in person upon him
his counsel at his office, if known, otherwise cannot be done within
at his residence, if known, with postage fully a reasonable time
prepaid, and with instructions to the Office and place of Place of residence or
postmaster to return the mail to the sender residence of the party office or regular place
after ten (10) days if undelivered. If no or his counsel being of business is known
registry service is available in the locality of unknown
either the senders or the addressee, service Effected by (a) leaving
may be done by ordinary mail. (5a; Bar copies of summons at
Matter No. 803, 17 February 1998) Service is made by defendant’s residence
delivering the copy to with some person of
Section 8. Substituted service. — If service the clerk of court, with suitable age and
proof of failure of both discretion then
of pleadings, motions, notices, resolutions,
personal and service residing therein; or (b)
orders and other papers cannot be made
by mail leaving copies at
under the two preceding sections, the office
defendant’s office or
and place of residence of the party or his regular place of
counsel being unknown, service may be business with some
made by delivering the copy to the clerk of competent person in
court, with proof of failure of both personal charge thereof.
service and service by mail. The service is
complete at the time of such delivery. (6a)
Section 9. Service of judgments, final
Bar Exam Question 2012 orders, or resolutions. — Judgments,
31. Atty. X fails to serve personally a copy of final orders or resolutions shall be served
his motion to Atty. Y because the office and either personally or by registered mail.
residence of Atty. Y and the latter's client When a party summoned by publication
changed and no forwarding addresses were has failed to appear in the action,
given. Atty. X's remedy is to:
judgments, final orders or resolutions
a. Serve by registered mail;
against him shall be served upon him also
b. Serve by publication; by publication at the expense of the
prevailing party. (7a)
c. Deliver copy of the motion to the clerk of
court with proof of failure to serve;
Section 10. Completeness of service. —
d. Certify in the motion that personal service Personal service is complete upon actual
and through mail was impossible. delivery. Service by ordinary mail is
SUGGESTED ANSWER: complete upon the expiration of ten (10)
(c), Since the office and place of residence days after mailing, unless the court
of the Atty. X and the latter‟s clinet otherwise provides. Service by registered
changed and no forwarding address were mail is complete upon actual receipt by
given, Atty. X can deliver a copy of the the addressee, or after five (5) days from
motion by way of substituted service, to the the date he received the first notice of the
clerk of court with proof of failure to serve postmaster, whichever date is earlier. (8a)
the motion, both by way of personal service
or service by mail. (Rule 13, Sec. 8, Rules of
Court). Section 11. Priorities in modes of
service and filing. — Whenever
practicable, the service and filing of
pleadings and other papers shall be done

________________________________________________________________________________________________
personally. Except with respect to papers and the registry receipt issued by the
emanating from the court, a resort to other mailing office. The registry return card
modes must be accompanied by a written shall be filed immediately upon its receipt
explanation why the service or filing was not by the sender or in lieu thereof the
done personally. A violation of this Rule may unclaimed letter together with the
be cause to consider the paper as not filed. certified or sworn copy of the notice given
(n) by the postmaster to the addressee. (10a)
Section 12. Proof of filing. — The filing of a Proof of personal service:

pleading or paper shall be proved by its 1. Written admission;
existence in the record of the case. If it is not 2. Official return ;
in the record, but is claimed to have been 3. Affidavit of party serving.
filed personally, the filing shall be proved by
the written or stamped acknowledgment of Proof of service by ordinary mail: Affidavit of
its filing by the clerk of court on a copy of the the person mailing showing compliance with
sec. 7, Rule 13.
same; if filed by registered mail, by the
registry receipt and by the affidavit of the
Proof of service by registered mail:
person who did the mailing, containing a full 1. Affidavit of mailer complying sec. 7,
statement of the date and place of depositing Rule 13;
the mail in the post office in a sealed 2. Registry receipt.
envelope addressed to the court, with
postage fully prepaid, and with instructions to Bar Exam Question 2011
the postmaster to return the mail to the (24) Which of the following is NOT
sender after ten (10) days if not delivered. REGARDED as a sufficient proof of
(n) personal service of pleadings?
(A) Official return of the server. (B)
NOTE: Filing is proved by its existence in the record Registered mail receipt.
of the case. (C) Written admission of the party served.
(D) Affidavit of the server with a statement
If it is not in the record: of the date, place and manner of service.
1. If filed personally- proved by the written or Section 14. Notice of lis pendens. — In
stamped acknowledgment of its filing by the an action affecting the title or the right of
clerk of court on a copy of the same; or possession of real property, the plaintiff
and the defendant, when affirmative relief
2. If filed by registered mail- proved by the is claimed in his answer, may record in
registry receipt and the affidavit of the person the office of the registry of deeds of the
who did the mailing, with full statement of: province in which the property is situated
a) The date and place of depositing the mail in
notice of the pendency of the action. Said
the post office in a sealed envelope
notice shall contain the names of the
addressed to the court;
b) With postage fully paid; and parties and the object of the action or
c) With instructions to the postmaster to return defense, and a description of the property
the mail to the sender after 10 days if not in that province affected thereby. Only
delivered. from the time of filing such notice for
record shall a purchaser, or encumbrancer
Section 13. Proof of Service. — Proof of of the property affected thereby, be
personal service shall consist of a written deemed to have constructive notice of the
admission of the party served, or the official pendency of the action, and only of its
return of the server, or the affidavit of the pendency against the parties designated
party serving, containing a full statement of by their real names.
the date, place and manner of service. If the
service is by ordinary mail, proof thereof shall The notice of lis pendens hereinabove
consist of an affidavit of the person mailing of mentioned may be cancelled only upon
facts showing compliance with section 7 of order of the court, after proper showing
this Rule. If service is made by registered that the notice is for the purpose of
mail, proof shall be made by such affidavit molesting the adverse party, or that it is

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not necessary to protect the rights of the NOTE: Where the defendant has already been
rights of the party who caused it to be served with summons on the original complaint,
recorded. (24a, R-14) no further summons is required if the amended
complaint does not introduces new causes of
REQUISITES FOR A NOTICE OF LIS PENDENS: action (Ong Peng vs. Custodio, 1 SCRA 780).
1. Action affects the title or the right of possession
over real property; HOWEVER, although it is well-settled that an
2. Affirmative relief is claimed; amended complaint supersedes the original one,
3. Notice shall contain the name of the parties and new summons to the defendant (meaning he
the object of the action or the defense and a has been previously served with summons
description of the property affected; and under the original complaint) shall be served
4. The action is in rem (AFP Mutual Benefit upon him ONLY if he has not yet appeared in
Association, Inc. vs. CA, 327 SCRA 203). court in connection with the original complaint,
like filing a motion to dismiss or an answer. Rule
This SERVES as a WARNING to all persons, still applies even if amended complaint alleges
prospective purchasers or encumbrancers of the new causes of action (Pan-Asiatic Travel Corp.
property in litigation to keep their hands off the vs. CA, 164 SCRA 623 [1988]).
property in litigation unless they are prepared to
gamble on the result of the proceedings. But where the defendant was declared in default
on the original complaint and the plaintiff
The defendant may also record a notice of lis subsequently filed an amended complaint, new
pendens when he claims an affirmative relief in his summons must be served on the defendant on
answer. the amended complaint , as the original
complaint was deemed withdrawn upon such
Note that the notice of lis pendens cannot be amendment (Atkins vs. Domingo, 44 Phil 680)
cancelled on an ex parte motion or by filing a
bond GR: When additional defendant is joined,
summons must be served upon him.
EXCEPTIONS:
1. When the administrator of a deceased
RULE 14 party defendant substitutes the
deceased;
Summons 2. Where upon the death of the original
defendant, his infant heirs are made
Jurisdiction over the person of the defendant is parties;
acquired either by his voluntary appearance or by 3. In cases of substitution of deceased
service of summons (Minucher vs. CA, 214 SCRA under Rule 3, sec. 16
242).
SUMMON- It is the writ by which the defendant is Section 1. Clerk to issue summons. —
notified of the action brought against him. Upon the filing of the complaint and the
payment of the requisite legal fees, the
PURPOSES OF SUMMONS: clerk of court shall forthwith issue the
1. To acquire jurisdiction over the defendant; corresponding summons to the
2. To give notice to defendant (Right to Due defendants. (1a)
Process of Law)
Section 2. Contents. — The summons
EFFECT OF NON-SERVICE
shall be directed to the defendant, signed
Unless the defendant voluntarily submits to the
jurisdiction of the court, non-service or the irregular by the clerk of court under seal and
service of summons renders null and void all the contain
subsequent proceedings and issuances in the action
from the order of default up to and including the (a) the name of the court and the names
judgment by default and the order of execution. of the parties to the action;
Judgment rendered without jurisdiction over the
person of the defendant s void for “lack of due (b) a direction that the defendant answer
process”. within the time fixed by these Rules;

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(c) a notice that unless the defendant so Section 5. Issuance of alias summons.
answers plaintiff will take judgment by — If a summons is returned without being
default and may be granted the relief applied served on any or all of the defendants, the
for. server shall also serve a copy of the
return on the plaintiff's counsel, stating
A copy of the complaint and order for the reasons for the failure of service,
appointment of guardian ad litem if any, shall within five (5) days therefrom. In such a
be attached to the original and each copy of case, or if the summons has been lost, the
the summons. (3a) clerk, on demand of the plaintiff, may
issue an alias summons. (4a)
Section 3. By whom served. — The
summons may be served by the sheriff, his ALIAS SUMMONS
deputy, or other proper court officer, or for It is the one issued when the original has not
justifiable reasons by any suitable person produced its effect because of a defect in form
authorized by the court issuing the summons. or in the manner of service. When issued, it
supersedes the fist writ.
(5a)
NOTE: Motion to Dismiss on the ground of lack
of jurisdiction over the person of the defendant
NOTE: the enumeration is EXCLUSIVE. may be rendered moot and academic if, instead
of hearing the motion, the court issues alias
Bar Exam Question 2012 summons (Teh vs. CA, L-147038, April 24,
40. W, a legal researcher in the RTC of Makati, 2003).
served summons on an amended complaint on
Z at the latter's house on a Sunday. The MODES OF SERVICE OF SUMMONS
service is invalid because: 1. Service in person on defendant (sec. 6);
a. it was served on a Sunday. 2. Substituted service (sec. 7);
b. the legal researcher is not a "proper court 3. Publication (sec. 14).
officer".
c. (a) and (b) above Section 6. Service in person on
d. there is no need to serve summons on an defendant. — Whenever practicable, the
amended complaint. summons shall be served by handling a
SUGGESTED ANSWERS: (b), The Rules do copy thereof to the defendant in person,
not allow a legal researcher to serve or, if he refuses to receive and sign for it,
summons on amended complaint. He is not by tendering it to him. (7a)
the proper court officer who is duly
authorized to serve the summons to the
Note: Connect with Rule 13, sec. 6.
defendants. The question is about validity
and not superfluity. (d), Where the
defendants have already appeared before Section 7. Substituted service. — If, for
the trial court by virtue of a summons on justifiable causes, the defendant cannot
the original complaint, the amended be served within a reasonable time as
complaint may be served upon them provided in the preceding section, service
without need of another summons, even if may be effected (a) by leaving copies of
new causes of action are alleged. (Vlason the summons at the defendant's residence
Enterprises Corporation vs. Court of with some person of suitable age and
Appeals, G.R. Nos. 121662-64, July 6, discretion then residing therein, or (b) by
1999). leaving the copies at defendant's office or
regular place of business with some
competent person in charge thereof. (8a)
Section 4. Return. — When the service has For substituted service to be valid, it is
been completed, the server shall, within five necessary to establish the following;
(5) days therefrom, serve a copy of the 1. The impossibility of personal service of
return, personally or by registered mail, to summons within a reasonable time;
the plaintiff's counsel, and shall return the 2. The efforts exerted to locate the person to
summons to the clerk, who issued it, be served; and
3. Service upon a person of sufficient age and
accompanied by proof of service. (6a)
discretion residing in the same place as

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defendant or some competent person in charge No. 183182, September 1, 2010, the
of the office or regular place of business. Supreme Court held that it is not
necessary that the person in charge of
In substituted service, the sheriff’s return must show the defendant‟s regular place of business
that an effort or attempt was exerted to personally be specifically authorized to receive the
serve the summons on the defendant and that the summons. It is enough that he appears
same had failed (Venturanza vs. CA, 156 SCRA to be in charge. Consequently, the
305) substituted service of summons to the
defendant‟s secretary in the office is
Summons; Valid Service (2013) No.I. Alfie valid.
Bravo filed with the Regional Trial Court of
Caloocan, a complaint for a sum of money (B) If declared in default, what can Charlie
against Charlie Delta. The claim is for do to obtain relief? (4%) SUGGESTED
Php1.5Million. The complaint alleges that ANSWER: If Charlie is declared in
Charlie borrowed the amount from Alfie and default, he has the following remedies to
duly executed a promissory note as evidence of wit: 1) he may, at any time after
the loan. Charlie’s office secretary, Esther, discovery of the default but before
received the summons at Charlie’s office. judgment, file a motion, under oath, to
Charlie failed to file an answer within the set aside the order of default on the
required period, and Alfie moved to declare ground that his failure to answer was
Charlie in default and to be allowed to present due to fraud, accident, mistake, or
evidence ex parte. Ten days later, Charlie filed excusable neglect, and that he has a
his verified answer, raising the defense of full meritorious defense; 2) if judgment has
payment with interest. (A) Was there proper already been rendered when he
and valid service of summons on Charlie? (3%) discovered the default, but before the
SUGGESTED ANSWER: No. There is no same has become final and executor, he
showing that earnest efforts were exerted to may file a motion for new trial under
personally serve the summons on the Section 1(a) of Rule 37: 3) if he
defendant before substituted service was discovered the default after the
resorted to: hence, the service of summons judgment has become final and executor,
was improper. In an action strictly in he may file a petition for relief under
personam like a complaint for a sum of Section 2 of Rule 38; and 4) he may also
money, personal service on the defendant is appeal from the judgment rendered
the preferred mode of service, that is, by against him as contrary to the evidence
handing a copy of the summons to the or to the law, even if no petition to set
defendant in person. If defendant, for aside the order of default has been
excusable reasons, cannot be served with presented by him. (B.D. Longspan
the summons within a reasonable period, Builders, Inc. vs. R.S. Ampeloquio Realty
then substituted service can be resorted to Development, G.R. No. 169919,
(Manotoc vs. Court of Appeals, G.R. No. September 11, 2009). [Note: there are
130974, August 16, 2006, Velasco, J.). additional remedies to address
Otherwise stated, it is only when the judgments by default: Motion for
defendant cannot be served personally Reconsideration (Rule 37), Annulment of
within a reasonable time that a substituted Judgment (Rule 47) and Petition for
service may be made. Impossibility of Certiorari (Rule 65).
prompt service should be shown by stating
the efforts made tofind the defendant ALTERNATIVE ANSWER: The court
personally and the fact that such efforts committed grave abuse of discretion
failed. This statement should be made in when it declared the defending party in
the proof of service (Galura vs. Math-Agro default despite the latter‟s filing of an
Corporation, G.R. No. 167230, August 14, Answer. Thus, a petition for certiorari
2009, 1st Division, Carpio, J.). under Rule 65 is the proper remedy. In
San Pedro Cineplex Properties vs. Heirs
ALTERNATIVE ANSWER: Yes. If earnest of Manuel Humada Enano, G.R. No.
efforts were exerted to serve the summons 190754, November 17, 2010, the
in persons but the same proved futile, then Supreme Court held that where the
substituted service through defendant‟s answer is filed beyond the reglementary
secretary is valid. In Gentle Supreme period but before the defendant is
Philippines, Inc. vs. Ricardo Consulta, G.R.

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declared in default and there is no showing Tina Guerrero filed with filed the Regional Trial
that defendant intends to delay the case, Court of Binan, Laguna, a complaint for sum of
the answer should be admitted. Thus, it was money amounting to P1 Million against Carlos
error to declare the defending party in Corro. The complaint alleges, among others, that
default after the Answer was filed (See Carlos borrowed from Tina the said amount as
Sablas vs. Sablas, G.R. No. 144568, July 3, evidenced by a promissory note signed by Carlos and
2007). After all, the defect in the service of his wife, jointly and severally. Carlos was served with
summons was cured by Charlie‟s filing of a summons which was received by Linda, his
verified answer raising only the defense of secretary.
full payment. The belated filing of verified However, Carlos failed to file an answer to the
Answer amounts to voluntary submission to complaint within the 15-day reglementary period.
the jurisdiction of the court and waiver of Hence, Tina filed with the court a motion to declare
any defect in the service of summons. Carlos in default and to allow her to present
evidence ex parte. Five days thereafter, Carlos filed
his verified answer to the complaint, denying under
Summons; Substituted Service (2004) oath the genuineness and due execution of the
Summons was issued by the MM RTC and actually promissory note and contending that he has fully
received on time by defendant from his wife at their paid his loan with interest at 12% per annum.
residence. The sheriff earlier that day had delivered the 1. Was the summons validly served on Carlos?
summons to her at said residence because defendant (2.5%)
was not home at the time. The sheriffs return or proof ALTERNATIVE ANSWER:
of service filed with the court in sum states that the The summons was not validly served on Carlos
summons, with attached copy of the complaint, was because it was served on his secretary and the
served on defendant at his residence thru his wife, a requirements for substituted service have not been
person of suitable age and discretion then residing followed, such as a showing that efforts have been
therein. Defendant moved to dismiss on the ground that exerted to serve the same on Carlos and such
the court had no jurisdiction over his person as there attempt has failed despite due diligence (Manotoc
was no valid service of summons on him because the v. CA, G.R. No. 130974, August 16, 2006; An Ping v.
sheriffs return or proof of service does not show that the CA, G.R. No. 126947, July 15, 1999).
sheriff first made a genuine attempt to serve the ALTERNATIVE ANSWER:
summons on defendant personally before serving it thru Service of Summons on Carlos was validly served
his wife. Is the motion to dismiss meritorious? What is upon him if the Return will show that it was done
the purpose of summons and by whom may it be through Substituted Service because the defendant
served? Explain. (5%) can not be served personally within a reasonable
SUGGESTED ANSWER: time despite diligent efforts made to serve the
The motion to dismiss is not meritorious because the summons personally.
defendant actually received the summons on time from Linda, the secretary of defendant Carlos, must
his wife. Service on the wife was sufficient. (Boticano v. likewise be shown to be a competent person in
Chu, 148 SCRA 541 [1987]). It is the duty of the court to charge of defendant's office where summons was
look into the sufficiency of the service. The sheriffs served (Sec. 7, Rule 14).
negligence in not stating in his return that he first made 2. If you were the judge, will you grant Tina's
a genuine effort to serve the summons on the defendant, motion to declare Carlos in default? (2.5%)
should not prejudice the plaintiff. (Mapa v. Court of ALTERNATIVE ANSWER:
Appeals, 214 SCRA 417/1992). The purpose of the If I were the judge, I will not grant Tina's motion to
summons is to inform the defendant of the complaint declare Carlos in default because summons was not
filed against him and to enable the court to acquire properly served and anyway, a verified answer to the
jurisdiction over his person. It may be served by the complaint had already been filed. Moreover, it is
sheriff or his deputy or any person authorized by the better to decide a case on the merits rather than on
court. technicality.
ALTERNATIVE ANSWER: ALTERNATIVE ANSWER:
Yes. The motion to dismiss is meritorious. Substituted Yes. If it was shown that summons was validly
service cannot be effected unless the sheriffs return served,
shows that he made a genuine attempt to effect personal and that the motion to declare Carlos in default was
service on the husband. duly furnished on Carlos, and after conducting a
(Note that the service of summon is strictly construed hearing on the same motion.
against the government and liberally in favor to the
accused/defendant).
NOTE: Summons is validly served if it is left with
Summons; Validity of Service; Effects (2006) some person of suitable age and discretion then

________________________________________________________________________________________________
residing in the defendant’s residence, even if the or institution, service shall be effected
defendant was abroad at that time. The fact that the upon him by the officer having the
defendant did not actually receive the summons did management of such jail or institution
not invalidate the service of such summons who is deemed deputized as a special
(Montalban vs. Maximo 22 SCRA 1070). sheriff for said purpose. (12a)
Dwelling house or RESIDENCE refers to the place
where the person named in the summons is living at Section 10. Service upon minors and
the time when the service is made, even though incompetents. — When the defendant is
he may be temporarily out of the country at the time. a minor, insane or otherwise an
Service on a person at the place where he was a incompetent, service shall be made upon
visitor – not considered to have been left at the him personally and on his legal guardian
residence or place or abode, where he has another if he has one, or if none his guardian ad
place at which he ordinarily stays and he intends to litem whose appointment shall be applied
return. (Dumagas vs Jensen, L-158407, Jan. 17, for by the plaintiff. In the case of a minor,
2005, 448 SCRA 663, 2nd Div.) service may also be made on his father or
mother. (l0a, 11a)
Invalid service of summons. This issue shall be
raised at the very start. Section 11. Service upon domestic
private juridical entity. — When the
Note: Presumption of regularity of performance
defendant is a corporation, partnership or
of official duty does not apply in substituted
association organized under the laws of
service of summons. The duty to be performed
has the direct bearing on the acquisition of the Philippines with a juridical personality,
jurisdiction over the person of the defendant. service may be made on the president,
managing partner, general manager,
corporate secretary, treasurer, or in-
Section 8. Service upon entity without
house counsel. (13a)
juridical personality. — When persons
associated in an entity without juridical
Note: The list is exclusive.
personality are sued under the name by
which they are generally or commonly
known, service may be effected upon all the Section 12. Service upon foreign
defendants by serving upon any one of them, private juridical entities. — When the
or upon the person in charge of the office or defendant is a foreign private juridical
place of business maintained in such name. entity which has transacted business in
But such service shall not bind individually the Philippines, service may be made on
any person whose connection with the entity its resident agent designated in
has, upon due notice, been severed before accordance with law for that purpose, or,
the action was brought. (9a) if there be no such agent, on the
government official designated by law to
Bar Exam Question 2011 that effect, or on any of its officers or
(68) Summons was served on "MCM Theater," a agents within the Philippines. (14a)
business entity with no juridical personality,
through its office manager at its place of Section 13. Service upon public
business. Did the court acquire jurisdiction corporations. — When the defendant is
over MCM Theater’s owners? (A) Yes, an the Republic of the Philippines, service
unregistered entity like MCM Theater may may be effected on the Solicitor General;
be served with summons through its office in case of a province, city or municipality,
manager. (B) No, because MCM has no or like public corporations, service may be
juridical personality and cannot be sued. (C) effected on its executive head, or on such
No, since the real parties in interest, the other officer or officers as the law or the
owners of MCM Theater, have not been served court may direct. (15)
with summons. (D) Yes since MCM, as
business entity, is a de facto partnership with
Section 14. Service upon defendant
juridical personality.
whose identity or whereabouts are
unknown. — In any action where the
Section 9. Service upon prisoners. — When defendant is designated as an unknown
the defendant is a prisoner confined in a jail owner, or the like, or whenever his
________________________________________________________________________________________________
whereabouts are unknown and cannot be (B) when the action against the non-
ascertained by diligent inquiry, service may, resident defendant affects the personal
by leave of court, be effected upon him by status of the plaintiff and the defendant is
publication in a newspaper of general temporarily outside the Philippines (C)
circulation and in such places and for such when the action is against a non-resident
time as the court may order. (16a) defendant who is formerly a Philippine
resident and the action affects the personal
[Constructive Service of Summons] status of the plaintiff (D) when the action
against the non-resident defendant relates
to property within the Philippines in which
NOTE: In actions in personam where the defendant
the defendant has a claim or lien (E) All of
cannot be served with summons personally or by
the above. SUGGESTED ANSWER:
substituted service, the case must first be converted
There is no correct answer. Under
to an action in rem or quasi in rem by attaching the
Section 15 of Rule 14 of the Rules of
property of the defendant found in the Philippines
Court, extraterritorial service of
before summons can be served by publication.
summons is applicable, when the
defendant does not reside and is not
If no property can be found, the action shall be
found in the Philippines, and the action
archived but not be dismissed (Citizens Surety vs.
Melencio-Herrera, 38 SCRA 369) affects the personal status of the
plaintiff or relates to, or the subject of
which is, property within the
Section 15. Extraterritorial service. — Philippines, in which the defendant has
When the defendant does not reside and is or claims a lien or interest, actual or
not found in the Philippines, and the action contingent, or in which the relief
affects the personal status of the plaintiff or demanded consists, wholly or in part, in
relates to, or the subject of which is, property excluding the defendant from any
within the Philippines, in which the defendant interest therein, or the property of the
has or claims a lien or interest, actual or defendant has been in the Philippines. In
contingent, or in which the relief demanded Spouses Domingo M. Belen vs. Hon.
consists, wholly or in part, in excluding the Pablo R. Chavez, G.R. No.175334, march
defendant from any interest therein, or the 26, 2008, the Supreme Court held that if
property of the defendant has been attached the resident defendant is temporarily
within the Philippines, service may, by leave out of the country, any of the following
of court, be effected out of the Philippines by modes of service may be resorted to: (1)
1
personal service as under section 6; or by Substituted service set forth in Section
2
publication in a newspaper of general 8; (2) personal service outside the
circulation in such places and for such time as country, with leave of court; (3) service
the court may order, in which case a copy of by publication, also with leave of court;
the summons and order of the court shall be or (4) any other manner the court may
sent by registered mail to the last known deem sufficient. Hence, extra-territorial
address of the defendant, or in 3any other service of summons is applicable to all
manner the court may deem sufficient. Any choices given above. ALTERNATIVE
order granting such leave shall specify a ANSWER:
(B), Under Section 16, Rule 14 of the
reasonable time, which shall not be less than
Rules of Civil Procedure, when any
sixty (60) days after notice, within which
action is commenced against a
the defendant must answer. (17a)
defendant who ordinarily resides within
the Philippines, but who is temporarily
Note: The purpose is not to acquire jurisdiction but out of it, service may, by leave of court,
of due process requirement. This section does not be also effected out of Philippines, as
apply to purely personal actions. under the preceding section (Section 15,
Rule 14). Clearly, a non-resident
defendant cannot be considered
XVI. Extra-territorial service of summons is temporarily outside the Philip[pines
proper in the following instances, except
because Section 14, Rule 14 refers to a
__________. (1%)
resident defendant who is only
(A) when the non-resident defendant is to be temporarily outside the Philippines.
excluded from any interest on a property
located in the Philippines

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leave to effect service in any manner for
Summons; By Publication (2008) which leave of court is necessary shall be
No.I. Lani filed an action for partition and made by motion in writing, supported by
accounting in the Regional Trial Court (RTC) of affidavit of the plaintiff or some person on
Manila against her sister Mary Rose, who is a his behalf, setting forth the grounds for
resident of Singapore and is not found in the the application. (19)
Philippines. Upon motion, the court ordered
the Publication of the summons for three
Section 18. Proof of service. — The
weeks in a local tabloid, Bulgar. Linda, an
proof of service of a summons shall be
OFW vacationing in the Philippines, saw the
made in writing by the server and shall
summons in Bulgar and brought a copy of the
tabloid when she returned to Singapore. Linda set forth the manner, place, and date of
showed the tabloid and the page containing the service; shall specify any papers which
summons to Mary Rose, who said, “Yes I know, have been served with the process and
my kumare Anita scanned and e-mailed that the name of the person who received the
page of Bulgar to me!” Did the court acquire same; and shall be sworn to when made
jurisdiction over Mary Rose? SUGGESTED by a person other than a sheriff or his
ANSWER: Partition is an action quasi in deputy. (20)
rem. Summons by publication is proper
when the defendant does not reside and is Bar Exam Question 2012
not found in the Philippines, provided that 54. Proof of service of summons shall be
a copy of the summons and order of the through the following, except :
court are sent by registered mail to the last a. written return of the sheriff;
known address of the defendant (Sec. 15, b. affidavit of the person serving summons;
Rule 14). Publication of the notice in c. affidavit of the printer of the publication;
Bulgar, a newspaper of general circulation, d. written admission of the party served.
satisfies the requirements of summons by SUGGESTED ANSWER: (d), Proof of
publication (Perez vs. Perez, G.R. No service of summons shall be made in
145368, 28 March 2005). writing by the server and shall be sworn
to when made by a person other than a
Summons; Served by Email (2009) sheriff or his deputy. (Rule 14, Sec. 18,
No.I.E. Summons may be served by mail. Rules of Court). If the service has been
SUGGESTED ANSWER: FALSE. Rule 14 of made by publication, it may be proved by
the Rules of Court, on Summons, provide the affidavit of the printer to which a
only for serving Summons (a) to the copy of the publication shall be
defendant in person; or (b) if this is not attached, and directed to the defendant
possible within a reasonable time, then by by registered mail to his last known
substituted service in accordance with Sec. address. (Rule 14, Sec. 19, Rules of
7 thereof; or (c) if any of the foregoing two Court).
ways is not possible, then with leave of
court, by publication in accordance with the
same Rule. ALTERNATIVE ANSWER: TRUE,
but only in extraterritorial service under
Section 19. Proof of service by
Sec. 15 of the Rule on Summons where
publication. — If the service has been
service may be effected “in any other
made by publication, service may be
manner the court may deem sufficient.”
proved by the affidavit of the printer, his
foreman or principal clerk, or of the
Section 16. Residents temporarily out of editor, business or advertising manager,
the Philippines. — When any action is to which affidavit a copy of the publication
commenced against a defendant who shall be attached and by an affidavit
ordinarily resides within the Philippines, but showing the deposit of a copy of the
who is temporarily out of it, service may, by summons and order for publication in the
leave of court, be also effected out of the post office, postage prepaid, directed to
Philippines, as under the preceding section. the defendant by registered mail to his
(18a) last known address. (21)
Section 17. Leave of court. — Any

application to the court under this Rule for

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Section 20. Voluntary appearance. — The (Sec. 11, Rule 14) They have been removed from those
defendant's voluntary appearance in the who can be served with summons for a domestic
action shall be equivalent to service of corporation. Cashier was substituted by treasurer.
summons. The inclusion in a motion to (Id.)
dismiss of other grounds aside from lack of Note: Under the present rules, security guards
jurisdiction over the person of the defendant of corporation, when it is a usual practice and is
shall not be deemed a voluntary appearance. allowed by the BOD, to receive any letter for the
(23a) Corporation, is a valid service of
summon.(Citation omitted)
NOTE: Any form of appearance in court, by the
defendant, by his agent authorized to do so, or by
attorney, is equivalent to service of summons except RULE 15
where such appearance is precisely to object to the
jurisdiction of the court over the person of the Motions
defendant. Example; filing a bill of particulars, or a
motion for extension of time to file answer. KINDS OF MOTIONS
The Inclusion in a motion to dismiss of other 1. Motion EX PARTE

grounds, aside from lack of jurisdiction over the It is made without the presence or
person of the defendant, SHALL NOT BE DEEMED notification to the other party because the
VOLUNTARY APPEARANCE. question, generally, presented is not
debatable (i.e. motion for extension of time
Reason: Omnibus Motion Rule to file pleadings)
Summons (1999) 2. Motion OF COURSE

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

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prove facts alleged therein, shall be March 16 if February had 29 days. Although the
accompanied by supporting affidavits and original motion for reconsideration was defective
other papers. (3a) because it lacked a notice of hearing, the defect was
cured on time by its filing on March 15 of a
REQUISITES OF A MOTION (not made in open supplemental pleading, provided that motion was set
court or in the course of the proceedings): for hearing and served on the adverse party at least
1. In writing; three (3) days before the date of hearing.(Sec. 4, Rule
2. Hearing of motion set by the applicant; 15).
ALTERNATIVE ANSWER:
3. Notice of hearing (specific time and date of
hearing which is not later than 10 days form Since the supplemental pleading was not set for
filing); hearing, it did not cure the defect of the original
4. Service of motion and notice of hearing to other motion.
party at least 3 days before date of hearing;
5. Proof of service.
Section 5. Notice of hearing. — The
PURPOSE OF 3 DAY NOTICE RULE notice of hearing shall be addressed to all
a. To avoid surprise; parties concerned, and shall specify the
b. To enable the adverse party to prepare for his time and date of the hearing which must
defense. not be later than ten (10) days after the
filing of the motion. (5a)
EXCEPTIONS TO THE THREE DAY NOTICE
RULE:
1. Ex parte motions; Section 6. Proof of service necessary.
2. Urgent motions; — No written motion set for hearing shall
3. Motions agreed upon by the parties to be heard be acted upon by the court without proof
on shorter notice; of service thereof. (6a)
4. Motions jointly submitted by the parties;
5. Motion for summary judgment- served at least NOTE: A motion that does not comply with
10 days before its hearing. sections 4, 5, and 6 is a MERE SCRAP of
PAPER.
Section 4. Hearing of motion. — Except for It will not toll the running of the period to file the
motions which the court may act upon appropriate pleading.
without prejudicing the rights of the adverse
party, every written motion shall be set for Section 7. Motion day. — Except for
hearing by the applicant. motions requiring immediate action, all
motions shall be scheduled for hearing on
Every written motion required to be heard Friday afternoons, or if Friday is a non-
and the notice of the hearing thereof shall be working day, in the afternoon of the next
served in such a manner as to ensure its working day. (7a)
receipt by the other party at least three (3)
days before the date of hearing, unless the NOTE: In actual practice, motion day is
court for good cause sets the hearing on sometime held in the morning or some other
shorter notice. (4a) time when no one objects thereto (Atty. Ucat)
Reglementary Period; Supplemental Pleadings (2000) Section 8. Omnibus motion. — Subject

The RTC rendered judgment against ST, copy of which to the provisions of section 1 of Rule 9, a
was received by his counsel on February 28, 2000. On motion attacking a pleading, order,
March 10, 2000, ST, through counsel, filed a motion for judgment, or proceeding shall include all
reconsideration of the decision with notice to the Clerk objections then available, and all
of Court submitting the motion for the consideration of objections not so included shall be
the court. On March 15, 2000, realizing that the Motion deemed waived. (8a)
lacked a notice of hearing, ST’s counsel filed a
supplemental pleading. Was the motionfor NOTE: This is the OMNIBUS MOTION RULE
Reconsideration filed within the reglementary period?
Explain. (5%) Non-waivable defenses under Rule 9, sec. 1:
SUGGESTED ANSWER: 1. Lack of jurisdiction over subject matter;
Yes, because the last day of filing a motion for 2. Litis pendentia;
reconsideration was March 15 if February had 28 days or 3. Res judicata;

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4. Prescription. Sec. 8, Rules of Court) which governs the
bank‟s motion to dismiss, such motion
NOTE: The omnibus motion rule does not apply if should include all objections then
the defendant, instead of filing a motion to dismiss, available; otherwise, all objections not so
pleaded the grounds for a motion to dismiss as included shall be deemed waived.
affirmative defenses in his answer (Ucat). Although the improper venue became
known only in the course of the trial, the
Bar Exam Question 2011 same should not be allowed to obstruct
(65) The defendant in an action for sum of or disturb the proceedings since venue
money filed a motion to dismiss the complaint of civil actions is defined for the
on the ground of improper venue. After convenience of the parties, nay
hearing, the court denied the motion. In his jurisdictional.
answer, the defendant claimed prescription of
action as affirmative defense, citing the date ALTERNATIVE ANSWER: The “omnibus
alleged in the complaint when the cause of motion rule” should not apply, because
action accrued. May the court, after hearing, the improper venue became known and
dismiss the action on ground of prescription? thus available only to the movant bank
(A) Yes, because prescription is an exception after the motions to dismiss were filed
to the rule on Omnibus Motion. (B) No, and resolved by the court, and in the
because affirmative defenses are barred by the course of the trial of the case. In fairness
earlier motion to dismiss. (C) Yes, because the to the defendant bank, it should not be
defense of prescription of action can be raised precluded by the “omnibus motion rule”
at anytime before the finality of judgment. (D) from raising objection to the improper
No, because of the rule on Omnibus Motion. venue only when said ground for
objection became known to it. The court
may not resolve the second motion to
Pleadings; Motions; Omnibus Motion Rule dismiss precisely because of the
(2010) “omnibus motion rule”, since the bank
No.V. Charisse, alleging that she was a filed an earlier motion to dismiss but did
resident of Lapu-Lapu City, filed a complaint not raise the ground of improper venue,
for damages against Atlanta Bank before the and subsequently filed an Answer
RTC of Lapu-Lapu City, following the dishonor wherein the improper venue has not
of a check she drew in favor of Shirley against again been raised. Hence, the question of
her current account which she maintained in improper venue has become moot and
the bank’s local branch. academic.
The bank filed a Motion to Dismiss the The only grounds not barred by the
complaint on the ground that it failed to state a “omnibus motion rule” are (a) lack of
cause of action, but it was denied. It thus filed jurisdiction over the subject matter; (b)
an Answer. litis pendencia; and (c) bar by prior
(a) In the course of the trial, Charisse admitted judgment or by statute of limitations.
that she was a US citizen residing in Los (b) Suppose Charisse did not raise the
Angeles, California and that she was "omnibus motion rule," can the judge
temporarily billeted at the Pescado Hotel in proceed to resolve the motion to dismiss?
Lapu-Lapu City, drawing the bank to file Explain. (3%) SUGGESTED ANSWER: Yes,
another motion to dismiss, this time on the the judge can proceed to resolve the
ground of improper venue, since Charisse is motion to dismiss, because the ground
not a resident of Lapu-Lapu City. Charisse raised therefor became known to the
opposed the motion citing the "omnibus motion movant only during the trial, such that
rule." Rule on the motion. (3%) SUGGESTED it was only then that the objection
ANSWER: The bank‟s second motion to became available to him.
dismiss which is grounded on improper (c) Suppose the judge correctly denied the
venue, should be denied. The improper second motion to dismiss and rendered
venue of an action is deemed waived by the judgment in favor of Charisse, ordering the
bank‟s filing an earlier motion to dismiss bank to pay her P100,000 in damages plus
without raising improper venue as an issue, legal interest. The judgment became final
and more so when the bank filed an Answer and executory in 2008. To date, Charisse
without raising improper venue as an issue has not moved to execute the judgment.
after its first motion to dismiss was denied. The bank is concerned that its liability will
Under the “omnibus motion rule” (Rule 15,

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increase with the delay because of the interest 4. Failure to appear on the pre-trial under Rule
on the judgment award. As counsel of the 18, sec. 5;
bank, what move should you take? (3%) 5. Failure to file pre-trial brief under Rule
SUGGESTED ANSWER: 18,sec. 6;
As counsel of the bank, I shall recommend to the bank 6. Insufficiency of evidence (demurrer to
as judgment obligor, to make a tender of payment to evidence)
the judgment oblige and thereafter make a
consignation of the amount due by filing an application Section 1. Grounds. — Within the time
therefor placing the same at the disposal of the court for but before filing the answer to the
which rendered the judgment (Arts. 1256 and 1258, complaint or pleading asserting a claim, a
Civil Code). motion to dismiss may be made on any of
the following grounds:
Section 9. Motion for leave. — A motion for
leave to file a pleading or motion shall be (a) That the court has no jurisdiction over
accompanied by the pleading or motion the person of the defending party;
sought to be admitted. (n)
(b) That the court has no jurisdiction over
Section 10. Form. — The Rules applicable to the subject matter of the claim;
pleadings shall apply to written motions so
far as concerns caption, designation, (c) That venue is improperly laid;
signature, and other matters of form. (9a)
(d) That the plaintiff has no legal capacity
to sue;
RULE 16 (e) That there is another action pending

between the same parties for the same
Motion to Dismiss cause;
NOTE: A motion to dismiss is not a responsive (f) That the cause of action is barred by a
pleading. It is not a pleading at all. It is subject to the prior judgment or by the statute of
omnibus motion rule since it is a motion that attacks limitations;
a pleading. Hence, it must raise all the objections
available at the time of the filing thereof.
(g) That the pleading asserting the claim
GENERAL RULE: A court may not motu proprio states no cause of action;
dismiss a case unless a motion to that effect is filed
by a party thereto. (h) That the claim or demand set forth in
the plaintiff's pleading has been paid,
EXCEPTIONS: waived, abandoned, or otherwise
1. Cases falling under Rule 9, sec. 1; extinguished;
2. Failure to prosecute (Rule 17, sec. 3);
3. Section 4 of the Rules on Summary Procedure. (i) That the claim on which the action is
founded is unenforceable under the
TYPES OF DISMISSAL OF ACTION:
provisions of the statute of frauds; and
1. Motion to dismiss before answer under Rule 16;
2. Motion to dismiss under Rule 17;
a) Upon notice by plaintiff; (j) That a condition precedent for filing the
b) Upon motion by plaintiff; claim has not been complied with. (1a)
c) Due to fault of plaintiff.
3. Motion to dismiss called a demurrer to evidence GROUNDS:
after plaintiff has rested his case under Rule 33; 1. No jurisdiction over the person of the
4. Dismissal of an appeal. defendant;
2. No jurisdiction over the subject matter of the
SOME CAUSES FOR DISMISSAL OF ACTIONS: claim;
1. Motion to dismiss under Rule 16; 3. Improper venue;
2. Dismissal under Rule 17, sec. 1; 4. No legal capacity to sue;
3. Failure to prosecute under Rule 17, sec. 3; 5. Litis pendentia;

________________________________________________________________________________________________
6. Res judicata A. If denied, defendant A. If denied, defendant,
7. Prescription; must answer, otherwise may present evidence.
8. Failure to state a cause of action he may be declared in
9. Claim or demand has been paid, waived, default. B. if granted, plaintiff
abandoned, or otherwise extinguished; may appeal and if the
10. Claim is unenforceable under Statute of Frauds; B. if granted, plaintiff order of dismissal is
11. Non-compliance of a condition precedent. may appeal or re-file reversed, defendant
the case whenever loses his right to
NOTES proper. present evidence.
A. Jurisdiction over the person of the

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

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

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

________________________________________________________________________________________________
their privies, and as to them constitutes an absolute c. Res Judicata;
bar to a subsequent action involving the same claim,
demand or cause of action. d. Stare decisis.
SUGGESTED ANSWER:
REQUISITES: (c), A compromise agreement that has
1. Previous final judgment; been made and duly approved by the
2. By a court having jurisdiction over the subject court attains the effect and authority of
matter and of the parties; res judicata, although no execution may
3. Judgment upon the merits; and be issued unless the agreement receives
4. There must be identity of parties, of subject the approval of the court where the
matter, and of cause of action between the first litigation is pending and compliance
and the second actions. with the terms of agreement is decreed.”
(Ranola vs. Ranola, G.R. No. 185095,
There is identity of cause of action when the two July 31, 2009).
actions are based on the same delict or wrong
committed by the defendant even if the remedies
are different. Dismissal; Motion to Dismiss; Res Judicata (2000)
AB, as mother and in her capacity as legal guardian
There is identity of parties even if the defendant in of her legitimate minor son, CD, brought action for
the first case becomes the plaintiff in the support against EF, as father of CD and AB’s
subsequent case, and vice-versa (HSBC vs. lawfully wedded husband. EF filed his answer
Aldecoa & Co. GR No. 8437, March 23, 1915) denying his paternity with counterclaim for damages.
Subsequently, AB filed a manifestation in court that
NOTE: No Res Judicata in: in view of the denial made by EF, it would be futile
1. Revival of Judgment to pursue the case
 Cause of action is for the revival of dormant against EF. AB agreed to move for the dismissal of
judgment. the
2. Annulment of Judgment complaint, subject to the condition that EF will
 Cause of action is extrinsic fraud or lack of withdraw his counter claim for damages. AB and EF
jurisdiction. filed a joint motion to dismiss. The court dismissed
 Subject matter is the judgment itself. the
Note: action to annul judgment barred by case with prejudice. Later on, minor son CD,
judgment in action for specific performance represented by AB, filed another complaint for
on ground of res judicata (Immaculata vs. support against EF. EF filed a motion to dismiss on
Navarro, 146 SCRA 5) the ground of res judicata. a) Is res judicata a valid
ground for dismissal of the second complaint?
Civil aspect of the case based on criminal Explain your answer (3%)
case which is dismissed, either by the b) What are the essential requisite of res judicata?
prosecutor after preliminary investigation for (2%)
lack of probable cause, or by the court for SUGGESTED ANSWER:
failure to prosecute is not barred by res (a) No, res judicata is not a defense in an action for
judicata. support even if the first case was dismissed with
prejudice on a joint motion to dismiss. The
Under the doctrine of res judicata, no matter how plaintiff’s mother agreed to the dismissal of the
erroneous a judgment may be, once it becomes complaint for support in view of the defendant’s
final, it cannot be corrected. Erroneous judgment is answer denying his paternity with a counterclaim for
different from VOID judgment. damages. This was in the nature of a compromise of
the right of support which is prohibited by law. (Art,
NOTE: There could be res judicata without trial, 2035, Civil Code; De Asis v. Court of Appeals, 303 SCRA
such as judgment on the pleadings (Rule 34); a 176 [1999]).
summary judgment (Rule 35) or a dismissal under (b) The Essential Requisites of Res Judicata are:
Rule 17, sec. 3. 1 the judgment or order rendered must be
final;
Bar Exam Question 2012 2 the court rendering the same must have
25. A judicial compromise has the effect of jurisdiction of the subject matter and of the parties;
_______ and is immediately executory and is 3 it must be a judgment or order on the merits; and
not appealable. 4. there must be between the two cases identity of
a. Estoppel; parties, identity of subject matter, and identity of
b. Conclusiveness of judgment;

________________________________________________________________________________________________
causes of action. (San Diego v. Cardona, 70 Phil, 281 [1940]) NOTE: The doctrine of laches is NOT to be
strictly applied between blood relatives because
Bar by Prior Judgment vs. Conclusiveness of Judgment of their confidential relations.
(1997) Distinguish Bar by prior judgment from
conclusiveness of judgment H. COMPLAINT FAILS TO STATE A
SUGGESTED ANSWER: CAUSE OF ACTION
Bar by prior-judgment is the doctrine of res judicata, When the ground for the dismissal is
which bars a second action when there is identity of that the complaint states no cause of
parties, subject matter and cause of action. (Sec. 49[b] of action, such fact can be determined only
former Rule 39; Sec, 47 [b] of new Rule 39). from the facts alleged in the complaint.
Conclusiveness of judgment precludes the relitigation of
a particular issue in another action between the same NOTE: The proper ground for a motion to
parties on a different cause of action. (Sec. 49 [c] of former dismiss is FAILURE TO STATE A CAUSE OF
Rule 39; sec. 47 [c] of new Rule 39). ACTION and not LACK OR ABSENCE OF A
CAUSE OF ACTION.
(80) Distinguish between conclusiveness of
judgment and bar by prior judgment. (A) Failure to State a Lack of Cause of
Conclusiveness of judgment bars another Cause of Action Action
action based on the same cause; bar by prior The former means that The latter means that
judgment precludes another action based on there is an there is insufficiency in
the same issue. (B) Conclusiveness of insufficiency in the the factual basis of the
judgment bars only the defendant from allegations in the action.
questioning it; bar by prior judgment bars both complaint.
plaintiff and defendant. (C) Conclusiveness of May be raised as a This is an affirmative
judgment bars all matters directly adjudged; motion to dismiss defense but not a
bar by prior judgment precludes all matters under Rule 16, sec ground for motion to
that might have been adjudged. (D) 1[g] or as an dismiss, which may be
Conclusiveness of judgment precludes the affirmative defense in raised any time after
filing of an action to annul such judgment; bar the answer in Rule 16, questions of fact have
by prior judgment allows the filing of such an sec. 6 been resolved on the
action. basis of stipulations,
admissions or
evidence presented;
G. Prescription may also be used as
A motion to dismiss on the ground of the basis of a
prescription will be given due course only if judgment upon a
the complaint shows on its face that the demurrer to evidence
action has already prescribed. or for dismissing the
case rendered after a
Gicano Doctrine: The SC allowed the full trial on the merits.
dismissal of an action on the ground of
prescription even after judgment on the
merits, or even if the defense was not raised GR: Motion to dismiss based on the ground that
at all as long as the relevant dates are clear the complaint fails to state a cause of action
on the record (Gicano vs. Gegato, 157 hypothetically admits the truth of the facts
SCRA 140). alleged in the complaint.
EXCEPTIONS:
PRESCRIPTION LACHES 1. The allegations which the court will take
Concerned with the fact Concerned with the judicial notice are not true;
of delay effect of delay 2. Legally impossible facts;
It is a matter of time It is a matter of equity 3. Facts inadmissible in evidence;
Statutory Non-statutory 4. Facts which appear by record or document
Applies at law Applies in equity to be unfounded (Moran).
Based on a fixed time Not based on fixed time
Where complaint does not state a cause of
action, defendant may file a motion to dismiss or
raise the same as an affirmative defense in his

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answer. Failure of the defendant to take the proper automatically be part of the evidence of
action, may cause the plaintiff to cure the defect by the party presenting the same. (n)
presenting evidence, if he has otherwise, a cause of
action. Section 3. Resolution of Motion. — After
the hearing, the court may dismiss the
action or claim, deny the motion, or order
I. NON-COMPLIANCE OF A CONDITION
PRECEDENT the amendment of the pleading.
EXAMPLES: The court shall not defer the resolution of

 Barangay Conciliation Proceedings; the motion for the reason that the ground
 Earnest efforts toward a compromise relied upon is not indubitable.
(art.151 of Family Code);
 Prior resort to administrative bodies; In every case, the resolution shall state
 Exhaustion of administrative remedies clearly and distinctly the reasons therefor.
(3a)
EFFECTS OF ACTION
ON MOTION TO REMEDY
62. After a hearing on a Motion to Dismiss,
DISMISS
the court may either dismiss the case or
Order granting motion
deny the same or:
to dismiss is a final Re-file the complaint
a. defer resolution because the ground
order (without
prejudice) relied upon 1s not indubitable.
Order granting motion Appeal b. order amendment of the pleading
to dismiss (with c. conduct a preliminary hearing
prejudice) d. None of the above.
Order denying the Rule 65 if there is grave SUGGESTED ANSWER:
motion to dismiss is abuse of discretion (b), After the hearing of a motion to
interlocutory amounting to lack or dismiss, the court may dismiss the
excess of jurisdiction action or claim, deny the motion, or
order the amendment of the pleading.
GR: An order denying a motion to dismiss is The court shall not defer the resolution
interlocutory. The ordinary procedure is for the of the motion for the reason that the
defendant to file his answer and go to trial and if the ground relied upon is not indubitable.
decision is adverse, he can appeal from the (Rule 16, Sec.3, Rules of Court).
judgment and assign as error the denial of the
motion to dismiss. Section 4. Time to plead. — If the
motion is denied, the movant shall file his
Exception: If the court acts with grave abuse of answer within the balance of the period
discretion amounting to lack or excess of jurisdiction prescribed by Rule 11 to which he was
in denying the motion, certiorari or prohibition lies. entitled at the time of serving his motion,
but not less than five (5) days in any
Evidence presented in the motion to dismiss event, computed from his receipt of the
automatically forms part of the evidence.
notice of the denial. If the pleading is
Defendant is allowed to present evidence to
ordered to be amended, he shall file his
prove the basis of his motion.
answer within the period prescribed by
Exception: If the ground appears on the face of Rule 11 counted from service of the
the allegation (complaint) e.g. lack of jurisdiction amended pleading, unless the court
over subject matter; prescription of action. provides a longer period. (4a)
Section 2. Hearing of motion. — At the Section 5. Effect of dismissal. — Subject

hearing of the motion, the parties shall to the right of appeal, an order granting a
submit their arguments on the questions of motion to dismiss based on paragraphs
law and their evidence on the questions of (f), (h) and (i) of section 1 hereof shall
fact involved except those not available at bar the re-filing of the same action or
that time. Should the case go to trial, the claim. (n)
evidence presented during the hearing shall

________________________________________________________________________________________________
NOTE: Action or claim cannot be re-filed if it was NOTE: If the defendant would want to file a
dismissed on the following grounds: counterclaim, he should not file a motion to
1. Bar by prior judgment; dismiss but file an answer alleging as affirmative
2. Prescription; defenses the grounds for a motion to dismiss.
3. The claim was already extinguished;
4. Claim is Unenforceable. IBP-OCA Memo on Policy Guidelines
March 12, 2002
The remedy is to appeal the judgment/order. Defendant is restrained from filing a motion to
dismiss. But the grounds for motion to dismiss
Bar Exam Question 2012 should be raised as affirmative or special
38. A complaint may be refiled if dismissed on defenses in the answer. --- Atty. Ucat
which of the following grounds?
a. unenforceable under the Statute of Frauds;
b. Res Judicata;
c. Litis Pendencia;
RULE 17
d. Lack of jurisdiction.
SUGGESTED ANSWERS:
(c) and (d), An order granting a motion to Dismissal of Actions
dismiss shall bar the refilling of the same
action or claim based on the following Section 1. Dismissal upon notice by
grounds, namely: res judicata, prescription, plaintiff. — A complaint may be
claim or demand is paid, waived, abandoned dismissed by the plaintiff by filing a notice
or otherwise extinguished, and the claim on of dismissal at any time before service of
which the action is founded is the answer or of a motion for summary
unenforceable under the statute of frauds. judgment. Upon such notice being filed,
(Rule 16, Sec.5, (f), (h), and (i), Rules of the court shall issue an order confirming
Court). The Rules do not include litis the dismissal. Unless otherwise stated in
pendentia and lack of jurisdiction. the notice, the dismissal is without
prejudice, except that a notice operates as
Bar Exam Question 2011 an adjudication upon the merits when filed
(15) Which of the following grounds for by a plaintiff who has once dismissed in a
dismissal invoked by the court will NOT competent court an action based on or
PRECLUDE the plaintiff from refiling his
including the same claim. (1a)
action? (A) Res judicata. (B) Lack of
jurisdiction over the subject matter. (C)
Unenforceability under the Statutes of Fraud. Bar Exam Question 2012
(D) Prescription. 33. A complaint may be dismissed by the
plaintiff by filing a notice of dismissal:
a. At anytime after service of the answer.
b. At anytime before a motion of
Section 6. Pleading grounds as summary judgment is filed.
affirmative defenses. — If no motion to c. At the pre-trial.
dismiss has been filed, any of the grounds for d. Before the complaint is amended.
dismissal provided for in this Rule may be SUGGESTED ANSWER: (b), A complaint
pleaded as an affirmative defense in the may be dismissed by the plaintiff by
answer and, in the discretion of the court, a filing a notice of dismissal at any time
preliminary hearing may be had thereon as if before service of the answer or of a
a motion to dismiss had been filed. (5a) motion for summary judgment. Upon
such notice being filed, the court shall
The dismissal of the complaint under this issue an order confirming the dismissal.
section shall be without prejudice to the (Rule 17, Sec.1, Rules of Court).
prosecution in the same or separate action of
a counterclaim pleaded in the answer. (n)
NOTES: Dismissal is effected by mere notice
Grounds for motion to dismiss, including and not by motion which is a matter of right
IMPROPER VENUE, may be pleaded as affirmative before service of:
defenses in the answer. 1. answer ;or
2. a motion for a summary judgment.

________________________________________________________________________________________________
The rule requires a court order confirming the 1. Prosecute his counterclaim in a separate
dismissal. action;
Such dismissal is WITHOUT PREJUDICE; 2. To have the same resolve in the same
Exceptions: action, if he manifest as such to the court
1. where notice of dismissal otherwise within 15 days from notice of the motion to
provides; dismiss.
2. where the plaintiff has previously dismissed
the same case in a court of competent NOTE that these alternative remedies of the
jurisdiction (TWO DISMISSAL RULE) defendant are available to him REGARDLESS
OF WHETHER THE COUNTERCLAIM IS
The dismissal is still with prejudice even if the notice COMPULSORY OR PERMISSIVE.
of dismissal does not so provide, where the notice of
dismissal is predicated on the fact of payment by the Dismissal is without prejudice, EXCEPT:
defendant of the claim involved (Serrano vs. 1. When otherwise stated in the motion;
Cabrera, 93 Phil 774) 2. When stated to be with prejudice in the
order of the court.
(87) Which of the following is appealable? (A)
An order of default against the defendant. (B) Pleadings; Counterclaim (2010) No.VI.
The denial of a motion to dismiss based on Antique dealer Mercedes borrowed
improper venue. (C) The dismissal of an P1,000,000 from antique collector
action with prejudice. (D) The disallowance of Benjamin. Mercedes issued a postdated
an appeal. check in the same amount to Benjamin to
cover the debt. On the due date of the
check, Benjamin deposited it but it was
Section 2. Dismissal upon motion of dishonored. As despite demands, Mercedes
plaintiff. — Except as provided in the failed to make good the check, Benjamin
preceding section, a complaint shall not be filed in January 2009 a complaint for
dismissed at the plaintiff's instance save upon collection of sum of money before the RTC
approval of the court and upon such terms of Davao. Mercedes filed in February 2009
her Answer with Counterclaim, alleging
and conditions as the court deems proper. If
that before the filing of the case, she and
a counterclaim has been pleaded by a
Benjamin had entered into a dacion en
defendant prior to the service upon him of
pagoagreement in which her vintage
the plaintiff’s motion for dismissal, the
P1,000,000 Rolex watch which was taken
dismissal shall be limited to the complaint.
by Benjamin for sale on commission was
The dismissal shall be without prejudice to applied to settle her indebtedness; and that
the right of the defendant to prosecute his she incurred expenses in defending what
counterclaim in a separate action unless she termed a "frivolous lawsuit." She
within fifteen (15) days from notice of the accordingly prayed for P50,000 damages.
motion he manifests his preference to have (a) Benjamin soon after moved for the
his counterclaim resolved in the same action. dismissal of the case. The trial court
Unless otherwise specified in the order, a accordingly dismissed the complaint. And it
dismissal under this paragraph shall be also dismissed the Counterclaim. Mercedes
without prejudice. A class suit shall not be moved for a reconsideration of the dismissal
dismissed or compromised without the of the Counterclaim. Pass upon Mercedes’
approval of the court. (2a) motion. (3%)
SUGGESTED ANSWER:
NOTE: Under this section, the dismissal of the case Mercedes‟ Motion for Reconsideration is
is subject to the SOUND DISCRETION of the court impressed with merit: the trial courts
upon such terms as maybe just. should not have dismissed her counter-
claim despite the dismissal of the
If a counterclaim has been pleaded by the Complaint. Since it was the plaintiff
defendant PRIOR TO THE SERVICE upon him of (Benjamin) who moved for the dismissal
the plaintiff’s motion to dismiss, the dismissal shall of his Complaint, and at a time when the
be limited to the complaint, without prejudice to the defendant (Mercedes) had already filed
right of the defendant to; her Answer thereto and with
counterclaim, the dismissal of the
counterclaim without conformity of the

________________________________________________________________________________________________
defendant-counterclaimant. The Revised CAUSES FOR DISMISSAL UNDER THIS
Rules of Court now provides in Rule 17, SECTION:
Sec. 2 thereof that “If a counterclaim has 1. Failure to appear on the date of the
been pleaded by a defendant prior to the presentation of the plaintiff’s evidence in
service upon him of the plaintiff‟s motion chief without justifiable cause;
for dismissal, the dismissal shall be limited 2. Failure to prosecute for unreasonable
to the complaint. The dismissal shall be length of time (NOLLE PROSEQUI);
without prejudice to the right of the 3. Non-compliance with the Rules or any
defendant to prosecute his counterclaim x x (lawful/valid) order of the court.
x x.”
(b) Suppose there was no Counterclaim and Dismissal; Failure to Prosecute (2003)
Benjamin’s complaint was not dismissed, and When a criminal case is dismissed on nolle prosequi,
judgment was rendered against Mercedes for can it later be refilled? (4%)
SUGGESTED ANSWER:
P1,000,000. The judgment became final and
As a general rule, when a criminal case is dismissed on
executory and a writ of execution was
nolle prosequi before the accused is placed on trial and
correspondingly issued.
before he is called on to plead, this is not equivalent to
Since Mercedes did not have cash to settle the an acquittal and does not bar a subsequent prosecution
judgment debt, she offered her Toyota Camry for the same offense. (Galvez v. Court of Appeals, 237
model 2008 valued at P1.2 million. The Sheriff, SCRA 685 [1994]).
however, on request of Benjamin, seized
Mercedes’ 17th century ivory image of the La NOTE: The plaintiff’s failure to appear at the trial
Sagrada Familia estimated to be worth over after he has presented his evidence DOES NOT
P1,000,000. Was the Sheriff’s action in order? WARRANT the dismissal of the case on the
(3%) SUGGESTED ANSWER: No, the Sheriff‟s ground of failure to prosecute. It is merely a
action was not in order. He should not have waiver of his right to cross-examine and to
listened to Benjamin, the judgment oblige/ object to the admissibility of the evidence of the
creditor, in levying on the properties of defendant presented on that day. It is not,
Mercedes, the judgment obligor/debtor. The however, a waiver of his right to be present
option to immediately choose which during the subsequent stages of the
property or part thereof may be levied proceedings (Jalover vs. Ytoriaga, 80 SCRA
upon, sufficient to satisfy the judgment, is 100)
vested by law (Rule 39, Sec. 9 (b) upon the
judgment obligor, Mercedes, not upon the SECTION 2 SECTION 3
judgment obligee, Benjamin, in this case. dismissal is not
Only if the judgment obligor does not Dismissal is at the procured by the
exercise the option, is the Sheriff instance of the plaintiff plaintiff though
authorized to levy on personal properties if justified by causes
any, and then on the real properties if the imputable to him
personal properties are insufficient to Dismissal is a matter of Dismissal is a
answer for the judgment. procedure, without matter of evidence,
prejudice unless an adjudication
otherwise stated in the upon the merits
order of the court or on
Section 3. Dismissal due to fault of plaintiff’s motion to
plaintiff. — If, for no justifiable cause, the dismiss his own
plaintiff fails to appear on the date of the complaint
presentation of his evidence in chief on the Dismissal is without Dismissal is without
complaint, or to prosecute his action for an prejudice to the right of prejudice to the
unreasonable length of time, or to comply the defendant to right of the
with these Rules or any order of the court, prosecute his defendant to
the complaint may be dismissed upon motion counterclaim in a prosecute his
of the defendant or upon the court's own separate action, unless counterclaim in the
motion, without prejudice to the right of the within the period of 15 same action or in a
defendant to prosecute his counterclaim in days from notice of the separate action
the same or in a separate action. This motion he manifests to
dismissal shall have the effect of an the court that he intends
adjudication upon the merits, unless that the same be
otherwise declared by the court. (3a) resolved in the same
action.

________________________________________________________________________________________________
It is the presence of parties and their counsels
Bar Exam Question 2012 before the clerk of court.
96. X, the designated executor of a will, files a Note that there may be a preliminary conference
petition for probate of the same. X and his prior to the actual pre-trial.
counsel failed to appear without justifiable
cause at the hearing on the presentation of Section 1. When conducted. — After the
evidence and the court therefore dismissed, last pleading has been served and filed, it
motu proprio, his petition for failure to shall be the duty of the plaintiff to
prosecute. The effect of the dismissal is: promptly move ex parte that the case be
a. not an adjudication upon the merits. set for pre-trial (5a, R20)
b. the will can no longer be probated.
c. it is a dismissal with prejudice. NOTE: The last pleading need not be literally
d. a bar to a subsequent action on the same construed as the actual filing of the last
cause. pleading. For purposes of the pre-trial, the
SUGGESTED ANSWER: (c), The dismissal of expiration of the period for filing the last pleading
a case for failure to prosecute has the effect is sufficient (Sarmiento vs. Juan, 120 SCRA
of adjudication on the merits, and is 403)
necessarily understood to be with prejudice
to the filing of another action, unless Bar Exam Question 2012
otherwise provided in the order of 42. The following motions require a notice
dismissal. Stated differently, the general of hearing served on the opposite party,
rule is that dismissal of a case for failure to except:
prosecute is to be regarded as an a. Motion to Set Case for Pre-trial;
adjudication on the merits and with b. Motion to take deposition;
prejudice to the filing of another action, c. Motion to correct TSN;
and the only exception is when the order of d. Motion to postpone hearing.
dismissal expressly contains a qualification SUGGESTED ANSWER: (a), After the last
that the dismissal is without prejudice. (See pleading has been served and filed, it
Rule 17, Sec. 3, Rules of Court; Gomez vs. shall be the duty of the plaintiff to
Alcantara, G.R. No. 179556, February 13, promptly move ex parte that the case be
2009). set for pre-trial. (Rule 18, Sec.1, Rules of
Court).
Section 4. Dismissal of counterclaim,

cross-claim, or third-party complaint. — Pre-Trial; Requirements (2001)
The provisions of this Rule shall apply to the Lilio filed a complaint in the Municipal Trial Court
dismissal of any counterclaim, cross-claim, or of Lanuza for the recovery of a sum against Juan.
third-party complaint. A voluntary dismissal The latter filed his answer to the complaint serving a
by the claimant by notice as in section 1 of copy thereof on Lilio. After the filing of the answer
this Rule, shall be made before a responsive of Juan, whose duty is it to have the case set for pre-
pleading or a motion for summary judgment trial? Why? (5%)
is served or, if there is none, before the SUGGESTED ANSWER:
After the filing of the answer of Juan, the
introduction of evidence at the trial or
PLAINTIFF has the duty to promptly move ex
hearing. (4a)
parte that the case be set for pre-trial. (Sec. 1, Rule18).
The reason is that it is the plaintiff who knows when
the last pleading has been
filed and it is the plaintiff who has the duty to
RULE 18 prosecute.
ALTERNATIVE ANSWER:
Pre-Trial In the event the plaintiff files a reply, his duty to
move that the case be set for pre-trial arises after the
reply has been served and filed.
PRE-TRIAL
It is a mandatory conference and personal
NOTE that failure to move promptly that the
confrontation before the judge between the parties
case be set for pre-trial may cause the dismissal
and their respective counsels.
of the case under rule 17, sec.3.
PRELIMINARY CONFERENCE

________________________________________________________________________________________________
My notes: there is a Supreme Court Circular NOTE: The process of obtaining or securing
ordering the branch clerk of court to call the parties admissions, whether of facts or evidence is
for a pre-trial if the plaintiff fails to move for the pre- essentially voluntary. When parties are unable to
trial of the case. arrive at a stipulation of agreed facts, the court
must close the Pre-trial and proceed with the
Pre-trial is MANDATORY, but NOT trial of the case (Filoil Marketing Corp. vs. Dy
JURISDICTIONAL. Absence of pre-trial is not a Pac and Co., 160 SCRA 133)
ground to set the judgment aside as long as the
parties are afforded with a (fair) trial. Section 3. Notice of pre-trial. — The
notice of pre-trial shall be served on
PRE-TRIAL IN CIVIL PRE-TRIAL IN counsel, or on the party who has no
CASES CRIMINAL CASES counsel. The counsel served with such
Possible (amicable) Not necessarily notice is charged with the duty of
settlement
notifying the party represented by him.
Compromise available Compromise not
(n)
available
There is a pre-trial brief No pre-trial brief
Note: Notice of “hearing” embraces the term
When during the pre-trial conference the defendant “pre-trial”. As known in law, hearing embraces
manifested that he has no interest in any amicable the several stages of a litigation (Sps. Bembo
settlement, the court cannot set the case for 2nd pre- vs. CA, Nov. 29, 1995, citing Trocio vs. Labayo,
trial (Pioneer Services vs. Hontanosas, 78 SCRA 53 SCRA 97).
448).
Section 4. Appearance of parties. — It
Section 2. Nature and purpose. — The pre- shall be the duty of the parties and their
trial is mandatory. The court shall consider: counsel to appear at the pre-trial. The
non-appearance of a party may be
excused only if a valid cause is shown
(a) The possibility of an amicable settlement
therefore or if a representative shall
or of a submission to alternative modes of
appear in his behalf fully authorized in
dispute resolution;
writing to enter into an amicable
settlement, to submit to alternative
(b) The simplification of the issues; modes of dispute resolution, and to enter
into stipulations or admissions of facts and
(c) The necessity or desirability of of documents. (n)
amendments to the pleadings;
Section 5. Effect of failure to appear. —
(d) The possibility of obtaining stipulations or The failure of the plaintiff to appear when
admissions of facts and of documents to so required pursuant to the next
avoid unnecessary proof; preceding section shall be cause for
dismissal of the action. The dismissal shall
(e) The limitation of the number of be with prejudice, unless other-wise
witnesses; ordered by the court. A similar failure on
the part of the defendant shall be cause to
(f) The advisability of a preliminary reference allow the plaintiff to present his evidence
of issues to a commissioner; ex parte and the court to render judgment
on the basis thereof. (2a, R20)
(g) The propriety of rendering judgment on
the pleadings, or summary judgment, or of EFFECT OF NON APPEARNCE OF
dismissing the action should a valid ground DEFENDANT as distinguished from FAILURE
therefore be found to exist; TO ANSWER under Rule 9, sec. 3:
Under this Rule, the plaintiff is allowed to

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

________________________________________________________________________________________________
While under Rule 9, sec. 3, the judgment may be Compromise agreement entered into without
based only on what are alleged in the complaint, authority is not void, but unenforceable and
unless the court, in its DISCRETION, requires the maybe ratified (Lim Pin vs. Liao Tan, 115 SCRA
presentation of evidence. But the judgment shall not 290).
exceed the amount prayed or of different nature of
those alleged in the complaint. NOTE that article 1878, of the New Civil Code
provides:
Section 6. Pre-trial brief. — The parties
shall file with the court and serve on the Special powers of attorney are necessary in the
adverse party, in such manner as shall following cases:
ensure their receipt thereof at least three (3) (3) To compromise, to submit question
days before the date of the pre-trial, their to arbitration, to renounce the right to
respective pre-trial briefs which shall contain, appeal from judgment, to wave
among others: objections to the venue of an action or
to abandon a prescription already
(a) A statement of their willingness to enter acquired;
into amicable settlement or alternative modes
of dispute resolution, indicating the desired
terms thereof;
Section 7. Record of pre-trial. — The
proceedings in the pre-trial shall be
(b) A summary of admitted facts and recorded. Upon the termination thereof,
proposed stipulation of facts; the court shall issue an order which shall
recite in detail the matters taken up in the
(c) The issues to be tried or resolved; conference, the action taken thereon, the
amendments allowed to the pleadings,
(d) The documents or exhibits to be and the agreements or admissions made
presented stating the purpose thereof; by the parties as to any of the matters
considered. Should the action proceed to
(e) A manifestation of their having availed or trial, the order shall, explicitly define and
their intention to avail themselves of limit the issues to be tried. The contents
discovery procedures or referral to of the order shall control the subsequent
commissioners; and course of the action, unless modified
before trial to prevent manifest injustice.
(f) The number and names of the witnesses, (5a, R20)
and the substance of their respective
testimonies. NOTE: Motion to modify the pre-trial order must
be filed before the trial (presentation of evidence
Failure to file the pre-trial brief shall have the commenced) Atty. Ucat.
same effect as failure to appear at the pre-
trial. (n) Contents of the pre-trial order:
1. Statement of the nature of the case;

NOTE: Failure of party to file pre-trial brief is not
2. Stipulations or admissions of the parties,
excused by the fact that the party was, by his own including testimonial and documentary
choosing, not represented by counsel. There is evidence;
nothing in the constitution which mandates that a 3. Issues involved (a) factual and (b) legal;
party in a non-criminal proceeding be represented 4. Number of witnesses;
by counsel and that the absence of such 5. Date of trial.
representation amount to denial of due process.
 A party is deemed to have waived the
Principles involved in a compromise agreements delimitations of the pre-trial order if he
The authority to compromise a litigation is not failed to object to the introduction of
mandatorily required to be in writing. The vital thing evidence on an issue outside of the pre-
is that it was made expressly. The authority to trial order, as well as by cross
compromise may be established by evidence. examining the witness in regard to said
evidence.

________________________________________________________________________________________________
GR: even if a motion for reconsideration by the
defendant, who failed to appear during the pre- trial,
is granted, the case will not go back to the pre-trial Note on Arbitration Law
stage. GR; Arbitration award needs confirmation by the
court.
Exception: if The parties voluntarily agreed that the Exception: Arbitration award in construction
case be set for new pre-trial (Young vs. CA, 204 industry.[Construction Industry Arbitration
SCRA 584 [1991]). Commission]
Pleadings; Amendment of Complaint

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

________________________________________________________________________________________________
who had already presented his witnesses. 1 Legal interest in the matter in a controversy; or
The amendment would simply render 2 Legal interest in the success of either of the parties;
nugatory the reason for or purpose of the or
pre-trial Order. Sec.7 of Rule 18 on pre-trial 1 Legal interest against both; or
in civil actions is explicit in allowing a 2 So situated as to be adversely affected by a
modification of the pre-trial Order “before” distribution or other disposition or property in the
trial begins to prevent manifest injustice. custody of the court or of an officer thereof.
3 Intervention will not unduly delay or prejudice
the adjudication of the rights or original parties;
4 Intervenor’s rights may not be fully protected
in a separate proceedings.
(Acenas II v. Court of Appeals, 247 SCRA 773 [1995];
RULE 19 Sec.1, Rule 19, 1997 Rules of Civil Procedure.)
Intervention WHO MAY INTERVENE: (clue words only)

1. Legal interest in the matter;
INTERVENTION 2. Legal interest in the success of either;
It is a legal proceeding by which a third person is 3. Interest against both parties;
permitted by the court to become party by 4. One so situated as to be adversely
intervening in a pending action after meeting the affected.
conditions and requirements set by the Rules.
The interest that entitles a person to intervene in
NOTE: The general rule is that intervention is never a suit must be of the matter in litigation and of
an independent proceeding but is ancillary to an such direct and immediate character that the
existing litigation. Hence, the dismissal of the intervenor will either lose or gain by the direct
principal action results into dismissal of said legal operation and effect of the judgment.
ancillary action.
Exception: The case of Metropolitan Bank vs. CA, INTEREST IN THE SUBJECT means a direct
where the third person was already allowed to interest in the cause of action as pleaded and
intervene and has already presented his case which would put the intervenor in a legal position
(evidence) and the third person was not given an to litigate a fact alleged in the complaint, without
opportunity to protect his interest. the establishment of which plaintiff could not
recover (Magsaysay-Labrador vs. CA, GR No.
Complaint in intervention is an initiatory pleading; 58168, Dec. 9, 1989).
hence there is a need to pay filing fees and the
certification against forum shopping. An illegitimate child who is not recognized by the
putative father cannot intervene in partition case
Section 1. Who may intervene. — A person involving the estate of putative father who died
who has a legal interest in the matter in during the pendency of action to compel
litigation, or in the success of either of the recognition. His interest over the estate of
putative father is at most a mere expectancy,
parties, or an interest against both, or is so
which does not qualify a person to intervene
situated as to be adversely affected by a
under the Rules (Lim vs. Perello, CA-GR. SP
distribution or other disposition of property in 46532, Aug. 31, 2000).
the custody of the court or of an officer
thereof may, with leave of court, be allowed Junior lien-holders cannot intervene in collection
to intervene in the action. The court shall case filed by superior lien-holders. In this case,
consider whether or not the intervention will they oppose the claim of the superior lien-
unduly delay or prejudice the adjudication of holders, for the obvious reason that the higher
the rights of the original parties, and whether the claim recovered by the superior lien-holders,
or not the intervenor's rights may be fully from the attached vessel (property), the lesser
protected in a separate proceeding. (2[a], would be the remainder for the junior lien-
[b]a, R12) holders (Nordic Asia vs. vs. CA, L-111159, June
10, 2003).
Actions; Intervention; Requisites (2000)
What are the requisites for an intervention by a nonparty
in an action pending in court? (5%) INTERVENTION INTERPLEADER
SUGGESTED ANSWER: Ancillary action Original action
The requisites for intervention are: Presupposes that the

________________________________________________________________________________________________
Proper in cases plaintiff: proceeding. (C) Yes, the right of the
mentioned in sec. 1 1. has no interest in intervenor is merely in aid of the right of
the subject the original party, which in this case had
matter of the ceased to exist. (D) No, since having been
action; or allowed to intervene, the intervenor
2. has interest became a party to the action, entitled to
therein , in whole have the issue it raised tried and
or in part, which decided.
is not disputed by
the other parties
Defendants are Defendants are being Section 2. Time to intervene. — The
original parties to sued precisely to implead motion to intervene may be filed at any
the pending suit them
time before rendition of judgment by the
trial court. A copy of the pleading-in-
intervention shall be attached to the
GR: Intervention is not a matter of right.
motion and served on the original parties.
Exceptions:
1. Person seeking to intervene is an
indispensable party; GR: Intervention is filed before rendition of
2. Intervention in a class suit. judgment by the trial court.
Exceptions:
“Intervention pro interesse suo” 1. Intervention of an indispensable party
A mode of intervention in equity whose purpose is to even on appeal;
enable a person (a stranger to the case) whose Intervention allowed even at the
property gets into the clutches of the court, in a execution stage when intervenors are
controversy between others, to go into court and indispensable parties (Mago vs. CA, 303
procure it or its proceeds to be surrendered to him, SCRA 600).
without becoming a formal plaintiff or defendant
(Juaquin vs. Herrera, 37 Phil. 723). 2. When the ends of justice would be
served.
Bar Exam Question 2011 Requisites:
(14) The right to intervene is not absolute. In 1. That intervenors are indispensable
general, it CANNOT be allowed where (A) the parties (Oliva vs. CA, 166 SCRA 632);
intervenor has a common interest with any of 2. Show, at least prima facie, that claim
the parties. (B) it would enlarge the issues is meritorious; and
and expand the scope of the remedies. (C) 3. Grave injustice would be caused to
the intervenor fails to put up a bond for the the intervenors, if intervention is not
protection of the other parties. (D) the allowed.
intervenor has a stake in the property subject 4. Intervention was allowed even after
of the suit. entry of judgment in the case of
Navarro vs. Executive Secretary, GR
Bar Exam Question 2011 No. 180050, April 12, 20011, En Banc.
(51) Ranger Motors filed a replevin suit against
REMEDY IF INTERVENTION IS DENIED:
Bart to recover possession of a car that he
1. Petition for CPM under Rule 65, not
mortgaged to it. Bart disputed the claim.
appeal;
Meantime, the court allowed, with no
opposition from the parties, Midway Repair
[Appeal is not proper because he is not
Shop to intervene with its claim against Bart
a party to the case in the trial court
for unpaid repair bills. On subsequent motion
which rendered the decision]
of Ranger Motors and Bart, the court Denial of intervention is an interlocutory
dismissed the complaint as well as Midway order for it does not finally dispose a
Repair Shop’s intervention. Did the court act case. Hence, appeal is not proper.
correctly? (A) No, since the dismissal of the
intervention bars the right of Bart to file a 2. Filing a separate action.
separate action.
(B) Yes, intervention is merely collateral to the
principal action and not an independent

________________________________________________________________________________________________
Section 3. Pleadings-in-intervention. — SUBPOENA SUMMONS
The intervenor shall file a complaint-in- An order to testify, or And order to answer
intervention if he asserts a claim against to bring books and complaint
either or all of the original parties or an other documents
answer-in-intervention if he unites with the Maybe served to a Served on the
defending party in resisting a claim against non-party defendant
the latter. (2[c]a, R12) Needs tender of Does not need tender
kilometrage, of kilometrage and
attendance fee and other fees
Section 4. Answer to complaint-in-
reasonable cost of
intervention. — The answer to the production fee
complaint-in-intervention shall be filed within
fifteen (15) days from notice of the order
admitting the same, unless a different period Section 1. Subpoena and subpoena
is fixed by the court. (2[d]a, R12) duces tecum. — Subpoena is a process
directed to a person requiring him to
attend and to testify at the hearing or the
trial of an action, or at any investigation
conducted by competent authority, or for
RULE 20 the taking of his deposition. It may also
require him to bring with him any books,
Calendar of Cases documents, or other things under his
control, in which case it is called a
Section 1. Calendar of cases. — The clerk subpoena duces tecum. (1a, R23)
of court, under the direct supervision of the
judge, shall keep a calendar of cases for pre- Section 2. By whom issued. — The
trial, for trial, those whose trials were subpoena may be issued by —
adjourned or postponed, and those with
motions to set for hearing. Preference shall (a) the court before whom the witness is
be given to habeas corpus cases, election required to attend;
cases, special civil actions, and those so
required by law. (1a, R22)
(b) the court of the place where the
deposition is to be taken;
Preference shall be given to:
1. A. Habeas Corpus cases;
B. Habeas Data cases; (c) the officer or body authorized by law
C. Amparo cases. to do so in connection with investigations
D. Writ of Kalikasan cases conducted by said officer or body; or
2. Election cases; (d) any Justice of the Supreme Court or of

3. Special Civil actions; the Court of Appeals in any case or
4. Those required by law. investigation pending within the
Philippines.
Section 2. Assignment of cases. — The When application for a subpoena to a

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

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Section 3. Form and contents. — A the reasonable cost of producing the
subpoena shall state the name of the court books, documents or things demanded
and the title of the action or investigation, shall also be tendered. (6a, R23)
shall be directed to the person whose
attendance is required, and in the case of a Section 7. Personal appearance in
subpoena duces tecum, it shall also contain a court. — A person present in court before
reasonable description of the books, a judicial officer may be required to testify
documents or things demanded which must as if he were in attendance upon a
appear to the court prima facie relevant. (3a, subpoena issued by such court or officer.
R23) (10, R23)
Section 4. Quashing a subpoena. — The Section 8. Compelling attendance. — In

court may quash a subpoena duces tecum case of failure of a witness to attend, the
upon motion promptly made and, in any court or judge issuing the subpoena, upon
event, at or before the time specified therein proof of the service thereof and of the
if it is unreasonable and oppressive, or the failure of the witness, may issue a warrant
relevancy of the books, documents or things to the sheriff of the province, or his
does not appear, or if the person in whose deputy, to arrest the witness and bring
behalf the subpoena is issued fails to advance him before the court or officer where his
the reasonable cost of the production thereof. attendance is required, and the cost of
such warrant and seizure of such witness
The court may quash a subpoena ad shall be paid by the witness if the court
testificandum on the ground that the witness issuing it shall determine that his failure
is not bound thereby. In either case, the to answer the subpoena was willful and
subpoena may be quashed on the ground without just excuse. (11, R23)
that the witness fees and kilometrage allowed
by these Rules were not tendered when the Section 9. Contempt. — Failure by any
subpoena was served. (4a, R23) person without adequate cause to obey a
subpoena served upon him shall be
Section 5. Subpoena for depositions. — deemed a contempt of the court from
Proof of service of a notice to take a which the subpoena is issued. If the
deposition, as provided in sections 15 and 25 subpoena was not issued by a court, the
of Rule 23, shall constitute sufficient disobedience thereto shall be punished in
authorization for the issuance of subpoenas accordance with the applicable law or
for the persons named in said notice by the Rule. (12a R23)
clerk of the court of the place in which the
deposition is to be taken. The clerk shall not, Section 10. Exceptions. — The provisions
however, issue a subpoena duces tecum to of sections 8 and 9 of this Rule shall not
any such person without an order of the apply to a witness who resides more than
court. (5a, R23) one hundred (100) kilometers from his
residence to the place where he is to
Section 6. Service. — Service of a subpoena testify by the ordinary course of travel, or
shall be made in the same manner as to a detention prisoner if no permission of
personal or substituted service of summons. the court in which his case is pending was
The original shall be exhibited and a copy obtained. (9a, R23)
thereof delivered to the person on whom it is
served, tendering to him the fees for one VIATORY RIGHT
day's attendance and the kilometrage allowed Witness resides more than 100 kilometers from
by these Rules, except that, when a his residence to the place where he is to testify
subpoena is issued by or on behalf of the by the ordinary course of travel. In this case, he
Republic of the Philippines or an officer or cannot be compelled to attend the proceeding.
agency thereof, the tender need not be
made. The service must be made so as to REMEDY: Taking of DEPOSITIONS.
allow the witness a reasonable time for
preparation and travel to the place of NOTE: Viatory right is not applicable in criminal
attendance. If the subpoena is duces tecum, cases.

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Section 2. Effect of interruption. —
Subpoena; Viatory Right of Witness (2009) No.XI.B. The Should an act be done which effectively
viatory right of a witness served with a subpoena ad interrupts the running of the period, the
testificandum refers to his right not to comply with the allowable period after such interruption
subpoena. SUGGESTED ANSWER: FALSE. The viatory shall start to run on the day after notice of
right of a witness, embodied in Sec. 10, Rule 21 of the the cessation of the cause thereof.
Rules of Civil Procedure, refers to his right not to be
compelled to attend upon a subpoena, by reason of the The day of the act that caused the
distance from the residence of the witness to the place interruption shall be excluded in the
where he is to testify. It is available only in civil cases computation of the period. (n)
(People vs. Montejo, 21 SCRA 722 [1965]).
Discovery; Modes; Subpoena Duces Tecum (1997)

In an admiralty case filed by A against Y Shipping
Lines (whose principal offices are in Manila) in the RULES OF DISCOVERY
RTC, Davao City, the court issued a subpoena duces
tecum directing Y, the president of the shipping DISCOVERY is the disclosure of the facts
company, to appear and testify at the trial and to bring resting in the knowledge of the defendant, or is
with him several documents. the production of deeds, writings or things in his
(a) On what valid ground can Y refuse to comply with possession or power, in order to maintain the
the subpoena duces tecum? right or title of the party asking it, in a suit or
proceeding (Insular Life vs. CA, 238 SCRA 88)
(b) How can A take the testimony of Y and present the
documents as exhibits other than through the
PURPOSE: To enable the parties to obtain the
subpoena from the RTC?
SUGGESTED ANSWER:
fullest possible knowledge of the issues and
(a) Y can refuse to comply with the subpoena duces evidence long before the trial to prevent such
tecum on the ground that he resides more than 50 trial from being carried on the dark.
(now 100) kilometers from the place where he is to MODES OF DISCOVERY UNDER THE RULES
testify, (Sec. 9 of former Rule 23; Sec. 10 of new Rule 21). OF COURT;
1. Depositions pending action;(Rule 23)
(b) A can take the testimony of Y and present the
2. Depositions before action or pending
documents as exhibits by taking his deposition through
appeal;(Rule 24)
oral examination or written interrogatories. (Rule 24; new
3. Interrogatories to parties;(Rule 25)
Rule 23) He may also file a motion for the production or
4. Admission by adverse party;(Rule 26)
inspection of documents. (Rule 27).
ALTERNATIVE ANSWER:
5. Production or inspection of documents,
(a) The witness can also refuse to comply with the or things;(Rule 27)
subpoena duces tecum on the ground that the 6. Physical and mental examination of
persons.(Rule 28)
documents are not relevant and there was no tender of
fees for one day's attendance and the kilometrage
Modes of discovery are intended to be
allowed by the rules.
CUMULATIVE, and not alternative nor mutually
exclusive (Fortune Corp. vs. CA, 299 SCRA
376).
RULE 22
NOTE: Modes of discovery are not mandatory,
Computation of Time but failure to avail carries sanctions in Rule 25
and 26.
Section 1. How to compute time. — In
computing any period of time prescribed or Discovery; Modes of Discovery (2000)
Describe briefly at least five (5) modes of discovery
allowed by these Rules, or by order of the
under the Rules of Court. (5%)
court, or by any applicable statute, the day of SUGGESTED ANSWER:
the act or event from which the designated Five modes of discovery under the Rules of Court
period of time begins to run is to be excluded are:
and the date of performance included. If the 1 DEPOSITION. By leave of court after jurisdiction
last day of the period, as thus computed, falls has been obtained over any defendant or over
on a Saturday a Sunday, or a legal holiday in property which is the subject of the action, or
the place where the court sits, the time shall without such leave after an answer has been served,
not run until the next working day. (a) the testimony of any person, whether a party or not,

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may be taken, at the instance of any party, by deposition DEPOSITION
pon oral examination or written interrogatories. (Sec. 1, It is a written testimony of a witness given in the
Rule 23, 1997 Rules of Civil Procedure.) course of a judicial proceeding in advance of the
2 INTERROGATORIES TO PARTIES. Under the same trial or hearing upon oral examination or in
conditions specified in section 1 of Rule 23, any party response to written interrogatories and where an
shall file and serve upon any adverse party written opportunity is given for cross examination.
interrogatories regarding material and relevant facts to be
answered by the party served. (Sec. 1, Rule 25, 1997 Rules of Depositions are different from affidavits since
Civil Procedure.) the latter are ex parte statements without formal
3 ADMISSION BY ADVERSE PARTY. At any time after interrogation and an opportunity for cross
issues have been joined, a party may file and serve upon examination, affidavits are NOT ADMISSIBLE IN
any other party a written request for the admission by EVIDENCE EXCEPT in cases governed by the
the latter of the genuineness of any material and relevant Rule on Summary Procedure.
document or of the truth of any material and relevant
matter of fact. (Sec. 1, Rule 26, 1997 Rules of Civil Procedure.) Depositions are intended as a means to compel
4. PRODUCTION OR INSPECTION OF DOCUMENTS disclosure of facts resting in the knowledge of a
OR THINGS. Upon motion of any party showing good party or other persons, which are relevant in a
suit or proceeding.
cause therefore, a court may order any party to produce
and permit the inspection and copying or photographing
NOTE: Depositions are not allowed in criminal
of any designated documents, etc. or order any party to
cases.
permit entry upon designated land or property for
Ratio: the RIGHT OF CONFRONTATION.
inspecting, measuring, surveying, or photographing the
property or any designated relevant object or operation
thereon. (Sec. 1, Rule 27, 1997 Rule 27 Rules of Civil Procedure.) CLASSIFICATON OF DEPOSITIONS
1. Depositions on ORAL EXAMINATION
Discovery; Modes of Discovery; Refusal to Comply
and depositions upon WRITTEN
(2010) No.II. On August 13, 2008, A, as shipper and INTERROGATORIES;
consignee, loaded on the M/V Atlantis in Legaspi City 2. Depositions DE BENE ESSE- Those
100,000 pieces of century eggs. The shipment arrived in taken for purposes of a pending action
Manila totally damaged on August 14, 2008. A filed (rule 23); and
before the Metropolitan Trial Court (MeTC) of Manila a 3. Depositions IN PERPETUAM REI
complaint against B Super Lines, Inc. (B Lines), owner of MEMORIAM (Rule 24)
the M/V Atlantis, for recovery of damages amounting to
P167,899. He attached to the complaint the Bill of Discovery; Modes; Subpoena Duces Tecum (1997)
Lading. (c) On July 21, 2009, B Lines served on A a In an admiralty case filed by A against Y Shipping
"Notice to Take Deposition," setting the deposition on Lines (whose principal offices are in Manila) in the
July 29, 2009 at 8:30 a.m. at the office of its counsel in RTC, Davao City, the court issued a subpoena duces
Makati. A failed to appear at the deposition-taking, tecum directing Y, the president of the shipping
despite notice. As counsel for B Lines, how would you company, to appear and testify at the trial and to
proceed? (3%) SUGGESTED ANSWER: As counsel for B bring
lines (which gave notice to take the deposition), I shall with him several documents.
proceed as follows: (a) Find out why A failed to appear (a) On what valid ground can Y refuse to comply
at the deposition taking, despite notice; (b) If failure with
was for valid reason, then set another date for taking the subpoena duces tecum?
(b) How can A take the testimony of Y and present
the deposition. (c) If failure to appear at deposition
the
taking was without valid reason, then I would file a
documents as exhibits other than through the
motion/application in the court where the action is
subpoena from the RTC?
pending, for and order to show cause for his refusal to SUGGESTED ANSWER:
submit to the discovery; and (d) For the court to issue (a) Y can refuse to comply with the subpoena duces
appropriate Order provided under Rule 29 of the Rules, tecum on the ground that he resides more than 50
for noncompliance with the show-cause order, aside (now 100) kilometers from the place where he is to
from contempt of court. testify, (Sec. 9 of former Rule 23; Sec. 10 of new Rule 21).
(b) A can take the testimony of Y and present the
documents as exhibits by taking his deposition
RULE 23 through
oral examination or written interrogatories. (Rule 24;
new
Depositions Pending Action

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Rule 23) He may also file a motion for the production or 3. Not restricted by a protective order.
inspection of documents. (Rule 27). (sec.16 and 18)
ALTERNATIVE ANSWER:
(a) The witness can also refuse to comply with the Section 3. Examination and cross-
subpoena duces tecum on the ground that the
examination. — Examination and cross-
documents are not relevant and there was no tender of
examination of deponents may proceed as
fees for one day's attendance and the kilometrage
permitted at the trial under sections 3 to
allowed by the rules.
18 of Rule 132. (3a, R24)
Section 1. Depositions pending action,

Section 4. Use of depositions. — At the
when may be taken. — By leave of court
trial or upon the hearing of a motion or an
after jurisdiction has been obtained over any
interlocutory proceeding, any part or all of
defendant or over property which is the
a deposition, so far as admissible under
subject of the action, or without such leave
the rules of evidence, may be used
after an answer has been served, the
against any party who was present or
testimony of any person, whether a party or
represented at the taking of the
not, may be taken, at the instance of any
deposition or who had due notice thereof,
party, by deposition upon oral examination or
in accordance with any one of the
written interrogatories. The attendance of
following provisions;
witnesses may be compelled by the use of a
subpoena as provided in Rule 21. Depositions
shall be taken only in accordance with these (a) Any deposition may be used by any
Rules. The deposition of a person confined in party for the purpose of contradicting or
prison may be taken only by leave of court on impeaching the testimony of deponent as
such terms as the court prescribes. (1a, R24) a witness;
WHEN TAKEN (b) The deposition of a party or of any one

who at the time of taking the deposition
A. WITH LEAVE OF COURT: was an officer, director, or managing
1. After jurisdiction has been obtained over agent of a public or private corporation,
any defendant or over the property which is partnership, or association which is a
the subject matter of the action but party may be used by an adverse party
BEFORE an answer has been filed; and for any purpose;
2. Deposition of person confined in prison.
(c) The deposition of a witness, whether
B. WITHOUT LEAVE OF COURT: or not a party, may be used by any party
1. After answer has been filed; for any purpose if the court finds: (1) that
2. Deponent not confined in prison.
the witness is dead, or (2) that the
witness resides at a distance more than
one hundred (100) kilometers from the
Section 2. Scope of examination. — Unless place of trial or hearing, or is out of the
otherwise ordered by the court as provided Philippines, unless it appears that his
by section 16 or 18 of this Rule, the deponent absence was procured by the party
may be examined regarding any matter, not offering the deposition, or (3) that the
privileged, which is relevant to the subject of witness is unable to attend or testify
the pending action, whether relating to the because of age, sickness, infirmity, or
claim or defense of any other party, including imprisonment, or (4) that the party
the existence, description, nature, custody, offering the deposition has been unable to
condition, and location of any books, procure the attendance of the witness by
documents, or other tangible things and the subpoena; or (5) upon application and
identity and location of persons having notice, that such exceptional
knowledge of relevant facts. (2, R24) circumstances exist as to make it
desirable, in the interest of justice and
SCOPE OF EXAMINATION with due regard to the importance of
1. Relevant; presenting the testimony of witnesses
2. Not privileged; orally in open court, to allow the
deposition to be used; and

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(d) If only part of a deposition is offered in taken and duly filed in the former action
evidence by a party, the adverse party may may be used in the latter as if originally
require him to introduce all of it which is taken therefor. (5, R24)
relevant to the part introduced, and any party
may introduce any other parts. (4a, R24) Bar Exam Question 2011
(25) A sued B for ejectment. Pending trial, B
. died, survived by his son, C. No
Certiorari will not lie against an order substitution of party defendant was made.
admitting or rejecting a deposition in Upon finality of the judgment against B,
evidence. The remedy being an appeal from may the same be enforced against C? (A)
the final judgment. Yes, because the case survived B‟s death
and the effect of final judgment in an
Bar Exam Question 2012 ejectment case binds his successors in-
89. The deposition of a witness, whether or not interest. (B) No, because C was denied due
a party, may be used for any purpose if the process. (C) Yes, because the negligence of
Court finds the following circumstances are B’s counsel in failing to ask for
attendant, EXCEPT: substitution, should not prejudice A. (D)
a. when the witness is dead. No, because the action did not survive B’s
b. when the witness is incarcerated. death.
c. when the witness is outside the
Philippines and absence is procured by the Section 6. Objections to admissibility.
party offering deposition. — Subject to the provisions of section 29
d. when the witness is 89 years old and bed- of this Rule, objection may be made at the
ridden. trial or hearing, to receiving in evidence
SUGGESTED ANSWER: any deposition or part thereof for any
(c), The deposition of a witness, whether or reason which would require the exclusion
not a party, may be used by any party for of the evidence if the witness were then
any purpose if the court finds: (1) that the present and testifying (6, R24)
witness is dead; (2) that the witness resides
at a distance more than one hundred (100)
Section 7. Effect of taking depositions.
kilometres from the place of trial or
— A party shall not be deemed to make a
hearing, or is out of the Philippines, unless
person his own witness for any purpose by
it appears that his absence was procured by
taking his deposition. (7, R24)
the party offering the deposition; (3) that
the witness is unable to attend or testify
because of age, sickness, infirmity, or Reason: The taking of depositions is for
imprisonment; (4) that the party offering purposes of discovery and not for use as
the deposition has been unable to procure evidence.
the attendance of the witness by subpoena;
or (5) upon application and notice, that Section 8. Effect of using depositions.
such exceptional circumstances exist to — The introduction in evidence of the
make it desirable, in the interest of justice deposition or any part thereof for any
and with due regard to the importance of purpose other than that of contradicting or
presenting the testimony of the witnesses impeaching the deponent makes the
orally in open court, to allow the deposition deponent the witness of the party
to be used. (Rule 23, Sec. 4 (c), Rules of introducing the deposition, but this shall
Court). not apply to the use by an adverse party
of a deposition as described in paragraph
(b) of section 4 of this Rule. (8, R24)
Section 5. Effect of substitution of
parties. — Substitution of parties does not Section 9. Rebutting deposition. — At
affect the right to use depositions previously the trial or hearing any party may rebut
taken; and, when an action has been any relevant evidence contained in a
dismissed and another action involving the deposition whether introduced by him or
same subject is afterward brought between by any other party. (9, R24)
the same parties or their representatives or
successors in interest, all depositions lawfully

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Section 10. Persons before whom Note that it is only a sort of a request to the
depositions may be taken within the foreign court. It is coursed through the DFA.
Philippines. — Within the Philippines
depositions may be taken before any judge, The foreign court has the power to compel the
notary public, or the person referred to in taking of depositions.
section 14 hereof. (10a, R24)
Section 13. Disqualification by interest.
Within the Philippines: — No deposition shall be taken before a
1. Judge; person who is a relative within the sixth
2. Notary public; degree of consanguinity or affinity, or
3. Any person authorized to administer oaths, employee or counsel of any of the parties,
as stipulated by the parties (sec. 14) or who is a relative within the same
degree, or employee of such counsel; or
Section 11. Persons before whom who is financially interested in the action.
depositions may be taken in foreign (13a, R24)
countries. — In a foreign state or country,
depositions may be taken (a) on notice Section 14. Stipulations regarding
before a secretary of embassy or legation, taking of depositions. — If the parties
consul general, consul, vice-consul, or so stipulate in writing, depositions may be
consular agent of the Republic of the taken before any person authorized to
Philippines, (b) before such person or officer administer oaths, at any time or place, in
as may be appointed by commission or under accordance with these Rules and when so
letters rogatory; or (c) the person referred to taken may be used like other depositions.
in section 14 hereof. (11a, R24) (14a, R24)
Section 12. Commission or letters Section 15. Deposition upon oral

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

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

________________________________________________________________________________________________
state on the record the fact of the waiver or counsel in so attending, including
of the illness or absence of the witness or the reasonable attorney's fees. (24a, R24)
fact of the refusal to sign together with the
reason be given therefor, if any, and the Section 25. Deposition upon written
deposition may then be used as fully as interrogatories; service of notice and
though signed, unless on a motion to of interrogatories. — A party desiring to
suppress under section 29 (f) of this Rule, the take the deposition of any person upon
court holds that the reasons given for the written interrogatories shall serve them
refusal to sign require rejection of the upon every other party with a notice
deposition in whole or in part. (19a, R24) stating the name and address of the
person who is to answer them and the
Section 20. Certification, and filing by name or descriptive title and address of
officer. — The officer shall certify on the the officer before whom the deposition is
deposition that the witness was duly sworn to to be taken. Within ten (10) days
by him and that the deposition is a true thereafter, a party so served may serve
record of the testimony given by the witness. cross-interrogatories upon the party
He shall then securely seal the deposition in proposing to take the deposition. Within
an envelope indorsed with the title of the five (5) days thereafter, the latter may
action and marked "Deposition of (here insert serve re-direct interrogatories upon a
the name of witness)" and shall promptly file party who has served cross-
it with the court in which the action is interrogatories. Within three (3) days
pending or send it by registered mail to the after being served with re-direct
clerk thereof for filing. (20, R24) interrogatories, a party may serve
recross-interrogatories upon the party
Section 21. Notice of filing. — The officer proposing to take the deposition. (25,
taking the deposition shall give prompt notice R24)
of its filing to all the parties. (21, R24)
Section 22. Furnishing copies. — Upon

payment of reasonable charges therefor, the Section 26. Officers to take responses
officer shall furnish a copy of the deposition and prepare record. — A copy of the
to any party or to the deponent. (22, R24) notice and copies of all interrogatories
served shall be delivered by the party
Section 23. Failure to attend of party taking the deposition to the officer
giving notice. — If the party giving the designated in the notice, who shall
notice of the taking of a deposition fails to proceed promptly, in the manner provided
attend and proceed therewith and another by sections 17, 19 and 20 of this Rule, to
attends in person or by counsel pursuant to take the testimony of the witness in
the notice, the court may order the party response to the interrogatories and to
giving the notice to pay such other party the prepare, certify, and file or mail the
amount of the reasonable expenses incurred deposition, attaching thereto the copy of
by him and his counsel in so attending, the notice and the interrogatories received
including reasonable attorney's fees. (23a, by him. (26, R24)
R24)
Section 27. Notice of filing and
Section 24. Failure of party giving notice furnishing copies. — When a deposition
to serve subpoena. — If the party giving upon interrogatories is filed, the officer
the notice of the taking of a deposition of a taking it shall promptly give notice thereof
witness fails to serve a subpoena upon him to all the parties, and may furnish copies
and the witness because of such failure does to them or to the deponent upon payment
not attend, and if another party attends in of reasonable charges therefor. (27, R24)
person or by counsel because he expects the
deposition of that witness to be taken, the Section 28. Order for the protection of
court may order the party giving the notice to parties and deponents. — After the
pay to such other party the amount of the service of the interrogatories and prior to
reasonable expenses incurred by him and his the taking of the testimony of the

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deponent, the court in which the action is in writing upon the party propounding
pending, on motion promptly made by a them within the time allowed for serving
party or a deponent, and for good cause succeeding cross or other interrogatories
shown, may make any order specified in and within three (3) days after service of
sections 15, 16 and 18 of this Rule which is the last interrogatories authorized.
appropriate and just or an order that the
deposition shall not be taken before the (f) As to manner of preparation. — Errors
officer designated in the notice or that it shall and irregularities in the manner in which
not be taken except upon oral examination. the testimony is transcribed or the
(28a, R24) deposition is prepared, signed, certified,
sealed, indorsed, transmitted, filed, or
Section 29. Effect of errors and otherwise dealt with by the officer under
irregularities in depositions. — sections 17, 19, 20 and 26 of this Rule are
waived unless a motion to suppress the
(a) As to notice. — All errors and deposition or some part thereof is made
irregularities in the notice for taking a with reasonable promptness after such
deposition are waived unless written defect is, or with due diligence might have
objection is promptly served upon the party been, ascertained. (29a, R24)
giving the notice.
(b) As to disqualification of officer. —

Objection to taking a deposition because of RULE 24
disqualification of the officer before whom it
is to be taken is waived unless made before Depositions Before Action or Pending
the taking of the deposition begins or as soon Appeal
thereafter as the disqualification becomes
known or could be discovered with NOTE: A deposition before action and a
reasonable diligence. deposition pending appeal are referred to as
perpetuation of testimony or perpetuam rei
(c) As to competency or relevancy of memoriam because their objective is to
evidence. — Objections to the competency of perpetuate the testimony of a witness for future
witness or the competency, relevancy, or use.
materiality of testimony are not waived by
failure to make them before or during the Depositions under this Rule are also taken
taking of the deposition, unless the ground, conditionally, to be used at the trial only in case
the deponent is not available.
of the objection is one which might have
been obviated or removed if presented at
Depositions under this Rule do not prove the
that time.
existence of any right and the testimony
perpetuated is not in itself conclusive proof,
(d) As to oral examination and other either of the existence of any right nor even of
particulars. — Errors and irregularities facts to which they relate, as it can be
occurring at the oral examination in the controverted at the trial in the same manner as
manner of taking the deposition in the form though no perpetuation of testimony was ever
of the questions or answers, in the oath or made.
affirmation, or in the conduct of the parties
and errors of any kind which might be However, in the absence of any objection to its
obviated, removed, or cured if promptly taking, and even if the deponent did not testify at
prosecuted, are waived unless reasonable the hearing, the perpetuated testimony
objection thereto is made at the taking of the constitutes prima facie proof of the facts referred
deposition. to in the deposition.
(e) As to form of written interrogatories. — Section 1. Depositions before action;

Objections to the form of written petition. — A person who desires to
interrogatories submitted under sections 25 perpetuate his own testimony or that of
and 26 of this Rule are waived unless served another person regarding any matter that
may be cognizable in any court of the

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Philippines may file a verified petition in the the examination and whether the
court of the place of the residence of any depositions shall be taken upon oral
expected adverse party. (1a R134) examination or written interrogatories.
The depositions may be taken in
NOTE: This may be availed of only in civil cases accordance with Rule 23 before the
and not in criminal cases. hearing. (4a, R134)
Section 2. Contents of petition. — The Section 5. Reference to court. — For the

petition shall be entitled in the name of the purpose of applying Rule 23 to depositions
petitioner and shall show: for perpetuating testimony, each
reference therein to the court in which the
(a) that the petitioner expects to be a party action is pending shall be deemed to refer
to an action in a court of the Philippines but is to the court in which the petition for such
presently unable to bring it or cause it to be deposition was filed. (5a, R134)
brought;
Section 6. Use of deposition. — If a
(b) the subject matter of the expected action deposition to perpetuate testimony is
and his interest therein; taken under this Rule, or if, although not
so taken, it would be admissible in
(c) the facts which he desires to establish by evidence, it may be used in any action
the proposed testimony and his reasons for involving the same subject matter
desiring to perpetuate it; subsequently brought in accordance with
the provisions of sections 4 and 5 of Rule
23. (6a, R134)
(d) the names or a description of the persons
he expects will be adverse parties and their
addresses so far as known; and Section 7. Depositions pending appeal.
— If an appeal has been taken from a
judgment of a court, including the Court
(e) the names and addresses of the persons
of Appeals in proper cases, or before the
to be examined and the substance of the
taking of an appeal if the time therefor
testimony which he expects to elicit from
has not expired, the court in which the
each, and shall ask for an order authorizing
judgment was rendered may allow the
the petitioner to take the depositions of the
taking of depositions of witnesses to
persons to be examined named in the petition
perpetuate their testimony for in the
for the purpose of perpetuating their
event of further proceedings in the said
testimony. (2, R134)
court. In such case the party who desires
to perpetuate the testimony may make a
Section 3. Notice and service. — The motion in the said court for leave to take
petitioner shall serve a notice upon each the depositions, upon the same notice and
person named in the petition as an expected service thereof as if the action was
adverse party, together with a copy of the pending therein.
petition, stating that the petitioner will apply
to the court, at a time and place named
The motion shall state:
therein, for the order described in the
petition. At least twenty (20) days before the
date of the hearing, the court shall cause (a) the names and addresses of the
notice thereof to be served on the parties and persons to be examined and the
prospective deponents in the manner substance of the testimony which he
provided for service of summons. (3a, R134) expects to elicit from each, and
Section 4. Order and examination. — If the (b) the reason for perpetuating their
court is satisfied that the perpetuation of the testimony.
testimony may prevent a failure or delay of
justice, it shall make an order designating or If the court finds that the perpetuation of
describing the persons whose deposition may the testimony is proper to avoid a failure
be taken and specifying the subject matter of or delay of justice, it may make an order

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allowing the deposition to be taken, and 1. WITHOUT LEAVE OF COURT. After
thereupon the depositions may be taken and answer has been served, for the first set of
used in the same manner and under the interrogatories.
same conditions as are prescribed in these 2. WITH LEAVE OF COURT. Before answer
Rules for depositions taken in pending has been served.
actions. (7a, R134) REASON: At the time, the issues are not yet
joined and the disputed facts are not yet
clear, when more than one set of
Note: Depositions are taken pending appeal with
interrogatories is to be served.
the view to their being used in the event of further
proceedings in the COURT OF ORIGIN or
APPELATE COURT. NOTE: Written interrogatories are addressed to
the party and not to the lawyer. But answer can,
For example, any party may perpetuate the however, be made by the counsel.
testimony of a witness which was objected by the
adverse party and ruled out by the court. If the Section 2. Answer to interrogatories.
appellate should reverse the decision/order of the — The interrogatories shall be answered
lower court, it could admit deposition as additional fully in writing and shall be signed and
evidence or remand the case back to the lower sworn to by the person making them. The
court for such admission in accordance with party upon whom the interrogatories have
sections 4 and 5 of Rule 23. been served shall file and serve a copy of
the answers on the party submitting the
interrogatories within fifteen (15) days
after service thereof unless the court on
RULE 25 motion and for good cause shown,
extends or shortens the time. (2a)
Interrogatories to Parties
Note: A judgment by default may be rendered
PURPOSE: To elicit facts from an adverse party against a party who fails to answer written
(answers may also be used as admissions of the interrogatories.
adverse party).
Section 3. Objections to
Written interrogatories and the answers thereto interrogatories. — Objections to any
must be FILED and SERVED. Hence, the answers interrogatories may be presented to the
may constitute JUDICIAL ADMISSIONS (sec. 4, court within ten (10) days after service
Rule 129)
thereof, with notice as in case of a
motion; and answers shall be deferred
until the objections are resolved, which
Interrogatories Bill of Particulars
shall be at as early a time as is
A party may properly A party may properly
seek disclosure of seek disclosure only of practicable. (3a)
matters of proof which matters which define
later be made a part of the issues and become Bar Exam Question 2012
the records as evidence part of the pleadings 88. An objection to any interrogatories may
be presented within_ days after service
thereof:
Section 1. Interrogatories to parties;
a. 15;
service thereof. — Under the same
b. 10;
conditions specified in section 1 of Rule 23,
c. 5;
any party desiring to elicit material and
d. 20.
relevant facts from any adverse parties shall SUGGESTED ANSWER: (b), Objections to
file and serve upon the latter written any interrogatories may be presented to
interrogatories to be answered by the party the court within ten (10) days after
served or, if the party served is a public or service thereof, with notice as in case of
private corporation or a partnership or motion. Upon filing of the
association, by any officer thereof competent aforementioned objections, the answer
to testify in its behalf. (1a) to such written interrogatories shall be
deferred until the objections are
A party may serve written interrogatories: resolved, which shall be at as early a

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time as is practicable. (Rule 25, Sec.3, Rules Admission by Adverse Party
of Court).
PURPOSE: To expedite trial and relieve the
Section 4. Number of interrogatories. — parties of the costs of proving facts which will
No party may, without leave of court, serve not be disputed on trial and the truth of which
more than one set of interrogatories to be can be ascertained with reasonable inquiry.
answered by the same party. (4)
Section 1. Request for admission. — At
Section 5. Scope and use of any time after issues have been joined, a
interrogatories. — Interrogatories may party may file and serve upon any other
relate to any matters that can be inquired party a written request for the admission
into under section 2 of Rule 23, and the by the latter of the genuineness of any
answers may be used for the same purposes material and relevant document described
provided in section 4 of the same Rule. (5a) in and exhibited with the request or of the
truth of any material and relevant matter
Section 6. Effect of failure to serve of fact set forth in the request. Copies of
written interrogatories. — Unless the documents shall be delivered with the
thereafter allowed by the court for good request unless copies have already been
cause shown and to prevent a failure of furnished. (1a)
justice, a party not served with written
interrogatories may not be compelled by the Bar Exam Question 2012
adverse party to give testimony in open 55. As a mode of discovery, the best way to
court, or to give a deposition pending appeal. obtain an admission from any party
(n) regarding the genuineness of any material
and relevant document is through a:
a. motion for production of documents.
Note: The sanction adopted by the Rules is not one
b. written interrogatories.
of compulsion in the sense that the party is being
compelled to avail of the discovery mechanics, but c. request for admission under Rule 26.
one of negation by depriving him of evidentiary d. request for subpoena duces tecum.
sources which would otherwise have been SUGGESTED ANSWER:
accessible to him. (c), At any time after issues have been
joined, a party may file and serve upon
any other party a written request for the
Deposition Upon Interrogatories to admission by the latter of the
Written Parties (Rule 25) genuineness of any material and relevant
Interrogatories to document described in and exhibited
Parties (Rule 23, sec. with the request or of the truth of any
25) material and relevant matter of fact set
As to deponent: party or As to deponent: party forth in the request. (Rule 26, Sec.1,
ordinary witness only Rules of Court). A request for admission
As to procedure; with As to procedure: no is not intended to merely reproduce or
intervention of the intervention. Written reiterate the allegations of the
officer authorized to interrogatories are evidentiary matters of fact described in
take deposition directed to the party the request, whose purpose is to
himself establish said party‟s cause of action or
As to scope: direct, As to scope: only one defense. Unless it serves that purpose, it
cross, redirect, re-cross set of interrogatories is pointless, useless, and a mere
No fixed time 15 days to answer redundancy. (Limos vs. Spouses Odones,
unless extended or G.R. No. 186979, August 11, 2010).
reduced by the court
What request may include:

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

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2. Admission of the truth of any material and Section 3. Effect of admission. — Any
relevant matter of fact set forth in the admission made by a party pursuant to
request; such request is for the purpose of the
3. Under this rule, a matter of fact not related pending action only and shall not
to any documents may be presented to the constitute an admission by him for any
other party for admission or denial. other purpose nor may the same be used
against him in any other proceeding. (3)
REQUEST FOR ADMISSION VS. ACTIONABLE
DOCUMENT
Note: admission by plaintiff upon written request
A request for admission is proper when the for admission by defendant is still binding upon
genuineness of an evidentiary document is sought the plaintiff despite filing of amended complaint
to be admitted. If not denied under oath, its after admission (Bay View Hotel vs. Ker & Co,
genuineness is deemed impliedly admitted. Ltd, 116 SCRA 327).
An actionable document or a copy thereof must be Section 4. Withdrawal. — The court may
attached to the complaint or copied therein. Its allow the party making an admission
genuineness and due execution are deemed under the Rule, whether express or
impliedly admitted unless specifically denied under implied, to withdraw or amend it upon
oath by the adverse party. such terms as may be just. (4)
Section 2. Implied admission. — Each of Section 5. Effect of failure to file and

the matters of which an admission is serve request for admission. — Unless
requested shall be deemed admitted unless, otherwise allowed by the court for good
within a period designated in the request, cause shown and to prevent a failure of
which shall not be less than fifteen (15) days justice a party who fails to file and serve a
after service thereof, or within such further request for admission on the adverse
time as the court may allow on motion, the party of material and relevant facts at
party to whom the request is directed files issue which are, or ought to be, within the
and serves upon the party requesting the personal knowledge of the latter, shall not
admission a sworn statement either denying be permitted to present evidence on such
specifically the matters of which an admission facts. (n)
is requested or setting forth in detail the
reasons why he cannot truthfully either admit Note: Material averments in the complaint which
or deny those matters. are already specifically denied in the answer
cannot be the proper subjects of a request for
Objections to any request for admission shall admission. Defendant need not act on such
be submitted to the court by the party request (Duque vs. CA, L-125383, July 2, 2002).
requested within the period for and prior to
the filing of his sworn statement as
contemplated in the preceding paragraph and
his compliance therewith shall be deferred RULE 27
until such objections are resolved, which
resolution shall be made as early as Production or Inspection of
practicable. (2a) Documents or Things
Note: The effect of failure to make a reply to a Note: This Rule applies only to a pending action
request for admission is that each of the matters of and the documents or the things subject of the
which an admission is requested is deemed motion must be only those within the
admitted. possession, control or custody of a party.
The REMEDY of the party, in this case, is to file a
Section 1. Motion for production or
motion to be relieved of the consequences of
the implied admission. The amendment of the inspection; order. — Upon motion of any
complaint per se cannot set aside the legal effects party showing good cause therefor, the
of the request for admission since its materiality has court in which an action is pending may
not been affected by the amendment. (a) order any party to produce and permit
the inspection and copying or

________________________________________________________________________________________________
photographing, by or on behalf of the moving information sought by BTC. Resolve BTC’s
party, of any designated documents, papers, motion with reasons. (3%) SUGGESTED
books, accounts, letters, photographs, ANSWER:
objects or tangible things, not privileged, I will deny the motion. The ingredients
which constitute or contain evidence material and chemical components of CCC‟s
to any matter involved in the action and products are trade secrets within the
which are in his possession, custody or contemplation of the law. Trade secrets
control, or (b) order any party to permit may not be the subject of compulsory
entry upon designated land or other property disclosure by reason of their confidential
in his possession or control for the purpose of and privileged character. Otherwise, CCC
inspecting, measuring, surveying, or would eventually be exposed to
unwarranted business competition with
photographing the property or any
others who may imitate and market the
designated relevant object or operation
same kinds of products in violation of
thereon. The order shall specify the time,
CCC‟s proprietary rights. Being
place and manner of making the inspection
privileged, the detailed list of
and taking copies and photographs, and may ingredients and chemical components
prescribe such terms and conditions as are may not be the subject of mode of
just. (1a) discovery under Rule 27, Section 1
which expressly makes privileged
Production of documents affords more opportunity information an exception from its
of discovery than a subpoena duces tecum. coverage (Air Philippines Corporation vs.
However, the rule is not intended as a dragnet or Pennswell, Inc., 540 SCRA 215 [2007]).
any fishing expedition.
In a petition for the production of papers and PRODUCTION OR

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

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deposition upon oral examination or written obey the order of the court for the production and
interrogatories. (Sec. 1, Rule 23, 1997 Rules of Civil Procedure.) inspection of the promissory note. [Rule 29 Sec.(c)].
2 INTERROGATORIES TO PARTIES. Under the
same conditions specified in section 1 of Rule 23, any
party shall file and serve upon any adverse party written RULE 28
interrogatories regarding material and relevant facts to be
answered by the party served. (Sec. 1, Rule 25, 1997 Rules of Physical and Mental Examination of
Civil Procedure.)
Persons
3 ADMISSION BY ADVERSE PARTY. At any time
after issues have been joined, a party may file and serve
upon any other party a written request for the Section 1. When examination may be
admission by the latter of the genuineness of any ordered. — In an action in which the
material and relevant document or of the truth of any mental or physical condition of a party is
material and relevant matter of fact. in controversy, the court in which the
(Sec. 1, Rule 26, 1997 Rules of Civil Procedure.) action is pending may in its discretion
4. PRODUCTION OR INSPECTION OF DOCUMENTS order him to submit to a physical or
OR THINGS. Upon motion of any party showing good mental examination by a physician. (1)
cause therefore, a court may order any party to produce
and permit the inspection and copying or photographing  The mental condition of a party is in
of any designated documents, etc. or order any party to controversy in proceedings for
permit entry upon designated land or property for GUARDIANSHIP over an imbecile or insane
inspecting, measuring, surveying, or photographing the person, while physical condition of the party
property or any designated relevant object or operation is generally involved in physical injuries
thereon. (Sec. 1, Rule 27, 1997 Rule 27 Rules of Civil Procedure.) cases.
Discovery; Production and Inspection of Documents Since the results of the examination is intended
(2002) to be made public, the same are not covered by
The plaintiff sued the defendant in the RTC to collect the physician-patient privilege (sec. 24[b],
on a promissory note, the terms of which were stated in Rule 130)
the complaint and a photocopy attached to the
complaint as an annex. Before answering, the defendant Rights of the Accused; Validity; HIV Test (2005)
filed a motion for an order directing the plaintiff to Under Republic Act No. 8353, one may be charged with
produce the original of the note so that the defendant andfound guilty of qualified rape if he knew on or before
thecommission of the crime that he is afflicted with
could inspect it and verify his signature and the
Human Immuno-Deficiency Virus (HIV)/Acquired
handwritten entries of the dates and amounts. ImmuneDeficiency Syndrome (AIDS) or any other
1 Should the judge grant the defendant’s motion for sexuallytransmissible disease and the virus or disease is
production and inspection of the original of the transmitted tothe victim. Under Section 17(a) of Republic
promissory Act No. 8504 the court may compel the accused to submit
note? Why? (2%) himself to a blood test where blood samples would be
2 Assuming that an order for production and extracted from his veins todetermine whether he has HIV.
inspection was issued but the plaintiff failed to comply (8%)
with it, how should the defendant plead to the alleged a) Are the rights of the accused to be presumed
execution of the note? (3%) innocent of the crime charged, to privacy, and
SUGGESTED ANSWER: against self-incrimination violated by such
(1) Yes, because upon motion of any party showing compulsory testing?
good cause, the court in which the action is pending Explain.
SUGGESTED ANSWER:
may order any party to produce and permit the
inspection of designated documents. (Rule 27). The No. The court may compel the accused to submit
defendant has the right to inspect and verify the himself to a blood test to determine whether he has
original of the promissory note so that he could HIV under Sec. 17(a) of R.A. No, 8054. His rights to
intelligently prepare his answer. be presumed innocent of the crime charged, to
(2) The defendant is not required to deny under oath privacy and against self-incrimination are not
the genuineness and due execution of the promissory violated by such compulsory testing. In an action in
note, because of the non-compliance by the plaintiff which the physical condition of a party is in
with the order for production and inspection of the controversy, the court may order the accused to
original thereof. (Rule 8, sec. 8). submit to a physical examination. (Sec. 1, Rule 28, 1997
ALTERNATIVE ANSWER:
Rules of Civil Procedure)(Look for citation of latest case, in 2004)
b) If the result of such test shows that he is HIV
(2) The defendant may file a motion to dismiss the
complaint because of the refusal of the plaintiff to

________________________________________________________________________________________________
positive, and the prosecution offers such result in deposition of the examiner, the party
evidence to prove the qualifying circumstance under the examined waives any privilege he may
Information for qualified rape, should the court reject have in that action or any other involving
such result on the ground that it is the fruit of a
poisonous tree? Explain. the same controversy, regarding the
SUGGESTED ANSWER: testimony of every other person who has
Since the rights of the accused are not violated because examined or may thereafter examine him
the compulsory testing is authorized by the in respect of the same mental or physical
law, the result of the testing cannot be considered to be the examination. (4)
fruit of a poisonous tree and can be offered in evidence to
prove the qualifying circumstance under the information for Where the party examined requests and obtains
qualified rape under R.A. No. 8353. The fruit, of the
a report on the results of the examination, the
poisonous tree doctrine refers to that rule of evidence that
excludes any evidence which may have been derived or consequences are:
acquired from a tainted or polluted source. Such evidence is 1. He has to furnish the other party a copy
inadmissible for having emanated from spurious origins. The of the report of any previous or
doctrine, however, does not apply to the results obtained subsequent examination of the same
pursuant to Sec. 1, Rule 28, 1997 Rules of Civil Procedure, as physical and mental condition; and
it does not contemplate a search within the moaning of the 2. He waives any privilege he may have in
law. (People v. Montilla, G.R. No. 123872, January 30,1998) that action or any other involving the
same controversy, regarding the
Section 2. Order for examination. — The testimony of every other person who
order for examination may be made only on has examined or may thereafter
motion for good cause shown and upon notice examine him in respect of the same
mental or physical examination.
to the party to be examined and to all other
parties, and shall specify the time, place,
manner, conditions and scope of the RULE 29
examination and the person or persons by
whom it is to be made. (2) Refusal to Comply with Modes of
Discovery
REQUISITES: (clue words)
1. Motion; Section 1. Refusal to answer. — If a
2. Good cause party or other deponent refuses to answer
3. Notice; any question upon oral examination, the
4. Specify time and place. examination may be completed on other
matters or adjourned as the proponent of
Section 3. Report of findings. — If the question may prefer. The proponent
requested by the party examined, the party may thereafter apply to the proper court
causing the examination to be made shall of the place where the deposition is being
deliver to him a copy of a detailed written taken, for an order to compel an answer.
report of the examining physician setting out The same procedure may be availed of
his findings and conclusions. After such when a party or a witness refuses to
request and delivery, the party causing the answer any interrogatory submitted under
examination to be made shall be entitled, Rules 23 or 25.
upon request, to receive from the party
examined a like report of any examination, If the application is granted, the court
previously or thereafter made, of the same shall require the refusing party or
mental or physical condition. If the party deponent to answer the question or
examined refuses to deliver such report, the interrogatory and if it also finds that the
court on motion and notice may make an refusal to answer was without substantial
order requiring delivery on such terms as are justification, it may require the refusing
just, and if a physician fails or refuses to party or deponent or the counsel advising
make such a report the court may exclude his the refusal, or both of them, to pay the
testimony if offered at the trial. (3a) proponent the amount of the reasonable
expenses incurred in obtaining the order,
Section 4. Waiver of privilege. — By including attorney's fees.
requesting and obtaining a report of the
examination so ordered or by taking the

________________________________________________________________________________________________
If the application is denied and the court finds (d) In lieu of any of the foregoing orders
that it was filed without substantial or in addition thereto, an order directing
justification, the court may require the the arrest of any party or agent of a party
proponent or the counsel advising the filing of for disobeying any of such orders except
the application, or both of them, to pay to the an order to submit to a physical or mental
refusing party or deponent the amount of the examination. (3a)
reasonable expenses incurred in opposing the
application, including attorney's fees. (1a) Section 4. Expenses on refusal to
admit. — If a party after being served
Section 2. Contempt of court. — If a party with a request under Rule 26 to admit the
or other witness refuses to be sworn or genuineness of any document or the truth
refuses to answer any question after being of any matter of fact serves a sworn
directed to do so by the court of the place in denial thereof and if the party requesting
which the deposition is being taken, the the admissions thereafter proves the
refusal may be considered a contempt of that genuineness of such document or the
court. (2a) truth of any such matter of fact, he may
apply to the court for an order requiring
Section 3. Other consequences. — If any the other party to pay him the reasonable
party or an officer or managing agent of a expenses incurred in making such proof,
party refuses to obey an order made under including attorney's fees. Unless the court
section 1 of this Rule requiring him to answer finds that there were good reasons for the
designated questions, or an order under Rule denial or that admissions sought were of
27 to produce any document or other thing no substantial importance, such order
for inspection, copying, or photographing or shall be issued. (4a)
to permit it to be done, or to permit entry
upon land or other property or an order made Section 5. Failure of party to attend or
under Rule 28 requiring him to submit to a serve answers. — If a party or an officer
physical or mental examination, the court or managing agent of a party willfully fails
may make such orders in regard to the to appear before the officer who is to take
refusal as are just, and among others the his deposition, after being served with a
following: proper notice, or fails to serve answers to
interrogatories submitted under Rule 25
(a) An order that the matters regarding which after proper service of such
the questions were asked, or the character or interrogatories, the court on motion and
description of the thing or land, or the notice, may strike out all or any part of
contents of the paper, or the physical or any pleading of that party, or dismiss the
mental condition of the party, or any other action or proceeding or any part thereof,
designated facts shall be taken to be or enter a judgment by default against
established for the purposes of the action in that party, and in its discretion, order him
accordance with the claim of the party to pay reasonable expenses incurred by
obtaining the order; the other, including attorney's fees. (5)
(b) An order refusing to allow the disobedient Bar Exam Question 2012
party to support or oppose designated claims 69. A judgment by default can be issued
or defenses or prohibiting him from despite an Answer being filed in:
introducing in evidence designated a. annulment of marriage.
documents or things or items of testimony, or b. legal separation.
from introducing evidence of physical or c. cases where a party willfully fails to
appear before the officer who is to take
mental condition;
his deposition.
d. declaration of nullity of marriage.
(c) An order striking out pleadings or parts SUGGESTED ANSWER:
thereof, or staying further proceedings until (c), If a party or an officer or managing
the order is obeyed, or dismissing the action agent of a party wilfully fails to appear
or proceeding or any part thereof, or before the officer who is to take his
rendering a judgment by default against the deposition, after being served with a
disobedient party; and

________________________________________________________________________________________________
proper notice, or fails to serve answers to 10. ARREST the disobedient party, or his agent,
interrogatories submitted under Rule 25 except the disobedience of an order to
after proper service of such interrogatories, submit to physical or mental examination.
the court on motion and notice, may strike
out all or any part of any pleading of the Instances when party can be declared (“as
party, or dismiss the action or proceeding if”) in default despite the fact that an answer
or any part thereof, or enter a judgment by has been filed:
default against the party, and in its 1. Failure to appear during pre-trial;
discretion, order him to pay reasonable 2. Failure to file pre-trial brief;
expenses incurred by the other, including 3. Failure to cooperate in the modes of
attorney‟s fees. (Rule 29, Sec.5, Rules of discovery.
Court). hence, even if an Answer was filed 4. When the answer was stricken out for
by a defendant, a judgment by default can failure to comply with a request for a bill
still be issued where a party wilfully fails to of particulars.
appear before the officer who is to take his
deposition. In Arellano vs. Court of First Note that above, in reality there is no declaration
Instance of Sorsogon, Branch I, 65 SCRA of default but the other party is allowed to
46, the Supreme Court sustained the order present evidence ex parte. The effect, thus, is
of dismissal for failure of respondent to somehow, similar.
serve any answer to petitioner Arellano‟s
Interrogatories. The dismissal was based on
Section 5 of Rule 29 which provides that if
a party fails to serve answers to
interrogatories submitted under Rule 25,
after proper service of such interrogatories,
the Court on motion and notice may
dismiss the action or render judgment by
default even without prior order to serve
answer.
RULE 30
Trial
Section 6. Expenses against the Republic

TRIAL
of the Philippines. — Expenses and It is the judicial process of investigating and
attorney's fees are not to be imposed upon determining the legal controversies, starting with
the Republic of the Philippines under this the production of evidence by the plaintiff and
Rule. (6) ending with his closing arguments.
SANCTIONS FOR NON-COMPLIANCE WITH THE GR: When an issue exists, trial is necessary.
MODES OF DISCOVERY: Decision should not be made without a trial.
1. Compel deponent to ANSWER questions;
2. Require the disobedient deponent or his Exceptions:
advising counsel or both, to PAY the proponent 1. Judgment on the pleadings (Rule 34);
the amount of reasonable expenses incurred by 2. Summary judgment (Rule 35);
the proponent, including attorney’s fees; 3. Judgment on compromise;
3. Cite the disobedient deponent in CONTEMPT 4. Judgment by confession (only when
of court; proper);
4. REFUSE to allow the disobedient party to 5. Dismissal with prejudice (Rule 17);
support or oppose claims or defenses; 6. Judgment under Summary Procedure;
5. PROHIBIT the disobedient party to introduce 7. Stipulation of facts.
evidence of physical or mental condition;
6. STRIKE OUT all or any part of the pleading of Section 1. Notice of Trial. — Upon entry
the disobedient party; of a case in the trial calendar, the clerk
7. STAY further proceedings until order is obeyed;
shall notify the parties of the date of its
8. DISMISS action or proceeding;
trial in such manner as shall ensure his
9. Render JUDGMENT BY DEFAULT;
receipt of that notice at least five (5) days
before such date. (2a, R22)

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Section 2. Adjournments and (a) The plaintiff shall adduce evidence in
postponements. — A court may adjourn a support of his complaint;
trial from day to day, and to any stated time,
as the expeditious and convenient transaction (b) The defendant shall then adduce
of business may require, but shall have no evidence in support of his defense,
power to adjourn a trial for a longer period counterclaim, cross-claim and third-party
than one month for each adjournment nor complaints;
more than three months in all, except when
authorized in writing by the Court (c) The third-party defendant if any, shall
Administrator, Supreme Court. (3a, R22) adduce evidence of his defense,
counterclaim, cross-claim and fourth-party
Section 3. Requisites of motion to complaint;
postpone trial for absence of evidence. —
A motion to postpone a trial on the ground of (d) The fourth-party, and so forth, if any,
absence of evidence can be granted only shall adduce evidence of the material facts
upon affidavit showing the materiality or pleaded by them;
relevancy of such evidence, and that due
diligence has been used to procure it. But if
(e) The parties against whom any
the adverse party admits the facts to be
counterclaim or cross-claim has been
given in evidence, even if he objects or
pleaded, shall adduce evidence in support
reserves the right to object to their
of their defense, in the order to be
admissibility, the trial shall not be postponed.
prescribed by the court;
(4a, R22; Bar Matter No. 803, 21 July 1998)
(f) The parties may then respectively
Requisites: adduce rebutting evidence only, unless
1. Motion for postponement stating grounds relied the court, for good reasons and in the
upon; furtherance of justice, permits them to
2. Affidavit showing (a) materiality and relevancy of adduce evidence upon their original case;
the evidence; (b) that due diligence has been and
used to procure it.
(g) Upon admission of the evidence, the
Note: This section does not apply to criminal cases case shall be deemed submitted for
as the rule on postponements in criminal cases is decision, unless the court directs the
governed by sec. 2, rule 119. parties to argue or to submit their
respective memoranda or any further
pleadings.
Section 4. Requisites of motion to
postpone trial for illness of party or If several defendants or third-party
counsel. — A motion to postpone a trial on defendants, and so forth, having separate
the ground of illness of a party or counsel defenses appear by different counsel, the
may be granted if it appears upon affidavit or court shall determine the relative order of
sworn certification that the presence of such presentation of their evidence. (1a, R30)
party or counsel at the trial is indispensable
and that the character of his illness is such as
to render his non-attendance excusable. (5a, Plaintiff presents evidence
R22)
Section 5. Order of trial. — Subject to the

Defendant presents Defendant files demurrer
provisions of section 2 of Rule 31, and unless evidence in support of to evidence
the court for special reasons otherwise his
directs, the trial shall be limited to the issues defense/Counterclaim/
stated in the pre-trial order and shall proceed Cross-claim/ Third
party complaint
as follows: If court grants If court denies
motion; Renders motion; continues
dismissal with trial
Third party defendant
presents evidence, if
any
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1. When it was omitted by inadvertence, or
excusable negligence;
2. Evidence is material and not merely
cumulative;
Parties against whom a 3. New evidence.
counterclaim or cross-
claim is pleaded
presents evidence in GR: After the parties had closed their
their defense presentation of evidence, they are allowed to
offer rebutting evidence only.
After presentation of
evidence:
1. Oral Arguments Exceptions: For good reasons and in
2. Submission of furtherance of justice, allowed when-
Rebuttal evidence of
parties Memoranda 1. There is a newly discovered evidence;
2. Evidence is omitted through inadvertence;
3. To correct evidence previously offered
(Lopez vs. Liboro);
DECISION
4. When the testimony is material, except
when it is kept back to trick the adverse
party (Director of Lands vs. Roman
Archbishop of Manila).
NOTE: Unless the court for special reasons,
otherwise directs, the trial shall be limited to the Section 6. Agreed statement of facts.
issues stated in the pre-trial order. — The parties to any action may agree, in
writing, upon the facts involved in the
Note also that what is not alleged in the complaint litigation, and submit the case for
may not be proved on trial, unless the adverse judgment on the facts agreed upon,
party fails to make a timely objection against its without the introduction of evidence.
consideration on trial (amendment to pleadings to
conform to evidence. [Rule 10, sec. 5]
If the parties agree only on some of the
facts in issue, the trial shall be held as to
REVERSE ORDER OF TRIAL- a situation wherein
the disputed facts in such order as the
the defendant presents evidence ahead of the
plaintiff. This is proper if the defendant relies upon court shall prescribe. (2a, R30)
affirmative defenses.
This is known as STIPULATION OF FACTS and
TRIAL FLOW is among the purposes of a pre-trial. Under the
Rules, it must be in writing. But it may also be
Plaintiff presents evidence; made verbally in open court.
 Presentation of witness (Direct Examination)
 Cross Examination NOTE: If NO EVIDENCE IS PRESENTED and
 Redirect the case is submitted for decision on an
 Re-cross agreement of the parties, the court should
Defendant presents evidence; render judgment in accordance with the said
 Presentation of witness agreement. The court cannot impose upon the
 Cross Examination parties a judgment different from their
 Redirect compromise agreement.
 Re-cross However, the compromise must not be contrary
to law, morals, good customs, public order and
Limits of rebuttal evidence pubic policy.
GR: Cannot present evidence other than presented
in evidence in chief of defendant. Stipulation of facts are NOT ALLOWED in
Exception: Courts directs otherwise for special actions for ANNULMENT OF MARRIAGE and
reasons. LEGAL SEPARATION
Rebuttal must be limited to the defendant’s Art. 2035, NCC. No compromise upon the
presented evidence. following questions shall be valid:
When allowed: (1) The civil status of persons;

________________________________________________________________________________________________
(2) The validity of a marriage or a legal d. land registration proceedings.
separation; SUGGESTED ANSWER:
(3) Any ground for legal separation; (c), The Rules provide that the judge of
the court where the case is pending shall
(4) Future support;
personally receive the evidence to be
(5) The jurisdiction of courts; adduced by the parties. However, in
(6) Future legitime. (1814a) default or exparte hearings, and in any
case where the parties agree in writing,
Section 7. Statement of judge. — During the court may delegate the reception of
the hearing or trial of a case any statement evidence to its clerk of court who is a
made by the judge with reference to the member of the bar. (Rule 30, Sec. 9,
case, or to any of the parties, witnesses or Rules of Court).
counsel, shall be made of record in the
stenographic notes. (3a, R30) Bar Exam Question 2011
(10) As a rule, the judge shall receive the
evidence personally. In which of the
Section 8. Suspension of actions. — The
following circumstances may the court
suspension of actions shall be governed by delegate the reception of evidence to the
the provisions of the Civil Code. (n) clerk of court? (A) When a question of fact
arises upon a motion. (B) When the trial of
Art. 2030, NCC. Every civil action or proceeding an issue of fact requires the examination of
shall be suspended: a long account. (C) In default or ex-parte
hearings. (D) Upon motion of a party on
(1) If willingness to discuss a possible reasonable grounds.
compromise is expressed by one or both
parties; or
NOTE: Clerk of court can receive evidence in –
(2) If it appears that one of the parties, before 1. Default proceedings;
the commencement of the action or 2. Ex parte hearings; or
proceeding, offered to discuss a possible 3. Cases where the parties agree
compromise but the other party refused the
offer.
RULE 31
Section 9. Judge to receive evidence;
delegation to clerk of court. — The judge
of the court where the case is pending shall Consolidation or Severance
personally receive the evidence to be
adduced by the parties. However, in default CONSOLIDATION
or ex parte hearings, and in any case where It involves several actions having a common
the parties agree in writing, the court may question of fact or law which may be jointly tried.
delegate the reception of evidence to its clerk
SEVERANCE
of court who is a member of the bar. The
It contemplates a single cause of action having a
clerk of court shall have no power to rule on number of claims, counterclaims, cross-claims,
objections to any question or to the third party complaints or issues which may be
admission of exhibits, which objections shall separately tried.
be resolved by the court upon submission of
his report and the transcripts within ten (10)
Section 1. Consolidation. — When
days from termination of the hearing. (n)
actions involving a common question of
law or fact are pending before the court, it
Bar Exam Question 2012 may order a joint hearing or trial of any or
98. When directed by the judge, a clerk of all the matters in issue in the actions; it
court can receive evidence addressed by the
may order all the actions consolidated,
parties in:
and it may make such orders concerning
a. case where the judge is on leave.
proceedings therein as may tend to avoid
b. small claims proceedings.
unnecessary costs or delay. (1)
c. cases where the parties agree in writing.

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GR: Consolidation is discretionary upon the court. Section 1. Reference by consent. — By
Exceptions: Consolidation becomes a matter of written consent of both parties, the court
duty when: may order any or all of the issues in a
1. If the cases are pending before the same case to be referred to a commissioner to
judge; or be agreed upon by the parties or to be
2. If filed with different branches of the same appointed by the court. As used in these
RTC and one of such cases has NOT been Rules, the word "commissioner" includes a
partially tried.
referee, an auditor and an examiner. (1a,
R33)
REQUISITES FOR CONSOLIDATION
1. Actions involves a common question of facts or
law; and DELEGATION TO TRIAL BY
2. The question is pending before the same court. CLERK OF COURT COMMISSIONER
(sec. 9, Rule 30)
If filed with different courts, an authorization Clerk of court must be Commissioner need
from the Supreme Court is necessary. a lawyer not be a lawyer
Clerk of court cannot Commissioner can rule
rule on objections or on objections or on the
3 WAYS OF CONSOLIDATING CASES: on the admissibility of admissibility of
1. By RECASTING the cases already instituted. evidence evidence
Reshaping the cases by amending the pleading Delegation is made Commissioner can be
and dismissing some cases and retaining only during trial appointed even after
one case. There must be joinder of causes of the case has become
action and of parties; final and executory
2. By CONSOLIDATING the existing cases. Joint
trial with joint decision, the cases retaining their NOTE: An irregularity in the appointment of a
original docket numbers; commissioner must be seasonably raised in the
3. By HEARING ONLY THE PRINCIPAL CASE trial court where the defect could still be
and suspending the hearing on other until remedied. It can be waived by consent, express
judgment has been rendered in the principal or implied.
case (TEST- CASE METHOD)
Take note that under this Rule, the reference to
Consolidation of cases on appeal and assigned to commissioners is merely discretionary while
different divisions of the SC and CA is also mandatory in case of expropriation proceedings.
authorized.
Section 2. Reference ordered on
Section 2. Separate trials. — The court, in motion. — When the parties do not
furtherance of convenience or to avoid consent, the court may, upon the
prejudice, may order a separate trial of any application of either or of its own motion,
claim, cross-claim, counterclaim, or third- direct a reference to a commissioner in
party complaint, or of any separate issue or the following cases:
of any number of claims, cross-claims,
counterclaims, third-party complaints or (a) When the trial of an issue of fact
issues. (2a) requires the examination of a long
account on either side, in which case the
commissioner may be directed to hear and
report upon the whole issue or any
RULE 32 specific question involved therein;
Trial by Commissioner (b) When the taking of an account is

necessary for the information of the court
COMMISSIONER before judgment, or for carrying a
He is a person to whom a case pending in court is judgment or order into effect.
referred, for him to take testimony, hear the parties
and report to the court, and upon whose report, if (c) When a question of fact, other than
confirmed, judgment is rendered. upon the pleadings, arises upon motion or
otherwise, in any stage of a case, or for

________________________________________________________________________________________________
carrying a judgment or order into effect. (2a, Section 4. Oath of commissioner. —
R33) Before entering upon his duties the
commissioner shall be sworn to a faithful
Reference via motion in: and honest performance thereof. (14,
R33)
1. Examination of long account;
2. Taking of an account is necessary; Section 5. Proceedings before
3. Question of facts arises not from the pleadings commissioner. — Upon receipt of the
4. Carrying a judgment or order into effect.(e.g. order of reference and unless otherwise
appointment of a surveyor). provided therein, the commissioner shall
forthwith set a time and place for the first
Note: Rule 86, sec. 12
meeting of the parties or their counsel to
Section 12. Trial of contested claim. — Upon the be held within ten (10) days after the date
filing of an answer to a claim, or upon the expiration of the of the order of reference and shall notify
time for such filing, the clerk of court shall set the claim for the parties or their counsel. (5a, R33)
trial with notice to both parties. The court may refer the
claim to a commissioner.
Section 6. Failure of parties to appear
before commissioner. — If a party fails
Section 3. Order of reference; powers of to appear at the time and place appointed,
the commissioner. — When a reference is the commissioner may proceed ex parte
made, the clerk shall forthwith furnish the or, in his discretion, adjourn the
commissioner with a copy of the order of proceedings to a future day, giving notice
reference. The order may specify or limit the to the absent party or his counsel of the
powers of the commissioner, and may direct adjournment. (6a, R33)
him to report only upon particular issues, or
to do or perform particular acts, or to receive
Section 7. Refusal of witness. — The
and report evidence only and may fix the
refusal of a witness to obey a subpoena
date for beginning and closing the hearings
issued by the commissioner or to give
and for the filing of his report. Subject to
evidence before him, shall be deemed a
other specifications and limitations stated in
contempt of the court which appointed the
the order, the commissioner has and shall
commissioner. (7a R33)
exercise the power to regulate the
proceedings in every hearing before him and
to do all acts and take all measures Section 8. Commissioner shall avoid
necessary or proper for the efficient delays. — It is the duty of the
performance of his duties under the order. He commissioner to proceed with all
may issue subpoenas and subpoenas duces reasonable diligence. Either party, on
tecum, swear witnesses, and unless notice to the parties and commissioner,
otherwise provided in the order of reference, may apply to the court for an order
he may rule upon the admissibility of requiring the commissioner to expedite
evidence. The trial or hearing before him the proceedings and to make his report.
shall proceed in all respects as it would if held (8a, R33)
before the court. (3a, R33)
Section 9. Report of commissioner. —
Subject to other specifications and limitations Upon the completion of the trial or hearing
stated in the order, the commissioner has: or proceeding before the commissioner,
1. The power to regulate the proceedings; he shall file with the court his report in
2. To do all acts and take all measures writing upon the matters submitted to him
necessary or proper for the efficient by the order of reference. When his
performance of his duties; powers are not specified or limited, he
3. Issue subpoenas and subpoenas duces shall set forth his findings of fact and
tecum; conclusions of law in his report. He shall
4. Swear witnesses; attach thereto all exhibits, affidavits,
5. Unless otherwise provided, rule upon the depositions, papers and the transcript, if
admissibility of evidence. any, of the testimonial evidence presented
before him. (9a, R33)

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Section 10. Notice to parties of the filing to relief. If his motion is denied he shall
of report. — Upon the filing of the report, have the right to present evidence. If the
the parties shall be notified by the clerk, and motion is granted but on appeal the order
they shall be allowed ten (10) days within of dismissal is reversed he shall be
which to signify grounds of objections to the deemed to have waived the right to
findings of the report, if they so desire. present evidence. (1a, R35)
Objections to the report based upon grounds
which were available to the parties during the When the demurrer to evidence is granted by
proceedings before the commissioner, other the trial court is reversed on appeal, the
than objections to the findings and reviewing court cannot remand the case for
conclusions therein, set forth, shall not be further proceedings. It should render judgment
considered by the court unless they were based on the evidence proffered by the plaintiff
made before the commissioner. (10, R33) (Radiowealth Finance Co. vs. Sps. Del Rosario,
L- 138739, July 20, 2000).
Section 11. Hearing upon report. — Upon
Demurrer to Evidence (2001)
the expiration of the period of ten (10) days
Carlos filed a complaint against Pedro in the RTC of
referred to in the preceding section, the Ozamis City for the recovery of the ownership of a
report shall be set for hearing, after which car.
the court shall issue an order adopting, Pedro filed his answer within the reglementary
modifying, or rejecting the report in whole or period.
in part, or recommitting it with instructions, After the pre-trial and actual trial, and after Carlos
or requiring the parties to present further has
evidence before the commissioner or the completed the presentation of his evidence, Pedro
court. (11a, R33) moved for the dismissal of the complaint on the
ground
Section 12. Stipulations as to findings. — that under the facts proven and the law applicable to
When the parties stipulate that a the
commissioner's findings of fact shall be final, case, Carlos is not entitled to the ownership of the
only questions of law shall thereafter be car.
considered. (12a, R33) The RTC granted the motion for dismissal. Carlos
appealed the order of dismissal and the appellate
Section 13. Compensation of court reversed the order of the trial court.
commissioner. — The court shall allow the Thereafter, Pedro filed a motion with the RTC
commissioner such reasonable compensation asking the latter to allow him to present his evidence.
as the circumstances of the case warrant, to
Carlos objected to the presentation of evidence by
be taxed as costs against the defeated party,
Pedro. Should the RTC grant Pedro’s motion to
present his evidence? Why? (5%)
or apportioned, as justice requires. (13, R33) SUGGESTED ANSWER:
No. Pedro’s motion should be denied. He can no
longer present evidence. The Rules provide that if
the motion for dismissal is granted by the trial court
RULE 33 but on appeal the order of dismissal is reversed, he
shall be deemed to have waived the right to present
Demurrer to Evidence evidence. (Sec. 1 of Rule 33, Rules of Civil rocedure)
ALTERNATIVE ANSWER:
No, because when the appellate court reversed the
JUDGMENT ON DEMURRER TO EVIDENCE order of the trial court it should have rendered
It is a judgment rendered by the court dismissing a judgment in favor of Carlos. (Quebral v. Court of Appeals,
case upon motion of the defendant, made after 252 SCRA 353, 1996)
plaintiff has rested his case, on the ground that upon ALTERNATIVE ANSWER by Genesis:
the facts presented by the plaintiff and the law on When the demurrer to evidence is granted by
the matter, plaintiff has not shown any right to relief. the trial court is reversed on appeal, the
reviewing court cannot remand the case for
Section 1. Demurrer to evidence. — After further proceedings. It should render judgment
the plaintiff has completed the presentation based on the evidence proffered by the plaintiff
of his evidence, the defendant may move for (Radiowealth Finance Co. vs. Sps. Del Rosario,
dismissal on the ground that upon the facts L- 138739, July 20, 2000).
and the law the plaintiff has shown no right
________________________________________________________________________________________________
without leave of court;
CIVIL CASES CRIMINAL CASES or b. motu proprio by
Maybe filed with or with the court
out leave of court. Ground – upon the Ground – insufficiency
Defendant need not Leave of court is acts and the law, the of evidence
ask for leave of court necessary so that the plaintiff is not entitled
accused could present to relief
his evidence if
demurrer is denied Demurrer to
If the court finds Evidence; Civil Case vs. Criminal Case (2003)
plaintiff’s evidence Compare the effects of a denial of demurrer to
insufficient, it will If the court finds the evidence in a civil case with those of a denial of
grant the demurrer by prosecution’s evidence demurrer to evidence in a criminal case. 4%
dismissing the case. insufficient, it will grant SUGGESTED ANSWER:
The judgment of the demurrer by In a civil case, the defendant has the right to file a
dismissal is rendering judgment demurrer to evidence without leave of court. If his
appealable. If plaintiff acquitting the accused. demurrer is denied, he has the right to present
appeals and judgment Judgment of acquittal is evidence. If his demurrer is granted and on appeal by
is reversed by the not appealable. Double the plaintiff, the appellate court reverses the order
appellate court, it will jeopardy sets-in and
decide the case on renders judgment for the plaintiff, the defendant
the basis of the loses
plaintiff’s evidence his right to present evidence. (Rule 33).
with the In a criminal case, the accused has to obtain leave of
consequences that court to file a demurrer to evidence. If he obtains
the defendant already leave
loses his right to of court and his demurrer to evidence is denied, he
present evidence. has
There is no res the right to present evidence in his defense. If his
judicata in dismissal demurrer to evidence is granted, he is acquitted and
due to demurrer the prosecution cannot appeal.
The plaintiff files a The court may deny If the accused does not obtain leave of court and his
motion to deny motion the motion demurrer to evidence is denied, he waives his right
to demurrer evidence to
If court denies the present evidence and the case is decided on the basis
demurrer: of the evidence for the prosecution.
If court denies the The court may also dismiss the action on the ground
demurrer, defendant 1. Demurrer was of insufficiency of the evidence on its own initiative
will present his WITH LEAVE, after giving the prosecution the opportunity to be
evidence accused may heard. (Sec. 23 of Rule 119)
present his
evidence;
2. WITHOUT
LEAVE,
accused could RULE 34
no longer
present his Judgment on the Pleadings
evidence and
submits the Section 1. Judgment on the pleadings. —
case for Where an answer fails to tender an issue,
decision based or otherwise admits the material
on the
allegations of the adverse party's
prosecution’s
pleading, the court may; on motion of
evidence
that party, direct judgment on such
pleading. However, in actions for
Only by motion of Court may motu proprio
declaration of nullity or annulment of
defendant dismiss/acquit
marriage or for legal separation, the
Upon motion of the a. Upon motion of the
defendant accused, with or

________________________________________________________________________________________________
material facts alleged in the complaint shall construction principle does not apply in
always be proved. (1a, R19) land registration cases because it is not
governed by the Rules of Court.
Bar Exam Question 2012 (Bienvenido Castillo vs. Republic of the
90. One of the exemptions to the general rule Philippines, G.R. No., 182980, June 22,
that evidence not formally offered shall not be 2011, Carpio, J.).
considered is:
a. in judgment on the pleadings.
b. evidence in land registration proceedings. NOTE: A judgment on the pleadings must be on
c. evidence lost/destroyed due to force majeure motion of the claimant. HOWEVER, if at the pre-
after being marked, identified and described in trial the court finds that a judgment on the
pleadings is proper, it may render such
the record.
judgment motu proprio (Rule 18, sec. 2[g])
d. documentary evidence proving a foreign
judgment.
Atty. Ucat Notes: There must still be a
SUGGESTED ANSWER:
motion for judgment on the pleadings. Under
(a), Where an answer fails to tender an
sec. 2 (g), Rule 18, the court merely
issue, or otherwise admits the material considers the propriety of such action. If
allegations of the adverse party‟s pleading, proper, a motion for the judgment on the
the court may, on motion of that party, pleadings or summary judgment must be
direct judgment on such pleading. (Rule 34, filed and heard according with the rules
Sec. 1, Rules of Court). Judgment on the (Feria, citing Auan vs. Estenzo, 69 SCRA
pleadings is, therefore, based exclusively 524).
upon the allegations appearing in the
pleadings of the parties and the annexes, if One who prays for a judgment on the pleadings
any, without consideration of any evidence without offering proof as to the truth of his own
aliunde. (Philippine National Bank vs. allegations and without giving the opposing party
Merelo B. Aznar, et. al, G.R. No. 171805, an opportunity to introduce evidence, must be
May 30, 2011, Leonardo-De Castro, J.). The understood to ADMIT ALL MATERIAL
court therefore may be allowed to render ALLEGATIONS of the opposing party and to rest
judgment based merely on the pleadings his motion for judgment on those allegations
without need of trial and formal offer of taken together with such of his own as are
evidence. ALTERNATIVE ANSWER: admitted in the pleadings (Falcasantos vs. How
(b), The Rules of Court shall not apply to Suy Ching, 91 Phil 456).
election cases, land registration, cadastral,
naturalization and insolvency proceedings, GROUNDS FOR JUDGMENT ON THE
and other cases not herein provided for, PLEADINGS:
except by analogy or in suppletory 1. The answer fails to tender an issue
character and whenever practicable and because of:
convenient (Rule 1, Sec. 4, Rules of Court). a. General denial of material allegations of
(Government Insurance System (GSIS) vs. the complaint;
Dinnah Villaviza et. al., G.R. No. 180291, b. Insufficient denial of the material
July 27, 2010, Mendoza, J.). In one case, allegations of the complaint; or
the Supreme Court sustained the Court of
Appeals when it denied an application for 2. The answer admits material allegations of
naturalization in the basis of documents the adverse party’s pleading.
not formally offered in evidence during the
trial. The High Court noted that the NOTE: By moving for judgment on the
procedure in Sec.34 of Rule 132 providing pleadings, plaintiff waives his claim for
that the Court shall consider no evidence unliquidated damages. Claim for such damages
which has not been formally offered, does must be alleged and proved.
not apply to naturalization proceeding
conformably to Section 4, Rule 1 of the Judgment; Judgment on the Pleadings
Rules of Court. (Ong Chia vs. Republic, 328 (1999)
SCRA 9 (2001). Applying the same principle, a) What are the grounds for judgment on the
we should not also apply the said rule on pleadings? (2%)
evidence in land registration proceedings. b) A's Answer admits the material allegations of
After all, in one case, the Supreme Court B's Complaint. May the court motu proprio
already made it clear that the liberal render judgment on the pleadings? Explain.
(2%)
________________________________________________________________________________________________
c) A brought an action against her husband B for within the time prescribed by the rules, to
annulment of their marriage on the ground of answer the request. Suppose the request
psychological incapacity, B filed his Answer to the for admission asked for the admission of
Complaint admitting all the allegations therein the entire material allegations stated in the
contained. May A move for judgment on the complaint, what should plaintiff do? (5%)
pleadings? Explain. (2%) SUGGESTED ANSWER: The Plaintiff
SUGGESTED ANSWER: should file a Motion for Judgment on the
a) The grounds for judgment on the pleadings are Pleadings because the failure of the
where an answer fails to tender an issue, or defendant to answer a request for
otherwise admits the material allegations of the admission results to an implied
adverse party's pleading. (Sec. 1, Rule 34). admission of all the matters which an
b) No, a motion must be filed by the adverse party. admission is requested. Hence, a motion
(Sec. 1, Rule 34) The court cannot motu proprio for judgment on the pleadings is the
render judgment on the pleadings. appropriate remedy where the defendant
c) No, because even if B's answer to A's complaint is deemed to have admitted the matters
for annulment of their marriage admits all the contained in the Request for admission
allegations therein contained, the material facts by the plaintiff. (Rule 34 in connection
alleged in the complaint must always be proved. with Sec.2, Rule 26, Rules of Court).
(Sec. 1 of Rule 34.)
ANOTHER ANSWER:
c. No. The court shall order the prosecutor to Judgment; Judgment on the Pleadings
investigate whether or not a collusion between the (2009)
parties exists, and if there is no collusion, to
No.IX. Modesto sued Ernesto for a sum of
intervene for the State in order to see to it that the
money, claiming that the latter owed him
evidence submitted is not fabricated. (Sec. 3[E],
P1M, evidenced by a promissory note,
Rule 9) Evidence must have to be presented in
quoted and attached to the complaint. In
accordance with the requirements set down by the
his answer with counterclaim, Ernesto
Supreme Court in
alleged that Modesto coerced him into
Republic vs. Court of Appeals and Molina (268
SCRA 198.) signing the promissory note, but that it is
Modesto who really owes him P1.5M.
Judgment; Judgment on the Pleadings (2005) Modesto filed an answer to Ernesto’s
In a complaint for recovery of real property, the plaintiff counterclaim admitting that he owed
averred, among others, that he is the owner of the said Ernesto, but only in the amount of P0.5M.
property by virtue of a deed of sale executed by the at the pre-trial, Modesto marked and
defendant in his favor. Copy of the deed of sale was identified Ernesto’s promissory note. He
appended to the complaint as Annex "A" thereof. In his also marked and identified receipts covering
unverified answer, the defendant denied the allegation payments he made to Ernesto, to the extent
concerning the sale of the property in question, as well of P0.5M, which Ernesto did not dispute.
as the appended deed of sale, for lack of knowledge or After pre-trial, Modesto filed a motion for
information sufficient to form a belief as to the truth judgment on the pleadings, while Ernesto
thereof. Is it proper for the court to render judgment filed a motion for summary judgment on his
without trial? Explain. (4%) counterclaim. Resolve the two motions with
SUGGESTED ANSWER: reasons.
Defendant cannot deny the sale of the property for lack of SUGGESTED ANSWER: Modesto‟s
knowledge or information sufficient to form a belief as to motion for judgment on the pleadings
the truth thereof. The answer amounts to an admission. should be denied. While it is true that
The defendant must aver or state positively how it is that he under the actionable document rule,
is ignorant of the facts alleged. (Phil, Advertising Counselors, Ernesto‟s failure to deny under oath the
Inc. v. Revilla, G.R. No. L-31869, August 8, 1973; Sec. 10, Rule promissory note in his answer amounted
8) Moreover, the genuineness and due execution of the to an implied admission of its
deed of sale can only be denied by the defendant under genuineness and due execution, his
oath and failure to do so is also an admission of the allegation in his answer that he was
deed. (Sec. 8, Rule 8) Hence, a judgment on the pleadings coerced into signing the promissory note
can be rendered by the court without need of a trial. tendered an issue which should be tried.
The issue of coercion is not inconsistent
Judgment; Judgment on the Pleadings with the due execution and genuineness
(2012) of the instrument. Thus, Ernesto‟s
No.VII.B. Plaintiff files a request for admission failure to deny the genuineness of the
and serves the same on Defendant who fails,
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promissory note cannot be considered a SUMMARY JUDGMENT (aka Accelerated
waiver to raise the issue that he was Judgment)
coerced in signing the same. Said claim of It is the one granted by the court for the prompt
coercion may also be proved as an disposition of civil actions wherein it clearly
exception to the Parol Evidence Rule. appears that there exists NO GENUINE ISSUE
On the other hand, Ernesto‟s motion for OR CONTROVERSY as to any material fact,
summary judgment may be granted. except the amount of damages.
Modesto‟s answer to Ernesto‟s
counterclaim – that he owed the latter a GENUINE ISSUE
sum less than what was claimed – amounted It is an issue of fact which calls for the
to an admission of a material fact and if the presentation of evidence as distinguished from
amount thereof could summarily be proved an issue which is sham, fictitious, contrived and
by affidavits, deposition, etc., without the patently unsubstantial so as to constitute a
need of going to trial, then no genuine issue genuine issue for trial.
of fact exists.
ALTERNATIVE ANSWER: Modesto‟s motion Section 1. Summary judgment for
for judgment on the pleadings should be claimant. — A party seeking to recover
denied because there is an issue of fact. upon a claim, counterclaim, or cross-claim
While Ernesto did not specifically deny or to obtain a declaratory relief may, at
under oath the promissory note attached to any time after the pleading in answer
Modesto‟s complaint as an actionable thereto has been served, move with
document, such non-denial will not bar supporting affidavits, depositions or
Ernesto‟s evidence that Modesto coerced admissions for a summary judgment in his
him into signing the promissory note. Lack favor upon all or any part thereof. (1a,
of consideration, as a defense, does not R34)
relate to the genuineness and due execution
of the promissory note. Likewise, Ernesto‟s
Section 2. Summary judgment for
motion for summary judgment should be
defending party. — A party against
denied because there is an issue of fact –
the alleged coercion – raised by Ernesto whom a claim, counterclaim, or cross-
which he has yet to prove in a trial on its claim is asserted or a declaratory relief is
merits. It is axiomatic that summary sought may, at any time, move with
judgment is not proper or valid whent there supporting affidavits, depositions or
is an issue of fact remaining which requires admissions for a summary judgment in his
a hearing. And this is so with respect to the favor as to all or any part thereof. (2a,
coercion alleged by Ernesto as his defense, R34)
since coercion is not capable of being
established by documentary evidence. Section 3. Motion and proceedings
thereon. — The motion shall be served at
least ten (10) days before the time
specified for the hearing. The adverse
MOTION FOR party may serve opposing affidavits,
MOTION TO DISMISS JUDGMENT ON THE depositions, or admissions at least three
PLEADINGS (3) days before the hearing. After the
Filed by a defendant to Filed by plaintiff if hearing, the judgment sought shall be
a complaint, answer fails to tender rendered forthwith if the pleadings,
counterclaim, cross- an issue supporting affidavits, depositions, and
claim or 3rd party
admissions on file, show that, except as to
complaint
the amount of damages, there is no
Note: If complaint states no cause of action, a genuine issue as to any material fact and
motion to dismiss should be filed and not a that the moving party is entitled to a
motion for a judgment on the pleadings. judgment as a matter of law. (3a, R34)
Section 4. Case not fully adjudicated

RULE 35 on motion. — If on motion under this
Rule, judgment is not rendered upon the
whole case or for all the reliefs sought and
Summary Judgments
a trial is necessary, the court at the
________________________________________________________________________________________________
hearing of the motion, by examining the fictitious, contrived, set up in bad faith, and
pleadings and the evidence before it and by patently unsubstantial (Vergara vs. Suelto, 156
interrogating counsel shall ascertain what SCRA 753)
material facts exist without substantial
controversy and what are actually and in SUMMARY JUDGMENT JUDGMENT
good faith controverted. It shall thereupon JUDGMENT ON THE BY DEFAULT
make an order specifying the facts that PLEADINGS
appear without substantial controversy, Based on the Based on the
pleadings, Based solely complaint and
including the extent to which the amount of
depositions, on the evidence, if
damages or other relief is not in controversy,
admissions pleadings presentation
and directing such further proceedings in the
and affidavits is required
action as are just. The facts so specified shall Generally
be deemed established, and the trial shall be available only
conducted on the controverted facts Available to to the plaintiff, Available to
accordingly. (4a, R34) both plaintiff unless plaintiff
and defendant defendant
Section 5. Form of affidavits and presents a
supporting papers. — Supporting and counterclaim
opposing affidavits shall be made on personal There is no The answer No issues as
knowledge, shall set forth such facts as would genuine issue fails to tender there is no
be admissible in evidence, and shall show between the an issue or answer filed
affirmatively that the affiant is competent to parties ( there there is an by defendant
testify to the matters stated therein. Certified may be issues admission of
true copies of all papers or parts thereof but are , the material
referred to in the affidavit shall be attached however, allegations
irrelevant)
thereto or served therewith. (5a, R34)
10-day notice 3-day notice 3-day notice
required required rule applies
Section 6. Affidavits in bad faith. — Should Maybe
it appear to its satisfaction at any time that interlocutory On the merits On the merits
any of the affidavits presented pursuant to or on the
this Rule are presented in bad faith, or solely merits
for the purpose of delay, the court shall Available only
forthwith order the offending party or counsel in actions to Available in Available in
to pay to the other party the amount of the recover a any action any action
reasonable expenses which the filing of the debt; or for a except in except
affidavits caused him to incur including liquidated sum annulment of annulment of
attorney's fees, it may, after hearing further of money or marriage, or marriage or
adjudge the offending party or counsel guilty for declaratory legal legal
of contempt. (6a, R34) relief separation separation
BASES OF SUMMARY JUDGMENT

1. Affidavits made on personal knowledge;
2. Depositions of adverse party or 3rd party under RULE 36
Rule 23:
3. Admissions of adverse party under Rule 26; Judgments, Final Orders and Entry
4. Answers to interrogatories under Rule 25. All
Thereof
intended to show that:
a. There is no genuine issue as to any material
fact, except damages which must always be JUDGMENT
proved; and It is the final consideration and determination of
b. The movant is entitled to judgment as a a court of competent jurisdiction, upon matters
matter of law. submitted to in an action or proceeding.
Even if the answer does tender an issue, and JUDGMENT UPON THE MERITS
therefore a judgment on the pleadings is NOT A judgment is upon the merits when it amounts
proper, a summary judgment may still be rendered if to a declaration to the respective rights and
the issues tendered are not genuine, are sham, duties of the parties, based upon the ultimate

________________________________________________________________________________________________
fact or state of facts disclosed by the pleadings and by him, and filed with the clerk of the
evidence, and upon which the right or recovery court. (1a)
depends, irrespective of formal technical or dilatory
objectives or contention (Allied Banking Corp. vs.
CA, 229 SCRA 252). 2 SENSES IN WHICH “FINAL ORDER” IS
UNDERSTOOD
PARTS OF A JUDGMENT
A. Final and Appealable--- For purposes of
1. The opinion of the court- contains the appeal, an order is final if it disposes of the
findings of facts and conclusions of law; action as distinguished from an interlocutory
2. The disposition of the case- the final and order which leave something to be done in the
actual disposition of the rights litigated trial court with respect to the merits of the case.
(dispositive part);
3. Signature of the judge. B. Final and Executory--- For purposes of
execution, an order is final or executory after the
Essential parts of a good decision: (Velarde vs. lapse of the period to appeal and no appeal has
Social Justice, 428 SCRA 283) – been perfected (Montilla vs. CA, L-47968, May
9, 1988).
a. Statement of the case,
b. Statement of the facts,
c. Issues or assignment of errors, DECISION JUDGMENT
d. Court ruling, in which each issue is, as a rule, Refers to the entire Refers to the
separately considered and resolved, and record of the case dispositive portion
e. Dispositive portion. (Dicretal portion, Falio)
GR: In case of conflict between judgment and
In addition to the above, the following are optional
the decision, the judgment shall prevail.
parts:
Judgment contains the final order of the court.
Exception: Inevitable and undeniable fact that
a. Introduction or prologue, and
the conclusion should been otherwise. Body of
b. Epilogue, especially where the case is
decision prevails.
controversial or novel issues are involved.
TYPES OF JUDGMENT
Judgment vs. Opinion of the Court (2006)
What is the difference between a judgment and an
1. Sin perjuicio judgment- judgment
opinion of the court? (2.5%) without statement of the facts and the
SUGGESTED ANSWER:
The judgment or fallo is the final disposition of the Court law involved [INVALID];
which is reflected in the dispositive portion of the
decision. A decision is directly prepared by a judge and 2. Conditional judgment- judgment
signed by him, containing clearly and distinctly a subject to a condition [INVALID];
statement of the facts proved and the law upon which the
judgment is based (Etoya v. Abraham 3. Incomplete judgment- there are
Singson, Adm. Matter No. RTJ-91-758, September 26, 1994). matters to be settled on a subsequent
An opinion of the court is the informal expression of proceeding [INVALID];
the views of the court and cannot prevail against its E.g. awarding moral damages without
final order. The opinion of the court is contained in the stating the amount.
body of the decision that serves as a guide or
enlightenment to determine the ratio decidendi of the 4. Judgment non pro tunc- judgment for
decision. The opinion forms no part of the judgment now then [ALLOWED];
even if combined in one instrument, but may be
referred to for the purpose of construing the judgment 5. Judgment by compromise;
(Contreras v. Felix, G.R. No. L-477, June 30,1947). Judgment on compromise is
immediately executory.
Section 1. Rendition of judgments and 6. Judgment upon confession (judgment

cognovit)
final orders. — A judgment or final order
determining the merits of the case shall be in
writing personally and directly prepared by
the judge, stating clearly and distinctly the
facts and the law on which it is based, signed
________________________________________________________________________________________________
b. clarifies an ambiguous judgment or a
judgment which is difficult to comply with.
c. one intended to enter into the record
the acts which already have been done,
but which do not appear in the records.
d. is a memorandum decision.
Court renders decision SUGGESTED ANSWER:
(c), A nunc pro tunc entry in practice is
an entry made now of something which
Losing party Filing appeal within was actually previously done, to have
15/30 days from notice effect as the court, but to supply an
of judgment omission in the record of action really
had, but omitted through inadvertence
or mistake. (Wilmerding vs. Corbin
Accepts decision Banking Co., 28 South., 640, 641; 126
without further Within 15/30 days Ala., 268). (Perkins vs. Haywood, 31 N.
from notice of
contest
judgment: Motion for
E., 670, 672 cited in Aliviado vs. Proctor
Reconsideration or and Gamble, G.R. No. 160506, June 6,
motion for New Trial 2011).
Court maintains
decision
Court grants motion:
Modifies decision; or
Grants new trial
If no appeal is
taken or did not
avail of the Doctrine of FINALITY of Doctrine of
remedies, judgment IMMUTABILITY
judgment Losing party may of judgment
becomes final appeal within the
and executory remaining period
Once a judgment becomes Except for
final and executory (i. e., correction of
the 15-day period after clerical errors,
NOTE: promulgation thereof had final and
The power to amend a judgment is inherent to the already elapsed and no executory
court before judgment becomes final and executory. appeal is perfected, or if it is judgments can
perfected, the same had neither be
already been wholly amended nor
DOCTRINE OF IMMUTABILITY OF FINAL disposed of), execution of altered. (Swire
JUDGMENTS the judgment (issuance of Agri’l. Products,
the writ of execution) is a Inc. vs. Hyundai
GR: After judgment has become final and ministerial duty of the court Corp., 460 SCRA
executory, the court cannot amend the same. compellable by a writ of 77, First Div.).
mandamus. The prevailing
Exceptions: party should not be denied
1. Corrections of clerical errors, not substantial of the fruits of his victory by
amendments, as by an amendment non pro some subterfuge or device
tunc; pursued by the losing party.
2. To clarify ambiguity which is borne out by and
justifiable in the context of the decision; or
3. Judgment for support (with respect to the WRONG JUDGMENT VOID JUDGMENT
amount) which can be amended from time to Can become final and Can never become
time. executory if no appeal final and executory
is taken by the
Bar Exam Question 2012 aggrieved party.
56. A judgment "non pro tunc" is one which: The proper remedy The remedy is
a. dismisses a case without prejudice to it could have been an annulment of judgment
being re-filed. appeal. (direct attack) or a

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

________________________________________________________________________________________________
by order may stay its enforcement until the
rendition of a subsequent judgment or REMEDY AGAINST AN AMBIGOUS (NOT
judgments and may prescribe such conditions CLEAR) JUDGMENT:
as may be necessary to secure the benefit File a Motion for Clarificatory Judgment
thereof to the party in whose favor the (motion to clarify judgment) within 15 days from
judgment is rendered. (5a) notice of judgment.
Note: This is the one rendered disposing a claim

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

________________________________________________________________________________________________
(b) If Orencio is the purchaser of the property following causes materially affecting the
at the execution sale, how much does he have substantial rights of said party:
to pay? SUGGESTED ANSWER: Orencio, the
judgment creditor should pay only the (a) Fraud, accident, mistake or excusable
excess amount of the bid over the amount negligence which ordinary prudence could
of the judgment. not have guarded against and by reason
of which such aggrieved party has
(c) If the property is sold to a third party at the probably been impaired in his rights; or
execution sale, what can Patricio do to recover
the property? SUGGESTED ANSWER: Patricio
(b) Newly discovered evidence, which he
can exercise his right of legal redemption
could not, with reasonable diligence, have
within 1 year from date of registration of
the certificate of sale by paying the amount discovered and produced at the trial, and
of the purchase price with interests of 1% which if presented would probably alter
monthly, plus assessment and taxes paid by the result.
the purchaser, with interest thereon, at the
same rate. Within the same period, the aggrieved
party may also move for reconsideration
upon the grounds that the damages
awarded are excessive, that the evidence
RULE 37 is insufficient to justify the decision or
final order, or that the decision or final
order is contrary to law. (1a)
New Trial or Reconsiderations
MOTION FOR NEW TRIAL
An order denying motion for new trial
When to file: Within the period of taking an
appeal.
2nd motion for new trial based on ground not Habaluyas Doctrine: Prohibits the filing of a
existing or available when the 1st motion was filed motion for extension of time to file a motion
for new trial or reconsideration in all courts,
EXCEPT the SC (Habaluyas Inc. vs.
Japson, 142 SCRA 208).
Appeal from the judgment or final order and
assign as one of the errors the denial of the
motion for new trial
Where to file: with the trial court which rendered
the questioned judgment
MOTION FOR RECONSIDERATION

NEW TRIAL
It is the rehearing of a case already decided by the When to file: Within the period of taking an
court but before judgment rendered thereon appeal.
becomes final and executory ,whereby errors of law Where to file: With the trial court which
or irregularities are expunge from the record, or new rendered the judgment or order sought to be
evidence is introduced, or both steps are taken. reconsidered.
An order denying a motion for new trial is not

appealable. The aggrieved party has a fresh period
of 15 days within which to file his appeal. This
applies to Rule 40, 41, 42, 43 and 45 (Neypes vs.
CA, GR. No. 141524, Sept. 14, 2005). MOTION FOR NEW MOTION FOR
TRIAL RECONSIDERATION
Section 1. Grounds of and period for filing Grounds are: Grounds are:
motion for new trial or reconsideration.
— Within the period for taking an appeal, the a) 1. FAME; and a) Damages are
aggrieved party may move the trial court to b) 2. NEWLY excessive;
set aside the judgment or final order and DISCOVERE b) Evidence
grant a new trial for one or more of the insufficient;

________________________________________________________________________________________________
D EVIDENCE c) Decision or 2. It could not have been discovered and
order is produced at the trial even with the
contrary to law exercise of reasonable diligence; and
3. The evidence is of such weight that if
2nd motion for new trial No 2nd motion for admitted, would probably alter the result
may be allowed reconsideration of the action.
If new trial is granted, If the court finds that  Newly discovered evidence need not be
the original judgment excessive damages newly created evidence.
is vacated. The case have been awarded, or
stands trial de novo that the judgment is Newly discovered evidence may and does
and will be tried anew. contrary to evidence or commonly refer to evidence already in existence
law, it may amend such prior or during trial but which could not have
judgment or final order been secured and presented during trial despite
accordingly reasonable diligence on the part of the litigant
Available even on Available against the (Tumang vs. CA, 172 SCRA 328)
appeal but only on the judgments or final
ground of newly order of both the trial Section 2. Contents of motion for new
discovered evidence and appellate courts trial or reconsideration and notice
thereof. — The motion shall be made in
FRAUD as a ground for new trial must be Extrinsic writing stating the ground or grounds
(not intrinsic). therefor, a written notice of which shall be
served by the movant on the adverse
EXTRINSIC FRAUD party.
It connotes any fraudulent scheme executed by the
prevailing party outside of the trial against the losing A motion for new trial shall be proved in
party who because of such fraud is prevented from the manner provided for proof of motion.
presenting his side of the case. A motion for the cause mentioned in
paragraph (a) of the preceding section
Bar Exam Question 2011 shall be supported by affidavits of merits
(69) Fraud as a ground for new trial must be which may be rebutted by affidavits. A
extrinsic as distinguished from intrinsic. motion for the cause mentioned in
Which of the following constitutes extrinsic paragraph (b) shall be supported by
fraud? (A) Collusive suppression by affidavits of the witnesses by whom such
plaintiff‟s counsel of a material evidence evidence is expected to be given, or by
vital to his cause of action. (B) Use of
duly authenticated documents which are
perjured testimony at the trial. (C) The
proposed to be introduced in evidence.
defendant’s fraudulent representation that
caused damage to the plaintiff.
(D) Use of falsified documents during the trial. A motion for reconsideration shall point
out a specifically the findings or
conclusions of the judgment or final order
INTRINSIC FRAUD which are not supported by the evidence
It refers to acts of a party during the trial which does or which are contrary to law making
not affect the presentation of the case. express reference to the testimonial or
documentary evidence or to the provisions
ACCIDENT is an event that takes place without of law alleged to be contrary to such
one’s foresight or expectation. findings or conclusions.
MISTAKE generally refers to mistakes of fact or law

A pro forma motion for new trial or
where, in good faith, was misled in a case (i.e. a
reconsideration shall not toll the
party relying upon a compromise, failed to answer
reglementary period of appeal. (2a)
and was declared in default).
EXCUSABLE NEGLIGENCE depends upon the A motion for new trial, based on FAME must
circumstances of each case. include an affidavit of merit, which states:
1. Nature or character of FAME;
REQUISITES FOR NEWLY DISCOVERED 2. The facts constituting the movant’s good
EVIDENCE: and substantial defense or valid cause
1. It must have been discovered after the trial; of action;

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3. The evidence which he intends to present if amend such judgment or final order
his motion is granted. accordingly. (3a)
Motion for new trial on ground of FAME, to be Section 4. Resolution of motion. — A

supported by two (kinds of) affidavits; first, the one
motion for new trial or reconsideration
setting forth the circumstances alleged to constitute
shall be resolved within thirty (30) days
such FAME; and second, affidavit showing that the
movant has meritorious cause of action or defense from the time it is submitted for
(Phil. Commercial and Industrial Bank vs. Ortiz, 150 resolution. (n)
SCRA 380).
Section 5. Second motion for new trial.
Bar Exam Question 2011 — A motion for new trial shall include all
(77) A motion for reconsideration of a decision grounds then available and those not so
is pro forma when (A) it does not specify the included shall be deemed waived. A
defects in the judgment. second motion for new trial, based on a
(B) it is a second motion for reconsideration ground not existing nor available when
with an alternative prayer for new trial. the first motion was made, may be filed
(C) it reiterates the issues already passed upon within the time herein provided excluding
but invites a second look at the evidence and the time during which the first motion had
the arguments. (D) its arguments in support of been pending.
the alleged errors are grossly erroneous.
No party shall be allowed a second motion
for reconsideration of a judgment or final
PRO-FORMA MOTION
It is one where the movant fails to make reference to order (4a, 4, IRG)
testimonial and documentary evidence on record or
the provisions of law alleged to be contrary to the NOTE: The prohibition applies only to MR for
trial court’s conclusion as well as reasons thereof, or final order or judgment. it is NOT directed
if there is no affidavit of merit. against an interlocutory order
INDICATIONS OF PRO-FORMA MOTION:

Section 6. Effect of granting of motion
1. It is based on the same ground as that raised in for new trial. — If a new trial is granted
a denied motion under Rule 37;
in accordance with the provisions of this
2. It contains the same arguments in the
Rules the original judgment or final order
opposition to a granted motion to dismiss;
3. The new ground alleged in the second motion shall be vacated, and the action shall
for new trial already existed, was available and stand for trial de novo; but the recorded
could have been alleged in the first motion for evidence taken upon the former trial,
new trial which was denied; insofar as the same is material and
4. It is based on the ground of insufficiency of competent to establish the issues, shall be
evidence or that the judgment is contrary to law used at the new trial without retaking the
but does not specify the supposed defects in the same. (5a)
judgment;
5. It is based on FAME but does not specify the Section 7. Partial new trial or
facts constituting these grounds or is not reconsideration. — If the grounds for a
accompanied by affidavit of merit; and motion under this Rule appear to the court
6. Non-compliance of Rule 15 to affect the issues as to only a part, or
less than an of the matter in controversy,
Section 3. Action upon motion for new or only one, or less than all, of the parties
trial or reconsideration. — The trial court to it, the court may order a new trial or
may set aside the judgment or final order and grant reconsideration as to such issues if
grant a new trial, upon such terms as may be severable without interfering with the
just, or may deny the motion. If the court judgment or final order upon the rest.
finds that excessive damages have been (6a)
awarded or that the judgment or final order is
contrary to the evidence or law, it may

________________________________________________________________________________________________
Section 8. Effect of order for partial new Section 1. Petition for relief from
trial. — When less than all of the issues are judgment, order, or other
ordered retried, the court may either enter a proceedings. — When a judgment or
judgment or final order as to the rest, or stay final order is entered, or any other
the enforcement of such judgment or final proceeding is thereafter taken against a
order until after the new trial. (7a) party in any court through fraud,
accident, mistake, or excusable
Section 9. Remedy against order denying negligence, he may file a petition in such
a motion for new trial or court and in the same case praying that
reconsideration. — An order denying a the judgment, order or proceeding be set
motion for new trial or reconsideration is not aside. (2a)
appealed, the remedy being an appeal from
the judgment or final order. (n) Note: “any court” means trial courts, not the CA
or the SC.
Note that certiorari may be availed-of when there is
grave abuse of discretion. NOTE: Where petition for relief is denied or
granted, petition for certiorari is the proper
remedy.
MOTION FOR MOTION FOR RE-OPENING
NEW TRIAL OF THE TRIAL
Note: Appellate court cannot reverse the
Not mentioned in the Rules judgment subject of the petition for relief which is
but is nevertheless a denied, because the judgment from which relief
recognized procedural is sought is already final and executory. The
Specifically recourse deriving validity and appellate will just reverse the denial or
mentioned in the acceptance from long dismissal, and SET ASIDE the judgment in the
Rules established usage. This is main case and REMAND the case to the lower
however, mentioned in Rules court for new trial.
of Criminal Procedure (Rule
119, sec.24)
May be properly presented Section 2. Petition for relief from
Proper only after only after either or both denial of appeal. — When a judgment or
promulgation of parties have formally offered final order is rendered by any court in a
judgment and closed their evidence case, and a party thereto, by fraud,
before judgment accident, mistake, or excusable
Controlled by no other rule negligence, has been prevented from
Based on specific than the paramount interest of taking an appeal, he may file a petition in
grounds set forth justice, resting entirely on the such court and in the same case praying
under Rule 37 sound discretion or the court, that the appeal be given due course. (1a)
and Rule 121 in the exercise of which will not
Criminal cases be reviewed on appeal
UNLESS clear abuse thereof RULE 37 RULE 38
is shown Available before Available after the
judgment become final judgment has become
Rule 119, Section 24. Reopening. — At any time and executory final and executory
before finality of the judgment of conviction, the judge
Applies to judgments,
may, motu proprio or upon motion, with hearing in either
case, reopen the proceedings to avoid a miscarriage of Applies to judgments final orders, and other
justice. The proceedings shall be terminated within thirty or final orders only proceedings: Land
(30) days from the order granting it. Registration; Special
Proceedings; Order of
Execution
Grounds: FAME and
NEWLY Ground: FAME
RULE 38 DISCOVERED
EVIDENCE
Relief from Judgments, Orders, or Other Availed within 60 days
Proceedings Availed within the time from knowledge of
to appeal judgment and within 6
NOTE: A mere continuation of the main action. Not months from entry of
an independent action. judgment

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Denial is not Denial is not
appealable. The appealable. The Petition for Relief & Action for Annulment (2002)
remedy is to appeal remedy is appropriate May an order denying the probate of a will still be
from the judgment special civil action overturned after the period to appeal therefrom has
under rule 65 lapsed? Why? (3%)
Legal remedy Equitable remedy SUGGESTED ANSWER:
Motion need not be Petition must be Yes, an order denying the probate of a will may be
verified verified overturned after the period to appeal therefrom has
lapsed. A PETITION FOR RELIEF may be filed
on the grounds of fraud, accident, mistake or
The two periods fixed by Rule 38 for filing of the excusable negligence within a period of sixty (60)
petition are never interrupted and not extendible. days after the petitioner learns of the judgment or
final order and not more than six (6) months after
such judgment or final order was entered [Rule 38,
NOTE: a party who has filed a timely motion for new secs. 1 & 3; Soriano v. Asi, 100 Phil. 785 (1957)].
trial/or reconsideration cannot file a petition for relief An ACTION FOR ANNULMENT may also be
after his motion has been denied. These remedies filed
are exclusive of each other. It is only in appropriate on the ground of extrinsic fraud within four (4) years
cases where a party aggrieved by the judgment has
from its discovery, and if based on lack of
not been able to file a motion for new trial/or
jurisdiction,
reconsideration that a petition for relief can be filed
before it is barred by laches or estoppel. (Rule 47, secs. 2
(Francisco vs. Puno, 108 SCRA 427). & 3)
Section 3. Time for filing petition; FORM AND CONTENTS OF THE PETITION:
contents and verification. — A petition
provided for in either of the preceding 1. Petition must be verified;
sections of this Rule must be verified, filed 2. Petition is accompanied by affidavit
within sixty (60) days after the petitioner showing FAME relied upon;
learns of the judgment, final order, or other 3. Must also show the facts constituting the
proceeding to be set aside, and not more petitioner’s good and substantial cause
than six (6) months after such judgment or of action or defense, as the case may
final order was entered, or such proceeding be.
was taken, and must be accompanied with
An affidavit of merit serves as the jurisdictional
affidavits showing the fraud, accident,
basis of the court to entertain a petition for.
mistake, or excusable negligence relied upon,
However, it is not a fatal defect to warrant denial
and the facts constituting the petitioner's
of the petition so long as the facts required to be
good and substantial cause of action or set out also appear in the verified petition.
defense, as the case may be. (3)
Instances when affidavit of merits is not
Q. When is service of a copy of the judgment, final necessary:
order or other proceeding deemed complete for the
purpose of determining the 60-day period? 1. Where no jurisdiction over the
defendant;
Ans. If the addressee fails to claim his mail from the 2. Where no jurisdiction over the subject
Post Office within five (5) days from the date of the matter;
first notice, service becomes effective upon the 3. Where judgment was taken by default;
expiration of five days therefrom (Sec. 10, Rule 13). 4. Other similar cases.
The 60-day period for filing a petition for relief must
be reckoned from such date as this was the day Section 4. Order to file an answer. — If
when the actual receipt by petitioner may be
the petition is sufficient in form and
presumed. Failure to claim registered mail of which
substance to justify relief, the court in
notice has been duly given by the Postmaster, not
an excusable negligence. (Quelnan vs VHF Phil., L- which it is filed, shall issue an order
138500, Sept. 16, 2005, 470 SCRA 73, 3rd Div.). requiring the adverse parties to answer
the same within fifteen (15) days from the
NOTE: Even if filed during the pendency of the receipt thereof. The order shall be served
period to appeal, the petition for relief from judgment in such manner as the court may direct,
may be treated as a Motion for New Trial. The together with copies of the petition and
grounds are the same (FAME). the accompanying affidavits. (4a)

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Section 5. Preliminary injunction pending
proceedings. — The court in which the
petition is filed may grant such preliminary RULE 39
injunction as may be necessary for the
preservation of the rights of the parties, upon Execution, Satisfaction and Effect of
the filing by the petitioner of a bond in favor Judgments
of the adverse party, conditioned that if the
petition is dismissed or the petitioner fails on EXECUTION is the remedy provided by law for
the trial of the case upon its merits, he will the enforcement of a final judgment.
pay the adverse party all damages and costs
that may be awarded to him by reason of the AGAINST WHOM ISSUED: Execution can only
issuance of such injunction or the other issue against a party and not against one who
proceedings following the petition, but such has not had his day in court.
injunction shall not operate to discharge or
extinguish any lien which the adverse party WRIT OR EXECUTION is the judicial writ issued
may have acquired upon, the property, of the to an officer authorizing him to execute the
petitioner. (5a) judgment of the court.
Court cannot motu proprio issue writ of
execution. There must be a motion
Section 6. Proceedings after answer is
(Review Lecture).
filed. — After the filing of the answer or the
expiration of the period therefor, the court ESSENTIAL REQUISITE OF A WRIT OF
shall hear the petition and if after such EXECUTION:
hearing, it finds that the allegations thereof A writ of execution to be valid must conform
are not true, the petition shall be dismissed; strictly to the decision or judgment which gives it
but if it finds said allegations to be true, it life.
shall set aside the judgment or final order or
other proceeding complained of upon such It cannot VARY the terms of the judgment it
terms as may be just. Thereafter the case seeks to enforce.
shall stand as if such judgment, final order or
other proceeding had never been rendered, NOTE: Where the judgment of the SC which
issued or taken. The court shall then proceed did not provide for the payment of interest is
to hear and determine the case as if a timely already final, no interest may be awarded by
motion for a new trial or reconsideration had the RTC for purposes of execution (Cariaga
been granted by it. (6a) vs. Laguna Tayabas Bus Co., 114 Phil.
1219).
Note that there are two hearings in this section:
 What the prevailing party should
have done is to file a motion for
a. Hearing to determine whether the judgment
modification of judgment with the
should be set aside;
SC.
b. If petition is meritorious, hearing on the
merits of the case.
BUT, appellate court may award interest and
attorney’s fees, although none was awarded
by lower (trial) court and even if no appeal is
Section 7. Procedure where the denial of taken by the prevailing party (Enecilla vs.
an appeal is set aside. — Where the denial Magsaysay, 17 SCRA 125; Cabral vs. CA,
of an appeal is set aside, the lower court shall 178 CRA 90).
be required to give due course to the appeal
and to elevate the record of the appealed BUT where the prevailing party did not appeal;
case as if a timely and proper appeal had appellate court cannot increase the amount
been made. (7a) awarded by the trial court even if increased
amount is supported by evidence.
NOTE: Rule 37 and 38 not applicable in Summary
Procedure. The rule is different in a criminal case. Even if
the offended party did not appeal, appellate
Rule 38 not applicable in the Supreme Court (not a court can increase award in civil indemnity if
trier of facts) supported by evidence.

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6. Judgment has become dormant;
7. Where judgment turns out to be incomplete
FINAL JUDGMENT OR ORDER or conditional.
It is the one which disposes of the whole subject
matter or terminates the particular proceedings or NOTE: A petition under Rule 38 will not stop the
action, leaving nothing to be done by the court but to execution of judgment that had already become
enforce by execution what has been determined. final and executory. But a TRO may be obtained
in proper cases.
TEST TO DETERMINE WHETHER A JUDGMENT
OR ORDER IS FINAL OR INTERLOCUTORY: Bar Exam Question 2011
(31) The city prosecutor charged Ben with
If the judgment or order leaves nothing more for the serious physical injuries for stabbing
court to do with respect to the merits of the case, it Terence. He was tried and convicted as
is a final order. Otherwise, it is an interlocutory charged. A few days later, Terence died due
order. to severe infection of his stab wounds. Can
the prosecution file another information
SPECIAL JUDGMENT is one that requires the against Ben for homicide? (A) Yes, since
performance of an act other than: Terence’s death shows irregularity in the
1. The payment of money; filing of the earlier charge against him. (B)
2. Sale of real or personal property. No, double jeopardy is present since Ben
had already been convicted of the first
Section 1. Execution upon judgments or offense.
final orders. — Execution shall issue as a (C) No, there is double jeopardy since
matter of right, or motion, upon a judgment serious physical injuries is necessarily
or order that disposes of the action or included in the charge of homicide. (D) Yes,
proceeding upon the expiration of the period since supervening event altered the kind
to appeal therefrom if no appeal has been of crime the accused committed
duly perfected. (1a)
Judgment; Interlocutory Order; Partial Summary
Judgments (2004)
If the appeal has been duly perfected and
After defendant has served and filed his answer to
finally resolved, the execution may forthwith plaintiffs complaint for damages before the proper
be applied for in the court of origin, on RTC, plaintiff served and filed a motion (with
motion of the judgment obligee, submitting supporting affidavits) for a summary judgment in his
therewith certified true copies of the favor upon all of his claims. Defendant served and
judgment or judgments or final order or filed his opposition (with supporting affidavits) to
orders sought to be enforced and of the entry the motion. After due hearing, the court issued an
thereof, with notice to the adverse party. order (1) stating that the court has found no genuine
issue as to any material fact and thus concluded that
The appellate court may, on motion in the plaintiff is entitled to judgment in his favor as a
same case, when the interest of justice so matter of law except as to the amount of damages
requires, direct the court of origin to issue recoverable, and (2) accordingly ordering that
the writ of execution. (n) plaintiff shall have judgment summarily against
defendant for such amount as may be found due
GR: Court cannot refuse execution: plaintiff for damages, to be ascertained by trial on
Exceptions: October 7, 2004, at 8:30 o'clock in the morning. May
defendant properly take an appeal from said order?
1. Execution is unjust; Or, may defendant properly challenge said order
2. Execution is impossible; thru a special civil action for certiorari? Reason. (5%)
3. Change of situation of the parties making SUGGESTED ANSWER:
execution inequitable; No, plaintiff may not properly take an appeal from
Doctrine of Supervening Events: when certain said order because it is an interlocutory order, not a
circumstances transpired after the judgment final and appealable order (Sec. 4 of Rule 35). It does not
became final and executory which would render dispose of the action or proceeding (Sec. 1 of Rule 39).
execution of the judgment unjust (Cabrias vs.
Adil, 135 SCRA 354). PARTIAL SUMMARY JUDGMENTS are
interlocutory. There is still something to be done,
4. Judgment is novated by the parties; which is the trial for the adjudication of damages
5. Execution is injoined; (Province of Pangasinan v. Court of Appeals, 220 SCRA

________________________________________________________________________________________________
726 [1993J; Guevarra v. Court of Appeals, 209 Phil. 241 After the trial court has lost jurisdiction
[1983]), but the defendant may properly challenge said the motion for execution pending appeal
order thru a special civil action for certiorari. (Sec. 1 [c] may be filed in the appellate court.
and last par. of Rule 41)
QUASHAL OF WRIT OF EXECUTION proper Discretionary execution may only issue

when: upon good reasons to be stated in a
1. Improvidently issued; special order after due hearing.
2. Defective in substance;
3. Issued against the wrong party; (b) Execution of several, separate or
4. Judgment was already satisfied; partial judgments. — A several,
5. Issued without authority; separate or partial judgment may
6. There is a change of circumstances between be executed under the same terms
the parties making execution inequitable; and conditions as execution of a
7. The controversy was never submitted to the judgment or final order pending
court. appeal. (2a)
Note: GR: The dispositive portion of the decision is
the part that becomes the subject of execution. EXECUTION AS A DISCRETIONARY
MATTER OF RIGHT EXECUTION
EXCEPTIONS: Period to appeal has May issue even before
already lapsed and no the lapse of period to
1. Where there is ambiguity, the body of the appeal perfected appeal, and even
opinion may be referred to for purposes of during appeal
construing the judgment because the dispositive Ministerial duty of the Discretionary upon the
part of a decision must find support from the court, UNLESS there court, upon inquiry on
decision’s ratio decidendi (Mutual Security Ins. are supervening whether there is good
Corp. vs. CA153 SCRA 678); events reason for execution
2. Where the extensive and explicit discussion and

settlement of the issue is in the body of the EXECUTION PENDING APPEAL
decision (Wilson Ong Kian Chung vs. Chinese
national Cereals Oil and Foodstuffs Import and GROUNDS:
Export Corp. GR NO. 131502, June 8, 2000. 1. Insolvency of the judgment debtor;
2. Wastage of asset by judgment debtor.
When writ of execution varies the terms of the
dispositive portion, the defeated party CAN FILE: The court may, in its discretion, order an
execution before the expiration of the time within
1. Motion to quash writ of execution; if denied, which to appeal PROVIDED:
2. File petition for certiorari under Rule 65 with 1. There is a motion for execution filed by
prayer for TRO. the winning party;
2. There is notice of such motion to the
adverse party;
3. There are good reasons stated in a
special order after hearing;
Section 2. Discretionary execution. — 4. Bond (when required by the court).
(a) Execution of a judgment or final order Insolvency of a defendant not good reason for
pending appeal. — On motion of the discretionary execution if co-defendant is solvent
prevailing party with notice to the adverse and their liability under the judgment is either
party filed in the trial court while it has subsidiary (e. g., principal debtor and guarantor)
jurisdiction over the case and is in possession or solidary. (Flexo Maftg. Corp. vs Columbus
of either the original record or the record on Foods, Inc., L-164857, April 11, 2005, 455
SCRA 272, First Div.).
appeal, as the case may be, at the time of
the filing of such motion, said court may, in
Comment: It is implied from Flexo Maftg. Corp.
its discretion, order execution of a judgment
that where there is only one defendant, his
or final order even before the expiration of insolvency is a good reason to support an order
the period to appeal. granting discretionary execution.

________________________________________________________________________________________________
Note: Judgment awarding moral and exemplary GR: An order of execution is not appealable.
damages cannot be a subject of execution pending Otherwise there would be no end of litigation
appeal. Award for moral and exemplary damages is (Rule 41, sec. 1[f].
dependent on the outcome of the main case
(International School Inc. vs. CA, L-131109, June Exceptions:
29, 1999). 1. When terms of judgment is not very
clear;
Judgment; Execution pending Appeal (2002) 2. When the order of execution varies the
The trial court rendered judgment ordering the tenor of the judgment.
defendant to pay the plaintiff moral and exemplary
damages. The judgment was served on the plaintiff on Judgment; Execution; Stay (2009)
October 1, 2001 and on the defendant on October 5, No.XII. Mike was renting an apartment unit
2001. On October 8, 2001, the defendant filed a notice in the building owned by Jonathan. When
of appeal from the judgment, but the following day, Mike failed to pay six months’ rent,
October 9, 2001, the plaintiff moved for the execution Jonathan filed an ejectment suit. The
of the judgment pending appeal. The trial court granted Municipal Trial Court (MTC) rendered
the motion upon the posting by the plaintiff of a bond judgement in favor of Jonathan, who then
to indemnify the defendant for damages it may suffer as filed a motion for the issuance of a writ of
a result of the execution. The court gave as a special execution. The MTC issued the writ. (a) How
reason for its order the imminent insolvency of the can mike stay the execution of the MTC
defendant. Is the order of execution pending appeal judgment? (2%) SUGGESTED ANSWER:
correct? Why? (5%) Execution shall issue immediately upon
SUGGESTED ANSWER: motion, unless Mike (a) perfects his
No, because awards for moral and exemplary damages appeal to the RTC, (b) files a sufficient
cannot be the subject of execution pending appeal. The supersedeas bond to pay the rents,
execution of any award for moral and exemplary damages is damages and costs accruing up to the
dependent on the outcome of the main case. Liabilities time of the judgment appealed from, and
for moral and exemplary damages, as well as the exact (c) deposits monthly with the RTC
amounts remain uncertain and indefinite pending resolution during the pendency of the appeal the
by the Court of Appeals or Supreme Court. [RCPI v. Lantin, amount of rent due from time to time
134 SCRA 395 (1985); International School Inc. v. Court of
Appeals, 309 SCRA 474 (1999)]. (Rule 70, Sec. 19). (b) Mike appealed to the
ALTERNATIVE ANSWER: Regional Trial Court, which affirmed the
Yes, because only moral and exemplary damages are MTC decision. Mike then filed a petition for
awarded in the judgment and they are not dependent review with the Court of Appeals. The CA
on other types of damages. Moreover, the motion for dismissed the petition on the ground that
execution was filed while the court had jurisdiction over the sheriff had already executed the MTC
the case and was in possession of the oiginal record. decision and had ejected Mike from the
It is based on good reason which is the imminent premises, thus rendering the appeal moot
insolvency of the defendant. (Rule 39, sec. 2) and academic. Is the CA correct? (3%)
Reasons. SUGGESTED ANSWER:
Section 3. Stay of discretionary NO. The Court of Appeals is not correct.
The dismissal of the appeal is wrong,
execution. — Discretionary execution issued
because the execution of the RTC
under the preceding section may be stayed
judgment is only in respect of the
upon approval by the proper court of a
eviction of the defendant from the
sufficient supersedeas bond filed by the party
leased premises. Such execution pending
against whom it is directed, conditioned upon appeal has no effect on the merits of the
the performance of the judgment or order ejectment suit which still has to be
allowed to be executed in case it shall be resolved in the pending appeal. Rule 70,
finally sustained in whole or in part. The bond Sec. 21 of the Rules provides that the
thus given may be proceeded against on RTC judgment against the defendant
motion with notice to the surety. (3a ) shall be immediately executor, “without
prejudice to a further appeal” that may
 Supersedeas bond guarantees the be taken therefrom (Uy vs. Santiago, 336
performance of judgment in case of SCRA 680 [2000]).
affirmance on appeal, not other things like
damage to property pending appeal.

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Section 4. Judgments not stayed by thereafter by action before it is barred by
appeal. — Judgments in actions for the statute of limitations. (6a)
injunction, receivership, accounting and
support, and such other judgments as are Judgment; Enforcement; 5yr Period
now or may hereafter be declared to be (2007) No.X. (b) A files a case against B.
immediately executory, shall be enforceable While awaiting decision on the case, A goes
after their rendition and shall not, be stayed to the United States to work. Upon her
by an appeal taken therefrom, unless return to the Philippines, seven years later,
otherwise ordered by the trial court. On A discovers that a decision was rendered by
appeal therefrom, the appellate court in its the court in here favor a few months after
discretion may make an order suspending, she had left. Can A file a motion for
modifying, restoring or granting the execution of the judgment? Reason briefly.
injunction, receivership, accounting, or award (5%) SUGGESTED ANSWER: On the
of support. assumption that the judgment had been
final and executory for more than five (5)
years as of A‟s return to the Philippines
The stay of execution shall be upon such
seven (7) years later, a motion for
terms as to bond or otherwise as may be
execution of the judgment is no longer
considered proper for the security or
availing because the execution of
protection of the rights of the adverse party. judgment by mere motion is allowed by
(4a) the Rules only within five (5) years from
entry of judgment; thereafter, and within
Judgments not stayed by appeal: ten (10) years from entry of judgment,
1. Injunction; an action to enforce the judgment is
2. Receivership required.
3. Accounting;
4. Support;
5. Other judgment declared to be immediately NOTE: Judgment for support does not become
executory, unless otherwise decreed by the dormant, thus it can always be executed by
court. motion.
(Judgment in Forcible Entry and Unlawful The 5-year period may be extended by the
Detainer is immediately executory – Rule 70, conduct or acts imputable to the judgment
sec. 19). debtor.
If delay in execution is occasioned by
Support is immediately executory because it is losing party, motion for alias writ of
needed and its delay may unduly prejudice the execution filed by prevailing party,
one in need of it. constitutes petition for revival of
judgment (David vs. Ejercito, 71 SCRA
484).
Section 5. Effect of reversal of executed
judgment. — Where the executed judgment Action to Revive Judgment is an action
is reversed totally or partially, or annulled, on incapable of pecuniary estimation. Thus,
appeal or otherwise, the trial court may, on jurisdiction is with the RTC (Review Lecture).
motion, issue such orders of restitution or
reparation of damages as equity and justice A revived judgment is a new judgment thus
may warrant under the circumstances. (5a) another 5/10 rear period to execute and revive is
given the party. That 2nd revived judgment can
again be enforced under sec. 6.
Section 6. Execution by motion or by
independent action. — A final and NOTE: However, the revive judgment cannot
executory judgment or order may be modify the original judgment (Francisco vs.
executed on motion within five (5) years Bautista, 192 SCRA 388).
from the date of its entry. After the lapse of
such time, and before it is barred by the Judgment; Enforcement; 5-year period (1997)
statute of limitations, a judgment may be A, a resident of Dagupan City, secured a favorable
enforced by action. The revived judgment judgment in an ejectment case against X, a resident
may also be enforced by motion within five of
(5) years from the date of its entry and

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Quezon City, from the MTCof Manila. The judgment, situation, judgment oblige should file a
entered on 15 June 1991, had not as yet been executed. claim against the estate of the judgment
a) In July 1996, A decided to enforce the judgment obligor under Rule 86.
of the MTCof Manila. What is the procedure to be
followed by A in enforcing the judgment? b) With what
court should A institute the proceedings? Judgment; Execution; Judgment
SUGGESTED ANSWER: Obligor‟s Death (2009)
(a) A can enforce the judgment by another action No.VII. Cresencio sued Dioscoro for
reviving the Judgment because it can no longer be colletion of a sum of money. During the
enforced by motion as the five-year period within trial, but after the presentation of plaintiff’s
which a judgment may be enforced by motion has evidence, Dioscoro died. Atty. Cruz,
already expired. (Sec. 6 of former and new Rule 39). Dioscoro’s counsel, then filed a motion to
(b) A may institute the proceedings in the RTC in dismiss the action on the ground of his
accordance with the rules of venue because the client’s death. The court denied the motion
enforcement of the Judgment is a personal action to dismiss and, instead, directed counsel to
incapable of pecuniary estimation. furnish the court with the names and
ALTERNATIVE ANSWER:
addresses of Dioscoro’s heirs and ordered
(b) A may institute the proceeding in a MTCwhich has
that the designated administrator of
jurisdiction over the area where the real property
Dioscoro’s estate be substituted as
involved is situated. (Sec. 1 of Rule 4). representative party. After trial, the court
rendered judgment in favor of Cresencio.
Section 7. Execution in case of death of When the decision had become final and
party. — In case of the death of a party, executory, Cresencio moved for the
execution may issue or be enforced in the issuance of a writ of execution against
following manner: Dioscoro’s estate to enforce his judgment
claim. The court issued the writ of
(a) In case of the death of the judgment execution. Was the court’s issuance of the
obligee, upon the application of his executor writ of execution proper? Explain.
or administrator, or successor in interest; SUGGESTED ANSWER: No, the issuance
of a writ of execution by the court is not
proper and is in excess of jurisdiction,
(b) In case of the death of the judgment
since the judgment obligor is already
obligor, against his executor or administrator
dead when the writ was issued. The
or successor in interest, if the judgment be
judgment for money may only be
for the recovery of real or personal property, enforced against the estate of the
or the enforcement of a lien thereon; deceased defendant in the probate
proceedings, by way of a claim filed with
(c) In case of the death of the judgment the probate court. Cresencio should
obligor, after execution is actually levied enforce that judgment in his favor in the
upon any of his property, the same may be settlement proceedings of the estate of
sold for the satisfaction of the judgment Dioscoro as a money claim in accordance
obligation, and the officer making the sale with the Rule 86 or Rule 88 as the case
shall account to the corresponding executor may be.
or administrator for any surplus in his hands.
(7a) Bar Exam Question 2012
36. If the judgment debtor dies after entry
A. In case of death of judgment obligee of judgment, execution of a money
judgment may be done by:
a. presenting the judgment as a claim for
Execution will issue in any case.
payment against the estate in a special
proceeding.
B [1]. In case of death of judgment obligor
b. filing a claim for the money judgment
before levy
with the special administrator of the estate
of the debtor.
Execution will issue if the action is for c. filing a claim for the money judgment
recovery of real or personal property or any with the debtor's successor in interest.
interest thereon. d. move for substitution of the heirs of the
Execution will NOT issue if the action is for debtor and secure a writ of execution.
the recovery of sum of money. In this

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SUGGESTED ANSWER: the Philippines from the court which
(a), If death occurs after judgment has granted the motion; (2) state the name of
already been entered, the final judgment the court, the case number and title, the
shall be enforced as money claim against dispositive part of the subject judgment or
the estate of the deceased defendant order; and (3) require the sheriff or other
without the necessity of proving the same. proper officer to whom it is directed to
(Paredes vs. Moya, 61 SCRA 526, 1970). enforce the writ according to its terms, in
the manner hereinafter provided:
Actions; Survives Death of the Defendant (2000)
PJ engaged the services of Atty. ST to represent him in a (a) If the execution be against the
civil case filed by OP against him which was docketed as property of the judgment obligor, to
Civil Case No. 123. A retainership agreement was satisfy the judgment, with interest, out of
executed between PJ and Atty. ST whereby PJ promised the real or personal property of such
to pay Atty. ST a retainer sum of P24,000.00 a year and judgment obligor;
to transfer the ownership of a parcel of land to Atty. ST
after presentation of PJ’s evidence. PJ did not comply (b) If it be against real or personal
with his undertaking. Atty. ST filed a case against PJ property in the hands of personal
which was docketed as Civil Case No. 456. During the representatives, heirs, devisees, legatees,
trial of Civil Case No. 456, PJ died. 1 Is the death of PJ a tenants, or trustees of the judgment
valid ground to dismiss the money claim of Atty. ST in obligor, to satisfy the judgment, with
Civil Case No. 456? Explain. (2%) interest, out of such property;
2 Will your answer be the same with respect to the real
property being claimed by Atty. ST in Civil Case No. (c) If it be for the sale of real or personal
456? Explain (2%) property to sell such property describing
SUGGESTED ANSWER:
1 No. Under Sec. 20, Rule 3, 1997 Rules of Civil it, and apply the proceeds in conformity
Procedure, when the action is for recovery of money with the judgment, the material parts of
arising from contract, express or implied, and the which shall be recited in the writ of
defendant dies before entry of final judgment in the execution;
court in which the action is pending at the time of such
death, it shall not be dismissed but shall instead be (d) If it be for the delivery of the
allowed to continue until entry of final judgment. A possession of real or personal property, to
favorable judgment obtained by the plaintiff shall be deliver the possession of the same,
enforced in the manner especially provided in the Rules describing it, to the party entitled thereto,
for prosecuting claims against the estate of a deceased and to satisfy any costs, damages, rents,
person. or profits covered by the judgment out of
2 Yes, my answer is the same. An action to recover real the personal property of the person
property in any event survives the death of the against whom it was rendered, and if
defendant. (Sec. 1, Rule 87, Rules of Court). However, a sufficient personal property cannot be
favorable judgment may be enforced in accordance with found, then out of the real property; and
Sec. 7(b) Rule 39 (1997 Rules of Civil Procedure) against
the executor or administrator or successor in interest of (e) In all cases, the writ of execution shall
the deceased. specifically state the amount of the
interest, costs, damages, rents, or profits
due as of the date of the issuance of the
B [2]. In case of death of judgment obligor after
writ, aside from the principal obligation
levy.
under the judgment. For this purpose, the
Execution will issue in any case. motion for execution shall specify the
amounts of the foregoing reliefs sought by
REASON: After a valid levy, the property is already the movant.(8a)
separated from the estate of the deceased and is
deemed in custodial legis. Section 9. Execution of judgments for
money, how enforced. —
Section 8. Issuance, form and contents of
a writ of execution. — The writ of execution (a) Immediate payment on demand. —
shall: (1) issue in the name of the Republic of The officer shall enforce an execution of a

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judgment for money by demanding from the and then on the real properties if the
judgment obligor the immediate payment of personal properties are insufficient to
the full amount stated in the writ of execution answer for the judgment.
and all lawful fees. The judgment obligor shall
pay in cash, certified bank check payable to The sheriff shall sell only a sufficient
the judgment obligee, or any other form of portion of the personal or real property of
payment acceptable to the latter, the amount the judgment obligor which has been
of the judgment debt under proper receipt levied upon.
directly to the judgment obligee or his
authorized representative if present at the When there is more property of the
time of payment. The lawful fees shall be judgment obligor than is sufficient to
handed under proper receipt to the executing satisfy the judgment and lawful fees, he
sheriff who shall turn over the said amount must sell only so much of the personal or
within the same day to the clerk of court of real property as is sufficient to satisfy the
the court that issued the writ. judgment and lawful fees.
If the judgment obligee or his authorized Real property, stocks, shares, debts,
representative is not present to receive credits, and other personal property, or
payment, the judgment obligor shall deliver any interest in either real or personal
the aforesaid payment to the executing property, may be levied upon in like
sheriff. The latter shall turn over all the manner and with like effect as under a
amounts coming into his possession within writ of attachment.
the same day to the clerk of court of the
court that issued the writ, or if the same is
(c) Garnishment of debts and credits.
not practicable, deposit said amounts to a
— The officer may levy on debts due the
fiduciary account in the nearest government
judgment obligor and other credits,
depository bank of the Regional Trial Court of
including bank deposits, financial
the locality.
interests, royalties, commissions and
other personal property not capable of
The clerk of said court shall thereafter manual delivery in the possession or
arrange for the remittance of the deposit to control of third parties. Levy shall be
the account of the court that issued the writ made by serving notice upon the person
whose clerk of court shall then deliver said owing such debts or having in his
payment to the judgment obligee in possession or control such credits to which
satisfaction of the judgment. The excess, if the judgment obligor is entitled. The
any, shall be delivered to the judgment garnishment shall cover only such amount
obligor while the lawful fees shall be retained as will satisfy the judgment and all lawful
by the clerk of court for disposition as fees.
provided by law. In no case shall the
executing sheriff demand that any payment
The garnishee shall make a written report
by check be made payable to him.
to the court within five (5) days from
service of the notice of garnishment
(b) Satisfaction by levy. — If the judgment stating whether or not the judgment
obligor cannot pay all or part of the obligation obligor has sufficient funds or credits to
in cash, certified bank check or other mode of satisfy the amount of the judgment. If
payment acceptable to the judgment obligee, not, the report shall state how much funds
the officer shall levy upon the properties of or credits the garnishee holds for the
the judgment obligor of every kind and judgment obligor. The garnished amount
nature whatsoever which may be disposed, of in cash, or certified bank check issued in
for value and not otherwise exempt from the name of the judgment obligee, shall
execution giving the latter the option to be delivered directly to the judgment
immediately choose which property or part obligee within ten (10) working days from
thereof may be levied upon, sufficient to service of notice on said garnishee
satisfy the judgment. If the judgment obligor requiring such delivery, except the lawful
does not exercise the option, the officer shall fees which shall be paid directly to the
first levy on the personal properties, if any, court.

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In the event there are two or more The garnishee or the third person who is in
garnishees holding deposits or credits possession of the property of the judgment
sufficient to satisfy the judgment, the debtor is deemed a forced intervenor.
judgment obligor, if available, shall have the
right to indicate the garnishee or garnishees Writ of Capias Ad Satisfaciendum
who shall be required to deliver the amount By means of this writ, a debtor could be seized
due, otherwise, the choice shall be made by and imprisoned at the instance of the creditor
until he makes the satisfaction awarded. A
the judgment obligee.
practice at COMMON LAW during the early part
of 19th century in various states of the American
The executing sheriff shall observe the same Union (Luzano vs. Martinez, 146 SCRA 324).
procedure under paragraph (a) with respect
to delivery of payment to the judgment NOTE: This is not practiced in the Philippines
obligee. (8a, 15a) because it is prohibited by the constitution on
“non-imprisonment for debt”.
Money judgments enforced by: GR: Writ of execution cannot be enforced
1. Immediate payment on demand; against person not a party to the case;
2. Satisfaction by levy; exception, e.g., buyer in bad faith treated in the
3. Garnishment of debts and credits. same manner as transferee pendente lite. The
writ of execution may be enforced against the
ATTACHMENT GARNISHMENT purchaser of the party, who knew of the
It refers to money, existence of the pending case involving the
stocks, credits and property, even though the notice of lis pendens
It refers to corporeal other incorporeal has been erroneously cancelled prematurely. He
property in the property which belong is a buyer in bad faith (Lising vs. Plan, 133
possession of the to the judgment debtor SCRA 194).
judgment debtor but is in the possession
or control of a 3rd
person Section 10. Execution of judgments for
specific act. —
LEVY is an act by which an officer sets apart or
appropriates a part or whole property of the (a) Conveyance, delivery of deeds, or
judgment debtor for purposes of execution sale. other specific acts; vesting title. — If a
judgment directs a party to execute a
The sheriff can validly levy any properties of the
conveyance of land or personal property,
judgment obligor, not exempt from execution, which
may be disposed of for value. The judgment obligor or to deliver deeds or other documents, or
has the option to choose which property to levy to perform, any other specific act in
upon. connection therewith, and the party fails
to comply within the time specified, the
If he does not exercise the option, the officer shall court may direct the act to be done at the
first levy on the personal properties, if any, and then cost of the disobedient party by some
on the real properties if personal properties are other person appointed by the court and
insufficient to answer for the judgment. the act when so done shall have like effect
as if done by the party. If real or personal
GARNISHMENT is an act of appropriation by the property is situated within the Philippines,
court when the property of the debtor is in the hands the court in lieu of directing a conveyance
of a third person. thereof may by an order divest the title of
A specie of attachment for reaching any property or any party and vest it in others, which shall
credits pertaining or payable to a judgment debtor. have the force and effect of a conveyance
executed in due form of law. (10a)
The sheriff may levy on debts due the judgment
obligor and other credits, including bank deposits,
financial interests, royalties, commissions and other (b) Sale of real or personal property.
personal property not capable of manual delivery in — If the judgment be for the sale of real
the possession or control of a third person. or personal property, to sell such
property, describing it, and apply the
proceeds in conformity with the judgment.
(8[c]a)

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(c) Delivery or restitution of real The party cannot be cited in contempt
property. — The officer shall demand of the because the order is directed to the
person against whom the judgment for the sheriff. But indirect contempt is
delivery or restitution of real property is committed under Rule 71, sec. 3[b] –
rendered and all persons claiming rights
under him to peaceably vacate the property (b) Disobedience of or resistance to a
within three (3) working days, and restore lawful writ, process, order, or judgment of a
court, including the act of a person who, after
possession thereof to the judgment obligee, being dispossessed or ejected from any real
otherwise, the officer shall oust all such property by the judgment or process of any
persons therefrom with the assistance, if court of competent jurisdiction, enters or
necessary, of appropriate peace officers, and attempts or induces another to enter into or
employing such means as may be reasonably upon such real property, for the purpose of
executing acts of ownership or possession,
necessary to retake possession, and place the
or in any manner disturbs the possession
judgment obligee in possession of such given to the person adjudged to be entitled
property. Any costs, damages, rents or thereto
profits awarded by the judgment shall be
satisfied in the same manner as a judgment Bar Exam Question 2011
for money. (13a) (48) How will the court sheriff enforce the
demolition of improvements? (A) He will give
(d) Removal of improvements on a 5-day notice to the judgment obligor and,
property subject of execution. — When if the latter does not comply, the sheriff will
the property subject of the execution have the improvements forcibly demolished.
contains improvements constructed or (B) He will report to the court the judgment
planted by the judgment obligor or his agent, obligor’s refusal to comply and have the
the officer shall not destroy, demolish or latter cited in contempt of court. (C) He will
remove said improvements except upon demolish the improvements on special
special order of the court, issued upon order of the court, obtained at the
motion of the judgment obligee after the judgment obligee‟s motion. (D) He will
hearing and after the former has failed to inform the court of the judgment obligor’s
remove the same within a reasonable time noncompliance and proceed to demolish the
fixed by the court. (14a) improvements.
B. IF PARTY REFUSES TO DELIVER:

(e) Delivery of personal property. — In
judgment for the delivery of personal The sheriff will take possession and
property, the officer shall take possession of then deliver it to the winning party.
the same and forthwith deliver it to the party
entitled thereto and satisfy any judgment for C. WHEN THE PARTY REFUSES TO
money as therein provided. (8a) COMPLY:
Execution of judgments of specific act: The court can appoint some other
1. Conveyance, delivery of deeds, or other person at the expense of the
specific acts vesting title; disobedient party and the act done shall
2. Sale of personal or real property; have the same effect as if the required
3. Delivery or restitution of real property; party performed it, the disobedient party
4. Removal of improvements on property incurs no liability for contempt.
subject of execution;
5. Delivery of personal property.
Section 11. Execution of special
A. IF THE PARTY REFUSES TO VACATE judgments. — When a judgment requires
THE PROPERTY: the performance of any act other than
those mentioned in the two preceding
The remedy is NOT CONTEMPT. The sections, a certified copy of the judgment
sheriff must oust the party. But if demolition shall be attached to the writ of execution
is involved, there must be a SPECIAL
and shall be served by the officer upon
ORDER.
the party against whom the same is
rendered, or upon any other person

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required thereby, or by law, to obey the (b) Ordinary tools and implements
same, and such party or person may be personally used by him in his trade,
punished for contempt if he disobeys such employment, or livelihood;
judgment. (9a)
(c) Three horses, or three cows, or three
SPECIAL JUDGMENT carabaos, or other beasts of burden, such
It is one which can only be complied with by the as the judgment obligor may select
judgment obligor because of his personal necessarily used by him in his ordinary
qualifications or circumstances (E.g. A contract to occupation;
pose in a particular magazine if the personal
qualification is the main consideration of the
(d) His necessary clothing and articles for
contract, or to sing on a particular concert).
ordinary personal use, excluding jewelry;
94. An example of a special judgment is one (e) Household furniture and utensils
which orders: necessary for housekeeping, and used for
a. the defendant to deliver and reconvey that purpose by the judgment obligor and
personal property to the plaintiff. his family, such as the judgment obligor
b. defendant to execute a Deed of Sale in favor may select, of a value not exceeding one
of plaintiff. hundred thousand pesos;
c. defendant to paint a mural for the
plaintiff. (f) Provisions for individual or family use
d. Defendant to vacate the leased premises. sufficient for four months;
SUGGESTED ANSWER:
(c), A special judgment is one which (g) The professional libraries and
requires the performance of any act other
equipment of judges, lawyers, physicians,
than the payment of money, or the sale or
pharmacists, dentists, engineers,
delivery of a real or personal property. A
surveyors, clergymen, teachers, and other
disobedience to such judgment is an
professionals, not exceeding three
indirect contempt, and the judgment is
hundred thousand pesos in value;
executed by contempt proceeding. (Sura vs.
Martin, 26, SCRA 286; Barrete vs. Amila,
230 SCRA 219; Magallanes vs. Sarita, 18 (h) One fishing boat and accessories not
SCRA 575; Moslem vs. Soriano, 124 SCRA exceeding the total value of one hundred
190; People vs. Pascual, 12326-CR, thousand pesos owned by a fisherman and
February 14, 1974). A judgment ordering by the lawful use of which he earns his
the defendant to paint a mural for the livelihood;
plaintiff is considered a special judgment.
(i) So much of the salaries, wages, or
earnings of the judgment obligor for his
Section 12. Effect of levy on execution as personal services within the four months
to third person. — The levy on execution preceding the levy as are necessary for
shall create a lien in favor of the judgment the support of his family;
obligee over the right, title and interest of the
judgment obligor in such property at the time (j) Lettered gravestones;
of the levy, subject to liens and
encumbrances then existing. (16a) (k) Monies, benefits, privileges, or
annuities accruing or in any manner
Section 13. Property exempt from growing out of any life insurance;
execution. — Except as otherwise expressly
provided by law, the following property, and (l) The right to receive legal support, or
no other, shall be exempt from execution: money or property obtained as such
support, or any pension or gratuity from
(a) The judgment obligor's family home as the Government;
provided by law, or the homestead in which
he resides, and land necessarily used in (m) Properties specially exempted by law.
connection therewith;

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But no article or species of property stating where the property is to be sold,
mentioned in this section shall be exempt and if the assessed value of the property
from execution issued upon a judgment exceeds fifty thousand (P50,000.00)
recovered for its price or upon a judgment of pesos, by publishing a copy of the notice
foreclosure of a mortgage thereon. (12a) once a week for two (2) consecutive
weeks in one newspaper selected by
NOTES: RA 4917 provides that retirement benefits raffle, whether in English, Filipino, or any
of employees in private firms shall be except from major regional language published, edited
attachment, levy, or execution or any tax and circulated or, in the absence thereof,
whatsoever. Except for: having general circulation in the province
1. Debt due to such private benefit plan; or city;
2. Debt arising from criminal acts.
(d) In all cases, written notice of the sale
Section 14. Return of writ of execution. — shall be given to the judgment obligor, at
The writ of execution shall be returnable to least three (3) days before the sale,
the court issuing it immediately after the except as provided in paragraph (a)
judgment has been satisfied in part or in full. hereof where notice shall be given the
If the judgment cannot be satisfied in full same manner as personal service of
within thirty (30) days after his receipt of the pleadings and other papers as provided by
writ, the officer shall report to the court and section 6 of Rule 13.
state the reason therefor. Such writ shall
continue in effect during the period within The notice shall specify the place, date
which the judgment may be enforced by and exact time of the sale which should
motion. The officer shall make a report to the not be earlier than nine o'clock in the
court every thirty (30) days on the morning and not later than two o'clock in
proceedings taken thereon until the judgment the afternoon. The place of the sale may
is satisfied in full, or its effectivity expires. be agreed upon by the parties. In the
The returns or periodic reports shall set forth absence of such agreement, the sale of
the whole of the proceedings taken, and shall the property or personal property not
be filed with the court and copies thereof capable of manual delivery shall be held in
promptly furnished the parties. (11a) the office of the clerk of court of the
Regional Trial Court or the Municipal Trial
Section 15. Notice of sale of property on Court which issued the writ of or which
execution. — Before the sale of property on was designated by the appellate court. In
execution, notice thereof must be given as the case of personal property capable of
follows: manual delivery, the sale shall be held in
the place where the property is located.
(a) In case of perishable property, by posting (18a)
written notice of the time and place of the
sale in three (3) public places, preferably in Section 16. Proceedings where
conspicuous areas of the municipal or city property claimed by third person. — If
hall, post office and public market in the the property levied on is claimed by any
municipality or city where the sale is to take person other than the judgment obligor or
place, for such time as may be reasonable, his agent, and such person makes an
considering the character and condition of the affidavit of his title thereto or right to the
property; possession thereof, stating the grounds of
such right or title, and serves the same
(b) In case of other personal property, by upon the officer making the levy and copy
posting a similar notice in the three (3) public thereof, stating the grounds of such right
places above-mentioned for not less than five or title, and a serves the same upon the
(5) days; officer making the levy and a copy thereof
upon the judgment obligee, the officer
(c) In case of real property, by posting for shall not be bound to keep the property,
twenty (20) days in the three (3) public unless such judgment obligee, on demand
places abovementioned a similar notice of the officer, files a bond approved by the
particularly describing the property and court to indemnity the third-party

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claimant in a sum not less than the value of release the levied property. (B) Ask the
the property levied on. In case of judgment obligee to file a court-approved
disagreement as to such value, the same bond for the sheriff’s protection in case he
shall be determined by the court issuing the proceeds with the execution. (C)
writ of execution. No claim for damages for Immediately lift the levy and release the
the taking or keeping of the property may be levied property. (D) Ask the third-party
enforced against the bond unless the action claimant to support his claim with an
therefor is filed within one hundred twenty indemnity bond in favor of the judgment
(120) days from the date of the filing of the obligee and release the levied property if
bond. such bond is filed.
The officer shall not be liable for damages for

the taking or keeping of the property, to any 3rd PARTY TERCERIA
third-party claimant if such bond is filed. COMPLAINT
Nothing herein contained shall prevent such An affidavit claiming
claimant or any third person from vindicating Is a pleading ownership of a
his claim to the property in a separate action, property under the
or prevent the judgment obligee from possession of the
claiming damages in the same or a separate sheriff
action against a third-party claimant who Filed with the court Filed with the sheriff
filed a frivolous or plainly spurious claim. Applies during the Available in the
pendency of the case execution stage
When the writ of execution is issued in favor
of the Republic of the Philippines, or any
officer duly representing it, the filing of such Section 17. Penalty for selling without
bond shall not be required, and in case the notice, or removing or defacing
sheriff or levying officer is sued for damages notice. — An officer selling without the
as a result of the levy, he shall be notice prescribed by section 15 of this
represented by the Solicitor General and if Rule shall be liable to pay punitive
held liable therefor, the actual damages damages in the amount of five thousand
adjudged by the court shall be paid by the (P5,000.00) pesos to any person injured
National Treasurer out of such funds as may thereby, in addition to his actual
be appropriated for the purpose. (17a) damages, both to be recovered by motion
in the same action; and a person willfully
REMEDIES OF A THIRD PARTY CLAIMANT: removing or defacing the notice posted, if
1. Summary hearing before the court which done before the sale, or before the
authorized the execution; satisfaction of the judgment if it be
2. TERCERIA or a third party claim filed with satisfied before the sale, shall be liable to
the sheriff; pay five thousand (P5,000.00) pesos to
3. Action for damages on the bond filed by the any person injured by reason thereof, in
judgment creditor; or addition to his actual damages, to be
4. Independent reivindicatory action. recovered by motion in the same action.
(19a)
The remedies are cumulative and may be resorted
to by the third party claimant independently or
separately. Section 18. No sale if judgment and
If the winning party files a bond, it is only then that costs paid. — At any time before the sale
the sheriff can take the property in his possession. If of property on execution, the judgment
here is no bond, the sale cannot proceed. obligor may prevent the sale by paying
the amount required by the execution and
Bar Exam Question 2011 the costs that have been incurred therein.
(23) What should the court sheriff do if a third (20a)
party serves on him an affidavit of claim
covering the property he had levied? (A) Ask Section 19. How property sold on
the judgment obligee to file a court- execution; who may direct manner
approved indemnity bond in favor of the and order of sale. — All sales of
third-party claimant or the sheriff will property under execution must be made

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at public auction, to the highest bidder, to Section 22. Adjournment of sale. — By
start at the exact time fixed in the notice. written consent of the judgment obligor
After sufficient property has been sold to and obligee, or their duly authorized
satisfy the execution, no more shall be sold representatives, the officer may adjourn
and any excess property or proceeds of the the sale to any date and time agreed upon
sale shall be promptly delivered to the by them. Without such agreement, he
judgment obligor or his authorized may adjourn the sale from day to day if it
representative, unless otherwise directed by becomes necessary to do so for lack of
the judgment or order of the court. When the time to complete the sale on the day fixed
sale is of real property, consisting of several in the notice or the day to which it was
known lots, they must be sold separately; or, adjourned. (24a)
when a portion of such real property is
claimed by a third person, he may require it Section 23. Conveyance to purchaser
to be sold separately. When the sale is of of personal property capable of
personal property capable of manual delivery, manual delivery. — When the purchaser
it must be sold within view of those attending of any personal property, capable of
the same and in such parcels as are likely to manual delivery, pays the purchase price,
bring the highest price. The judgment obligor, the officer making the sale must deliver
if present at the sale, may direct the order in the property to the purchaser and, if
which property, real or personal shall be sold, desired, execute and deliver to him a
when such property consists of several known certificate of sale. The sale conveys to the
lots or parcels which can be sold to purchaser all the rights which the
advantage separately. Neither the officer judgment obligor had in such property as
conducting the execution sale, nor his of the date of the levy on execution or
deputies, can become a purchaser, nor be preliminary attachment. (25a)
interested directly or indirectly in any
purchase at such sale. (21a) Note: note here that the judgment debtor
transmits only rights over the property he
Section 20. Refusal of purchaser to pay. — actually has at the time of the levy. Hence, if he
If a purchaser refuses to pay the amount bid no longer owns the property at the time of the
by him for property struck off to him at a sale levy, he transmits nothing to the buyer in the
under execution, the officer may again sell execution sale.
the property to the highest bidder and shall
not be responsible for any loss occasioned Section 24. Conveyance to purchaser
thereby; but the court may order the refusing of personal property not capable of
purchaser to pay into the court the amount of manual delivery. — When the purchaser
such loss, with costs, and may punish him for of any personal property, not capable of
contempt if he disobeys the order. The manual delivery, pays the purchase price,
amount of such payment shall be for the the officer making the sale must execute
benefit of the person entitled to the proceeds and deliver to the purchaser a certificate
of the execution, unless the execution has of sale. Such certificate conveys to the
been fully satisfied, in which event such purchaser all the rights which the
proceeds shall be for the benefit of the judgment obligor had in such property as
judgment obligor. The officer may thereafter of the date of the levy on execution or
reject any subsequent bid of such purchaser preliminary attachment. (26a)
who refuses to pay. (22a)
Section 25. Conveyance of real
Section 21. Judgment obligee as property; certificate thereof given to
purchaser. — When the purchaser is the purchaser and filed with registry of
judgment obligee, and no third-party claim deeds. — Upon a sale of real property,
has been filed, he need not pay the amount the officer must give to the purchaser a
of the bid if it does not exceed the amount of certificate of sale containing:
his judgment. If it does, he shall pay only the
excess. (23a) (a) A particular description of the real
property sold;

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(b) The price paid for each distinct lot or the purchaser be also a creditor having a
parcel; prior lien to that of the redemptioner,
other than the judgment under which such
(c) The whole price paid by him; purchase was made, the amount of such
other lien, with interest.
(d) A statement that the right of redemption
expires one (1) year from the date of the Property so redeemed may again be
registration of the certificate of sale. redeemed within sixty (60) days after the
last redemption upon payment of the sum
Such certificate must be registered in the paid on the last redemption, with two per
registry of deeds of the place where the centum thereon in addition and the
property is situated. (27 a) amount of any assessments or taxes
which the last redemptioner may have
paid thereon after redemption by him,
Section 26. Certificate of sale where
with interest on such last named amount,
property claimed by third person. —
and in addition, the amount of any liens
When a property sold by virtue of a writ of
held by said last redemptioner prior to his
execution has been claimed by a third
own, with interest. The property may be
person, the certificate of sale to be issued by
again, and as often as a redemptioner is
the sheriff pursuant to sections 23, 24 and 25
so disposed, redeemed from any previous
of this Rule shall make express mention of
redemptioner within sixty (60) days after
the existence of such third-party claim. (28a)
the last redemption, on paying the sum
paid on the last previous redemption, with
Section 27. Who may redeem real two per centum thereon in addition, and
property so sold. — Real property sold as the amounts of any assessments or taxes
provided in the last preceding section, or any which the last previous redemptioner paid
part thereof sold separately, may be after the redemption thereon, with
redeemed in the manner hereinafter interest thereon, and the amount of any
provided, by the following persons: liens held by the last redemptioner prior
to his own, with interest.
(a) The judgment obligor; or his successor in
interest in the whole or any part of the Written notice of any redemption must be
property; given to the officer who made the sale
and a duplicate filed with the registry of
(b) A creditor having a lien by virtue of an deeds of the place, and if any
attachment, judgment or mortgage on the assessments or taxes are paid by the
property sold, or on some part thereof, redemptioner or if he has or acquires any
subsequent to the lien under which the lien other than that upon which the
property was sold. Such redeeming creditor is redemption was made, notice thereof
termed a redemptioner. (29a) must in like manner be given to the officer
and filed with the registry of deeds; if
Section 28. Time and manner of, and such notice be not filed, the property may
amounts payable on, successive be redeemed without paying such
redemptions; notice to be given and assessments, taxes, or liens. (30a)
filed. — The judgment obligor, or
redemptioner, may redeem the property from REDEMPTION
the purchaser, at any time within one (1)
year from the date of the registration of the Right of Redemption:
certificate of sale, by paying the purchaser 1. Personal Property- NONE
the amount of his purchase, with the per 2. Real Property- REDEMPTION exists
centum per month interest thereon in
addition, up to the time of redemption, Who may Redeem:
together with the amount of any assessments 1. Judgment Obligor, or his successors
or taxes which the purchaser may have paid in interest; or
thereon after purchase, and interest on such 2. Redemptioner who is a creditor
last named amount at the same rate; and if having a lien by virtue of an attachment,
judgment or mortgage on the property
________________________________________________________________________________________________
sold, subsequent to the lien under which the deeds of the place in which the property is
property was sold. situated and the registrar of deeds must
note the record thereof on the margin of
When made: the record of the certificate of sale. The
1. By the judgment obligor payments mentioned in this and the last
Within one (1) year from the preceding sections may be made to the
registration of the certificate of sale. purchaser or redemptioner, or for him to
the officer who made the sale. (31a)
2. By the redemptioner
Within one (1) year from the date of
registration of the certificate of sale Section 30. Proof required of
or within 60 days from the last redemptioner. — A redemptioner must
redemption by another produce to the officer, or person from
redemptioner. whom he seeks to redeem, and serve with
his notice to the officer a copy of the
BUT IN ALL CASES the judgment obligor shall have judgment or final order under which he
the entire period of one year to redeem the property. claims the right to redeem, certified by
the clerk of the court wherein the
If the judgment obligor redeems the property, no judgment or final order is entered, or, if
further redemption is allowed and he is restored to he redeems upon a mortgage or other
his estate. lien, a memorandum of the record
thereof, certified by the registrar of deeds,
NOTE: The period of redemption is not suspended or an original or certified copy of any
by an action to annul the foreclosure sale.
assignment necessary to establish his
claim; and an affidavit executed by him or
Q: Can redemption be paid in other forms than
cash? his agent, showing the amount then
A: Yes. The rule is construed liberally in allowing actually due on the lien. (32a)
redemption (to aid rather than to defeat the right)
and it has allowed in the form of a cashier’s check, Section 31. Manner of using premises
certified bank checks and even checks. Note, pending redemption; waste
however, that the payee must be the judgment restrained. — Until the expiration of the
creditor. time allowed for redemption, the court
may, as in other proper cases, restrain the
The offer to redeem must be accompanied with a commission of waste on the property by
bona fide tender or delivery of the redemption price. injunction, on the application of the
purchaser or the judgment obligee, with
HOWEVER, a formal offer to redeem with a tender or without notice; but it is not waste for a
is not necessary where the right to redeem is person in possession of the property at
exercised through the filing of a complaint to redeem
the time of the sale, or entitled to
in the courts, within the period to redeem.
possession afterwards, during the period
allowed for redemption, to continue to use
Section 29. Effect of redemption by it in the same manner in which it was
judgment obligor, and a certificate to be previously used, or to use it in the
delivered and recorded thereupon; to ordinary course of husbandry; or to make
whom payments on redemption made. — the necessary repairs to buildings thereon
If the judgment obligor redeems he must while he occupies the property. (33a)
make the same payments as are required to
effect a redemption by a redemptioner,
Section 32. Rents, earnings and
whereupon, no further redemption shall be
income of property pending
allowed and he is restored to his estate. The
redemption. — The purchaser or a
person to whom the redemption payment is
redemptioner shall not be entitled to
made must execute and deliver to him a
receive the rents, earnings and income of
certificate of redemption acknowledged
the property sold on execution, or the
before a notary public or other officer
value of the use and occupation thereof
authorized to take acknowledgments of
when such property is in the possession of
conveyances of real property. Such certificate
a tenant. All rents, earnings and income
must be filed and recorded in the registry of
derived from the property pending

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redemption shall belong to the judgment  The purchaser acquires no better right that
obligor until the expiration of his period of what the judgment debtor has in the
redemption. (34a) property levied upon. Thus, if the judgment
debtor had already transferred the property
RIGHTS OF THE JUDGMENT DEBTOR: executed prior to the levy and no longer had
an interest in the property, the execution
1. Remain in the possession of the property; purchaser acquires no right.
2. Cannot be ejected;
3. Use the property in the same manner as it WHEN 3RD PERSON IS IN POSSESSION: The
was previously used; procedure is for the court to order a hearing and
4. Make necessary repairs to buildings thereon determine the nature of such adverse
while he occupies the property; possession.
5. Use it in the ordinary course of husbandry
6. Collect rents, earnings and income derived Section 34. Recovery of price if sale
from the property until the expiration of the not effective; revival of judgment. —
period of redemption. If the purchaser of real property sold on
execution, or his successor in interest,
Section 33. Deed and possession to be fails to recover the possession thereof, or
given at expiration of redemption period; is evicted therefrom, in consequence of
by whom executed or given. — If no irregularities in the proceedings
redemption be made within one (1) year from concerning the sale, or because the
the date of the registration of the certificate judgment has been reversed or set aside,
of sale, the purchaser is entitled to a or because the property sold was exempt
conveyance and possession of the property; from execution, or because a third person
or, if so redeemed whenever sixty (60) days has vindicated his claim to the property,
have elapsed and no other redemption has he may on motion in the same action or in
been made, and notice thereof given, and the a separate action recover from the
time for redemption has expired, the last judgment obligee the price paid, with
redemptioner is entitled to the conveyance interest, or so much thereof as has not
and possession; but in all cases the judgment been delivered to the judgment obligor, or
obligor shall have the entire period of one (1) he may, on motion, have the original
year from the date of the registration of the judgment revived in his name for the
sale to redeem the property. The deed shall whole price with interest, or so much
be executed by the officer making the sale or thereof as has been delivered to the
by his successor in office, and in the latter judgment obligor. The judgment so
case shall have the same validity as though revived shall have the same force and
the officer making the sale had continued in effect as an original judgment would have
office and executed it. as of the date of the revival and no more.
(36a)
Upon the expiration of the right of
redemption, the purchaser or redemptioner Section 35. Right to contribution or
shall be substituted to and acquire all the reimbursement. — When property liable
rights, title, interest and claim of the to an execution against several persons is
judgment obligor to the property as of the sold thereon, and more than a due
time of the levy. The possession of the proportion of the judgment is satisfied out
property shall be given to the purchaser or of the proceeds of the sale of the property
last redemptioner by the same officer unless of one of them, or one of them pays,
a third party adversely to the judgment without a sale, more than his proportion,
obligor. (35a) he may compel a contribution from the
others; and when a judgment is upon an
 The Deed of Conveyance is what operates to obligation of one of them, as security for
transfer to the purchaser whatever rights the another, and the surety pays the amount,
judgment debtor had in the property. The or any part thereof, either by sale of his
certificate of sale merely is a memorial of the property or before sale, he may compel
fact of sale and does not operate as a repayment from the principal. (37a)
conveyance.

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REMEDIES OF THE JUDGMENT CREDITOR IN defendant to appear before it and to be examined
AID OF EXECUTION: regarding his property and income. How should the
1. Section 36. Examination of judgment obligor court resolve the motion? (2%)
when judgment unsatisfied;
2. Section 37. Examination of obligor of SUGGESTED ANSWER: When the return of a writ of
judgment obligor; execution issued against property of a judgment
3. Section 38. Enforcement of attendance and obligor, or any one of several obligors in the same
judgment, shows that the judgment remains
conduct of examination; unsatisfied, in whole or in part, the judgment obligee,
4. Section 40. Order for application of property at any time after such return is made, shall be entitled
and income to satisfaction of judgment; to an order from the court which rendered the said
5. Section 41. Appointment of receiver; judgment, requiring such judgment obligor to appear
6. Section 42. Sale of ascertainable interest of and be examined concerning his property and income
judgment obligor in real estate; before such court or before a commissioner appointed
7. Section 43. Proceedings when by it at a specified time and place; and proceedings
indebtedness denied or another person may thereupon be had for the application of the
claims the property. property and income of the judgment obligor towards
the satisfaction of the judgment. But no judgment
obligor shall be so required to appear before a court
Section 36. Examination of judgment or commissioner outside the province or city in which
obligor when judgment unsatisfied. — such obligor resides or is found.
When the return of a writ of execution issued
against property of a judgment obligor, or Summons
any one of several obligors in the same Seven years after the entry of judgment, the plaintiff
judgment, shows that the judgment remains filed an action for its revival. Can the defendant
unsatisfied, in whole or in part, the judgment successfully oppose the revival of the judgment by
obligee, at any time after such return is contending that it is null and void because the
made, shall be entitled to an order from the RTCManila did not acquire jurisdiction over his
court which rendered the said judgment, person? Why? (3%)
SUGGESTED ANSWER:
requiring such judgment obligor to appear
The RTC-Manila should deny the motion because it
and be examined concerning his property and
is in violation of the rule that no judgment obligor
income before such court or before a
shall be required to appear before a court, for the
commissioner appointed by it at a specified purpose of examination concerning his property and
time and place; and proceedings may income, outside the province or city in which such
thereupon be had for the application of the obligor resides. In this case the judgment obligor
property and income of the judgment obligor resides in Bulacan. (Rule 39, sec.36).
towards the satisfaction of the judgment. But
no judgment obligor shall be so required to
appear before a court or commissioner Section 37. Examination of obligor of
outside the province or city in which such judgment obligor. — When the return of
obligor resides or is found. (38a) a writ of execution against the property of
a judgment obligor shows that the
Judgments; Enforcement; Examination of Defendant
judgment remain unsatisfied, in whole or
(2002)
The plaintiff, a Manila resident, sued the defendant, a in part, and upon proof to the satisfaction
resident of Malolos Bulacan, in the RTC-Manila for a of the court which issued the writ, that a
sum of money. When the sheriff tried to serve the person, corporation, or other juridical
summons with a copy of the complaint on the defendant entity has property of such judgment
at his Bulacan residence, the sheriff was told that the obligor or is indebted to him, the court
defendant had gone to Manila for business and would not
may, by an order, require such person,
be back until the evening of that day. So, the sheriff
served the summons, together with a copy of the corporation, or other juridical entity, or
complaint, on the defendant’s 18year-old daughter, who any officer, or member thereof, to appear
was a college student. For the defendant’s failure to before the court or a commissioner
answer the complaint within the reglementary period, the appointed by it, at a time and place within
trial court, on motion of the plaintiff, declared the the province or city where such debtor
defendant in default. A month later, the trial court
rendered judgment holding the defendant liable for the
resides or is found, and be examined
entire amount prayed for in the complaint. A. After the concerning the same. The service of the
judgment had become final, a writ of execution was order shall bind all credits due the
issued by the court. As the writ was returned unsatisfied, judgment obligor and all money and
the plaintiff filed a motion for an order requiring the property of the judgment obligor in the

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possession or in the control of such person his family, the court may order that he
corporation, or juridical entity from the time pay the judgment in fixed monthly
of service; and the court may also require installments, and upon his failure to pay
notice of such proceedings to be given to any any such installment when due without
party to the action in such manner as it may good excuse, may punish him for indirect
deem proper. (39a) contempt. (42a)
Section 38. Enforcement of attendance Section 41. Appointment of receiver. —

and conduct of examination. — A party or The court may appoint a receiver of the
other person may be compelled, by an order property of the judgment obligor; and it
or subpoena, to attend before the court or may also forbid a transfer or other
commissioner to testify as provided in the disposition of, or any interference with,
two preceding sections, and upon failure to the property of the judgment obligor not
obey such order or subpoena or to be sworn, exempt from execution. (43a)
or to answer as a witness or to subscribe his
deposition, may be punished for contempt as Section 42. Sale of ascertainable
in other cases. Examinations shall not be interest of judgment obligor in real
unduly prolonged, but the proceedings may estate. — If it appears that the judgment
be adjourned from time to time, until they obligor has an interest in real estate in the
are completed. If the examination is before a place in which proceedings are had, as
commissioner, he must take it in writing and mortgagor or mortgagee or otherwise,
certify it to the court. All examinations and and his interest therein can be ascertained
answers before a court commissioner must without controversy the receiver may be
be under oath, and when a corporation or ordered to sell and convey such real
other juridical entity answers, it must be on estate or the interest of the obligor
the oath of an authorized officer or agent therein; and such sale shall be conducted
thereof. (40a) in all respects in the same manner as is
provided for the sale of real state upon
Section 39. Obligor may pay execution execution, and the proceedings thereon
against obligee. — After a writ of execution shall be approved by the court before the
against property has been issued, a person execution of the deed. (34a)
indebted to the judgment obligor may pay to
the sheriff holding the writ of execution the Section 43. Proceedings when
amount of his debt or so much thereof as indebtedness denied or another
may be necessary to satisfy the judgment, in person claims the property. — If it
the manner prescribed in section 9 of this appears that a person or corporation,
Rule, and the sheriff's receipt shall be a alleged to have property of the judgment
sufficient discharge for the amount so paid or obligor or to be indebted to him, claims an
directed to be credited by the judgment interest in the property adverse to him or
obligee on the execution. (41a) denied the debt, the court may authorize,
by an order made to that effect, the
Section 40. Order for application of judgment obligee to institute an action
property and income to satisfaction of against such person or corporation for the
judgment. — The court may order any recovery of such interest or debt, forbid a
property of the judgment obligor, or money transfer or other disposition of such
due him, not exempt from execution, in the interest or debt within one hundred
hands of either himself or another person, or twenty (120) days from notice of the
of a corporation or other juridical entity, to be order, and may punish disobedience of
applied to the satisfaction of the judgment, such order as for contempt. Such order
subject to any prior rights over such may be modified or vacated at any time
property. by the court which issued it, or by the
court in which the action is brought, upon
If, upon investigation of his current income such terms as may be just. (45a)
and expenses, it appears that the earnings of
the judgment obligor for his personal services Section 44. Entry of satisfaction of
are more than necessary for the support of judgment by clerk of court. —

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Satisfaction of a judgment shall be entered evidence of the death of the testator or
by the clerk of court in the court docket, and intestate;
in the execution book, upon the return of a
writ of execution showing the full satisfaction (b) In other cases, the judgment or final
of the judgment, or upon the filing of an order is, with respect to the matter
admission to the satisfaction of the judgment directly adjudged or as to any other
executed and acknowledged in the same matter that could have been missed in
manner as a conveyance of real property by relation thereto, conclusive between the
the judgment obligee or by his counsel unless parties and their successors in interest, by
a revocation of his authority is filed, or upon title subsequent to the commencement of
the endorsement of such admission by the the action or special proceeding, litigating
judgment obligee or his counsel, on the face for the same thing and under the same
of the record of the judgment. (46a) title and in the same capacity; and
Section 45. Entry of satisfaction with or (c) In any other litigation between the
without admission. — Whenever a same parties or their successors in
judgment is satisfied in fact, or otherwise interest, that only is deemed to have been
than upon an execution on demand of the adjudged in a former judgment or final
judgment obligor, the judgment obligee or his order which appears upon its face to have
counsel must execute and acknowledge, or been so adjudged, or which was actually
indorse an admission of the satisfaction as and necessarily included therein or
provided in the last preceding section, and necessary thereto. (49a)
after notice and upon motion the court may
order either the judgment obligee or his This refers to judgments which are considered
counsel to do so, or may order the entry of as conclusive and may be rebutted directly by
satisfaction to be made without such means of Relief from Judgment or Annulment of
admission. (47a) Judgment or indirectly by offering them in
evidence under Parole Evidence Rule.
Section 46. When principal bound by
judgment against surety. — When a
judgment is rendered against a party who
stands as surety for another, the latter is also
PARAGRAPH (A)
bound from the time that he has notice of the
action or proceeding, and an opportunity at
This refers to rule on RES JUDICATA in
the surety's request to join in the defense.
judgments IN REM.
(48a)
Section 47. Effect of judgments or final JUDGMENT or FINAL EFFECT:

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

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

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judgments of foreign courts may only be
enforced in the Philippines through an
Section 48. Effect of foreign judgments or action validly heard in the Regional Trial
final orders. — The effect of a judgment or Court. Thus, it is actually the judgment
final order of a tribunal of a foreign country, of the Philippine court enforcing the
having jurisdiction to render the judgment or foreign judgment that shall be executed.
final order is as follows:
(b) Can a foreign arbitral award be
enforced in the Philippines under those
(a) In case of a judgment or final order rules? Explain briefly. (2%) SUGGESTED
upon a specific thing, the judgment or ANSWER: No, a foreign arbitral award
final order, is conclusive upon the title to cannot be enforced in the Philippines
the thing, and under the rules on recognition and
enforcement of foreign judgments above-
(b) In case of a judgment or final order stated. A foreign arbitral award is not a
against a person, the judgment or final foreign judgment, and pursuant to the
order is presumptive evidence of a right Alternative Dispute Resolution Act of
as between the parties and their 2004 (R.A. No. 9285), in relation to 1958
successors in interest by a subsequent New York Convention on the
title. Recognition and Enforcement of Foreign
Arbitral Awards, the recognition and
In either case, the judgment or final order enforcement of the foreign arbitral
may be repelled by evidence of a want of awards shall be in accordance with the
jurisdiction, want of notice to the party, rules of procedure to be promulgated by
the Supreme Court. At present, the
collusion, fraud, or clear mistake of law or
Supreme Court is yet to promulgate
fact. (50a)
rules of procedure on the subject matter.
Bar Exam Question 2011 (c) How about a global injunction issued by
(36) What defenses may be raised in a suit to a foreign court to prevent dissipation of
enforce a foreign judgment? funds against a defendant therein who has
(A) That the judgment is contrary to Philippine assets in the Philippines? Explain briefly.
procedural rules. (B) None, the judgment being (2%) SUGGESTED ANSWER: Yes, a global
entitled to full faith and credit as a matter of injunction issued by a foreign court to
general comity among nations. (C) That the prevent dissipation of funds against a
foreign court erred in the appreciation of the defendant who has assets in the
evidence. (D) That extrinsic fraud afflicted Philippines may be enforced in our
the judgment. jurisdiction, subject to our procedural
laws. As a general rule, no sovereign is
Judgment; Foreign Judgments; Foreign bound to give effect within its dominion
Arbitral Award (2007) to a judgment or order of a tribunal of
No.I. (a) What are the rules on the recognition another country. However, under the
and enforcement of foreign judgments in our rules of comity, utility and convenience,
courts? (6%) SUGGESTED ANSWER: nations have established a usage among
Judgments of foreign courts are given civilized states by which final judgments
recognition in our courts thus: In case of of foreign courts of competent
judgment upon a specific thing, the jurisdiction are reciprocally respected
judgment is conclusive upon the title to the and rendered efficacious under certain
thing, unless otherwise repelled by evidence conditions that may vary in different
of lack of jurisdiction, want of due notice to countries (St. Aviation Services Co., Pte.,
the party, collusion, fraud, or clear mistake Ltd. v. Grand International Airways, Inc.,
of law or fact (Rule 39, Sec. 48 [a], Rules of 505 SCRA 30[2006]; Asiavest Merchant
Court); and In case of judgment against a Bankers [M] Berhad v. Court of Appeals,
person, the judgment is presumptive 361 SCRA 489 [2001]).
evidence of a right as between the parties
and their successors in interest by Judgment; Enforcement; Foreign Judgment (2005)
subsequent title, unless otherwise repelled
by evidence on grounds above stated (Rule
39, Sec. 48 [b], Rules of Court). However,

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Under Article 1144 of the New Civil Code, an action warrant a reversal or modification of the
upon a judgment must be brought within 10 years from decision or judgment sought to be reviewed.
the time the right of action accrues. Is this provision
applicable to an action filed in the Philippines to enforce
ORDINARY APPEAL
a foreign judgment? Explain. (10%)
ALTERNATIVE ANSWER:
It is an appeal by notice of appeal, from a
Article 1144 of the Civil Code which requires that an judgment or final order of a lower court on
action upon a judgment (though without distinction) questions of fact and law.
must be brought within 10 years from the time the right
The right to appeal is not a natural right
of action accrues, does not apply to an action filed in the
or a part of due process. It is merely a
Philippines to enforce a foreign judgment. While we can
statutory privilege and may be exercised
say that where the law does not distinguish, we should
only in the manner and in accordance
not distinguish, still the law does not evidently
with the provisions of the law (Producers
contemplate the inclusion of oreign judgments. A local Bank of the Philippines vs.CA, GR No.
judgment may be enforced by motion within five years 126620, April 17, 2002)
and by action within the next five years. (Rule 39) That is
not the case with respect to foreign judgments which
cannot be enforced by mere motion.
ALTERNATIVE ANSWER: Appeal decision of MTC by filing notice of
appeal and pay appellate court docket fee in
Article 1144 of the Civil Code requires that an action
the same MTC within 15 days from receipt of
upon a judgment (though without distinction) must be judgment
brought within 10 years from the time the right of
action accrues. There seems no cogent reason to exclude
foreign judgments from the operation of this
rule, subject to the requirements of Rule 39, Sec. 48 of 15 days from perfection of appeal, MTC
the Rules of Court which establishes certain requisites clerk transmits record to RTC
for proving the foreign judgment. Pursuant to these
provisions, an action for the enforcement of the foreign
judgment may be brought at any time within 10 years
from the time the right of action accrues. Notice to parties that an appeal is being
taken from the decision of MTC
Appeals
Within 15 days from notice of appeal:
 Appellant submits
RULE 40 memorandum to the RTC
 Appellee files his own
Appeal From Municipal Trial Courts to memorandum 15 days from
receipt of appellants
the Regional Trial Courts memorandum
BP 129, Section 22. Appellate jurisdiction. —

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

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as it was in the court of origin, but the party motion for new trial or reconsideration
appealing the case shall be further referred to shall be allowed. (n)
as the appellant and the adverse party as the
appellee. (a) NOTE: Under the “FRESH PERIOD RULE”, a
party litigant may either file his notice of appeal
APPEAL TO THE RTC within 15 days from receipt of the decision of the
RTC, or file it within 15 days from receipt of the
Mode of Appeal— Notice of Appeal within 15 days order denying his motion for new trial or
from receipt of decision. reconsideration (Neypes vs. CA, GR No.
141524, Sept. 14, 2005)
After an appeal to the RTC has been perfected,
MTC loses its jurisdiction over the case and any Appeals; Period of Appeal; Fresh Period Rule (2003)
motion for execution of judgment should be filed Defendant X received an adverse Decision of the
with the RTC. RTC in an ordinary civil case on 02 January 2003. He
filed a Notice of Appeal on 10 January 2003. On the
The summary rules no longer apply when the case other hand, plaintiff A received the same Decision
is on appeal. on 06 January 2003 and, on 19 January 2003, filed a
Motion for Reconsideration of the Decision. On 13
IMPORTANT: Appeals from decisions of the MTCs January 2003, defendant X filed a Motion
raising only PURE QUESTIONS OF LAW, is withdrawing his notice of appeal in order to file a
appealable to the RTC via ordinary notice of appeal. Motion for New Trial which he attached. On 20
January 2003, the court denied A’s Motion for
NOTE: However, decisions of the MTCs under the Reconsideration and X’s Motion to Withdraw
delegated jurisdiction in cadastral and land Notice of Appeal. Plaintiff A received the Order
registration cases are appealable in the same way denying his Motion for Reconsideration on 03
as decisions of the RTCs. Thus, decision may be February 2003 and filed his Notice of Appeal on 05
appealed directly to the SC via Rule 45, raising only February 2003. The court denied due course to A’s
pure questions of law (Review Lecture – Riano). Notice of Appeal on the ground that he period to
appeal had already lapsed. 6%
Section 34. Delegated jurisdiction in cadastral and (a) Is the court’s denial of X’s Motion to Withdraw
land registration cases. – Metropolitan Trial Courts, Notice of Appeal proper?
Municipal Trial Courts, and Municipal Circuit Trial (b) Is the court’s denial of due course to A’s appeal
Courts may be assigned by the Supreme Court to correct?
hear and determine cadastral or land registration SUGGESTED ANSWER:
cases covering lots where there is no controversy or (a) No, the court’s denial of X’s Motion to Withdraw
opposition, or contested lots where the value of Notice of Appeal is not proper, because the period
which does not exceed One hundred thousand pesos
of appeal of X has not yet expired. From January 2,
(P100,000.00), such value to be ascertained by the
affidavit of the claimant or by agreement of the 2003 when X received a copy of the adverse decision
respective claimants if there are more than one, or up to January 13, 2003 when he filed his withdrawal
from the corresponding tax declaration of the real of appeal and Motion for New Trial, only ten (10)
property. Their decisions in these cases shall be days had elapsed and he had fifteen (15) days to do
appealable in the same manner as decisions of the so.
Regional Trial Courts. (as amended by R.A. No. (b) No, the court’s denial of due course to A’s appeal
7691)
is not correct because the appeal was taken on time.
From January 6, 2003 when A received a copy of the
Section 2. When to appeal. — An appeal decision up to January 19, 2003 when he filed a
may be taken within fifteen (15) days after Motion for Reconsideration, only twelve (12) days
notice to the appellant of the judgment or had elapsed. Consequently, he had three (3) days
final order appealed from. Where a record on from receipt on February 3, 2003 of the Order
appeal is required, the appellant shall file a denying his Motion for Reconsideration within
notice of appeal and a record on appeal which to appeal. He filed is notice of appeal on
within thirty (30) days after notice of the February 5, 2003, or only two (2) days later.
judgment or final order. ALTERNATIVE ANSWER:
Since A’s Motion for Reconsideration was filed on
The period of appeal shall be interrupted by a
January 19, 2003 and it was denied on January 20,
2003, it was clearly not set for hearing with at least
timely motion for new trial or reconsideration.
three days’ notice. Therefore, the motion was pro
No motion for extension of time to file a

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forma and did not interrupt the period of appeal which In appeals by notice of appeal, the court loses
expired on January 21, 2003 or fifteen (15) days after jurisdiction over the case upon the perfection of
notice of the decision on January 6, 2003. the appeal filed in due time.
NOTE: To standardize the appeal periods provided in
the Rules and to afford litigants fair opportunity to In appeals by record on appeal, the court loses
appeal their cases, the Court deems it practical to allow a jurisdiction only over the subject matter thereof
FRESHPERIOD of 15 days within which to file the upon approval of the records on appeal in due
notice of appeal in the RTC, counted from receipt of the time.
order dismissing a motion for a new trial or motion for
reconsideration. [Neypes et. al. vs. RESIDUAL POWER (JURISDICTION) of the
CA, G.R. No. 141524, September 14, 2005] court prior to the transmittal of the original record
or record on appeal to:
Section 3. How to appeal. — The appeal is 1. To issue orders for the preservation of the
taken by filing a notice of appeal with the rights of the parties which do not involve
court that rendered the judgment or final matters litigated on appeal;
order appealed from. The notice of appeal 2. To approve compromise prior to the
transmittal of the record;
shall indicate the parties to the appeal, the
3. To permit appeal by an indigent;
judgment or final order or part thereof
4. To order execution pending appeal under
appealed from, and state the material dates Rule 39, sec. 2 (Motion for Execution filed
showing the timeliness of the appeal. before the expiration of the period to
appeal);
A record on appeal shall be required only in 5. To allow withdrawal of appeal (sec. 4, in
special proceedings and in other cases of relation to sec. 9 of Rule 41).
multiple or separate appeals.
NOTE: The trial court has no jurisdiction to hear
The form and contents of the record on a party’s application for damages against the
appeal shall be as provided in section 6, Rule adverse party’s bond after the perfection of the
41. appeal. Not considered as part of residual
powers since it is neither an act of protection nor
preservation but an act of vindication and
Copies of the notice of appeal and the record punitive in nature (Fortune Life Ins. vs. CA, 224
on appeal where required, shall be served on SCRA 829).
the adverse party. (n)
Section 5. Appellate court docket and
ORDINARY APPEAL PETITION FOR other lawful fees. — Within the period
REVIEW for taking an appeal, the appellant shall
Matter of right Discretionary pay to the clerk of the court which
All records are elevated No records are elevated rendered the judgment or final order
from the court of origin unless the court appealed from the full amount of the
decrees it
appellate court docket and other lawful
Notice or record on Filed with CA
fees. Proof of payment thereof shall be
appeal is filed with the
transmitted to the appellate court
court of origin
together with the original record or the
record on appeal, as the case may be. (n)
Section 4. Perfection of appeal; effect
thereof. — The perfection of the appeal and
Note here that (appeals from MTC- RTC) non-
the effect thereof shall be governed by the payment of docket fees will not ipso pacto cause
provisions of section 9, Rule 41. (n) the dismissal of the appeal but the trial court
may refuse to transmit the records of the case to
Appeal is deemed perfected the appellate court.
1. By notice of appeal: As to him, upon the filing of
the notice of appeal in due time; Docket fee is not a requisite for the perfection of
2. By record on appeal: As to him, upon the the appeal.
approval of the record on appeal filed in due
time. Note, HOWEVER, the result of failure to pay
docket and other lawful fees under Rule 50
EFFECT OF PERFECTED APPEAL (appeals from RTC- CA):

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Section 1. Grounds for dismissal of appeal. — An case of affirmance and the ground of
appeal may be dismissed by the Court of Appeals, dismissal is lack of jurisdiction over the
on its own motion or on that of the appellee, on the subject matter, the Regional Trial Court, if
following grounds: it has jurisdiction thereover, shall try the
case on the merits as if the case was
(c) Failure of the appellant to pay the docket originally filed with it. In case of reversal,
and other lawful fees as provided in section the case shall be remanded for further
5, Rule 40 and section 4 of Rule 41; (Bar
proceedings.
Matter No. 803, 17 February 1998).
If the case was tried on the merits by the

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

________________________________________________________________________________________________
Remedy is Relief from Judgment (R.38). the Regional Trial Court to the Court of Appeals
raising only questions of law shall be dismissed,
(d) An order denying a motion to set aside a issues purely of law not being reviewable by said
judgment by consent, confession or court. Similarly, an appeal by notice of appeal
compromise on the ground of fraud, mistake instead of by petition for review from the
or duress, or any other ground vitiating appellate judgment of a Regional Trial Court
consent; shall be dismissed.
Remedy is Annulment of Judgment (R.47) Section 2. Modes of appeal. —
(e) An order of execution; (a) Ordinary appeal. — The appeal to

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

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

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(b) Judgment of the Regional Trial Court (RTC) appeal to perfect the appeal, in which
denying his client’s petition for a writ of habeas case the period for appeal and notice
data? SUGGESTED ANSWER: upon the adverse party is not only 15
By verified petition for review on certiorari days but 30 days from notice of
under Rule 45, with the modification that judgment or final order appealed from.
appellant may raise questions of fact or law The full amount of the appellate court
or both, within 5 work days from date of docket fee and other lawful fees required
notice of the judgment or final order to the must also be paid within the period for
Supreme Court (Sec. 19, A.M. No. 08-1-16- taking an appeal, to the clerk of the
SC). court which rendered the judgment or
(c) Order of a family court denying his client’s final order appealed from (Secs. 4 and 5,
petition for habeas corpus in relation to Rule 41, Rules of Court). The periods of
custody of a minor child? SUGGESTED 15 or 30 days above-stated are non-
ANSWER: By notice of appeal, within 48 extendible. In cases decided by the
hours from notice of judgment or final order Regional Trial Court in the exercise of
to the Court of appeals (Sec. 14, R.A. No. its appellate jurisdiction, appeal to the
8369 in relation to Sec. 3, Rule 41, Rules of Court of Appeals shall be by filing a
Court). verified petition for review with the
(d) Order of the RTC denying his client’s Court of Appeals and furnishing the RTC
petition for certiorari questioning the and the adverse party with copy thereof,
Metropolitan Trial Court’s denial of a motion to within 15 days from notice of judgment
suspend criminal proceedings? SUGGESTED or final order appealed from. Within the
ANSWER: By notice of appeal, within 15 same period for appeal, the docket fee
days from notice of the final order, to the and other lawful fees required with the
Court of appeals (Majestrado vs. People, 527 deposit for cost should be paid. The 15-
SCRA 125 [2007]). day period may be extended for 15 days
and another 15 days for compelling
(e) Judgment of the First Division of the Court reasons.
of Tax Appeals affirming the RTC decision
convicting his client for violation of the
National Internal Revenue Code? SUGGESTED Section 3. Period of ordinary appeal. —
ANSWER: By petition for review filed with The appeal shall be taken within fifteen
the court of Tax Appeals (CTA) en banc, (15) days from notice of the judgment or
within 30 days from receipt of the decision final order appealed from. Where a record
or ruling in question (Sec. 9 [b], Rule 9, Rev. on appeal is required, the appellant shall
Rules of CTA). Appeals; Modes of Appeal; file a notice of appeal and a record on
RTC, CA (2009) No. XIX.A. Distinguish the
appeal within thirty (30) days from notice
two modes of appeal from the judgment of the
of the judgment or final order.
Regional Trial Court to the Court of Appeals.
SUGGESTED ANSWER:
In cases decided by the Regional Trial The period of appeal shall be interrupted
Courts in the exercise of their original by a timely motion for new trial or
jurisdiction, appeals to the Court of Appeals reconsideration. No motion for extension
shall be ordinary appeal by filing written of time to file a motion for new trial or
notice of appeal indicating the parties to reconsideration shall be allowed. (n)
the appeal; specifying the judgment/final
order or part thereof appealed from; NOTE: In Habeas Corpus cases, the period to
specifying the court to which the appeal is appeal is only 48 hours from notice of judgment
being taken; and stating the material dates or final order.
showing the timeliness of the appeal. The
notice of appeal shall be filed with the RTC Section 4. Appellate court docket and
which rendered the judgment appealed from other lawful fees. — Within the period
and copy thereof shall be served upon the for taking an appeal, the appellant shall
adverse party within 15 days from notice of pay to the clerk of the court which
judgment or final order appealed from. But rendered the judgment or final order
if the case admits of multiple appeals or is a appealed from, the full amount of the
special proceeding, a record on appeal is
appellate court docket and other lawful
required aside from the written notice of
fees. Proof of payment of said fees shall

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be transmitted to the appellate court together evidence, testimonial and documentary,
with the original record or the record on taken upon the issue involved. The
appeal. (n) reference shall specify the documentary
evidence by the exhibit numbers or letters
NOTE: Read together with Rule 40, sec. 5, Rule 42, by which it was identified when admitted
sec. 3, Rule 44, sec. 4 and Rule 50, sec. 1[c] or offered at the hearing, and the
testimonial evidence by the names of the
Section 5. Notice of appeal. — The notice of corresponding witnesses. If the whole
appeal shall indicate the parties to the testimonial and documentary evidence in
appeal, specify the judgment or final order or the case is to be included, a statement to
part thereof appealed from, specify the court that effect will be sufficient without
to which the appeal is being taken, and state mentioning the names of the witnesses or
the material dates showing the timeliness of the numbers or letters of exhibits. Every
the appeal. (4a) record on appeal exceeding twenty (20)
pages must contain a subject index. (6a)
 Error in designating the appellate court is not
fatal to appeal, provided that correction is made Section 7. Approval of record on
within the 15-day period to appeal. In this case, appeal. — Upon the filing of the record on
the notice of appeal was directed to the CA. The appeal for approval and if no objection is
appellant filed a motion to withdraw the appeal filed by the appellee within five (5) days
and filing in its stead a notice of appeal to the from receipt of a copy thereof, the trial
Sandiganbayan, on the 14th day (Moll vs. court may approve it as presented or
Buban, L-136974, Aug. 27, 2002). upon its own motion or at the instance of
the appellee, may direct its amendment
Appeals; Second Notice of Appeal (2008) No.XII. After by the inclusion of any omitted matters
receiving the adverse decision rendered against his which are deemed essential to the
client, the defendant, Atty. Sikat duly filed a notice of determination of the issue of law or fact
appeal. For his part, the plaintiff timely filed a motion for involved in the appeal. If the trial court
partial new trial to seek an increase in the monetary orders the amendment of the record, the
damages awarded. The RTC instead rendered an appellant, within the time limited in the
amended decision further reducing the monetary order, or such extension thereof as may
awards. Is it necessary for Atty. Sikat to file a second be granted, or if no time is fixed by the
notice of appeal after receiving the amended decision? order within ten (10) days from receipt
SUGGESTED ANSWER: Yes, it is necessary for Atty. Sikat thereof, shall redraft the record by
to file a second notice of appeal after receiving the including therein, in their proper
amended decision. In Magdalena Estate vs. Caluag (11 chronological sequence, such additional
SCRA 333 [1964]), the Court ruled that a party must re- matters as the court may have directed
take an appeal within fifteen [15) days from receipt of him to incorporate, and shall thereupon
the amended ruling or decision, which stands in place submit the redrafted record for approval,
of the old decision. It is in effect, a new decision. upon notice to the appellee, in like
manner as the original draft. (7a)
Section 6. Record on appeal; form and
contents thereof. — The full names of all Section 8. Joint record on appeal. —
the parties to the proceedings shall be stated Where both parties are appellants, they
in the caption of the record on appeal and it may file a joint record on appeal within
shall include the judgment or final order from the time fixed by section 3 of this Rule, or
which the appeal is taken and, in that fixed by the court. (8a)
chronological order, copies of only such
pleadings, petitions, motions and all Section 9. Perfection of appeal; effect
interlocutory orders as are related to the thereof. — A party's appeal by notice of
appealed judgment or final order for the appeal is deemed perfected as to him
proper understanding of the issue involved, upon the filing of the notice of appeal in
together with such data as will show that the due time.
appeal was perfected on time. If an issue of
fact is to be raised on appeal, the record on
A party's appeal by record on appeal is
appeal shall include by reference all the
deemed perfected as to him with respect

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to the subject matter thereof upon the the Court of Appeals. The rules provide that in
approval of the record on appeal filed in due appeals by notice of appeal, the court loses
time. jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the
In appeals by notice of appeal, the court time to appeal of the other parties.
(Sec. 9, third par., Rule 41)
loses jurisdiction over the case upon the
The rules also provide that prior to the transmittal of
perfection of the appeals filed in due time and
the record, the court may, among others, approve
the expiration of the time to appeal of the compromises. (Sec. 9, fifth par., Rule 41) (Note: June 13,
other parties. the date of the filing of the motion for approval of
the Compromise Agreement, appears to be a clerical
In appeals by record on appeal, the court error)
loses jurisdiction only over the subject matter
thereof upon the approval of the records on
appeal filed in due time and the expiration of Section 10. Duty of clerk of court of
the appeal of the other parties. the lower court upon perfection of
appeal. — Within thirty (30) days after
In either case, prior to the transmittal of perfection of all the appeals in accordance
the original record or the record on appeal, with the preceding section, it shall be the
the court may issue orders for the protection duty of the clerk of court of the lower
and preservation of the rights of the parties court:
which do not involve any matter litigated by
the appeal, approve compromises, permit (a) To verify the correctness of the
appeals of indigent litigants, order execution original record or the record on appeal,
pending appeal in accordance with 2 of Rule as the case may be aid to make
39, and allow withdrawal of the appeal. (9a) certification of its correctness;
 See discussions on Rule 40, sec. 4

(b) To verify the completeness of the
records that will be, transmitted to the
appellate court;
Remedies; Appeal; RTC to CA (1999) (c) If found to be incomplete, to take

When is an appeal from the RTC to the Court of such measures as may be required to
Appeals deemed perfected? (2%} XXX received a copy
complete the records, availing of the
of the RTC decision on June 9, 1999; YYY received it on
authority that he or the court may
the next day, June 10, 1999. XXX filed a Notice of
exercise for this purpose; and
Appeal on June 15, 1999. The parties entered into a
compromise on June 16, 1999. On June 13, 1999, YYY,
who did not appeal, filed with the RTC a motion for (d) To transmit the records to the
approval of the Compromise Agreement. XXX changed appellate court.
his mind and opposed the motion on the ground that the
RTC has no more jurisdiction. Rule on the motion If the efforts to complete the records fail,
assuming that the records have not yet been forwarded he shall indicate in his letter of transmittal
to the CA. (2%) the exhibits or transcripts not included in
SUGGESTED ANSWER: the records being transmitted to the
An appeal from the RTC to the Court of Appeals is appellate court, the reasons for their non-
deemed perfected as to the appellant upon the filing of a transmittal, and the steps taken or that
notice of appeal in the RTC in due time or within the could be taken to have them available.
reglementary period of appeal. An appeal by record on
appeal is deemed perfected as to the appellant with
The clerk of court shall furnish the parties
respect to the subject matter thereof upon the approval
of the record on appeal filed in due time. (Sec. 9, Rule 41) with copies of his letter of transmittal of
The contention of XXX that the RTC has no more the records to the appellate court. (10a)
jurisdiction over the case is not correct because at the
time that the motion to approve the compromise had Section 11. Transcript. — Upon the
been filed, the period of appeal of YYY had not yet perfection of the appeal, the clerk shall
expired. Besides,even if that period had already expired, immediately direct the stenographers
the records of the case had not yet been forwarded to concerned to attach to the record of the

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case five (5) copies of the transcripts of the Section 1. How appeal taken; time for
testimonial evidence referred to in the record filing. — A party desiring to appeal from
on appeal. The stenographers concerned shall a decision of the Regional Trial Court
transcribe such testimonial evidence and shall rendered in the exercise of its appellate
prepare and affix to their transcripts an index jurisdiction may file a verified petition
containing the names of the witnesses and for review with the Court of Appeals,
the pages wherein their testimonies are paying at the same time to the clerk of
found, and a list of the exhibits and the pages said court the corresponding docket and
wherein each of them appears to have been other lawful fees, depositing the amount
offered and admitted or rejected by the trial of P500.00 for costs, and furnishing the
court. The transcripts shall be transmitted to Regional Trial Court and the adverse party
the clerk of the trial court who shall with a copy of the petition. The petition
thereupon arrange the same in the order in shall be filed and served within fifteen
which the witnesses testified at the trial, and (15) days from notice of the decision
shall cause the pages to be numbered sought to be reviewed or of the denial of
consecutively. (12a) petitioner's motion for new trial or
reconsideration filed in due time after
Section 12. Transmittal. — The clerk of the judgment. Upon proper motion and the
trial court shall transmit to the appellate payment of the full amount of the docket
court the original record or the approved and other lawful fees and the deposit for
record on appeal within thirty (30) days from costs before the expiration of the
the perfection of the appeal, together with reglementary period, the Court of Appeals
the proof of payment of the appellate court may grant an additional period of fifteen
docket and other lawful fees, a certified true (15) days only within which to file the
copy of the minutes of the proceedings, the petition for review. No further extension
order of approval, the certificate of shall be granted except for the most
correctness, the original documentary compelling reason and in no case to
evidence referred to therein, and the original exceed fifteen (15) days. (n)
and three (3) copies of the transcripts. Copies
of the transcripts and certified true copies of IMPORTANT NOTE: There is NO mode of
the documentary evidence shall remain in the DIRECT APPEAL from the judgment rendered
lower court for the examination of the by the RTC in the exercise of its appellate
parties. (11a) jurisdiction to the SC even if only questions of
law are involved.
Section 13. Dismissal of appeal. — Prior to
HOW TAKEN:
the transmittal of the original record or the 1. Filing a verified petition for review with
record on appeal to the appellate court, the the CA;
trial court may motu proprio or on motion Within 15 days from notice of decision;
dismiss the appeal for having been taken out Within 15 days from receipt of notice of
of time. (14a) order denying MNT or MR.
2. Payment of docket and other lawful
Appeal may be dismissed, on motion or motu fees.
proprio for: 3. Furnish the RTC and the adverse party
1. Having filed out of time; with a copy of the petition.
2. Non-payment of docket and other lawful
fees within the reglementary period. NOTE: Appeals to the CA from RTC under Rule
42 and 43 may be made on pure questions of
The requirement regarding the perfection of the law.
appeal within the reglementary period is not only
mandatory but jurisdictional. Section 2. Form and contents. — The
petition shall be filed in seven (7) legible
copies, with the original copy intended for
RULE 42 the court being indicated as such by the
petitioner, and shall
Petition for Review From the Regional
Trial Courts to the Court of Appeals

________________________________________________________________________________________________
(a) state the full names of the parties to the to file a comment on the petition, not a
case, without impleading the lower courts or motion to dismiss, within ten (10) days
judges thereof either as petitioners or from notice, or dismiss the petition if it
respondents; finds the same to be patently without
merit, prosecuted manifestly for delay, or
(b) indicate the specific material dates that the questions raised therein are too
showing that it was filed on time; insubstantial to require consideration. (n)
(c) set forth concisely a statement of the Section 5. Contents of comment. — The
matters involved, the issues raised, the comment of the respondent shall be filed
specification of errors of fact or law, or both, in seven (7) legible copies, accompanied
allegedly committed by the Regional Trial by certified true copies of such material
Court, and the reasons or arguments relied portions of the record referred to therein
upon for the allowance of the appeal; together with other supporting papers and
shall
(d) be accompanied by clearly legible
duplicate originals or true copies of the (a) state whether or not he accepts the
judgments or final orders of both lower statement of matters involved in the
courts, certified correct by the clerk of court petition;
of the Regional Trial Court, the requisite
number of plain copies thereof and of the (b) point out such insufficiencies or
pleadings and other material portions of the inaccuracies as he believes exist in
record as would support the allegations of the petitioner's statement of matters involved
petition. but without repetition; and
The petitioner shall also submit together with (c) state the reasons why the petition
the petition a certification under oath that he should not be given due course. A copy
has not theretofore commenced any other thereof shall be served on the petitioner.
action involving the same issues in the (a)
Supreme Court, the Court of Appeals or
different divisions thereof, or any other Section 6. Due course. — If upon the
tribunal or agency; if there is such other filing of the comment or such other
action or proceeding, he must state the pleadings as the court may allow or
status of the same; and if he should require, or after the expiration of the
thereafter learn that a similar action or period for the filing thereof without such
proceeding has been filed or is pending comment or pleading having been
before the Supreme Court, the Court of submitted, the Court of Appeals finds
Appeals, or different divisions thereof, or any prima facie that the lower court has
other tribunal or agency, he undertakes to committed an error of fact or law that will
promptly inform the aforesaid courts and warrant a reversal or modification of the
other tribunal or agency thereof within five appealed decision, it may accordingly give
(5) days therefrom. (n) due course to the petition. (n)
Section 3. Effect of failure to comply with  Note that petition for review is not a
requirements. — The failure of the matter of right but is discretionary on
petitioner to comply with any of the foregoing the CA.
requirements regarding the payment of the
docket and other lawful fees, the deposit for Section 7. Elevation of record. —
costs, proof of service of the petition, and the Whenever the Court of Appeals deems it
contents of and the documents which should necessary, it may order the clerk of court
accompany the petition shall be sufficient of the Regional Trial Court to elevate the
ground for the dismissal thereof. (n) original record of the case including the
oral and documentary evidence within
Section 4. Action on the petition. — The fifteen (15) days from notice. (n)
Court of Appeals may require the respondent

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Section 8. Perfection of appeal; effect Court of Tax Appeals and from awards,
thereof. — (a) Upon the timely filing of a judgments, final orders or resolutions of
petition for review and the payment of the or authorized by any quasi-judicial agency
corresponding docket and other lawful fees, in the exercise of its quasi-judicial
the appeal is deemed perfected as to the functions. Among these agencies are the
petitioner. Civil Service Commission, Central Board of
Assessment Appeals, Securities and
The Regional Trial Court loses jurisdiction Exchange Commission, Office of the
over the case upon the perfection of the President, Land Registration Authority,
appeals filed in due time and the expiration of Social Security Commission, Civil
the time to appeal of the other parties. Aeronautics Board, Bureau of Patents,
Trademarks and Technology Transfer,
However, before the Court of Appeals gives National Electrification Administration,
due course to the petition, the Regional Trial Energy Regulatory Board, National
Court may issue orders for the protection and Telecommunications Commission,
preservation of the rights of the parties which Department of Agrarian Reform under
do not involve any matter litigated by the Republic Act No. 6657, Government
appeal, approve compromises, permit Service Insurance System, Employees
appeals of indigent litigants, order execution Compensation Commission, Agricultural
pending appeal in accordance with section 2 Invention Board, Insurance Commission,
of Rule 39, and allow withdrawal of the Philippine Atomic Energy Commission,
appeal. (9a, R41) Board of Investments, Construction
Industry Arbitration Commission, and
voluntary arbitrators authorized by law.
(b) Except in civil cases decided under the
(n)
Rule on Summary Procedure, the appeal shall
stay the judgment or final order unless the
Court of Appeals, the law, or these Rules AGENCIES INCLUDED:
1. Civil Service Commission (CSC)
shall provide otherwise. (a)
2. Securities and Exchange Commission
(SEC)
 NOTE: There is still residual power in 3. Office of the President (OP);
this Rule before CA gives due course 4. Land Registration Authority (LRA)
to the petition. 5. Social Security Commission (SSC);
6. Civil Aeronautics Board (CAB);
Section 9. Submission for decision. — If 7. Bureau of Patents (BP);
the petition is given due course, the Court of 8. Trademarks and Technology Transfer;
Appeals may set the case for oral argument 9. National Electrification Administration
or require the parties to submit (NEA);
memoranda within a period of fifteen (15) 10. Energy Regulatory Board (ERB);
days from notice. The case shall be deemed 11. National Telecommunications Commission
(NTC);
submitted for decision upon the filing of the
12. Department of Agrarian Reform (DAR);
last pleading or memorandum required by
13. GSIS;
these Rules or by the court itself. (n) 14. Employees Compensation Commission
(ECC);
15. Agricultural Inventions Board (AIB);
16. Insurance Commissions (IC);
17. Philippine Atomic Energy Commission
(PAEC);
RULE 43 18. Board of Investments (BOI);
19. Construction Industry Arbitration
Commission (CIAC);
Appeals From the Court of Tax Appeals 20. Voluntary Arbitrators authorized by law – art.
and Quasi-Judicial Agencies to the Court 262, LC (VA)
of Appeals
NOTE: The Court of Tax Appeals is now co-
Section 1. Scope. — This Rule shall apply to equal with the CA. A party adversely affected by
appeals from judgments or final orders of the a decision or ruling of the CTA en banc may file

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with the Supreme Court a verified petition for review Rule 42 to the CA. nevertheless, the
on certiorari pursuant to Rule 45 (sec. 12, decision of the CA may be appealed via
RA 9282). Petition for Review on Certiorari under Rule
45 to the SC raising only pure questions of
Certiorari; Mode of Certiorari (2006) law.
Explain each mode of certiorari:
1. As a mode of appeal from the Regional Trial Court Section 2. Cases not covered. — This
or the Court of Appeals to the Supreme Court. (2.5%) Rule shall not apply to judgments or final
SUGGESTED ANSWER:
Certiorari as a mode of appeal is governed by Rule 45 of orders issued under the Labor Code of the
the Rules of Court which allows appeal from judgment, Philippines. (n)
final order of resolution of the Court of Appeals,
Sandiganbayan, the RTC or other courts whenever NOTE: Judgments and final orders of the NLRC
authorized by law to the Supreme Court by verified are reviewable by the Court of Appeals in an
petition for review raising only questions of law original action for certiorari under Rule 65 (St.
distinctly set forth. Martin Funeral Homes vs. NLRC, Sept. 16,
2. As a special civil action from the Regional 1998).
Trial Court or the Court of Appeals to the Supreme
Court. (2.5%) Administrative orders, directives, or
SUGGESTED ANSWER: decisions of Ombudsman.
Certiorari as a Special Civil Action is governed by Rule Decision is immediately executory only if penalty
65 of the Rules of Court when an aggrieved party may is public censure, reprimand, suspension of not
file a verified petition against a decision, final order or more than one month, or a fine not equivalent
resolution of a tribunal, body or board that has acted (less than) one month of salary. If higher
without or in excess of its jurisdiction or grave abuse of penalties are imposed, decision is appealable to
discretion amounting to lack or excess of jurisdiction, the CA under Rule 43 by Petition for Review
when there is no appeal or any other plain, speedy and (Fabian vs. Desierto).
adequate remedy in the ordinary course of law.
3. As a mode of review of the decisions of the Resolutions or final orders of the Ombudsman in
National Labor Relations Commission and the criminal cases cannot be appealed. Remedy of
Constitutional Commissions. (2.5%) the aggrieved party in connection with the said
SUGGESTED ANSWER: resolutions or final orders is a petition for
Certiorari as a mode of review of the decision of the certiorari direct with the SC. Doctrine of
NLRC is elevated to the Court of Appeals under Rule hierarchy of courts does not apply because the
65, as held in the case of St. Martin's Funeral Home v. CA has no authority to issue the writ (Maturan
NLRC, G.R. No. 130866, September 16, 1998. Certiorari as vs. P.,L-150353. July 27, 2004).
a mode of review from the Commission on Audit
(COA) and COMELEC is elevated to the Supreme Jurisdiction; Ombudsman Case Decisions (2006)
Court within 30 days from notice of the judgment, Does the Court of Appeals have jurisdiction to
decision or final order or resolution sought to be review
reviewed, as provided for under the Rule 64 of the the Decisions in criminal and administrative cases of
1997 Rules of Civil Procedure. In the case of the Civil the Ombudsman? (2.5%)
Service Commission (CSC), review of its judgments is SUGGESTED ANSWER:
The Supreme Court has exclusive appellate jurisdiction
through petitions for review under Sec. 5 of Rule 43 of
over decisions of the Ombudsman in criminal cases (Sec.
the 1997 Rules of Civil Procedure. 14,
R.A. 6770). In administrative and disciplinary cases,
Decisions of the Central Board of Assessment and appeals
Appeals is appealable with the CTA en banc. from the Ombudsman must be taken to the Court of
Appeals under Rule 43
Note: However, decisions of the CSC shall be (Lanting v. Ombudsman, G.R. No. 141426, May 6, 2005;
appealable by certiorari to the Court of Appeals Fabian v. Desierto, G.R. No. 129742, September 16, 1998;
within 15 days from receipt of copy thereof. The Sec. 14, RA. 6770).
party adversely affected shall file a petition for
review on certiorari under Rule 45 of the Rules of
Court (SC Revised Administrative Circular 1-95, Section 3. Where to appeal. — An
June 1, 1995). appeal under this Rule may be taken to
the Court of Appeals within the period and
COMMENT: This is in effect modified by Rule in the manner herein provided, whether
43, because the decision of the CSC is the appeal involves questions of fact, of
appealable by way of petition for review under

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law, or mixed questions of fact and law. (n) (a) state the full names of the parties to
the case, without impleading the court
Section 4. Period of appeal. — The appeal or agencies either as petitioners or
shall be taken within fifteen (15) days from respondents;
notice of the award, judgment, final order or (b) contain a concise statement of the
resolution, or from the date of its last facts and issues involved and the
publication, if publication is required by law grounds relied upon for the review;
for its effectivity, or of the denial of (c) be accompanied by a clearly legible
petitioner's motion for new trial or duplicate original or a certified true copy
reconsideration duly filed in accordance with of the award, judgment, final order or
the governing law of the court or agency a resolution appealed from, together with
quo. Only one (1) motion for reconsideration certified true copies of such material
shall be allowed. Upon proper motion and the portions of the record referred to therein
payment of the full amount of the docket fee and other supporting papers; and
before the expiration of the reglementary (d) contain a sworn certification against
period, the Court of Appeals may grant an forum shopping as provided in the last
additional period of fifteen (15) days only paragraph of section 2, Rule 42.
within which to file the petition for review. No
further extension shall be granted except for The petition shall state the specific
the most compelling reason and in no case to material dates showing that it was filed
exceed fifteen (15) days. (n) within the period fixed herein. (2a)
APPEAL PERIOD CONTENTS OF PETITION: (clue words only)

15 days from:
1. Notice of award, judgment, final order or 1. Full names of parties;
resolution; 2. Concise statement of facts and
2. Date of publication, if publication is required issues/grounds relied upon;
for its effectivity; 3. Clearly legible duplicate originals/certified
3. Denial of MNT or MR. true copy of judgment;
4. CAFS;
5. Material dates showing timeliness.
Section 5. How appeal taken. — Appeal
shall be taken by filing a verified petition
Section 7. Effect of failure to comply
for review in seven (7) legible copies with
with requirements. — The failure of the
the Court of Appeals, with proof of service
petitioner to comply with any of the
of a copy thereof on the adverse party and
foregoing requirements regarding the
on the court or agency a quo. The original
payment of the docket and other lawful
copy of the petition intended for the Court of
fees, the deposit for costs, proof of service
Appeals shall be indicated as such by the
of the petition, and the contents of and
petitioner.
the documents which should accompany
the petition shall be sufficient ground for
Upon the filing of the petition, the petitioner the dismissal thereof. (n)
shall pay to the clerk of court of the Court
of Appeals the docketing and other lawful
Note: Under sec. 16, PD 946, an agricultural
fees and deposit the sum of P500.00 for tenant is entitled to the rights of a pauper and/or
costs. Exemption from payment of docketing an indigent litigant and to continue to enjoy such
and other lawful fees and the deposit for status in the appellate courts until the case is
costs may be granted by the Court of Appeals terminated. Dismissal of appeal on the sole
upon a verified motion setting forth valid ground of non-payment of docket fees is NOT
grounds therefor. If the Court of Appeals ALLOWED. He is not even required to pay
denies the motion, the petitioner shall pay docket fee (De Guzman vs. IAC, 169 SCRA
the docketing and other lawful fees and 288).
deposit for costs within fifteen (15) days from
notice of the denial. (n) Section 8. Action on the petition. — The
Court of Appeals may require the
Section 6. Contents of the petition. — The respondent to file a comment on the
petition for review shall petition not a motion to dismiss, within

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ten (10) days from notice, or dismiss the Section 12. Effect of appeal. — The
petition if it finds the same to be patently appeal shall not stay the award,
without merit, prosecuted manifestly for judgment, final order or resolution sought
delay, or that the questions raised therein are to be reviewed unless the Court of
too unsubstantial to require consideration. Appeals shall direct otherwise upon such
(6a) terms as it may deem just. (10a)
Section 9. Contents of comment. — The NOTE: As compared to Rule 42 (Petition for

comment shall be filed within ten (10) days Review from RTC- CA), sec. 8 [b] which
from notice in seven (7) legible copies and provides:
accompanied by clearly legible certified true
copies of such material portions of the record (b) Except in civil cases decided under the
referred to therein together with other Rule on Summary Procedure, the appeal shall
supporting papers. The comment shall: stay the judgment or final order unless the
Court of Appeals, the law, or these Rules shall
(a) point out insufficiencies or provide otherwise.
inaccuracies in petitioner's statement of
facts and issues; and
18. The Energy Regulatory Commission
(ERC) promulgates a decision increasing
(b) state the reasons why the petition electricity rates by 3%. KMU appeals the
should be denied or dismissed. A copy decision by way of petition for review. The
thereof shall be served on the petitioner, appeal will therefore:
and proof of such service shall be filed a. stay the execution of ERC decision.
with the Court of Appeals. (9a) b. shall not stay the ERC decision unless
the Court of Appeals directs otherwise.
Section 10. Due course. — If upon the filing c. stay the execution of the ERC decision
of the comment or such other pleadings or conditioned on KMU posting a bond.
documents as may be required or allowed by d. shall not stay the ERC decision.
the Court of Appeals or upon the expiration of SUGGESTED ANSWER:
the period for the filing thereof, and on the (b), KMU‟s appeal of the decision of the
records the Court of Appeals finds prima facie Energy Regulations Commission shall
that the court or agency concerned has not stay the decision increasing the
committed errors of fact or law that would electricity rates by 3%, unless the Court
warrant reversal or modification of the award, of Appeals shall direct otherwise upon
judgment, final order or resolution sought to such terms as it may deem just. (Rule
be reviewed, it may give due course to the 43, Sec. 12, Rules of Court).
petition; otherwise, it shall dismiss the same.
The findings of fact of the court or agency
concerned, when supported by substantial
evidence, shall be binding on the Court of Section 13. Submission for decision. — If
Appeals. (n) the petition is given due course, the Court
of Appeals may set the case for oral
 Note: The underlined portion is also known argument or require the parties to submit
as “substantial evidence rule” memoranda within a period of fifteen (15)
days from notice. The case shall be
Section 11. Transmittal of record. — Within deemed submitted for decision upon the
fifteen (15) days from notice that the petition filing of the last pleading or memorandum
has been given due course, the Court of required by these Rules or by the court of
Appeals may require the court or agency Appeals. (n)
concerned to transmit the original or a legible
certified true copy of the entire record of the
proceeding under review. The record to be
transmitted may be abridged by agreement Procedure in the Court of Appeals
of all parties to the proceeding. The Court of
Appeals may require or permit subsequent RULE 44
correction of or addition to the record. (8a)
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Ordinary Appealed Cases Section 5. Completion of record. —
Where the record of the docketed case is
IMPORTANT: This Rule 44 should be taken incomplete, the clerk of court of the Court
together with Rule 41. of Appeals shall so inform said court and
recommend to it measures necessary to
Section 1. Title of cases. — In all cases complete the record. It shall be the duty
appealed to the Court of Appeals under Rule of said court to take appropriate action
41, the title of the case shall remain as it was towards the completion of the record
in the court of origin, but the party appealing within the shortest possible time. (n)
the case shall be further referred to as the
appellant and the adverse party as the  Note: Connect this section to sec.1[g] of
appellee. (1a, R46) Rule 50.
Section 2. Counsel and guardians. — The Section 6. Dispensing with complete

counsel and guardians ad litem of the parties record. — Where the completion of the
in the court of origin shall be respectively record could not be accomplished within a
considered as their counsel and guardians ad sufficient period allotted for said purpose
litem in the Court of Appeals. When others due to insuperable or extremely difficult
appear or are appointed, notice thereof shall causes, the court, on its own motion or on
be served immediately on the adverse party motion of any of the parties, may declare
and filed with the court. (2a, R46) that the record and its accompanying
transcripts and exhibits so far available
Section 3. Order of transmittal of record. are sufficient to decide the issues raised in
— If the original record or the record on the appeal, and shall issue an order
appeal is not transmitted to the Court of explaining the reasons for such
Appeals within thirty (30) days after the declaration. (n)
perfection of the appeal, either party may file
a motion with the trial court, with notice to Section 7. Appellant's brief. — It shall
the other, for the transmittal of such record be the duty of the appellant to file with
or record on appeal. (3a, R46) the court, within forty-five (45) days
from receipt of the notice of the clerk that
Section 4. Docketing of case. — Upon all the evidence, oral and documentary,
receiving the original record or the record on are attached to the record, seven (7)
appeal and the accompanying documents and copies of his legibly typewritten,
exhibits transmitted by the lower court, as mimeographed or printed brief, with
well as the proof of payment of the docket proof of service of two (2) copies
and other lawful fees, the clerk of court of the thereof upon the appellee. (10a, R46)
Court of Appeals shall docket the case and
notify the parties thereof. (4a, R46) Failure to file appellant’s brief on time is
a ground for the dismissal of the appeal
(Rule 50, sec. 1[e]).
Within ten (10) days from receipt of said
notice, the appellant, in appeals by record on
If a motion to dismiss an appeal is filed, it
appeal, shall file with the clerk of court seven suspends the running of the period for filing the
(7) clearly legible copies of the approved appellant’s brief, as the same would not be
record on appeal, together with the proof of necessary should the motion be granted.
service of two (2) copies thereof upon the
appellee. The failure of the appellant to make
specific assignment of errors in his brief
Any unauthorized alteration, omission or or page references to the record as
addition in the approved record on appeal required in this section is a ground for
shall be a ground for dismissal of the appeal. the dismissal of his appeal (Rule 50,
(n) sec. 1[f]).
 Note: Connect to Rule 50, sec. 1[d]. Section 8. Appellee's brief. — Within
forty-five (45) days from receipt of the
appellant's brief, the appellee shall file
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with the court seven (7) copies of his legibly (b) An assignment of errors intended to
typewritten, mimeographed or printed brief, be urged, which errors shall be separately,
with proof of service of two (2) copies distinctly and concisely stated without
thereof upon the appellant. (11a, R46) repetition and numbered consecutively;
Section 9. Appellant's reply brief. — Within (c) Under the heading "Statement of the
twenty (20) days from receipt of the Case," a clear and concise statement of
appellee's brief, the appellant may file a reply the nature of the action, a summary of the
brief answering points in the appellee's brief proceedings, the appealed rulings and
not covered in his main brief. (12a, R46) orders of the court, the nature of the
judgment and any other matters
Section 10. Time of filing memoranda in necessary to an understanding of the
special cases. — In certiorari, prohibition, nature of the controversy with page
mandamus, quo warranto and habeas corpus references to the record;
cases, the parties shall file in lieu of briefs,
their respective memoranda within a non- (d) Under the heading "Statement of
extendible period of thirty (30) days from Facts," a clear and concise statement in a
receipt of the notice issued by the clerk that narrative form of the facts admitted by
all the evidence, oral and documentary, is both parties and of those in controversy,
already attached to the record. (13a, R46) together with the substance of the proof
relating thereto in sufficient detail to make
The failure of the appellant to file his it clearly intelligible, with page references
memorandum within the period therefor may to the record;
be a ground for dismissal of the appeal. (n)
(e) A clear and concise statement of the
 See also Rule 50, sec. 1[e]. issues of fact or law to be submitted, to
the court for its judgment;
Section 11. Several appellants or
appellees or several counsel for each (f) Under the heading "Argument," the
party. — Where there are several appellants appellant's arguments on each assignment
or appellees, each counsel representing one of error with page references to the
or more but not all of them shall be served record. The authorities relied upon shall
with only one copy of the briefs. When be cited by the page of the report at which
several counsel represent one appellant or the case begins and the page of the report
appellee, copies of the brief may be served on which the citation is found;
upon any of them. (14a, R46)
(g) Under the heading "Relief," a
Section 12. Extension of time for filing specification of the order or judgment
briefs. — Extension of time for the filing of which the appellant seeks; and
briefs will not be allowed, except for good
and sufficient cause, and only if the motion (h) In cases not brought up by record on
for extension is filed before the expiration of appeal, the appellant's brief shall contain,
the time sought to be extended. (15, R46) as an appendix, a copy of the judgment or
final order appealed from. (16a, R46)
Section 13. Contents of appellant's brief.
— The appellant's brief shall contain, in the Section 14. Contents of appellee's
order herein indicated, the following: brief. — The appellee's brief shall contain,
in the order herein indicated the following:
(a) A subject index of the matter in the brief
with a digest of the arguments and page (a) A subject index of the matter in the
references, and a table of cases brief with a digest of the arguments and
alphabetically arranged, textbooks and page references, and a table of cases
statutes cited with references to the pages alphabetically arranged, textbooks and
where they are cited; statutes cited with references to the pages
where they are cited;

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(b) Under the heading "Statement of Facts," Appeals. Procedures in the Supreme Court are
the appellee shall state that he accepts the found in Rule 56.
statement of facts in the appellant's brief, or
under the heading "Counter-Statement of NOTE: on some occasions, Petitions for Review
Facts," he shall point out such insufficiencies on Certiorari , are treated as Petition for
or inaccuracies as he believes exist in the Certiorari when it substantially recited the
appellant's statement of facts with references requirements of Rule 65 (Pahila-Garido vs.
to the pages of the record in support thereof, Tortogo, GR No. 156358, Aug. 17, 2011).
but without repetition of matters in the
appellant's statement of facts; and
(c) Under the heading "Argument," the

appellee shall set forth his arguments in the
case on each assignment of error with page RTC, Sandiganbayan, CTA en
references to the record. The authorities banc, or CA renders decision
relied on shall be cited by the page of the
report at which the case begins and the page
of the report on which the citation is found. Any party files a petition for
(17a, R46) review on certiorari within 15
days from notice of final
BRIEF MEMORANDUM judgment or order of the lower
Ordinary Certiorari, prohibition, court or notice of denial of MNT
appeals mandamus, quo warranto or MR
and habeas corpus cases
Filed within 45 Within 30 days
days Appellant serves copies of
Shorter, briefer, only one petition on adverse parties and
issue involved, no subject to the lower court and pay the
Contents index or assignment of corresponding docket fees
specified by the errors, just facts and law
Rules applicable
SC may dismiss the petition or
Section 15. Questions that may be raised require the appellee to
on appeal. — Whether or not the appellant comment
has filed a motion for new trial in the court
below he may include in his assignment of
errors any question of law or fact that has If given due course, parties may
been raised in the court below and which is submit memoranda
within the issues framed by the parties. (18,
R46)
SC may affirm, reverse, or
modify the judgment of the
lower court
Section 1. Filing of petition with

Supreme Court. — A party desiring to
RULE 45 appeal by certiorari from a judgment or
final order or resolution of the Court of
Appeal by Certiorari to the Supreme Appeals, the Sandiganbayan, the Regional
Court Trial Court or other courts whenever
authorized by law, may file with the
COMMENT: This Rule 45 should have been Supreme Court a verified petition for
provided in a separate Rule number. Starting from review on certiorari. The petition shall
Rule 41 up to Rule 44, and again from Rule 46 up to raise only questions of law which must be
Rule 55, the Rules are generally devoted to the distinctly set forth. (1a, 2a)
actions and procedures of cases in the Court of

________________________________________________________________________________________________
GR: The findings of fact of the CA are final and Gen. Principles; Questions of Law vs. Questions of
conclusive and cannot be reviewed on appeal to the Fact (2004)
SC. Distinguish Questions of law from Questions of
fact.
EXCEPTIONS: SUGGESTED ANSWER:
1. When the finding is grounded entirely on A QUESTION OF LAW is when the doubt or
speculations, surmise or conjecture; difference arises as to what the law is on a certain set
2. When inference is manifestly absurd, mistaken, of facts, while a QUESTION OF FACT is when the
or impossible; doubt or difference arises as to the truth or
3. When judgment is based on misrepresentation falsehood of alleged facts. (Ramos v. Pepsi-Cola
of facts; Bottling Co., 19 SCRA 289, [19670]).
4. When there is grave abuse of discretion in the
appreciation of facts’ Witness; Competency of the Witness vs. Credibility of
5. When findings of facts are conflicting; the Witness (2004)
6. When the CA in making its findings went Distinguish Competency of the witness and redibility
beyond the issues of the case and the same is of the witness.
contrary to both the admissions of the SUGGESTED ANSWER:
appellants and appellees; Competency of the witness refers to a witness who
7. When the findings of facts of the CA are at can perceive, and perceiving, can make known his
variance with those of the trial court, the SC has perception to others (Sec. 20 of Rule 130), while
to review the evidence in order to arrive at the credibility of the witness refers to a witness whose
correct findings based on the record; testimony is believable.
8. When the findings of fact are conclusions
without citation of specific evidence on which Mixed Questions of Law and Facts [Brandeis
they are based; Doctrine of Assimilation of Facts]:
9. When the facts set forth in the petition as well Where what purports to be a finding upon a
as in the petitioner’s main and reply briefs are question of fact is so involved with and
not disputed by the respondents; dependent upon a question of law as to be in
10. The findings of fact of the CA is premised on the substance and effect a decision of the latter, the
supposed evidence and is contradicted by Court will, in order to decide the legal question,
evidence on record; examine the entire record including the evidence
11. When certain material facts and circumstances if necessary.
have been overlooked by the trial court which, if
taken into account, would alter the result of the Certiorari; Mode of Certiorari (2006)
case in that they would entitle the accused to Explain each mode of certiorari:
acquittal. 1. As a mode of appeal from the Regional Trial
Court or the Court of Appeals to the Supreme
Questions of Law Questions of Fact Court. (2.5%)
SUGGESTED ANSWER:
Doubt or difference as
Certiorari as a mode of appeal is governed by Rule
Doubt as to what the to the truth or falsehood
law is on certain facts of facts, or as to
45 of the Rules of Court which allows appeal from
probative value of judgment, final order of resolution of the Court of
evidence presented Appeals, Sandiganbayan, the RTC or other courts
No need to evaluate the Needs evaluation of whenever authorized by law to the Supreme Court
evidence evidence by verified petition for review raising only questions
The query involves the of law distinctly set forth.
calibration of the whole 2. As a special civil action from the Regional
Can involve questions evidence considering Trial Court or the Court of Appeals to the Supreme
Court. (2.5%)
of interpretation of the mainly the credibility of SUGGESTED ANSWER:
law with respect to witnesses, existence Certiorari as a Special Civil Action is governed by
certain set of facts and relevancy of Rule 65 of the Rules of Court when an aggrieved
specific surrounding party may file a verified petition against a decision,
circumstances and
final order or resolution of a tribunal, body or board
relation to each other
that has acted without or in excess of its jurisdiction
and the whole
or grave abuse of discretion amounting to lack or
probabilities of the
excess of jurisdiction, when there is no appeal or any
situation
other plain, speedy and adequate remedy in the
ordinary course of law.
3. As a mode of review of the decisions of the

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

________________________________________________________________________________________________
reconsideration is not required, while in the special final order or resolution appealed from, or of the
civil action of certiorari, such a motion is generally denial of the petitioner's motion for new trial or
required. reconsideration filed in due time after notice of the
SUGGESTED ANSWER: judgment. (Sec. 2, Rule 45)
b. NO, because as a general rule, certiorari is proper if 3 The first cannot generally be availed of as a
there is no appeal (Sec. 1 of Rule 65.) However, if appeal is substitute
not a speedy and adequate remedy, certiorari may be for a lost appeal under Rules 40, 41, 42, 43 and 45.
resorted to. (Echaus v. Court of Appeals, 199 SCRA 381.) 4 Under the first, the lower court is impleaded as a
Certiorari is sanctioned, even if appeal is available, on the party
basis of a patent, capricious and whimsical exercise of respondent (Sec. 5 of Rule 65), while under the second,
discretion by a trial judge as when an appeal will not the lower court is not imp leaded. (Sec. 4 of Rule of 45)
promptly relieve petitioner from the injurious effects of
the disputed order (Vasquez vs. Robilla-Alenio, 271 SCRA Certiorari; Rule 45 vs. Rule 65 (2005)
67) May the aggrieved party file a petition for certiorari
in
Certiorari; Rule 45 vs. Rule 65 (2008) the Supreme Court under Rule 65 of the 1997 Rules
No.XXI.A. Compare the certiorari jurisdiction of of
the Supreme Court under the Constitution Civil Procedure, instead of filing a petition for
with that under Rule 65 of the Rules of Civil
review
Procedure? SUGGESTED ANSWER: on certiorari under Rule 45 thereof for the
The certiorari jurisdiction of the Supreme
nullification
Court under the Constitution is the mode
of a decision of the Court of Appeals in the exercise
by which the Court exercises its expanded
either of its original or appellate jurisdiction?
jurisdiction, allowing it to take corrective
Explain.
action through the exercise of its judicial SUGGESTED ANSWER:
power. Constitutional certiorari jurisdiction To NULLIFY A DECISION of the Court of
applies even if the decision was not Appeals
rendered by a judicial or quasi-judicial body, the aggrieved party should file a PETITION FOR
hence, it is broader than the writ of REVIEW ON CERTIORARI in the Supreme Court
certiorari under Rule 65, which is limited to under Rule 45 of the Rules of Court instead of filing
cases involving a grave abuse of discretion a
amounting to lack or excess of jurisdiction petition for certiorari under Rule 65 except under
on the part of any branch or very
instrumentality of the government and exceptional circumstances. A long line of decisions
there is no other claim speedy remedy of
available to a party in the ordinary course the Supreme Court, too numerous to mention, holds
of law. that certiorari is not a substitute for a lost appeal. It
should be noted, however, when the Court of
Appeals
Certiorari; Rule 45 vs. Rule 65 (1998) imposes the death penalty, or a lesser penalty for
Differentiate certiorari as an original action from offenses committed on such occasion, appeal by
certiorari as a mode of appeal. |3%] petition for review or ordinary appeal. In cases when
SUGGESTED ANSWER:
Certiorari as an original action and certiorari as a mode the Court of Appeals imposes reclusion perpetua,
of appeal may be distinguished as follows: life
1. The first is a special civil action under Rule imprisonment or a lesser penalty, appeal is by notice
65 of the Rules of Court, while the second is an appeal of
to the Supreme Court from the Court of Appeals, appeal filed with the Court of Appeals.
Sandiganbayan and the RTC under Rule 45.
1 The first can be filed only on the grounds of lack or IMPORTANT: The general rule is that Rule 45
excess of jurisdiction or grave abuse of discretion covers only pure questions of law.
tantamount
The exceptions however are:
to lack or excess of jurisdiction, while the second is
based on
1. Sec. 19 of The Rule on The Writ of Amparo;
the errors of law of the lower court.
2 The first should be filed within sixty (60) days from
2. Sec. 19 of The Rule on The Writ of Habeas
notice of the judgment, order or resolution sought to be Data;
assailed (Sec. 4. Rule 65), while the second should be filed 3. Sec. 16, Rule 7, Rules of Procedure in
within fifteen (15) days from notice of the judgment or Environmental Cases.

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On the cited sections, the appeal may raise (e) contain a sworn certification against
questions of fact or law or both. The forum shopping as provided in the last
period to appeal is only within 5 working paragraph of section 2, Rule 42. (2a)
days from date of notice of adverse
judgment except no. 3 which is 15 days.
Section 5. Dismissal or denial of
petition. — The failure of the petitioner to
4. When there are contradictory findings of the
RTC and the CA (Asia Brewery, Inc. vs. CA, L- comply with any of the foregoing
103543, July 5, 1993; Mcdonald’s Corp vs. L.C. requirements regarding the payment of
Big Mak Burger, L-143993, Aug. 18, 2004). the docket and other lawful fees, deposit
for costs, proof of service of the petition,
and the contents of and the documents
Section 3. Docket and other lawful fees;
which should accompany the petition shall
proof of service of petition. — Unless he
be sufficient ground for the dismissal
has theretofore done so, the petitioner shall
thereof.
pay the corresponding docket and other
lawful fees to the clerk of court of the
Supreme Court and deposit the amount of The Supreme Court may on its own
P500.00 for costs at the time of the filing of initiative deny the petition on the ground
the petition. Proof of service of a copy, that the appeal is without merit, or is
thereof on the lower court concerned and on prosecuted manifestly for delay, or that
the adverse party shall be submitted together the questions raised therein are too
with the petition. (1a) unsubstantial to require consideration.
(3a)
Section 4. Contents of petition. — The
petition shall be filed in eighteen (18) copies, GROUNDS FOR DISMISSAL OR DENIAL:
1. Failure to pay docket and other lawful fees
with the original copy intended for the court
and deposit for costs;
being indicated as such by the petitioner and
2. Absence of Proof of service;
shall: 3. Failure to comply with the form and contents
of petition;
(a) state the full name of the appealing 4. Appeal is without merit;
party as the petitioner and the adverse party 5. Prosecuted merely for delay;
as respondent, without impleading the lower 6. Questions raised are too unsubstantial to
courts or judges thereof either as petitioners merit consideration.
or respondents;
Section 6. Review discretionary. — A
(b) indicate the material dates showing review is not a matter of right, but of
when notice of the judgment or final order or sound judicial discretion, and will be
resolution subject thereof was received, when granted only when there are special and
a motion for new trial or reconsideration, if important reasons thereof. The following,
any, was filed and when notice of the denial while neither controlling nor fully
thereof was received; measuring the court's discretion, indicate
the character of the reasons which will be
(c) set forth concisely a statement of the considered:
matters involved, and the reasons or
arguments relied on for the allowance of the (a) When the court a quo has decided a
petition; question of substance, not theretofore
determined by the Supreme Court, or has
(d) be accompanied by a clearly legible decided it in a way probably not in accord
duplicate original, or a certified true copy with law or with the applicable decisions of
of the judgment or final order or resolution the Supreme Court; or
certified by the clerk of court of the court a
quo and the requisite number of plain copies (b) When the court a quo has so far
thereof, and such material portions of the departed from the accepted and usual
record as would support the petition; and course of judicial proceedings, or so far
sanctioned such departure by a lower

________________________________________________________________________________________________
court, as to call for an exercise of the power Original Cases
of supervision. (4a)
Note: Original Cases in the Court of Appeals.
Section 7. Pleadings and documents that
may be required; sanctions. — For Section 1. Title of cases. — In all cases
purposes of determining whether the petition originally filed in the Court of Appeals, the
should be dismissed or denied pursuant to party instituting the action shall be called
section 5 of this Rule, or where the petition is the petitioner and the opposing party the
given due course under section 8 hereof, the respondent. (1a)
Supreme Court may require or allow the filing
of such pleadings, briefs, memoranda or Section 2. To what actions applicable.
documents as it may deem necessary within — This Rule shall apply to original actions
such periods and under such conditions as it for certiorari, prohibition, mandamus and
may consider appropriate, and impose the quo warranto.
corresponding sanctions in case of non-filing
or unauthorized filing of such pleadings and Except as otherwise provided, the actions
documents or non-compliance with the for annulment of judgment shall be
conditions therefor. (n) governed by Rule 47, for certiorari,
prohibition and mandamus by Rule 65,
Section 8. Due course; elevation of and for quo warranto by Rule 66. (n)
records. — If the petition is given due
course, the Supreme Court may require the NOTE: Habeas corpus is excluded, being
elevation of the complete record of the case governed by the Rules on Special
or specified parts thereof within fifteen (15) Proceedings.
days from notice. (2a)
Section 3. Contents and filing of
Section 9. Rule applicable to both civil petition; effect of noncompliance with
and criminal cases. — The mode of appeal requirements. — The petition shall
prescribed in this Rule shall be applicable to contain the full names and actual
both civil and criminal cases, except in addresses of all the petitioners and
criminal cases where the penalty imposed is respondents, a concise statement of the
death, reclusion perpetua or life matters involved, the factual background
imprisonment. (n) of the case, and the grounds relied upon
for the relief prayed for.
As connected to Rule 122, sec. 3[e]:
In actions filed under Rule 65, the petition
“Except as provided in the last paragraph of
section 13, Rule 124, all other appeals to the shall further indicate the material dates
Supreme Court shall be by petition for review on showing when notice of the judgment or
certiorari under Rules 45”. final order or resolution subject thereof
was received, when a motion for new trial
Rule 124, sec. 13[last par.]. or reconsideration, if any, was filed and
when notice of the denial thereof was
Whenever the Court of Appeals finds that the penalty of received.
death, reclusion perpetua, or life imprisonment should be
imposed in a case, the court, after discussion of the
evidence and the law involved, shall render judgment It shall be filed in seven (7) clearly legible
imposing the penalty of death, reclusion perpetua, or life copies together with proof of service
imprisonment as the circumstances warrant. However, it thereof on the respondent with the
shall refrain from entering the judgment and forthwith original copy intended for the court
certify the case and elevate the entire record thereof to indicated as such by the petitioner, and
the Supreme Court for review.
shall be accompanied by a clearly legible
duplicate original or certified true copy of
the judgment, order, resolution, or ruling
subject thereof, such material portions of
RULE 46 the record as are referred to therein, and
other documents relevant or pertinent

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thereto. The certification shall be the respondent by the service on him of
accomplished by the proper clerk of court or its order or resolution indicating its initial
by his duly authorized representative, or by action on the petition or by his voluntary
the proper officer of the court, tribunal, submission to such jurisdiction. (n)
agency or office involved or by his duly
authorized representative. The other requisite Bar Exam Question 2013
number of copies of the petition shall be XV. In an original action for certiorari,
accompanied by clearly legible plain copies of prohibition, mandamus, or quo warranto ,
all documents attached to the original. when does the Court of Appeals acquire
jurisdiction over the person of the
The petitioner shall also submit together with respondent? (1%)
the petition a sworn certification that he has (A) Upon the service on the respondent of
not theretofore commenced any other action the petition for certiorari, prohibition,
involving the same issues in the Supreme mandamus or quo warranto, and his
Court, the Court of Appeals or different voluntary submission to the jurisdiction of
divisions thereof, or any other tribunal or the Court of Appeals. (B) Upon service on
the respondent of the summons from the
agency; if there is such other action or
Court of Appeals. (C) Upon the service on
proceeding, he must state the status of the
the respondent of the order or resolution
same; and if he should thereafter learn that a
of the Court of Appeals indicating its
similar action or proceeding has been filed or
initial action on the petition. (D) By
is pending before the Supreme Court, the respondent‟s voluntary submission to
Court of Appeals, or different divisions the jurisdiction of the Court of Appeals.
thereof, or any other tribunal or agency, he (E) Under any of the above modes.
undertakes to promptly inform the aforesaid SUGGESTED ANSWER: (C) and (D), Under
courts and other tribunal or agency thereof Section 4, Rule 46 of the Revised Rules
within five (5) days therefrom. of Civil Procedure, the court shall
acquire jurisdiction over the person of
The petitioner shall pay the corresponding the respondent by the service on him of
docket and other lawful fees to the clerk of its order or resolution indicating its
court and deposit the amount of P500.00 for initial action on the petition or by his
costs at the time of the filing of the petition. voluntary submission to such
jurisdiction. (n)
The failure of the petitioner to comply any of
the requirements shall be sufficient ground
for the dismissal of the petition. (n; Bar
Matter No. 803, 21 July 1998) JURISDICTION IS ACQUIRED
CONTENTS OF PETITION: (clue words)  Over the Petitioner—by filing the petition.
1. Full names and actual addresses of parties;  Over the Respondent:

2. Concise statement of matters involved;
3. Factual background of case; 1. Service of the order or resolution
4. Grounds relied/reliefs prayed; indicating court’s initial action on
5. If under Rule 65, material dates when notice of petition; or
judgment was received; 2. Voluntary submission
6. Seven legible copies, with proof of service;
7. Accompanied by legible duplicate Section 5. Action by the court. — The
original/certified true copy of judgment court may dismiss the petition outright
/order/resolution; with specific reasons for such dismissal or
8. CAFS; require the respondent to file a comment
9. Payment of docket/other lawful fees; on the same within ten (10) days from
10. Deposit for costs. notice. Only pleadings required by the
court shall be allowed. All other pleadings
Section 4. Jurisdiction over person of and papers, may be filed only with leave
respondent, how acquired. — The court of court. (n)
shall acquire jurisdiction over the person of

________________________________________________________________________________________________
PROCEDURAL OUTLINE (Original cases in Court Annulment of Judgment is available only in
of Appeals) civil cases.
Court of Appeals has no authority to annul
1. Filing of the petition; judgments of quasi-judicial bodies (Heirs of
2. Order to acquire jurisdiction over respondents or Santiago Andres vs. Office of the President,
outright dismissal for failure to comply with CA-G.R. SP 44327, June 25, 1998).
requirements as to form and payment of
docket/other lawful fees; IMPORTANT CONDITION FOR THE
3. Require respondents to file Comment within 10 AVAILMENT OF THE REMEDY
days from notice; The petitioner failed to move for MNT in, or
4. Court may require the filing of a Reply or such appeal from, or file a petition for relief against or
other pleadings as it may deem necessary; take other appropriate remedies assailing the
5. Determination of the factual issues. The court questioned judgment or final order or resolution
itself may conduct hearings or delegate the though NO FAULT attributable to him.
reception of evidence on such issues to any
members or to an appropriate court, agency or If he failed to avail of said remedies without
office. sufficient justification, he cannot resort to
annulment provided in this rule, otherwise, he
Section 6. Determination of factual would benefit from his own inaction or
issues. — Whenever necessary to resolve negligence.
factual issues, the court itself may conduct
Note: Appropriate remedy for fraudulent titling of
hearings thereon or delegate the reception of
lands is action for reversion, not annulment of
the evidence on such issue to any of its
judgment (Republic vs. CA, 258 SCRA 223).
members or to an appropriate court, agency
or office. (n)
Section 2. Grounds for annulment. —
The annulment may be based only on the
Section 7. Effect of failure to file
grounds of extrinsic fraud and lack of
comment. — When no comment is filed by
jurisdiction.
any of the respondents, the case may be
decided on the basis of the record, without
prejudice to any disciplinary action which the Extrinsic fraud shall not be a valid ground
court may take against the disobedient party. if it was availed of, or could have been
(n) availed of, in a motion for new trial or
petition for relief. (n)
NOTE: A person NOT A PARTY to the judgment

may sue for its annulment if he can prove that
RULE 47 the same was obtained through extrinsic fraud
or collusion and that he would be adversely
Annulment of Judgments of Final Orders affected thereby (Islamic Da Wah Council of the
and Resolutions Phil. Vs. CA, 178 SCRA 178).
Section 1. Coverage. — This Rule shall EXTRINSIC OR COLLATERAL FRAUD

govern the annulment by the Court of This refers to any fraudulent act of the prevailing
Appeals of judgments or final orders and party in litigation which is committed outside of
the trial of the case, whereby the defeated party
resolutions in civil actions of Regional Trial
has been prevented from exhibiting fully and
Courts for which the ordinary remedies of
fairly from presenting his side of the case.
new trial, appeal, petition for relief or other
appropriate remedies are no longer available Judgment; Annulment of Judgment; Grounds (1998)
through no fault of the petitioner. (n) What are the grounds for the annulment of a
judgment of the RTC (RTC)? [2%]
Notes: Annulment of judgment is a remedy in law SUGGESTED ANSWER:
independent of the case where the judgment sought The grounds for annulment of judgment of the RTC
to be annulled was rendered and may be availed of are Extrinsic Fraud and Lack of Jurisdiction. (Sec, 2,
though the judgment has been executed. It is an Rule 47, 1997 Rules of Civil Procedure.)
EXTRA-ORDINARY remedy and may be considered
as a LAST RESORT.

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Section 3. Period for filing action. — If 5. Optional—prayer for the issuance of writ
based on extrinsic fraud, the action must be of preliminary injunction if the judgment
filed within four (4) years from its is not yet executed.
discovery; and if based on lack of
jurisdiction, before it is barred by laches Section 5. Action by the court. —
or estoppel. (n) Should the court find no substantial merit
in the petition, the same may be
Note: This is an express recognition of the dismissed outright with specific reasons
Rule enunciated in the landmark case of Tijam for such dismissal.
vs. Sibonghanoy (1968).
Should prima facie merit be found in the
Section 4. Filing and contents of petition. petition, the same shall be given due
— The action shall be commenced by filing a course and summons shall be served on
verified petition alleging therein with the respondent. (n)
particularity the facts and the law relied upon
for annulment, as well as those supporting TWO STAGES:
the petitioner's good and substantial cause of 1. A preliminary evaluation of the petition
action or defense, as the case may be. to determine prima facie merit therein;
and
The petition shall be filed in seven (7) clearly 2. The issuance of summons as in ordinary
legible copies, together with sufficient copies civil cases and such appropriate
corresponding to the number of respondents. proceedings thereafter as contemplated
in sec. 6.
A certified true copy of the judgment or final
order or resolution shall be attached to the
The Rule allows the CA to dismiss the petition
original copy of the petition intended for the outright as in special civil actions.
court and indicated as such by the petitioner.
Note: There is difference as regards Annulment
The petitioner shall also submit together with of Judgment in RTC for decisions of inferior
the petition affidavits of witnesses or courts. See section 10 of this Rule.
documents supporting the cause of action or
defense and a sworn certification that he has REMEDY if petition for annulment is
not theretofore commenced any other action dismissed by the CA:
involving the same issues in the Supreme Petition for Review on certiorari with the SC,
Court, the Court of Appeals or different under Rule 45, NOT Rule 65 (Linzag, et al. vs.
divisions thereof, or any other tribunal or CA, L-122181, June26, 1988).
agency if there is such other action or
proceeding, he must state the status of the Section 6. Procedure. — The procedure
same, and if he should thereafter learn that a in ordinary civil cases shall be observed.
similar action or proceeding has been filed or Should trial be necessary, the reception of
is pending before the Supreme Court, the the evidence may be referred to a
Court of Appeals, or different divisions member of the court or a judge of a
thereof, or any other tribunal or agency, he Regional Trial Court. (n)
undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof Section 7. Effect of judgment. — A
within five (5) days therefrom. (n) judgment of annulment shall set aside the
questioned judgment or final order or
The action is commenced by filing: resolution and render the same null and
1. Verified petition alleging: void, without prejudice to the original
a. Particularly the facts and the law action being re-filed in the proper court.
relied upon; However, where the judgment or final
b. Petitioner’s good and substantial order or resolution is set aside on the
cause of action or defense. ground of extrinsic fraud, the court may
2. Filed in 7 legible copies; on motion order the trial court to try the
3. Certified true copy of the judgment or final case as if a timely motion for new trial
order or resolution; and had been granted therein. (n)
4. CAFS.

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Section 8. Suspension prescriptive period. (b) To define, simplify and clarify the
— The prescriptive period for the re-filing of issues for determination;
the aforesaid original action shall be deemed
suspended from the filing of such original (c) To formulate stipulations of facts
action until the finality of the judgment of and admissions of documentary exhibits,
annulment. However, the prescriptive period limit the number of witnesses to be
shall not be suspended where the extrinsic- presented in cases falling within the
fraud is attributable to the plaintiff in the original jurisdiction of the court, or those
original action. (n) within its appellate jurisdiction where a
motion for new trial is granted on the
Section 9. Relief available. — The judgment ground of newly discovered evidence; and
of annulment may include the award of
damages, attorney's fees and other (d) To take up such other matters which
relief. may aid the court in the prompt
disposition of the case. (Rule 7, CA
If the questioned judgment or final order or Internal Rules) (n)
resolution had already been executed the
court may issue such orders of restitution Section 2. Record of the conference. —
or other relief as justice and equity may The proceedings at such conference shall
warrant under the circumstances. (n) be recorded and, upon the conclusion
thereof, a resolution shall be issued
Note: Annulment of judgment is still available embodying all the actions taken therein,
even if the judgment is fully executed; the court the stipulations and admissions made and
may issue orders of restitution. the issues defined. (n)
Section 10. Annulment of judgments or Section 3. Binding effect of the results

final orders of Municipal Trial Courts. — of the conference. — Subject to such
An action to annul a judgment or final order modifications which may be made to
of a Municipal Trial Court shall be filed in the prevent manifest injustice, the resolution
Regional Trial Court having jurisdiction over in the preceding section shall control the
the former. It shall be treated as an ordinary subsequent proceedings in the case
civil action and sections 2, 3, 4, 7, 8 and 9 of unless, within five (5) days from notice
this Rule shall be applicable thereto. (n) thereof, any party shall satisfactorily show
valid cause why the same should not be
Note: The basis of sec. 10 is sec. 19 (6), BP 129, by followed. (n)
implication.
 NOTE: In the CA, this procedural device
RTC cannot dismiss the case outright for
may be availed of not only in original actions
section 5, allowing CA to dismiss the petition
but also in cases on appeal wherein a new
outright, is not included in under this section.
trial was granted on the ground of newly
discovered evidence.
 The CA can act as a trier of facts. Hence,

RULE 48 the preliminary conference authorized is a
convenient adjunct to such power and
Preliminary Conference function.
Section 1. Preliminary conference. — At

any time during the pendency of a case, the
court may call the parties and their counsel
to a preliminary conference. RULE 49
(a) To consider the possibility of an Oral Argument

amicable settlement, except when the case
is not allowed by law to be compromised Section 1. When allowed. — At its own
instance or upon motion of a party, the

________________________________________________________________________________________________
court may hear the parties in oral argument (d) Unauthorized alterations, omissions or
on the merits of a case, or on any material additions in the approved record on
incident in connection therewith. (n) appeal as provided in section 4 of Rule 44;
The oral argument shall be limited to such (e) Failure of the appellant to serve and
matters as the court may specify in its order file the required number of copies of his
or resolution. (1a, R48) brief or memorandum within the time
provided by these Rules;
Section 2. Conduct of oral argument. —
Unless authorized by the court, only one (f) Absence of specific assignment of
counsel may argue for a party. The duration errors in the appellant's brief, or of page
allowed for each party, the sequence of the references to the record as required in
argumentation, and all other related matters section 13, paragraphs (a), (c), (d) and
shall be as directed by the court. (n) (f) of Rule 44;
Section 3. No hearing or oral argument (g) Failure of the appellant to take the
for motions. — Motions shall not be set for necessary steps for the correction or
hearing and, unless the court otherwise completion of the record within the time
directs, no hearing or oral argument shall be limited by the court in its order;
allowed in support thereof. The adverse party
may file objections to the motion within five (h) Failure of the appellant to appear at
(5) days from service, upon the expiration of the preliminary conference under Rule 48
which such motion shall be deemed or to comply with orders, circulars, or
submitted for resolution. (29, R49) directives of the court without justifiable
cause; and
Note: Motions in the SC and CA do not contain
notice of hearing as no oral arguments will be (i) The fact that the order or judgment
heard in support thereof, and if the appellate appealed from is not appealable. (1a)
court desires to hold a hearing thereon, it will
itself set the date with notice to the parties.
NOTE: With the exception of section 1 (b),
dismissal of an appeal is DIRECTORY and
not mandatory.
RULE 50 GR: The issues to be resolved by the appellate

court are only those are assigned as errors
Dismissal of Appeal and are included in the pre-trial order of the trial
court.
Section 1. Grounds for dismissal of
EXCEPTIONS:
appeal. — An appeal may be dismissed by 1. If the matter not assigned as error is
the Court of Appeals, on its own motion or on closely related to those assigned as
that of the appellee, on the following errors;
grounds: 2. If they were assigned in the lower court
(Catholic Bishop of Balanga vs. CA, 264
(a) Failure of the record on appeal to show on SCRA 181).
its face that the appeal was taken within the
period fixed by these Rules; The CA can decide a case on appeal on
grounds other than those raised in the
(b) Failure to file the notice of appeal or the assignment of errors:
record on appeal within the period prescribed
1. Ground not raised as error but affects the
by these Rules;
jurisdiction over the subject matter (sec. 7,
Rule 51);
(c) Failure of the appellant to pay the docket 2. Matters not assigned as errors on appeal
and other lawful fees as provided in section but are evidently plain or clerical errors
5, Rule 40 and section 4 of Rule 41; (Bar within the contemplation of law;
Matter No. 803, 17 February 1998)

________________________________________________________________________________________________
3. Matters not assigned as errors but consideration reconsideration filed a year later may be
of which is necessary in arriving at a just entertained and granted.
determination and complete resolution of the
case (Korean Airlines vs. CA, 234 SCRA 717);  The CA can dismiss the case outright even
4. Matters not specifically assigned as errors on without a motion. The remedy if dismissed
appeal but raised in the trial court and are for improper appeal is to re-file it in the
matters of record having some bearing on the proper forum but also within the prescribed
issue submitted which the parties failed to raise period.
or which the lower court ignored (Baquiran vs.
CA, 2 SCRA 873); Section 3. Withdrawal of appeal. — An
5. When the determination of the assigned error is appeal may be withdrawn as of right at
dependent upon a matter not raised as an error. any time before the filing of the
appellee's brief. Thereafter, the
withdrawal may be allowed in the
OTHER GROUNDS FOR DISMISSAL OF
APPEAL: discretion of the court. (4a)
1. By agreement of the parties, as where the case
was amicably settled by them;
2. Where the appealed case has become moot
and academic; RULE 51
3. Where the appeal is frivolous or dilatory.
Judgment
Section 2. Dismissal of improper appeal
to the Court of Appeals. — An appeal NOTE: Judgment referred into here is the
under Rule 41 taken from the Regional Trial judgment of the Court of Appeals.
Court to the Court of Appeals raising only
questions of law shall be dismissed, issues
purely of law not being reviewable by said
court. Similarly, an appeal by notice of appeal
instead of by petition for review from the Section 1. When case deemed
appellate judgment of a Regional Trial Court submitted for judgment. — A case shall
shall be dismissed. (n) be deemed submitted for judgment:
An appeal erroneously taken to the Court of A. In ordinary appeals. —

Appeals shall not be transferred to the
appropriate court but shall be dismissed 1) Where no hearing on the merits of
outright. (3a) the main case is held, upon the filing of
the last pleading, brief, or memorandum
NOTE: If the issue is PURELY QUESTION OF required by the Rules or by the court
LAW, the proper mode is Petition for Review on itself, or the expiration of the period for
Certiorari under Rule 45. its filing.
 No transfer of appeals erroneously taken to it or

2) Where such a hearing is held, upon
to the Court of Appeals, whichever of these
its termination or upon the filing of the
tribunals has appropriate appellate jurisdiction,
will be allowed. Also, elevating such appeal by last pleading or memorandum as may
the wrong mode of appeal shall be a ground for be required or permitted to be filed by
dismissal. the court, or the expiration of the period
for its filing.
 Designation of a wrong court does not
necessarily affect the validity of the notice of B. In original actions and petitions for
appeal. However, the designation of the review. —
correct/proper court must be made within 15-
day period to appeal. 1) Where no comment is filed, upon the
expiration of the period to comment.
 A resolution of the Court of Appeals dismissing
the appeal and remanding the case to the trial
court for further proceeding is merely 2) Where no hearing is held, upon the
interlocutory. Hence, a motion for its filing of the last pleading required or

________________________________________________________________________________________________
permitted to be filed by the court, or the Section 4. Disposition of a case. — The
expiration of the period for its filing. Court of Appeals, in the exercise of its
appellate jurisdiction, may affirm,
3) Where a hearing on the merits of the reverse, or modify the judgment or
main case is held, upon its termination or final order appealed from, and may
upon the filing of the last pleading or direct a new trial or further
memorandum as may be required or proceedings to be had. (3a)
permitted to be filed by the court, or the
expiration of the period for its filing. (n) Section 5. Form of decision. — Every
decision or final resolution of the court in
LAW OF THE CASE appealed cases shall clearly and
It is the opinion on a former appeal. It means that distinctly state the findings of fact
whatever is once irrevocably established, as the and the conclusions of law on which it
controlling legal rule or decision between the same is based, which may be contained in the
parties in the same case, continuous to be the law decision or final resolution itself, or
of the case, whether correct on general principles or adopted from those set forth in the
not, so long as the facts on which such decision was decision, order, or resolution appealed
predicated continue to be the facts before the court. from. (Sec. 40, BP Blg. 129) (n)
NOTE: This rule DOES NOT APPLY to resolutions
 The requirement for the statement of facts
rendered in connection with the case wherein no
and law refers to a decision or for that
rationale has been expounded on the merits of that
matter a final resolution. The same are not
action.
required in minute resolutions since these
usually dispose of the case not on the merits
Section 2. By whom rendered. — The but on procedural or technical grounds.
judgment shall be rendered by the members
of the court who participated in the  With respect to petitions for review and
deliberation on the merits of the case before motions for reconsideration, the Constitution
its assignment to a member for the writing of merely requires a statement of the legal
the decision. (n) basis for the denial thereof or refusal to give
due course thereto. The court may opt, but it
Section 3. Quorum and voting in the is not required to issue an extended
court. — The participation of all three resolution thereon.
Justices of a division shall be necessary at the
 Decisions and resolutions of a court in
deliberation and the unanimous vote of the
appealed cases shall clearly and distinctly
three Justices shall be required for the
state the findings of fact and the conclusions
pronouncement of a judgment or final of law on which they are based, which may
resolution. If the three justices do not reach a be contained in the decision or final
unanimous vote, the clerk shall enter the resolution itself, or adopted from those set
votes of the dissenting Justices in the record. forth in the decision, order, or resolution
Thereafter, the Chairman of the division shall appealed from (sec. 40, BP 129)
refer the case, together with the minutes of
the deliberation, to the Presiding Justice who MEMORANDUM DECISION
shall designate two Justices chosen by raffle It is one rendered by an appellate court which
from among all the other members of the incorporates by reference the findings of facts
court to sit temporarily with them, forming a and conclusions of law contained in the decision
special division of five Justices. The of the lower court.
participation of all the five members of the
special division shall be necessary for the Bar Exam Question 2012
deliberation required in section 2 of this Rule 19. RTC decides an appeal from the MTC
and the concurrence of a majority of such involving a simple collection case. The
division shall be required for the decision consists of only one page because
it adopted by direct reference the findings of
pronouncement of a judgment or final
fact and conclusions of law set forth in the
resolution. (2a)
MTC decision. Which statement is most
accurate?

________________________________________________________________________________________________
a. The RTC decision is valid because it was validity of the judgment appealed from or
issued by a court of competent jurisdiction. the proceedings therein will be considered
b. The RTC decision is valid because it unless stated in the assignment of errors,
expedited the resolution of the appeal. or closely related to or dependent on an
c. The RTC decision is valid because it is a assigned error and properly argued in the
memorandum decision recognized by law. brief, save as the court may pass upon
d. The RTC decision is valid because it is plain errors and clerical errors. (7a)
practical and convenient to the judge and the
parties. GR: Unless assigned or closely related to or
SUGGESTED ANSWER: dependent on an assigned error, no error shall
(c), A Memorandum decision can be be considered.
welcomed as an acceptable method of Exceptions:
dealing expeditiously with the case load of 1. Error of jurisdiction over the subject
the courts of justice. The phrase matter;
Memorandum Decision appears to have 2. Validity of the judgment appealed from
been introduced in this jurisdiction not by or the proceedings therein.
that law but by Section 24 of the Interim
Rules and Guidelines of BP Blg. 129, reading
Section 9. Promulgation and notice of
as follows: Section 24. Memorandum
judgment. — After the judgment or final
decisions – The judgment or final resolution
resolution and dissenting or separate
of a court in appealed cases may adopt by
opinions, if any, are signed by the Justices
reference the findings of fact and
conclusions of law contained in the decision taking part, they shall be delivered for
or final order appealed from. (Francisco vs. filing to the clerk who shall indicate
Perm Skul, G.R. No. 81006, May 12, 1989.) thereon the date of promulgation and
cause true copies thereof to be served
upon the parties or their counsel. (n)
Section 6. Harmless error. — No error in
either the admission or the exclusion of NOTE: In justifiable situations or by
agreement in the division, the filing of
evidence and no error or defect in any ruling
dissenting or separate opinions may be
or order or in anything done or omitted by
reserved or the majority opinion may be
the trial court or by any of the parties is promulgated without prejudice to the
ground for granting a new trial or for setting subsequent issuance of a more extended
aside, modifying, or otherwise disturbing a opinion, provided the requisite votes for
judgment or order, unless refusal to take promulgation of judgment have been obtained
such action appears to the court inconsistent and recorded.
with substantial justice. The court at every
stage of the proceeding must disregard Section 10. Entry of judgments and
any error or defect which does not affect final resolutions. — If no appeal or
the substantial rights of the parties. (5a) motion for new trial or reconsideration is
filed within the time provided in these
Section 7. Judgment where there are Rules, the judgment or final resolution
several parties. — In all actions or shall forthwith be entered by the clerk in
proceedings, an appealed judgment may be the book of entries of judgments. The
affirmed as to some of the appellants, and date when the judgment or final
reversed as to others, and the case shall resolution becomes executory shall
thereafter be proceeded with, so far as be deemed as the date of its entry.
necessary, as if separate actions had been The record shall contain the dispositive
begun and prosecuted, and execution of the part of the judgment or final resolution
judgment of affirmance may be had and shall be signed by the clerk, with a
accordingly, and costs may be adjudged in certificate that such judgment or final
such cases, as the court shall deem proper. resolution has become final and
(6) executory. (2a, R36)
Section 8. Questions that may be decided. Section 11. Execution of judgment. —

— No error which does not affect the Except where the judgment or final order
jurisdiction over the subject matter or the or resolution, or a portion thereof, is
________________________________________________________________________________________________
ordered to be immediately executory, the b. the Office of the President;
motion for its execution may only be filed in c. the Supreme Court;
the proper court after its entry. d. None of the above.
SUGGESTED ANSWER:
In original actions in the Court of Appeals, its (c), Under Rule 52, a second Motion for
writ of execution shall be accompanied by a Reconsideration is a prohibited pleading.
However, the Supreme Court en banc
certified true copy of the entry of judgment
may entertain the same in the higher
or final resolution and addressed to any
interest of justice upon a vote of at least
appropriate officer for its enforcement.
two-thirds of its actual membership.
There is reconsideration “in the highest
In appealed cases, where the motion for interest of justice” when the assailed
execution pending appeal is filed in the Court decision is not only legally erroneous but
of Appeals at a time that it is in possession of is likewise patently unjust and
the original record or the record on appeal, potentially capable of causing
the resolution granting such motion shall be unwarranted and irremediable injury or
transmitted to the lower court from which the damage to the parties. A second motion
case originated, together with a certified true for reconsideration can only be
copy of the judgment or final order to be entertained before the ruling sought to
executed, with a directive for such court of be reconsidered becomes final by
origin to issue the proper writ for its operation of law or by the Court‟s
enforcement. (n) declaration. (Sec.3, Rule 15, Internal
Rules of the Supreme Court). In the
NOTE: The writ of execution, as provided in the Division, a vote of three Members shall
1st paragraph shall be filed only in the trial court. If be required to elevate to a second
the trial court delays (refuses) in issuing the writ, motion for reconsideration to the Court
the interested party may file a motion asking the En Banc. (Aliviado vs. Proctor and
appellate court to issue an order directing the Gamble Phils., Inc., et al, G.R. No.
trial court to issue the corresponding writ of 160506, June 6, 2011, Del Castillo, J.).
execution, or a petition for mandamus under
Rule 65 whenever proper.
Section 3. Resolution of motion. — In

the Court of Appeals, a motion for
RULE 52 reconsideration shall be resolved
within ninety (90) days from the date
Motion for Reconsideration when the court declares it submitted for
resolution. (n)
NOTE: MR under this Rule refers to MRs in the CA.
Section 4. Stay of execution. — The
Section 1. Period for filing. — A party may pendency of a motion for reconsideration
file a motion for reconsideration of a filed on time and by the proper party shall
judgment or final resolution within fifteen stay the execution of the judgment or
(15) days from notice thereof, with proof of final resolution sought to be reconsidered
service on the adverse party. (n) unless the court, for good reasons, shall
otherwise direct. (n)
Section 2. Second motion for
reconsideration. — No second motion for
reconsideration of a judgment or final
resolution by the same party shall be RULE 53
entertained. (n)
New Trial
63. Under Rule 52, a Second Motion for Trial; Court of Appeals as Trial Court
Reconsideration is a prohibited pleading. (2008) No.XXI.B. Give at least three
However,· where may such Motion be allowed?
a. the Sandiganbayan;

________________________________________________________________________________________________
instances where the Court of Appeals may act from the date when the court declares it
as a trial court? submitted for resolution. (n)
SUGGESTED ANSWER: The Court of Appeals Section 4. Procedure in new trial. —

may act as a trial court in the following Unless the court otherwise directs, the
instances: procedure in the new trial shall be the
(1) In annulment of judgments (Sec. 5 & 6,
same as that granted by a Regional Trial
Rule 47)
Court. (3a)
(2) When a motion for new trial is granted
by the Court of Appeals (Sec. 4, Rule 53)
(3) A petition for Habeas Corpus shall be set
for hearing 9Sec. 12, Rule 102)
(4) To resolve factual issues in cases within RULE 54
its original and appellate jurisdiction (Sec.
12, Rule 124) Internal Business
(5) In cases of new trial based on newly
discovered evidence (Sec. 14, Rule 124 of Section 1. Distribution of cases among
the Rules on Criminal Procedure). divisions. — All the cases of the Court of
(6) In Cases involving claims for damages Appeals shall be allotted among the
arising from provisional remedies different divisions thereof for hearing and
(7) In Amparo proceedings (A.M. No. 07-9-
decision. The Court of Appeals, sitting en
12-SC)
banc, shall make proper orders or rules to
govern the allotment of cases among the
NOTE: This pertains to NEW TRIAL in the CA. different divisions, the constitution of such
divisions, the regular rotation of Justices
Section 1. Period for filing; ground. — At among them, the filing of vacancies
any time after the appeal from the lower occurring therein, and other matters
court has been perfected and before the relating to the business of the court; and
Court of Appeals loses jurisdiction over the such rules shall continue in force until
case, a party may file a motion for a new trial repealed or altered by the Supreme Court.
on the ground of newly discovered (1a)
evidence which could not have been
discovered prior to the trial in the court below The Court of Appeals, sitting en banc, shall:
by the exercise of due diligence and which is
of such a character as would probably change 1. shall make proper orders or rules to govern
the result. The motion shall be accompanied the allotment of cases among the different
by affidavits showing the facts constituting divisions;
the grounds therefor and the newly 2. the constitution of such divisions;
discovered evidence. (1a) 3. the regular rotation of Justices among them;
4. the filing of vacancies occurring therein; and
NOTE: A second motion for new trial in the CA 5. other matters relating to the business of the
would not be possible, unlike in Rule 37, sec. 5. court
Section 2. Hearing and order. — The Court Section 2. Quorum of the court. — A
of Appeals shall consider the new evidence majority of the actual members of the
together with that adduced at the trial below, court shall constitute a quorum for its
and may grant or refuse a new trial, or may sessions en banc. Three members shall
make such order, with notice to both parties, constitute a quorum for the sessions of a
as to the taking of further testimony, either division. The affirmative votes of the
orally in court, or by depositions, or render majority of the members present shall be
such other judgment as ought to be rendered necessary to pass a resolution of the court
upon such terms as it may deem just. (2a) en banc. The affirmative votes of three
members of a division shall be necessary
Section 3. Resolution of motion. — In the for the pronouncement of a judgment or
Court of Appeals, a motion for new trial final resolution, which shall be reached in
shall be resolved within ninety (90) days consultation before the writing of the
opinion by any member of the division.

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(Sec. 11, first par. of BP Blg. 129, as
amended by Sec. 6 of EO 33). (3a)
A. Original Cases
Section 1. Original cases cognizable. —

RULE 55 Only petitions for certiorari, prohibition,
mandamus, quo warranto, habeas corpus,
Publications of Judgments and Final disciplinary proceedings against members
Resolutions of the judiciary and attorneys, and cases
affecting ambassadors, other public
Section 1. Publication. — The judgments ministers and consuls may be filed
and final resolutions of the court shall be originally in the Supreme Court. (n)
published in the Official Gazette and in the
Reports officially authorized by the court in Note: The underlined portion is also concurrent
the language in which they have been with the RTC (sec. 21, BP 129).
originally written, together with the syllabi
therefor prepared by the reporter in Section 2. Rules applicable. — The
consultation with the writers thereof. procedure in original cases for certiorari,
Memoranda of all other judgments and final prohibition, mandamus, quo warranto and
resolutions not so published shall be made by habeas corpus shall be in accordance with
the reporter and published in the Official the applicable provisions of the
Gazette and the authorized reports. (1a) Constitution, laws, and Rules 46, 48, 49,
51, 52 and this Rule, subject to the
Section 2. Preparation of opinions for following provisions:
publication. — The reporter shall prepare
and publish with each reported judgment and a) All references in said Rules to the Court
final resolution a concise synopsis of the facts of Appeals shall be understood to also
necessary for a clear understanding of the apply to the Supreme Court;
case, the names of counsel, the material and
controverted points involved, the authorities b) The portions of said Rules dealing
cited therein, and a syllabus which shall be strictly with and specifically intended for
confined to points of law. (Sec. 22a, R.A. No. appealed cases in the Court of Appeals
296) (n) shall not be applicable; and
Section 3. General make-up of volumes. c) Eighteen (18) clearly legible copies of

— The published decisions and final the petition shall be filed, together with
resolutions of the Supreme Court shall be proof of service on all adverse parties.
called "Philippine Reports," while those of
the Court of Appeals shall be known as the The proceedings for disciplinary action
"Court of Appeals Reports." Each volume against members of the judiciary shall be
thereof shall contain a table of the cases governed by the laws and Rules
reported and the cases cited in the opinions, prescribed therefor, and those against
with a complete alphabetical index of the attorneys by Rules 139-B, as amended.
subject matters of the volume. It shall consist (n)
of not less than seven hundred pages printed
upon good paper, well bound and numbered B. Appealed Cases
consecutively in the order of the volumes
published. (Sec. 23a, R.A. No. 296) (n)
Section 3. Mode of appeal. — An appeal
to the Supreme Court may be taken only
by a petition for review on certiorari,
except in criminal cases where the penalty
Procedure In The Supreme Court
imposed is death, reclusion perpetua or
life imprisonment. (n)
RULE 56

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NOTE: The proper mode of appeal mentioned Section 6. Disposition of improper
here is Rule 45. appeal. — Except as provided in section
3, Rule 122 regarding appeals in criminal
IN CRIMINAL CASES, however, where the cases where the penalty imposed is death,
penalty is death, reclusion perpetua or life reclusion perpetua or life imprisonment,
imprisonment, appeal is either by automatic an appeal taken to the Supreme Court by
review in case of death or by ordinary appeal by notice of appeal shall be dismissed.
notice of appeal in the latter two.
Note, however that the automatic review was An appeal by certiorari taken to the
later on held to be cognizable with the CA, BUT Supreme Court from the Regional Trial
with the passage of RA 9346, prohibiting the Court submitting issues of fact may be
imposition of DEATH PENALTY, the automatic referred to the Court of Appeals for
review was now rendered inoperative (People decision or appropriate action. The
vs. Mateo) determination of the Supreme Court on
whether or not issues of fact are involved
shall be final. (n)
Section 4. Procedure. — The appeal shall be
governed by and disposed of in accordance IMPROPER APPEAL
with the applicable provisions of the It means the choice or mode of appeal is correct
Constitution, laws, Rules 45, 48, sections 1, but the appellant raises issues which the court
2, and 5 to 11 of Rule 51, 52 and this Rule. could not resolve (example: where mode of
(n) appeal Rule 45, but appeal raises factual issues)
In this instance, the appeal may be referred

NOTE: Rule 53 on new Trial is not included. The SC
to CA, although the SC can dismiss the
is not a tier of facts.
case.
Section 5. Grounds for dismissal of ERRONEOUS APPEAL

appeal. — The appeal may be dismissed It means error in the choice or mode of appeal
motu proprio or on motion of the respondent (example: where appeal is taken to the SC by
on the following grounds: notice of appeal instead of petition for review on
certiorari)
(a) Failure to take the appeal within the
reglementary period; In this instance, the appeal shall be
dismissed outright.
(b) Lack of merit in the petition;
Section 7. Procedure if opinion is
equally divided. — Where the court en
(c) Failure to pay the requisite docket fee
banc is equally divided in opinion, or the
and other lawful fees or to make a deposit for
necessary majority cannot be had, the
costs;
case shall again be deliberated on, and if
after such deliberation no decision is
(d) Failure to comply with the requirements reached, the original action commenced in
regarding proof of service and contents of the court shall be dismissed, in appealed
and the documents which should cases, the judgment or order appealed
accompany the petition; from shall stand affirmed; and on all
incidental matters, the petition or motion
(e) Failure to comply with any circular, shall be denied.
directive or order of the Supreme Court
without justifiable cause; Bar Exam Question 2012
93. If the Supreme Court en bane is equally
(f) Error in the choice or mode of appeal; divided in opinion covering an original
and action, the case shall be:
a. re-raffled to a division.
(g) The fact that the case is not appealable b. original action shall be dismissed.
to the Supreme Court. (n) c. The judgment appealed from shall be
official.

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d. again deliberated upon. remedy that effects a levy on property of a party as
SUGGESTED ANSWER: (b) Where the Court security for the satisfaction of any judgment that
en banc is equally divided in opinion, or the may be
necessary majority cannot be had, the case recovered, while GARNISHMENT is a levy on
shall again be deliberated on, and if after debts due the judgment obligor or defendant and
such deliberation no decision is reached, other credits, including bank deposits, royalties and
the original action commenced in the court other personal property not capable of manual
shall be dismissed; in appealed cases, the delivery under a writ of execution or a writ of
judgment or order appealed from shall stand attachment.
affirmed; and on all incidental matters, the
petition or motion shall be denied. (Rule 56,
Sec. 7, Rules of Court). NOTE: This provisional remedies are also
available in criminal cases (Rule 127)
 Inferior courts are also granted authority to

grant all appropriate provisional remedy as
long as the main case falls within it’s
jurisdiction (sec. 33[1], BP 129)
 Dismissal of the main case carries with it the

dismissal of the provisional remedies.
 As a rule, provisional remedies are

interlocutory, hence, NOT appealable. The
remedy is Rule 65.
OTHER (equivalent) PROVISIONAL

Provisional Remedies ORDERS/REMEDIES UNDER OTHER
LAWS/RULES
1. Interim reliefs under the Rule on the Writ of
Also known as ancillary or auxiliary
Amparo
remedies.
2. Writ of Habeas Data
3. TEPO, EPO and Attachment under the
They are writs and processes available during the Rules of Procedure on Environmental Cases
pendency of the action which may be resorted to by 4. Provisional Orders under Rules on Custody
a litigant to preserve and protect certain rights and of Minors
interests therein pending rendition, and for purposes 5. Provisional Orders under the Rules on the
ultimate effects, of a final judgment in the case. Declaration of Nullity, Annulment of
Marriage, and Legal Separation.
Provisional Remedies (1999)
What are the provisional remedies under the rules? (2%)
SUGGESTED ANSWER:
Attachment; Preliminary Attachment
The provisional remedies under the rules are preliminary
(2012) No.VIII.A. (a) A sues B for collection
attachment, preliminary injunction, receivership,
of a sum of money. Alleging fraud in the
replevin, and support pendente lite. (Rules 57 to 61, Rules of
Court). contracting of the loan, A applies for
preliminary attachment with the court. The
THE FOLLOWING ARE THE PROVISIONAL Court issues the preliminary attachment
REMEDIES PROVIDED BY THE RULES: after A files a bond. While summons on B
1. Preliminary Attachment; was yet unserved, the sheriff attached B's
2. Preliminary Injunction; properties. Afterwards, summons was duly
3. Receivership; served on B. 8 moves to lift the attachment.
4. Repliven; Rule on this. (5%) SUGGESTED ANSWER: I
5. Support pendent lite. will grant the motion since no levy on
attachment pursuant to the writ shall be
Provisional Remedies; Attachment vs. Garnishment (1999) enforced unless it is preceded or
Distinguish attachment from garnishment. (2%) contemporaneously accompanied by
SUGGESTED ANSWER: service of summons. There must be prior
Attachment and garnishment are distinguished from or contemporaneous service of summons
each other as follows: ATTACHMENT is a provisional

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with the writ of attachment. (Rule 57,
Sec.5, Rules of Court). LEVY ON EXECUTION- is a manner of
satisfying or executing judgment where
Injunction; Preliminary Injunction (2009) the sheriff may sell property of the
No.I.C. A suit for injunction is an action in judgment obligor if he is unable to pay
rem. SUGGESTED ANSWER: FALSE. A suit all or part of the obligation in cash,
for injunction is an action in personam. In certified bank check or any other
the early case of Auyong Hian vs. Court of manner acceptable to the oblige. If the
Tax Appeals [59 SCRA 110 [1974]), it was obligor does not chose which among his
held that a restraining order like an property may be sold, the sheriff shall
injunction, operates upon a person. It is sell personal property first and then real
granted in the exercise of equity of property second. He must sell only so
jurisdiction and has no in rem effect to much of the personal and real property
invalidate an act done in contempt of an as is sufficient to satisfy judgment and
order of the court except where by statutory other lawful fees. (Rule 39, Sec.9 [b]).
authorization, the decree is so framed as to
act in rem on property. (Air Materiel Wing WARRANT OF SEIZURE- is normally
Savings and Loan Association, Inc. vs. applied for, with a search warrant, in
manay, 535 SCRA 356 [2007]). criminal cases. The warrant of seizure
must particularly describe the things to
Attachment; Kinds of Attachment (2012) be seized. While it is true that the
No.IX.B. Briefly discuss/differentiate the property to be seized under a warrant
following kinds of Attachment: preliminary must be particularly described therein
attachment, garnishment, levy on execution, and no other property can be taken
warrant of seizure and warrant of distraint and thereunder, yet the description is
levy. (5%) SUGGESTED ANSWER: required to be specific only insofar as
PRELIMINARY ATTACHMENT- is a the circumstances will ordinarily allow.
provisional remedy under Rule 57 of the An application for search and seizure
Rules of Court. It may be sought at the warrant shall be filed with the following:
commencement of an action or at any time (a) Any court within whose territorial
before entry judgment where property of an jurisdiction a crime was committed. (b)
adverse party may be attached as security For compelling reasons stated in the
for the satisfaction of any judgment, where application, any court within the judicial
this adverse party is about to depart from region where the crime was committed if
the Philippines, where he has intent to the place of the commission of the crime
defraud or has committed fraud, or is not is known, or any court within the
found in the Philippines. An affidavit and a judicial region where the warrant shall
bond is required before the preliminary be enforced. However, if the criminal
attachment issues. It is discharged upon action has already been filed, the
the payment of a counterbond. application shall only be made in the
court where the criminal action is
GARNISHMENT- is a manner of satisfying or pending.
executing judgment where the sheriff may
levy debts, credits, royalties, commissions, WARRANT OF DISTRAINT AND LEVY- is
bank deposits, and other personal property remedy available to local governments
not capable of manual delivery that are in and the BIR in tax cases to satisfy
the control or possession of third persons deficiencies or delinquencies in
and are due the judgment obligor. Notice inheritance and estate taxes, and real
shall be served on third parties. The third estate taxes. Distraint is the seizure of
party garnishee must make a written report personal property to be sold in an
on whether or not the judgment obligor has authorized auction sale. Levy is the
sufficient funds or credits to satisfy the issuance of a certification by the proper
amount of the judgment. If not, the report officer showing the name of the taxpayer
shall state how much fund or credits the and the tax, fee, charge, or penalty due
garnishee holds for the judgment obligor. him. Levy is made by writing upon said
Such garnish amounts shall be delivered to certificate the description of the
the judgment oblige-creditor (Rule 39, Sec.9 property upon which levy is made.
[c]).

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RULE 57 (40) Arthur, a resident foreigner sold his car
to Bren. After being paid but before
Preliminary Attachment delivering the car, Arthur replaced its
original sound system with an inferior one.
Bren discovered the change, rejected the
Section 1. Grounds upon which
car, and demanded the return of his
attachment may issue. — At the
money. Arthur did not comply. Meantime,
commencement of the action or at any time his company reassigned Arthur to
before entry of judgment, a plaintiff or any Singapore. Bren filed a civil action against
proper party may have the property of the Arthur for contractual fraud and damages.
adverse party attached as security for the Upon his application, the court issued a
satisfaction of any judgment that may be writ of preliminary attachment on the
recovered in the following cases: grounds that (a) Arthur is a foreigner; (b) he
departed from the Philippines; and (c) he
(a) In an action for the recovery of a was guilty of fraud in contracting with
specified amount of money or damages, Bren. Is the writ of preliminary attachment
other than moral and exemplary, on a cause proper? (A) No, Arthur is a foreigner living
of action arising from law, contract, quasi- abroad; he is outside the court’s
contract, delict or quasi-delict against a party jurisdiction. (B) Yes, Arthur committed
who is about to depart from the Philippines fraud in changing the sound system and
with intent to defraud his creditors; its components before delivering the car
bought from him. (C) Yes the timing of his
departure is presumptive evidence of intent
(b) In an action for money or property
to defraud. (D) No, since it was not shown
embezzled or fraudulently misapplied or
that Arthur left the country with intent to
converted to his own use by a public officer,
defraud Bren.
or an officer of a corporation, or an attorney,
factor, broker, agent, or clerk, in the course
of his employment as such, or by any other NOTE: The grounds are exclusive.
person in a fiduciary capacity, or for a willful PURPOSES:
violation of duty; 1. To seize the property of the debtor in
advance of final judgment and to hold it
(c) In an action to recover the possession for purposes of satisfying the said
of property unjustly or fraudulently judgment;
taken, detained or converted, when the 2. To enable the court to acquire
property, or any part thereof, has been jurisdiction over the action by the
concealed, removed, or disposed of to actual or constructive seizure of the
prevent its being found or taken by the property in those instances where
applicant or an authorized person; personal service of summons on the
part of the creditor cannot be effected.
(d) In an action against a party who has Proceeding in attachment is in rem where the
been guilty of a fraud in contracting the defendant does not appear, and in personam
debt or incurring the obligation upon which where he appears in the action (Regalado,
the action is brought, or in the performance Remedial Law Compendium)
thereof;
3 STAGES in the grant of preliminary
(e) In an action against a party who has attachment:
removed or disposed of his property, or 1. The court issues order granting the
is about to do so, with intent to defraud application;
his creditors; or 2. The writ of attachment issues pursuant
to the order granting the writ;
3. The writ is implemented.
(f) In an action against a party who does not
reside and is not found in the Note: For the initial two stages, it is not
Philippines, or on whom summons may be necessary that jurisdiction over the person of the
served by publication. (1a) defendant be first obtained.

________________________________________________________________________________________________
However, once implementation of the writ applicant, or of some other person who
commences, the court must have acquired personally knows the facts, that a
jurisdiction over the defendant for without such sufficient cause of action exists, that the
jurisdiction, the court has no power or authority to case is one of those mentioned in section
act an any manner against the defendant (Mangila 1 hereof, that there is no other sufficient
vs. CA,387 SCRA 162). security for the claim sought to be
enforced by the action, and that the
Preliminary attachment connected to
amount due to the applicant, or the value
Katarungang Pambarangay Law (KPL):
of the property the possession of which he
Application for preliminary attachment filed after
motion to dismiss for non-compliance of is entitled to recover, is as much as the
precondition of prior referral to Lupon, an sum for which the order is granted above
afterthought and an attempt to circumvent the law. all legal counterclaims. The affidavit, and
Case may still be dismissed for non-compliance of a the bond required by the next succeeding
condition precedent. Recall that under the KPL, a section, must be duly filed with the court
party may directly go to court if the action is coupled before the order issues. (3a)
with a provisional remedy.
NOTE: The requisites for the issuance of the
Section 2. Issuance and contents of WPA are the affidavit and the bond of the
order. — An order of attachment may be applicant.
issued either ex parte or upon motion with
notice and hearing by the court in which the REASON: No notice to the adverse party or
action is pending, or by the Court of Appeals hearing of the application is required, as the time
which the hearing will entail could be enough to
or the Supreme Court, and must require the
enable the defendant to abscond or dispose of
sheriff of the court to attach so much of the his property before writ issues.
property in the Philippines of the party
against whom it is issued, not exempt from CONTENTS OF THE AFFIDAVIT:
execution, as may be sufficient to satisfy the 1. A sufficient cause of action exists;
applicant's demand, unless such party makes 2. Case is one of those mentioned in sec. 1;
deposit or gives a bond as hereinafter 3. No other sufficient security for the claim
provided in an amount equal to that fixed in sought to be enforced;
the order, which may be the amount 4. Amount due to the applicant or possession
sufficient to satisfy the applicant's demand or of which is entitled to recover is as such as
the value of the property to be attached as the sum for which the order is granted above
stated by the applicant, exclusive of costs. all legal counterclaims.
Several writs may be issued at the same time
to the sheriffs of the courts of different Section 4. Condition of applicant's
judicial regions. (2a) bond. — The party applying for the order
must thereafter give a bond executed to
NOTE: There may be separate attachments of the the adverse party in the amount fixed by
same property. the court in its order granting the issuance
of the writ, conditioned that the latter will
Provisional Remedies; Attachment (2001) pay all the costs which may be adjudged
May a writ of preliminary attachment be issued exparte? to the adverse party and all damages
Briefly state the reason(s) for your answer. (3%) which he may sustain by reason of the
SUGGESTED ANSWER:
attachment, if the court shall finally
Yes, an order of attachment may be issued ex-parte or
adjudge that the applicant was not
upon motion with notice and hearing. (Sec. 2 of Rule 57) The
entitled thereto. (4a)
reason why the order may be issued ex parte is: that
requiring notice to the adverse party and a hearing would
defeat the purpose of the provisional remedy and enable Section 5. Manner of attaching
the adverse party to abscond or dispose of his property property. — The sheriff enforcing the writ
before a writ of attachment issues. (Mindanao Savings and shall without delay and with all reasonable
Loan Association, Inc. v. Court of Appeals, 172 SCRA 480). diligence attach, to await judgment and
execution in the action, only so much of
Section 3. Affidavit and bond required. — the property in the Philippines of the party
An order of attachment shall be granted only against whom the writ is issued, not
when it appears by the affidavit of the exempt from execution, as may be

________________________________________________________________________________________________
sufficient to satisfy the applicant's demand, his person. It makes the writ, unenforceable. (Sec. 5,
unless the former makes a deposit with the Rule. 57) However, all that is
court from which the writ is issued, or gives a needed to be done is to re-serve the writ. (Onate v.
counter-bond executed to the applicant, in Abrogar, GM. No. 197393, February 23, 1985)
an amount equal to the bond fixed by the (2) The writ was improperly implemented. Serving a
court in the order of attachment or to the notice of garnishment, particularly before summons
value of the property to be attached, is served, is not proper. It should be a copy of the
exclusive of costs. No levy on attachment writ of attachment that should be served on the
defendant, and a notice that the bank deposits are
pursuant to the writ issued under section 2
attached pursuant to the writ. (Sec. 7[d], Rule 57)
hereof shall be enforced unless it is preceded,
(3) The writ was improvidently issued if indeed it can
or contemporaneously accompanied, by
be shown that the obligation was already fully paid.
service of summons, together with a copy of
The writ is only ancillary to the main action. (Sec. 13,
the complaint, the application for attachment Rule 57) The alleged payment of the account cannot,
the applicant's affidavit and bond, and the serve as a ground for resolving the improvident
order and writ of attachment, on the issuance of the writ, because this matter delves into
defendant within the Philippines. the merits of the case, and requires full-blown trial.
Payment, however, serves as a ground for a motion
to dismiss.
The requirement of prior or
contemporaneous service of summons shall
not apply where the summons could not be NO LEVY unless preceded or
served personally or by substituted service contemporaneously accompanied by:
despite diligent efforts, or the defendant is a 1. Service of summons;
resident of the Philippines temporarily absent 2. A copy of the complaint;
therefrom, or the defendant is a non-resident 3. Application for attachment;
of the Philippines, or the action is one in rem 4. Affidavit and bond of applicant;
or quasi in rem. (5a) 5. Order and writ of attachment.
Provisional Remedies; Attachment (2005) BUT prior or contemporaneous service of

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

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(a) Real property, or growing crops thereon, commissions and other personal property
or any interest therein, standing upon the not capable of manual delivery, by leaving
record of the registry of deeds of the province with the person owing such debts, or
in the name of the party against whom having in his possession or under his
attachment is issued, or not appearing at all control, such credits or other personal
upon such records, or belonging to the party property, or with his agent, a copy of the
against whom attachment is issued and held writ, and notice that the debts owing by
by any other person, or standing on the him to the party against whom
records of the registry of deeds in the name attachment is issued, and the credits and
of any other person, by filing with the other personal property in his possession,
registry of deeds a copy of the order, or under his control, belonging to said
together with a description of the property party, are attached in pursuance of such
attached, and a notice that it is attached, or writ;
that such real property and any interest
therein held by or standing in the name of (e) The interest of the party against whom
such other person are attached, and by attachment is issued in property belonging
leaving a copy of such order, description, and to the estate of the decedent, whether as
notice with the occupant of the property, if heir, legatee, or devisee, by serving the
any, or with such other person or his agent if executor or administrator or other
found within the province. Where the personal representative of the decedent
property has been brought under the with a copy of the writ and notice that
operation of either the Land Registration Act said interest is attached. A copy of said
or the Property Registration Decree, the writ of attachment and of said notice shall
notice shall contain a reference to the also be filed in the office of the clerk of
number of the certificate of title, the volume the court in which said estate is being
and page in the registration book where the settled and served upon the heir, legatee
certificate is registered, and the registered or devisee concerned.
owner or owners thereof.
If the property sought to be attached is in
The registrar of deeds must index custodia legis, a copy of the writ of
attachments filed under this section in the attachment shall be filed with the proper
names of the applicant, the adverse party, or court or quasi-judicial agency, and notice
the person by whom the property is held or in of the attachment served upon the
whose name it stands in the records. If the custodian of such property. (7a)
attachment is not claimed on the entire area
of the land covered by the certificate of title, Provisional Remedies; Attachment (1999)
a description sufficiently accurate for the In a case, the property of an incompetent under
identification of the land or interest to be guardianship was in custodia legis. Can it be
affected shall be included in the registration attached? Explain. (2%)
of such attachment; SUGGESTED ANSWER:
Although the property of an incompetent under
(b) Personal property capable of manual guardianship is in custodia legis, it may be attached
delivery, by taking and safely keeping it in his as in fact it is provided that in such case, a copy of
custody, after issuing the corresponding the writ of attachment shall be filed with the proper
receipt therefor.
court and notice of the attachment served upon the
custodian of such property. (Sec. 7, last par., Rule 57)
(c) Stocks or shares, or an interest in stocks Note: Property legally attached is property In
or shares, of any corporation or company, by custodia legis, and cannot be interfered with
leaving with the president or managing agent without the permission of the proper court, but
thereof, a copy of the writ, and a notice this is confined to cases where the property
stating that the stock or interest of the party belongs to the defendant or one in which the
against whom the attachment is issued is defendant has proprietary interest.
attached in pursuance of such writ;
The property attached must be owned
(d) Debts and credits, including bank by the defendant.
deposits, financial interest, royalties,

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Section 8. Effect of attachment of debts, judgment the property of the judgment
credits and all other similar personal obligor or the money due him in the
property. — All persons having in their hands of another person or corporation
possession or under their control any credits under Sec. 40, Rule 39.
or other similar personal property belonging (b) If the bank denies holding the deposit in
to the party against whom attachment is the name of the judgment obligor but your
issued, or owing any debts to him, at the client’s informant is certain that the deposit
time of service upon them of the copy of the belongs to the judgment obligor under an
writ of attachment and notice as provided in assumed name, what is your remedy to
the last preceding section, shall be liable to reach the deposit? SUGGESTED ANSWER:
the applicant for the amount of such credits, I will move for the examination under
oath of the bank as a debtor of the
debts or other similar personal property, until
judgment debtor (Sec. 37, Rule 39). I will
the attachment is discharged, or any
ask the court to issue an Order requiring
judgment recovered by him is satisfied,
the judgment obligor, or the person who
unless such property is delivered or
has property of such judgment obligor,
transferred, or such debts are paid, to the to appear before the court and be
clerk, sheriff, or other proper officer of the examined in accordance with Secs. 36
court issuing the attachment. (8a) and 37 of the Rules of Court for the
complete satisfaction of the judgment
Note: service of summons upon the garnishee is award (Co vs. Sillador, A.M. No. P-07-
not necessary in order to acquire jurisdiction. All 2342, 31 August 2007). ALTERNATIVE
that is necessary is the service to him of the writ of ANSWER: The judgment oblige may
garnishment. invoke the exception under Sec. 2 of the
Secrecy of Bank Deposits Act. Bank
Section 9. Effect of attachment of Deposits may be examined upon order of
interests in property belonging to the a competent court in cases if the money
estate of a decedent. — The attachment of deposited is the subject matter of the
the interest of an heir, legatee, or devisee in litigation (R.A. 1405).
the property belonging to the estate of a
decedent shall not impair the powers of the
executor, administrator, or other personal
representative of the decedent over such Section 10. Examination of party
property for the purpose of administration. whose property is attached and
Such personal representative, however, shall persons indebted to him or controlling
report the attachment to the court when any his property; delivery of property to
petition for distribution is filed, and in the sheriff. — Any person owing debts to the
order made upon such petition, distribution party whose property is attached or
may be awarded to such heir, legatee or having in his possession or under his
devisee, but the property attached shall be control any credit or other personal
ordered delivered to the sheriff making the property belonging to such party, may be
levy, subject to the claim of such heir, required to attend before the court in
legatee, or devisee, or any person claiming which the action is pending, or before a
under him. (9a) commissioner appointed by the court, and
be examined on oath respecting the same.
Attachment; Garnishment (2008) No.VII. (a) The party whose property is attached may
The writ of execution was returned unsatisfied. also be required to attend for the purpose
The judgment obligee subsequently received of giving information respecting his
information that a bank holds a substantial property, and may be examined on oath.
deposit belonging to the judgment obligor. If The court may, after such examination,
you are the counsel of the judgment oblige, order personal property capable of manual
what steps would you take to reach the deposit delivery belonging to him, in the
to satisfy the judgment? SUGGESTED possession of the person so required to
ANSWER: attend before the court, to be delivered to
I will ask for a writ of garnishment against
the clerk of the court or sheriff on such
the deposit in the bank (Sec. 9[c], Rule 57).
terms as may be just, having reference to
ALTERNATIVE ANSWER: I shall move the
any lien thereon or claim against the
court to apply to the satisfaction of the

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same, to await the judgment in the action. deposit or giving the counter-bond, or to
(10a) the person appearing on his behalf, the
deposit or counter-bond aforesaid
Note: there is also an examination under Rule 39. standing in place of the property so
Rule 39 is proper only when the writ of execution released. Should such counter-bond for
is returned unsatisfied. any reason be found to be or become
insufficient, and the party furnishing the
Examination under this section is not subject to a same fail to file an additional counter-
preliminary condition but is ANTICIPATORY in bond, the attaching party may apply for a
nature and may be resorted to even if the writ of new order of attachment. (12a)
attachment was not returned because no property
could be found to be levied upon thereunder.
Section 13. Discharge of attachment
on other grounds. — The party whose
Section 11. When attached property may property has been ordered attached may
be sold after levy on attachment and file a motion with the court in which he
before entry of judgment. — Whenever it action is pending, before or after levy or
shall be made to appear to the court in which even after the release of the attached
the action is pending, upon hearing with property, for an order to set aside or
notice to both parties, that the property discharge the attachment on the ground
attached is perishable, or that the interests that the same was improperly or
of all the parties to the action will be irregularly issued or enforced, or that the
subserved by the sale thereof, the court bond is insufficient. If the attachment is
may order such property to be sold at public excessive, the discharge shall be limited
auction in such manner as it may direct, and to the excess. If the motion be made on
the proceeds of such sale to be deposited in affidavits on the part of the movant but
court to abide the judgment in the action. not otherwise, the attaching party may
(11a) oppose the motion by counter-affidavits or
other evidence in addition to that on
Section 12. Discharge of attachment upon which the attachment was made. After
giving counter-bond. — After a writ of due notice and hearing, the court shall
attachment has been enforced, the party order the setting aside or the
whose property has been attached, or the corresponding discharge of the
person appearing on his behalf, may move attachment if it appears that it was
for the discharge of the attachment wholly or improperly or irregularly issued or
in part on the security given. The court shall, enforced, or that the bond is insufficient,
after due notice and hearing, order the or that the attachment is excessive, and
discharge of the attachment if the movant the defect is not cured forthwith. (13a)
makes a cash deposit, or files a counter-
bond executed to the attaching party with
the clerk of the court where the application is
made, in an amount equal to that fixed by GROUNDS FOR DISCHARED OF PA: (are
the court in the order of attachment, Cumulative)
exclusive of costs. But if the attachment is 1. Debtor has posted a counter-bond or has
sought to be discharged with respect to a made the necessary cash deposit;
particular property, the counter-bond shall be 2. Attachment was improperly or irregularly
equal to the value of that property as issued (sec. 13) as where this is no ground
determined by the court. In either case, the for attachment, or affidavit and /or bond filed
cash deposit or the counter-bond shall secure therefore are defective (sec. 3);
the payment of any judgment that the 3. Attachment is excessive, but discharge is
attaching party may recover in the action. A limited to the excess;
notice of the deposit shall forthwith be served 4. Property attached is exempt from execution;
5. Judgment is entered against the attaching
on the attaching party. Upon the discharge of
creditor.
an attachment in accordance with the
provisions of this section, the property
attached, or the proceeds of any sale thereof, Section 14. Proceedings where
shall be delivered to the party making the property claimed by third person. — If
the property attached is claimed by any

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person other than the party against whom do to prevent the Sheriff from attaching his
attachment had been issued or his agent, and property? (5%)
such person makes an affidavit of his title SUGGESTED ANSER:
thereto, or right to the possession thereof, If the real property has been attached, the remedy is
stating the grounds of such right or title, and to file a third-party claim. The third-party claimant
should make an affidavit of his title to the property
serves such affidavit upon the sheriff while
attached, stating the grounds of his title thereto, and
the latter has possession of the attached
serve such affidavit upon the sheriff while the latter
property, and a copy thereof upon the
has possession of the attached property, and a copy
attaching party, the sheriff shall not be bound
thereof upon the attaching party. (Sec.14, Rule 57) The
to keep the property under attachment, third-party claimant may also intervene or file a
unless the attaching party or his agent, on separate action to vindicate his claim to the property
demand of the sheriff, shall file a bond involved and secure the necessary reliefs, such as
approved by the court to indemnify the third- preliminary injunction, which will not be considered
party claimant in a sum not less than the as interference with a court of coordinate
value of the property levied upon. In case of jurisdiction. (Ong v. Tating, 149 SCRA 265, [1987])
disagreement as to such value, the same
shall be decided by the court issuing the writ Parties; Third-Party Claim (2005)
of attachment. No claim for damages for the A obtained a money judgment against B. After the
taking or keeping of the property may be finality of the decision, the court issued a writ of
enforced against the bond unless the action execution for the enforcement thereof. Conformably
therefor is filed within one hundred twenty with the said writ, the sheriff levied upon certain
(120) days from the date of the filing of the properties under B's name. C filed a third-party claim
bond. over said properties claiming that B had already
transferred the same to him. A moved to deny the
The sheriff shall not be liable for damages for third-party claim and to hold B and C jointly and
the taking or keeping of such property to any severally liable to him for the money judgment
such third-party claimant, if such bond shall alleging that B had transferred said properties to C
be filed. Nothing herein contained shall to defraud him (A). After due hearing, the court
prevent such claimant or any third person
denied the third-party claim and rendered an
amended decision declaring B and C jointly and
from vindicating his claim to the property, or
severally liable to A for the money judgment. Is the
prevent the attaching party from claiming
ruling of the court correct? Explain.
damages against a third-party claimant who
(4%)
filed a frivolous or plainly spurious claim, in SUGGESTED ANSWER:
the same or a separate action. NO. C has not been properly impleaded as a party
defendant. He cannot be held liable for the judgment
When the writ of attachment is issued in against A without a trial. In fact, since no bond was
favor of the Republic of the Philippines, or filed by B, the sheriff is liable to C for damages. C
any officer duly representing it, the filing of can file a separate action to enforce his third-party
such bond shall not be required, and in case claim. It is in that suit that B can raise the ground of
the sheriff is sued for damages as a result of fraud against C. However, the execution may
the attachment, he shall be represented by proceed where there is a finding that the claim is
the Solicitor General, and if held liable fraudulent. (Tanongan v. Samson, G.R. No. 140889,
therefor, the actual damages adjudged by the May 9, 2002)
court shall be paid by the National Treasurer
out of the funds to be appropriated for the Section 15. Satisfaction of judgment
purpose. (14a) out of property attached, return of
sheriff. — If judgment be recovered by
NOTE: Proceeding is substantially identical to the attaching party and execution issue
sec. 16, Rule 39 thereon, the sheriff may cause the
judgment to be satisfied out of the
Parties; Third Party Claim (2000) property attached, if it be sufficient for
JK’s real property is being attached by the sheriff in a that purpose in the following manner:
civil action for damages against LM. JK claims that he is
not a party to the case; that his property is not involved (a) By paying to the judgment obligee the
in said case; and that he is the sole registered owner of proceeds of all sales of perishable or other
said property. Under the Rules of Court, what must JK property sold in pursuance of the order of

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the court, or so much as shall be necessary Section 18. Disposition of money
to satisfy the judgment; deposited. — Where the party against
whom attachment had been issued has
(b) If any balance remains due, by selling so deposited money instead of giving
much of the property, real or personal, as counter-bond, it shall be applied under the
may be necessary to satisfy the balance, if direction of the court to the satisfaction of
enough for that purpose remain in the any judgment rendered in favor of the
sheriff's hands, or in those the clerk of the attaching party, and after satisfying the
court; judgment the balance shall be refunded to
the depositor or his assignee. If the
(c) By collecting from all persons having in judgment is in favor of the party against
their possession credits belonging to the whom attachment was issued, the whole
judgment obligor, or owing debts to the latter sum deposited must be refunded to him or
at the time of the attachment of such credits his assignee. (18a)
or debts, the amount of such credits and
debts as determined by the court in the Section 19. Disposition of attached
action, and stated in the judgment, and property where judgment is for party
paying the proceeds of such collection over to against whom attachment was issued.
the judgment obligee. — If judgment be rendered against the
attaching party, all the proceeds of sales
The sheriff shall forthwith make a return in and money collected or received by the
writing to the court of his proceedings under sheriff, under the order of attachment,
this section and furnish the parties with and all property attached remaining in any
copies thereof. (15a) such officer's hands, shall be delivered to
the party against whom attachment was
issued, and the order of attachment
Section 16. Balance due collected upon an
discharged. (19a)
execution; excess delivered to judgment
obligor. — If after realizing upon all the
property attached, including the proceeds of Section 20. Claim for damages on
any debts or credits collected, and applying account of improper, irregular or
the proceeds to the satisfaction of the excessive attachment. — An application
judgment less the expenses of proceedings for damages on account of improper,
upon the judgment any balance shall remain irregular or excessive attachment must be
due, the sheriff must proceed to collect such filed before the trial or before appeal is
balance as upon ordinary execution. perfected or before the judgment becomes
Whenever the judgment shall have been executory, with due notice to the
paid, the sheriff, upon reasonable demand, attaching party and his surety or sureties
must return to the judgment obligor the setting forth the facts showing his right to
attached property remaining in his hands, damages and the amount thereof. Such
and any proceeds of the sale of the property damages may be awarded only after
attached not applied to the judgment. (16a) proper hearing and shall be included in
the judgment on the main case.
Section 17. Recovery upon the counter-
bond. — When the judgment has become If the judgment of the appellate court be
executory, the surety or sureties on any favorable to the party against whom the
counter-bond given pursuant to the attachment was issued he must claim
provisions of this Rule to secure the payment damages sustained during the pendency
of the judgment shall become charged on of the appeal by filing an application in the
such counter-bond and bound to pay the appellate court, with notice to the party in
judgment obligee upon demand the amount whose favor the attachment was issued or
due under the judgment, which amount may his surety or sureties, before the
be recovered from such surety or sureties judgment of the appellate court becomes
after notice and summary hearing in the executory. The appellate court may allow
same action. (17a) the application to be heard and decided by
the trial court.

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Nothing herein contained shall prevent the court dismissed the complaint and ordered the
party against whom the attachment was plaintiff and its surety to pay jointly to the defendant
issued from recovering in the same action the P1.5 million as actual damages, P0.5 million as moral
damages awarded to him from any property damages and P0.5 million as exemplary damages.
of the attaching party not exempt from Evaluate the soundness of the judgment from the
execution should the bond or deposit given point of view of procedure. (5%)
SUGGESTED ANSWER:
by the latter be insufficient or fail to fully
The judgment against the surety is not sound if due
satisfy the award. (20a)
notice was not given to him of the applicant for
damages. (Rule 57, sec. 20) Moreover, the judgment
Attachment; Bond (2008) No.VI. After his against the surety cannot exceed the amount of its
properties were attached, defendant Porfirio counterbond of P1 million.
filed a sufficient counterbond. The trial court
discharged the attachment. Nonetheless, Provisional Remedies; Attachment (1999)
Porfirio suffered substantial prejudice due to May damages be claimed by a party prejudiced by a
the unwarranted attachment. In the end, the wrongful attachment even if the judgment is adverse
trial court rendered a judgment in Porfirio’s to him? Explain. (2%)
favor by ordering the plaintiff to pay damages SUGGESTED ANSWER:
because the plaintiff was not entitled to the Yes, damages may be claimed by a party prejudiced
attachment. Porfirio moved to charge the by a wrongful attachment even if the judgment is
plaintiff’s attachment bond. The plaintiff and adverse to him. This is authorized by the Rules. A
his sureties opposed the motion, claiming that claim, for damages may be made on account of
the filing of the counterbond had relieved the improper, irregular or excessive attachment, which
plaintiff’s attachment bond from all liability for shall be heard with notice to the adverse party and
the damages. Rule on Porfirio’s motion. his surety or sureties. (Sec. 20, Rule 57; Javellana v. D.
SUGGESTED ANSWER: O. Plaza Enterprises Inc., 32 SCRA 281.)
Porfirio’s motion to charge the plaintiff’s

attachment bond is proper. The filing of the NOTE: Procedure for claiming damages
counterbond by the defendant does not outlined in sec. 20 is EXCLUSIVE. Hence,
mean that he has waived his right to such claims for damages cannot be a subject
proceed against the attachment bond for of an independent action.
damages. Under the law (Sec. 20, Rule 57),
an application for damages on account of Exceptions:
improper, irregular, or excessive 1. Where the principal case was dismissed
attachment is allowed. Such damages may for lack of jurisdiction by the trial court
be awarded only after proper hearing and without giving an opportunity to the party
shall be included in the judgment on the whose property was attached to apply
main case. Moreover, nothing shall prevent for and prove his claim;
the party against whom the attachment was 2. Where damages by reason of the
issued from recovering in the same action attachment was sustained by a third
the damages awarded to him from any person who was not a party to the action
property of the attaching party not exempt wherein such writ was issued.
from execution should the bond or deposit
given by the latter be insufficient or fail to
fully satisfy the award. (D.M. Wenceslao &
Associates, Inc. vs. Readycon Trading & RULE 58
Construction Corp., G.R. No. 154106, 29
June 2004). Preliminary Injunction
Judgment; Soundness; Attachment (2002) Section 1. Preliminary injunction defined;

The plaintiff obtained a writ of preliminary attachment classes. — A preliminary injunction is
upon a bond of P1 million. The writ was levied on the an order granted at any stage of an action
defendant’s property, but it was discharged upon the or proceeding prior to the judgment or
posting by the defendant of a counterbond in the same
final order, requiring a party or a court,
amount of P1 million. After trial, the court rendered
agency or a person to refrain from a
judgment finding that the plaintiff had no cause of
particular act or acts. It may also require
action against the defendant and that he had sued out
the performance of a particular act or
the writ of attachment maliciously. Accordingly, the
________________________________________________________________________________________________
acts, in which case it shall be known as a immediately executory under sec. 4 ,
preliminary mandatory injunction. (1a) Rule 39.
 NOTE: PD 1818 prohibits the issuance of GR: It will not issue against acts already
injunctive writs not only against government consummated.
entities but also against persons or entities Exception: If the acts complained of are
involved in the execution, implementation, and continuing in nature and were in derogation of
operation of government infrastructure projects. the plaintiff’s right at the outset.
 Injunction is also, generally not allowed on labor INJUNCTION PROHIBITION

disputes (art. 254, Labor Code) Directed against a court,
Directed against a tribunal or a person
 Section 10, Rule 2, RPEC. Prohibition party in the action exercising judicial or
against temporary restraining order (TRO) quasi-judicial or
and preliminary injunction. - Except the ministerial function
Supreme Court, no court can issue a TRO or Based on the ground that
writ of preliminary injunction against lawful Does not involve the court against whom
actions of government agencies that enforce jurisdiction of the the writ is issued had
environmental laws or prevent violations court acted without or in excess
thereof. of jurisdiction
It my be a main action
PRELIMINARY INJUNCTION or just a provisional Always the main action
Purpose: To preserve the status quo. remedy
Provisional Remedies; Injunction (2003) Provisional Remedies; Injunctions; Ancillary Remedy

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

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performance of an act or acts either for a applicant will pay to such party or person
limited period or perpetually; all damages which he may sustain by
reason of the injunction or temporary
(b) That the commission, continuance or non- restraining order if the court should finally
performance of the act or acts complained of decide that the applicant was not entitled
during the litigation would probably work thereto. Upon approval of the requisite
injustice to the applicant; or bond, a writ of preliminary injunction shall
be issued. (4a)
(c) That a party, court, agency or a person is
doing, threatening, or is attempting to do, or (c) When an application for a writ of
is procuring or suffering to be done some act preliminary injunction or a temporary
or acts probably in violation of the rights of restraining order is included in a complaint
the applicant respecting the subject of the or any initiatory pleading, the case, if filed
action or proceeding, and tending to render in a multiple-sala court, shall be raffled
the judgment ineffectual. (3a) only after notice to and in the presence of
the adverse party or the person to be
Bar Exam Question 2011 enjoined. In any event, such notice shall
(82) The RTC of Malolos, Branch 1, issued a be preceded, or contemporaneously
writ of execution against Rene for P20 million. accompanied, by service of summons,
The sheriff levied on a school building that together with a copy of the complaint or
appeared to be owned by Rene. Marie, initiatory pleading and the applicant's
however, filed a third party claim with the affidavit and bond, upon the adverse party
sheriff, despite which, the latter scheduled the in the Philippines.
execution sale. Marie then filed a separate
action before the RTC of Malolos, Branch 2, However, where the summons could not
which issued a writ of preliminary injunction be served personally or by substituted
enjoining the sheriff from taking possession service despite diligent efforts, or the
and proceeding with the sale of the levied adverse party is a resident of the
property. Did Branch 2 correctly act in issuing Philippines temporarily absent therefrom
the injunction? (A) Yes, since the rules allow or is a nonresident thereof, the
the filing of the independent suit to check requirement of prior or contemporaneous
the sheriff‟s wrongful act in levying on a
service of summons shall not apply.
third party‟s property. (B) Yes, since Branch
2, like Branch 1, is part of the RTC of Malolos.
(C) No, because the proper remedy is to seek (d) The application for a temporary
relief from the same court which rendered the restraining order shall thereafter be acted
judgment. (D) No, since it constitutes upon only after all parties are heard in a
interference with the judgment of a co-equal summary hearing which shall be
court with concurrent jurisdiction. conducted within twenty-four (24) hours
after the sheriff's return of service and/or
Section 4. Verified application and bond the records are received by the branch
for preliminary injunction or temporary selected by raffle and to which the records
restraining order. — A preliminary shall be transmitted immediately.
injunction or temporary restraining order may
be granted only when: Provisional Remedies; Injunctions; Issuance w/out
Bond (2006)
May a Regional Trial Court issue injunction without
(a) The application in the action or bond? (2%)
proceeding is verified, and shows facts SUGGESTED ANSWER:
entitling the applicant to the relief demanded; Yes, if the injunction that is issued is a final
and injunction. Generally, however, preliminary
injunction cannot issue
(b) Unless exempted by the court the without bond unless exempted by the trial court (Sec.
applicant files with the court where the action 4[b] of Rule 58).
or proceeding is pending, a bond executed to
the party or person enjoined, in an amount to
be fixed by the court, to the effect that the Provisional Remedies; Injunctions; Requisites (2006)

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What are the requisites for the issuance of (a) a writ of However, and subject to the provisions of
preliminary injunction; and (b) a final writ of the preceding sections, if the matter is of
injunction? Requisites for the issuance of a: extreme urgency and the applicant
SUGGESTED ANSWER: will suffer grave injustice and
a. Writ of Preliminary Injunction (Sec. 4, Rule 58 1997 Rules of irreparable injury, the executive judge
Civil Procedure) are —
of a multiple-sala court or the presiding
(1) A verified complaint showing;
judge of a single sala court may issue ex
(2) The existence of a right in esse;
parte a temporary restraining order
(3) Violation or threat of violation of such right;
effective for only seventy-two (72)
(4) Damages or injuries sustained or that will be
hours from issuance but he shall
sustained by reason of such violation;
(5) Notice to all parties of raffle and of hearing; immediately comply with the provisions of
(6) Hearing on the application; the next preceding section as to service of
(7) Filing of an appropriate bond and service thereof. summons and the documents to be served
SUGGESTED ANSWER: therewith. Thereafter, within the aforesaid
b. While a final writ of injunction may be rendered by seventy-two (72) hours, the judge before
judgment after trial, showing applicant to be entitled to whom the case is pending shall conduct a
the writ (Sec. 9, Rule 58 1997 Rules of Civil Procedure). summary hearing to determine whether
the temporary restraining order shall be
Provisional Remedies; TRO (2006) extended until the application for
Define a temporary restraining order (TRO). (2%) preliminary injunction can be heard. In no
SUGGESTED ANSWER: case shall the total period of effectivity of
A temporary restraining order is an order issued to the temporary restraining order exceed
restrain the opposite party and to maintain the status twenty (20) days, including the original
quo until a hearing for determining the propriety of seventy-two hours provided herein.
granting a preliminary injunction (Sec. 4[c] and [d], Rule
58,1997 Rules of Civil Procedure).
In the event that the application for
Note: verification is needed if the complaint is preliminary injunction is denied or not
prepared by a lawyer. However, when it was resolved within the said period, the
prepared and filed personally by the complainant, temporary restraining order is deemed,
verification was held not necessary. automatically vacated. The effectivity of a
temporary restraining order is not
Section 5. Preliminary injunction not extendible without need of any judicial
granted without notice; exception. — No declaration to that effect and no court
preliminary injunction shall be granted shall have authority to extend or renew
without hearing and prior notice to the party the same on the same ground for which it
or person sought to be enjoined. If it shall was issued.
appear from facts shown by affidavits or by
the verified application that great or However, if issued by the Court of
irreparable injury would result to the Appeals or a member thereof, the
applicant before the matter can be heard on temporary restraining order shall be
notice, the court to which the application for effective for sixty (60) days from service
preliminary injunction was made, may issue a on the party or person sought to be
temporary restraining order to be enjoined. A restraining, order issued by
effective only for a period of twenty (20) days the Supreme Court or a member thereof
from service on the party or person sought to shall be effective until further orders. (5a)
be enjoined, except as herein provided.
Within the said twenty-day period, the court Bar Exam Question 2012
must order said party or person to show 91. In Petition for Certiorari, the Court of
cause, at a specified time and place, why the Appeals issues a Writ of Preliminary
injunction should not be granted, determine Injunction against the RTC restraining the
within the same period whether or not the latter from trying a crucial case. The Court
preliminary injunction shall be granted, and of Appeals should therefore:
accordingly issue the corresponding order. a. decide the main case within 60 days.
(Bar Matter No. 803, 17 February 1998) b. decide the certiorari petition within 6
months.

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c. decide the main case or the petition within sought such relief nor did the allegations in his
60 days. pleadings sufficiently make out a case for a
d. decide the main case or the petition TRO.
within 6
months from issue of the preliminary TRO STATUS QUO
injunction. ORDER
SUGGESTED ANSWER: (d), The trial court, Summary hearing Issued motu proprio
the Court of Appeals, the Sandiganbayan or Prevents the doing of Does not direct the
the Court of Tax appeals that issued a writ an act doing or undoing of
of preliminary injunction against a lower particular act
court, board, officer, or quasi-judicial Requires the posting Does not require
agency shall decide the main case or of a bond posting of bond
petition within six (6) months from the
issuance of the writ. (Rule 58, Sec. 5, as
amended by A>M. No. 07-7-12-SC). Provisional Remedies; TRO vs. Status Quo Order
(2006)
Differentiate a TRO from a status quo order. (2%)
Provisional Remedies; TRO; CA Justice Dept. (2006) SUGGESTED ANSWER:
May a justice of a Division of the Court of Appeals issue A status quo order (SQO) is more in the nature of a
a TRO? (2%) cease and desist order, since it does not direct the
SUGGESTED ANSWER: doing or undoing of acts, as in the case of
Yes, a justice of a division of the Court of Appeals may prohibitory or mandatory injunctive relief. A TRO is
issue a TRO, as authorized under Rule 58 and by Section only good for 20 days if issued by the RTC; 60 days
5, Rule IV of the IRCA which additionally requires that if issued by the CA; until further notice if issued by
the action shall be submitted on the next working day to the SC. The SQO is without any prescriptive period
the absent members of the division for the ratification, and may be issued without a bond. A TRO dies a
modification or recall (Heirs of the late Justice Jose B.L. natural death after the allowable period; the SQO
Reyes v. Court of Appeals, G.R. Nos. 135425-26, November does not. A TRO is provisional. SQO lasts until
14, 2000). revoked. A TRO is not extendible, but the SQO may
be subject to agreement of the parties.
Provisional Remedies; TRO; Duration (2006)
What is the duration of a TRO issued by the Executive
Judge of a Regional Trial Court? (2%) NOTE: If the application is denied or not
SUGGESTED ANSWER: resolved within said period, the TRO is
In cases of extreme urgency, when the applicant will automatically vacated.
suffer grave injustice and irreparable injury, the duration
of a TRO issued ex parte by an Executive Petition for Relief; Injunction (2002)
Judge of a Regional Trial Court is 72 hours (2nd par. of A default judgment was rendered by the RTC
Sec.5, Rule 58 1997 Rules of Civil Procedure). In the exercise of his ordering D to pay P a sum of money. The judgment
regular functions over cases assigned to his sala, an became final, but D filed a petition for relief and
Executive Judge may issue a TRO for a duration not obtained a writ of preliminary injunction staying the
exceeding a total of 20 days. enforcement of the judgment. After hearing, the
RTC dismissed D’s petition, whereupon P
immediately moved for the execution of the
INJUCTION TRO judgment in his favor. Should P’s motion be
Does not exceed 20 granted? Why? (3%)
May exceed 20 days days in trial courts; 60 SUGGESTED ANSWER:
days in CA; indefinite P’s immediate motion for execution of the judgment
in the SC, until further in his favor should be granted because the dismissal
order. of D’s petition for relief also dissolves the writ of
Restrains or requires preliminary injunction staying the enforcement of
the performance of Maintains status quo the judgment, even if the dismissal is not yet final.
particular acts [Golez v. Leonidas, 107 SCRA 187 (1981)].
STATUS QUO ORDER The effectivity of the TRO is not extendible.

It is resorted to when the projected proceedings in There is no need for a judicial declaration to that
the case made the conservation of the status quo effect.
desirable or essential, but affected party neither

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INJURY is considered IRREPARABLE if it is of such restraining order, the issuance or
constant and frequent recurrence that no fair or continuance thereof, as the case may be,
reasonable redress can be had therefore in court of would cause irreparable damage to the
law or where there is no standard by which their party or person enjoined while the
amount can be measured with reasonable accuracy. applicant can be fully compensated for
such damages as he may suffer, and the
Provisional Remedies; Injunction (2001) former files a bond in an amount fixed by
May a writ of preliminary injunction be issued exparte?
the court conditioned that he will pay all
Why? (3%)
SUGGESTED ANSWER:
damages which the applicant may suffer
No, a writ of preliminary injunction may not be issued by the denial or the dissolution of the
ex parte. As provided in the Rules, no preliminary injunction or restraining order. If it
injunction shall be granted without hearing and prior appears that the extent of the preliminary
notice to the party or person sought to be enjoined. (Sec. injunction or restraining order granted is
5 of Rule 58) The reason is that a preliminary injunction too great, it may be modified. (6a)
may cause grave and irreparable injury to the party
enjoined. Section 7. Service of copies of bonds;
effect of disapproval of same. — The
Provisional Remedies; TRO (2001) party filing a bond in accordance with the
An application for a writ of preliminary injunction with a provisions of this Rule shall forthwith
prayer for a temporary restraining order is included in a serve a copy of such bond on the other
complaint and filed in a multi-sala RTC consisting of party, who may object to the sufficiency
Branches 1,2,3 and 4. Being urgent in nature, the of the bond, or of the surety or sureties
Executive Judge, who was sitting in Branch 1, upon the thereon. If the applicant's bond is found to
filing of the aforesaid application immediately raffled the be insufficient in amount, or if the surety
case in the presence of the judges of Branches 2,3 and 4. or sureties thereon fail to justify, and a
The case was raffled to Branch 4 and judge thereof bond sufficient in amount with sufficient
immediately issued a temporary restraining order. Is the sureties approved after justification is not
temporary restraining order valid? Why? (5%)
SUGGESTED ANSWER:
filed forthwith the injunction shall be
No. It is only the Executive Judge who can issue dissolved. If the bond of the adverse party
immediately a temporary restraining order effective only is found to be insufficient in amount, or
for seventy-two (72) hours from issuance. No other the surety or sureties thereon fail to
Judge has the right or power to issue a temporary justify a bond sufficient in amount with
restraining order ex parte. The Judge to whom the case sufficient sureties approved after
is assigned will then conduct a summary hearing to justification is not filed forthwith, the
determine whether the temporary restraining order shall injunction shall be granted or restored, as
be extended, but in no case beyond 20 days, including the case may be. (8a)
the original 72hour period. (Sec. 5 of Rule 58)
ALTERNATIVE ANSWER: Section 8. Judgment to include
The temporary restraining order is not valid because the damages against party and sureties.
question does not state that the matter is of extreme — At the trial, the amount of damages to
urgency and the applicant will suffer grave injustice and be awarded to either party, upon the bond
irreparable injury. (Sec. 5 of Rule 58)
of the adverse party, shall be claimed,
ascertained, and awarded under the same
procedure prescribed in section 20 of Rule
Section 6. Grounds for objection to, or for
57. (9a)
motion of dissolution of, injunction or
restraining order. — The application for
injunction or restraining order may be Section 9. When final injunction
denied, upon a showing of its insufficiency. granted. — If after the trial of the action
The injunction or restraining order may also it appears that the applicant is entitled to
be denied, or, if granted, may be dissolved, have the act or acts complained of
on other grounds upon affidavits of the party permanently enjoined the court shall grant
or person enjoined, which may be opposed by a final injunction perpetually
the applicant also by affidavits. It may further restraining the party or person enjoined
be denied, or if granted, may be dissolved, if from the commission or continuance of
it appears after hearing that although the the act or acts of confirming the
applicant is entitled to the injunction or preliminary mandatory injunction. (10a)

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RULE 59 property in satisfaction of the judgment,
or otherwise to carry the judgment into
Receivership effect;
RECEIVER (d) Whenever in other cases it appears

He is the person appointed by the court in behalf of that the appointment of a receiver is the
all the parties to an action for the purpose of most convenient and feasible means of
preserving the property involved in the suit and to preserving, administering, or disposing of
protect the rights of all the parties under direction of the property in litigation.
the court.
During the pendency of an appeal, the
Receiver is NOT an AGENT of the plaintiff or the
appellate court may allow an application
defendant. He is an officer of the court.
for the appointment of a receiver to be
filed in and decided by the court of origin
Receivership is a harsh remedy, granted only in and the receiver appointed to be subject
extreme situations (making vs. Marfori, GR No. to the control of said court. (1a)
152239, Aug. 17, 2011).
Judgment in receivership is immediately (7) Which of the following is NOT within the
executory (Rule 39, sec. 4). power of a judicial receiver to perform? (A)
Bring an action in his name. (B)
Section 1. Appointment of receiver. — Compromise a claim. (C) Divide the residual
Upon a verified application, one or more money in his hands among the persons
receivers of the property subject of the action legally entitled to the same. (D) Invest the
or proceeding may be appointed by the court funds in his hands without court
approval.
where the action is pending or by the Court
of Appeals or by the Supreme Court, or a
Provisional Remedies; Receivership (2001)
member thereof, in the following cases: Joaquin filed a complaint against Jose for the
foreclosure of a mortgage of a furniture factory with
(a) When it appears from the verified a large number of machinery and equipment. During
application, and such other proof as the court the pendency of the foreclosure suit, Joaquin learned
may require, that the party applying for the from reliable sources that Jose was quietly and
appointment of a receiver has an interest in gradually disposing of some of his machinery and
the property or fund which is the subject of equipment to a businessman friend who was also
the action or proceeding, and that such engaged in furniture manufacturing such that from
property or fund is in danger of being lost, confirmed reports Joaquin gathered, the machinery
removed, or materially injured unless a and equipment left with Jose were no longer
receiver be appointed to administer and sufficient to answer for the latter’s mortgage
preserve it; indebtedness. In the meantime judgment was
rendered by the court in favor of Joaquin but the
(b) When it appears in an action by the same is not yet final. Knowing what Jose has been
mortgagee for the foreclosure of a mortgage doing. If you were
that the property is in danger of being Joaquin’s lawyer, what action would you take to
wasted or dissipated or materially injured, preserve
and that its value is probably insufficient to whatever remaining machinery and equipment are
discharge the mortgage debt, or that the left
parties have so stipulated in the contract of with Jose? Why? (5%)
SUGGESTED ANSWER:
mortgage; To preserve whatever remaining machinery and
equipment are left with Jose, Joaquin’s lawyer should
(c) After judgment, to preserve the file a verified application for the appointment by the
property during the pendency of an court of one or more receivers. The Rules provide
appeal, or to dispose of it according to the that receivership is proper in an action by the
judgment, or to aid execution when the mortgagee for the foreclosure of a mortgage when it
execution has been returned unsatisfied or appears that the property is in danger of being
the judgment obligor refuses to apply his wasted or dissipated or materially injured and that its

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value is probably insufficient to discharge the mortgage may object to its sufficiency or of the
debt. (Sec. 1 of Rule 59). surety or sureties thereon. If either the
applicant’s or the receiver’s bond is found
to be insufficient in amount, or if the
Section 2. Bond on appointment of surety or sureties thereon fail to justify,
receiver. — Before issuing the order and a bond sufficient in amount with
appointing a receiver the court shall require sufficient sureties approved after
the applicant to file a bond executed to the justification is not filed forthwith, the
party against whom the application is application shall be denied or the receiver
presented, in an amount to be fixed by the discharged, as the case may be. If the
court, to the effect that the applicant will pay bond of the adverse party is found to be
such party all damages he may sustain by insufficient in amount or the surety or
reason of the appointment of such receiver in sureties thereon fail to justify, and a bond
case the applicant shall have procured such sufficient in amount with sufficient
appointment without sufficient cause; and the sureties approved after justification is not
court may, in its discretion, at any time after filed forthwith, the receiver shall be
the appointment, require an additional bond appointed or re-appointed, as the case
as further security for such damages. (3a) may be. (6a)
Section 3. Denial of application or Section 6. General powers of receiver.

discharge of receiver. — The application — Subject to the control of the court in
may be denied, or the receiver discharged, which the action or proceeding is pending
when the adverse party files a bond executed a receiver shall:
to the applicant, in an amount to be fixed by
the court, to the effect that such party will 1. have the power to bring and defend, in
pay the applicant all damages he may suffer such capacity, actions in his own
by reason of the acts, omissions, or other name;
matters specified in the application as ground 2. to take and keep possession of the
for such appointment. The receiver may also property in controversy;
be discharged if it is shown that his 3. to receive rents; to collect debts due
appointment was obtained without sufficient to himself as receiver or to the fund,
cause. (4a) property, estate, person, or
corporation of which he is the receiver;
RECEIVERSHIP may be denied or lifted if: 4. to compound for and compromise the
1. Appointment is without sufficient cause; same;
2. Adverse party files a sufficient bond; 5. to make transfers;
3. Bond of applicant is insufficient; 6. to pay outstanding debts;
4. Bond of receiver is insufficient. 7. to divide the money and other
property that shall remain among the
Section 4. Oath and bond of receiver. — persons legally entitled to receive the
Before entering upon his duties, the receiver same; and generally to do such acts
shall be sworn to perform them faithfully, and respecting the property as the court
shall file a bond, executed to such person and may authorize. However, funds in the
in such sum as the court may direct, to the hands of a receiver may be invested
effect that he will faithfully discharge his only by order of the court upon the
duties in the action or proceeding and obey written consent of all the parties to the
the orders of the court. (5a) action. (7a)
Note: actions of the receiver without authority No action may be filed by or against a
from the court are personal acts of the receiver. receiver without leave of the court which
appointed him. (n)
Section 5. Service of copies of bonds;
effect of disapproval of same. — The Section 7. Liability for refusal or
person filing a bond in accordance with the neglect to deliver property to
provisions of this Rule shall forthwith serve a receiver. — A person who refuses or
copy thereof on each interested party, who neglects, upon reasonable demand, to

________________________________________________________________________________________________
deliver to the receiver all the property,
money, books, deeds, notes, bills, documents
and papers within his power or control,
subject of or involved in the action or
proceeding, or in case of disagreement, as RULE 60
determined and ordered by the court, may be
punished for contempt and shall be liable
Replevin
to the receiver for the money or the value of
the property and other things so refused or
NOTE: Repliven may be a provisional remedy or
neglected to be surrendered, together with all
a main suit at the same time. If it is the main
damages that may have been sustained by
action, jurisdiction depends upon the amount of
the party or parties entitled thereto as a the personal property as alleged in the
consequence of such refusal or neglect. (n) complaint.
Bar Exam Question 2011 Upon dismissal of the case, without prejudice,
(11) Which of the following is in accord with for failure to prosecute, the writ of seizure which
the applicable rules on receivership? (A) The is merely auxiliary in nature becomes functus
court may appoint the plaintiff as receiver of oficio and should be lifted. Property must be
the property in litigation over the defendant’s returned (Advent Capital vs. Young, GR No.
objection. (B) A receiver may be appointed 183018, Aug 3, 2011).
after judgment if the judgment obligor
refuses to apply his property to satisfy the
judgment. (C) The trial court cannot appoint a Provisional Remedies; Replevin (1999)
receiver when the case is on appeal. (D) The What is Replevin? (2%)
filing of bond on appointment of a receiver is SUGGESTED ANSWER:
mainly optional. Replevin or delivery of personal property consists in
the delivery, by order of the court, of personal
Note: Property in custody of the law is not subject property by the defendant to the plaintiff, upon the
to receivership. filing of a bond. (Calo v. Roldan, 76 Phil. 445 [1946])
Section 8. Termination of receivership; Section 1. Application. — A party praying

compensation of receiver. — Whenever for the recovery of possession of
the court, motu proprio or on motion of either personal property may, at the
party, shall determine that the necessity for a commencement of the action or at any
receiver no longer exists, it shall, after due time before answer, apply for an order
notice to all interested parties and hearing, for the delivery of such property to him, in
settle the accounts of the receiver, direct the the manner hereinafter provided. (1a)
delivery of the funds and other property in
his possession to the person adjudged to be NOTE: RTC has no jurisdiction to issue writ of
entitled to receive them and order the repliven against DENR official who seized
discharge of the receiver from further duty as lumber/timber for violation of PD 705; Remedy
such. The court shall allow the receiver such is with the Secretary of DENR.
reasonable compensation as the
circumstances of the case warrant, to be Section 2. Affidavit and bond. — The
taxed as costs against the defeated party, or applicant must show by his own affidavit
apportioned, as justice requires. (8a) or that of some other person who
personally knows the facts:
Section 9. Judgment to include recovery
against sureties. — The amount, if any, to (a) That the applicant is the owner of the
be awarded to any party upon any bond filed property claimed, particularly describing
in accordance with the provisions of this Rule, it, or is entitled to the possession thereof;
shall be claimed, ascertained, and granted
under the same procedure prescribed in (b) That the property is wrongfully
section 20 of Rule 57. (9a) detained by the adverse party, alleging
the cause of detention thereof according

________________________________________________________________________________________________
to the best of his knowledge, information, NOTE: There can be no repliven and preliminary
and belief ; attachment in the same case because their
purposes are different. Rule 57 is for security,
(c) That the property has not been distrained while Rule 60 is for recovery of possession.
or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of Bar Exam Question 2011
execution or preliminary attachment, or (20) Which of the following has NO PLACE
otherwise placed under custodia legis, or if so in an application for a replevin order? A
seized, that it is exempt from such seizure or statement (A) that the property is
wrongfully detained by the adverse party.
custody; and
(B) that the property has not been
distrained for a tax assessment or placed
(d) The actual market value of the property. under custodia legis.
(C) of the assessed value of the property.
The applicant must also give a bond, (D) that the applicant owns or has a right to
executed to the adverse party in double the the possession of the property.
value of the property as stated in the
affidavit aforementioned, for the return of the
property to the adverse party if such return
be adjudged, and for the payment to the Bar Exam Question 2011
adverse party of such sum as he may recover (18) Which of the following conforms to the
from the applicant in the action. (2a) applicable rule on replevin? (A) The
applicant must file a bond executed to the
Bar Exam Question 2011 adverse party in an amount equal to the
(74) When is the defendant entitled to the value of the property as determined by the
return of the property taken under a writ of court. (B) The property has been
replevin? (A) When the plaintiff‟s bond is wrongfully detained by the adverse
found insufficient or defective and is not party. (C) The applicant has a contingent
replaced. (B) When the defendant posts a claim over the property object of the writ.
redelivery bond equal to the value of the (D) The plaintiff may apply for the writ at
property seized. (C) When the plaintiff takes any time before judgment.
the property and disposes of it without the
sheriff’s approval. (D) When a third party Section 3. Order. — Upon the filing of
claims the property taken yet the applicant such affidavit and approval of the bond,
does not file a bond in favor of the sheriff. the court shall issue an order and the
corresponding writ of replevin, describing
the personal property alleged to be
wrongfully detained and requiring the
REPLEVIN ATTACHMENT sheriff forthwith to take such property into
May be sought only Available even if his custody. (3a)
when the principal recovery of personal
action is recovery of property is only Section 4. Duty of the sheriff. — Upon
personal property incidental to the relief
receiving such order, the sheriff must
sought
serve a copy thereof on the adverse party,
Can be sought only May be resorted to
together with a copy of the application,
when defendant is in even if the property is in
actual possession of possession of a third affidavit and bond, and must forthwith
the property person take the property, if it be in the
Cannot be availed Can be availed of even possession of the adverse party, or his
when the property is in if property is in custodia agent, and retain it in his custody. If the
custodia legis legis property or any part thereof be concealed
Available before Available from in a building or enclosure, the sheriff must
defendant answer. commencement but demand its delivery, and if it be not
Thus, available only in before entry of delivered, he must cause the building or
the trial courts. judgment enclosure to be broken open and take the
Bond is double the Bond is fixed by the property into his possession. After the
value of the property court sheriff has take possession of the property
as herein provided, he must keep it in a

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secure place and shall be responsible for its the applicant or his agent, on demand of
delivery to the party entitled thereto upon said sheriff, shall file a bond approved by
receiving his fees and necessary expenses for the court to indemnify the third-party
taking and keeping the same. (4a) claimant in a sum not less than the value
of the property under replevin as provided
Section 5. Return of property. — If the in section 2 hereof. In case of
adverse party objects to the sufficiency of the disagreement as to such value, the court
applicant's bond, or of the surety or sureties shall determine the same. No claim for
thereon, he cannot immediately require the damages for the taking or keeping, of the
return of the property, but if he does not so property may be enforced against the
object, he may, at any time before the bond unless the action therefor is filed
delivery of the property to the applicant, within one hundred twenty (120) days
require the return thereof, by filing with the from the date of the filing of the bond.
court where the action is pending a bond
executed to the applicant, in double the value The sheriff shall not be liable for damages,
of the property as stated in the applicant's for the taking or keeping of such property,
affidavit for the delivery thereof to the to any such third-party claimant if such
applicant, if such delivery be adjudged, and bond shall be filed. Nothing herein
for the payment of such sum, to him as may contained shall prevent such claimant or
be recovered against the adverse party, and any third person from vindicating his claim
by serving a copy of such bond on the to the property, or prevent the applicant
applicant. (5a) from claiming damages against a third-
party claimant who filed a frivolous or
Section 6. Disposition of property by plainly spurious claim, in the same or a
sheriff. — If within five (5) days after the separate action.
taking of the property by the sheriff, the
adverse party does not object to the When the writ of replevin is issued in
sufficiency of the bond, or of the surety or favor of the Republic of the Philippines, or
sureties thereon; or if the adverse party so any officer duly representing it, the filing
objects and the court affirms its approval of of such bond shall not be required, and in
the applicant's bond or approves a new bond, case the sheriff is sued for damages as a
or if the adverse party requires the return of result of the replevin, he shall be
the property but his bond is objected to and represented by the Solicitor General, and
found insufficient and he does not forthwith if held liable therefor, the actual damages
file an approved bond, the property shall be adjudged by the court shall be paid by the
delivered to the applicant. If for any reason National Treasurer out of the funds to be
the property is not delivered to the applicant, appropriated for the purpose. (7a)
the sheriff must return it to the adverse
party. (6a) Note: In section 14 of Rule 57, the affidavit is
served upon the sheriff while he has
Note: The underlined portion refers to the Re- possession of the attached property. In section
delivery bond filed by the defendant. 7 of Rule 60, the affidavit is served within the 5
days the sheriff has possession, in connection
Section 7. Proceedings where property with section 6.
claimed by third person. — If the property
taken is claimed by any person other than Section 8. Return of papers. — The
the party against whom the writ of replevin sheriff must file the order, with his
had been issued or his agent, and such proceedings indorsed, thereon, with the
person makes an affidavit of his title thereto, court within ten (10) days after taking the
or right to the possession thereof, stating the property mentioned therein. (8a)
grounds therefor, and serves such affidavit
upon the sheriff while the latter has Section 9. Judgment. — After trial of the
possession of the property and a copy issues the court shall determine who has
thereof upon the applicant, the sheriff shall the right of possession to and the value of
not be bound to keep the property under the property and shall render judgment in
replevin or deliver it to the applicant unless the alternative for the delivery thereof to

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the party entitled to the same, or for its value in the same manner as is provided for
in case delivery cannot be made, and also for evidence on motions. (4a)
such damages as either party may prove,
with costs. (9a) Section 4. Order. — The court shall
determine provisionally the pertinent
Section 10. Judgment to include recovery facts, and shall render such orders as
against sureties. — The amount, if any, to justice and equity may require, having the
be awarded to any party upon any bond filed regard to the probable outcome of the
in accordance with the provisions of this Rule, case and such other circumstances as may
shall be claimed, ascertained, and granted aid in the proper resolution of the
under the same procedure as prescribed in question involved. If the application is
section 20 of Rule 57. (10a) granted, the court shall fix the amount of
money to be provisionally paid or such
other forms of support as should be
provided, taking into account the
RULE 61 necessities of the applicant and the
resources or means of the adverse party,
and the terms of payment or mode for
Support Pendente Lite
providing the support. If the application is
denied, the principal case shall be tried
Note: Support is immediately executory under Rule
and decided as early as possible. (5a)
39, sec.4.
Section 5. Enforcement of order. — If

The judgment for support, with respect to the
amount thereof, is subject to amendment from the adverse party fails to comply with an
time to time depending upon the needs of the order granting support pendente lite, the
recipient and the financial capacity of the person court shall, motu proprio or upon motion;
obliged to give support. issue an order of execution against him,
without prejudice to his liability for
Section 1. Application. — At the contempt. (6a)
commencement of the proper action or
proceeding, or at any time prior to the When the person ordered to give support
judgment or final order, a verified pendente lite refuses or fails to do so, any
application for support pendente lite may be third person who furnished that support to
filed by any party stating the grounds for the the applicant may, after due notice and
claim and the financial conditions of both hearing in the same case obtain a writ of
parties, and accompanied by affidavits, execution to enforce his right of
depositions or other authentic documents in reimbursement against the person
support thereof. (1a) ordered to provide such support. (h)
Section 2. Comment. — A copy of the Provisional Remedies; Support Pendente Lite (1999)
application and all supporting documents Before the RTC, A was charged with rape of his
shall be served upon the adverse party, who 16year old daughter. During the pendency of the
shall have five (5) days to comment thereon
case, the daughter gave birth to a child allegedly as a
consequence of the rape. Thereafter, she asked the
unless a different period is fixed by the court
accused to support the child, and when he refused,
upon his motion. The comment shall be
the
verified and shall be accompanied by
former filed a petition for support pendente lite. The
affidavits, depositions or other authentic
accused, however, insists that he cannot be made to
documents in support thereof. (2a, 3a) give such support arguing that there is as yet no
finding as to his guilt. Would you agree with the trial
Section 3. Hearing. — After the comment is court if it denied the application for support
filed, or after the expiration of the period for pendente lite? Explain. (2%)
its filing, the application shall be set for SUGGESTED ANSWER:
hearing not more than three (3) days No. The provisional remedy of support pendente lite
thereafter. The facts in issue shall be proved may be granted by the RTC in the criminal action for
rape. In criminal actions where the civil liability
includes support for the offspring as a consequence
________________________________________________________________________________________________
of the crime and the civil aspect thereof has not been order the recipient thereof to return to
waived, reserved or instituted prior to its filing, the the former the amounts already paid
accused may be ordered to provide support pendente lite with legal interest from the dates of actual
to the child born to the offended party allegedly because payment, without prejudice to the right of
of the crime. (Sec. 6 of Rule 61.) the recipient to obtain reimbursement
in a separate action from the person
legally obliged to give the support. Should
Section 6. Support in criminal cases. — In the recipient fail to reimburse said
criminal actions where the civil liability amounts, the person who provided the
includes support for the offspring as a same may likewise seek reimbursement
consequence of the crime and the civil aspect thereof in a separate action from the
thereof has not been waived, reserved and person legally obliged to give such
instituted prior to its filing, the accused may support. (n)
be ordered to provide support pendente lite
to the child born to the offended party NOTE: Pertinent provisions of the Family
allegedly because of the crime. The Code:
application therefor may be filed successively
by the offended party, her parents, Art. 194. Support comprises everything
grandparents or guardian and the State in indispensable for sustenance, dwelling,
the corresponding criminal case during its clothing, medical attendance, education and
pendency, in accordance with the procedure transportation, in keeping with the financial
established under this Rule. (n)
capacity of the family.
Provisional Remedies; Support Pendente Lite (2001)
Modesto was accused of seduction by Virginia, a poor, The education of the person entitled to be
unemployed young girl, who has a child by Modesto. supported referred to in the preceding
Virginia was in dire need of pecuniary assistance to keep paragraph shall include his schooling or
her child, not to say of herself, alive. The criminal case is training for some profession, trade or
still pending in court and although the civil liability vocation, even beyond the age of majority.
aspect of the crime has not been waived or reserved for Transportation shall include expenses in going
a separate civil action, the trial for the case was foreseen
to and from school, or to and from place of
to take two long years because of the heavily clogged
court calendar before the judgment may be rendered. If work. (290a)
you were the lawyer of Virginia, what action should you
take to help Virginia in the meantime especially with the Art. 195. Subject to the provisions of the
problem of feeding the child? (5%) succeeding articles, the following are obliged to
SUGGESTED ANSWER:
support each other to the whole extent set
To help Virginia in the meantime, her lawyer should
apply for Support Pendente Lite as provided in the Rules. In forth in the preceding article:
criminal actions where the civil liability included support
for the offspring as a consequence of the crime and the (1) The spouses;
civil aspect thereof has not been waived or reserved for a (2) Legitimate ascendants and
separate civil action, the accused may be ordered to descendants;
provide support pendent elite to the (3) Parents and their legitimate children
child born to the offended party. (Sec. 6 of Rule 61) and the legitimate and illegitimate
children of the latter;
Art. 345, RPC. Civil liability of persons guilty of (4) Parents and their illegitimate children
crimes against chastity. — Person guilty of rape, and the legitimate and illegitimate
seduction or abduction shall also be sentenced: children of the latter; and
(5) Legitimate brothers and sisters,
(3). In every case to support the offspring. whether of full or half-blood.
Section 7. Restitution. — When the Art. 201. The amount of support, in the cases
judgment or final order of the court finds that
referred to in Articles 195 and 196, shall be in
the person who has been providing support
pendente lite is not liable therefor, it shall

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proportion to the resources or means of the giver
and to the necessities of the recipient
Art. 202. Support in the cases referred to in the

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

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PROVISIONAL REMEDIES
PRELIMINARY PRELIMINARY RECEIVERSHIP REPLEVIN SUPPORT PENDENTE

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

acquire jurisdiction over
the action by actual or
constructive seizure of
the property in those
instances where
personal service of
summons on the
creditor cannot be had
WHEN
APPLIED/GRANTED At the commencement At any stage prior to the At any time prior to the At the commencement At the commencement of
of action or at any time judgment or final order satisfaction of judgment of action but before action or at any time prior
before entry of answer is filed to judgment or final order
judgment
HOW APPLIED FOR File affidavits and File verified application and File verified application File affidavits and File verified application.
applicant’s bond applicant’s bond; if and applicant’s bond. applicant’s bond No bond required
application is included in the Application may also be
initiatory pleading, the included in initiatory
adverse party should be pleading in actions for
served with summons foreclosure of mortgage
together with a copy of the
initiatory pleading and the
applicants bond

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Court where the action Only the court where the Court where the action is
is pending, the CA or action is pending; lower pending, CA or SC even if
WHO MAY GRANT SC even if the action is court, CA or SC provided the the action is pending in Only the court where Court of origin and
still pending with the action is pending within the the lower court. Appellate the action is pending appellate court (Ramos
lower court same court which issues the court may allow vs. CA)
injunction application for
receivership to be
decided by the court of
origin
1. Sufficient 1. Applicant is entitled 1. Property or fund 1. Applicant is 1. Affidavits;

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

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When 3rd party claimant When 3RD party

makes an affidavit of claimant makes an
WHEN PROPERTY IS his title to the property affidavit of his title to
CLAIMED BY A 3RD or his right to the the property or his right
PERSON possession thereof, and to possession thereof,
serves such affidavit to and serves such
the sheriff and a copy affidavit to the sheriff,
thereof to the attaching and a copy thereof to
party, the sheriff shall the party asking for
not be bound to keep repliven, the sheriff
the property unless the shall not be bound to
attaching party files a keep the property under
bond approved by the repliven, unless the
court to indemnify the applicant files a bond
3rd party claimant in approved by the court
sum not less than the to indemnify the 3rd
value of the property party claimant in sum
levied upon. Claim for not less than the value
damages for the taking of the property. Claims
or keeping the property for damages for the
must be filed within 120 keeping of the property
days from filing of bond must be filed within 120
days from filing of the
bond
BOND Bond executed to the adverse party in the amount fixed by the court to cover costs Bond executed to the Bond not required
REQUIREMENT which may be adjudged to the adverse and all damages that he may sustain by adverse party is double
reason of granting the provisional remedy prayed for, if the court shall finally adjudge the value of the
that applicant was not entitled thereto. property
DISCHARGE OF By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge of the Not applicable
REMEDY provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the court to the value of
the property if with respect to a particular property to secure the payment of any judgment that the adverse
party may recover in the action

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Cash deposit may be Filing of counter-bond made 2 bond requirement: Amount of counter-bond
made in lieu of the only upon showing that the should also be double
counter-bond issuance or continuance 1. Bond filed by the the value of the property
thereof would cause applicant;
irreparable damage to the 2. Bond filed by the
party or person enjoined receiver
while applicant can be fully
compensated for such
damages as he may suffer;
counter-bond alone will not
suffice to discharge an
injunction
Other grounds: Insufficiency of the Appointment without
improper or irregular application sufficient cause
issuance or
enforcement or
insufficiency of bond
Damages in case  Owner of the property attached must file before the trial or before perfection of appeal or When the judgment or final order
applicant for any of before judgment becomes executory an application for damages. finds the person who has been
the provisional  Party who availed of provisional remedy and his surety/ies must be notified, showing right providing for support is not liable
remedies is not to damages and amount thereof. therefor:
entitled thereto or for  Damages awarded only after hearing; included in the judgment of the main case
any irregularity in the  Court shall order the
procurement thereof
. recipient to return the
amounts already received
with interest from the dates
If judgment of the appellate court is favorable to the party against whom provisional remedy
of actual payment.
was effected:
 Recipient may obtain
 Application must be filed with the appellate court before judgment of the appellate court reimbursement from the
becomes executory. person legally obliged to
 Appellate court may allow that the application be heard and decided by the trial court. give support (separate
 If bond or deposit given by the party availing of the provisional remedy be insufficient or fail action must be filed for that
to satisfy the award. purpose).
 Adverse party may recover damages in the same action.
 If recipient fails to reimburse

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

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Special Civil Actions a. in an action where defendants'

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

Rule 16 on motion to dismiss are applicable in INTERPLEADER
SCAs (National Power Corp. vs. Valera, L- It is a special remedy whereby a party who has
15295, Nov. 30, 1961). property in his possession or an obligation to
perform, either wholly or partially, but who
claims no interest in the subject, or whose
RULE 62 interest, in whole or in part, is not disputed by
others, goes to court and asks that conflicting
claimants to the property or obligation be
Interpleader required to litigate among themselves in order to
determine finally who is entitled to the same
Section 1. When interpleader proper. — (Alvarez vs. Commonwealth, 65 Phil. 302).
Whenever conflicting claims upon the same
subject matter are or may be made against a Note: Interpleader can be raised in the
person who claims no interest whatever in complaint or a counterclaim.
the subject matter, or an interest which in
whole or in part is not disputed by the Prior Barangay conciliation also is required.
claimants, he may bring an action against the
conflicting claimants to compel them to Jurisdiction is dependent on jurisdictional
interplead and litigate their several claims amount – the amount of the property subject
among themselves. (1a, R63) of the litigation.
Requisites:
Bar Exam Question 2012 1. Plaintiff claims no interest in the
50. In which of the following is Interpleader subject matter or his claim thereto is
improper? not disputed;

________________________________________________________________________________________________
2. There must be at least two or more Section 4. Motion to dismiss. — Within

conflicting claimants; the time for filing an answer, each
3. The parties to be impleaded must make claimant may file a motion to dismiss on
effective claims; the ground of impropriety of the
4. The subject matter must be one and the interpleader action or on other
same. appropriate grounds specified in Rule
16. The period to file the answer shall be
The peculiar characteristic of an interpleader is that
tolled and if the motion is denied, the
there is no cause of action on the part of the plaintiff
movant may file his answer within the
but only a threat of cause of action.
remaining period, but which shall not be
Example: A warehouseman where two or more less than five (5) days in any event,
persons claim the deposited goods. reckoned from notice of denial. (n)
NOTE: Warehouse receipt is not conclusive proof of Section 5. Answer and other pleadings.
ownership. It proves only possession. Possession is — Each claimant shall file his answer
one thing. Ownership is another thing. setting forth his claim within fifteen (15)
days from service of the summons upon
PURPOSE OF REMEDY: To protect a person not him, serving a copy thereof upon each of
against double liability but against double vexation the other conflicting claimants who may
in respect to one liability (Wack Wack Golf vs. Won, file their reply thereto as provided by
70 SCRA 165) these Rules. If any claimant fails to plead
within the time herein fixed, the court
An action in interpleader should be filed within a
may, on motion, declare him in default
reasonable time after dispute has arisen without
and thereafter render judgment barring
waiting to be sued by either of the contending
claimants. Otherwise, it may be barred by laches or him from any claim in respect to the
undue delay. This is because after judgment is subject matter.
obtained against the plaintiff by one claimant, he is
already liable to the latter. The parties in an interpleader action may
file counterclaims, cross-claims, third-
Notes: after the receipt of the summons, complaint party complaints and responsive pleadings
for interpleader cannot anymore be filed. thereto, as provided by these Rules. (4a,
HOWEVER, the answer could allege the R63)
interpleader as a counterclaim [compulsory](Wack
Wack vs. Won, supra). There is no need for filing Note; The conflicting claimants, who are co-
fees. A 3rd party complaint may also apply. But note defendants in the action, must serve copies of
that this is more expensive because there is a need their answers not only to the plaintiff but also
for payment of filing fees. upon their co-defendants since the
controversy actually exists among the co-
If there are no conflicting claims among the defendants.
defendants, the complaint for interpleader may be
dismissed for lack of cause of action. NOTE: Compare to Rule 9 on the effects of
failure to plead.
Section 2. Order. — Upon the filing of the
complaint, the court shall issue an order Section 6. Determination. — After the
requiring the conflicting claimants to pleadings of the conflicting claimants have
interplead with one another. If the interests been filed, and pre-trial has been
of justice so require, the court may direct in conducted in accordance with the Rules,
such order that the subject matter be paid or the court shall proceed to determine their
delivered to the court. (2a, R63) respective rights and adjudicate their
several claims. (5a, R63)
Section 3. Summons. — Summons shall be
served upon the conflicting claimants, Note: The court, in a complaint for
together with a copy of the complaint and interpleader shall determine the rights and
order. (3, R63) obligations of the parties and adjudicate their
several claims. Such rights, obligations and
claims could only be adjudicated if put forward

________________________________________________________________________________________________
by the aggrieved party in assertion of his rights

(Arreza vs. Diaz, Jr., 364 SCRA 88).
Section 7. Docket and other lawful fees, RULE 63

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

________________________________________________________________________________________________
Section 1. Who may file petition. — Any character, since they are res judicata and
person interested under a deed, will, contract binding upon the parties and those in privity with
or other written instrument, or whose rights them, and from decisions ABSTRACT and
are affected by a statute, executive order or MOOT QUESTIONS, since they must involve a
regulation, ordinance, or any other real controversy.
governmental regulation may, before breach
JUSTICIABILITY
or violation thereof bring an action in the
The court must be satisfied that an actual
appropriate Regional Trial Court to
controversy or the ripening seeds of one, exists
determine any question of construction or
between the parties, all of whom are sui juris
validity arising, and for a declaration of his and before the court, and the declaration sought
rights or duties, thereunder. (Bar Matter No. will be practical help in ending the controversy.
803, 17 February 1998)
To be ripe for judicial determination, it must
An action for the reformation of an appear, that under the facts of the case, there is
instrument, to quiet title to real property or a threatened litigation in the immediate future,
remove clouds therefrom, or to consolidate which litigation is imminent and inevitable unless
ownership under Article 1607 of the Civil prevented by declaratory relief sought (Tolentino
Code, may be brought under this Rule. (1a, vs. Board of Accountancy, 90 Phil. 83)
R64)
ACTIONS SIMILAR TO DECLARATORY
RELIEF (DR); and may be brought under Rule
WHERE TO FILE:
63:
The petition for DR must be filed with the RTC.
1. Reformation of Instruments;
However, if the petition has far-reaching implications
2. Quieting of Title to a Real Property or to
and it raises questions that should be resolved, it
Remove Clouds thereon;
may be treated as one of prohibition or for
Note: in an action for Quieting of
mandamus, which the SC or CA may take
Title and Reconveyance, the
cognizance (Regalado, p. 777)
jurisdiction is dependent upon the
assessed value of the property.
REQUISITES FOR DR:
3. Consolidation of Ownership.
1. The SUBJECT MATTER of the controversy
These 3 remedies are considered similar to DR
must be a deed, will, contract or other
because they also result in the adjudication of
written instrument, statute, executive order
legal rights of the litigants, often without the
or regulation or ordinance;
need of execution to carry the judgment into
Does not include judgments/orders
effect.
of a court.
2. The terms of said documents and the
NOTE: A procedural distinction between the 2
validity thereof are doubtful and require
remedies is that in the actions falling under the
judicial construction;
2nd paragraph, the court is bound to render
3. There must be NO BREACH on the
judgment, whereas in actions falling under the
document in question;
1st paragraph, the court may refuse to exercise
4. There must be an actual justiciable
the power to declare rights and construe
controversy or the “RIPENING SEEDS” of
instruments.
one between persons whose interests are
adverse;
Actions falling under 1st par. of sec. 1 do not
5. The issue must be RIPE FOR JUDICIAL
require prior recourse to Barangay conciliation
DETERMINATION (administrative remedies
while actions under the 2nd par. may require
have been exhausted);
barangay conciliation (Review Lecture).
6. ADEQUATE RELIEF is not available
through other means or other forms of
action or proceeding. Section 2. Parties. — All persons who
have or claim any interest which would be
PURPOSE OF DR: To relieve the litigants of affected by the declaration shall be made
common law rule that no declaration of rights may parties; and no declaration shall, except
be judicially adjudged unless a right has been as otherwise provided in these Rules,
violated and for the violation of which relief may be prejudice the rights of persons not parties
granted. Declaratory judgments are to be to the action. (2a, R64)
distinguished from those which are ADVISORY in
________________________________________________________________________________________________
PARTIES: b. In an action to consolidate ownership

1. Person (a) who is interested under a deed, under Art. 1607 of the Civil Code.
will, contract, or other written instruments, c. To establish legitimate filiation and
OR (b) whose rights will be affected by a determine hereditary rights.
statute, executive order or regulation, d. (a) and (c) above
ordinance or other government regulation; SUGGESTED ANSWER: (a), The court,
2. All persons who have or claim interest may motu propio or upon motion, refuse
which would be affected by the declaration. to exercise the power to declare rights
and to construe instruments in any case
Non-joinder of necessary parties is not jurisdictional where a decision would not terminate
defect but may be a ground for dismissal under the uncertainty or controversy which
section 5. gave rise to the action, or in any case
where the declaration or construction is
Notary public who is not a party to the contract is not necessary and proper under the
not entitled to file DR (Tadeo vs. Provincial Fiscal of circumstances (Rule 63, Sec.5, Rules of
Pangasinan, 114 Phil. 177) Court).
Section 3. Notice on Solicitor General. —

In any action which involves the validity of a
Section 6. Conversion into ordinary
statute, executive order or regulation, or any
action. — If before the final termination
other governmental regulation, the Solicitor
of the case, a breach or violation of an
General shall be notified by the party
instrument or a statute, executive order
assailing the same and shall be entitled to be
or regulation, ordinance, or any other
heard upon such question. (3a, R64)
governmental regulation should take
place, the action may thereupon be
Note: see also Rule 3, sec. 22.
converted into an ordinary action, and the
parties shall be allowed to file such
Section 4. Local government ordinances. pleadings as may be necessary or proper.
— In any action involving the validity of a (6a, R64)
local government ordinance, the
corresponding prosecutor or attorney of the NOTES:
local governmental unit involved shall be If there has been a breach of statute before the
similarly notified and entitled to be heard. If filing of the action, the remedy of DR cannot be
such ordinance is alleged to be availed of.
unconstitutional, the Solicitor General shall
also be notified and entitled to be heard. (4a, The law does not require that there be an actual
R64) case pending. It is sufficient that there is breach
of the law, an actionable violation to bar
Section 5. Court action discretionary. — complaint for DR (Borja vs. Villadolid, 85 Phil.
Except in actions falling under the second 36)
paragraph of section 1 of this Rule, the court,
motu proprio or upon motion, may refuse to WHEN AN ACTION FOR DELARATORY
RELIEF WILL NOT LIE:
exercise the power to declare rights and to
construe instruments in any case where a
1. Actions to obtain judicial declaration of
decision would not terminate the uncertainty citizenship;
or controversy which gave rise to the action, 2. Action to establish illegitimate filiation
or in any case where the declaration or and actions to determine hereditary
construction is not necessary and proper rights;
under the circumstances. (5a, R64) 3. The subject of the action is a court
decision;
Bar Exam Question 2012 4. Action to resolve a political question or
21. In a declaratory relief action, the court may issue
refuse to exercise its power to declare rights 5. Those determinative of the issues rather
and construe instruments in what instance/s? than a construction of definite status,
a. When a decision would not terminate the rights and relations;
controversy which gave rise to the action.

________________________________________________________________________________________________
6. Where the terms of the assailed ordinance Section 2. Mode of review. — A

are not vague or of doubtful meaning; judgment or final order or resolution of
7. Where the contract or statute on which the the Commission on Elections and the
action is based has been breached; Commission on Audit may be brought by
8. Action is merely to seek advisory opinion the aggrieved party to the Supreme
from the court on moot question; Court on certiorari under Rule 65, except
9. When the petition is based on the as hereinafter provided. (n; Bar Matter
happening of a contingent event;
No. 803, 17 February 1998)
10. Where the petitioner is not a real party in
interest;
11. Where administrative remedies have not Bar Exam Question 2011
been exhausted. (26) What is the proper remedy to secure
relief from the final resolutions of the
A third party complaint is supposed to seek Commission On Audit?
contribution, indemnity, subrogation or other relief (A) Petition for review on certiorari with the
from the third party defendant in respect to the claim Supreme Court.
of the plaintiff against him, and hence it is improper (B) Special civil action of certiorari with the
if the main case is for DR which purpose is mere Court of Appeals. (C) Special civil action
interpretation or construction (Commissioner of of certiorari with the Supreme Court. (D)
Customs vs. Cloribel, 77SCRA 459). Appeal to the Court of Appeals.
However, when the complaint for DR alleges other Bar Exam Question 2011
matters, the court may grant such affirmative reliefs (57) The decisions of the Commission on
as the evidence may warrant (Adlawan vs. IAC, 170 Elections or the Commission on Audit may
SCRA 165). be challenged by (A) petition for review on
certiorari filed with the Supreme Court
Compulsory counterclaim based on or arising from under Rule 45. (B) petition for review on
the same transaction, deed, or contract on which certiorari filed with the Court of Appeals
petition is based may be filed and entertained in DR under Rule 42. (C) appeal to the Supreme
proceedings because there is nothing in the nature Court under Rule 54. (D) special civil
of DR that proscribes the filing of counterclaim and action of certiorari under Rule 65 filed
the Rules on Ordinary Civil action apply to Special with the Supreme Court.
Civil Action suppletorily (Visayan Packing Corp. vs.
Reparations Commission, 155 SCRA 542)
Section 3. Time to file petition. — The
petition shall be filed within thirty (30)
RULE 64
days from notice of the judgment or final
order or resolution sought to be reviewed.
Review of Judgments and Final Orders or The filing of a motion for new trial or
Resolutions of the Commission on reconsideration of said judgment or final
Elections and the Commission on Audit order or resolution, if allowed under the
procedural rules of the Commission
Section 1. Scope. — This Rule shall govern concerned, shall interrupt the period
the review of judgments and final orders or herein fixed. If the motion is denied, the
resolutions of the Commission on Elections aggrieved party may file the petition
and the Commission on Audit. (n) within the remaining period, but which
shall not be less than five (5) days in any
Notes: the judgment, final order or resolution event, reckoned from notice of denial. (n)
referred to herein is one rendered by the
COMELEC en banc. Section 4. Docket and other lawful
Congress enacted RA 7902 amending section 9 fees. — Upon the filing of the petition, the
of BP 129, effective March 18, 1995, eliminating petitioner shall pay to the clerk of court
such recourse to the SC and transferring the
the docket and other lawful fees and
revising power to the CA over all adjudications of
deposit the amount of P500.00 for costs.
the Civil Service Commission.
(n)
This Rule applies only when the COMELEC and
COA are acting as quasi-judicial bodies.

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Section 5. Form and contents of petition. unsubstantial to warrant further

— The petition shall be verified and filed in proceedings. (n)
eighteen (18) legible copies. The petition
shall name the aggrieved party as petitioner Section 7. Comments of respondents.
and shall join as respondents the Commission — The comments of the respondents shall
concerned and the person or persons be filed in eighteen (18) legible copies.
interested in sustaining the judgment, final The original shall be accompanied by
order or resolution a quo. The petition shall certified true copies of such material
state the facts with certainty, present clearly portions of the record as are referred to
the issues involved, set forth the grounds therein together with other supporting
and brief arguments relied upon for review, papers. The requisite number of copies of
and pray for judgment annulling or the comments shall contain plain copies of
modifying the questioned judgment, final all documents attached to the original and
order or resolution. Findings of fact of the a copy thereof shall be served on the
Commission supported by substantial petitioner.
evidence shall be final and non-reviewable.
No other pleading may be filed by any
The petition shall be accompanied by a party unless required or allowed by the
clearly legible duplicate original or certified Court. (n)
true copy of the judgment, final order or
resolution subject thereof, together with Section 8. Effect of filing. — The filing of
certified true copies of such material portions a petition for certiorari shall not stay the
of the record as are referred to therein and execution of the judgment or final order
other documents relevant and pertinent or resolution sought to be reviewed,
thereto. The requisite number of copies of the unless the Supreme Court shall direct
petition shall contain plain copies of all otherwise upon such terms as it may
documents attached to the original copy of deem just. (n)
said petition.
Under this Rule, the petitioner may apply
The petition shall state the specific material for a restraining order or a preliminary
dates showing that it was filed within the injunction from the SC to stay the
period fixed herein, and shall contain a sworn execution of judgment or final order or
certification against forum shopping as resolution sought to be reviewed.
provided in the third paragraph of section 3,
Rule 46.
Section 9. Submission for decision. —
Unless the Court sets the case for oral
The petition shall further be accompanied by argument, or requires the parties to
proof of service of a copy thereof on the submit memoranda, the case shall be
Commission concerned and on the adverse deemed submitted for decision upon the
party, and of the timely payment of docket filing of the comments on the petition, or
and other lawful fees. of such other pleadings or papers as may
be required or allowed, or the expiration
The failure of petitioner to comply with any of of the period to do so. (n)
the foregoing requirements shall be sufficient
ground for the dismissal of the petition. (n)
Section 6. Order to comment. — If the RULE 64 RULE 65

Supreme Court finds the petition sufficient in Must be filed within 30 Must be filed within 60
form and substance, it shall order the days from notice of the days from notice of
respondents to file their comments on the judgment or resolution judgment or resolution
petition within ten (10) days from notice If MR is denied, If MR is denied, the
thereof; otherwise, the Court may dismiss aggrieved party may aggrieved party will
the petition outright. The Court may also file the petition within have another 60 days
dismiss the petition if it was filed manifestly the remaining period counted from the
for delay or the questions raised are too but which shall not be notice of the denial

________________________________________________________________________________________________
less than 5 days within which to file his

petition Writ of Certiorari
It is a writ emanating from a superior court
directed against an inferior court, tribunal, or
officer exercising judicial or quasi judicial
functions. The purpose of which is to correct
RULE 65 ERRORS OF JURISDICTION.
Certiorari, Prohibition and Mandamus Questions of fact cannot be raised in an original

action for certiorari. Only established or admitted
 Note: Prior Barangay conciliation is not facts can be considered (Rubio vs. Reyes, L-
required. Public officer/s is/are impleaded and 24581, may 27, 1968).
the act/s in question is in relation to the exercise
of their function/s. Note: Rule 65 should not be confused with Rule
45. Refer to Rule 45 for the distinctions.
 There is no declaration of default, the court
does not issue summons but instead an order to Bar Exam Question 2011
file comment on the petition. (41) What is the movant’s remedy if the trial
court incorrectly denies his motion to
 The remedy for the denial of a petition for CPM dismiss and related motion for
is appeal, either via notice of appeal or petition reconsideration? (A) Answer the complaint.
for review on certiorari under Rule 45. (B) File an administrative action for gross
ignorance of the law against the trial judge.
Section 1. Petition for certiorari. — When (C) File a special civil action of certiorari
any tribunal, board or officer exercising on ground of grave abuse of discretion.
judicial or quasi-judicial functions has acted (D) Appeal the orders of denial.
without or in excess its or his jurisdiction, or
with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no
XX. The Labor Arbiter, ruling on a purely
appeal, or any plain, speedy, and adequate
legal question, ordered a worker’s
remedy in the ordinary course of law, a
reinstatement and this ruling was affirmed
person aggrieved thereby may file a verified
on appeal by the NLRC whose decision,
petition in the proper court, alleging the facts
under the Labor Code, is final. The
with certainty and praying that judgment be company’s recourse under the
rendered annulling or modifying the circumstances is to __________. (1%) (A) file
proceedings of such tribunal, board or officer, a motion for reconsideration and if denied,
and granting such incidental reliefs as law file a petition for review with the Court of
and justice may require. Appeals on the pure legal question the case
presents. (B) file a motion for
The petition shall be accompanied by a reconsideration and if denied, appeal to the
certified true copy of the judgment, order or Secretary of Labor since a labor policy issue
resolution subject thereof, copies of all is involved. (C) file a motion for
pleadings and documents relevant and reconsideration and if denied, file a
pertinent thereto, and a sworn certification of petition for certiorari with the Court of
non-forum shopping as provided in the third Appeals on the ground of grave abuse of
paragraph of section 3, Rule 46. (1a) discretion by the NLRC.
(D) file a motion for reconsideration and if
REQUISITES OF CERTIORARI denied, file a petition for review on
1. There must be a CONTROVERSY; certiorari with the Supreme Court since a
2. Respondent is exercising JUDICIAL or pure question of law is involved. (E) directly
QUASI-JUDICIAL functions; file a petition for certiorari with the Court of
3. Respondent acted WITHOUT, or IN Appeals since a motion for reconsideration
EXCESS of its JURISDICTION, or acted would serve no purpose when a pure
with GRAVE ABUSE OF DISCRETION question of law is involved.
amounting to lack of jurisdiction; and SUGGESTED ANSWER: (C), In Nemia
4. There must be NO APPEAL or other PLAIN, Castro vs. Rosalyn and Jamir Guevarra,
SPEEDY and ADEQUATE remedy. G.R. No. 192737, April 25, 2012, the

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Supreme Court held that a motion for trial prosecutor filed a Motion to Withdraw
reconsideration is a condition precedent for Information which the judge granted. The
the filing of a petition for certiorari. Its order of the judge stated only the following:
purpose is to grant an opportunity for the "Based on the review by the DOJ Secretary
court to correct any actual or perceived of the findings of the investigating
error attributed to it by the re-examination prosecutor during the preliminary
of the legal and factual circumstances of investigation, the Court agrees that there is
the case. In Saint Martin Funeral Homes vs. no sufficient evidence against the accused
NLRC, G.R. No. 130866, September 16, to sustain the allegation in the information.
1998, the Supreme Court ruled that the The motion to withdraw Information is,
petitions for certiorari under Rule 65 therefore, granted." If you were the private
against decisions of final order of the NLRC prosecutor, what should you do? Explain.
should be initially filed in the Court of (5%) SUGGESTED ANSWER: If I were the
Appeals in strict observance of the doctrine private prosecutor, I would file a petition
on the hierarchy of courts as the for certiorari under Rule 65 with the
appropriate forum for the relief desired. Court of Appeals (Cerezo vs. People, G.R.
No.185230, June 1, 2011). It is well-
ALTERNATIVE ANSWER: settled that when the trial court is
(E), In Beatriz Siok Ping Tang vs. Subic bay confronted with a motion to withdraw
Distribution, G.R> No. 162575, December and Information (on the ground of lack
15, 2010, the Supreme Court held that a of probable cause to hold the accused for
motion for reconsideration is a condition trial based on resolution of the DOJ
sine qua non for the filing of am petition for Secretary), the trial court has the duty
certiorari. The rule is, however, to make an independent assessment of
circumscribed by well-defined exceptions, the merits of the motion. It may either
such as (a) where the order is a patent agree or disagree with the
nullity, as where the court a quo had no recommendation of the Secretary.
jurisdiction; (b) where the questions raised Reliance alone on the resolution of the
in the certiorari proceeding have been duly Secretary would be an abdication of the
raised and passed upon in the lower court; trial court‟s duty and jurisdiction to
(c) where there is an urgent necessity for determine a prima facie case. The court
the resolution of the question and any must itself be convinced that there is
further delay would prejudice the interests indeed no sufficient evidence against the
of the Government or of the petitioner or accused. Otherwise, the judge acted with
the subject matter of the action is grave abuse of discretion if he grants the
perishable; (d) where, under the Motion to Withdraw Information by the
circumstances, a motion for reconsideration trial prosecutor. (Harold Tamargo vs.
would be useless; (e) where petitioner was Romulo Awingan et. al. G.R. No. 177727,
deprived of due process and there is January 19, 2010).
extreme urgency for relief; (f) where, in a ALTERNATIVE ANSWER: If I were the
criminal case, relief from an order of arrest private prosecutor, I would file a Motion
is urgent and the granting of such relief by for Reconsideration of the Order of the
the trial court is improbable; (g) where the trial court. If the same has been denied,
proceedings in the lower court are a nullity I would file a petition for review on
for lack of due process; (h) where the certiorari under Rule 45 on pure
proceedings were ex parte, or in which the question of law, which actually
petitioner had o opportunity to object; and encompasses both the criminal and civil
(i) where the issue raised is one purely of aspects thereof. The filing of the petition
law or where public interest is involved. is merely a continuation of the appellate
process.
Certiorari; Petition for Certiorari, Rule 65 Special Civil Action; Petition for Certiorari (2002)
(2012) The defendant was declared in default in the RTC
No.I. (a) After an information for rape was filed for his failure to file an answer to a complaint for a
in the RTC, the DOJ Secretary, acting on the sum of money. On the basis of the plaintiff’s ex
accused's petition for review, reversed the parte presentation of evidence, judgment by default
investigating prosecutor's finding of probable was rendered against the defendant. The default
cause. Upon order of the DOJ Secretary, the judgment was served on the defendant on October

________________________________________________________________________________________________
1, 2001. On October 10, 2001, he files a verified motion under Rule 65. The judge should not
to lift the order of default and to set aside the judgment. have acted on Y‟s motion to declare X in
In his motion, the defendant alleged that, immediately contempt. The charge of indirect
upon receipt of the summon, he saw the plaintiff and contempt is initiated through a verified
confronted him with his receipt evidencing his payment petition. (Rule 71, Sec. 4, Rules of
and that the plaintiff assured him that he would instruct Court). The writ was not directed to X
his lawyer to withdraw the complaint. The trial court but to the sheriff who was directed to
denied the defendant’s motion because it was not deliver the property to Y. As the writ did
accompanied by an affidavit of merit. The defendant not command the judgment debtor to do
filed a special civil action for certiorari under Rule 65 anything, he cannot be guilty of the
challenging the denial order. facts described in Rule 71 which is
A. Is certiorari under Rule 65 the proper remedy? “disobedience of or resistance to a lawful
Why? (2%) writ, process, order, judgment, or
B. Did the trial court abuse its discretion or act without command any court.” The proper
or in excess of its jurisdiction in denying the defendant’s procedure is for the sheriff to oust X
motion to lift the order of default judgment? Why? (3%) availing of the assistance of peace
SUGGESTED ANSWER: officers pursuant to Section 10 (c) of
A. The petition for certiorari under Rule 65 filed by the Rule 39 (Lipa vs. Tutaan, L-16643, 29
defendant is the proper remedy because appeal is not a September 1983; Medina vs. Garces, L-
plain, speedy and adequate remedy in the ordinary 25923, July 15, 1980; Pascua vs. Heirs
course of law. In appeal, the defendant in default can of Segundo Simeon, 161 SCRA 1;
only question the decision in the light of the evidence of Patagan et. al. Vs. Panis, G.R. No. 55630,
the plaintiff. The defendant cannot invoke the receipt to April 8, 1988).
prove payment of his obligation to the plaintiff.
ALTERNATIVE ANSWER:
A. Under ordinary circumstances, the proper remedy of
a party wrongly declared in default is either to appeal Section 2. Petition for prohibition. —
from the judgment by default or file a petition for relief When the proceedings of any tribunal,
from judgment. [Jao, Inc. v. Court of Appeals, 251 SCRA corporation, board, officer or person,
391 (1995) whether exercising judicial, quasi-judicial
SUGGESTED ANSWER: or ministerial functions, are without or in
B. Yes, the trial court gravely abused its discretion or excess of its or his jurisdiction, or with
acted without or in excess of jurisdiction in denying the grave abuse of discretion amounting to
defendant’s motion because it was not accompanied by a lack or excess of jurisdiction, and there is
separate affidavit of merit. In his verified motion to lift no appeal or any other plain, speedy, and
the order of default and to set aside the judgment, the adequate remedy in the ordinary course of
defendant alleged that immediately upon the receipt of law, a person aggrieved thereby may file a
the summons, he saw the plaintiff and confronted him verified petition in the proper court,
with his receipt showing payment and that the plaintiff alleging the facts with certainty and
assured him that he would instruct his lawyer to praying that judgment be rendered
withdraw the complaint. Since the good defense of the commanding the respondent to desist
defendant was already incorporated in the verified from further proceedings in the action or
motion, there was no need for a separate affidavit of
matter specified therein, or otherwise
merit. [Capuz v. Court of Appeals, 233 SCRA 471 (1994);
granting such incidental reliefs as law and
Mago v. Court of Appeals, 303 SCRA 600 (1999)].
justice may require.
Certiorari; Petition for Certiorari; Contempt
(2012) The petition shall likewise be accompanied
No.IV.B. Mr. Sheriff attempts to enforce a Writ by a certified true copy of the judgment,
of Execution against X, a tenant in a order or resolution subject thereof, copies
condominium unit, who lost in an ejectment of all pleadings and documents relevant
case. X does not want to budge and refuses to and pertinent thereto, and a sworn
leave. Y, the winning party, moves that X be certification of non-forum shopping as
declared in contempt and after hearing, the provided in the third paragraph of section
court held X guilty of indirect contempt. If you 3, Rule 46. (2a)
were X's lawyer, what would you do? Why?
(5%) SUGGESTED ANSWER: If I were X’s REQUISITES FOR PROHIBITION
Lawyer, I would file a petition for certiorari

________________________________________________________________________________________________
1. There must be a CONTROVERSY; by the petitioner by reason of the

2. Respondent is exercising JUDICIAL or wrongful acts of the respondent.
QUASI-JUDICIAL or MINISTERIAL
functions; The petition shall also contain a sworn
3. Respondent acted WITHOUT, or IN
certification of non-forum shopping as
EXCESS of its JURISDICTION, or acted
provided in the third paragraph of section
with GRAVE ABUSE OF DISCRETION
3, Rule 46. (3a)
amounting to lack of jurisdiction; and
4. There must be NO APPEAL or other PLAIN,
SPEEDY and ADEQUATE remedy. REQUISITES FOR MANDAMUS:
1. There must be a CLEAR LEGAL RIGHT or
Writ of Prohibition DUTY;
It is a writ issued by a superior court and directed 2. The act to be performed must be
against an inferior court, corporation, board, officer PRACTICAL—within the powers of the
or other person whether performing judicial, quasi- respondent to perform such that if the writ of
judicial or ministerial functions for the purpose of mandamus was issued, he can comply with
preventing the latter from USURPING it, or else essence will be defeated;
JURISDICTION with which it is not legally vested. 3. Respondent must be exercising a
MINISTERIAL DUTY—a duty which is
GR: Prohibition does not ordinarily lie to restrain an imperative and absolute and involves merely
act which is already a fait accompli (Accomplished its execution;
Fact) 4. The duty or act to be performed must be
EXISTING—a correlative right will be denied
Exception: When the act complained of is capable if not performed by the respondents; and
of repetition, yet EVADING REVIEW. Writ of 5. There is NO OTHER PLAIN, SPEEDY AND
Prohibition will lie to prevent the creation of a new ADEQUATE REMEDY in the ordinary
province by those in corridors of power who would course of law.
avoid judicial intervention and review by merely
speedily and stealthily completing the commission Writ of Mandamus
of such illegality (Tan vs. COMELEC, GR No. It is a writ issued in the name of the state, to an
73155, July 11, 1986) inferior court, tribunal, corporation, board, or
person, COMMANDING the performance of an
Prohibition, and not mandamus, is the remedy act which the law enjoins as a duty resulting
where a motion to dismiss is improperly denied from an office, trust or station.
(Enriquez vs. Macaraeg, 84 Phil. 674)
Mandamus (2012) No.X.B. A files a
Note: Prohibition must not be confused with Complaint against 8 for recovery of title and
injunction. See distinction on the topic on possession of land situated in Makati with
Provisional Remedies. the RTC of Pasig. B files a Motion to
Dismiss for improper venue. The RTC Pasig
Section 3. Petition for mandamus. — When Judge denies B's Motion to Dismiss, which
obviously was incorrect. Alleging that the
any tribunal, corporation, board, officer or
RTC Judge "unlawfully neglected the
person unlawfully neglects the performance
performance of an act which the law
of an act which the law specifically enjoins as
specifically enjoins as a duty resulting from
a duty resulting from an office, trust, or
an office", 8 files a Petition for Mandamus
station, or unlawfully excludes another from against the judge. Will Mandamus lie?
the use and enjoyment of a right or office to Reasons. (3%) SUGGESTED ANSWER:
which such other is entitled, and there is no No, mandamus will not lie. The proper
other plain, speedy and adequate remedy in remedy is a petition for prohibition.
the ordinary course of law, the person (Serana vs. Sandiganbayan, G.R. No.
aggrieved thereby may file a verified petition 162059, January 22, 2008). The
in the proper court, alleging the facts with dismissal of the case based on improper
certainty and praying that judgment be venue is not a ministerial duty.
rendered commanding the respondent, Mandamus does not lie to compel the
immediately or at some other time to be performance of a discretionary duty.
specified by the court, to do the act required (Nilo Paloma vs. Danilo Mora, G.R. No.
to be done to protect the rights of the 157783, September 23, 2005).
petitioner, and to pay the damages sustained

________________________________________________________________________________________________
a. to compel a judge to consolidate trial of

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

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

________________________________________________________________________________________________
Pursuant thereto, the COMELEC approved the

Mandamus (2nd ground) vs. Quo Warranto Voter's Registration and Identification System
(VRIS) Project.
Mandamus is the proper remedy when the It issued invitations to pre-qualify and bid for the
respondent unlawfully excludes the petitioner from project. After the public bidding, Fotokina was
an office which the latter is entitled without usurping, declared the winning bidder with a bid of P6 billion
intruding into or unlawfully holding the office. and was issued a Notice of Award. But COMELEC
Chairman Gener Go objected to the award on the
On the other hand, if the respondent claims any ground that under the Appropriations Act, the
right to the office and usurps, intrudes into or budget for the COMELEC's modernization is only
unlawfully holds it against the petitioner, quo P1 billion. He announced to the public that the
warranto is the proper remedy (Feria, p. 494). VRIS project has been set aside. Two
Commissioners sided with Chairman Go, but the
Mandamus may be combined with quo warranto majority voted to uphold the contract.
The petition for mandamus is against the person Meanwhile, Fotokina filed with the RTC a petition
who excludes the plaintiff from office in question,
for mandamus compel the COMELEC to
while the petition for quo warranto is directed
against the person who actually holds said office
implement the contract. The Office of the
(Burguete vs. Mayor, 94 Phil. 930) Solicitor General (OSG), representing Chairman
Go, opposed the petition on the ground that
Judgment; Mandamus vs. Quo Warranto (2001) mandamus does not lie to enforce contractual
Petitioner Fabian was appointed Election Registrar of obligations. During the proceedings, the majority
the Municipality of Sevilla supposedly to replace the Commissioners filed a manifestation that
respondent Election Registrar Pablo who was Chairman Go was not authorized by the
transferred to another municipality without his consent COMELEC En Banc to oppose the petition.
and who refused to accept his aforesaid transfer, much Is a petition for mandamus an appropriate
less to vacate his position in Bogo town as election remedy to enforce contractual obligations?
registrar, as in fact he continued to occupy his aforesaid (5%)
position and exercise his functions thereto. Petitioner SUGGESTED ANSWER:
Fabian then filed a petition for mandamus against Pablo No, the petition for mandamus is not an
but the trial court dismissed Fabian’s petition contending appropriate remedy because it is not available to
that quo warranto is the proper remedy. Is the court enforce a contractual obligation. Mandamus is
correct in its ruling? Why? (5%) directed only to ministerial acts, directing or
SUGGESTED ANSWER:
Yes, the court is correct in its ruling. Mandamus will commanding a person to do a legal duty
not lie. This remedy applies only where petitioner’s (COMELEC v. Quijano-Padilla, G.R. No. 151992,
right is founded clearly in law, not when it is doubtful. September 18, 2002; Sec. 3, Rule 65).
Pablo was transferred without his consent
which is tantamount to removal without cause, contrary RESPONDENTS
to the fundamental guarantee on non-removal except for The principal respondent is the judge as a
cause. person, not the court as an entity. However, he
is merely a nominal or formal party.
Considering that Pedro continued to occupy the
disputed position and exercise his functions therein, the
The non-inclusion of the person interested in
proper remedy is quo warranto, not mandamus. {Garces
v. Court of Appeals, 259 SCRA 99 (1996)]
sustaining the proceedings renders the petition
ALTERNATIVE ANSWER: defective (RP vs. Zurbano, 105 Phil 409) .
Yes, the court is correct in its ruling. Mandamus lies
when the respondent unlawfully excludes another from A person not a party to the proceedings in the
the use and enjoyment of a right or office to which trial court or in the CA cannot maintain an action
such other is entitled. (Sec. 2, Rule 65). In this case, Pablo for certiorari in the SC to have the judgment
has not unlawfully excluded Fabian from the Office of reviewed (Ramos vs. Lampa, 63 Phil. 216).
Election Registrar. The remedy of Fabian is to file an
action of quo warranto in his name against Pablo for
usurping the office. (Sec. 5, Rule 66) CERTIORARI PROHIBITION MANDAMUS
Directed
Special Civil Actions; Mandamus (2006) Directed against an Directed
In 1996, Congress passed Republic Act No. 8189, against an entity or against an
otherwise known as the Voter's Registration Act of entity or person entity or
1996, providing for computerization of elections. person exercising person

________________________________________________________________________________________________
exercising judicial, quasi- exercising 1. It does not interrupt the course of the
judicial or judicial or ministerial principal action;
quasi-judicial ministerial function 2. It does not affect the running of the
function function reglementary periods involved in the
grounds: Grounds; Grounds: proceedings;
 Without  Without  Neglect 3. It does not stay the execution of
jurisdiction; jurisdiction; performance judgment, unless a TRO or Writ of
 In excess of  In excess of of Preliminary Injunction has been issued.
jurisdiction; jurisdiction; ministerial
 With grave  With grave duty; or Judicial Function
abuse of abuse of  Excluding It is where the tribunal or person has the power
discretion. discretion another to determine what the law is, what the rights of
from right or the parties are, and undertakes to determine
office these questions and adjudicate upon the rights
Purpose is to Purpose is for of the parties.
Purpose is to have the the
annul or nullify respondent respondent to Without Jurisdiction
a proceeding desist from do the act It is when the respondent does not have the
further and require legal power to determine the case.
proceeding payment of
damages
Affirmative or Excess of Jurisdiction
To prevent or positive if It is where the respondent, being clothed with
To correct restrain performance the power to determine the case, oversteps his
usurpation of usurpation of of a duty is authority as determined by law.
jurisdiction jurisdiction ordered, or it
(corrective) (preventive is negative if Grave Abuse of Discretion
and negative) a person is It is where the respondent acts in a capricious,
ordered to whimsical, arbitrary or despotic manner in the
desist from exercise of his judgment as to be said to be
excluding equivalent to lack of jurisdiction. The abuse of
another from discretion must be so patent and gross as to
office or right amount to an evasion of positive duty or to a
Covers Covers virtual refusal to perform a duty enjoined by law,
discretionary discretionary Covers or to act at all in contemplation of law, as where
acts and ministerial ministerial the power is exercised in an arbitrary and
acts acts despotic manner by reason of passion or
personal hostility.
Plain, speedy and adequate remedy

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

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GR: A motion for Reconsideration is an essential 2. Accompanied by a certified true copy of

precondition for the filing of a petition for CPM. It is the judgment or duplicate original (not
plain, speedy, and adequate remedy. Its purpose is photocopy);
to give the court a quo the opportunity to correct 3. CAFS.
itself.
Section 4. When and where petition
Exceptions: filed. — The petition shall be filed not
1. Where the order is a patent nullity; later than sixty (60) days from notice of
2. Where the questions raised in the certiorari
the judgment, order or resolution. In case
proceeding have been duly raised and
a motion for reconsideration or new trial is
passed upon by the lower court or are the
timely filed, whether such motion is
same as those raised and passed upon in
the lower court; required or not, the sixty (60) day period
3. Where there is an urgent necessity for the shall be counted from notice of the denial
resolution of the question; of said motion.
4. Where MR would be useless;
5. Where petitioner is deprived of due process; The petition shall be filed in the Supreme
6. Where, in criminal case, relief from an order Court or, if it relates to the acts or
of arrest is urgent and the granting of such omissions of a lower court or of a
relief by the trial court is improbable; corporation, board, officer or person, in
7. where the issue raised is purely of law; the exercising jurisdiction over the
8. Where public interest is involved; territorial area as defined by the Supreme
9. Where proceeding of the lower court is a Court. It may also be filed in the Court of
nullity for lack of due process; Appeals whether or not the same is in aid
10. Where the proceeding is ex parte or in
of its appellate jurisdiction, or in the
which the petitioner had no opportunity to
Sandiganbayan if it is in aid of its
object.
appellate jurisdiction. If it involves the
acts or omissions of a quasi-judicial
EFFECT OF FILING A MOTION FOR agency, unless otherwise provided by law
RECONSIDERATION or these Rules, the petition shall be filed
If a MR is filed, the period shall not only be in and cognizable only by the Court of
interrupted but another 60 days shall be given to the Appeals.
petitioner within which to file the appropriate petition
for certiorari or prohibition (SC Administrative No extension of time to file the petition
Circular 00-2-03) shall be granted except for compelling
reason and in no case exceeding fifteen
GR: Where the proper remedy is appeal, the action (15) days. (4a) (Bar Matter No. 803, 21
for certiorari will not be entertained. Certiorari is not July 1998; A.M. No. 00-2-03-SC)
a remedy for errors of judgment. Errors of judgment
are correctible by appeal.
CONCEPT OF “IN AID OF ITS APPELLATE
Exceptions:
JURISDICTION”
It means a court’s right to hear an appeal from
1. When appeal is not a plain, speedy or
adequate remedy; the lower court’s finding on the merits.
2. Where orders were issued either in excess
or without jurisdiction; In original actions for certiorari, the findings of
fact of the CA are not conclusive or binding upon
3. For certain special considerations as public
policy or public welfare; the SC, unlike the general rule in appeal by
certiorari under Rule 45 (Medran vs. CA, 83 Phil.
4. Where the order is of patent nullity;
5. Where the decision in the certiorari case will 1640
avoid future litigation;
6. When, in criminal case, the court rejects
rebuttal evidence for the prosecution as, in Bar Exam Question 2012
case of acquittal, there could be no more 22. In election cases involving an act or
remedy (Regalado, p. 783) omission of an MTC or RTC, a certiorari
petition shall be filed with:
IMPORTANT REQUIREMENTS: a. The Court of Appeals
1. Verified by the petitioner, not by the lawyer; b. The Supreme Court

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c. The COMELEC
d. The Court of Appeals or the COMELEC both The private respondent shall appear and defend
having concurrent jurisdiction the assailed proceedings and shall bear the
SUGGESTED ANSWER: (c), Section 4, Rule costs
65 of the Rules of Court, as amended by
A.M. No. 07-7-12-SC (Amendments to Rules GR: Unless otherwise specifically directed by
41, 45, 58, and 65 of the Rules of Court) the court where the petition is pending, the
provides that in election cases involving an public respondents shall not appear in or file an
act or omission of a municipal or a regional answer or comment to the petition or any
trial court, the petition shall be filed pleading therein.
exclusively with the Commission on
Elections, in aid of its appellate EXCEPTION: Where, however, the actuations of
jurisdiction. (Galang vs. Hon. Geronimo, the judge are assailed on the grounds other than
G.R. No. 192793, February 22, 2011). legal ones and imputing to the judge personal
motives, the judge cannot be blamed if he takes
personal interest in trying to disprove the
imputations (Montalban vs. Canonoy168 SCRA
Section 5. Respondents and costs in 1).
certain cases. — When the petition filed
relates to the acts or omissions of a judge,
Section 6. Order to comment. — If the
court, quasi-judicial agency, tribunal,
petition is sufficient in form and
corporation, board, officer or person, the
substance to justify such process, the
petitioner shall join, as private respondent or
court shall issue an order requiring the
respondents with such public respondent or
respondent or respondents to comment
respondents, the person or persons
on the petition within ten (10) days from
interested in sustaining the proceedings in
receipt of a copy thereof. Such order shall
the court; and it shall be the duty of such
be served on the respondents in such
private respondents to appear and defend,
manner as the court may direct together
both in his or their own behalf and in behalf
with a copy of the petition and any
of the public respondent or respondents
annexes thereto.
affected by the proceedings, and the costs
awarded in such proceedings in favor of the
petitioner shall be against the private In petitions for certiorari before the
respondents only, and not against the judge, Supreme Court and the Court of Appeals,
court, quasi-judicial agency, tribunal, the provisions of section 2, Rule 56, shall
corporation, board, officer or person be observed. Before giving due course
impleaded as public respondent or thereto, the court may require the
respondents. respondents to file their comment to, and
not a motion to dismiss, the petition.
Thereafter, the court may require the
Unless otherwise specifically directed by the
filing of a reply and such other responsive
court where the petition is pending, the
or other pleadings as it may deem
public respondents shall not appear in or file
necessary and proper. (6a)
an answer or comment to the petition or any
pleading therein. If the case is elevated to a
higher court by either party, the public Section 7. Expediting proceedings;
respondents shall be included therein as injunctive relief. — The court in which
nominal parties. However, unless otherwise the petition is filed may issue orders
specifically directed by the court, they shall expediting the proceedings, and it may
not appear or participate in the proceedings also grant a temporary restraining
therein. (5a) order or a writ of preliminary
injunction for the preservation of the
WHO MUST BE JOINED AS RESPONDENTS: rights of the parties pending such
1. Judge, court, quasi-judicial agency, tribunal, proceedings. The petition shall not
corporation board, officer or person who interrupt the course of the principal case
rendered the judgment (public respondent); unless a temporary restraining order or a
2. Person/s interested in sustaining the writ of preliminary injunction has been
proceeding in court (private respondents).

________________________________________________________________________________________________
issued against the public respondent from the time for the filing thereof has expired,
further proceeding in the case. (7a) the court may hear the case or require the
parties to submit memoranda. If after
such hearing or submission of memoranda
In the absence of an injunction or a temporary or the expiration of the period for the
restraining order, the public respondent shall filing thereof the court finds that the
proceed with the principal case within ten (10) days allegations of the petition are true, it shall
from the filing of the petition. Failure to proceed may render judgment for the relief prayed for
be a ground for an administrative charge (as or to which the petitioner is entitled.
amended by AM No. 07-7-12-SC)
The court, however, may dismiss the
NOTE: Thus, the filing of a petition of r certiorari
petition if it finds the same to be patently
does not interrupt the running of the period to file an
answer. Defendant may be then be declared in without merit, prosecuted manifestly for
default (Diaz vs. Diaz). delay, or that the questions raised therein
are too unsubstantial to require
Bar Exam Question 2013 consideration. (8a)
XI. What is the effect of the pendency of a
special civil action under Rule65 of the Rules Section 9. Service and enforcement of
of Court on the principal case before the lower order or judgment. — A certified copy of
court? (1%) (A) It always interrupts the course the judgment rendered in accordance with
of the principal case. (B) It interrupts the the last preceding section shall be served
course of the principal case only if the upon the court, quasi-judicial agency,
higher court issues a temporary restraining tribunal, corporation, board, officer or
order or a writ of preliminary injunction person concerned in such manner as the
against the lower court. (C) The lower court court may direct, and disobedience
judge is given the discretion to continue with thereto shall be punished as contempt. An
the principal case. (D) The lower court judge execution may issue for any damages or
will continue with the principal case if he costs awarded in accordance with section
believes that the special civil action was meant 1 of Rule 39. (9a)
to delay proceedings.
(E) Due respect to the higher court demands
that the lower court judge temporarily suspend
the principal case.
SUGGESTED ANSWER: (B), Under Section 7 RULE 66
of Rule 65, the court in which the petition
is filed may issue orders expediting the Quo Warranto
proceedings, and it may also grant a
temporary restraining order or a writ of Quo Warranto
preliminary injunction for the preservation It is a proceeding or writ issued by the court to
of the rights of the parties pending such determine the right to the use or exercise of an
proceedings. The petition shall not office, position or franchise and oust the person
interrupt the course of the principal case holding or exercising such office, position or
unless a temporary restraining order or a franchise if his right to enjoy is unfounded or if
writ of preliminary injunction has been he had forfeited his right to enjoy the privilege.
issued against the public respondent from
further proceeding in the case (A.M. No. 07- Actions of quo warranto against corporations
7-12-SC, December 12, 2007; Churchille B. with regard to franchises and rights granted to
Mari & People of the Phils. Vs. Hon. Rolando them, as well as their dissolution, covered under
A. Gonzales & PO1 Rudyard Paloma, G.R. the former Rule 66 now fall under the jurisdiction
No. 187728, September 12, 2011, Peralta, of SEC. however, such jurisdiction was
J.). subsequently transferred to the RTC (Securities
Regulation Code, sec. 5. 2).
Section 8. Proceedings after comment is

filed. — After the comment or other QUO WARRANTO MANDAMUS
pleadings required by the court are filed, or Designed to try the Does not lie to try
right or title to the disputed titles but only

________________________________________________________________________________________________
office, if the right or to enforce legal duties next preceding section, the court shall
title to the office is direct that notice be given to the
itself disputed respondent so that he may be heard in
opposition thereto; and if permission is
granted, the court shall issue an order to
that effect, copies of which shall be served
Section 1. Action by Government against on all interested parties, and the petition
individuals. — An action for the usurpation shall then be filed within the period
of a public office, position or franchise may ordered by the court. (5a)
be commenced by a verified petition brought
in the name of the Republic of the Philippines Section 5. When an individual may
against: commence such an action. — A person
claiming to be entitled to a public office or
(a) A person who usurps, intrudes into, or position usurped or unlawfully held or
unlawfully holds or exercises a public office, exercised by another may bring an action
position or franchise; therefor in his own name. (6)
(b) A public officer who does or suffers an act WHO MAY COMMENCE:
which, by the provision of law, constitutes a 1. Government through the Solicitor
ground for the forfeiture of his office; or General (SolGen);
2. Public Prosecutor;
3. Individual claiming to be entitled to the
(c) An association which acts as a corporation office or position usurped or unlawfully
within the Philippines without being legally held or exercised by another.
incorporated or without lawful authority so to
act. (1a) CLASSIFICATION OF QUO WARRANTO
PROCEEDINGS
Section 2. When Solicitor General or 1. Mandatory—section 2;
public prosecutor must commence 2. Discretionary—section 3.
action. — The Solicitor General or a public
prosecutor, when directed by the RELATOR
President of the Philippines, or when upon A person at whose request and upon whose
relation, the Solgen or public prosecutor brings
complaint or otherwise he has good reason
an action for quo warranto with the permission of
to believe that any case specified in the
the court under section 3 & 4.
preceding section can be established by
proof, must commence such action. (3a) If the plaintiff’s right to file the complaint is not
proven, it becomes unnecessary for the court to
Section 3. When Solicitor General or pass upon the right of the defendant who has
public prosecutor may commence action perfect right to the undisturbed possession of his
with permission of court. — The Solicitor office. However, if the complaint is brought by
General or a public prosecutor may, with the the Solgen or public prosecutor, the court may
permission of the court in which the action pass upon the defendant’s right to office.
is to be commenced, bring such an action at
the request and upon the relation of Section 6. Parties and contents of
another person; but in such case the officer petition against usurpation. — When
bringing it may first require an indemnity the action is against a person for usurping
for the expenses and costs of the action in an a public office, position or franchise, the
amount approved by and to be deposited in petition shall set forth the name of the
the court by the person at whose request and person who claim to be entitled thereto, if
upon whose relation the same is brought. any, with an averment of his right to the
(4a) same and that the respondent is
unlawfully in possession thereof. All
Section 4. When hearing had on persons who claim to be entitled to the
application for permission to commence public office, position or franchise may be
action. — Upon application for permission to made parties, and their respective rights
commence such action in accordance with the

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to such public office, position or franchise title he holds a public

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

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Section 9. Judgment where usurpation in accordance with the provisions of the

found. — When the respondent is found next preceding section unless the same be
guilty of usurping into, intruding into, or commenced within one (1) year after the
unlawfully holding or exercising a public entry of the judgment establishing the
office, position or franchise, judgment shall petitioner's right to the office in question.
be rendered that such respondent be ousted (16a)
and altogether excluded therefrom, and that
the petitioner or relator, as the case may be, NOTE: The periods within which the petition
recover his costs. Such further judgment may should be brought are condition precedent to
be rendered determining the respective rights the existence of a cause of action.
in and to the public office, position or
franchise of all the parties to the action as The 1 year period is not interrupted by the
justice requires. (10a) prosecution of any administrative remedy as in
quo warranto proceeding, no one is compelled
to resort to administrative remedies since
Section 10. Rights of persons adjudged
public interest requires that the right to public
entitled to public office; delivery of
office should be determined as speedily as
books and papers; damages. — If possible (Palma-Fernandez vs. Dela Paz, 160
judgment be rendered in favor of the person SCRA 751)
averred in the complaint to be entitled to the
public office he may, after taking the oath of Notice also that splitting a cause of action is
office and executing any official bond practically allowed under sec. 11, in relation to
required by law, take upon himself the sec. 10, of this Rule. The reason is that to
execution of the office, and may immediately allow the claim for damages in the very same
thereafter demand of the respondent all the quo warranto proceeding would unduly delay
books and papers in the respondent's custody the proceeding. The settled public policy is
or control appertaining to the office to which that questions regarding rightful holder of a
the judgment relates. If the respondent public office should be resolved without delay.
refuses or neglects to deliver any book or
paper pursuant to such demand, he may be Section 12. Judgment for costs. — In an
punished for contempt as having disobeyed a action brought in accordance with the
lawful order of the court. The person provisions of this Rule, the court may
adjudged entitled to the office may also bring render judgment for costs against either
action against the respondent to recover the the petitioner, the relator, or the
damages sustained by such person by reason respondent, or the person or persons
of the usurpation. (15a) claiming to be a corporation, or may
apportion the costs, as justice requires.
RIGHTS OF THE PERSON ADJUDGED (17a)
ENTITLED TO OFFICE:
1. To take upon himself the execution of the office; RULE 67
2. Demand from respondent all the books and
papers appertaining to the office;
Expropriation
Neglect or refusal of respondent is
punishable by contempt.
3. Bring an action for damages against the
usurper. EMINENT DOMAIN
Must be commenced within 1 year from It is the right and authority of the State to acquire
entry of judgment. private property for public use upon the
observance of due process and payment of just
compensation (Visayan Refining Co. vs. Camus,
Section 11. Limitations. — Nothing 40 Phil. 550).
contained in this Rule shall be construed to
authorize an action against a public officer or EXPROPRIATION
employee for his ouster from office unless the It is the procedure to be observed in the
same be commenced within one (1) year exercise of the right of eminent domain.
after the cause of such ouster, or the right of
the petitioner to hold such office or position, Eminent domain is a real action. Jurisdiction is
arose, nor to authorize an action for damages with the RTC because the first issue to be

________________________________________________________________________________________________
resolved is the right of the plaintiff to file an 5-hectare lot in Sta. Rosa, Laguna originally intended
expropriation case. Such is incapable of pecuniary as a residential subdivision for the Manila City Hall
estimation. employees. Explain. (5%)
When the respondent (generally the owner of the SUGGESTED ANSWER:
property) fail to file answer, he is deemed to have Yes, Congress may enact a law expropriating
waived the right to question the propriety of the property provided that it is for public use and with
expropriation. But he cannot be declared in default. just compensation. In this case, the construction of a
He can still present evidence to determine the just park is for public use (See Sena v. Manila Railroad Co.,
compensation. G.R. No. 15915, September 7, 1921; Reyes v. NHA, GR
No. 147511, March 24, 2003). The planned
WHEN IS EXPROPRIATION PROPER: compensation, however, is not legally tenable as the
1. When the owner refuses to sell; determination of just compensation is a judicial
2. When he agrees to sell but an agreement function.No statue, decree or executive order can
as to price cannot be reached. mandate that the determination of just
compensation by the executive or legislative
DE FACTO EXPROPRIATION departments can prevail over the court's findings
The taking by the government of a private property (Export Processing Zone Authority v. Dulay, G.R. No.
without the formal exercise of the power of eminent L-59603, April 29,1987; Sees. 5 to 8 Rule 67,1997 Rules of
domain. Remedy: Inverse Condemnation Civil Procedure). In addition, compensation must be
Proceeding. paid in money (Esteban v. Onorio, A.M. No. 00- 4-166-
RTC, June 29, 2001).
INVERSE CONDEMNATION PROCEEDING
An action to recover just compensation from the
state. It has the objective to recover the value of the Section 1. The complaint. — The right of
property taken in fact by the governmental eminent domain shall be exercised by the
defendant, even though no formal exercise of the filing of a verified complaint which shall
power of eminent domain has been attempted by state with certainty the right and purpose
the taking agency (cited in NPC vs. Heirs of of expropriation, describe the real or
Sangkay, GR No. 165828, Aug 24, 2011) personal property sought to be
expropriated, and join as defendants all
Note: In inverse condemnation proceedings, the persons owning or claiming to own, or
value of the property is determined at the time of the occupying, any part thereof or interest
action, NOT at the time of the purported taking or therein, showing, so far as practicable, the
entry to the property (Ibid). separate interest of each defendant. If the
title to any property sought to be
Bar Exam Question 2011 expropriated appears to be in the Republic
(4) Which of the following is NOT CONSISTENT
of the Philippines, although occupied by
with the rules governing expropriation
private individuals, or if the title is
proceedings?
otherwise obscure or doubtful so that the
(A) The court shall declare the defendant
plaintiff cannot with accuracy or certainty
who fails to answer the complaint in default
specify who are the real owners, averment
and render judgment against him. (B) The
court shall refer the case to the Board of to that effect shall be made in the
Commissioners to determine the amount of complaint. (1a)
just compensation. (C) The plaintiff shall make
the required deposit and forthwith take CONTENTS OF THE VERIFIED COMPLAINT:
immediate possession of the property sought to
be expropriated. (D) The plaintiff may 1. Right and purpose of expropriation;
2. Description of the real or personal property;
appropriate the property for public use after
3. All persons owning or claiming to own or
judgment and payment of the compensation
occupying any part or interest therein must
fixed in it, despite defendant’s appeal.
be named as defendants, showing so far as
practicable, the separate interest of each
defendant;
Congress; Law Expropriating Property (2006)
4. If the title of the property to be
May Congress enact a law providing that a 5, 000 square
expropriated is in the name of the Republic
meter lot, a part of the UST compound in Sampaloc
of the Philippines, or if the title is obscure or
Manila, be expropriated for the construction of a park in
doubtful, the averment to that effect shall be
honor of former City Mayor Arsenic Lacson? As
made in the complaint.
compensation to UST, the City of Manila shall deliver its
________________________________________________________________________________________________
All properties can be expropriated, except: However, under the LGC, sec. 19 [last part] –
1. Money;
2. Choses in action That the local government unit may
immediately take possession of the property
Section 2. Entry of plaintiff upon upon the filing of the expropriation proceedings
depositing value with authorized and upon making a deposit with the proper
government depositary. — Upon the filing court of at least fifteen percent (15%) of the fair
of the complaint or at any time
market value of the property based on the
thereafter and after due notice to the
defendant, the plaintiff shall have the right to
current tax declaration of the property to be
take or enter upon the possession of the real expropriated: Provided, finally, That, the
property involved if he deposits with the amount to be paid for the expropriated
authorized government depositary an amount property shall be determined by the proper
equivalent to the assessed value of the court, based on the fair market value at the
property for purposes of taxation to be held time of the taking of the property.
by such bank subject to the orders of the
court. Such deposit shall be in money, unless Expropriation; Motion to Dismiss (2009)
in lieu thereof the court authorizes the No.XIV.A. The Republic of the Philippines,
deposit of a certificate of deposit of a through the department of Public Works
government bank of the Republic of the and Highways (DPWH) filed with the RTC a
Philippines payable on demand to the complaint for the expropriation of the
authorized government depositary. parcel of land owned by Jovito. The land is
to be used as an extension of the national
If personal property is involved, its value highway. Attached to the complaint is a
shall be provisionally ascertained and the bank certificate showing that there is, on
amount to be deposited shall be promptly deposit with the Land Bank of the
fixed by the court. Philippines, an amount equivalent to the
assessed value of the property. Then DPWH
filed a motion for the issuance of a writ of
After such deposit is made the court shall
possession. Jovito filed a motion to dismiss
order the sheriff or other proper officer to the complaint on the ground that there are
forthwith place the plaintiff in possession of other properties which would better serve
the property involved and promptly submit a the purpose.
report thereof to the court with service of (a) Will Jovito’s motion to dismiss prosper?
copies to the parties. (2a) Explain SUGGESTED ANSWER: NO. the
present Rule of Procedure governing
PURPOSE OF PRELIMINARY DEPOSIT expropriation (Rule 67), as amended by
1. Provide for damages if the court finds the the 1997 Rules of Civil Procedure,
plaintiff has no right to expropriate; requires the defendant to file an Answer,
2. Advance payment if in case property is which must be filed on or before the
finally expropriated. time stated in the summons.
Defendant‟s objections and defenses
Note: When the national government expropriates should be pleaded in his Answer not in a
private property, the implementing agency may motion.
enter into the possession of the property through a
writ of possession upon the filing of the complaint as (b) As judge, will you grant the writ of
long as it makes immediate payment to the property possession prayed for by DPWH? Explain
owner the amount equivalent to 100% of the value SUGGESTED ANSWER: 100% payment of
of the property and the value of the improvements, the zonal value of the property as
based on the relevant BIR zonal valuation (sec. 4, determined by the BIR, to be the amount
RA 8974). deposited. Before such deposit is made,
the national government thru the DPWH
This provision modifies section 2, Rule 67, ROC
has no right to take the possession of
as it is not enough to make initial deposit of an
the property under expropriation.
amount equivalent to the assessed value of the
property (Republic vs. Gingoyon, GR No.
166429, Dec. 19, 2005).
________________________________________________________________________________________________
Section 3. Defenses and objections. — If a A final order sustaining the right to

defendant has no objection or defense to expropriate the property may be appealed
the action or the taking of his property, he by any party aggrieved thereby. Such
may file and serve a notice of appearance appeal, however, shall not prevent the
and a manifestation to that effect, specifically court from determining the just
designating or identifying the property in compensation to be paid.
which he claims to be interested, within the
time stated in the summons. Thereafter, he After the rendition of such an order, the
shall be entitled to notice of all proceedings plaintiff shall not be permitted to dismiss
affecting the same. or discontinue the proceeding except on
such terms as the court deems just and
If a defendant has any objection to the equitable. (4a)
filing of or the allegations in the complaint, or
any objection or defense to the taking of his Section 5. Ascertainment of
property, he shall serve his answer within the compensation. — Upon the rendition of
time stated in the summons. The answer the order of expropriation, the court shall
shall specifically designate or identify the appoint not more than three (3)
property in which he claims to have an competent and disinterested persons as
interest, state the nature and extent of the commissioners to ascertain and report
interest claimed, and adduce all his to the court the just compensation for the
objections and defenses to the taking of his property sought to be taken. The order of
property. No counterclaim, cross-claim or appointment shall designate the time and
third-party complaint shall be alleged or place of the first session of the hearing to
allowed in the answer or any subsequent be held by the commissioners and specify
pleading. the time within which their report shall be
submitted to the court.
A defendant waives all defenses and
objections not so alleged but the court, in the Copies of the order shall be served on the
interest of justice, may permit amendments parties. Objections to the appointment of
to the answer to be made not later than ten any of the commissioners shall be filed
(10) days from the filing thereof. However, at with the court within ten (10) days from
the trial of the issue of just compensation service, and shall be resolved within thirty
whether or not a defendant has previously (30) days after all the commissioners shall
appeared or answered, he may present have received copies of the objections.
evidence as to the amount of the (5a)
compensation to be paid for his property, and
he may share in the distribution of the award. NOTE: Appointment of commissioners is
(n) mandatory and cannot be dispensed with
(Meralco vs. Pineda).
Section 4. Order of expropriation. — If the
objections to and the defenses against the Note that under Rule 32, the appointment of
right of the plaintiff to expropriate the commissioners is discretionary.
property are overruled, or when no party
appears to defend as required by this Rule, Section 6. Proceedings by
the court may issue an order of expropriation commissioners. — Before entering upon
declaring that the plaintiff has a lawful right the performance of their duties, the
to take the property sought to be commissioners shall take and subscribe an
expropriated, for the public use or purpose oath that they will faithfully perform their
described in the complaint, upon the duties as commissioners, which oath shall
payment of just compensation to be be filed in court with the other
determined as of the date of the taking of proceedings in the case. Evidence may be
the property or the filing of the complaint, introduced by either party before the
whichever came first. commissioners who are authorized to
administer oaths on hearings before them,
and the commissioners shall, unless the

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parties consent to the contrary, after due report and render judgment in
notice to the parties, to attend, view and accordance therewith, or, for cause
examine the property sought to be shown, it may recommit the same to the
expropriated and its surroundings, and may commissioners for further report of facts,
measure the same, after which either party or it may set aside the report and appoint
may, by himself or counsel, argue the case. new commissioners; or it may accept the
The commissioners shall assess the report in part and reject it in part and it
consequential damages to the property not may make such order or render such
taken and deduct from such consequential judgment as shall secure to the plaintiff
damages the consequential benefits to be the property essential to the exercise of
derived by the owner from the public use or his right of expropriation, and to the
purpose of the property taken, the operation defendant just compensation for the
of its franchise by the corporation or the property so taken. (8a)
carrying on of the business of the corporation
or person taking the property. But in no case JUST COMPENSATION
shall the consequential benefits assessed It is equivalent to the fair market value of the
exceed the consequential damages assessed, property at the time of the taking or filing of the
or the owner be deprived of the actual value complaint whichever comes first. It is the fair and
of his property so taken. (6a) full equivalent for the loss sustained by the
defendant.
Section 7. Report by commissioners and
FAIR MARKET VALUE
judgment thereupon. — The court may
Is that sum of money which a person, desirous
order the commissioners to report when any
but not compelled to buy, and an owner, willing
particular portion of the real estate shall have but not compelled to sell (Nachura).
been passed upon by them, and may render
judgment upon such partial report, and direct  Determination of just compensation is a
the commissioners to proceed with their work JUDICIAL PREROGATIVE.
as to subsequent portions of the property
sought to be expropriated, and may from  Executive determination of just
time to time so deal with such property. The compensation is unconstitutional (Panes vs.
commissioners shall make a full and accurate Visayas State College of Agriculture, 263
report to the court of all their proceedings, SCRA 708).
and such proceedings shall not be effectual
until the court shall have accepted their FORMULA for the determination of just
report and rendered judgment in accordance compensation”
with their recommendations. Except as Just compensation = [fair market value +
otherwise expressly ordered by the court, (consequential damages –
such report shall be filed within sixty (60) consequential benefits)].
days from the date the commissioners were
If consequential benefits is more than
notified of their appointment, which time may
consequential damages, then just
be extended in the discretion of the court.
compensation is equal to the fair market
Upon the filing of such report, the clerk of the value.
court shall serve copies thereof on all
interested parties, with notice that they are
Section 9. Uncertain ownership;
allowed ten (10) days within which to file
conflicting claims. — If the ownership of
objections to the findings of the report, if
the property taken is uncertain, or there
they so desire. (7a)
are conflicting claims to any part thereof,
the court may order any sum or sums
Section 8. Action upon commissioners' awarded as compensation for the property
report. — Upon the expiration of the period to be paid to the court for the benefit of
of ten (10) days referred to in the preceding the person adjudged in the same
section, or even before the expiration of such proceeding to be entitled thereto. But the
period but after all the interested parties judgment shall require the payment of the
have filed their objections to the report or sum or sums awarded to either the
their statement of agreement therewith, the defendant or the court before the plaintiff
court may, after hearing, accept the
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can enter upon the property, or retain it for rendered ordering the Regional Trial Court
the public use or purpose if entry has already to forthwith enforce the restoration to the
been made. (9a) defendant of the possession of the
property, and to determine the damages
Section 10. Rights of plaintiff after which the defendant sustained and may
judgment and payment. — Upon payment recover by reason of the possession taken
by the plaintiff to the defendant of the by the plaintiff. (11a)
compensation fixed by the judgment, with
legal interest thereon from the taking of the NOTE: The court can award damages motu
possession of the property, or after tender to proprio, a counterclaim being a prohibited
him of the amount so fixed and payment of pleading under sec. 3, 2nd par.
the costs, the plaintiff shall have the right to
enter upon the property expropriated and to Section 12. Costs, by whom paid. — The
appropriate it for the public use or purpose fees of the commissioners shall be taxed
defined in the judgment, or to retain it should as a part of the costs of the proceedings.
he have taken immediate possession thereof All costs, except those of rival claimants
under the provisions of section 2 hereof. If litigating their claims, shall be paid by the
the defendant and his counsel absent plaintiff, unless an appeal is taken by the
themselves from the court, or decline to owner of the property and the judgment is
receive the amount tendered, the same shall affirmed, in which event the costs of the
be ordered to be deposited in court and such appeal shall be paid by the owner. (12a)
deposit shall have the same effect as actual
payment thereof to the defendant or the Section 13. Recording judgment, and
person ultimately adjudged entitled thereto. its effect. — The judgment entered in
(10a) expropriation proceedings shall state
definitely, by an adequate description, the
particular property or interest therein
WHEN IS TITLE VESTED IN EXPROPRIATION: expropriated, and the nature of the public
use or purpose for which it is
1. If personal property; upon payment of just expropriated. When real estate is
compensation (se. 10); expropriated, a certified copy of such
2. If real; property; upon payment of just judgment shall be recorded in the registry
compensation and registration (sec. 13). of deeds of the place in which the
property is situated, and its effect shall be
NOTE: However, in agrarian reform cases, title
to vest in the plaintiff the title to the real
passes even before payment of just compensation
estate so described for such public use or
(resolution of MR; Land Bank vs. CA, 258 SCRA
404). purpose. (13a)
FORM OF COMPENSATION: Section 14. Power of guardian in such

Compensation is to be paid in money and no other. proceedings. — The guardian or
guardian ad litem of a minor or of a
Exception: payment made partly in Land Bank person judicially declared to be
bonds is allowed (Association of Small Landowners incompetent may, with the approval of the
vs. Sec. of Agrarian Reform, 175 SCRA 343) court first had, do and perform on behalf
Reason: Not a traditional exercise of eminent of his ward any act, matter, or thing
domain, but a REVOLUTIONARY kind of respecting the expropriation for public use
expropriation or purpose of property belonging to such
minor or person judicially declared to be
Section 11. Entry not delayed by appeal; incompetent, which such minor or person
effect of reversal. — The right of the judicially declared to be incompetent could
plaintiff to enter upon the property of the do in such proceedings if he were of age
defendant and appropriate the same for or competent. (14a)
public use or purpose shall not be delayed by
an appeal from the judgment. But if the MULTIPLE APPEALS
appellate court determines that plaintiff has
no right of expropriation, judgment shall be
________________________________________________________________________________________________
Order of expropriation may be appealed by the Multiple appeals allowed in foreclosure of

defendant by record on appeal. This is an instance REM.
when multiple appeals are allowed because they
have separate and/or several judgments on Subsequent action for foreclosure is not barred
different issues. (by res judicata) by a criminal case for violation
Issue on the right to expropriate; of BP 22 as payment on the loan where REM
Issue of just compensation. was constituted (Torres vs. Medina, 2010)
A final order sustaining the right to expropriate may

be appealed by any party aggrieved thereby (sec. 4, JUDICIAL EXTRAJUDICIAL
par. 2). An appeal does not delay the right of the FORECLOSURE FORECLOSURE
plaintiff to enter upon the property of the defendant Requires court No court intervention
and appropriate the same for public purpose. intervention necessary
There is only an equity Right of redemption
EFFECT IF ORDER OF CONDEMNATION IS redemption exists
REVERSED BY THE APPELLATE COURT: The Rule 68 Act 3135
owner shall repossess the property with the right to
be indemnified for all damages sustained due to the Bar Exam Question 2011
taking. (78) Which of the following correctly states
the rule on foreclosure of mortgages? (A)
In the event the judgment of expropriation is The rule on foreclosure of real estate
reversed and the case is remanded to the lower mortgage is suppletorily applicable to
court with the mandate to determine the damages extrajudicial foreclosures. (B) In judicial
caused to the landowner, such landowner has the foreclosure, an order of confirmation is
option of proving his such damages either in the necessary to vest all rights in the
same case or in a separate action instituted for that purchaser. (C) There is equity of
purpose, as the judgment denying the right to redemption in extra-judicial foreclosure. (D)
expropriation is not res judicata on the issue of A right of redemption by the judgment
damages arising from such illegal expropriation
obligor exists in judicial foreclosure.
(Republic vs. Baylosis, 109 Phil. 580).
NOTE: For more discussion on the substantive

A mortgagee may bring a personal action for the
aspect of eminent domain, refer to the notes on the
amount due, instead of a foreclosure suit, in
fundamental powers of the state.
which case he will be deemed to have waived
his right to proceed against the property in a
foreclosure proceeding (Movido vs.RFC, 105
Phil. 886)
RULE 68
An action to annul the mortgage can stand side
Foreclosure of Real Estate Mortgage by side with foreclosure of mortgage. There is
neither litis pendentia nor res judicata.
FORECLOSURE OF MORTGAGE PROVISIONAL REMEDIES AVAILABLE
It is a proceeding in a court of justice conducted 1. Preliminary attachment;
according to the legal forms by which the mortgagee 2. Receivership.
or his successors or one who has, by law,
succeeded to the rights and liabilities of the
Section 1. Complaint in action for
mortgagee, undertakes to dispose of, to ban, to cut-
foreclosure. — In an action for the
off the legal and equitable claims of lien holders or
of the mortgagor or those who have succeeded to foreclosure of a mortgage or other
the rights and duties of the mortgagor. encumbrance upon real estate, the
complaint shall set forth the date and due
Foreclosure of REM is an action quasi- in rem. execution of the mortgage; its
assignments, if any; the names and
Jurisdiction is with the RTC. The primary issue to residences of the mortgagor and the
be resolved is the issue of the right of the mortgagee; a description of the
mortgagee to foreclose the mortgage which is mortgaged property; a statement of the
incapable of pecuniary estimation. date of the note or other documentary
evidence of the obligation secured by the

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mortgage, the amount claimed to be unpaid

thereon; and the names and residences of all If the first mortgagee is not joined as a party, he
persons having or claiming an interest in the may file a complaint in intervention. Moreover,
property subordinate in right to that of the even without his intervention, his rights are
holder of the mortgage, all of whom shall be protected inasmuch as the mortgaged property
made defendants in the action. (1a) remains subject to the lien (BPI vs. De Coster,
47 Phil. 594).
CONTENTS OF THE COMPLAINT:
1. The date and due execution of the mortgage, Section 2. Judgment on foreclosure for
its assignment, if any; payment or sale. — If upon the trial in
2. Name and residences of the mortgagor and such action the court shall find the facts
the mortgagee; set forth in the complaint to be true, it
3. A description of the mortgaged property; shall ascertain the amount due to the
4. A statement of the date of the note or other plaintiff upon the mortgage debt or
documentary evidence of the obligation obligation, including interest and other
secured by the mortgage, the amount claimed charges as approved by the court, and
to be unpaid thereon; costs, and shall render judgment for the
5. The names and residences of the persons
sum so found due and order that the
having or claiming interest in the property
same be paid to the court or to the
subordinate in right to that of the holder of the
judgment obligee within a period of not
mortgage, all of whom shall be made
defendants n the action. less than ninety (90) days nor more than
one hundred twenty (120) days from the
DEFENDANTS IN JUDICIAL FORECLOSURE: entry of judgment, and that in default of
1. The person obliged to pay the mortgage debt; such payment the property shall be sold
2. The person who own, occupy or control the at public auction to satisfy the judgment.
mortgage premises or any part thereof; (2a)
3. The transferee or grantee of the property;
4. The 2nd mortgagee or junior encumbrancers or Petition for Certiorari (2000)
any person claiming a right or interest in the AB mortgaged his property to CD. AB failed to pay
property subordinate to the mortgage sought to his
be foreclosed (to foreclose their equity obligation and CD filed an action for foreclosure of
redemption); but if the action is by the junior mortgage. After trial, the court issued an Order
encumbrancers, the first mortgagee may also granting CD’s prayer for foreclosure of mortgage
be joined as defendant. and ordering AB to pay CD the full amount of the
mortgage debt including interest and other charges
EFFECT IF THE JUNIOR ENCUMBRANCER IS not later than 120 days from date of receipt of the
NOT IMPLEADED: Order. AB received the Order on August 10, 1999.
a. His equity redemption is not affected or barred No other proceeding took place thereafter. On
by the judgment of the court because he is December 20, 1999, AB tendered the full amount
merely a necessary party and not an adjudged by the court to CD but the latter refused to
indispensable party ( Sunlife Insurance vs. Diez, accept it on the ground that the amount was
52 Phil. 271)
tendered beyond the 120-day period granted by the
court. AB filed a motion in the same court praying
b. The remedy of the senior encumbrancer is to
that CD be directed to receive the amount tendered
file an independent proceeding to foreclose the
by him on the ground that the Order does not
right to redeem by requiring the junior
encumbrancer to pay the amount stated in the comply with the provisions of Section 2, Rule 68 of
order of execution or to redeem the property at the Rules of Court which give AB 120 days from
the specified time. entry of judgment, and not from date of receipt of
the Order. The court denied his motion on the
There is no provision prohibiting the joinder of a first ground that the Order had already become final and
mortgagee in a complaint filed by the second can no longer be amended to conform with Section
mortgagee for the same purpose. In such a 2, Rule 68. Aggrieved, AB files a petition for
situation, the 2nd mortgagee has to wait until after certiorari against the Court and CD. Will the petition
the debtor’s obligation to the first mortgage has for certiorari prosper? Explain. (5%)
SUGGESTED ANSWER:
been fully settled and the excess of the proceeds of
the sale, if any, will be given to the 2 nd mortgagee Yes. The court erred in issuing an Order granting
(Alpha Insurance vs. Reyes, 106 SCRA 274). CD’s prayer for foreclosure of mortgage and

________________________________________________________________________________________________
ordering AB to pay CD the full amount of the mortgage mortgagor is a non-resident person and
debt including interest and other charges not later than cannot be found in the Philippines.
120 days from receipt of the Order. The court should
have rendered a judgment which is appealable. Since no
appeal was taken, the judgment became final on August Bar Exam Question 2012
25, 1999, which is the date of entry of judgment. (Sec 2, 27. Equity of Redemption is the right of the
Rule 36) mortgagor to redeem the mortgaged
Hence, AB had up to December 24, 1999 within which property after default in the performance of
to pay the amount due. (Sec. 2, Rule 68) The court gravely the conditions of the mortgage, before the
abused its discretion amounting to lack or excess of sale or the confirmation of sale in a(n):
jurisdiction in denying AB’s motion praying that CD be a. extrajudicial foreclosure of mortgage.
directed to receive the amount tendered. b. judicial foreclosure of mortgage.
c. execution sale.
Bar Exam Question 2013 d. foreclosure by a bank.
VI. When the court renders judgment in a SUGGESTED ANSWER: (b), Equity of
judicial foreclosure proceeding, when is the redemption exists in case of judicial
mortgaged property sold at public auction to foreclosure of a mortgage. This is simply
satisfy the judgment? (1%) (A) After the the right of the defendant mortgagor to
decision has become final and executory. (B) At extinguish the mortgage and retain
any time after the failure of the defendant to ownership of the property by paying the
pay the judgment amount. (C) After the secured debt within a period of not less
failure of the defendant to pay the than ninety (90) days nor more than one
judgment amount within the period fixed in hundred twenty (120) days from the
the decision, which shall not be less than entry of judgment, in accordance with
ninety (90) nor more than one hundred Rule 68, or even after the foreclosure
twenty (120) days from entry of judgment. sale but prior to its confirmation.
(D) The mortgaged property is never sold at (Spouses Rosales vs. Spouses Alfonso,
public auction. (E) The mortgaged property G.R. No. 137792, August 12, 2003).
may be sold but not in any of the situations
outlined above.
SUGGESTED ANSWER: (C), Under Section 2
Section 3. Sale of mortgaged property;
of Rule 68, if upon the trial in such action
effect. — When the defendant, after
the court shall find the facts set forth in
the complaint to be true, it shall ascertain being directed to do so as provided in the
the amount due to the plaintiff upon the next preceding section, fails to pay the
mortgage debt or obligation, including amount of the judgment within the period
interest and other charges as approved by specified therein, the court, upon
the court, and costs, and shall render motion, shall order the property to be
judgment for the sum so found due and sold in the manner and under the
order that the same be paid to the court or provisions of Rule 39 and other
to the judgment oblige within a period of regulations governing sales of real estate
not less than ninety (90) days nor more under execution. Such sale shall not affect
than one hundred twenty (120) days from the rights of persons holding prior
the entry of judgment, and that in default encumbrances upon the property or a part
of such payment the property shall be sold thereof, and when confirmed by an order
at public auction to satisfy the judgment. of the court, also upon motion, it shall
operate to divest the rights in the
Bar Exam Question 2011 property of all the parties to the action
(63) In a judicial foreclosure proceeding, under and to vest their rights in the purchaser,
which of the following instances is the court subject to such rights of redemption as
NOT ALLOWED to render deficiency judgment may be allowed by law.
for the plaintiff? (A) If the mortgagee is a
banking institution. (B) if upon the mortgagor’s Upon the finality of the order of
death during the proceeding, the mortgagee
confirmation or upon the expiration of
submits his claim in the estate proceeding. (C)
the period of redemption when allowed by
If the mortgagor is a third party who is not
law, the purchaser at the auction sale or
solidarily liable with the debtor. (D) If the
last redemptioner, if any, shall be entitled

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to the possession of the property unless a P800,000.00 against A and B. the deficiency claim
third party is actually holding the same was opposed by A and B.
adversely to the judgment obligor. The said (a) Resolve the motion for the issuance of a writ of
purchaser or last redemptioner may secure a possession.
writ of possession, upon motion, from the (b) Resolve the deficiency claim of the bank. 6%
SUGGESTED ANSWER:
court which ordered the foreclosure. (3a)
(a) In judicial foreclosure by banks such as DBP, the
mortgagor or debtor whose real property has been
ORDER OF CONFIRMATION sold on foreclosure has the right to redeem the
Before the order of confirmation, even after the
property sold within one year after the sale (or
expiration of the period of equity redemption, the
registration of the sale). However, the purchaser at
debtor can still pay the debt.
the auction sale has the right to obtain a writ of
possession after the finality of the order confirming
Mortgagor does not have the right to a notice of sale
after failure to pay debt because:
the sale. (Sec. 3 of Rule 68; Sec. 47 of RA 8791. The General
Banking Law of 2000). The motion for writ of
1. Said notice is not litigable; and
2. Issuance is ministerial. possession, however, cannot be filed ex parte. There
must be a notice of hearing.
However, the mortgagor is entitled to a notice of (b) The deficiency claim of the bank may be
hearing of the confirmation of sale, otherwise, the enforced against the mortgage debtor A, but it
order is VOID. cannot be enforced against B, the owner of the
Due process requires that said notice be given so mortgaged property, who did not assume personal
that the mortgagor: liability for the loan.
1. Can resist the motion;
2. Be informed that his right to redeem is cut- Section 4. Disposition of proceeds of
off (Tiglao vs. Botones, 90 Phil. 275). sale. — The amount realized from the
foreclosure sale of the mortgaged
The Order of Confirmation is APPEALABLE. property shall, after deducting the costs of
the sale, be paid to the person foreclosing
NOTE: The issuance of a writ of possession in a the mortgage, and when there shall be
foreclosure proceeding is not an execution of any balance or residue, after paying off
judgment within the purview of section 6 of Rule 39
the mortgage debt due, the same shall be
but is merely a ministerial and complementary duty
paid to junior encumbrancers in the order
of the court to put an end to the litigation which the
court can undertake even after the lapse of 5 years, of their priority, to be ascertained by the
provided the statute of limitations and the rights of a court, or if there be no such
third person have not intervened in the meantime encumbrancers or there be a balance or
residue after payment to them, then to
Special Civil Action; Foreclosure (2003) the mortgagor or his duly authorized
A borrowed from the Development Bank of the agent, or to the person entitled to it. (4a)
Philippines (DBP) the amount of P1 million secured by
the titled land of his friend B who, however, did not Section 5.How sale to proceed in case
assume personal liability for the loan. A defaulted and the debt is not all due. — If the debt for
DBP filed an action for judicial foreclosure of the real which the mortgage or encumbrance was
estate mortgage impleading A and B as defendants. In held is not all due as provided in the
due course, the court rendered judgment directing A to judgment as soon as a sufficient portion of
pay the outstanding account of P1.5 million (principal the property has been sold to pay the
plus interest) to the bank. No appeal was taken by A on total amount and the costs due, the sale
the Decision within the reglementary period. A failed to shall terminate; and afterwards as often
pay the judgment debt within the period specified in the as more becomes due for principal or
decision. Consequently, the court ordered the interest and other valid charges, the court
foreclosure sale of the mortgaged land. In that may, on motion, order more to be sold.
foreclosure sale, the land was sold to the DBP for P1.2 But if the property cannot be sold in
million. The sale was subsequently confirmed by the
portions without prejudice to the parties,
court, and the confirmation of the sale was registered
the whole shall be ordered to be sold in
with the Registry of Deeds on 05 January 2002.
the first instance, and the entire debt and
On 10 January 2003, the bank filed an ex-parte motion
costs shall be paid, if the proceeds of the
with the court for the issuance of a writ of possession to
oust B from the land. It also filed a deficiency claim for sale be sufficient therefor, there being a

________________________________________________________________________________________________
rebate of interest where such rebate is redemption shall be registered with the
proper. (5a) registry of deeds, and a brief
memorandum thereof shall be made by
Section 6. Deficiency judgment. — If upon the registrar of deeds on said certificate of
the sale of any real property as provided in title.
the next preceding section there be a balance
due to the plaintiff after applying the If the property is not redeemed, the final
proceeds of the sale, the court, upon motion, deed of sale executed by the sheriff in
shall render judgment against the defendant favor of the purchaser at the foreclosure
for any such balance for which, by the record sale shall be registered with the registry of
of the case, he may be personally liable to deeds; whereupon the certificate of title in
the plaintiff, upon which execution may issue the name of the mortgagor shall be
immediately if the balance is all due at the cancelled and a new one issued in the
time of the rendition of the judgment; name of the purchaser. (n)
otherwise; the plaintiff shall be entitled to
execution at such time as the balance WHEN IS TITLE ACQUIRED
remaining becomes due under the terms of The buyer acquires title upon finality of the
the original contract, which time shall be confirmation of sale.
stated in the judgment. (6a)
The certificate of sale cannot be registered
JUDGMENT OF DEFICIENCY without the final order confirming the sale.
FORECLOSURE JUDGMENT
Action quasi in rem Action in personam EQUITY of RIGHT OF
REDEMPTION REDEMPTION
INSTANCES WHERE THE COURT CANNOT Right of the debtor, his
RENDER DEFICIENCY JUDGMENT: Right of the defendant successors in interest
1. When Recto Law applies (Art. 1484, NCC); mortgagor to or any judicial or
2. When the mortgagor is a non-resident and extinguish the judgment creditor of
is not found in the Philippines; mortgage and retain said debtor or any
3. When the mortgagor dies, the mortgagee ownership of the person having lien on
may file his claim with the probate court property by paying the the property
(Rule 86, sec. 7); debt within 90- 120 subsequent to the
4. If the mortgagor is a third person not days after the entry of mortgage or deed of
SOLIDARILY liable with the debtor. judgment or even after trust under which the
the foreclosure but property is sold to
Deficiency not executed before the death of the prior to confirmation of redeem the property
mortgage debtor may be filed as a claim against the sale by the court within 1 year from the
estate of the deceased (Reyes vs. Rosenstock, 47 registration of the
Phil. 7840 sheriff’s certificate of
foreclosure sale
Governed by Rule 68 Governed by Rule 39
Section 7. Registration. — A certified copy sec. 29- 31
of the final order of the court confirming the Period is 90- 120 days Period is 1 year from
sale shall be registered in the registry of after entry of judgment date of registration of
deeds. If no right of redemption exists, the or prior to confirmation certificate of sale
certificate of title in the name of the of sale
mortgagor shall be cancelled, and a new one
issued in the name of the purchaser. NOTE: There is no right of redemption in judicial
foreclosure sale after confirmation of sale.
Where a right of redemption exists, the
certificate of title in the name of the Exception: If the mortgagee is a bank- within
mortgagor shall not be cancelled, but the one year from date of sale [sec. 78, RA 337,
certificate of sale and the order confirming GBA] (Government Insurance System vs. CFI of
the sale shall be registered and a brief Iloilo, 185 SCRA 19). BPI Family vs. Avenido,
memorandum thereof made by the registrar GR No. 175816, Dec. 7, 2011.
of deeds upon the certificate of title. In the
event the property is redeemed, the deed of

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GR: In extra-judicial foreclosure, the mortgagor has IMPORTANT: In relation to Act 3135, in case of
the right to redeem the property within 1 year from extrajudicial foreclosure, the homesteader has a
registration of the deed of sale. period of six years to redeem. The 5 year period
runs only after the expiration of the one year
Exception: HOWEVER, sec. 47 of the General from date of auction sale (Cassion vs. Banco
Banking Act provides that in case of extrajudicial Nacional Filipino, supra; Manuel vs. PNB, 101
foreclosure notwithstanding Act 3135, juridical Phil 968).
persons shall have the right to redeem the property
until, but not after, the registration of the certificate ANOTHER: The right to repurchase is not
of foreclosure sale with the Register of Deeds which applicable where the person asking to
in no case shall be more than 3 months after the repurchase is merely speculating or expecting
foreclosure, which ever is earlier. for greater profits by reselling the subject land
again (Simeon vs. Pena, 365 SCRA 610;
Santana vs. Marinas GR No. L- 35537, Dec. 27,
Where after extrajudicial foreclosure of real estate 1979)
mortgage, the mortgagee purchased the same at
the foreclosure sale, he shall be entitled to a writ of Section 8. Applicability of other
possession despite the fact that the premises are in provisions. — The provisions of sections
the possession of a lessee whose lease are not yet 31, 32 and 34 of Rule 39 shall be
terminated, unless the lease has been previously
applicable to the judicial foreclosure of
(a) registered with the Register of deeds or the
real estate mortgages under this Rule
mortgagee has(b) actual knowledge of the
existence of the lease. insofar as the former are not inconsistent
with or may serve to supplement the
Under sec. 7 of Act 3135,as amended, the petition provisions of the latter. (8a)
for such writ of possession shall be made under
oath and filed as an ex parte motion in the Extrajudicial Foreclosure of REM; Procedure.
registration or cadastral proceeding of the property
(Ibasco vs. Caguia, GR NO. 62619, Aug. 19, 1986). Under the latest SC Adm. Cir. A. M. 99-10-05-0
governing extrajudicial foreclose of REM, the
Some relevant provisions on right of redemption petition must be filed with the Office of the
under CA 141: Executive Judge (EJ), through the Office of the
Clerk of Court and the Ex-Oficio Sheriff, and the
Under sec. 119 of CA 141, the right to repurchase is corresponding docketing fee must be paid,
given to : whether the foreclosure proceedings shall be
1. Homestead grantee; handled by the Sheriff or by a Notary Public
2. His widow; (NP).
3. Legal heirs.
Procedure to contest legality of extra-judicial
The period to redeem is within 5 years from foreclosure of REM:
conveyance. Note, HOWEVER, that the right to
repurchase is available only if the sale is to third Once the Petition for Extra-Judicial Foreclosure
persons outside of the family circle or not an is filed and a docket number is assigned after
immediate member of the family. the payment of the docketing fee, and before the
EJ has given the clearance to the Sheriff to
5 years is counted from the date of sale and NOT proceed with foreclosure, an administrative
from date of registration with the ROD (Lee Chuy objection to the petition may be filed with the EJ
Realty Corp. vs. CA, 250 SCRA 596. Dec. 4, 1995) who is vested with the responsibility over, and
direct supervision of, the work of the Clerk of
Period of Redemption applies even to foreclosure Court and Ex-Oficio Sheriff, including the duty of
sales (Cassion vs. Banco Nacional Fiipino, 89 Phil. the Clerk of Court to “examine, in case of REM
560) foreclosure, whether the applicant has complied
with the requirements before public auction is
Section 119 of CA 141 prevails over statutes conducted.
providing for shorter redemption period in extra
judicial sale (PNB vs. De los Reyes, 179 SCRA 619; If the EJ finds that the petition is defective either
Paras vs. CA 91 Phil. 389; Belisario vs. IAC, 165 in form or in substance, he will not give due
SCRA 101. course to the petition.

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Extra-Judicial proceedings are not judicial such as the Manila Reference Rate (MRR) or
proceedings. Treasury Bill rate, plus a margin as determined
by the Bank. If the floating rate is unilaterally
Unlike in an action, an extra-judicial foreclosure of fixed by the Bank for each interest period
REM is initiated by filing a petition not with the court without the written conformity of the Borrower,
of justice but with the office of the sheriff. The EJ the interest may be declared null and void for
comes into the picture only because he exercises being potestative and for lack of mutuality based
administrative supervision over the sheriff to see to on essential equality between the parties.
it that “the applicant has complied with the (Almeda vs CA and PNB, 256 SCRA 293
requirements before public auction is conducted.” [1996]).
The EJ cannot exercise adjudicatory functions, such
as ruling on the question whether the loans were If the interest is declared null and void, the
paid or not as a ground for issuing a TRO or a writ foreclosure sale for a higher amount than what
of injunction, which is a remedy available only in a is legally due is likewise null and void because
judicial action. (Supena vs Dela Rosa, 267 SCRA 1 under the Civil Code, a mortgage maybe
[1997]). foreclosed only to enforce the fulfillment of the
obligation for whose security it was constituted.
If the EJ approves the petition, the sheriff (Art. 2126, NCC).
schedules the auction sale by posting and
publication of the Notice of Public Auction, the (2) Where the total amount due on the
objecting mortgagor has the following alternative mortgage is undetermined because some of the
remedies: properties covered by the REM are agricultural
properties that are subjected to coverage under
a. file a petition for certiorari and prohibition with the CARP, in which case a portion of the
application for issuance of a writ of preliminary mortgaged indebtedness “will be assumed by
injunction or TRO under Rule 65 with the CA to the Government up to the amount equivalent to
review the order of the EJ giving due course to the the landowner’s compensation”. (Art. 73 [b], RA
petition, if grave abuse of discretion on the part of 6657). Until the final valuation of the lands
the EJ can be shown, or subjected to CARP coverage is determined, the
total amount of the mortgage indebtedness is
b. an ordinary civil action to annul the foreclosure unliquidated (undetermined).
proceedings with application for issuance of a writ of
preliminary injunction or TRO to be filed with the c. If the foreclosed property is in the actual
RTC. possession of a THIRD PARTY who has a claim
adverse to the mortgagor, the writ of possession
may not legally be issued even if petitioner’s
The grounds to restrain or enjoin foreclosure in (mortgagee’s) title over the subject property has
general are as follows: been consolidated or confirmed in its favor. It is
still not entitled to a writ of possession as the
a. Formal and substantive defects in the REM and same may be issued in extra-judicial foreclosure
the foreclosure proceedings provide the legal and of REM only if the debtor is in possession and
equitable grounds to enjoin the foreclosure no third person had intervened. (Gatchalian vs
proceeding or eventually nullify the foreclosure Arlegui (L-41360, Feb. 17, 1997) reiterated in
proceeding, if not the REM itself. The Civil Code Guevarra vs. Ramos (L-24358, March 31, 1971,
provides: 38 SCRA 194).
Art. 5. Acts executed against the provisions of The bank (mortgagee) may legally proceed with
mandatory or prohibitory laws shall be void, except foreclosure only when the exact amount of the
when the law itself authorizes their validity. obligations of the mortgagor is determined after
trial on the merit and the mortgagor cannot meet
b. If there is a genuine dispute on the amount legally the obligation following that determination.
due and enforceable by the REM. The dispute may (Almeda vs CA, et al. L-113412, April 17, 1996).
be due to the following:
Q. Is the prohibition against issuance of
(1) Where there is a dispute regarding the interest injunction against foreclosure of Government
RATE increase. The present day issue that affects Financial Institute absolute?
the total amount due under the mortgage is the
floating rate of interest periodically fixed by the Bank Ans. No. PD 385 which prohibits the issuance
based on the prevailing interest rate in the market, of an injunction against foreclosure by any

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government financial institution is arbitrary and Ans. File a petition with the RTC for the
unreasonable, and for that reason may be said to be issuance of a writ of possession under Sec. 33
unconstitutional for being violative of due process of of Rule 39. (DBP vs. Gatal, L-138567, March 4,
law. Such prohibition cannot be sustained if there is 2005, 452 SCRA 697, 3rd Div.).
a clear legal ground to restrain the foreclosure.
a. No separate and independent action is
Despite the existence of PD 385, the Supreme necessary to obtain possession of the property.
Court allows the issuance of injunction to enjoin (Tan Soo Huat vs. Ongwico, 63 Phil. 746
extra-judicial foreclosure of government financial [1936]).
institution where “an unsecured obligation x x x
sought to be satisfied by the x x x foreclosure sale. b. Petition for writ of possession under Sec. 7 of
(C & C Commercial Corp. vs vs CA, 253 SCRA 241 Act No. 3135 is not an initiatory pleading.
[1996]). Hence, certification against forum-shopping
required in Sec. 5, Rule 7 does not apply. The
x x x In line with the Filipino Marble ruling, pending proceeding being summary in nature and, in
determination by the lower court of x x x the larger fact, it can be asked and granted ex parte,
issue of failure of consideration, the sale at public intervention is not proper. (Ancheta vs
auction of the foreclosure chattels should be MetroBank, Inc., L-163410, Sept. 16, 2005, 470
enjoined, PD 385, notwithstanding. (Ibid). SCRA 157).
Q. a. What is the “Dragnet Clause” in connection c. Although a Petition for Writ of Possession is
with a REM? b. Is the clause valid? filed, actually it is a motion. That’s why it could
be asked and granted ex parte and it is not an
Ans. a. A clause in the REM extending coverage initiatory pleading. Duty of the court to issue the
of the mortgage to loans constituted before, during writ, just like a writ of execution, is ministerial.
and after the execution of the mortgage, regardless (Arquiza vs CA, L-160479, June 8, 2005, 459
of the amount of the loans. SCRA 753, 2nd Div.).
b. yes for REM but not valid for a chattel mortgage d. Although under the law and the decisions of
because of the affidavit of good faith. the Supreme Court, the hearings are ex-parte,
the trend and recent practice is to allow the
Q. Do all mortgagors have the right of redemption? mortgagor to participate in the proceedings. As
If so, within what period is the right to be exercised? a matter of law, the mortgagor is permitted
under Sec. 8 of Act 3135 to set aside the
Ans. No. Under the new amendment to Sec. 47 of foreclosure sale in the SAME PROCEEDINGS
the General Banking Act (the General Banking Law for the issuance of a Writ of Possession.
of 2000), corporate mortgagors do not enjoy
anymore the right of redemption. They only enjoy NOTE: In extra-judicial foreclosure, the “two
the equity of redemption which may be exercised bidder rule” is not anymore required (Supreme
only before the lapse of 90 days from the date of the Court Resolution amending par. 5 of AM 99-10-
auction or registration of the Sheriff’s Certificate of 05-0, Jan. 30, 2001)
Sale with the ROD, whichever comes first.
Q. How much is the amount of redemption?
Ans. It depends. a. If the mortgagee-creditor is a

bank, the amount due under the mortgage deed,
with interest thereon at the rate specified in the
mortgage. (Sec. 47, General Banking Act).
b. If the mortgage-creditor is other than a bank, the

bid price plus 12% interest per annum. (Act No.
3135).
Q. What is the procedural remedy of the purchaser

at public auction upon extrajudicial foreclosure sale
of property subject of a REM so that he could obtain
possession of the property?

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________________________________________________________________________________________________
EXECUTION SALE (Rule 39) JUDICIAL FORECLOSURE EXTRAJUDICIAL FORECLOSURE

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

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Possession: The purchaser is entitled to The purchaser may petition the court
The redemptioner (Judgment debtor) shall be possession of the property of the place where the property or any
entitled to the possession of the property until only after the finality of the part thereof is located to give him the
the expiration of the redemption period (sec. order of confirmation or upon possession thereof during the
33) the expiration of the period of redemption period and furnishing a
redemption, when allowed by bond
law [ex. Redemption under
sec. 119, of CA 141] (SEC.3)

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Unless:
RULE 69 1. There has been fraud;
2. In case it was made notwithstanding a
formal opposition presented to prevent
Partition it.(art. 497,NCC)
PARTITION However, this right to intervene is not absolute

It is the process of dividing and assigning property and intervenor must show a legitimate and
own in common among the various co-owners proper interest in the subject property (De Borja
thereof in proportion to their respective interests in vs. Jugo, 64 Phil 464)
said property.
NON- INCLUSION OF A CO-OWNER
PARTITION MAY BE : 1. BEFORE JUDGMENT—not ground for
1. Judicial—Rule 69; a motion to dismiss; remedy is to file a
2. Extrajudicial—no court intervention. motion to include the party.
2. AFTER JUDGMENT—judgment is void
PROVISIONAL REMEDY APPLICABLE: because co-owners are indispensable
Appointment of a Receiver. parties.
Partition is an action in personam. Even though the complaint is defective for failure
to make allegations necessary to constitute a
The first issue to be resolved in an action for cause of action but during trial, evidence offered
partition is whether the plaintiff has a right to compel establishes a cause of action intended to be
partition. It is incapable of pecuniary estimation. alleged, the defect is cured and cannot be made
Hence, jurisdiction is with the RTC. a ground for subsequent objection. This is in
accordance with section 5 of Rule 10 (Del Val
Note: A division of property cannot be ordered by vs. Del Val).
the court unless co-ownership is first established
(Co Giok Lun vs. Jose Co, GR No. 184454, Aug. 3, WHEN CAN PARTITION BE MADE
2011).
GR: It can be made anytime. Pertinent provision
ORAL PARTITION was held valid, but cannot of the law says:
however, prejudice third persons (Hernandez vs.
Andal).
Art. 494, NCC. No co-owner shall be obliged to
Section 1. Complaint in action for remain in the co-ownership. Each co-owner
partition of real estate. — A person having may demand at any time the partition of the
the right to compel the partition of real estate thing owned in common, insofar as his share is
may do so as provided in this Rule, setting concerned.
forth in his complaint the nature and extent
of his title and an adequate description of the Nevertheless, an agreement to keep the thing
real estate of which partition is demanded undivided for a certain period of time, not
and joining as defendants all other persons
exceeding ten years, shall be valid. This term
interested in the property. (1a)
may be extended by a new agreement.
CONTENTS OF THE COMPLAINT
A donor or testator may prohibit partition for a
1. Nature and extent of plaintiff’s title; period which shall not exceed twenty years.
2. Adequate description of the real estate of
which partition is demanded;
3. Join as defendants all persons interested in Neither shall there be any partition when it is
the property. prohibited by law.
PARTIES No prescription shall run in favor of a co-owner

All co-owners are indispensable parties. Creditors or or co-heir against his co-owners or co-heirs so
assignees of co-owners may intervene and object to long as he expressly or impliedly recognizes the
a partition effected without their concurrence. But
they cannot impugned partition already executed, co-ownership.

________________________________________________________________________________________________
GR: The right to demand partition does not render judgment against him (Valmonte vs. CA,
PRESCRIBE. 252 SCRA 102).
Exception: If a co-owner asserts adverse title to the Two aspects of partition:

property in which case the period of prescription 1. Existence of co-ownership;
runs from such time of assertion of adverse 2. Accounting (how to actually partition the
title.(OCEAN—Open, Continuous, Exclusive, property).
Adverse, and Notorious possession)
MODE OF APPEAL: Record on Appeal.
Exception to the exception: Title to lands which
are, covered by the Torrens System does not Judgment directing an accounting is appealable
prescribe. regardless of whether the accounting is the
principal relief sought or just a mere incident,
Exception of the exception to the exception: and becomes final and executory after the lapse
claim of title may, however, be barred by the of the reglementary period (Miranda vs. CA, 71
equitable doctrine of laches. That is unreasonable SCRA 295)
delay in the assertion of rights.
Note: The Doctrine of Laches is NOT strictly Section 3. Commissioners to make
followed with regard to blood relatives. Thus, partition when parties fail to agree. —
what may be considered unreasonable time to If the parties are unable to agree upon the
strangers is not necessarily true where the
partition, the court shall appoint not more
parties are related to each other by blood
than three (3) competent and
relationship.
disinterested persons as commissioners to
make the partition, commanding them to
Section 2. Order for partition and set off to the plaintiff and to each party in
partition by agreement thereunder. — If interest such part and proportion of the
after the trial the court finds that the plaintiff property as the court shall direct. (3a)
has the right thereto, it shall order the
partition of the real estate among all the
Section 4. Oath and duties of
parties in interest. Thereupon the parties
commissioners. — Before making such
may, if they are able to agree, make the
partition; the commissioners shall take
partition among themselves by proper
and subscribe an oath that they will
instruments of conveyance, and the court
faithfully perform their duties as
shall confirm the partition so agreed upon by
commissioners, which oath shall be filed in
all the parties, and such partition, together
court with the other proceedings in the
with the order of the court confirming the
case. In making the partition, the
same, shall be recorded in the registry of
commissioners shall view and examine the
deeds of the place in which the property is
real estate, after due notice to the parties
situated. (2a)
to attend at such view and examination,
and shall hear the parties as to their
A final order decreeing partition and preference in the portion of the property
accounting may be appealed by any party to be set apart to them and the
aggrieved thereby. (n) comparative value thereof, and shall set
apart the same to the parties in lots or
Art. 496, NCC. Partition may be made by parcels as will be most advantageous and
agreement between the parties or by judicial equitable, having due regard to the
proceedings. Partition shall be governed by the improvements, situation and quality of the
Rules of Court insofar as they are consistent with different parts thereof. (4a)
this Code.
Section 5. Assignment or sale of real
NATURE OF PARTITION estate by commissioners. — When it is
An action for partition and accounting under Rule 69 made to appear to the commissioners that
is in the nature of an action quasi in rem. Such an the real state, or a portion thereof, cannot
action is essentially for the purpose of affecting the be divided without prejudice to the
defendant’s interest in a specific property and not to interests of the parties, the court may
order it assigned to one of the parties

________________________________________________________________________________________________
willing to take the same, provided he pays to the commissioners and rendered
the other parties such amount as the judgment thereon. (6a)
commissioners deem equitable, unless one of
the interested parties asks that the property Section 7. Action of the court upon
be sold instead of being so assigned, in which commissioners report. — Upon the
case the court shall order the commissioners expiration of the period of ten (10) days
to sell the real estate at public sale under referred to in the preceding section or
such conditions and within such time as the even before the expiration of such period
court may determine. (5a) but after the interested parties have filed
their objections to the report or their
Pertinent provisions of NCC: statement of agreement therewith the
court may, upon hearing, accept the
Art. 495. Notwithstanding the provisions of the report and render judgment in accordance
preceding article, the co-owners cannot demand therewith, or, for cause shown recommit
a physical division of the thing owned in the same to the commissioners for further
common, when to do so would render it report of facts; or set aside the report and
unserviceable for the use for which it is intended. appoint new commissioners; or accept the
report in part and reject it in part; and
But the co-ownership may be terminated in
may make such order and render such
accordance with Article 498. judgment as shall effectuate a fair and
just partition of the real estate, or of its
Art. 498. Whenever the thing is essentially value, if assigned or sold as above
indivisible and the co-owners cannot agree that it provided, between the several owners
be allotted to one of them who shall indemnify thereof. (7)
the others, it shall be sold and its proceeds
distributed. Section 8. Accounting for rent and
profits in action for partition. — In an
Note: The public sale is MANDATORY if one of action for partition in accordance with this
the parties interested asks that the property be Rule, a party shall recover from another
sold instead of being allotted to one of the co- his just share of rents and profits received
owners (Feria, p. 601) by such other party from the real estate in
question, and the judgment shall include
Bar Exam Question 2011 an allowance for such rents and profits.
(16) When may a co-owner NOT demand the (8a)
partition of the thing owned in common?
(A) When the creditor of one of the co-owners Section 9. Power of guardian in such
has attached the property. (B) When the
proceedings. — The guardian or
property is essentially indivisible. (C) When
guardian ad litem of a minor or person
related co-owners agreed to keep the property
judicially declared to be incompetent may,
within the family. (D) When a co-owner uses
with the approval of the court first had, do
the property as his residence.
and perform on behalf of his ward any act,
matter, or thing respecting the partition of
real estate, which the minor or person
Section 6. Report of commissioners;
judicially declared to be incompetent could
proceedings not binding until confirmed.
do in partition proceedings if he were of
— The commissioners shall make a full and age or competent. (9a)
accurate report to the court of all their
proceedings as to the partition, or the
Section 10. Costs and expenses to be
assignment of real estate to one of the
taxed and collected. — The court shall
parties, or the sale of the same. Upon the
equitably tax and apportion between or
filing of such report, the clerk of court shall
among the parties the costs and expenses
serve copies thereof on all the interested
which accrue in the action, including the
parties with notice that they are allowed ten
compensation of the commissioners,
(10) days within which to file objections to
having regard to the interests of the
the findings of the report, if they so desire.
No proceeding had before or conducted by

________________________________________________________________________________________________
parties, and execution may issue therefor as shall retain the rights of mortgage, servitude
in other cases. (10a) or any other real rights belonging to them
before the division was made. Personal rights
Section 11. The judgment and its effect; pertaining to third persons against the co-
copy to be recorded in registry of deeds. ownership shall also remain in force,
— If actual partition of property is made, the notwithstanding the partition.
judgment shall state definitely, by metes and
bounds and adequate description, the
particular portion of the real estate assigned Section 13. Partition of personal
to each party, and the effect of the judgment property. — The provisions of this Rule
shall be to vest in each party to the action in shall apply to partitions of estates
severalty the portion of the real estate composed of personal property, or of
assigned to him. If the whole property is both real and personal property, in so far
assigned to one of the parties upon his as the same may be applicable. (13)
paying to the others the sum or sums
ordered by the court, the judgment shall
state the fact of such payment and of the
assignment of the real estate to the party RULE 70
making the payment, and the effect of the
judgment shall be to vest in the party making Forcible Entry and Unlawful Detainer
the payment the whole of the real estate free
from any interest on the part of the other NOTES: Nature of Proceedings in accion
parties to the action. If the property is sold interdictal.
and the sale confirmed by the court, the
judgment shall state the name of the Ejectment cases are summary proceedings
purchaser or purchasers and a definite intended to provide an expeditious means of
description of the parcels of real estate sold protecting actual possession or right of
to each purchaser, and the effect of the possession of property.
judgment shall be to vest the real estate in
the purchaser or purchasers making the The Rule on Summary Procedure applies only in
payment or payments, free from the claims cases filed before the MTCs.
of any of the parties to the action. A certified When the decision of the MTC is appealed to
the RTC, the applicable Rules are those of the
copy of the judgment shall in either case be
RTC, and not the summary rules (Refugia vs.
recorded in the registry of deeds of the place
CA, 258 SCRA 347).
in which the real estate is situated, and the
expenses of such recording shall be taxed as Ejectment case is a real action, which is not
part of the costs of the action. (11a) extinguished by death of a party ( Cañiza vs.
CA, 268 SCRA 640).
Section 12. Neither paramount rights nor
amicable partition affected by this Rule. Prejudicial Question; Ejectment vs. Specific
— Nothing in this Rule contained shall be Performance (2000)
construed so as to prejudice, defeat, or BB files a complaint for ejectment in the MTCon the
destroy the right or title of any person ground of non-payment of rentals against JJ. After
claiming the real estate involved by title two days, JJ files in the RTC a complaint against BB
under any other person, or by title for specific performance to enforce the option to
paramount to the title of the parties among purchase the parcel of land subject of the ejectment
whom the partition may have been made, nor case. What is the effect of JJ’s action on BB’s
so as to restrict or prevent persons holding complaint? Explain. (5%)
SUGGESTED ANSWER:
real estate jointly or in common from making
There is no effect. The ejectment case involves
an amicable partition thereof by agreement possession de facto only. The action to enforce the
and suitable instruments of conveyance option to purchase will not suspend the action of
without recourse to an action. (12a) ejectment for non-payment of rentals. (Willman Auto
Supply Corp. v. Court of Appeals, 208 SCRA 108 [1992]).
Art. 499, NCC. The partition of a thing owned in
common shall not prejudice third persons, who

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Section 1. Who may institute ACCION ACCION ACCION

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

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

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expected to enforce his right to its possession forcible entry to enable first level courts
against the illegal occupant and sue the latter before to acquire jurisdiction over them: first,
learning of the clandestine intrusion. And to deprive that the plaintiff had prior physical
the lawful possessor of the benefit of the summary possession of the property; and, second,
action under Rule 70 simply because the stealthy that the defendant deprived him of such
intruder manages to conceal the trespass for more possession by means of force,
than one year would be to reward the clandestine intimidation, threats, strategy, or
usurpation even if it is unlawful (Vda. De Prieto vs. stealth. However, before instituting the
Reyes, 121 Phil. 1218). said action, I will first endeavour to
amicably settle the controversy with the
The one year period should be counted from the informal settlers before the appropriate
date of the demand to vacate upon learning of the Lupon or Barangay Chairman. If there is
entry by stealth (Feria, p. 619). no agreement reached after mediation
and conciliation under the Katarungang
Forcible Entry; Remedies (2013) No.V. The Pambarangay Law, I will secure a
spouses Juan reside in Quezon City. With their certificate to file action and file the
lottery winnings, they purchased a parcel of complaint for ejectment before the MTC
land in Tagaytay City for P100,000.00. In a of Tagaytay City where the property is
recent trip to their Tagaytay property, they located since ejectment suit is a real
were surprised to see hastily assembled action regardless of the value of the
shelters of light materials occupied by several property to be recovered or claim for
families of informal settlers who were not there unpaid rentals (BP 129 and RULE 4,
when they last visited the property three (3) Section 1 of the Revised Rules on Civil
months ago. To rid the spouses’ Tagaytay Procedure). In the aforementioned
property of these informal settlers, briefly complaint, I will allege that Spouses
discuss the legal remedy you, as their counsel, Juan had prior physical possession and
would use; the steps you would take; the court that the dispossession was due to force,
where you would file your remedy if the need intimidation and stealth. The complaint
arises; and the reason/s for your actions. (7%) will likewise show that the action was
SUGGESTED ANSWER: commenced within a period of one (10
As counsel for spouses Juan, I will file a year from unlawful deprivation of
special civil action for Forcible Entry. The possession, and that the Spouses Juan is
Rules of Court provide that a person entitled to restitution of possession
deprived of the possession of any land or together with damage costs.
building by force, intimidation, threat,
strategy, or stealth may at anytime within 1
year after such withholding of possession B. UNLAWFUL DETAINER
bring an action in the proper Municipal
Trial Court where the property is located. a. From the date of the last demand to vacate
This action which is summary in nature in case of non-payment of rent or non-
seeks to recover the possession of the compliance with the conditions of the lease.
property from the defendant which was Exception: when the subsequent demands
illegally withheld by the latter (Section 1, were merely in the nature of reminders of
Rule 70, Rules of Court). An ejectment case the original demand, in which case the one
is designed to restore , through summary year period is counted from the first demand
proceedings, the physical possession of any (Desbarats vs. Laureano, L- 21875, Sept.
land or building to one who has been 27, 1966).
illegally deprived of such possession,
without prejudice to the settlement of b. From the date of the notice to quit, in case of
parties‟ opposing claims of juridical a tacit renewal of the lease (tacita
possession in an appropriate proceedings recondussion), as when with the
(Heirs of Agapatio T. Olarte and Angela A. acquiescence of the lessor, the lessee
Olarte et. al. vs. Office of the President of continues enjoying the thing leased for
the Philippines et al., G.R. No. 177995, fifteen days, as provided in art. 1670, NCC.
June 15, 2011, Villarama, Jr., J.).
In Abad vs. Farrales, G.R. No. 178635, April c. From the date of the revocation of the
11, 2011, the Supreme Court held that two permit, in case of occupancy on mere
allegations are indispensable in actions for tolerance or under temporary permit.

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against Marcelino pleading two causes of

While it is true that the only issue in forcible entry or action. The first was a demand for the
unlawful detainer is the physical possession (de recovery of physical possession of a parcel
facto possession), not possession de jure, yet the of land situated in Pasay City with an
court may go beyond that if only to prove the very assessed value of 40,000; the second was a
nature of possession. The court may receive claim for damages of 500,000 for
evidence upon the question of title for the purpose Marcelino’s unlawful retention of the
of determining the character and extent of property. Marcelino filed a motion to
possession and damages for the detention (Consing dismiss on the ground that the total
vs. Jamandre, 64 SCRA 1). amount involved, which is 540,000, is
beyond the jurisdiction of the MeTC. Is
Bar Exam Question 2011 Marcelino correct? SUGGESTED ANSWER:
(62) Which of the following renders a complaint No, Metropolitan or Municipal trial
for unlawful detainer deficient? (A) The Courts have exclusive jurisdiction over a
defendant claims that he owns the subject complaint for forcible entry and unlawful
property. (B) The plaintiff has tolerated detainer regardless of the amount of the
defendant’s possession for 2 years before claim for damages (Sec. 33 [2], B.P. 129).
demanding that he vacate it. (C) The Also, Sec. 3, Rule 70 gives jurisdiction to
plaintiff‟s demand is for the lessee to pay the said courts irrespective of the
back rentals or vacate. (D) The lessor amount of damages. This is the same
institutes the action against a lessee who has provision in the Revised Rules of
not paid the stipulated rents. Summary Procedure that governs all
ejectment cases (Sec. 1[A][1], Revised
Rule on Summary Procedure). The Rule,
Jurisdiction; Unlawful Detainer (2010) however, refers to the recovery of a
No.III. Anabel filed a complaint against B for reasonable amount of damages. In this
unlawful detainer before the Municipal Trial case, the property is worth only
Court (MTC) of Candaba, Pampanga. After the P40,000, but the claim for damages is
issues had been joined, the MTC dismissed the P500,000.
complaint for lack of jurisdiction after noting
that the action was one for accion publiciana. Unlawful; Detainer; Prior Possession
Anabel appealed the dismissal to the RTC (2008) No.XVII. Ben sold a parcel of land to
which affirmed it and accordingly dismissed Del with right to repurchase within one(1)
her appeal. She elevates the case to the Court year. Ben remained in possession of the
of Appeals, which remands the case to the property. When Ben failed to repurchase
RTC. Is the appellate court correct? Explain. the same, title was consolidated in favor of
(3%) SUGGESTED ANSWER: Yes, the Court Del. Despite demand, Ben refused to vacate
of Appeals is correct in remanding the case the land, constraining Del to file a
to the RTC for the latter to try the same on complaint for unlawful detainer. In his
the merits. The RTC, having jurisdiction defense, Ben averred that the case should
over the subject matter of the case appealed be dismissed because Del had never been
from MTC should try the case on the merits in possession of the property. Is Ben
as if the case was originally filed with it, correct? SUGGESTED ANSWER: No, for
and not just to affirm the dismissal of the unlawful detainer, the defendant need
case. R.A. No. 7691, however, vested not have been in prior possession of the
jurisdiction over specified accion publiciana property. This is upon the theory that
with courts of the first level (Metropolitan the vendee steps into the shoes of the
Trial Courts, Municipal Trial Courts, and vendor and succeeds to his rights and
Municipal Circuit Trial Courts) in cases interests. In contemplation of law, the
where the assessed value of the real vendee‟s possession is that of the
property involved does not exceed vendor‟s (Maninang vs. C.A., G.R. No.
P20,000.00 outside Metro Manila, or in 121719, 16 September 1999; Dy Sun vs.
Metro Manila, where such value does not Brillantes, 93 Phil. 175 [1953]); (Pharma
exceed P50,000.00. Industries, Inc., vs. Pajarillaga, G.R. No.
L-53788, 17 October 1980).
Jurisdiction; Unlawful Detainer (2008)
No.IV. Filomeno brought an action in the Bar Exam Question 2011
Metropolitan Trial Court (METC) of Pasay City

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(64) In which of the following cases is the However, inasmuch as all actions of forcible entry
plaintiff the real party in interest? (A) A and unlawful detainer are subject to summary
creditor of one of the co-owners of a parcel of procedure and since the counterclaim is only
land, suing for partition (B) An agent acting in permissive, it cannot be entertained by the Municipal
his own name suing for the benefit of a Court. (Revised Rule on Summary Procedure.)
disclosed principal (C) Assignee of the lessor
in an action for unlawful detainer (D) An
administrator suing for damages arising from Section 2. Lessor to proceed against
the death of the decedent lessee only after demand. — Unless
otherwise stipulated, such action by the
lessor shall be commenced only after
FORCIBLE ENTRY UNLAWFUL demand to pay or comply with the
(detentacion) DETAINER
conditions of the lease and to vacate is
(desahucio)
made upon the lessee, or by serving
Possession of the Possession is
written notice of such demand upon the
defendant is unlawful inceptively lawful but it
from the very beginning becomes illegal by person found on the premises if no person
as he acquires reason of the be found thereon, and the lessee fails to
possession by force, termination of the right comply therewith after fifteen (15) days in
intimidation, threat, to the possession of the the case of land or five (5) days in the
strategy or stealth property under the case of buildings. (2a)
contract with the
plaintiff Note: DEMAND contemplated in this section is
Demand is jurisdictional jurisdictional. It is a two-fold demand:
No previous demand for if the ground is non-
the defendant to vacate payment of rentals or 1. To pay and vacate; or
is necessary failure to comply with 2. To comply with the conditions of the
the provisions of the lease and vacate.
lease contract
The plaintiff must prove A demand is a pre-requisite to an action for
that he was in prior The plaintiff need not unlawful detainer when the action is for failure
possession of the have been in prior to pay rent due or to comply with the
premises until he was physical possession conditions of his lease, and not where the
deprived thereof by the termination of the lease is because of expiration
defendant of its term (Co Tiamco vs. Diaz, 75 Phil 62).
The one year period is Period is counted from
generally counted from last demand or last Acceptance of rentals in arrears does not
the unlawful entry to the letter of demand constitute a waiver of default in payment of
land (except by stealth) rentals (Clutario vs. CA, 216 SCRA 341).
Special Civil Action; Ejectment (1998)

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

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1. Where the purpose of the action is to Section 5. Action on complaint. — The

terminate the lease by reason of the court may, from an examination of the
expiration of the lease; allegations in the complaint and such
2. Where the purpose of the suit is not evidence as may be attached thereto,
ejectment but for the enforcement of the dismiss the case outright on any of the
terms of the contract; grounds for the dismissal of a civil action
3. When the defendant is not a tenant but a which are apparent therein. If no ground
mere intruder.
for dismissal is found, it shall forthwith
issue summons. (n)
Section 6. Answers. — Within ten (10)

Special Civil Action; Ejectment (1997) days from service of summons, the
On 10 January 1990, X leased the warehouse of A under defendant shall file his answer to the
a lease contract with a period of five years. On 08 June
complaint and serve a copy thereof on
1996, A filed an unlawful detainer case against X without
the plaintiff. Affirmative and negative
a prior demand for X to vacate the premises.
defenses not pleaded therein shall be
(a) Can X contest his ejectment on the ground that there
deemed waived, except lack of jurisdiction
was no prior demand for him to vacate the premises?
over the subject matter. Cross-claims and
(b) In case the Municipal Trial Court renders judgment
in favor of A, is the judgment immediately executory? compulsory counterclaims not asserted in
SUGGESTED ANSWER: the answer shall be considered barred.
(a) Yes. X can contest his ejectment on the ground that The answer to counterclaims or cross-
there was no prior demand to vacate the premises. (Sec. claims shall be served and filed within ten
2 of Rule 70; Casilan vs.Tomassi l0 SCRA 261; Iesaca (10) days from service of the answer in
vs.Cuevas. 125 SCRA 335). which they are pleaded. (5 RSP)
(b) Yes, because the judgment of the Municipal Trial
Court against the defendant X is immediately executory Section 7. Effect of failure to answer.
upon motion unless an appeal has been perfected, a — Should the defendant fail to answer the
supersede as bond has been filed and the periodic complaint within the period above
deposits of current rentals. If any, as determined by the provided, the court, motu proprio or on
judgment will be made with the appellate court. (Sec. 8 of motion of the plaintiff, shall render
former Rule 70; Sec. 19 of new Rule 70).
ALTERNATIVE ANSWER: judgment as may be warranted by the
(a) Yes, X can contest his ejectment on the ground that facts alleged in the complaint and limited
since he continued enjoying the thing leased for fifteen to what is prayed for therein. The court
days after the termination of the lease on January 9, 1995 may in its discretion reduce the amount of
with the acquiescence of the lessor without a notice to damages and attorney's fees claimed for
the contrary, there was an IMPLIED NEW LEASE. being excessive or otherwise
(Art. 1670. Civil Code). unconscionable, without prejudice to the
applicability of section 3 (c), Rule 9 if
there are two or more defendants.
Section 3. Summary procedure. — Except (6, RSP)
in cases covered by the agricultural tenancy
laws or when the law otherwise expressly Section 8. Preliminary conference;
provides, all actions for forcible entry and appearance of parties. — Not later than
unlawful detainer, irrespective of the amount thirty (30) days after the last answer is
of damages or unpaid rentals sought to be filed, a preliminary conference shall be
recovered, shall be governed by the held. The provisions of Rule 18 on pre-trial
summary procedure hereunder provided. shall be applicable to the preliminary
(n) conference unless inconsistent with the
provisions of this Rule.
Section 4. Pleadings allowed. — The only
pleadings allowed to be filed are the The failure of the plaintiff to appear in the
complaint, compulsory counterclaim and preliminary conference shall be cause for
cross-claim pleaded in the answer, and the dismissal of his complaint. The
the answers thereto. All pleadings shall be defendant who appears in the absence of
verified. (3a, RSP) the plaintiff shall be entitled to judgment

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on his counterclaim in accordance with the stating the matters taken up therein,
next preceding section. All cross-claims shall including but not limited to:
be dismissed. (7, RSP)
1. Whether the parties have arrived at an
If a sole defendant shall fail to appear, the amicable settlement, and if so, the terms
plaintiff shall likewise be entitled to judgment thereof;
in accordance with the next preceding
section. This procedure shall not apply where 2. The stipulations or admissions
one of two or more defendants sued under a entered into by the parties;
common cause of action defense shall appear
at the preliminary conference. 3. Whether, on the basis of the pleadings
and the stipulations and admission made
No postponement of the preliminary by the parties, judgment may be rendered
conference shall be granted except for highly without the need of further proceedings,
meritorious grounds and without prejudice in which event the judgment shall be
to such sanctions as the court in the exercise rendered within thirty (30) days from
of sound discretion may impose on the issuance of the order;
movant. (n)
4. A clear specification of material facts
Unlawful Detainer; Preliminary Conference which remain controverted; and
(2007)
No. VIII.(a) X files an unlawful detainer case
5. Such other matters intended to
against Y before the appropriate Metropolitan
expedite the disposition of the case. (8,
Trial Court. In his answer, Y avers as a special
RSP)
and affirmative defense that he is a tenant of
X’s deceased father in whose name the
property remains registered. What should the Section 10. Submission of affidavits
court do? Explain briefly. (5%) and position papers. — Within ten (10)
SUGGESTED ANSWER: The court should days from receipt of the order mentioned
hold a preliminary conference not later in the next preceding section, the parties
than thirty (30) days after the defendant’s shall submit the affidavits of their
Answer was filed, since the case is governed witnesses and other evidence on the
by summary procedure under Rule 70, factual issues defined in the order,
Rules of Court, where a Reply is not together with their position papers setting
allowed. The court should receive evidence forth the law and the facts relied upon by
to determine the allegations of tenancy. If them. (9, RSP)
tenancy had in fact been shown to be the
real issue, the court should dismiss the case Section 11. Period for rendition of
for lack of jurisdiction. If it would appear judgment. — Within thirty (30) days
that Y‟s occupancy of the subject property after receipt of the affidavits and position
was one of agricultural tenancy, which is papers, or the expiration of the period for
governed by agrarian laws, the court should
filing the same, the court shall render
dismiss the case because it has no
judgment.
jurisdiction over agricultural tenancy cases.
Defendant’s allegation that he is a “tenant”
of plaintiff’s deceased father suggests that However, should the court find it
the case is one of landlord-tenant relation necessary to clarify certain material facts,
and therefore, not within the jurisdiction of during the said period, issue an order
ordinary courts. specifying the matters to be clarified, and
require the parties to submit affidavits or
other evidence on the said matters within
ten (10) days from receipt of said order.
Judgment shall be rendered within fifteen
Section 9. Record of preliminary
(15) days after the receipt of the last
conference. — Within five (5) days after
affidavit or the expiration of the period for
the termination of the preliminary
filing the same.
conference, the court shall issue an order

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The court shall not resort to the foregoing Review thereof could be sought by the petitioner
procedure just to gain time for the rendition through her motion for reconsideration and this
of the judgment. (n) motion, which is not pro forma, had the effect of
suspending the running of the period to appeal
(Joven vs. CA, 212 SCRA 700).
Section 12. Referral for conciliation. —
Cases requiring referral for conciliation,
where there is no showing of compliance with Section 14. Affidavits. — The affidavits
such requirement, shall be dismissed required to be submitted under this Rule
without prejudice, and may be revived only shall state only facts of direct personal
after that requirement shall have been knowledge of the affiants which are
complied with. (18a, RSP) admissible in evidence, and shall show
their competence to testify to the matters
stated therein.
Section 13. Prohibited pleadings and
motions. — The following petitions, motions,
or pleadings shall not be allowed: A violation of this requirement may
subject the party or the counsel who
submits the same to disciplinary action,
1. Motion to dismiss the complaint
and shall be cause to expunge the
except on the ground of lack of
inadmissible affidavit or portion thereof
jurisdiction over the subject matter, or
from the record. (20, RSP)
failure to comply with section 12;
Section 15. Preliminary injunction. —

2. Motion for a bill of particulars;
The court may grant preliminary
injunction, in accordance with the
3. Motion for new trial, or for
provisions of Rule 58 hereof, to prevent
reconsideration of a judgment, or for
the defendant from committing further
reopening of trial;
acts of dispossession against the plaintiff.
4. Petition for relief from judgment;

A possessor deprived of his possession
through forcible means may, within five
5. Motion for extension of time to file (5) days from the filing of the complaint,
pleadings, affidavits or any other paper; present a motion in the action for forcible
entry or unlawful detainer for the issuance
6. Memoranda; of a writ of preliminary mandatory
injunction to restore him in his
7. Petition for certiorari, mandamus, possession. The court shall decide the
or prohibition against any interlocutory motion within thirty (30) days from the
order issued by the court; filing thereof. (3a)
8. Motion to declare the defendant in Section 16. Resolving defense of

default; ownership. — When the defendant raises
the defense of ownership in his pleadings
9. Dilatory motions for postponement; and the question of possession cannot be
resolved without deciding the issue of
10. Reply; ownership, the issue of ownership shall be
resolved only to determine the issue of
possession. (4a)
11. Third-party complaints;
Provisional determination only.
12. Interventions. (19a, RSP)
NOTE: The existence of a formal contract is not
NOTE: The motion prohibited by section 13, par. (3) necessary in unlawful detainer. Even if there is
is that which seeks reconsideration of the judgment no formal contract between the parties, there
rendered by the courts after trial on the merits of the can still be unlawful detainer implied contracts
case. The decision dismissing the case for lack of are covered by ejectment proceedings.
jurisdiction was not an adjudication on the merits. Possession by mere tolerance creates an
________________________________________________________________________________________________
implied promise to vacate the premises upon 3. Liquidated damages since they are already
demand by the owner (Peran vs. CFI of Sorsogon). part of the contract (Azcuna vs. vs. CA, 225
SCRA 215).
QUESTIONS TO BE RESOLVED IN AN ACTION Note: However, other forms of damages
FOR FORCIBLE ENTRY: (like moral damages) were at times been
1. Who had actual possession of the property? awarded by the Court (Review Lecture).
2. Was the possessor ousted therefrom within one AGAINST WHOM JUDGMENT IS BINDING
year from the filing of the complaint by force, The judgment is binding against the parties and
intimidation, threat, strategy or stealth? all persons claiming under them:
1. Trespassers, squatters or agents of the
3. Does plaintiff asks for the restoration of his defendant fraudulently occupying the
possession?(Dizon vs. Concina 30 SCRA 897). property to frustrate judgment;
2. Guests or other occupants of the premises
with the permission of the defendant;
Section 17. Judgment. — If after trial court 3. Transferees pendente lite;
finds that the allegations of the complaint are 4. Sublessees;
true, it shall render judgment in favor of the 5. Members of the family, relatives and other
privies of the defendant (Herrera, pp. 592-
plaintiff for the restitution of the premises,
593) (Sunflower vs. CA, GR No. 136274,
the sum justly due as arrears of rent or as
Sep. 3, 2003).
reasonable compensation for the use and
occupation of the premises, attorney's fees
and costs. If a counterclaim is established, Section 18. Judgment conclusive only
the court shall render judgment for the sum on possession; not conclusive in
found in arrears from either party and award actions involving title or ownership. —
costs as justice requires. (6a) The judgment rendered in an action for
forcible entry or detainer shall be
conclusive with respect to the possession
Q: Are 3rd persons bound by the judgment in an
only and shall in no wise bind the title or
ejectment case?
affect the ownership of the land or
A: As GR: YES, provided his possession can be building. Such judgment shall not bar an
traced from the title of the defendant (Sub-lessee). action between the same parties
respecting title to the land or building.
Exceptions:
1. If the property is acquired before the action. The judgment or final order shall be
2. If the property is covered by a Torrens title appealable to the appropriate Regional
and the certificate does not state that the Trial Court which shall decide the same on
property is subject to a pending action and the basis of the entire record of the
he bought the same in good faith. proceedings had in the court of origin and
such memoranda and/or briefs as may be
The judgment binds and may be executed against submitted by the parties or required by
sub lessees who have not been impleaded since
the Regional Trial Court. (7a)
their right to stay is only subsidiary to that of the
lessees. Once the right of the lather disappears,
they have nothing to stand on, unless they claim an Section 19. Immediate execution of
understanding or relation with the owner. judgment; how to stay same. — If
judgment is rendered against the
Judgment for ejectment cannot be enforced against defendant, execution shall issue
co-owner who was not made party to the action immediately upon motion unless an
(Cruzcosa vs. Concepcion, 101 Phil. 147). appeal has been perfected and the
defendant to stay execution files a
The court can award damages in ejectment sufficient supersedeas bond, approved
cases provided the damages refer only to: by the Municipal Trial Court and executed
1. Fair and reasonable value of the use and in favor of the plaintiff to pay the rents,
enjoyment of the property or the rent arising damages, and costs accruing down to the
from the loss of possession; time of the judgment appealed from, and
2. Rent in arrears; unless, during the pendency of the appeal,

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he deposits with the appellate court the 2. He files supersedeas bond;

amount of rent due from time to time under 3. He deposits with the appellate court the
the contract, if any, as determined by the amount of rent due from time to time/the
judgment of the Municipal Trial Court. In the reasonable value of use or occupation,
absence of a contract, he shall deposit with on or before the 10th day of each
the Regional Trial Court the reasonable value succeeding month or period.
of the use and occupation of the premises for
SUPERSEDEAS BOND NOT REQUIRED
the preceding month or period at the rate
1. Where the monetary award in the
determined by the judgment of the lower
judgment of the inferior court has been
court on or before the tenth day of each deposited with the court;
succeeding month or period. The supersedeas 2. Where the judgment of the lower court
bond shall be transmitted by the Municipal did not make findings with respect to
Trial Court, with the papers, to the clerk of any amount in arrears, damages or
the Regional Trial Court to which the action is costs against the defendant.
appealed.
Ejectment is not suspended by other actions
All amounts so paid to the appellate court (Wilson Auto Supply Corp. vs. CA, 208 SCRA
shall be deposited with said court or 108) such as:
authorized government depositary bank, and 1. Injunction;
shall be held there until the final disposition 2. Consignation of rentals;
of the appeal, unless the court, by agreement 3. Accion Publiciana;
of the interested parties, or in the absence of 4. Writ of possession case;
5. Quieting of title;
reasonable grounds of opposition to a motion
6. Specific performance with damages;
to withdraw, or for justifiable reasons, shall
7. Reformation of instrument;
decree otherwise. Should the defendant fail 8. Reconveyance of property;
to make the payments above prescribed from 9. Annulment of sale, or title, or document,
time to time during the pendency of the annulment of deed of sale with
appeal, the appellate court, upon motion of assumption of mortgage and/or to
the plaintiff, and upon proof of such failure, declare the same an equitable
shall order the execution of the judgment mortgage, annulment of sale with
appealed from with respect to the restoration damages (Feria p. 615).
of possession, but such execution shall not be
a bar to the appeal taking its course until the Section 20. Preliminary mandatory
final disposition thereof on the merits. injunction in case of appeal. — Upon
motion of the plaintiff, within ten (10)
After the case is decided by the Regional Trial days from the perfection of the appeal to
Court, any money paid to the court by the the Regional Trial Court, the latter may
defendant for purposes of the stay of issue a writ of preliminary mandatory
execution shall be disposed of in accordance injunction to restore the plaintiff in
with the provisions of the judgment of the possession if the court is satisfied that the
Regional Trial Court. In any case wherein it defendant's appeal is frivolous or
appears that the defendant has been dilatory or that the appeal of the plaintiff
deprived of the lawful possession of land or is prima facie meritorious. (9a)
building pending the appeal by virtue of the
execution of the judgment of the Municipal Section 21. Immediate execution on
Trial Court, damages for such deprivation of appeal to Court of Appeals or
possession and restoration of possession and Supreme Court. — The judgment of the
restoration of possession may be allowed the Regional Trial Court against the defendant
defendant in the judgment of the Regional shall be immediately executory, without
Trial Court disposing of the appeal. (8a) prejudice to a further appeal that may be
taken therefrom. (10a)
GR: Judgment of the MTC against the defendant is
immediately executory. NOTE:
It is mandatory for the RTC to order execution
Exception: when the following concur: of the appealed judgment upon failure of the
1. Defendant perfects appeal;

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defendant to make monthly deposit of current subscribe an affidavit or deposition when

rentals (Denesa vs.[ Macaralag]?, 81 SCRA 543). lawfully required to do so, may be
summarily adjudged in contempt by such
Prior notice of judgment is required for immediate court and punished by a fine not
execution (Dy vs. CA, 195 SCRA 585). exceeding two thousand pesos or
imprisonment not exceeding ten (10)
days, or both, if it be a Regional Trial
Court or a court of equivalent or higher
rank, or by a fine not exceeding two
hundred pesos or imprisonment not
exceeding one (1) day, or both, if it be a
lower court. (1a)
RULE 71
GROUNDS FOR DIRECT CONTEMPT
Contempt
1. MISBEHAVIOR in the presence of or so
near a court as to obstruct or interrupt
CONTEMPT the proceedings;
It is a defiance of the authority, justice or dignity of 2. DISRESPECT towards the court;
the court; such conduct as tends to bring the 3. OFFENSIVE personalities toward
authority and administration of the law into others; and
disrespect or to interfere with or prejudice parties 4. REFUSAL to be sworn or to answer as
litigant or their witnesses during litigation (Halili vs. witness or to subscribe an affidavit or
CIR, 136 SCRA 112). deposition.
PURPOSE AND NATURE OF CONTEMPT
POWER
The power to punish for contempt is inherent in all
courts; its existence is essential to the preservation Bar Exam Question 2012
of the order in judicial proceedings and to the 45. A person may be charged with direct
enforcement of judgments, orders, and mandates of contempt of court when:
the courts, and consequently, to due administration a. A person re-enters a property he was
of justice. previously ejected from.
b. A person refuses to attend a hearing
The exercise of the power to punish for contempt after being summoned thereto.
has dual aspect. Primarily, the proper punishment c. He attempts to rescue a property in
of the guilty party for his disrespect to the courts; custodia legis.
Secondarily, his compulsory performance of some d. She writes and submits a pleading
act or duty required of him by the court and which containing derogatory, offensive or
he refuses to perform. malicious statements.
SUGGESTED ANSWER:
Judges have, time and again, been enjoined to (d), A person guilty of misbehavior in the
exercise their contempt power judiciously, sparingly, presence of or so near a court as to
with utmost restraint and with the end view of obstruct or interrupt the proceedings
utilizing the same for the correction and before the same, including disrespect
preservation of the dignity of the court and not for toward the court, offensive personalities
retaliation or vindication (cited in Atty. Garayblas vs. toward others, or refusal to be sworn or
Hon. Ong, GR No. 174507-30, Aug. 3, 2011). to answer as a witness, or to subscribe
an affidavit or deposition when lawfully
required to do so, may be summarily
Section 1. Direct contempt punished adjudged in contempt by such court.
summarily. — A person guilty of (Rule 71, Sec. 1, Rules of Court). In
misbehavior in the presence of or so near a Surigao Mineral Reservation Board vs.
court as to obstruct or interrupt the Cloribel, 31 SCRA 1, the Supreme Court
proceedings before the same, including held that disrespectful, abusive and
disrespect toward the court, offensive abrasive language, offensive
personalities toward others, or refusal to be personalities, unfounded accusations or
sworn or to answer as a witness, or to intemperate words tending to obstruct,

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embarrass or influence the court in (d) Any improper conduct tending,

administering justice or to bring it into directly or indirectly, to impede,
disrepute have no place in a pleading. Their obstruct, or degrade the
employment serves no useful purpose and administration of justice;
on the contrary constitutes direct contempt
or contempt in facie curiae. (e) Assuming to be an attorney or
an officer of a court, and acting as
such without authority;
Section 2. Remedy therefrom. — The (f) Failure to obey a subpoena duly

person adjudged in direct contempt by any served;
court may not appeal therefrom, but may
avail himself of the remedies of certiorari (g) The rescue, or attempted
or prohibition. The execution of the rescue, of a person or property in the
judgment shall be suspended pending custody of an officer by virtue of an
resolution of such petition, provided such order or process of a court held by
person files a bond fixed by the court which him.
rendered the judgment and conditioned that
he will abide by and perform the judgment
But nothing in this section shall be so
should the petition be decided against him.
construed as to prevent the court from
(2a)
issuing process to bring the respondent
into court, or from holding him in custody
Section 3. Indirect contempt to be pending such proceedings. (3a)
punished after charge and hearing. —
After a charge in writing has been filed, and
Contempt; Death of a Party; Effect (1998)
an opportunity given to the respondent to A filed a complaint for the recovery of ownership of
comment thereon within such period as may land against B who was represented by her counsel
be fixed by the court and to be heard by X.
himself or counsel, a person guilty of any of In the course of the trial, B died. However, X failed
the following acts may be punished for to
indirect contempt; notify the court of B's death. The court proceeded to
hear the case and rendered judgment against B. After
(a) Misbehavior of an officer of a the Judgment became final, a writ of execution was
court in the performance of his official issued against C, who being B's sole heir, acquired
duties or in his official transactions; the property. Did the failure of counsel X to inform
the court of B's death
(b) Disobedience of or resistance to a constitute direct contempt? (2%)
SUGGESTED ANSWER:
lawful writ, process, order, or judgment of
No. It is not direct contempt under Sec. 1 of Rule
a court, including the act of a person who,
71,
after being dispossessed or ejected from
but it is indirect contempt within the purview of Sec
any real property by the judgment or 3
process of any court of competent of Rule 71. The lawyer can also be the subject of
jurisdiction, enters or attempts or induces disciplinary action. (Sec. 16, Rule 3)
another to enter into or upon such real
property, for the purpose of executing Note: In all cases of disobedience of or
acts of ownership or possession, or in any resistance of lawful writ, process, order or
manner disturbs the possession given to judgments, the following must be present:
the person adjudged to be entitled 1. Order must be specific;
thereto; 2. Order must be lawful; and
3. Disobedience must be willful.
(c) Any abuse of or any unlawful
interference with the processes or If the court has jurisdiction when it rendered the
proceedings of a court not constituting judgment, the same cannot be disobeyed
direct contempt under section 1 of this however erroneous it may be.
Rule;

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CAREFUL: Remember that the refusal of the with the requirements for filing
defendant in an ejectment case to obey an “order to initiatory pleadings for civil actions in
vacate” is NOT punishable as contempt of court. the court concerned (Rule 71, Sec.4,
The reason is that the order is directed to the sheriff. Rules of Court).
However, if defendant or any other person would
commit the acts mentioned in par. b, he may be
held liable for indirect contempt.
TWO MODES OF COMMENCING A
Section 4. How proceedings commenced. PROCEEDING FOR INDIRECT CONTEMPT:
— Proceedings for indirect contempt may be 1. Moto proprio by the court by an order or
initiated motu proprio by the court against other formal charge requiring the
which the contempt was committed by an respondent to show cause why he
order or any other formal charge requiring should not be punished for contempt;
the respondent to show cause why he should and
not be punished for contempt. 2. A petition charging indirect contempt
with supporting particulars and certified
In all other cases, charges for indirect true copies of necessary documents and
contempt shall be commenced by a verified papers.
petition with supporting particulars and
The first procedure applies only when the
certified true copies of documents or papers
indirect contempt is committed against a court or
involved therein, and upon full compliance
judge possessed and clothed with contempt
with the requirements for filing initiatory powers.
pleadings for civil actions in the court
concerned. If the contempt charges arose out The second mode applies if the contemptuous
of or are related to a principal action pending act was committed not against a court or a
in the court, the petition for contempt shall judicial officer with authority to punish
allege that fact but said petition shall be contemptuous acts (Nazareno vs. Barnes,136
docketed, heard and decided separately, SCRA 57).
unless the court in its discretion orders the
consolidation of the contempt charge and the Without charge and hearing, court acquires no
principal action for joint hearing and decision. jurisdiction to punish for indirect contempt
(n) (Esparagoza vs. Tan, 94 Phil. 749).
Bar Exam Question 2012 Formal information by the prosecuting officer is

23. A charge for indirect contempt committed not necessary to begin contempt proceedings.
against an RTC judge may be commenced All that Rule 71 requires is that there be charge
in writing duly filed in court and an opportunity
through:
given to the person charged to be heard by
a. A written charge requiring respondent to
himself or counsel.
show cause filed with the Court of Appeals.
b. An order of the RTC Judge requiring
respondent to show cause in the same RTC. Section 5. Where charge to be filed. —
c. Verified petition filed with another branch of Where the charge for indirect contempt
the RTC. has been committed against a Regional
d. Verified petition filed with a court of higher Trial Court or a court of equivalent or
or equal rank with the RTC. higher rank, or against an officer
SUGGESTED ANSWER: appointed by it, the charge may be filed
(b), The proceedings for indirect contempt with such court. Where such contempt has
may be initiated motu propio by the court been committed against a lower court, the
against which the contempt was committed charge may be filed with the Regional Trial
by an order or any other formal charge Court of the place in which the lower court
requiring the respondent to show cause why is sitting; but the proceedings may also be
he should not be punished for contempt. It instituted in such lower court subject to
may also be commenced by a verified appeal to the Regional Trial Court of such
petition with supporting particulars and place in the same manner as provided in
certified true copies of documents or papers section 11 of this Rule. (4a; Bar Matter
involved therein, and upon full compliance No. 803, 21 July 1998)

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Section 6. Hearing; release on bail. — If costs of the proceedings, and such

the hearing is not ordered to be had recovery shall be for the benefit of the
forthwith, the respondent may be released party injured. If there is no aggrieved
from custody upon filing a bond, in an party, the bond shall be liable and
amount fixed by the court, for his appearance disposed of as in criminal cases. (8a)
at the hearing of the charge. On the day set
therefor, the court shall proceed to Section 10. Court may release
investigate the charge and consider such respondent. — The court which issued
comment, testimony or defense as the the order imprisoning a person for
respondent may make or offer. (5a) contempt may discharge him from
imprisonment when it appears that public
Section 7. Punishment for indirect interest will not be prejudiced by his
contempt. — If the respondent is adjudged release. (9a)
guilty of indirect contempt committed against
a Regional Trial Court or a court of equivalent Section 11. Review of judgment or
or higher rank, he may be punished by a fine final order; bond for stay. — The
not exceeding thirty thousand pesos or judgment or final order of a court in a
imprisonment not exceeding six (6) months, case of indirect contempt may be
or both. If he is adjudged guilty of contempt appealed to the proper court as in criminal
committed against a lower court, he may be cases. But execution of the judgment or
punished by a fine not exceeding five final order shall not be suspended until a
thousand pesos or imprisonment not bond is filed by the person adjudged in
exceeding one (1) month, or both. If the contempt, in an amount fixed by the court
contempt consists in the violation of a writ of from which the appeal is taken,
injunction, temporary restraining order or conditioned that if the appeal be decided
status quo order, he may also be ordered to against him he will abide by and perform
make complete restitution to the party the judgment or final order. (10a)
injured by such violation of the property
involved or such amount as may be alleged Note: The mode of appeal here is by notice of
and proved. appeal. However, the judgment is not
stayed unless the person adjudged for
The writ of execution, as in ordinary civil contempt files a bond.
actions, shall issue for the enforcement of a
judgment imposing a fine unless the court Section 12. Contempt against quasi-
otherwise provides. (6a) judicial entities. — Unless otherwise
provided by law, this Rule shall apply to
Section 8. Imprisonment until order contempt committed against persons,
obeyed. — When the contempt consists in entities, bodies or agencies exercising
the refusal or omission to do an act which is quasi-judicial functions, or shall have
yet in the power of the respondent to suppletory effect to such rules as they
perform, he may be imprisoned by order of may have adopted pursuant to authority
the court concerned until he performs it. (7a) granted to them by law to punish for
contempt. The Regional Trial Court of the
Section 9. Proceeding when party place wherein the contempt has been
released on bail fails to answer. — When committed shall have jurisdiction over
a respondent released on bail fails to appear such charges as may be filed therefor. (n)
on the day fixed for the hearing, the court
may issue another order of arrest or may Bar Exam Question 2013
order the bond for his appearance to be XIII. Contempt charges made before
forfeited and confiscated, or both; and, if the persons, entities, bodies and agencies
bond be proceeded against, the measure of exercising quasi-judicial functions against
damages shall be the extent of the loss or the parties charged, shall be filed with the
injury sustained by the aggrieved party by Regional Trial Court of the place where the
reason of the misconduct for which the __________. (1%) (A) person, entity or agency
contempt charge was prosecuted, with the exercising quasi-judicial function is located
(B) person who committed the
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contemptuous act resides (C) act of contempt b. CRIMINAL CONTEMPT

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

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VENUE AND JURISDICTION OF SPECIAL CIVIL ACTIONS
NAME OF SCA VENUE JURISDICTION
Interpleader Where the plaintiff or any of the principal MTC—where the value of the claim or
plaintiffs resides or where the defendant personal property does not exceed
or any of the defendants resides. 300,000 or 400,000 in Metro Manila;
or where the assessed value of the
real property does not exceed 20, 000
or 50,000 in Metro Manila
RTC—if the value exceeds the above-

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

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

the Sandiganbayan, in which case the
location of the respondent is
immaterial(sec.4, Rule 65)
Quo Warranto If filed with the SC, or CA, the location of RTC, CA, SC
the respondent is immaterial;
RTC of the place where the respondent

resides or where any of the respondents
resides;
However if SolGen commences the
action, it may be brought in the RTC in
Manila, or CA, or SC (sec. 7, Rule 66);
The Sandiganbayan has exclusive
original jurisdiction on Quo Warranto
arising or that may arise under E.O. 1, 2,
14, 14-A but this must be in aid of its
appellate jurisdiction and not exclusive of
the SC
Expropriation Where the property is located in case the RTC (first issue is incapable of
subject is the land pecuniary estimation—Barangay San
Roque vs. Heirs of Pastor, GR No.
138896, June 20, 2000)
Foreclosure Where the land or any part thereof is RTC (first issue is incapable of
located pecuniary estimation)
Partition Where the real property or a portion RTC (first issue is incapable of
thereof is located. If the subject matter is pecuniary estimation)
personal property, in the place where the
plaintiff or the defendant resides (sec. 13,
Rule 69)
Forcible Entry/Unlawful Detainer Where the property is located MTC

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

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3. Recognition and enforcement of

arbitration proceedings;
4. Vacation, setting aside, correction or
PART II — SPECIAL PROCEEDINGS modification of an arbitral award;
5. Any application with a court for
arbitration assistance and supervision.
(Rule 72 to 109) Civil Actions vs. Special Proceedings (1998)

Distinguish civil actions from special proceedings.
GENERAL PROVISION
[3%] SUGGESTED ANSWER:
A CIVIL ACTION is one by which a party sues
another for the enforcement or protection of a right,
RULE 72 or the prevention or redress of a wrong. (See. 3[a], Rule
1, 1997 Rules of Civil Procedure), while a SPECIAL
Subject Matter and Applicability of General PROCEEDING is a remedy by which a party seeks
Rules to establish a status, a right or a particular fact. (Sec.
3[C]. Rule 1,1997 Rules of Civil Procedure.)
Section 1. Subject matter of special proceedings.
— Rules of special proceedings are provided for in
the following cases: Bar Exam Question 2012
30. Which of the following is not a Special
(a) Settlement of estate of deceased persons; Proceeding?
(b) Escheat; a. Absentees;
(c) Guardianship and custody of children; b. Escheat;
(d) Trustees; c. Change of First Name;
(e) Adoption; d. Constitution of Family Home;
(f) Rescission and revocation of adoption; SUGGESTED ANSWERS: (c), Under R.A.
(g) Hospitalization of insane persons; 9048, as amended by R.A. 10172, the
(h) Habeas corpus; correction of First Name can now be
(i) Change of name; done administratively before the Local
(j) Voluntary dissolution of corporations; Civil Registrar where the record sought
(k) Judicial approval of voluntary recognition of to be corrected is kept or the nearest
minor natural children; Philippine Consulate. Hence, it is no
(l) Constitution of family home; longer considered a special proceeding
(m) Declaration of absence and death; since the provisions of Rules 103 and
(n) Cancellation of correction of entries in the 108 do not apply anymore in the change
civil registry. of First name of a person.
(d), the rules on Constitution of the
Family Home have already been repealed
SPECIAL PROCEEDINGS by Articles 152-162 of the Family Code.
It is a remedy by which a party seeks to establish a Under Article 153 of the Family Code, a
status, a right or a particular fact (Rule 1, sec.3 [c]. family home is deemed constituted on a
house and lot from the time it is
 Special proceedings are generally NON- occupied as a family residence.
ADVERSARIAL, except Habeas Corpus. Consequently, there is no need to
constitute a family home either
 Publication is always necessary to acquire judicially or extrajudicially. Hence, it is
jurisdiction over the case.
no longer considered a special
proceeding. ALTERNATIVE ANSWER: All
 Interlocutory orders, in special proceedings,
the above-mentioned actions are
may be subject of an appeal.
considered Special Proceedings because
they are remedies which seek to
 Sec. 3 of Rule 17 cannot be applied.
establish a status, right or a particular
fact. (Rule 1, Sec. 2(c), Rules of Court).
OTHER SPECIAL PROCEEDINGS:
1. Liquidation proceedings;
2. Corporate rehabilitation; Section 2. Applicability of rules of civil
actions. — In the absence of special provisions,

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the rules provided for in ordinary actions shall be, as will on the ground that the total amount included in
far as practicable, applicable in special proceedings. the relief of the petition is more than P100,000.00,
the maximum jurisdictional amount for municipal
Probate of Will; Application of Modes of circuit trial courts. The court overruled the
Discovery (2008) No.XIII. An heir/oppositor in opposition and proceeded to hear the case. Was the
a probate proceeding filed a motion to remove municipal circuit trial court correct in its ruling?
the administrator on the grounds of neglect of Why? (5%)
duties as administrator and absence from the SUGGESTED ANSWER:
country. On his part the heir/oppositor served Yes, the Municipal Circuit Trial Court was correct in
written interrogatories to the administrator proceeding to hear the case. It has exclusive
preparatory to presenting the latter as a jurisdiction
witness. The administrator objected, insisting in all matters of probate, both testate and intestate,
that the modes of discovery apply only to where the value of the estate does not exceed
ordinary civil actions, not special proceedings. P100,000.00 (now P300,000.00 for areas outside
Rule on the matter. SUGGESTED ANSWER: Manila and 400,000 for Manila). The value in this
No, the administrator is not correct. Modes case of P95,000.00 is within its jurisdiction. In
of discovery apply also to special determining the jurisdictional amount, excluded are
proceedings. Sec. 2, Rule 72 states that in attorney’s fees, litigation expenses and costs; these
the absence of special provisions, the rules are considered only
provided for in ordinary actions shall be, as for determining the filing fees. (B.P.Blg. 129, Sec. 34, as
amended)
far as practicable, applicable in special
proceedings.
3. Special Jurisdiction—petitions for
Habeas Corpus in case of
absence of RTC judges.
JURISDICTION
GR: Regional Trial Court
Note: the SC, and CA have original jurisdiction
Exceptions: MTC has jurisdiction in the following
over Habeas Corpus cases, concurrent with the
cases:
RTC.
1. Probate proceedings, whether testate or
intestate, where the gross value of the
DIFFERENT MODES OF SETTLEMENT OF
estate does not exceed 300,000 or does not
ESTATE OF DECEASED PERSON:
exceed 400,000 in Metro Manila, exclusive
1. Extra-judicial Settlement of Estate (sec.
of interest, damages of whatever kind,
1, Rule 74);
attorney’s fees, litigation expenses and
2. Summary Settlement of Estate of Small
costs.
Value (sec. 3, Rule 74);
2. Delegated Jurisdiction in cadastral and
3. Partition (Rule 69);
Land Registration cases covering lots where
4. Probate of Will (Rule 75—79);
there is no controversy or opposition or
5. Petition for Letters Administration in
contested lots where the value does not
Intestacy (Rule 79).
exceed 100,000.
Appeal is taken to the CA, not to the RTC, since

MTC is equal to the RTC in this instance. (sec. 34,
BP 129).
Jurisdiction; Probate (2001)

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

________________________________________________________________________________________________
It is heard by courts of Heard by courts of

general jurisdiction limited jurisdiction
Initiated by a pleading Initiated by means of a
and responded to by petition and parties Filing of Claims
an answer respond by means of (Rule 86)
an opposition
Payment of Claims
Sale/Mortgage/Encumbrance of Properties of the
Estate
ORDINARY SPECIAL SPECIAL
CIVIL ACTION CIVIL ACTION PROCEEDING
One by which Remedy by
a party sues which a party Distribution of the residue, if any
another for the seeks to (but this can be made even before
enforcement or establish a payment if bond is filed by the heirs)
protection of a status, a right,
right or the or a particular
prevention or fact
redress of a
wrong
Governed by Ordinary rules Governed by Settlement Of Estate Of Deceased Persons
the rule for apply primarily special rules
ordinary civil but subject to and ordinary RULE 73
actions specific rules rules apply
suppletorily Venue and Process
Involves two or Involves two or May involve
more parties more parties only one party Section 1. Where estate of deceased persons
Some are settled. — If the decedent is an inhabitant of the
Initiated by initiated by Initiated by Philippines at the time of his death, whether a
complaint complaint and petition citizen or an alien, his will shall be proved, or
some are by letters of administration granted, and his estate
petition settled, in the Court of First Instance in the
Some SCA Not based on province in which he resides at the time of his
Based on a have no cause cause of death, and if he is an inhabitant of a foreign
cause of action of action action, except country, the Court of First Instance of any
Habeas province in which he had estate. The court first
Corpus taking cognizance of the settlement of the estate
of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the
place of residence of the decedent, or of the
location of his estate, shall not be contested in a
suit or proceeding, except in an appeal from that
court, in the original case, or when the want of
jurisdiction appears on the record.
VENUE
PROCEDURE IN SETTLEMENT PROCEEDINGS 1. INHABITANT (resident) of the Philippines,
whether citizen or alien—court of the
province/city where he resides at the time of
Probate of the Will, if any death.
(Rules 75—76)
2. INHABITANT (resident) of a foreign country—

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

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A, a resident of Malolos, Bulacan, died leaving an estate 2. When all the parties are the heirs and
located in Manila, worth P200,000.00. In what court, they submit the issue of ownership to
taking into consideration the nature of jurisdiction and the probate court provided that rights of
of venue, should the probate proceeding on the estate 3rd parties are not prejudiced (Bernardo
of A be instituted? (4%) vs. CA, L- 18148, Feb. 28, 1963);
SUGGESTED ANSWER: 3. The question is one of collation or
The probate proceeding on the estate of A should be advancement;
instituted in the Municipal Trial Court of Malolos, 4. When the parties consent to the
Bulacan which has jurisdiction, because the estate is assumption of jurisdiction by the probate
valued at P200,000.00, and is the court of proper venue court.
because A was a resident of Malolos at the time of his
death. (Sec. 33 of BP 129 as amended by RA 7691; Sec. 1 of OTHER QUESTIONS THAT THE PROBATE
Rule 73). COURT CAN DETERMINE:
1. Who are the heirs of the decedent;
2. The recognition of a natural child;
RESIDENCE 3. The validity of the disinheritance
It means his personal, actual or physical habitation, effected by the testator;
his actual residence or place of abode (Fule vs. CA, 4. Status of a woman who claims to be the
L-40502, Nov. 29, 1976). wife of the decedent;
5. The validity of a waiver to the hereditary
2 KINDS OF SETTLEMENT rights;
1. EXTRAJUDICIAL SETTLEMENT (Rule 74, 6. The status of each heir;
sec. 1); 7. Whether the property in inventory is
2. JUDICIAL SETTLEMENT—testate or exclusive property of the deceased or
intestate proceeding instituted in the country conjugal;
where decedent had his residence. 8. All matters incidental or collateral to the
settlement and distribution of the estate.
EXTENT OF JURISDICTION
Probate court is a court of limited jurisdiction. It may
only determine and rule on issues relating to the Bar Exam Question 2011
settlement of the estate, namely: (59) Apart from the case for the settlement
1. Administration of the estate; of her parents' estate, Betty filed an action
2. Liquidation of the estate; against her sister, Sigma, for reconveyance
3. Distribution of the estate. of title to a piece of land. Betty claimed that
Sigma forged the signatures of their late
parents to make it appear that they sold the
Bar Exam Question 2011 land to her when they did not, thus
(92) In proceedings for the settlement of the prejudicing Betty’s legitime. Sigma moved
estate of deceased persons, the court in which to dismiss the action on the ground that
the action is pending may properly (A) pass the dispute should be resolved in the estate
upon question of ownership of a real property proceedings. Is Sigma correct? (A) Yes,
in the name of the deceased but claimed by a questions of collation should be resolved
stranger. (B) pass upon with the consent of in the estate proceedings, not in a
all the heirs the issue of ownership of estate separate civil case. (B) No, since questions
asset, contested by an heir if no third of ownership of property cannot be resolved
person is affected. (C) rule on a claim by one in the estate proceedings. (C) Yes, in the
of the heirs that an estate asset was held in sense that Betty needs to wait until the
trust for him by the deceased. (D) rescind a estate case has been terminated. (D) No, the
contract of lease entered into by the deceased filing of the separate action is proper; but
before death on the ground of contractual the estate proceeding must be suspended
breach by the lessee. meantime.
GR: Probate Court cannot determine issue of Note: A court (RTC) exercising its
ownership. original/ordinary jurisdiction cannot order
Exception: collation in an action for reconveyance (Review
1. Provisionally, ownership may be determined Lecture).
for the purpose of including the property in
the inventory, without prejudice to its final Q: Is complaint in intervention allowed in
determination in a separate action; probate proceedings?
________________________________________________________________________________________________
A: YES. Provided that all the parties consent to the proceedings of either. (Sees. 1 and 2, Rule 73, Rules of
intervention (Ucat). Court)
PRINCIPLE OF EXCLUSIONARY RULE Section 2. Where estate settled upon

The court first taking cognizance of the settlement dissolution of marriage. — When the marriage
proceedings shall exercise jurisdiction to the is dissolved by the death of the husband or wife,
exclusion of other courts the community property shall be inventoried,
administered, and liquidated, and the debts
The probate court acquires jurisdiction the petition is thereof paid, in the testate or intestate
filed with the said court. It cannot be divested of proceedings of the deceased spouse. If both
such jurisdiction by the subsequent acts of the spouses have died, the conjugal partnership
parties as by entering into extrajudicial partition of shall be liquidated in the testate or intestate
the estate (Sandoval vs. Santiago, 88 Phil. 784); or proceedings of either.
by filing another petition for the settlement in the
proper of concurrent venue (De Boria vs Tan, 77 Section 3. Process. — In the exercise of probate
Phil 872). jurisdiction, Courts of First Instance may issue
warrants and process necessary to compel the
Exception: Estoppel By Laches attendance of witnesses or to carry into effect
theirs orders and judgments, and all other
NOTE: Jurisdiction under Rule 73 sec.1 DOES NOT powers granted them by law. If a person does
relate to jurisdiction per se but to venue. Hence, not perform an order or judgment rendered by a
institution in an the court where the decedent is court in the exercise of its probate jurisdiction, it
neither an inhabitant nor have his estate may be may issue a warrant for the apprehension and
waived (Uriarti vs. CFI, L-21938 May 29, 1970). imprisonment of such person until he performs
such order or judgment, or is released.
REMEDY IF VENUE IS IMROPERLY LAID
ORDINARY APPEAL not certiorari or mandamus
Note: GR: There should only be one probate
unless want of jurisdiction appears on the record of
court to settle the estate of a decedent.
the case.
Exception: when during the lifetime of the
NOTE: Testate proceedings take precedence over
decedent his will has been probated (anti-
intestate proceeding for the same estate.
mortem probate).
If during the pendency of an intestate proceeding a
GR: RTC is a court of general jurisdiction.
will of the decedent is discovered, proceedings for
Exception: When it is acting as a probate court,
the probate will replace the intestate even if the
it is a court of limited jurisdiction.
administrator had already appointed therein
(Cuenco vs. CA, L-24742, Oct. 26, 1973)
WRIT OF EXECUTION
GR: Probate court cannot issue writ of
Judicial Settlement of Estate (2005)
State the rule on venue in judicial settlement of estate execution.
of deceased persons. (2%)
SUGGESTED ANSWER: Reason—its orders usually refer to the
If the decedent is an inhabitant of the Philippines at the adjudication of the claims against the
time of' his death, whether a citizen or an alien, the venue estate which the executor/administrator
shall be in the RTC in the province in which he resides at may satisfy without the need of
the time of his death, not in the place where he used to executory process.
live. (Jao v. Court of Appeals, Exceptions:
G.R. No. 128314, May 29, 2002) 1. To satisfy the contributive share of the
If he is an inhabitant, of a foreign country, the RTC of devisees, legatees and heirs when the
any province or city in which he had estate shall be the latter had entered prior possession over
venue. The court first taking cognizance of the case the estate (sec. 6, Rule 88);
shall exercise jurisdiction to the exclusion of all other 2. To enforce payment of the expenses of
courts. When the marriage is dissolved by the death of partition (sec. 3, Rule 90);
the husband or wife, the community property shall be 3. To satisfy the costs when a person is
inventoried, administered and liquidated, and the debts cited for examination in probate
thereof paid, in the testate or intestate proceedings of the proceedingse.13, Rule 142).
deceased spouse. If both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate

________________________________________________________________________________________________
Section 4. Presumption of death. — For purposes Summary Settlement of Estate

of settlement of his estate, a person shall be
presumed dead if absent and unheard from for the GR: If a person dies, his estate is submitted to a
periods fixed in the Civil Code. But if such person judicial settlement proceeding.
proves to be alive, he shall be entitled to the
balance of his estate after payment of all his debts. Exception: The heirs may resort to:
The balance may be recovered by motion in the 1. Extrajudicial settlement of the estate;
same proceeding. 2. Summary settlement of the estate—
conducted in accordance with the
NOTE: There can be no independent action for summary procedure and not of regular
the declaration of presumptive death. procedure.
Art. 390. After an absence of seven years, it being Executor or administrator need not be
unknown whether or not the absentee still lives, he appointed in the two exceptions.
shall be presumed dead for all purposes, except for
those of succession. Section 1. Extrajudicial settlement by
agreement between heirs. — If the decedent
left no will and no debts and the heirs are all of
The absentee shall not be presumed dead for the age, or the minors are represented by their
purpose of opening his succession till after an absence judicial or legal representatives duly authorized
of ten years. If he disappeared after the age of for the purpose, the parties may without
seventy-five years, an absence of five years shall be securing letters of administration, divide the
sufficient in order that his succession may be opened. estate among themselves as they see fit by
(n) means of a public instrument filed in the office of
the register of deeds, and should they disagree,
Art. 391. The following shall be presumed dead for all they may do so in an ordinary action of partition.
purposes, including the division of the estate among If there is only one heir, he may adjudicate to
the heirs: himself the entire estate by means of an affidavit
filled in the office of the register of deeds. The
parties to an extrajudicial settlement, whether by
(1) A person on board a vessel lost during a sea public instrument or by stipulation in a pending
voyage, or an aeroplane which is missing, who action for partition, or the sole heir who
has not been heard of for four years since the adjudicates the entire estate to himself by
loss of the vessel or aeroplane; means of an affidavit shall file, simultaneously
with and as a condition precedent to the filing of
(2) A person in the armed forces who has taken the public instrument, or stipulation in the action
part in war, and has been missing for four years; for partition, or of the affidavit in the office of the
register of deeds, a bond with the said register
(3) A person who has been in danger of death of deeds, in an amount equivalent to the value of
the personal property involved as certified to
under other circumstances and his existence
under oath by the parties concerned and
has not been known for four years. (n)
conditioned upon the payment of any just claim
that may be filed under section 4 of this rule. It
Bar Exam Question 2011 shall be presumed that the decedent left no
(72) Which of the following CANNOT be debts if no creditor files a petition for letters of
disputably presumed under the rules of administration within two (2) years after the
evidence? (A) That the thing once proved to death of the decedent.
exist continues as long as is usual with things
of that nature. (B) That the law has been The fact of the extrajudicial settlement or
obeyed. (C) That a writing is truly dated. (D) administration shall be published in a newspaper
That a young person, absent for 5 years, it of general circulation in the manner provided in
being unknown whether he still lives, is the nest succeeding section; but no extrajudicial
considered dead for purposes of succession. settlement shall be binding upon any person
who has not participated therein or had no
notice thereof.
RULE 74 Settlement of Estate (2009) No.XVIII.

Pinoy died without a will. His wife, Rosie

________________________________________________________________________________________________
and three children executed a deed of b) NO DEBTS.

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

________________________________________________________________________________________________
Amount of bond is Amount of bond is it among them after the payment of such debts
equal to the value of fixed by the court of the estate as the court shall then find to be
the personal property due; and such persons, in their own right, if they
are of lawful age and legal capacity, or by
theirguardians or trustees legally appointed and
While the Rules provide that the decedent must not qualified, if otherwise, shall thereupon be
have left any debts, it is sufficient if any debt he may entitled to receive and enter into the possession
have left have been paid at the time of the of the portions of the estate so awarded to them
extrajudicial settlement is entered into (Guico vs. respectively. The court shall make such order as
Bautista, 110 Phil. 584). may be just respecting the costs of the
proceedings, and all orders and judgments
made or rendered in the course thereof shall be
Probate of Will (2007)
recorded in the office of the clerk, and the order
No.VIII. (b) The heirs of H agree among
of partition or award, if it involves real estate,
themselves that they will honor the division of shall be recorded in the proper register's office.
H’s estate as indicated in her Last Will and
Testament. To avoid the expense of going to
court in a Petition for Probate of the Will, can Gross value of the estate must not exceed
10,000. The amount is jurisdictional (Del
they instead execute an Extrajudicial
Rosario vs. Cunanan, L-37903., March 30,
Settlement Agreement among themselves?
1977).
Explain briefly. (5%)
SUGGESTED ANSWER: The heirs of H
IMPORTANT REQUIREMENTS
cannot validly agree to resort to
1. Application must contain allegation of
extrajudicial settlement of his estate and do
value of the estate;
away with the probate of H‟s last will and
2. Date of hearing:
testament. Probate of the will is mandatory a) Shall be set by the court not
(Guevarra v. Guevarra, 74 Phil. 479 [1943]). less than 1 month nor more than
The policy of the law is to respect the will 3 months from date of last
of the testator as manifested in the other publication;
dispositions in his last will and testament, b) Order of hearing published once
insofar as they are not contrary to law, a week for 3 consecutive weeks
public morals and public policy. in a newspaper of general
Extrajudicial settlement of an estate of a circulation.
deceased is allowed only when the deceased 3. Notice shall be served upon such
left no last will and testament and all debts, interested persons as the court may
if any, are paid (Rule 74, Sec. 1, Rules of direct;
Court). 4. Bond fix by the court.
Section 3. Bond to be filed by distributees. —

The court, before allowing a partition in
Section 2. Summary settlement of estate of small accordance with the provisions of the preceding
value. — Whenever the gross value of the estate of section, my require the distributees, if property
a deceased person, whether he died testate or other than real is to be distributed, to file a bond
intestate, does not exceed ten thousand pesos, in an amount to be fixed by court, conditioned
and that fact is made to appear to the Court of First for the payment of any just claim which may be
Instance having jurisdiction of the estate by the filed under the next succeeding section.
petition of an interested person and upon hearing,
which shall be held not less than one (1) month nor Bar Exam Question 2011
more than three (3) months from the date of the last (85) As a rule, the estate shall not be
publication of a notice which shall be published distributed prior to the payment of all
once a week for three (3) consecutive weeks in a charges to the estate. What will justify
newspaper of general circulation in the province, advance distribution as an exception? (A)
and after such other notice to interested persons as The estate has sufficient residual assets
the court may direct, the court may proceed and the distributees file sufficient bond.
summarily, without the appointment of an executor (B) The specific property sought to be
or administrator, and without delay, to grant, if distributed might suffer in value. (C) An
proper, allowance of the will, if any there be, to agreement among the heirs regarding such
determine who are the persons legally entitled to distribution. (D) The conformity of the
participate in the estate, and to apportion and divide
________________________________________________________________________________________________
majority of the creditors to such distribution.

1. Within 2 years claim against the bond
Section 4. Liability of distributees and estate. — or the lien over the real property;
If it shall appear at any time within two (2) years
after the settlement and distribution of an estate in After the lapse of 2 years, an
accordance with the provisions of either of the first ordinary action may be instituted
two sections of this rule, that an heir or other person against the distributees within
has been unduly deprived of his lawful participation the statute of limitations BUT
in the estate, such heir or such other person may NOT against the bond.
compel the settlement of the estate in the courts in
the manner hereinafter provided for the purpose of 2. Rescission in case of preterition of a
satisfying such lawful participation. And if within the compulsory heir in partition tainted
same time of two (2) years, it shall appear that there with bad faith (1104, NCC);
are debts outstanding against the estate which have
not been paid, or that an heir or other person has Art. 1104. A partition made
been unduly deprived of his lawful participation with preterition of any of the
payable in money, the court having jurisdiction of compulsory heirs shall not be
the estate may, by order for that purpose, after rescinded, unless it be proved
hearing, settle the amount of such debts or lawful
participation and order how much and in what
that there was bad faith or
manner each distributee shall contribute in the fraud on the part of the other
payment thereof, and may issue execution, if persons interested; but the
circumstances require, against the bond provided in latter shall be proportionately
the preceding section or against the real estate obliged to pay to the person
belonging to the deceased, or both. Such bond and omitted the share which
such real estate shall remain charged with a liability
to creditors, heirs, or other persons for the full
belongs to him.
period of two (2) years after such distribution,
notwithstanding any transfers of real estate that may 3. Reconveyance of real property;
have been made.
An heir deprived of his share
may file an action for
REQUISITES FOR THE 2 YEAR PERIOD LIEN: Reconveyance based on an
1. Persons have taken part or have notice of implied or constructive trust
extrajudicial partition; and which prescribes in 10 years
2. There is compliance with sec. 1, Rule 74 from date of registration or date
(Sampilo vs CA, 103 Phil. 71). of the issuance of certificate of
title or from actual discovery of
Note: The 2 year lien upon the real property fraud if registration was done in
distributed by extrajudicial or summary settlement bad faith.
shall be annotated on the title issued to the
distributees and after 2 years, will be cancelled by 4. Acton to annul the deed of
the register of deeds without need of a court order extrajudicial settlement on the ground
(LRO CIRCULAR 143). of fraud which should be filed within 4
years from discovery of fraud;
Such lien cannot be discharged nor the annotation
be cancelled within the 2 year period even if the 5. Rescission in case there is lesion.
distributees offer to post a bond to answer for
contingent claims from which lien is established
Art. 1098. A partition, judicial or
(Rebong vs. Ebanez, 79 Phil. 324).
extra-judicial, may also be
COMPEL SETTLEMENT OF THE ESTATE BASIS: rescinded on account of lesion,
1. There is undue deprivation of lawful when any one of the co-heirs
participation in the estate; received things whose value is
2. The existence of debts against the estate or less, by at least one-fourth,
undue deprivation of lawful participation
than the share to which he is
payable in money.
entitled, considering the value
REMEDIES OF AGGRIEVED PARTIES AFTER
SETTLEMENT OF ESTATE:
________________________________________________________________________________________________
of the things at the time they were present his claim within one (1) year after such
adjudicated. disability is removed.
REMEDY OF HEIR UNLAWFULLY DEPRIVED OF NOTE: In conventional or legal redemption,

PARTICIPATION IN THE PROBATE sec.5, Rule 74 does not apply. The period to
PROCEEDINGS redeem is not suspended by the fact of
1. Action for Partition; minority, incapacity, etc.
2. Action Reividicatoria on the ground of fraud.
REMEDY OF AGGRIEVED PARTY IF RULE 75

EXTRAJUDICIAL SETTLEMENT IS APPROVED
BY THE COURT Production of Will. Allowance of Will
1. Rescission if there is lesion; Necessary
2. Relief from Judgment (Atty. Ucat).
NATURE OF PROBATE PROCEEDINGS
NOTE:[ a]. When there is preterition of subject
(compulsory heir in the direct line), the institution of
1. IN REM—Binding on the whole world.
heirs is annulled.
2. MANDATORY—Art. 838, NCC. No will
shall pass either real or personal
Art. 854. The preterition or
property unless it is proved and allowed
omission of one, some, or all of the
in accordance with the Rules of Court.
compulsory heirs in the direct line,
3.
whether living at the time of the NOTE: However, it has been held in a case
execution of the will or born after (Mang-Oy vs. CA, 144 SCRA 33) that a Will
the death of the testator, shall may be sustained on the basis of art. 1080,
annul the institution of heir; but NCC, which states that:
the devises and legacies shall be
valid insofar as they are not Art. 1080. Should a person make
inofficious. partition of his estate by an act inter
vivos, or by will, such partition shall be
If the omitted compulsory heirs respected, insofar as it does not
should die before the testator, the prejudice the legitime of the
institution shall be effectual, compulsory heirs.
without prejudice to the right of
representation. 4. IMPRESCRIPTIBLE—Because of the
public policy to obey the wishes of the
[b]. when there is preterition of object. testator. It is also one of the attributes of
ownership to dispose of his own
Art. 1103. The omission of one or property by his act inter vivos or mortis
causa.
more objects or securities of the 5. DOCTRINE OF ESTOPPEL DOES NOT
inheritance shall not cause the APPLY—The presentation of the will is
rescission of the partition on the required by public policy. It involves
ground of lesion, but the partition public interest (Fernandez vs. Dimagiba,
shall be completed by the 21 SCRA 428).
distribution of the objects or
securities which have been GR: Probate does not look into the intrinsic
validity of the will. The issue is restricted to the
omitted.
extrinsic validity of the will—whether the testator,
being of sound mind, freely executed the will in
Section 5. Period for claim of minor or accordance with the formalities prescribed by
incapacitated person. — If on the date of the law (Pastor, Jr. vs. CA, 122 SCRA 85).
expiration of the period of two (2) years prescribed
in the preceding section the person authorized to file EXCEPTION: PRINCIPLE OF PRACTICAL
a claim is a minor or mentally incapacitated, or is CONSIDERATION as enunciated in the case of
in prison or outside the Philippines, he may Nuguid vs. Nuguid, 17 SCRA 449, where the

________________________________________________________________________________________________
Court held that waste of time, effort, expense plus Probate of Will; Jurisdictional Facts
added anxiety are practical considerations that (2012) No.X.C. What are the jurisdictional
induces us to a belief that we might as well meet facts that must be alleged in a petition for
head-on the issues of the validity of the provisions probate of a will? How do you bring before
of the will (note that there is preterition in this the court these jurisdictional facts? (3%)
case). SUGGESTED ANSWER:
The jurisdictional facts in a petition for
Section 1. Allowance necessary. Conclusive as probate are: (1) that a person died
to execution. — No will shall pass either real or leaving a will; (2) in case of a resident,
personal estate unless it is proved and allowed in that he resided within the territorial
the proper court. Subject to the right of appeal, such jurisdiction of the court; and (3) in the
allowance of the will shall be conclusive as to its case of a non-resident, that he left an
due execution. estate within such territorial
jurisdiction. The jurisdictional facts
Probate of Will (2005) shall be contained in a petition for
After Lulu's death, her heirs brought her last will to a allowance of will.
lawyer to obtain their respective shares in the estate.
The lawyer prepared a deed of partition distributing
Lulu's estate in accordance with the terms of her will. Is Section 2. Custodian of will to deliver. — The
the act of the lawyer correct? Why? (2%) person who has custody of a will shall, within
SUGGESTED ANSWER: twenty (20) days after he knows of the death of
No. No will, shall pass either real or personal estate the testator, deliver the will to the court having
unless it is proved and allowed in the proper court. (Sec. 1, jurisdiction, or to the executor named in the will.
Rule 75, Rules of Court)
Probate of Will (2010) No.XIV. Czarina died Probate of Will (2006)

single. She left all her properties by will to her
Sergio Punzalan, Filipino, 50 years old, married, and
friend Duqueza. In the will, Czarina stated that
residing at Ayala Alabang Village, Muntinlupa City,
she did not recognize Marco as an adopted son of sound and disposing mind, executed a last will
because of his disrespectful conduct towards and testament in English, a language spoken and
her. written by him proficiently. He disposed of his estate
Duqueza soon instituted an action for probate consisting of a parcel of land in Makati City and cash
of Czarina’s will. Marco, on the other hand, deposit at the City Bank in the sum of P 300 Million.
instituted intestate proceedings. Both actions He bequeathed P 50 Million each to his 3 sons and P
were consolidated before the RTC of Pasig. On 150 Million to his wife. He devised a piece of land
motion of Marco, Duqueza’s petition was worth P100 Million to Susan, his favorite daughter-
ordered dismissed on the ground that the will inlaw. He named his best friend, Cancio Vidal, as
is void for depriving him of his legitime. Argue executor of the will without bond.
for Duqueza. (5%) SUGGESTED ANSWER: The Is Cancio Vidal, after learning of Sergio's death,
petition for probate of Czarina‟s will, as obliged to file with the proper court a petition of
filed by Duquesa should not be dismissed on probate of the latter's last will and testament?
mere motion of Marco who instituted (2%)
SUGGESTED ANSWER:
intestate proceedings. The law favors
Cancio Vidal is obliged to file a petition for probate
testacy over intestacy, hence, the probate
and for accepting or refusing the trust within the
of the will cannot be dispensed with. (See
statutory period of 20 days under Sec. 3, Rule 75,
Sec. 5, Rule 75) Thus, unless the will –
Rules of Court.
which shows the obvious intent to
disinherit Marco – is probated, the right of a
Supposing the original copy of the last will and
person to dispose of his property may be testament was lost, can Cancio compel Susan to
rendered nugatory (See Seanio vs. Reyes, produce a copy in her possession to be submitted
G.R. Nos. 140371-72, Nov. 27, 2006). to the probate court. (2%)
Besides, the authority of the probate court SUGGESTED ANSWER:
is generally limited only to a determination Yes, Cancio can compel Susan to produce the copy
of the extrinsic validity of the will. In this in her possession. A person having custody of the
case, Marco questioned the intrinsic will is bound to deliver the same to the court of
validity of the will. competent jurisdiction or to the executor, as
provided in Sec. 2, Rule 75, Rules of Court.

________________________________________________________________________________________________
Can the probate court appoint the widow as executor PROBATE (Allowance of Will)
of the will? (2%) It is the act of proving in court a document
SUGGESTED ANSWER: purporting to be a last will and testament of a
Yes, the probate court can appoint the widow as deceased person in order that it may be officially
executor of the will if the executor does not qualify, as recognized, registered and its provisions carried
when he is incompetent, refuses the trust, or fails to give insofar as they are in accordance with law.
bond (Sec. 6, Rule 78, Rules of Court).
NOTE: There is NO such thing as VOIDABLE
Can the widow and her children settle extrajudicially WILL (Atty. Ucat).
among themselves the estate of the deceased? (2%)
SUGGESTED ANSWER:
VOID disposition does not necessarily avoids
No, the widow and her children cannot settle the estate
a valid will (disposition to a concubine does
extrajudicially because of the existence of the Will. No
not annul the entire will (Ucat).
will shall pass either real or personal estate unless it is
proved and allowed in the proper court (Sec. 1, Rule 75,
Rules of Court). Section 1. Who may petition for the allowance
of will. — Any executor, devisee, or legatee
Can the widow and her children initiate a separate named in a will, or any other person interested in
petition for partition of the estate pending the probate the estate, may, at any time after the death of
of the last will and testament by the court? (2%) the testator, petition the court having jurisdiction
SUGGESTED ANSWER: to have the will allowed, whether the same be in
No, the widow and her children cannot file a separate his possession or not, or is lost or destroyed.
petition for partition pending the probate of the will.
Partition is a mode of settlement of the estate (Sec. 1, Rule The testator himself may, during his lifetime,
75, Rules of Court). petition the court for the allowance of his will.
Persons who may petition for the allowance

of the will:
Section 3. Executor to present will and accept or
1. Testator during his lifetime;
refuse trust. — A person named as executor in a
2. Executor;
will shall, within twenty (20) days after he knows of
3. Devisee or Legatee named in the will;
the death of the testator, or within twenty (20) days
4. Persons interested in the estate (ex.
after he knows that he is named executor if he
Heirs);
obtained such knowledge after the death of the
An interested party is one who
testator, present such will to the court having
would be benefited by the
jurisdiction, unless the will has reached the court in
estate, such as an heir, or one
any other manner, and shall, within such period,
who has a claim against the
signify to the court in writing his acceptance of the
estate, such as a creditor.
trust or his refusal to accept it.
5. Any creditor, as preparatory for filing his
claim therein (Regalado, p. 30).
Section 4. Custodian and executor subject to fine
for neglect. — A person who neglects any of the Who may be party to the probate:
duties required in the two last preceding sections In general, any person having direct and
without excuse satisfactory to the court shall be material interest in the will or the estate.
fined not exceeding two thousand pesos.
Section 2. Contents of petition. — A petition
Section 5. Person retaining will may be for the allowance of a will must show, so far as
committed. — A person having custody of a will known to the petitioner:
after the death of the testator who neglects without
reasonable cause to deliver the same, when
(a) The jurisdictional facts;
ordered so to do, to the court having jurisdiction,
may be committed to prison and there kept until he
(b) The names, ages, and residences of the
delivers the will.
heirs, legatees, and devisees of the testator
or decedent;
(c) The probable value and character of the

RULE 76 property of the estate;
Allowance or Disallowance of Will

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(d) The name of the person for whom letters are thereof, and shall cause notice of such time and
prayed; place to be published three (3) weeks
successively, previous to the time appointed, in
(e) If the will has not been delivered to the court, a newspaper of general circulation in the
the name of the person having custody of it. province.
But no defect in the petition shall render void the But no newspaper publication shall be made
allowance of the will, or the issuance of letters where the petition for probate has been filed by
testamentary or of administration with the will the testator himself.
annexed.
Q: When does the court acquire jurisdiction over
EFFECT OF THE PROBATE OF THE WILL interested persons and the res?
It is conclusive as to the EXECUTION and the A: Upon publication for 3 weeks successively of
VALIDITY of the will (even against the state). Thus, the order setting the case for hearing and
a criminal case against the forger may not lie after sending notices to all persons interested.
the will has been probated.
Section 4. Heirs, devisees, legatees, and
ISSUE IN THE PROBATE OF THE WILL executors to be notified by mail or
personally. — The court shall also cause
GR: Only the determination of the extrinsic validity copies of the notice of the time and place fixed
NOT the intrinsic validity of testamentary for proving the will to be addressed to the
dispositions.. designated or other known heirs, legatees,
and devisees of the testator resident in the
Exceptions: Where the entire or all testamentary Philippines at their places of residence, and
dispositions are void and where the defect is deposited in the post office with the postage
apparent on its face (Acain vs. IAC, GR NO. thereon prepaid at least twenty (20) days
72706,Oct., 27, 1987; Nepumuceno vs. CA,139 before the hearing, if such places of residence
SCRA 206). be known. A copy of the notice must in like
manner be mailed to the person named as
EXTRINSIC VALIDITY- means due execution of the executor, if he be not the petitioner; also, to any
will. person named as co-executor not petitioning, if
their places of residence be known. Personal
Meaning of DUE EXECUTION service of copies of the notice at least (10) days
before the day of hearing shall be equivalent to
1. That the will was executed strictly in mailing.
accordance with the formalities required by
law; If the testator asks for the allowance of his own
2. That the testator was of sound and will, notice shall be sent only to his compulsory
disposing mind when he executed the will; heirs.
3. That there where no vitiation of consent
through duress, fear or threats;
4. That it was not procured by undue influence Section 5. Proof at hearing. What sufficient in
or improper pressure or influence on the absence of contest. — At the hearing
part of the beneficiary, or some other compliance with the provisions of the last two
person for his benefit; preceding sections must be shown before the
5. That the signature of the testator was introduction of testimony in support of the will.
genuine, i.e. it was not procured through All such testimony shall be taken under oath and
fraud and that the testator intended that reduced to writing. If no person appears to
what he executed was his last will and contest the allowance of the will, the court may
testament. grant allowance thereof on the testimony of one
of the subscribing witnesses only, if such
witness testify that the will was executed as
required by law.
Section 3. Court to appoint time for proving will.
Notice thereof to be published. — When a will is
delivered to, or a petition for the allowance of a will In the case of a holographic will, it shall be
is filed in, the court having jurisdiction, such court necessary that at least one witness who knows
shall fix a time and place for proving the will when the handwriting and signature of the testator
all concerned may appear to contest the allowance explicitly declare that the will and the signature
are in the handwriting of the testator. In the

________________________________________________________________________________________________
absence of any such competent witness, and if the HOWEVER, the SC held that if a
court deem it necessary, expert testimony may be holographic will is contested, 3
resorted to. witnesses who know the handwriting
and signature of the testator are now
EVIDENCE required in support of the will: required or mandatory to prove its
authenticity and for its allowance (Codoy
1. UNCONTESTED WILL (sec. 5) vs. Calugay, GR NO. 123486, Aug. 12,
1999).
a. Notarial wills—Testimony of at least 1 of the
subscribing witnesses may be allowed, if
such witness testifies that the will was GR: Holographic will if destroyed cannot be
executed as required by law. probated.
Exception: If there exists a photostatic or Xerox
I. If all the subscribing witnesses copy thereof (Gan vs. Yap, 104 Phil. 509).
reside outside the province,
DEPOSITION may be allowed (sec.
7). Section 6. Proof of lost or destroyed will.
Certificate thereupon. — No will shall be proved
II. If the subscribing witnesses are as a lost or destroyed will unless the execution
dead, insane or none of them and validity of the same be established, and the
resides in the Philippines, the court will is proved to have been in existence at the
may admit testimony of other time of the death of the testator, or is shown to
witnesses to prove the sanity of the have been fraudulently or accidentally destroyed
testator and the due execution of in the lifetime of the testator without his
the will, and as evidence of such knowledge, nor unless its provisions are clearly
execution of the will, it may admit and distinctly proved by at least two (2) credible
proof of the handwriting of the witnesses. When a lost will is proved, the
testator and of the subscribing provisions thereof must be distinctly stated and
witnesses or any of them (sec. 8). certified by the judge, under the seal of the
court, and the certificate must be filed and
b. Holographic wills—testimony of 1 witness recorded as other wills are filed and recorded.
who knows the handwriting and signature of
the testator. In the absence thereof, the Probate of Lost Wills (1999)
testimony of an expert witness. What are the requisites in order that a lost or
destroyed Will may be allowed? (2%)
2. CONTESTED WILLS (sec. 11). A's Will was allowed by the Court. No appeal was
taken from its allowance. Thereafter, Y, who was
1. Notarial Wills—ALL subscribing witnesses interested in the estate of A, discovered that the Will
AND the Notary Public before whom the will was not genuine because A's signature was forged by
was acknowledged must be produced and X. A criminal action for forgery was instituted
examined against X. May the due execution of the Will be
validly questioned in such criminal action? (2%)
HOWEVER, If any or all of the witnesses SUGGESTED ANSWER:
testify against the execution of the will; do a. In order that a lost or destroyed will may be
not remember attesting thereto; or of allowed,
doubtful credibility, the will may be allowed if the following must be complied with:
the court is satisfied from the testimony of 1 the execution and validity of the same should be
other witnesses and from the evidence established;
presented that the will was executed and 2 the will must have been in existence at the time of
attested in the manner required by law the death of the testator, or shown to have been
(note: this is an instance where a party may fraudulently or accidentally destroyed in the lifetime
impeach his own witness).
of the testator without his knowledge; and
3 its provisions are clearly and distinctly proved by
2. Holographic Wills—3 witnesses who know
at least two credible witnesses.
the handwriting of the testator. In the (Sec. 6, Rule 76 of the Rules of Court)
absence thereof, an expert testimony may SUGGESTED ANSWER:
be resorted to. b. No. The allowance of the will from which no
appeal

________________________________________________________________________________________________
was taken is conclusive as to its due execution. (Sec. 1 of (d) If it was procured by undue and improper
Rule 75.) Due execution includes a finding that the will is pressure and influence, on the part of the
genuine and not a forgery. Accordingly, the due beneficiary, or of some other person for his
execution of the will cannot again be questioned in a benefit;
subsequent proceeding, not even in a criminal action for
forgery of the will. (e) If the signature of the testator was
procured by fraud or trick, and he did not
intend that the instrument should be his will
Facts which should be proved in order that a at the time of fixing his signature thereto.
lost or destroyed will ay be allowed:
1. Due execution of the will;
2. Existence of will when testator died, or that NOTES: The grounds are EXCLUSIVE.
it was fraudulently or accidentally destroyed
in the lifetime of the testator without his Bar Exam Question 2011
knowledge; and (84) Which of the following is sufficient to
3. Provisions of the will are clearly established disallow a will on the ground of mistake?
by at least 2 credible witnesses. (A) An error in the description of the land
devised in the will. (B) The inclusion for
Section 7. Proof when witnesses do not reside in distribution among the heirs of properties
province. — If it appears at the time fixed for the not belonging to the testator. (C) The
hearing that none of the subscribing witnesses testator intended a donation intervivos
resides in the province, but that the deposition of but unwittingly executed a will. (D) An
one or more of them can be taken elsewhere, the error in the name of the person nominated
court may, on motion, direct it to be taken, and may as executor.
authorize a photographic copy of the will to be made
and to be presented to the witness on his
examination, who may be asked the same Evidence of forgery may be admitted by the
questions with respect to it, and to the handwriting probate court even if there was no allegation
of the testator and others, as would be pertinent and of forgery. The issues are defined by law and
competent if the original will were present. not by the parties (Review Lecture). Thus,
evidence of forgery may be admitted even if
Section 8. Proof when witnesses dead or insane the opposition is based only on fraud.
or do not reside in the Philippines. — If the
appears at the time fixed for the hearing that the Separate Wills which contain essentially the
subscribing witnesses are dead or insane, or that same provisions and pertain to property which
none of them resides in the Philippines, the court in all probability is conjugal in nature, practical
may admit the testimony of other witnesses to considerations dictate their joint probate
prove the sanity of the testator, and the due (Motoomull vs. Dela Paz, 187 SCRA 743).
execution of the will; and as evidence of the
execution of the will, it may admit proof of the
handwriting of the testator and of the subscribing Section 10. Contestant to file grounds of
witnesses, or of any of them. contest. — Anyone appearing to contest the will
must state in writing his grounds for opposing
Section 9. Grounds for disallowing will. — The its allowance, and serve a copy thereof on the
will shall be disallowed in any of the following cases: petitioner and other parties interested in the
estate.
(a) If not executed and attested as required by
law; Section 11. Subscribing witnesses produced
or accounted for where will contested. — If
(b) If the testator was insane, or otherwise the will is contested, all the subscribing
mentally incapable to make a will, at the time of witnesses, and the notary in the case of wills
its execution; executed under the Civil Code of the Philippines,
if present in the Philippines and not insane, must
(c) If it was executed under duress, or the be produced and examined, and the death,
influence of fear, or threats; absence, or insanity of any of them must be
satisfactorily shown to the court. If all or some of
such witnesses are present in the Philippines
but outside the province where the will has been

________________________________________________________________________________________________
filed, their deposition must be taken. If any or all of country, may be allowed, filed, and recorded by
them testify against the due execution of the will, or the proper Court of First Instance in the
do not remember having attested to it, or are Philippines.
otherwise of doubtful credibility, the will may
nevertheless, be allowed if the court is satisfied from NOTE: A will allowed or probated in a foreign
the testimony of other witnesses and from all the country must be REPROBATED in the
evidence presented that the will was executed and Philippines. If the decedent owns properties in
attested in the manner required by law. different countries, separate administration
proceedings must be had in said countries.
If a holographic will is contested, the same shall be
allowed if at least three (3) witnesses who know the 2 TYPES OF ESTATE PROCEEDINGS
handwriting of the testator explicitly declare that the
will and the signature are in the handwriting of the A. Principal Administration
testator; in the absence of any competent It is that which is granted in the jurisdiction of the
witnesses, and if the court deem it necessary, decedent’s domicile (aka Domiciliary
expert testimony may be resorted to. Administration).
Section 12. Proof where testator petitions for B. Ancillary Administration

allowance of holographic will. — Where the It is the administration proceeding instituted in
testator himself petitions for the probate of his the place where the decedent had his estate.
holographic will and no contest is filed, the fact that
the affirms that the holographic will and the NECESSARY EVIDENCE IN REPROBATE OF
signature are in his own handwriting, shall be THE WILL:
sufficient evidence of the genuineness and due 1. Due execution of the will according to
execution thereof. If the holographic will is the foreign laws;
contested, the burden of disproving the 2. The testator had his domicile in the
genuineness and due execution thereof shall be on foreign country and not in the
the contestant. The testator to rebut the evidence Philippines;
for the contestant. 3. The will has been admitted to probate in
such country;
4. The fact that the foreign tribunal is a
Section 13. Certificate of allowance attached to
probate court;
prove will. To be recorded in the Office of
5. The laws of the foreign country on the
Register of Deeds. — If the court is satisfied, upon
procedure and allowance of wills.
proof taken and filed, that the will was duly
executed, and that the testator at the time of its
DOCTRINE OF PROCESSUAL
execution was of sound and disposing mind, and
PRESUMPTION
not acting under duress, menace, and undue
Laws of foreign must be properly alleged and
influence, or fraud, a certificate of its allowance,
signed by the judge, and attested by the seal of the proved according the rules of evidence,
OTHERWISE, the same may be presumed to be
court shall be attached to the will and the will and
the same as that in the Philippines.
certificate filed and recorded by the clerk. Attested
copies of the will devising real estate and of
GR: Laws of foreign countries must be alleged
certificate of allowance thereof, shall be recorded in
and proved. Courts cannot, generally take
the register of deeds of the province in which the
JUDICIAL NOTICE of the same.
lands lie.
Exception: When such foreign law so much
familiar to our own law, as in the case of a
foreign law being adapted or copied by our
legislature. Court sometimes take judicial notice
RULE 77 of such fact.
Allowance of Will Proved Outside of Philippines Section 2. Notice of hearing for allowance. —
and Administration of Estate Thereunder When a copy of such will and of the order or
decree of the allowance thereof, both duly
Section 1. Will proved outside Philippines may authenticated, are filed with a petition for
be allowed here. — Wills proved and allowed in a allowance in the Philippines, by the executor or
foreign country, according to the laws of such other person interested, in the court having
jurisdiction, such court shall fix a time and place
for the hearing, and cause notice thereof to be
________________________________________________________________________________________________
given as in case of an original will presented for Probate of Will: Will Outside of the
allowance. Philippines (2010) No.XV. Pedrillo, a Fil-
Am permanent resident of Los Angeles,
REQUISITES FOR ANCILLARY California at the time of his death,
ADMINISTRATION bequeathed to Winston a sum of money to
1. There must be a will; purchase an annuity. Upon Pedrillo’s
2. Filing of: demise, his will was duly probated in Los
a. copy of the will executed in the foreign Angeles and the specified sum in the will
country; was in fact used to purchase an annuity
b. order or decree of foreign court allowing with XYZ of Hong Kong so that Winston
such; and authentication of (a) and (b) would receive the equivalent of US$1,000
above. per month for the next 15 years. Wanting to
receive the principal amount of the annuity,
3. Notice of time and place of hearing; Winston files for the probate of Pedrillo’s
4. Hearing; and certificate of allowance. will in the Makati RTC. As prayed for, the
court names Winston as administrator of
the estate. Winston now files in the Makati
RTC a motion to compel XYZ to account for
Section 3. When will allowed, and effect thereof. all sums in its possession forming part of
— If it appears at the hearing that the will should be Pedrillo’s estate. Rule on the motion. (5%)
allowed in the Philippines, the court shall so allow it, SUGGESTED ANSWER:
and a certificate of its allowance, signed by the The motion should be denied. Makati
judge, and attested by the seal of the court, to which RTC has no jurisdiction over XYZ of
shall be attached a copy of the will, shall be filed hongkong. The letters of administration
and recorded by the clerk, and the will shall have granted to Winston only covers all
the same effect as if originally proved and allowed in Pedrillo‟s estate in the Philippines. (Rule
such court. 77, Sec. 4) This cannot cover the
annuities in Hongkong. At the outset,
EFFECTS OF ALLOWANCE Makati RTC should not have taken
1. The will shall have the same effect as if cognizance of the petition filed by
originally proved and allowed in the courts Winston, because the will does not cover
of the Philippines; any property of Pedrillo located here in
2. Letters testamentary or administration with the Philippines.
a will annexed shall extend to all estates
located in the Philippines
3. Such estate, after the payment of just debts RULE 78
and expenses of administration, shall be
disposed of according to the will, so far as Letters Testamentary and of Administration,
such will may operate upon it, and the When and to Whom Issued
residue, if any, shall be disposed of as
provided by law in cases of estates in the
Who can administer the estate:
Philippines belonging to persons who are
a. Executor;
inhabitants of another state or country.
b. Administrator, regular or special;
c. Administrator with a will annexed.
Section 4. Estate, how administered. — When a
will is thus allowed, the court shall grant letters EXECUTOR
testamentary, or letters of administration with the He is the one named by the testator in his will for
will annexed, and such letters testamentary or of the administration of his property after his death.
administration, shall extend to all the estate of the
testator in the Philippines. Such estate, after the ADMINISTRATOR
payment of just debts and expenses of He is the one appointed by the court in
administration, shall be disposed of according to accordance with the Rules or governing statutes
such will, so far as such will may operate upon it; to administer and settle the intestate estate or
and the residue, if any shall be disposed of as is such testate estate where the testator did not
provided by law in cases of estates in the name any executor or that the executor named
Philippines belonging to persons who are refuses to accept the trust or fails to file a bond
inhabitants of another state or country. or otherwise incompetent.

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ADMINISTRATOR with a will annexed provided by testator in Compensation

He is the one appointed by the court in cases, when the will, otherwise, sec. governed by sec. 7,
although there is a will, the will does not appoint any 7 Rule 85 applies Rule 85
executor, or if appointed, is either incapacitated or
unwilling to serve as such.
Section 3. Married women may serve. — A
WHO may serve as an executor/administrator? married woman may serve as executrix or
Any COMPETENT person may serve as such. administratrix, and the marriage of a single
woman shall not affect her authority so to serve
Section 1. Who are incompetent to serve as under a previous appointment.
executors or administrators. — No person is
competent to serve as executor or administrator Bar Exam Question 2011
who: (1) Anna filed a petition for appointment as
regular administratrix of her fathers' estate.
(a) Is a minor; Her sister Sophia moved to dismiss the
petition on the ground that the parties, as
(b) Is not a resident of the Philippines; and members of the same family, have not
exerted earnest effort toward a compromise
(c) Is in the opinion of the court unfit to execute prior to the filing of the petition. Should the
the duties of the trust by reason of drunkenness, petition be dismissed? (A) Yes, since such
improvidence, or want of understanding or earnest effort is jurisdictional in all estate
integrity, or by reason of conviction of an cases. (B) No, since such earnest effort is
offense involving moral turpitude. not required in special proceedings. (C)
Yes, since such earnest effort is required
Section 2. Executor of executor not to administer prior to the filing of the case. (D) No, since
estate. — The executor of an executor shall not, as such earnest effort toward a compromise is
such, administer the estate of the first testator. not required in summary proceedings.
EXECUTOR ADMINISTRATOR
Appointed by the court
in case the testator did Section 4. Letters testamentary issued when
not appoint an executor will allowed. — When a will has been proved
Nominated by testator or if the executor and allowed, the court shall issue letters
and appointed by the refused appointment or testamentary thereon to the person named as
court if the will was executor therein, if he is competent, accepts the
disallowed or if the trust, and gives bond as required by these rules.
person did not make
any will
Section 5. Where some coexecutors
Must present will to the
disqualified others may act. — When all of the
court within 20 days
executors named in a will can not act because of
after he knows the
incompetency, refusal to accept the trust, or
death of the testator or
failure to give bond, on the part of one or more
after he knew that he No such duty
of them, letters testamentary may issue to such
was appointed as
of them as are competent, accept and give
executor (if he obtained
bond, and they may perform the duties and
such knowledge after
discharge the trust required by the will.
the death of testator),
unless the will has
reached the court in Section 6. When and to whom letters of
any manner. administration granted. — If no executor is
Testator may provide named in the will, or the executor or executors
that he may serve are incompetent, refuse the trust, or fail to give
without a bond (BUT He must always give a bond, or a person dies intestate, administration
the court may direct him bond shall be granted:
to give a bond
conditioned only to pay (a) To the surviving husband or wife, as
debts). the case may be, or next of kin, or both, in
Compensation may be the discretion of the court, or to such

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person as such surviving husband or wife, or NOTE: The order of appointment of regular
next of kin, requests to have appointed, if administrator is final and appealable.
competent and willing to serve;
REMEDY IF THE APPOINTMENT OF
(b) If such surviving husband or wife, as the ADMINSTRATOR IS SUBJECT OF AN
case may be, or next of kin, or the person APPEAL
selected by them, be incompetent or unwilling, 1. Execution pending appeal;
or if the husband or widow, or next of kin, 2. Appointment of special administrator.
neglects for thirty (30) days after the death of
the person to apply for administration or to
request that administration be granted to BASIS FOR THE PREFERENTIAL RIGHT
some other person, it may be granted to one
or more of the principal creditors, if  The underlying assumption is that those
competent and willing to serve; who will reap the benefits of a wise,
speedy and economical administration
of the estate or those who will most
(c) If there is no such creditor competent and
suffer the consequences of waste,
willing to serve, it may be granted to such
other person as the court may select. improvidence or mismanagement, have
the higher interest and most influential
motive to administer the estate correctly.
Settlement of Estate; Administrator (1998)
A, claiming to be an illegitimate child of the deceased D,
instituted an Intestate proceeding to settle the estate of NOTE: Co-administrators may be appointed for
the latter. He also prayed that he be appointed the benefit of the estate and those interested
administrator of said estate. S, the surviving spouse, therein (Matute vs. CA, 26 SCRA 768).
opposed the petition and A's application to be appointed
the administrator on the ground that he was not the
child of her deceased husband D. The court, however,
appointed A as the RULE 79
administrator of said estate. Subsequently, S, claiming to
be the sole heir of D, executed an Affidavit of
Opposing Issuance Of Letters Testamentary.
Adjudication, adjudicating unto herself the entire estate
Petition And Contest For Letters Of
of her deceased husband D. S then sold the entire estate
Administration
to X. Was the appointment of A as administrator
proper? [2%] Was the action of S in adjudicating the
entire estate of her late husband to herself legal? [3%] Section 1. Opposition to issuance of letters
SUGGESTED ANSWER: testamentary. Simultaneous petition for
1. Yes, unless it is shown that the court gravely-abused administration. — Any person interested in a
its discretion in appointing the illegitimate child as will may state in writing the grounds why letters
administrator, instead of the spouse. While the spouse testamentary should not issue to the persons
enjoys preference, it appears that the spouse has named therein as executors, or any of them, and
neglected to apply for letters of administration within the court, after hearing upon notice, shall pass
thirty (30) days from the death of the decedent. (Sec. 6, upon the sufficiency of such grounds. A petition
Rule 78, Rules of Court; may, at the time, be filed for letters of
Gaspay, Jr. vs. Court of Appeals. 238 SCRA 163.) administration with the will annexed.
ALTERNATIVE ANSWER:
S, the surviving spouse, should have been appointed GR: Any person interested in the will may
administratrix of the estate, in as much as she enjoys oppose the issuance of the letters
first preference in such appointment under the rules. testamentary.
(Sec. 6(a) of Rule 78, Rules of Court.)
SUGGESTED ANSWER: Exception: even where a person who had
2. No. An affidavit of self-adjudication is allowed only if filed a petition for the allowance of the will had
the affiant is the sole heir of the. deceased. (Sec. 1, Rule 74, no right to do so in view of lack of interest in
Rules of Court). In this case, A also claims to be an heir. the estate, nevertheless, when the interested
Moreover, it is not legal because there is already persons did not object to its application, the
apending juridical proceeding for the settlement of the defect in the petition would be deemed cured.
estate. The filing of the petition, may be considered as
having been ratified by the interested parties
(Eusebio vs. Valmores, 97 Phil. 163).

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Section 2. Contents of petition for letters of It has been held that where no notice has
administration. — A petition for letters of been given to the persons believed to have an
administration must be filed by an interested person interest in the estate of the deceased person,
and must show, so far as known to the petitioner: the proceeding for the settlement of the estate
is void (De Guzman vs. Angeles, 162 SCRA
(a) The jurisdictional facts; 347).
(b) The names, ages, and residences of Section 4. Opposition to petition for
the heirs, and the names and residences of administration. — Any interested person may,
the creditors, of the decedent; by filing a written opposition, contest the petition
on the ground of the incompetency of the person
(c) The probable value and character of for whom letters are prayed therein, or on the
ground of the contestant's own right to the
the property of the estate;
administration, and may pray that letters issue to
himself, or to any competent person or person
(d) The name of the person for whom letters named in the opposition.
of administration are prayed.
Settlement of Estate (2010) No.XVI. Sal Mineo
But no defect in the petition shall render void the
issuance of letters of administration. died intestate, leaving a P1 billion estate. He
was survived by his wife Dayanara and their five
Letters of Administration; Interested Person children. Dayanara filed a petition for the
(2008) No.XVIII. Domencio and Gen lived issuance of letters of administration. Charlene,
without benefit of marriage for 20 years, one of the children, filed an opposition to the
during which time they purchased properties petition, alleging that there was neither an
together. After Domencio died without a will, allegation nor genuine effort to settle the estate
Gen filed a petition for letters of
amicably before the filing of the petition. Rule
administration. Domencio’s siblings opposed
the same on the ground that Gen has no legal on the opposition. (5%) SUGGESTED ANSWER:
personality. Decide. SUGGESTED ANSWER: A The opposition should be overruled for lack of
petition for letters of administration may be merit. The allegation that there was a genuine
filed by any “interested person” (Sec. 2, effort to settle the estate amicably before the
Rule 79, Rules of Court). Gen would be filing of the petition is not required by the
considered an interested person if she was Rules. Besides, a petition for issuance of letters
not married to Domenico, because she can
of administration may be contested on either of
claim co-ownership of the properties left by
him under their property regime of a union two grounds : (1) the incompetency of the
without marriage under conditions provided person for whom letters are prayed therein;
in the Family Code 9Arts. 147-148, Family and (2) the contestant‟s own right to the
Code; San Luis vs. San Luis, G.R. No. administration. (Sec. 4, Rule 79).
133743, February 6, 2007).
Grounds for opposition:

Section 3. Court to set time for hearing. Notice
thereof. — When a petition for letters of A. Letters Testamentary—incompetency;
administration is filed in the court having jurisdiction,
such court shall fix a time and place for hearing the B. Letters Administration—incompetency
petition, and shall cause notice thereof to be given and/or preferential right of the oppositor.
to the known heirs and creditors of the decedent,
and to any other persons believed to have an Section 5. Hearing and order for letters to issue.
interest in the estate, in the manner provided in — At the hearing of the petition, it must first be
sections 3 and 4 of Rule 76. shown that notice has been given as
hereinabove required, and thereafter the court
Note: Publication for 3 weeks and notice to heirs, shall hear the proofs of the parties in support of
creditors and other persons believed to have an their respective allegations, and if satisfied that
interest in the estate as required before hearing. the decedent left no will, or that there is no
competent and willing executor, it shall order the
Important: this section is JURISDICTIONAL.

________________________________________________________________________________________________
issuance of letters of administration to the party best One of the obligations Cannot pay the debts of
entitled thereto. to pay debts of the the estate
estate
Section 6. When letters of administration granted Appointed when the Appointed when there
to any applicant. — Letters of administration may decedent died intestate is delay in appointment
be granted to any qualified applicant, though it or did not appoint an of the regular
appears that there are other competent persons executor in the will, or administrator or
having better right to the administration, if such will was disallowed executor/administrator
persons fail to appear when notified and claim the is claiming from the
issuance of letters to themselves. estate
Section 2. Powers and duties of special

RULE 80 administrator. — Such special administrator
shall take possession and charge of the goods,
chattels, rights, credits, and estate of the
Special Administrator
deceased and preserve the same for the
executors or administrator afterwards appointed,
Section 1. Appointment of special administrator. and for that purpose may commence and
— When there is delay in granting letters maintain suits as administrator. He may sell only
testamentary or of administration by any cause such perishable and other property as the court
including an appeal from the allowance or orders sold. A special administrator shall not be
disallowance of a will, the court may appoint a liable to pay any debts of the deceased unless
special administrator to take possession and charge so ordered by the court.
of the estate of the deceased until the questions
causing the delay are decided and executors or
administrators appointed.
POWERS AND DUTIES OF SPECIAL
ADMINISTRATOR:
1. Possession and charge of goods;
Appointment of Special Administrator proper
2. Preservation of the same;
when:
3. Commence and maintain suit;
1. There is delay in granting the letters,
4. Sell only perishable property or as
including appeal in the probate of the will;
ordered by the court;
2. Executor is himself has a claim against the
5. Pay debts only when ordered.
estate (sec. 8, Rule 86).
NOTE: In this 2nd instance, the administrator shall Section 3. When powers of special
have the same powers as that of a general administrator cease. Transfer of effects.
administrator. Pending suits. — When letters testamentary or
of administration are granted on the estate of
ORDER OF APPOINTMENT DISCRETIONARY the deceased, the powers of the special
The preference accorded by sec. 6, Rule 78 to the administrator shall cease, and he shall forthwith
surviving spouse refers to the appointment of a deliver to the executor or administrator the
regular administrator, not to the order appointing a goods, chattels, money, and estate of the
special administrator. The latter lies within the deceased in his hands. The executor or
discretion of the probate court (Pijuan vs. De administrator may prosecute to final judgment
Gurrea, 124 Phil. 1527). suits commenced by such special administrator.
Note: The appointment or removal of a special NOTE: It is possible for the executor or
administrator is discretionary and is thus administrator whose appointment has been
interlocutory and may be assailed through a petition challenged by appeal to be appointed also as
for certiorari under Rule 65 (Manungas vs. Loreto, special administrator pending such appeal.
GR No. GR No. 193161, Aug 22, 2011).
There is no harm in appointing the same person
as special administrator because there is a vast
ADMINISTRATOR SPECIAL difference between the powers and duties of the
ADMINISTRATOR two positions.
Appointment may be Appointment is an
subject of an appeal interlocutory order

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RULE 81 Section 3. Bonds of joint executors and

administrators. — When two or more persons
Bond of Executors and Administrators are appointed executors or administrators the
court may take a separate bond from each, or a
Section 1. Bond to be given issuance of letters. joint bond from all.
Amount. Conditions. — Before an executor or
administrator enters upon the execution of his trust, Section 4. Bond of special administrator. — A
and letters testamentary or administration issue, he special administrator before entering upon the
shall give a bond, in such sum as the court directs, duties of his trust shall give a bond, in such sum
conditioned as follows: as the court directs, conditioned that he will
make and return a true inventory of the goods,
chattels, rights, credits, and estate of the
(a) To make and return to the court, within
three (3) months, a true and complete deceased which come to his possession or
knowledge, and that he will truly account for
inventory of all goods, chattels, rights,
such as are received by him when required by
credits, and estate of the deceased which
the court, and will deliver the same to the
shall come to his possession or knowledge
person appointed executor or administrator, or
or to the possession of any other person for
to such other person as may be authorized to
him;
receive them.
(b) To administer according to these rules,
and, if an executor, according to the will of
the testator, all goods, chattels, rights,
credits, and estate which shall at any time RULE 82
come to his possession or to the possession
of any other person for him, and from the Revocation of Administration, Death,
proceeds to pay and discharge all debts, Resignation, and Removal of Executors or
legacies, and charges on the same, or such Administrators
dividends thereon as shall be decreed by
the court; Section 1. Administration revoked if will
discovered. Proceedings thereupon. — If
(c) To render a true and just account of his after letters of administration have been granted
administration to the court within one (1) on the estate of a decedent as if he had died
year, and at any other time when required intestate, his will is proved and allowed by the
by the court; court, the letters of administration shall be
revoked and all powers thereunder cease, and
(d) To perform all orders of the court by the administrator shall forthwith surrender the
him to be performed. letters to the court, and render his account with
such time as the court directs. Proceeding for
the issuance of letters testamentary or of
Terms and effectivity of bond does not depend on
administration under the will shall be as
the payment of premium and does not expire until
the administration is closed. As long as the probate hereinbefore provided.
court retains jurisdiction of the estate, the bond
contemplates a continuing liability (Luzon Surety vs. NOTE: Discovery of the will does not ipso
Quebrar, 127 SCRA 295). facto nullify the letters of administration
already issued until the will has been proved
and allowed (De Parreno vs. Aranzado, GR
Section 2. Bond of executor where directed in
will. When further bond required. — If the testator NO. L-27657, Aug. 30, 1982).
in his will directs that the executors serve without
Probate of Will; Mandatory Nature (2002)
bond, or with only his individual bond, he may be
What should the court do if, in the course of
allowed by the court to give bond in such sum and
with such surety as the court approves conditioned intestate proceedings, a will is found and it is
only to pay the debts of the testator; but the court submitted for probate? Explain. (2%)
SUGGESTED ANSWER:
may require of the executor a further bond in case
If a will is found in the course of intestate
of a change in his circumstance, or for other
proceedings and it is submitted for probate, the
sufficient case, with the conditions named in the last
intestate proceedings will be suspended until the will
preceding section.
is probated. Upon the probate of the will, the
intestate proceedings will be terminated.
________________________________________________________________________________________________
(Rule 82, sec. 1).
Section 2. Court may be remove or accept RULE 83

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

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1. Legitimate Surviving Spouse (Nepumoceno estate of the deceased so long as it is necessary

vs. CA); for the payment of the debts and the expenses
2. Children of the decedent. of administration.
Note: According to art. 188, NCC, the children need POWERS OF EXECUTOR OR
not be minors or incapacitated to be entitled to ADMINISRATOR:
allowance (Santero vs. CFI of Cavite, GR NO.
61700-03, Sept. 24, 1987). 1. To have access to partnership books
and papers , in case the decedent is a
Grandchildren are not entitled to allowance under partner;
Rule 83 (Heirs of Ruiz s CA). 2. To examine and make invoices of the
property belonging to the partnership;
When liabilities exceed the assets of the estate, his 3. To make the necessary repairs and to
widow and children are not entitled to support make improvements thereon when
pending liquidation of the intestate estate, on the approved by the court;
ground that such support, having the character of an 4. To possess and manage the estate
advance payment to be deducted from the when necessary for the payment of
respective share of heir during distribution (Wagner debts or payment of expenses for
vs. Moore). administration;
5. To maintain in tenantable repairs
houses and other structures
RULE 84 SOME RESTRICTIONS ON THE POWERS OF

THE EXECUTOR OR ADMINISTRATOR:
General Powers and Duties of Executors and 1. Cannot acquire by purchase, even at
Administrators public or judicial auction, either in
person or mediation of another, the
property under administration;
Section 1. Executor or administrator to have
2. Cannot borrow money without authority
access to partnership books and property. How
from the court;
right enforced. — The executor or administrator of
3. Cannot speculate with funds under
the estate of a deceased partner shall at all times
administration;
have access to, and may examine and take copies
4. Cannot lease the property for more than
of, books and papers relating to the partnership
one year;
business, and make examine and make invoices of
5. Cannot continue the business of the
the property belonging to such partnership; and the
deceased unless authorized by the
surviving partner or partners, on request, shall
court; and
exhibit to him all such books, papers, and property
6. Cannot profit in the increase or
in their hands or control. On the written application
of such executor or administrator, the court having decrease in value of the property under
administration.
jurisdiction of the estate may order any such
surviving partner or partners to freely permit the
exercise of the rights, and to exhibit the books,
papers, and property, as in this section provided,
and may punish any partner failing to do so for RULE 85
contempt.
Accountability and Compensation of
Section 2. Executor or administrator to keep Executors and Administrators
buildings in repair. — An executor or administrator
shall maintain in tenantable repair the houses and Section 1. Executor or administrator
other structures and fences belonging to the estate, chargeable with all estate and income. —
and deliver the same in such repair to the heirs or Except as otherwise expressly provided in the
devisees when directed so to do by the court. following sections, every executor or
administrator is chargeable in his account with
Section 3. Executor or administrator to retain the whole of the estate of the deceased which
whole estate to pay debts, and to administer has come into his possession, at the value of the
estate not willed. — An executor or administrator appraisement contained in the inventory; with all
shall have the right to the possession and the interest, profit, and income of such estate;
management of the real as well as the personal and with the proceeds of so much of the estate

________________________________________________________________________________________________
as is sold by him, at the price at which it was sold. costs awarded against him shall be allowed in
his administration account, unless it appears
GR: The executor or administrator is that the action or proceeding in which the costs
accountable for the whole estate of the are taxed was prosecuted or resisted without
deceased. just cause, and not in good faith.
Exception: He is not accountable for properties Section 7. What expenses and fees allowed
which never came into his possession. executor or administrator. Not to charge for
services as attorney. Compensation
Exception to the exception: When through provided by will controls unless renounced.
untruthfulness to the trust or his own inaction, — An executor or administrator shall be allowed
the executor or administrator failed to recover the necessary expenses the care, management,
part of the estate which came into his and settlement of the estate, and for his
knowledge. services, four pesos per day for the time
actually and necessarily employed, or a
Section 2. Not to profit by increase or lose by commission upon the value of so much of the
decrease in value. — No executor or administrator estate as comes into his possession and is
shall profit by the increase, or suffer loss by the finally disposed of by him in the payment of
decrease or destruction, without his fault, of any part debts, expenses, legacies, or distributive shares,
of the estate. He must account for the excess when or by delivery to heirs or devisees, of two per
he sells any part of the estate for more than the centum of the first five thousand pesos of such
appraisement, and if any is sold for the less than the value, one per centum of so much of such value
appraisement, he is not responsible for the loss, if as exceeds five thousand pesos and does not
the sale has justly made. If he settles any claim exceed thirty thousand pesos, one-half per
against the estate for less than its nominal value, he centum of so much of such value as exceed one
is entitled to charge in his account only the amount hundred thousand pesos. But in any special
he actually paid on the settlement. case, where the estate is large, and the
settlement has been attended with great
difficulty, and has required a high degree of
Section 3. When not accountable for debts due
capacity on the part of the executor or
estate. — No executor or administrator shall be
administrator, a greater sum may be allowed. If
accountable for debts due the deceased which
objection to the fees allowed be taken, the
remain uncollected without his fault.
allowance may be re-examined on appeal.
Section 4. Accountable for income from realty
If there are two or more executors or
used by him. — If the executor or administrator
administrators, the compensation shall be
uses or occupies any part of the real estate himself,
apportioned among them by the court according
he shall account for it as may be agreed upon
between him and the parties interested, or adjusted to the services actually rendered by them
respectively.
by the court with their assent; and if the parties do
not agree upon the sum to be allowed, the same
may be ascertained by the court, whose When the executors or administrator is an
determination in this respect shall be final. attorney, he shall not charge against the estate
any professional fees for legal services rendered
by him.
Section 5. Accountable if he neglects or delays
to raise or pay money. — When an executor or
administrator neglects or unreasonably delays to When the deceased by will makes some other
raise money, by collecting the debts or selling the provision for the compensation of his executor,
real or personal estate of the deceased, or neglects that provision shall be a full satisfaction for his
to pay over the money he has in his hands, and the services unless by a written instrument filed in
value of the estate is thereby lessened or the court he renounces all claim to the
unnecessary cost or interest accrues, or the compensation provided by the will.
persons interested suffer loss, the same shall be
deemed waste and the damage sustained may be NOTES: An administrator may not recover
charged and allowed against him in his account, attorney’s fees from the estate, his
and he shall be liable therefor on his bond. compensation is fixed by the Rules but such
compensation is in the nature of executor’s or
Section 6. When allowed money paid as cost. — administrator’s commission, and never as
The amount paid by an executor or administrator for attorney’s fees.

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surety in respect to such account may, upon

PROCEDURE FOR THE COLLECTION OF application, be admitted as party to such
ATTORNEY’S FEES: accounting.
1. Request the administrator to make payment
and file a action against him, in his personal GR: Execution is not available in settlement
capacity and not as administrator, should he proceedings.
fail to pay;
Exceptions:
2. Petition in the testate or intestate 1. Satisfaction of contributive share -
proceeding asking the court, after notice to Sec.6, Rule88;
all persons interested, allow his claim and 2. Satisfaction of expenses of partition -
direct the administrator to pay it as an Sec. 3, Rule 90;
expense of administration. 3. Sec. 13, rule 142 (Ucat).
Section 8. When executor or administrator to render

account. — Every executor or administrator shall
render an account of his administration within one RULE 86
(1) year from the time of receiving letters
testamentary or of administration, unless the court
otherwise directs because of extensions of time for Claims Against Estate
presenting claims against, or paying the debts of,
the estate, or for disposing of the estate; and he Notes: prior recourse to Barangay conciliation is
shall render such further accounts as the court may not required in filing claims against the estate.
require until the estate is wholly settled. Estate is not a natural person. It is just an
extension of personality of the deceased for the
NOTE: The fact that the final account had been purpose of settling his properties.
approved does not divest the court of jurisdiction to
require supplemental accounting, aside from the Rule 86 covers MONEY CLAIMS arising from
initial accounting. The Rules provide that “he shall contracts, express or implied.
render such further account as the court may
require until the estate is wholly settled”. CLAIM
It refers to any debt or pecuniary demand
against the decedent’s estate.
Section 9. Examinations on oath with respect to
account — The court may examine the executor or
administrator upon oath with respect to every matter Section 1. Notice to creditors to be issued by
relating to any account rendered by him, and shall court. — Immediately after granting letters
so examine him as to the correctness of his account testamentary or of administration, the court shall
before the same is allowed, except when no issue a notice requiring all persons having
objection is made to the allowance of the account money claims against the decedent to file
and its correctness is satisfactorily established by them in the office of the clerk of said court.
competent proof. The heirs, legatees, distributees,
and creditors of the estate shall have the same PURPOSE: For the speedy settlement of the
privilege as the executor or administrator of being affairs of the deceased person and early
examined on oath on any matter relating to an delivery of the property into the hands of the
administration account. persons entitled to it.
Section 10. Account to be settled on notice. — Section 2. Time within which claims shall be
Before the account of an executor or administrator filed. — In the notice provided in the preceding
is allowed, notice shall be given to persons section, the court shall state the time for the
interested of the time and place of examining and filing of claims against the estate, which shall not
allowing the same; and such notice may be given be more than twelve (12) nor less than six (6)
personally to such persons interested or by months after the date of the first publication of
advertisement in a newspaper or newspapers, or the notice. However, at any time before an order
both, as the court directs. of distribution is entered, on application of a
creditor who has failed to file his claim within the
Section 11. Surety on bond may be party to previously limited, the court may, for cause
accounting. — Upon the settlement of the account shown and on such terms as are equitable,
of an executor or administrator, a person liable as

________________________________________________________________________________________________
allow such claim to be filed within a time not any suit that the executor or administrator may
exceeding one (1) month. bring against such creditor.
Bar Exam Question 2012 Claims arising AFTER the death of the
24. The statute of "non-claims" requires that: decedent cannot be presented except for:
a. claims against the estate be published by 1. Funeral expenses; and
the creditors. 2. Expenses of the last sickness of the
b. money claims be filed with the clerk of decedent.
court within the time prescribed by the
rules. Claims for taxes (inheritance and estate) due
and assessed after the death of the decedent
c. claims of an executor or administrator
need not be presented in a form of a claim.
against the estate be filed with the special
administrator.
The court, in the exercise of administrative
d. within two (2) years after settlement and
supervision over the executor or administrator,
distribution of the estate, an heir unduly
may direct the latter to pay such taxes. And the
deprived of participation in the estate may heirs, even after the distribution, are liable for
compel the re-settlement of the estate. such taxes.
SUGGESTED ANSWER:
(b), After the Court has granted letters
Section 3. Publication of notice to creditors.
testamentary or administration, it shall
immediately issue a notice requiring all — Every executor or administrator shall,
immediately after the notice to creditors is
persons having money claims against the
issued, cause the same to be published three
decedent to file them in the office of the
(3) weeks successively in a newspaper of
clerk of court. (Rule 86, Sec.1, Rules of
general circulation in the province, and to be
Court). The Notice shall state the time for
posted for the same period in four public
the filing of claims against the estate,
places in the province and in two public
which shall not be more than twelve (12) places in the municipality where the decedent
nor less than six (6) months after the date last resided.
of the first publication of the notice. (Rule
86, Sec.2, Rules of Court).
Section 4. Filing of copy of printed notice. —
Within ten (10) days after the notice has been
STATUTE OF NON-CLAIMS published and posted in accordance with the
preceding section, the executor or administrator
It is the period fixed by the Rules for the filing of
shall file or cause to be filed in the court a
claims against the estate.
printed copy of the notice accompanied with an
GR: Claims not filed within the period provided by affidavit setting forth the dates of the first and
the notice, are BARRED forever. last publication thereof and the name of the
newspaper in which the same is printed.
Exception: Belated Claims—claims not filed within
the original period fixed by the court. On application Section 5. Claims which must be filed under
of any creditor who has failed to file his claim within the notice. If not filed, barred; exceptions. —
the time previously limited, at ANY TIME before as All claims for money against the decent, arising
ORDER OF DISTRIBUTION is entered, the court from contract, express or implied, whether the
MAY, for cause shown and such terms as are same be due, not due, or contingent, all claims
equitable, allow such claim to be filed within a time for funeral expenses and expense for the last
NOT exceeding 1 month from order allowing the sickness of the decedent, and judgment for
filing of belated claims. money against the decent, must be filed within
the time limited in the notice; otherwise they are
Statute of Non-claims SUPERSEDES the Statute of barred forever, except that they may be set forth
Limitations insofar as the debts of the deceased as counterclaims in any action that the executor
person are concerned because if a creditor fails to or administrator may bring against the claimants.
file his claim within the time fixed by the court, then Where an executor or administrator commences
the claim is barred forever. However, BOTH Statute an action, or prosecutes an action already
of Non-claims and Statute of Limitations must commenced by the deceased in his lifetime, the
CONCUR in order for the creditor to collect. debtor may set forth by answer the claims he
NOTE: However, a claim barred by the Statute of has against the decedent, instead of presenting
Non-claims may be filed as a COUNTERCLAIM in them independently to the court as herein

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provided, and mutual claims may be set off against Note, however, that under the law, a creditor
each other in such action; and if final judgment is has the right to choose who among the
rendered in favor of the defendant, the amount so solidary debtors he would ask for payment.
determined shall be considered the true balance
against the estate, as though the claim had been Art. 1216, NCC. The creditor may
presented directly before the court in the proceed against any one of the solidary
administration proceedings. Claims not yet due, or
debtors or some or all of them
contingent, may be approved at their present value.
simultaneously. The demand made against
Note: Claims referred to in this section refer to one of them shall not be an obstacle to those
claims fro the recovery of money and which are not which may subsequently be directed against
secured by a lien against the property of the estate the others, so long as the debt has not been
(Olave vs. Carlos, 208 Phil. 678). fully collected.
ACTIONS WHICH MUST BE FILED WITHIN THE Section 7. Mortgage debt due from estate. —
STATUTE OF NON-CLAIMS (actions which do A creditor holding a claim against the deceased
not Survive): secured by mortgage or other collateral security,
1. Money claims, debts incurred by the may abandon the security and prosecute his
deceased during his lifetime arising from claim in the manner provided in this rule, and
contract: share in the general distribution of the assets of
a) Express or implied; the estate; or he may foreclose his mortgage or
b) Due or not due; realize upon his security, by action in court,
c) Absolute or contingent. making the executor or administrator a party
defendant, and if there is a judgment for a
2. Claims for funeral expenses; deficiency, after the sale of the mortgaged
3. Claims for the last illness of the decedent; premises, or the property pledged, in the
4. Judgment for money against the decedent. foreclosure or other proceeding to realize upon
the security, he may claim his deficiency
Absolute Claim judgment in the manner provided in the
It is such a claim as, if contested between living preceding section or he may rely upon his
persons, would be proper subject of immediate legal mortgage or other security alone, and
action and would supply a basis of a judgment for a foreclosure the same at any time within the
sum certain period of the statute of limitations, and in that
event he shall not be admitted as a creditor, and
Contingent Claim shall receive no share in the distribution of the
It is a conditional claim that is subject to the other assets of estate; but nothing herein
happening of a future uncertain event. contained shall prohibit the executor or
Claims no yet due or contingent may be approved at administrator from redeeming the property
their present value. mortgaged or pledged, by paying the debt for
which it is held as security, under the direction of
A claim that is extinguished by death should be the court, if the court shall adjudge it to be for
distinguished from an action which does not survive. the best interest of the estate that such
A claim is extinguished by reason of death if the redemption shall be made.
action is personal to either parties such as in case
of legal separation, annulment or declaration of
ALTERNATIVE REMEDIES OF A CREDITOR
nullity of marriage.
HAVING A CLAIM SECURED BY A
MORTGAGE OR OTHER COLLATERAL
Section 6. Solidary obligation of decedent. — SECURITY:
Where the obligation of the decedent is solidary with
another debtor, the claim shall be filed against the 1. ABANDON the security and prosecute
decedent as if he were the only debtor, without his claim against the estate and share in
prejudice to the right of the estate to recover the general distribution of assets of the
contribution from the debtor. In a joint obligation of estate;
the decedent, the claim shall be confined to the
portion belonging to him. 2. FORECLOSE his mortgage or realize
upon his security by action in court
See the case of Jaucian vs. Quero, 38 Phil. 7071). making the executor or administrator a
party defendant and if there is a

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judgment for deficiency, he may file appoint a special administrator (Rule 86,
(contingent) a claim against the estate Sec. 8, Rules of Court).
within the statute of non-claims;
3. RELY SOLELY ON HIS MORTGAGE and

foreclose the same at any time within the
Section 9. How to file a claim. Contents
statute of limitations but he cannot be
thereof. Notice to executor or administrator.
admitted as creditor and shall not receive in
— A claim may be filed by delivering the same
the distribution of the other assets of the
with the necessary vouchers to the clerk of court
estate.
and by serving a copy thereof on the executor or
administrator. If the claim be founded on a bond,
This remedies are alternative, the availment of one
bill, note, or any other instrument, the original
bars the availment of other remedies.
need not be filed, but a copy thereof with all
endorsements shall be attached to the claim and
Important notes:
filed therewith. On demand, however, of the
executor or administrator, or by order of the
Q: Will death of the mortgagor revoked the
court or judge, the original shall be exhibited,
stipulation allowing the mortgagee to extra-judicially
unless it be lost or destroyed, in which case the
foreclose the mortgage?
claimant must accompany his claim with affidavit
A: NO. special power to foreclose is not revoked
or affidavits containing a copy or particular
because it is an agency coupled with interest. It is
description of the instrument and stating its loss
an agency entered for the fulfillment of a previous
or destruction. When the claim is due, it must be
binding contract.
supported by affidavit stating the amount justly
due, that no payments have been made thereon
A person dealing with an administrator or executor
which are not credited, and that there are no
cannot raise the defense of being a purchaser of
offsets to the same, to the knowledge of the
good faith (and of value). There is a conclusive
affiant. If the claim is not due, or is contingent,
presumption of Knowledge of the limitations of the
when filed, it must also be supported by
powers of the executor/administrator.
affidavits stating the particulars thereof. When
the affidavit is made by a person other than the
Section 8. Claim of executor or administrator claimant, he must set forth therein the reason
against an estate. — If the executor or why it is not made by the claimant. The claim
administrator has a claim against the estate he once filed shall be attached to the record of the
represents, he shall give notice thereof, in writing, to case in which the letters testamentary or of
the court, and the court shall appoint a special administration were issued, although the court,
administrator, who shall, in the adjustment of such in its discretion, and as a matter of convenience,
claim, have the same power and be subject to the may order all the claims to be collected in a
same liability as the general administrator or separate folder.
executor in the settlement of other claims. The court
may order the executor or administrator to pay to
HOW TO FILE A CLAIM
the special administrator necessary funds to defend
1. Deliver the claim with the necessary
such claim.
vouchers to the clerk of court;
2. Serve a copy thereof to the executor or
Bar Exam Question 2012 administrator;
76. A special administrator may be appointed 3. If the claim is due, it must be supported
by a court when: by affidavit stating the amount due and
a. the executor cannot post a bond. the fact that there has been no offsets;
b. the executor fails to render an account. and
c. regular administrator has a claim against 4. If the claim is contingent, it must be
estate he represents. accompanied by an affidavit stating the
d. a Motion for Reconsideration is filed with particulars thereof.
respect to a decision disallowing probate of a
will. Section 10. Answer of executor or
administrator. Offsets —Within fifteen (15)
SUGGESTED ANSWER: (c), If the executor or days after service of a copy of the claim on the
administrator has a claim against estate he executor or administrator, he shall file his
represents, he shall give notice thereof, in answer admitting or denying the claim
writing, to the court, and the court shall specifically, and setting forth the admission or

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denial. If he has no knowledge sufficient to enable be that he pay, in due course of administration,
him to admit or deny specifically, he shall state such the amount ascertained to be due, and it shall
want of knowledge. The executor or administrator in not create any lien upon the property of the
his answer shall allege in offset any claim which the estate, or give to the judgment creditor any
decedent before death had against the claimant, priority of payment.
and his failure to do so shall bar the claim forever. A
copy of the answer shall be served by the executor Note: The Mode of Appeal is Record on
or administrator on the claimant. The court in its Appeal and must be filed within 30 days
discretion may extend the time for filing such from notice of judgment.
answer.
Section 14. Costs. — When the executor or
Intestate Proceedings (2002) administrator, in his answer, admits and offers to
X filed a claim in the intestate proceedings of D. D’s pay part of a claim, and the claimant refuses to
administrator denied liability and filed a counterclaim accept the amount offered in satisfaction of his
against X. X’s claim was disallowed. claim, if he fails to obtain a more favorable
(1) Does the probate court still have jurisdiction to judgment, he cannot recover costs, but must pay
allow the claim of D’s administrator by way of offset? to the executor or administrator costs from the
Why? (2%) time of the offer. Where an action commenced
(2) Suppose D’s administrator did not allege any claim against the deceased for money has been
against X by way of offset, can D’s administrator discontinued and the claim embraced therein
prosecute the claim in an independent proceeding/ why/ presented as in this rule provided, the prevailing
(3%) party shall be allowed the costs of his action up
SUGGESTED ANSWER: to the time of its discontinuance.
(1) No, because since the claim of X was disallowed,
there is no amount against which to offset the claim of
D’s administrator.
(2) Yes, D’s administrator can prosecute the claim in an
RULE 87
independent proceeding since the claim of X was
disallowed. If X had a valid claim and D’s administrator
did not allege any claim against X by way of offset, his Actions By and Against Executors and
failure to do so would bar his claim forever. Administrators
(Rule 86, sec.10).
NOTE: Executor/administrator may sue and
be sued without prior leave of court.
Section 11. Disposition of admitted claim. — Any
claim admitted entirely by the executor or Section 1. Actions which may and which may
administrator shall immediately be submitted by the not be brought against executor or
clerk to the court who may approve the same administrator. — No action upon a claim for the
without hearing; but the court, in its discretion, recovery of money or debt or interest thereon
before approving the claim, may order that known shall be commenced against the executor or
heirs, legatees, or devisees be notified and heard. If administrator; but to recover real or personal
upon hearing, an heir, legatees, or devisee opposes property, or an interest therein, from the estate,
the claim, the court may, in its discretion, allow him or to enforce a lien thereon, and actions to
fifteen (15) days to file an answer to the claim in the recover damages for an injury to person or
manner prescribed in the preceding section. property, real or personal, may be commenced
against him.
Section 12. Trial of contested claim. — Upon the
filing of an answer to a claim, or upon the expiration Actions which may be directly commenced
of the time for such filing, the clerk of court shall set against the executor or administrator
the claim for trial with notice to both parties. The
court may refer the claim to a commissioner. 1. Recovery of real or personal property or
any interest therein from the estate;
Section 13. Judgment appealable. — The 2. Enforcement of a lien thereon;
judgment of the court approving or disapproving a 3. Action to recover damages for any injury
claim, shall be filed with the record of the to person or property, real or personal
administration proceedings with notice to both (tortuous acts)..
parties, and is appealable as in ordinary cases. A
judgment against the executor or administrator shall

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These are actions that survive the death of the prescription of judgment (Romualdez vs. Tiglao,
decedent. 105 SCRA 762).
Bar Exam Question 2011 Section 2. Executor or administrator may

(29) Which of the following claims survive the bring or defend actions which survive. — For
death of the defendant and need not be the recovery or protection of the property or
presented as a claim against the estate? (A) rights of the deceased, an executor or
Contingent money claims arising from administrator may bring or defend, in the right of
contract. (B) Unenforced money judgment deceased, actions for causes which survive.
against the decedent, with death occurring
before levy on execution of the property. (C) Section 3. Heir may not sue until share
Claims for damages arising from quasi- assigned — When an executor or administrator
delict. (D) Claims for funeral expenses. is appointed and assumes the trust, no action
to recover the title or possession of lands or for
damages done to such lands shall be
Actions; Survives Death of the Defendant (2000) maintained against him by an heir or devisee
PJ engaged the services of Atty. ST to represent him in a until there is an order of the court assigning such
civil case filed by OP against him which was docketed as lands to such heir or devisee or until the time
Civil Case No. 123. A retainership agreement was allowed for paying debts has expired.
executed between PJ and Atty. ST whereby PJ promised
to pay Atty. ST a retainer sum of P24,000.00 a year and Section 4. Executor or administrator may
to transfer the ownership of a parcel of land to Atty. ST compound with debtor. — Within the approval
after presentation of PJ’s evidence. PJ did not comply of the court, an executor or administrator may
with his undertaking. Atty. ST filed a case against PJ compound with the debtor of the deceased for a
which was docketed as Civil Case No. 456. During the debt due, and may give a discharge of such debt
trial of Civil Case No. 456, PJ died. 1 Is the death of PJ a on receiving a just dividend of the estate of the
valid ground to dismiss the money claim of Atty. ST in debtor.
Civil Case No. 456? Explain. (2%)
2 Will your answer be the same with respect to Section 5. Mortgage due estate may be
the real property being claimed by Atty. ST in Civil foreclosed. — A mortgage belonging to the
Case No. 456? Explain (2%) estate of a deceased person, as mortgagee or
SUGGESTED ANSWER:
assignee of the right or a mortgage, may be
1 No. Under Sec. 20, Rule 3, 1997 Rules of Civil
foreclosed by the executor or administrator.
Procedure, when the action is for recovery of money
arising from contract, express or implied, and the
defendant dies before entry of final judgment in the Section 6. Proceedings when property
court in which the action is pending at the time of such concealed, embezzled, or fraudulently
conveyed. — If an executor or administrator,
death, it shall not be dismissed but shall instead be
heir, legatee, creditor or other individual
allowed to continue until entry of final judgment. A
interested in the estate of the deceased,
favorable judgment obtained by the plaintiff shall be
complains to the court having jurisdiction of the
enforced in the manner especially provided in the Rules
estate that a person is suspected of having
for prosecuting claims against the estate of a deceased concealed, embezzled, or conveyed away any of
person. the money, goods, or chattels of the deceased,
2 Yes, my answer is the same. An action to or that such person has in his possession or has
recover real property in any event survives the death of knowledge of any deed, conveyance, bond,
the defendant. (Sec. 1, Rule 87, Rules of Court). contract, or other writing which contains
However, a favorable judgment may be enforced evidence of or tends or discloses the right, title,
in accordance with Sec. 7(b) Rule 39 (1997 Rules interest, or claim of the deceased, the court may
of Civil Procedure) against the executor or cite such suspected person to appear before it
administrator or successor in interest of the and may examine him on oath on the matter of
deceased. such complaint; and if the person so cited
refuses to appear, or to answer on such
The estate must be impleaded. The executor or examination or such interrogatories as are put to
administrator is just a representative party. him, the court may punish him for contempt, and
may commit him to prison until he submits to the
An action for the revival of money judgment may be order of the court. The interrogatories put any
filed against the administrator to preempt the such person, and his answers thereto, shall be
in writing and shall be filed in the clerk's office.

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PURPOSE: To elicit information or secure evidence conveyance would be void as against his
from those persons suspected as having possessed creditors, and the subject of the attempted
or having knowledge of properties belonging to the conveyance would be liable to attachment by
deceased, or having concealed, embezzled, or any of them in his lifetime, the executor or
having conveyed away any properties of the administrator may commence and prosecute to
deceased. final judgment an action for the recovery of such
property, right, interest, debt, or credit for the
GR: The probate court has no authority to decide benefit of the creditors; but he shall not be
whether or not the properties belong to the estate or bound to commence the action unless on
to the person examined since the probate court is a application of the creditors of the deceased,
court of limited jurisdiction. not unless the creditors making the application
pay such part of the costs and expenses, or give
Exceptions: security therefor to the executor or administrator,
1. Provisional determination of ownership for as the court deems equitable.
the purpose of including it in the inventory;
2. When the parties are all heirs and they REQUISITES:
voluntarily submitted the issue to the 1. There is deficiency of assets for
probate court and the determination will not payment of debts, etc;
prejudice 3rd persons (Bernardo vs. CA, GR 2. Deceased fraudulently conveyed his
NO. 82483, Sept. 26, 1990). property in his lifetime;
3. The subject property is liable for
Section 7. Person entrusted with estate attachment (not exempt from
compelled to render account. — The court, on execution);
complaint of an executor or administrator, may cite 4. Executor/administrator has no desire to
a person entrusted by an executor or administrator file an action;
with any part of the estate of the deceased to 5. There is leave of court;
appear before it, and may require such person to 6. A bond is filed by the creditors;
render a full account, on oath, of the money, goods, 7. Action is in the name of the executor or
chattels, bonds, account, or other papers belonging administrator.
to such estate as came to his possession in trust for
such executor or administrator, and of his NOTE: Accion Pauliana.
proceedings thereon; and if the person so cited
refuses to appear to render such account, the court Section 10. When creditor may bring action.
may punish him for contempt as having disobeyed a Lien for costs. — When there is such a
lawful order of the court. deficiency of assets, and the deceased in his
lifetime had made or attempted such a
Section 8. Embezzlement before letters issued — conveyance, as is stated in the last preceding
If a person, before the granting of letters section, and the executor or administrator has
testamentary or of administration on the estate of not commenced the action therein provided for,
the deceased, embezzles or alienates any of the any creditor of the estate may, with the
money, goods, chattels, or effects of such permission of the court, commence and
deceased, such person shall be liable to an action in prosecute to final judgment, in the name of the
favor of the executor or administrator of the estate executor or administrator, a like action for the
for double the value of the property sold, recovery of the subject of the conveyance or
embezzled, or alienated, to be recovered for the attempted conveyance for the benefit of the
benefit of such estate. creditors. But the action shall not be
commenced until the creditor has filed in a court
Section 9. Property fraudulently conveyed by a bond executed to the executor or
deceased may be recovered. When executor or administrator, in an amount approved by the
administrator must bring action. — When there is judge, conditioned to indemnify the executor or
a deficiency of assets in the hands of an executor or administrator against the costs and expenses
administrator for the payment of debts and incurred by reason of such action. Such creditor
expenses of administration, and the deceased in his shall have a lien upon any judgment recovered
lifetime had conveyed real or personal property, or a by him in the action for such costs and other
right or interest therein, or any debt or credit, with expenses incurred therein as the court deems
intent to defraud his creditors or to avoid any right, equitable. Where the conveyance or attempted
debt, or duty; or had so conveyed such property, conveyance had been made by the deceased in
right, interest, debt or credit that by law the his lifetime in favor of the executor or

________________________________________________________________________________________________
administrator, the action which a creditor may bring Section 4. Estate to be retained to meet
shall be in the name of all the creditors, and contingent claims. — If the court is satisfied
permission of the court and filing of bond as above that a contingent claim duly filed is valid, it may
prescribed, are not necessary. order the executor or administrator to retain in
his hands sufficient estate to pay such
contingent claim when the same becomes
absolute, or if the estate is insolvent, sufficient to
RULE 88 pay a portion equal to the dividend of the other
creditors.
Payment of the Debts of the Estate
REQUISITES:
1. Contingent claim is duly filed;
Section 1. Debts paid in full if estate sufficient. — 2. The claim is found to be valid;
If, after hearing all the money claims against the 3. The claim has become absolute.
estate, and after ascertaining the amount of such
claims, it appears that there are sufficient assets to
Section 5. How contingent claim becoming
pay the debts, the executor or administrator pay the
absolute in two years allowed and paid.
same within the time limited for that purpose.
Action against distributees later. — If such
contingent claim becomes absolute and is
NOTE: A writ of execution is not the proper presented to the court, or to the executor or
procedure to satisfy debts. Court must order the administrator, within two (2) years from the time
sale or mortgage of the properties of the limited for other creditors to present their claims,
decedent, the proceeds of which will satisfy the it may be allowed by the court if not disputed by
debts and expenses. the executor or administrator and, if disputed, it
may be proved and allowed or disallowed by the
REASON: (a) approval of a claim does not create court as the facts may warrant. If the contingent
a lien over a property of the estate; (b) special claim is allowed, the creditor shall receive
procedure is for the court to order the sale or payment to the same extent as the other
mortgage of properties to satisfy the claims. creditors if the estate retained by the executor or
administrator is sufficient. But if the claim is not
Section 2. Part of estate from which debt paid so presented, after having become absolute,
when provision made by will. — If the testator within said two (2) years, and allowed, the
makes provision by his will, or designates the estate assets retained in the hands of the executor or
to be appropriated for the payment of his debts, the administrator, not exhausted in the payment of
expenses of administration, or the family expenses, claims, shall be distributed by the order of the
they shall be paid according to the provisions of the court to the persons entitled to the same; but the
will; but if the provision made by the will or the assets so distributed may still be applied to the
estate appropriated, is not sufficient for that payment of the claim when established, and the
purpose, such part of the estate of the testator, real creditor may maintain an action against the
or personal, as is not disposed of by will, if any shall distributees to recover the debt, and such
be appropriated for that purpose. distributees and their estates shall be liable for
the debt in proportion to the estate they have
Section 3. Personalty first chargeable for debts, respectively received from the property of the
then realty. — The personal estate of the deceased deceased.
not disposed of by will shall be first chargeable with
the payment of debts and expenses; and if said Note: It has been held that the only instance
personal estate is not sufficient for that purpose, or wherein a creditor can file an action against a
its sale would redound to the detriment of the distributee of the debtor’s assets is under Rule
participants for the estate, the whole of the real 88, sec. 5. The contingent claim must have
estate not dispose of by will, or so much thereof as been established first and allowed in the
is necessary, may be sold, mortgaged, or otherwise probate court before the creditors can file an
encumbered for that purpose by the executor or action directly against the distributees (De
administrator, after obtaining the authority of the Bautista vs. De Guzman, 125 SCRA 682).
court therefor. Any deficiency shall be met by
contributions in accordance with the provisions of
section 6 of this rule. Section 6. Court to fix contributive shares
where devisees, legatees, or heirs have been
possession. — Where devisees, legatees, or

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heirs have entered into possession of portions of the Philippines and the other creditor, according to
estate before the debts and expenses have been their respective claims.
settled and paid, and have become liable to
contribute for the payment of such debts and Note: The underlined portion is the principle of
expenses, the court having jurisdiction of the estate Reciprocity.
may, by order for that purpose, after hearing, settle
the amount of their several liabilities, and order how Section 11. Order for payment of debts. —
much and in what manner each person shall Before the expiration of the time limited for the
contribute, and may issue execution as
payment of the debts, the court shall order the
circumstances require. payment thereof, and the distribution of the
assets received by the executor or administrator
Section 7. Order of payment if estate insolvent — for that purpose among the creditors, as the
If the assets which can be appropriated for the circumstances of the estate require and in
payment of debts are not sufficient for that purpose, accordance with the provisions of this rule.
the executor or administrator shall pay the debts
against the estate, observing the provisions of Section 12. Orders relating to payment of debts
Articles 1059 and 2239 to 2251 of the Civil Code. where appeal is taken. — If an appeal has been
taken from a decision of the court concerning a
Section 8. Dividends to be paid in proportion to claim, the court may suspend the order for the
claims. — If there are no assets sufficient to pay payment of the debts or may order the
the credits of any once class of creditors after distributions among the creditors whose claims
paying the credits entitled to preference over it, are definitely allowed, leaving in the hands of the
each creditor within such class shall be paid a executor or administrator sufficient assets to pay
dividend in proportion to his claim. No creditor of the claim disputed and appealed. When a
any one class shall receive any payment until those disputed claim is finally settled the court having
of the preceding class are paid. jurisdiction of the estate shall order the same to
be paid out of the assets retained to the same
Section 9. Estate of insolvent non-resident, how extent and in the same proportion with the
disposed of. — In case administration is taken in claims of other creditors.
the Philippine of the estate of a person who was at
the time of his death an inhabitant of another Section 13. When subsequent distribution of
country, and who died insolvent, hi estate found in assets ordered. — If the whole of the debts are
the Philippines shall, as far as practicable, be so not paid on the first distribution, and if the whole
disposed of that his creditors here and elsewhere assets are not distributed, or other assets
may receive each an equal share, in proportion to afterwards come to the hands of the executor or
their respective credits. administrator, the court may from time to time
make further orders for the distributions of
Section 10. When and how claim proved outside assets.
the Philippines against insolvent resident's
estate paid. — If it appears to the court having Section 14. Creditors to be paid in
jurisdiction that claims have been duly proven in accordance with terms of order. — When an
another country against the estate of an insolvent order is made for the distribution of assets
who was at the time of his death an inhabitant of the among the creditors, the executor or
Philippines, and that the executor or administrator in administratior shall, as soon as the time of
the Philippines had knowledge of the presentation of payment arrives, pay the creditors the amounts
such claims in such country and an opportunity to of their claims, or the dividend thereon, in
contest their allowance, the court shall receive a accordance with the terms of such order.
certified list of such claims, when perfected in such
country, and add the same to the list of claims Section 15. Time for paying debts and
proved against the deceased person in the legacies fixed, or extended after notice,
Philippines so that a just distribution of the whole within what periods. — On granting letters
estate may be made equally among all its creditors testamentary or administration the court shall
according to their respective claims; but the benefit allow to the executor or administrator a time for
of this and the preceding sections shall not be disposing of the estate and paying the debts and
extended to the creditors in another country if the legacies of the deceased, which shall not, in the
property of such deceased person there found is not first instance, exceed one (1) year; but the court
equally apportioned to the creditors residing in the may, on application of the executor or
administrator and after hearing on such notice of

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the time and place therefor given to all persons the persons interested; and if a part cannot be
interested as it shall direct, extend the time as the sold, mortgaged, or otherwise encumbered
circumstances of the estate require not exceeding without injury to those interested in the
six (6) months for a single extension so that the remainder, the authority may be for the sale,
whole period allowed to the original executor or mortgage, or other encumbrance of the whole of
administrator shall not exceed two (2) years. such real estate, or so much thereof as is
necessary or beneficial under the
Section 16. Successor of dead executor or circumstances.
administrator may have time extended on notice
within certain period. — When an executor or Section 2 applies if:
administrator dies, and a new administrator of the 1. Personal estate is not sufficient to pay
same estate is appointed, the court may extend the debts;
time allowed for the payment of the debts or 2. Sale of personal estate is injurious to
legacies beyond the time allowed to the original persons interested in the estate;
executor or administrator, not exceeding six (6) 3. Testator does not made provision for
months at a time and not exceeding six (6) months payment of debts;
beyond the time which the court might have allowed 4. If deceased was , under contract,
to such original executor or administrator; and binding in law to deed real property to a
notice shall be given of the time and place for beneficiary during his lifetime (SEC. 8);
hearing such application, as required in the last 5. If deceased during his lifetime held real
preceding section. property in trust for another (sec. 9).
REQUISITES:
RULE 89 1. Application of the
executor/administrator;
2. Written notice to persons interested;
Sales, Mortgages, and Other Encumbrances of 3. Hearing.
Property of Decedent
Assets in the hands of the executor or
Section 1. Order of sale of personalty. — Upon administrator will not be reduced to prevent a
the application of the executor or administrator, and creditor from receiving his full debt or diminish
on written notice to the heirs and other persons his dividends.
interested, the court may order the whole or a part
of the personal estate to be sold, if it appears Without notice and hearing, the sale, mortgage
necessary for the purpose of paying debts, or encumbrance is VOID. Notice is mandatory.
expenses of administration, or legacies, or for the
preservation of the property. REASON: The reason behind the requirement
that the heirs are the presumptive owner. Since
Section 2. When court may authorize sale, they succeed to all the rights and obligations of
mortgage, or other encumbrance of realty to pay the deceased from the moment of death, they
debts and legacies through personalty not are the persons directly affected by the sale,
exhausted. — When the personal estate of the mortgage any encumbrance and therefore
deceased is not sufficient to pay the debts, cannot be deprived of the property, except in the
expenses of administration, and legacies, or where manner provided by law (Maneclang vs. Baun,
the sale of such personal estate may injure the 208 SCRA 179).
business or other interests of those interested in the
estate, and where a testator has not otherwise Section 3. Persons interested may prevent
made sufficient provision for the payment of such such sale, etc., by giving bond. — No such
debts, expenses, and legacies, the court, on the authority to sell, mortgage, or otherwise
application of the executor or administrator and on encumber real or personal estate shall be
written notice of the heirs, devisees, and legatees granted if any person interested in the estate
residing in the Philippines, may authorize the gives a bond, in a sum to be fixed by the court,
executor or administrator to sell, mortgage, or conditioned to pay the debts, expenses of
otherwise encumber so much as may be necessary administration, and legacies within such time as
of the real estate, in lieu of personal estate, for the the court directs; and such bond shall be for the
purpose of paying such debts, expenses, and security of the creditors, as well as of the
legacies, if it clearly appears that such sale, executor or administrator, and may be
mortgage, or encumbrance would be beneficial to prosecuted for the benefit of either.
________________________________________________________________________________________________
Section 4. When court may authorize sale of (a) The executor or administrator shall
estate as beneficial to interested persons. file a written petition setting forth the
Disposal of proceeds. — When it appears that the debts due from the deceased, the
sale of the whole or a part of the real or personal expenses of administration, the
estate, will be beneficial to the heirs, devisees, legacies, the value of the personal
legatees, and other interested persons, the court estate, the situation of the estate to be
may, upon application of the executor or sold, mortgaged, or otherwise
administrator and on written notice to the heirs, encumbered, and such other facts as
devisees, and legatees who are interested in the show that the sale, mortgage, or other
estate to be sold, authorize the executor or encumbrance is necessary or beneficial.
administrator to sell the whole or a part of said
estate, although not necessary to pay debts, (b) The court shall thereupon fix a time
legacies, or expenses of administration; but such and place for hearing such petition, and
authority shall not be granted if inconsistent with the cause notice stating the nature of the
provisions of a will. In case of such sale, the petition, the reasons for the same, and
proceeds shall be assigned to the persons entitled the time and place of hearing, to be
to the estate in the proper proportions. given personally or by mail to the
persons interested, and may cause such
Section 5. When court may authorize sale, further notice to be given, by publication
mortgage, or other encumbrance of estate to or otherwise, as it shall deem proper;
pay debts and legacies in other countries. —
When the sale of personal estate, or the sale, (c) If the court requires it, the executor
mortgage, or other encumbrance of real estate is or administrator shall give an additional
not necessary to pay the debts, expenses of bond, in such sum as the court directs,
administration, or legacies in the Philippines, but it conditioned that such executor or
appears from records and proceedings of a probate administrator will account for the
court in another country that the estate of the proceeds of the sale, mortgage, or other
deceased in such other country is not sufficient to encumbrance;
pay the debts, expenses of administration, and
legacies there, the court here may authorize the (d) If the requirements in the preceding
executor or administrator to sell the personal estate subdivisions of this section have been
or to sell, mortgage, or otherwise encumber the real complied with, the court, by order stating
estate for the payment of debts or legacies in the such compliance, may authorize the
other country, in same manner as for the payment executor or administrator to sell,
of debts or legacies in the Philippines. mortgage, or otherwise encumber, in
proper cases, such part of the estate as
Section 6. When court may authorize sale, is deemed necessary, and in case of
mortgage, or other encumbrance of realty sale the court may authorize it to be
acquired on execution or foreclosure. — The public or private, as would be most
court may authorize an executor or administrator to beneficial to all parties concerned. The
sell mortgage, or otherwise encumber real estate executor or administrator shall be
acquired by him on execution or foreclosure sale, furnished with a certified copy of such
under the same circumstances and under the same order;
regulations as prescribed in this rule for the sale,
mortgage, or other encumbrance of other real
(e) If the estate is to be sold at auction,
estate. the mode of giving notice of the time and
place of the sale shall be governed by
Section 7. Regulation for granting authority to the provisions concerning notice of
sell, mortgage, or otherwise encumber estate. — execution sale;
The court having jurisdiction of the estate of the
deceased may authorize the executor or (f) There shall be recorded in the
administrator to sell personal estate, or to sell, registry of deeds of the province in
mortgage, or otherwise encumber real estate, in which the real estate thus sold,
cases provided by these rules and when it appears
mortgage, or otherwise encumbered is
necessary or beneficial under the following
situated, a certified copy of the order of
regulations. the court, together with the deed of the
executor or administrator for such real
estate, which shall be as valid as if the

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deed had been executed by the deceased Section 1. When order for distribution of
in his lifetime. residue made. — When the debts, funeral
charges, and expenses of administration, the
Application for authority to sell, mortgage, or allowance to the widow, and inheritance tax, if
encumber may be denied if: any, chargeable to the estate in accordance with
1. The disposition is not for any of the reasons law, have been paid, the court, on the
specified by the Rules; application of the executor or administrator, or of
2. If the persons interested in the estate files a a person interested in the estate, and after
bond conditioned to pay the debts and hearing upon notice, shall assign the residue of
expenses of administration and legacies. the estate to the persons entitled to the same,
naming them and the proportions, or parts, to
which each is entitled, and such persons may
Section 8. When court may authorize conveyance
of realty which deceased contracted to convey. demand and recover their respective shares
Notice. Effect of deed. — Where the deceased from the executor or administrator, or any other
person having the same in his possession. If
was in his lifetime under contract, binding in law, to
there is a controversy before the court as to who
deed real property, or an interest therein, the court
are the lawful heirs of the deceased person or
having jurisdiction of the estate may, on application
as the distributive shares to which each person
for that purpose, authorize the executor or
is entitled under the law, the controversy shall
administrator to convey such property according to
be heard and decided as in ordinary cases.
such contract, or with such modifications as are
agreed upon by the parties and approved by the
court; and if the contract is to convey real property No distribution shall be allowed until the
to the executor or administrator, the clerk of court payment of the obligations above mentioned has
shall execute the deed. The deed executed by such been made or provided for, unless the
executor, administrator, or clerk of court shall be as distributees, or any of them, give a bond, in a
effectual to convey the property as if executed by sum to be fixed by the court, conditioned for the
the deceased in his lifetime; but no such payment of said obligations within such time as
conveyance shall be authorized until notice of the the court directs.
application for that purpose has been given
personally or by mail to all persons interested, and Intestate Proceedings; Debts of the Estate (2002)
such further notice has been given, by publication A, B and C, the only heirs in D’s intestate
or otherwise, as the court deems proper; nor if the proceedings, submitted a project of partition to the
assets in the hands of the executor or administrator partition, two lots were assigned to C, who
will thereby be reduced so as to prevent a creditor immediately entered into the possession of the lots.
from receiving his full debt or diminish his dividend. Thereafter, C died and proceedings for the
settlement of his estate were filed in the RTC-
Section 9. When court may authorize conveyance Quezon City. D’s administrator then filed a motion
of lands which deceased held in trust. — Where in the probate court (RTC-Manila), praying that one
the deceased in his lifetime held real property in of the lots assigned to C in the project of partition
trust for another person, the court may after notice be turned over to him to satisfy debts corresponding
given as required in the last preceding section, to C’s portion. The motion was opposed by the
authorize the executor or administrator to deed such administrator of C’s estate. How should the
property to the person, or his executor or RTCManila resolve the motion of D’s administrator?
administrator, for whose use and benefit it was so Explain. (3%)
held; and the court may order the execution of such SUGGESTED ANSWER:
trust, whether created by deed or by law. The motion of D’s administrator should be granted.
The assignment of the two lots to C was premature
because the debts of the estate had not been fully
paid. [Rule 90, sec. 1; Reyes v. Barreto-Datu, 19 SCRA 85
(1967)].
RULE 90
Distribution and Partition of the Estate In these proceedings, the court shall:
1. Collate;
LIQUIDATION 2. Determine the heirs;
It means the determination of the assets of the 3. Determine the shares of each heir.
estate and payment of all debts and expenses.
NOTE: A separate action for the declaration of
heirs is not necessary.
________________________________________________________________________________________________
shall be binding on the person raising the

WHEN IS TITLE VESTED: questions and on the heir.
It is vested upon the finality of the Order of
Distribution. Section 3. By whom expenses of partition
paid. — If at the time of distribution the executor
An order which determines the distributive shares of or administrator has retained sufficient effects in
the heirs is appealable. If not appealed, it becomes his hands which may lawfully be applied for the
final. expenses of partition of the properties
distributed, such expenses of partition may be
NOTE: However, that under the law: paid by such executor or administrator when it
appears equitable to the court and not
Art. 777, NCC. The rights to the succession are inconsistent with the intention of the testator;
transmitted from the moment of the death of the otherwise, they shall be paid by the parties in
decedent. proportion to their respective shares or interest
in the premises, and the apportionment shall be
The probate court loses jurisdiction over the settled and allowed by the court, and, if any
settlement proceedings only upon the payment of all person interested in the partition does not pay
debts and expenses of the obligor and delivery of his portion or share, the court may issue an
the entire estate to all the heirs (Timbol vs. Cano, 1 execution in the name of the executor or
SCRA 1271). administrator against the party not paying the
sum assessed.
CONDITIONS PRECEDENT for the issuance of
the Order of Distribution:
Section 4. Recording the order of partition of
1. There must be showing that the executor or
estate. — Certified copies of final orders and
administrator or the persons interested
judgments of the court relating to the real estate
applied for such order; or the partition thereof shall be recorded in the
2. Notice and hearing is complied with. registry of deeds of the province where the
property is situated.
PROHIBITION AGAINST INTERFERRENCE BY
OTHER COURTS
As long as the order of distribution of the estate has
not been complied with, the probate proceedings RULE 91
cannot be deemed close and terminated, because
judicial partition is not final and conclusive and does Escheats
not prevent the heirs from bringing an action to
obtain his share, provided the prescriptive period CADUCIARY RIGHT
therefore has not elapsed. It is the right of the state to claim through
escheat proceedings the properties of a
The better practice, however, for the heir who has decedent who is not survived by any heir.
not received his share is to demand his share
through a proper motion in the same probate or Note, however, that under our jurisdiction, the
administrative proceedings, or the reopening the state is the last heir of any person:
probate or administrative proceedings if it had been
already closed, and not through an independent Art. 1011, NCC. In default of persons
action, which would be tried by another court or
judge which may thus reverse a decision or order of entitled to succeed in accordance with the
the probate or intestate court already final and provisions of the preceding Sections, the State
executed and re-shuffle properties long ago shall inherit the whole estate.
distributed and disposed of (Timbol vs. Cano,
supra).
Hence, technically, caduciary right is not
Section 2. Questions as to advancement to be applied. The state, as provided by law, itself is
determined. — Questions as to advancement an heir of the deceased.
made, or alleged to have been made, by the
deceased to any heir may be heard and determined ESCHEAT
by the court having jurisdiction of the estate It is a proceeding whereby the real and personal
proceedings; and the final order of the court thereon property of a deceased person in the

________________________________________________________________________________________________
Philippines, who dies without leaving any will or Section 3. Hearing and judgment. — Upon
legal heirs, become the property of the state upon satisfactory proof in open court on the date fixed
his death. in the order that such order has been published
as directed and that the person died intestate,
3 INSTANCES OF ESCHEATS: seized of real or personal property in the
1. When a person died intestate but leaving Philippines, leaving no heir or person entitled to
properties in the Philippines; the same, and no sufficient cause being shown
2. Reversion Proceedings—sale in violation of to the contrary, the court shall adjudge that the
constitutional provisions; escheat of the estate of the deceased in the
3. Dormant Accounts for 10 years under the Philippines, after the payment of just debts and
Unclaimed Balances Act. charges, and shall, pursuant to law, assign the
personal estate to the municipality or city where
he last resided in the Philippines, and the real
WHAT is the basis of the state to receive the estate to the municipalities or cities,
property in escheat: In the order of succession, respectively, in which the same is situated. If the
the state is the last heir of the decedent. deceased never resided in the Philippines, the
whole estate may be assigned to the respective
WHO files: The Solicitor General or his municipalities or cities where the same is
representative in behalf the Philippines. located. Such estate shall be for the benefit of
public schools, and public charitable
WHERE to file: In the RTC of his last residence or institutions and centers in said municipalities
of the location of his estate in the Philippines if he is or cities.
a non-resident.
The court, at the instance of an interested party,
Section 1. When an by whom petition filed. — or on its own motion, may order the
When a person dies intestate, seized of real establishment of a permanent trust, so that the
property in the Philippines, leaving no heir or person only income from the property shall be used.
by law entitled to the same, the Solicitor General or
his representative in behalf of the Republic of the Section 4. When and by whom claim to estate
Philippines, may file a petition in the Court of First filed. — If a devisee, legatee, heir, widow,
Instance of the province where the deceased last widower, or other person entitled to such estate
resided or in which he had estate, if he resided out appears and files a claim thereto with the court
of the Philippines, setting forth the facts, and within five (5) years from the date of such
praying that the estate of the deceased be declared judgment, such person shall have possession
escheated. of and title to the same, or if sold, the
municipality or city shall be accountable to him
Section 2. Order for hearing. — If the petition is for the proceeds after deducting reasonable
sufficient in form and substance, the court, by an charges for the care of the estate; but a claim
order reciting the purpose of the petition, shall fix a not made within the said time shall be forever
date and place for the hearing thereof, which date barred.
shall be not more than six (6) months after the
entry of the order, and shall direct that a copy of the Bar Exam Question 2012
order be published before the hearing at least once
74. A person entitled to the estate of a
a week for six (6) successive weeks in some
deceased person escheated in favor of the
newspaper of general circulation published in the
State has:
province, as the court shall be deem best.
a. 5 years from date of judgment to file a
claim.
Requisites: b. 2 years from date of judgment to file a
1. Person died intestate; claim.
2. He left real and personal properties in the c. 5 years from date of registration of the
Philippines;
judgment to file a claim.
3. He left no heir or person entitled to such
d. 2 years from date of registration of the
properties;
judgment to file a claim.
4. Publication of order;
5. There is no sufficient cause to the contrary. SUGGESTED ANSWER: (a), A person
entitled to the estate of a deceased
person escheated in favour of the State
has a period of five (5) years from the
date of such judgment within which to

________________________________________________________________________________________________
file a claim thereto with the court. A claim

not made within said time shall be forever
barred. If the claim is meritorious, such General Guardians and Guardianship
person shall have possession of and title to
the same, or if sold, the municipality or city RULE 92
shall be accountable to, him for the
proceeds, after deducting reasonable
Venue
charges for the care of the estate. (Rule 91,
Sec. 4, Rules of Court).
NOTE: Guardianship of minors is now governed
by the Rule on Guardianship of Minors(A.M. No.
03-02-05-SC) which took effect on May 1, 2003
while guardianship of incompetents is still
NOTES: governed by the provisions of the Rules of Court
Art. 1014,NCC. If a person legally entitled to on Guardianship (Rule 92 to Rule 97).
the estate of the deceased appears and files a
claim thereto with the court within five years GUARDIANSHIP
from the date the property was delivered to the This is the power of protective authority given by
law and imposed on an individual who is free
State, such person shall be entitled to the and in enjoyment of his rights over one whose
possession of the same, or if sold the municipality weakness on account of his age, or other
or city shall be accountable to him for such part infirmity renders him unable to protect himself.
of the proceeds as may not have been lawfully
spent. GUARDIAN
He is the person in whom the law has entrusted
Q: Can the court convert escheat proceedings the custody and control of the person or estate
into ordinary special proceedings or vice-versa? or both of an infant, insane or other person
A: NO. This is not allowed for the 2 actions have incapable of managing his own affairs.
different requirements in acquiring jurisdiction. In
special proceedings, publication is once a week KINDS OF GUARDIANS
for 3 weeks while in escheat, once a week for six A. According to scope:
weeks. 1. Guardian of the person—one who has
been lawfully invested with the care of
Escheat Proceedings (2002) the person of the minor;
Suppose the property of D was declared escheated on 2. Guardian of the property—one
July 1, 1990 in escheat proceedings brought by the appointed to have the management of
Solicitor General. Now, X, who claims to be an heir of the estate of a minor or incompetent;
D, filed an action to recover the escheated property. Is 3. General guardian—one entrusted with
the action viable? Why? (2%) the custody and care of the person and
SUGGESTED ANSWER: of all property of the minor or
No, the action is not viable. The action to recover incompetent.
escheated property must be filed within five years from
July 1, 1990 or be forever barred. (Rule 91, sec. 4). B. According to the constitution:
1. Legal guardian—without judicial
appointment;
Section 5. Other actions for escheat. — Until
2. Guardian ad litem—appointed by the
otherwise provided by law, actions reversion or
court of justice to prosecute or defend a
escheat of properties alienated in violation of the
minor, insane or person declared to be
Constitution or of any statute shall be governed by
incompetent in an action in court;
this rule, except that the action shall be instituted in
3. Judicial guardian—those appointed
the province where the land lies in whole or in part.
pursuant to law, as guardian for insane,
prodigals, minors, etc.
NOTE: Escheat under the Unclaimed Balances
Act must be filed in the RTC where the deposits
Section 1. Where to institute proceedings. —
are found.
Guardianship of a person or estate of a minor or
incompetent may be instituted in the Court of
First Instance of the province, or in the justice of
the peace court of the municipality, or in the
municipal court chartered city where the minor

________________________________________________________________________________________________
or incompetent persons resides, and if he resides in incompetent who has no parent or lawful
a foreign country, in the Court of First Instance of guardian, or the minor himself if fourteen years
the province wherein his property or the part thereof of age or over, may petition the court having
is situated; provided, however, that where the value jurisdiction for the appointment of a general
of the property of such minor or incompetent guardian for the person or estate, or both, of
exceeds that jurisdiction of the justice of the peace such minor or incompetent. An officer of the
or municipal court, the proceedings shall be Federal Administration of the United States in
instituted in the Court of First Instance. the Philippines may also file a petition in favor of
a ward thereof, and the Director of Health, in
In the City of Manila the proceedings shall be favor of an insane person who should be
instituted in the Juvenile and Domestic Relations hospitalized, or in favor of an isolated leper.
Court.
MINOR INCOMPETENT
WHERE TO INSTITUTE: 1. Any relative;
1. Incompetents—RTC of the place where he 1. Any relative; 2. Friend;
resides or where his property is situated in 2. Other person on 3. Other person on
case of non-resident; behalf of the minor; behalf of the resident
2. Minor—Family Court of his residence, or 3. Minor himself if 14 incompetent who has
where his property is situated in case of years of age or over; no parents or lawful
non-resident (sec. 3, AM 03-02—O5). 4. The Secretary of guardians;
Social Welfare and 4. The Director of
Section 2. Meaning of word "incompetent." — Development AND the Health in favor of an
Under this rule, the word "incompetent" includes Secretary of Health in insane person who
persons: case of an insane should be hospitalized
minor who needs to be or in favor of an
1. suffering the penalty of civil interdiction; or hospitalized (sec. 2 isolated leper;
2. who are hospitalized lepers; AM 03-02-05-SC) 5. Anyone interested in
3. prodigals; the estate of a non-
4. deaf and dumb who are unable to read and resident incompetent
write; (sec.6)
5. those who are of unsound mind, even
though they have lucid intervals; and NOTE: The father and the mother shall jointly
6. persons not being of unsound mind, but by exercise legal guardianship over the person and
reason of age, disease, weak mind, and property of their minor children without the
other similar causes, cannot, without necessity of a court appointment. In such case,
outside aid, take care of themselves and this Rule shall be suppletory to the provisions of
manage their property, becoming thereby the Family Code on guardianship.
an easy prey for deceit and exploitation.
Section 2. Contents of petition. — A petition
Section 3. Transfer of venue. — The court taking for the appointment of a general guardian must
cognizance of a guardianship proceeding, may show, so far as known to the petitioner:
transfer the same to the court of another province or
municipality wherein the ward has acquired real (a) The jurisdictional facts;
property, if he has transferred thereto his bona-
fide residence, and the latter court shall have full (b) The minority or incompetency
jurisdiction to continue the proceedings, without rendering the appointment necessary or
requiring payment of additional court fees. convenient;
(c) The names, ages, and residence of

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

________________________________________________________________________________________________
(e) The name of the person for whom letters (sec. 7, AM 03-
of guardianship are prayed. 03-05-SC)
The petition shall be verified; but no defect in the NOTE: The petition involving minors is required
petition or verification shall render void the issuance to be VERIFIED and accompanied by CAFS
of letters of guardianship. while that of involving incompetents must be
verified only. However, no defect in the petition
or verification shall render the void the issuance
of letters of guardianship.
CONTENTS OF THE PETITION
MINOR INCOMPETENT Section 3. Court to set time for hearing. Notice
thereof. — When a petition for the appointment
1. the 1. the
of a general guardian is filed, the court shall fix a
jurisdictional jurisdictional
time and place for hearing the same, and shall
facts; facts;
cause reasonable notice thereof to be given to
2. the name, 2. The
the persons mentioned in the petition residing in
residence, and incompetency
the province, including the minor if above 14
age of the rendering the
years of age or the incompetent himself, and
prospective appointment
may direct other general or special notice
ward; necessary or
thereof to be given.
3. the ground convenient;
rendering the 3. The probable
appointment value and Note: There is no requirement for
necessary or character of his PUBLICATION, only notice EXCEPT in case
convenient; estate; of non-resident incompetent/minor.
4. the death of the 4. The names,
parents of the ages, and However, service of notice to the persons
minor or the residences of mentioned in the petition, including the minor
deprivation or the relatives of if 14 years of age or over or the incompetent is
suspension of the mandatory and jurisdictional.
their parental incompetent
authority; and of the If the person is insane, service of notice upon
5. the remarriage persons having the Director of the Hospital where he is
of the minor’s him in their hospitalized is sufficient.
surviving care;
parent; 5. The name of Section 4. Opposition to petition. — Any
6. the names, the person interested person may, by filing a written
ages and whom the opposition, contest the petition on the ground of
residences of letters of majority of the alleged minor, competency of
relatives within guardianship the alleged incompetent, or the unsuitability of
the 4th civil are prayed the person for whom letters are prayed, and may
degree of the (sec.2, Rule 93) pray that the petition be dismissed, or that letters
minor and of of guardianship issue to himself, or to any
the person suitable person named in the opposition.
having him in
their care and Section 5. Hearing and order for letters to
custody; issue. — At the hearing of the petition the
7. the probable alleged incompetent must be present if able to
value, location attend, and it must be shown that the required
and character notice has been given. Thereupon the courts
of the property shall hear the evidence of the parties in support
of the minor; of their respective allegations, and, if the person
8. the name, age in question is a minor, or incompetent it shall be
and residence appoint a suitable guardian of his person or
of the person estate, or both, with the powers and duties
whom the hereinafter specified.
letters of
guardianship Section 6. When and how guardian for non-
are prayed resident appointed. Notice. — When a person

________________________________________________________________________________________________
liable to be put under guardianship resides without obligations referred to in the second
the Philippines but the estate therein, any relative paragraph of this Article shall be heard and
or friend of such person, or any one interested in
resolved.
his estate, in expectancy or otherwise, may petition
a court having jurisdiction for the appointment of a
guardian for the estate, and if, after notice given to The ordinary rules on guardianship shall be
such person and in such manner as the court merely suppletory except when the child is
deems proper, by publication or otherwise, and under substitute parental authority, or the
hearing, the court is satisfied that such non-resident guardian is a stranger, or a parent has
is a minor or incompetent rendering a guardian
remarried, in which case the ordinary rules on
necessary or convenient, it may appoint a guardian
for such estate. guardianship shall apply.
Section 7. Parents as guardians. — When the Section 8. Service of judgment. — Final orders
property of the child under parental authority is or judgments under this rule shall be served
worth two thousand pesos or less, the father or the upon the civil registrar of the municipality or city
mother, without the necessity of court appointment, where the minor or incompetent person resides
shall be his legal guardian. When the property of the or where his property or part thereof is situated.
child is worth more than two thousand pesos, the
father or the mother shall be considered guardian of RULE 94
the child's property, with the duties and obligations
of guardians under this rules, and shall file the Bonds of Guardians
petition required by section 2 hereof. For good
reasons the court may, however, appoint another Section 1. Bond to be given before issuance
suitable person. of letters. Amount. Condition. — Before a
guardian appointed enters upon the execution of
Note: Art. 225,FC. The father and the mother his trust, or letters of guardianship issue, he
shall jointly exercise legal guardianship over the shall give a bond, in such sum as the court
property of the unemancipated common child directs, conditioned as follows:
without the necessity of a court appointment. In
case of disagreement, the father's decision shall (a) To make and return to the court, within
three (3) months, a true and complete
prevail, unless there is a judicial order to the inventory of all the estate, real and
contrary. personal, of his ward which shall come to his
possession or knowledge of any other
Where the market value of the property or the person for him;
annual income of the child exceeds P50,000, the
parent concerned shall be required to furnish a (b) To faithfully execute the duties of his
bond in such amount as the court may trust, to manage and dispose of the estate
according to these rules for the best
determine, but not less than ten per centum interests of the ward, and to provide for the
(10%) of the value of the property or annual proper care, custody, and education of the
income, to guarantee the performance of the ward;
obligations prescribed for general guardians.
(c) To render a true and just account of all
A verified petition for approval of the bond shall the estate of the ward in his hands, and of
be filed in the proper court of the place where all proceeds or interest derived therefrom,
and of the management and disposition of
the child resides, or, if the child resides in a the same, at the time designated by these
foreign country, in the proper court of the place rules and such other times as the courts
where the property or any part thereof is directs, and at the expiration of his trust to
situated. settle his accounts with the court and deliver
and pay over all the estate, effects, and
moneys remaining in his hands, or due from
The petition shall be docketed as a summary
him on such settlement, to the person
special proceeding in which all incidents and lawfully entitled thereto;
issues regarding the performance of the

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(d) To perform all orders of the court otherwise encumbered, and the proceeds
by him to be performed. thereof put out at interest, or invested in some
productive security, or in the improvement or
PURPOSE OF THE BOND security or other real estate of the ward, the
For the protection of the property of the minor or guardian may present a verified petition to the
incompetent to the end that he may be assured of court by which he was appointed setting forth
an honest administration of his funds (Herrera). such facts, and praying that an order issue
authorizing the sale or encumbrance.
(27) Which of the following is a duty enjoined A. GROUNDS: (clue words only)
on the guardian and covered by his bond? (A) 1. Income is insufficient;
Provide for the proper care, custody, and a. To maintain the ward and
education of the ward. (B) Ensure the wise family;
and profitable investment of the ward’s b. To educate, when ward is
financial resources. (C) Collect compensation minor.
for his services to the ward. (D) Raise the ward 2. For benefit of the ward;
to become a responsible member of society.
B. REQUIREMENTS:
1. Verified petition (sec. 1);
Section 2. When new bond may be required and 2. Notice to next of kin (sec.2);
old sureties discharged. — Whenever it is
deemed necessary, the court may require a new NEXT OF KIN—pertains to those
bond to be given by the guardian, and may relatives who are entitled to share in the
discharge the sureties on the old bond from further estate of the ward under the law on
liability, after due notice to interested persons, when Intestate succession including those
no injury can result therefrom to those interested in who inherit per stirpes or by right of
the estate. representation.
Note: Notice to the next of kin or other

Section 3. Bonds to be filed. Actions thereon. — persons interested is JURISDICTIONAL.
Every bond given by a guardian shall be filed in the
office of the clerk of the court, and, in case of the 3. Hearing to justify the petition (sec.4).
breach of a condition thereof, may be prosecuted in
the same proceeding or in a separate action for
the use and benefit of the ward or of any other
person legally interested in the estate. Section 2. Order to show cause thereupon. —
If it seems probable that such sale or
encumbrance is necessary, or would be
Note: The bond of the guardian is a continuing beneficial to the ward, the court shall make an
one against the obligors and their estates until all order directing the next of kin of the ward, and
the conditions are fulfilled. The mere fact that the all persons interested in the estate, to appear at
defendant was removed as guardian did not a reasonable time and place therein specified to
relieve him or her bondsmen from liability during show cause why the prayer of the petition
the time she was duly acting as such guardian should not be granted.
(Guerrero vs. Teran, 13 Phil. 212).
Section 3. Hearing on return of order. Costs.
— At the time and place designated in the order
to show cause, the court shall hear the proofs
RULE 95 and allegations of the petitioner and next of kin,
and other persons interested, together with their
Selling and Encumbering Property of Ward witnesses, and grant and refuse the prayer of
the petition as the best interest of the ward
Section 1. Petition of guardian for leave to sell or require. The court shall make such order as to
encumber estate. — When the income of the cost of the hearing as may be just.
estate under guardianship is insufficient to maintain
the ward and his family, or to maintain and educate NOTE: Sale of the ward’s property without
the ward when a minor, or when it appears that it is authority from the court is VOID. Under the
for the benefit of the ward that his real estate or law, a parent acting merely as legal
some part thereof be sold, or mortgaged or administrator of the property of is children,

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does not have the power to dispose of, alienate RULE 96

the property of said minor without judicial approval
(Lindain vs. CA, GR No. 95305, Aug. 20, 1992). General Powers and Duties of Guardians
Section 4. Contents of order for sale or Section 1. To what guardianship shall extend.
encumbrance, and how long effective. Bond. — — A guardian appointed shall have the care and
If, after full examination, it appears that it is custody of the person of his ward, and the
necessary, or would be beneficial to the ward, to sell management of his estate, or the management
or encumber the estate, or some portion of it, the of the estate only, as the case may be. The
court shall order such sale or encumbrance and that guardian of the estate of a non-resident shall
the proceeds thereof be expended for the have the management of all the estate of the
maintenance of the ward and his family, or the ward within the Philippines, and no court other
education of the ward, if a minor, or for the putting of than that in which such guardian was appointed
the same interest, or the investment of the same as shall have jurisdiction over the guardianship.
the circumstances may require. The order shall
specify the causes why the sale or encumbrance is
necessary or beneficial, and may direct that estate POWERS AND DUTIES (clue words):
ordered sold be disposed of at either public or
private sale, subject to such conditions as to the 1. Inventory;
time and manner of payment, and security where a 2. Manage
part of the payment is deferred as in the discretion 3. Account;
of the court are deemed most beneficial to the ward. 4. Perform duties.
The original bond of the guardian shall stand as
a. Pay debts;
security for the proper appropriation of the proceeds
b. Settle accounts;
of the sale, but the judge may, if deemed expedient, c. Collect debts;
require an additional bond as a condition for the d. Appear in actions for the ward;
granting of the order of sale. No order of sale
granted in pursuance of this section shall continue NOTE: Conflicts regarding the ownership or title
in force more than one (1) year after granting the
to the property in the hands of the guardian in
same, without a sale being had. his capacity as such should be litigated in a
separate proceeding, the court in guardianship
NOTES: The authority to sell or encumber shall proceeding being solely concerned with the
not extend beyond 1 year from the issuance ward’s care and custody and proper
thereof, unless renewed by the court. administration of his properties (Viloria vs.
Administrator of Veteran Affairs, 19 Phil. 762).
Appeal is the proper remedy against an order of
the court authorizing the sale of the ward’s Section 2. Guardian to pay debts of ward. —
property (Lopez vs. Teodoro, 86 Phil. 499). Every guardian must pay the ward's just debts
out of his personal estate and the income of his
Note: There being a presumption that the sale of
real estate, if sufficient; if not, then out of his real
the ward’s estate is valid, the same cannot be estate upon obtaining an order for the sale or
attacked collaterally. A separate action to avoid or
encumbrance thereof.
rescind the sale on the grounds specified by law
should have been filed (Margate vs. Rabacal, 117
Phil. 903). Section 3. Guardian to settle accounts,
collect debts, and appear in actions for ward.
— A guardian must settle all accounts of his
Section 5. Court may order investment of ward, and demand, sue for, and receive all
proceeds and direct management of estate. — debts due him, or may, with the approval of the
The court may authorize and require the guardian to court, compound for the same and give
invest the proceeds of sales or encumbrances, and discharges to the debtor, on receiving a fair and
any other of his ward's money in his hands, in real just dividend of the estate and effects; and he
estate or otherwise, as shall be for the best interest shall appear for and represent his ward in all
of all concerned, and may make such other orders actions and special proceedings, unless another
for the management, investment, and disposition of
person be appointed for that purpose.
the estate and effects, as circumstances may
require.
Section 4. Estate to be managed frugally, and
proceeds applied to maintenance of ward. —
A guardian must manage the estate of his ward

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frugally and without the waste, and apply the first inventory shall be appraised. In the
income and profits thereof, so far as may be appraisement the court may request the
necessary, to the comfortable and suitable assistance of one or more of the inheritance tax
maintenance of the ward and his family, if there be appraisers. And whenever any property of the
any; and if such income and profits be insufficient ward not included in an inventory already
for that purpose, the guardian may sell or encumber rendered is discovered, or succeeded to, or
the real estate, upon being authorized by order so to acquired by the ward, like proceedings shall be
do, and apply to such of the proceeds as may be had for securing an inventory and appraisement
necessary to such maintenance. thereof within three (3) months after such
discovery, succession, or acquisition.
Section 5. Guardian may be authorized to join in
partition proceedings after hearing. — The court Section 8. When guardian's accounts
may authorized the guardian to join in an assent to presented for settlement. Expenses and
a partition of real or personal estate held by the compensation allowed. — Upon the expiration
ward jointly or in common with others, but such of a year from the time of his appointment, and
authority shall only be granted after hearing, upon as often thereafter as may be required, a
such notice to relatives of the ward as the court may guardian must present his account to the court
direct, and a careful investigation as to the for settlement and allowance. In the settlement
necessity and propriety of the proposed action. of the account, the guardian, other than a
parent, shall be allowed the amount of his
Section 6. Proceedings when the person reasonable expenses incurred in the execution
suspected of embezzling or concealing property of his trust and also such compensation for his
of ward. — Upon complaint of the guardian or ward, services as the court deems just, not exceeding
or of any person having actual or prospective fifteen per centum of the net income of the
interest in the estate of the ward as creditor, heir, or ward.
otherwise, that anyone is suspected of having
embezzled, concealed, or conveyed away any
money, goods, or interest, or a written instrument,
belonging to the ward or his estate, the court may RULE 97
cite the suspected person to appear for examination
touching such money, goods, interest, or Termination of Guardianship
instrument, and make such orders as will secure the
estate against such embezzlement, concealment or
conveyance. Section 1. Petition that competency of ward
be adjudged, and proceedings thereupon. —
A person who has been declared
PURPOSE: To secure evidence from persons
incompetent for any reason, or his guardian,
suspected of embezzling, concealing, or conveying relative, or friend, may petition the court to
away any property of the ward so as to enable the have his present competency judicially
guardian to institute the appropriate action to obtain determined. The petition shall be verified by
possession and secure title to said property (Cui vs. oath, and shall state that such person is then
Piccio, 91 Phil. 712).
competent. Upon receiving the petition, the court
shall fix a time for hearing the questions raised
NOTE: In guardianship proceedings, the court
thereby, and cause reasonable notice thereof to
cannot actually order the delivery of the ward’s be given to the guardian of the person so
property found to be embezzled or conveyed,
declared incompetent, and to the ward. On the
EXCEPT when title to the same is CLEAR AND trial, the guardian or relatives of the ward, and,
UNDISPUTED (Cui vs. Piccio, supra). in the discretion of the court, any other person,
may contest the right to the relief demanded,
Section 7. Inventories and accounts of and witnesses may be called and examined by
guardians, and appraisement of estates. — A the parties or by the court on its own motion. If it
guardian must render to the court an inventory of be found that the person is no longer
the estate of his ward within three (3) months after incompetent, his competency shall be adjudged
his appointment, and annually after such and the guardianship shall cease.
appointment an inventory and account, the rendition
of any of which may be compelled upon the
MINOR INCOMPETENT
application of an interested person. Such
1. The ward 1. Competency of
inventories and accounts shall be sworn to by the
has come of the ward has
guardian. All the estate of the ward described in the
age; been judicially
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2. Has died; determined; peace or municipal court takes cognizance of

3. Death of the 2. Guardianship is the proceedings in pursuance of the provisions
guardian no longer of these rules, the record of the proceedings
(sec. 25, necessary; shall be kept as in the Court of First Instance.
AM 03-02- 3. Death of the
05-SC) guardian; Section 5. Service of judgment. — Final orders
4. Death of the of judgments under this rule shall be served
ward upon the civil registrar of the municipality or
city where the minor or incompetent person
NOTE: Notice of hearing of the petition is not resides or where his property or part thereof is
intended as personal service process in the sense situated.
necessary to give the court jurisdiction over the
ward (In Re: Guardianship of Incompetent Jose SALIENT FEATURES and SPECIAL RULES
Inchausti, 40 Phil. 682). found in the Rule on Guardianship of Minors
(A.M. No. 03-02-05-SC, effective May 1, 2003)
Section 2. When the guardian removed or
allowed to resign. New appointment. — When a A. GROUNDS for the Petition (sec. 4) :
guardian becomes insane or otherwise incapable of 1. Continued absence, or incapacity or
discharging his trust or unsuitable therefor, or has death of his parents (AID);
wasted or mismanaged the estate, or failed for thirty 2. Suspension, termination, deprivation
(30) days after it is due to render an account or of parental authority (STD);
make a return, the court may, upon reasonable 3. Remarriage of the surviving parent, if
notice to the guardian, remove him, and compel him the latter is found to be unsuitable to
to surrender the estate of the ward to the person exercise parental authority; or
found to be lawfully entitled thereto. A guardian may 4. When best interest of the minor so
resign when it appears proper to allow the same; requires.
and upon his resignation or removal the court may
appoint another in his place. B. CONSIDERATIONS in Appointing
Guardians (sec. 5):
GROUNDS FOR THE REMOVAL OF GUARDIAN: 1. Moral character;
1. Insanity; 2. Physical, mental, and psychological
2. Incapability or unsuitability to discharge condition;
functions; 3. Financial status;
3. Wastage or mismanagement of the property 4. Relationship of trust with the minor;
of the ward; 5. Availability to exercise the powers and
4. Failure to render account or make a return duties of a guardian for the full period of
within 30 days after it was due. guardianship;
6. Lack of conflict of interest with the
The remedy of the guardian is to file an appeal from minor;
the order of removal (Olarte vs. Enriquez, 109 Phil. 7. Ability to manage the property of the
1137). minor.
Section 3. Other termination of guardianship. — C. WHO may be Appointed guardian of the

The marriage or voluntary emancipation of a minor person or property, or both , of a minor (sec.
ward terminates the guardianship of the person of 6):
the ward, and shall enable the minor to administer
his property as though he were of age, but he In default of parents or a court appointed
cannot borrow the money or alienate or encumber guardian, the court may appoint a guardian of a
real property without the consent of his father or minor, observing as far as practicable, the
mother, or guardian. He can sue and be sued in following ORDER OF PREFERRENCE:
court only with the assistance of his father, mother
or guardian. The guardian of any person may be 1. The surviving grandparent and in case
discharged by the court when it appears, upon the of several grandparents, the court shall
application of the ward or otherwise, that the select among them taking into account
guardianship is no longer necessary. relevant considerations;
2. The oldest brother or sister over 21
years of age, unless unfit or unqualified;
Section 4. Record to be kept by the justice of the
peace or municipal judge. — When a justice of the

________________________________________________________________________________________________
3. The actual custodian of the minor over 21 guardian shall notify the court of such fact
years of age unless unfit or unqualified; within 10 days of its occurrence.
4. Any other person, who in the discretion of
the court would serve the best interests of
the minor.
RULE 98
4. In default of parents, the court may appoint Trustees
a guardian for a minor giving first preference
to:
a. an older brother or sister who is over 18 EXECUTOR/ GUARDIAN TRUSTEE
ADMINISTRATO
years old.
R
b. the actual custodian over 21 years old.
Account are not
c. a paternal grandparent
under oath and
d. an uncle or aunt over 21 years old.
except for initial Accounts Accounts
SUGGESTED ANSWER: (c), In default of
and final must be must be
parents or a court-appointed guardian, the
submission of under oath under oath
court may appoint a guardian of the person accounts, they and filed and filed
or property, or both of a minor, observing as shall be filed only annually annually
far as practicable, the following order of at such times as
preference: (a) the surviving grandparent. In may be required
case several grandparents survive, the court by the court
shall select any of them taking into account Court that
all relevant considerations; (b) the oldest has
brother or sister of the minor over twenty- jurisdiction
one years of age, unless unfit or Court that has Court that is RTC if
disqualified; (c) the actual custodian of the jurisdiction may has appointed
minor over twenty-one years of age, unless be RTC or MTC jurisdiction is to carry into
unfit or disqualified; and (d) any other RTC effect the
person, who in the sound discretion of the (incompetent provisions
court, would serve the best interests of the s) and Family of a will; if
minor. (SEC. 6, A.M. No. 03-02-05-SC 2003- Courts trustee
05-01, Rule on Guardianship of Minors). (minors) dies,
resigns, or
removed in
D. Case Study Report (sec. 9) contractual
The court shall order a social worker to conduct a trust, RTC
case study of the minor and all prospective has
guardians and submit report and recommendations jurisdiction
to the court for its guidance before the scheduled to appoint
hearing. new trustee
May sell, May sell or
E. Bond of parents as guardians of property of mortgage, or encumber
the minor (sec. 16, in relation to art. 225, Family encumber property of May sell or
Code). property if it is ward if encumber
necessary for the income of property
F. Removal or Resignation of Guardian (sec. 24). purpose of estate is held in trust
No motion for removal or resignation shall be paying debts, insufficient to if
granted unless the guardian has submitted the expenses of maintain the necessary
proper accounting of the property of the ward and administration or ward and his or
the court approved the same. for the family and expedient
preservation of educate the upon order
G. Grounds for Termination of Guardianship the property, or if ward; or that of the court
(sec. 25) the sale will be the sale is
The court motu proprio or upon verified motion of beneficial to the beneficial to
any person allowed to file a petition for guardianship heirs, legatees or the ward
may terminate the guardianship on the ground that devisees upon order of
the ward has COME OF AGE, or has DIED. The the court.

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

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

________________________________________________________________________________________________
of the trust a bond in the amount fixed by the judge Section 7. Appraisal. Compensation of
of said court, payable to the Government of the trustee. — When an inventory is required to be
Philippines and sufficient and available for the returned by a trustee, the estate and effects
protection of any party in interest, and a trustee who belonging to the trust shall be appraised and
neglects to file such bond shall be considered to the court may order one or more inheritance tax
have declined or resigned the trust; but the court appraisers to assist in the appraisement. The
may until further order exempt a trustee under a will compensation of the trustee shall be fixed by the
from giving a bond when the testator has directed or court, if it be not determined in the instrument
requested such exemption and may so exempt any creating the trust.
trustee when all persons beneficially interested in
the trust, being of full age, request the exemption. Section 8. Removal or resignation of trustee.
Such exemption may be cancelled by the court at — The proper Court of First Instance may, upon
any time and the trustee required to forthwith file a petition of the parties beneficially interested and
bond. after due notice to the trustee and hearing,
remove a trustee if such removal appears
Note: The court may cancel the exemption at any essential in the interest of the petitioner. The
time. court may also, after due notice to all persons
interested, remove a trustee who is insane or
Section 6. Conditions included in bond. — The otherwise incapable of discharging his trust or
following conditions shall be deemed to be part of evidently unsuitable therefor. A trustee, whether
the bond whether written therein or not; appointed by the court or under a written
instrument, may resign his trust if it appears to
the court proper to allow such resignation.
(a) That the trustee will make and return to
the court, at such time as it may order, a
true inventory of all the real and personal Section 9. Proceedings for sale or
estate belonging to him as trustee, which at encumbrance of trust estate. — When the
the time of the making of such inventory sale or encumbrance of any real or personal
shall have come to his possession or estate held in trust is necessary or expedient,
knowledge; the court having jurisdiction of the trust may, on
petition and after due notice and hearing, order
(b) That he will manage and dispose of all such sale or encumbrance to be made, and the
re-investment and application of the proceeds
such estate, and faithfully discharge his
thereof in such manner as will best effect the
trust in relation thereto, according to law
objects of the trust. The petition, notice, hearing,
and the will of the testator or the provisions
order of sale or encumbrance, and record of
of the instrument or order under which he is
proceedings, shall conform as nearly as may be
appointed;
to the provisions concerning the sale or
encumbrance by guardians of the property of
(c) That he will render upon oath at least minors or other wards.
once a year until his trust is fulfilled, unless
he is excused therefrom in any year by the
court, a true account of the property in his
hands and the management and disposition
thereof, and will render such other accounts RULE 99
as the court may order;
Adoption and Custody of Minors
(d) That at the expiration of his trust he will
settle his account in court and pay over New Rule on Adoption, effective August 22,
and deliver all the estate remaining in his 2002
hands, or due from him on such settlement,
to the person or persons entitled to thereto.
NATURE AND CONCEPT OF ADOPTION
But when the trustee is appointed as a successor to Adoption is a juridical act, a proceeding IN REM,
a prior trustee, the court may dispense with the which creates between 2 persons a relationship
making and return of an inventory, if one has similar to that which results from legitimate
already been filed, and in such case the condition of paternity and filiation.
the bond shall be deemed to be altered accordingly.
PURPOSE OF ADOPTION

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The promotion of the welfare of the child and the of general circulation in
enhancement of his opportunities for a useful and the province or city
happy life, and every intendment is sustained to where the court is
promote that objective. situated
Application is through a Application may be
WHAT DOES THE COURT IN ADOPTION CASES petition with the FC through a foreign
DETERMINE: country agency and
1. Capacity of the adopters; then submit to ICAB
2. Whether the adoption would be for the best Decree of adoption is
interest of the child. issued by the FC which Decree of adoption is
has jurisdiction over the issued by a foreign
Adoption is strictly personal between the adopter case court
and the adopted (Teotico vs. Del Val, L-18753,
March 26, 1956). Hence, the adopted child has NO
RIGHT OF REPRESENTATION in the estate of his Section 1. Venue. — A person desiring to adopt
adopter’s parent. another or have the custody of a minor shall
present his petition to the Court of First Instance
JUDICIAL ADOPTION EXTRAJUDICIAL of the province, or the municipal or justice of the
ADOPTION peace court of the city or municipality in which
Proper in domestic Proper in inter-country he resides.
adoption adoption
Under the jurisdiction of In the City of Manila, the proceedings shall be
Under the jurisdiction of the Inter-country instituted in the Juvenile and Domestic Relations
the Family Court (where Adoption board (but Court.
the adopter resides) petition may also be
filed with the Family
Venue; Special Proceedings (1997)
Court (where adoptee
Give the proper venue for the following special
resides) which will turn
proceedings: a) A petition to declare as escheated a
it over to ICAB
parcel of land owned by a resident of the Philippines
Trial custody in the Trial custody is in the
who died intestate and without heirs or persons
Philippines for 6 months country of the adopter
entitled to the property.
(but court may reduce and is mandatory
period or exempt before a decree of
b) A petition for the appointment of an
parties from trial adoption is issued administrator over the land and building left by an
custody) (expenses are borne by American citizen residing in California, who had
the adopter) been declared an incompetent by an American court.
Petition for adoption c) A petition for the adoption of a minor residing in
may include a prayer Pampanga.
SUGGESTED ANSWER:
for the change of name, Petition for adoption
(a) The venue of the escheat proceedings of a parcel
or declaration that the only
of land in this case is the place where the deceased
child is a foundling,
last resided. (Sec. 1. Rule 91, Rules of Court).
abandoned, dependent
or neglected child
(b) The venue for the appointment of an
administrator over land and building of an American
Legitimate or Only a child legally
illegitimate child of the available for domestic citizen residing in California, declared Incompetent
spouse or even a adoption may be the by an American Court, is the RTC of the place
person of legal age may subject of inter-country where his property or part thereof is situated. (Sec. 1.
Rule 92).
be adopted adoption
(c) The venue of a petition for the adoption of a
Income tax returns, Income tax returns,
minor residing in Pampanga is the RTC of the place
police clearance, police clearance,
in which the petitioner resides. (Sec. 1. Rule 99)
character reference, character reference,
family picture, birth family picture, birth
certificate of adopter certificate of adopter
are not required to be are required to be Section 2. Contents of petition. — The petition
annexed to the petition annexed to the petition for adoption shall contain the same allegations
Petition must be required in a petition for guardianship, to wit:
published at least once
a week for 3 successive No publication (a) The jurisdictional facts;
weeks in a newspaper requirement

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(b) The qualification of the adopter; of the death of the adopted person or child, his
parents and relatives by nature, and not by
(c) That the adopter is not disqualified by law; adoption, shall be his legal heirs.
(d) The name, age, and residence of the person Section 6. Proceedings as to the child whose
to be adopted and of his relatives of the persons parents are separated. Appeal. — When
who have him under their care; husband and wife are divorce or living
(e) The probable value and character of the separately and apart from each other, and the
estate of the person to be adopted. question as to the care, custody, and control of a
child or children of their marriage is brought
Section 3. Consent of adoption. — There shall be before a Court of First Instance by petition or as
filed with the petition a written consent to the an incident to any other proceeding, the court,
adoption signed by the child, if fourteen years of age upon hearing the testimony as may be pertinent,
or over and not incompetent, and by the child's shall award the care, custody, and control of
spouse, if any, and by each of its known living each such child as will be for its best interest,
parents who is not insane or hopelessly intemperate permitting the child to choose which parent it
or has not abandoned such child, or if there is no prefers to live with if it be over ten years of age,
such parents by the general guardian or guardian unless the parent so chosen be unfit to take
ad litem of the child, or if the child is in the custody charge of the child by the reason of moral
of an orphan asylum, children's home, or benevolent depravity, habitual drunkenness, incapacity, or
society or person, by the proper officer of such poverty. If, upon such hearing, it appears that
asylum, home, or society, or by such person; but if both parents are improper persons to have the
the child is illegitimate and has not been recognized, care, custody, and control of the child, the court
the consent of its father to the adoption shall not be may either designate the paternal or maternal
required. grandparent of the child, or his oldest brother or
sister, or some reputable and discreet person to
If the person to be adopted is of age, only his or her take charge of such child, or commit it to any
consent and that of the spouse, if any, shall be suitable asylum, children's home, or benevolent
required. society. The court may in conformity with the
provisions of the Civil Code order either or both
parents to support or help support said child,
Section 4. Order for hearing. — If the petition and
irrespective of who may be its custodian, and
consent filed are sufficient in form and substance,
may make any order that is just and reasonable
the court, by an order reciting the purpose of the
permitting the parent who is deprived of its care
petition, shall fix a date and place for the hearing
and custody to visit the child or have temporary
thereof, which shall not be more than six (6) months
custody thereof. Either parent may appeal from
after the entry of the order, and shall direct that a
an order made in accordance with the provisions
copy of the order be published before the hearing at
of this section. No child under seven years of
least once a week for three (3) successive weeks in
some newspaper of general circulation published in age shall be separated from its mother, unless
the court finds there are compelling reasons
the province, as the court shall deem best.
thereof.
Section 5. Hearing and judgment. — Upon
Section 7. Proceedings as to vagrant or
satisfactory proof in open court on the date fixed in
the order that such order has been published as abused child. — When the parents of any
minor child are dead, or by reason of long
directed, that the allegations of petition are true, and
absence or legal or physical disability have
that it is a proper case for adoption and the
abandoned it, or cannot support it through
petitioner or petitioners are able to bring up and
vagrancy, negligence, or misconduct, or neglect
educate the child properly, the court shall adjudge
or refuse to support it, or treat it with excessive
that thenceforth the child is free from all legal
harshness or give it corrupting orders, counsels,
obligations of obedience and maintenance with
or examples, or cause or allow it to engage in
respect to its natural parents, except the mother
begging, or to commit offenses against the law,
when the child is adopted by her husband, and is, to
the proper Court of First Instance, upon petition
all legal intents and purposes, the child of the
filed by some reputable resident of the province
petitioner or petitioners, and that its surname is
setting forth the facts, may issue an order
changed to that the petitioner or petitioners. The
requiring such parents to show cause, or, if the
adopted person or child shall thereupon become the
parents are dead or cannot be found, requiring
legal heir of his parents by adoption and shall also
the fiscal of the province to show cause, at a
remain the legal heir of his natural parents. In case
time and place fixed in the order, why the child
________________________________________________________________________________________________
should not be taken from its parents, if living; and if If, after hearing, the court shall find that the child
upon the hearing it appears that the allegations of to be dependent, abandoned, or neglected, it
the petition are true, and that it is order taking it from shall render judgment committing him to the
its parents, if living; and committing it to any suitable care and custody of the DSWD or any child
orphan asylum, children's home, or benevolent placement or child caring agency.
society or person to be ultimately placed, by
adoption or otherwise, in a home found for it by However, if the court finds that the abandonment
such asylum, children's home, society, or person. or neglect of the child may be remedied, the
child may be allowed to stay in his home under
the custody and care of his parent, subject to the
supervision of the DSWD.
PROPOSED RULE ON COMMITMENT OF
CHILDREN END OF A.M. 02-1-19-SC
(AM 01-1-19-SC)
Section 8. Service of judgment. — Final orders
WHO may file (sec. 4a): or judgments under this rule shall be served by
1. The Secretary of DSWD; the clerk upon the civil registrar of the city or
2. His authorized representative; municipality wherein the court issuing the same
3. Any child placement or child caring agency. is situated.
VENUE (sec. 4b):

The Family Court of the province or city in RULES ON DOMESTIC ADOPTION
which the parent or guardian resides or (Secs. 1- 25, A.M. NO. 02-6-02)
where the child is found.
WHO MAY ADOPT (sec. 4):
WHO shall be summoned (sec. 4d):
1. Parent or guardian of the child; A. Any Filipino Citizen-
2. Office of the Public Prosecutor. 1. Of legal age;
2. In possession of full civil
WHEN may summons may not be issued (sec. capacity and legal rights;
4d): 3. Of good moral character;
1. If it appears in the face of the petition that 4. Has not been convicted of any
both of he parents are dead; or crime involving moral turpitude;
2. That neither parent can be found in the 5. Emotionally and psychologically
province or city where the court is located capable of caring for children;
and the child has no guardian residing 6. In a position to support and care
therein. for his/her children in keeping
Note: In case no summons are issued, the court has with the means of the family;
the duty of appointing a guardian ad litem and shall and
proceed with the hearing of the case with due notice 7. At least 16 years older than the
to the provincial or city prosecutor. adoptee.
Note: There is no ANSWER here, only hearing is B. Any Alien possessing the same
required. qualifications as above; Provided:
1. That his/her country has
Child’s Right to Counsel (sec. 4g) diplomatic relations with the
The court, upon request of the child capable of Philippines;
forming his own views or upon request of his 2. That he/she been living in the
guardian ad litem, shall appoint a lawyer to Philippines for at least 3
represent him in the proceedings. continuous years prior to the
filing of the application for
Duty of the Public Prosecutor (sec.4h) adoption;
The provincial or city prosecutor shall appear for the 3. Maintains residence until the
state and ascertain if there has been due notice to adoption decree is entered;
all parties concerned and that there is justification 4. Certified to have legal capacity
for the declaration of dependency, abandonment or to adopt by his/her country; and
neglect. 5. That his/her government allows
the adoptee to enter his/her
Judgment (sec. 4j) country as his/her adopted child.
________________________________________________________________________________________________
1. Administrative/Voluntary—in this case,

C. The Guardian the parent or guardian of the child
voluntarily committed him to the DSWD
The requirement of 16 years difference between or any duly licenses child placement of
adopter and adoptee may be waived if adopter child caring agency. The child must be
is: surrendered in WRITING. Such written
1. The biological parent of the adoptee; instrument must be notarized and
2. The spouse of the adoptee’s parent. signed in the presence of an authorized
representative of the department after
The residency requirement and certification of counseling has been made to
aliens qualification to adopt may be waived for encourage the parents to keep the child
the following: (sec. 5, AM 02-1-19-SC).
1. The adopter is a former Filipino citizen who
seeks to adopt a relative within the 4 th 2. Judicial/Involuntary—follow the
degree of consanguinity or affinity; procedure in AM 02-1-19-SC.
2. One who seeks to adopt the legitimate child
of his/her Filipino spouse; GR: Husband and Wife shall JOINTLY adopt.
3. One who is married to a Filipino citizen and Exceptions:
seeks to adopt jointly with his/her spouse a 1. If one spouse seeks to adopt the
relative within the 4th degree of legitimate child of the other;
consanguinity or affinity of the Filipino 2. If one spouse seeks to adopt his/her
spouse. own illegitimate child provided the other
spouse has signified his consent
WHO MAY BE ADOPTED (sec. 5): thereto; or
3. If the spouses are legally separated
1. Any person below 18 years of age who has from each other.
been judicially declared available for
adoption OR voluntarily committed to he VENUE (sec. 6)
DSWD; Family Court where the prospective
2. The legitimate child of one spouse by the adoptive parents reside.
other spouse;
3. An illegitimate child by a qualified adopter to CONTENTS OF THE PETITION(sec. 7):
raise the status of the former to that of
legitimacy; A. If the adopter is a Filipino citizen, the
4. A person of legal age regardless of civil petition shall allege the following:
status, if, prior to the adoption, said person (a) Jurisdictional facts;
has been consistently considered and (b) The matters contained in sec.
treated by the adopters as their own child 4a of AM 02-6-02;
since minority; The requirement of 16 years difference
5. A child whose adoption has been previously between adopter and adoptee may be waived
rescinded; if adopter is:
6. A child whose biological or adoptive parents 1. The biological parent of the adoptee;
have died but no proceedings shall be 2. The spouse of the adoptee’s parent.
initiated within 6 months from the time of (c) the Fact that the prospective
death of said parents; and adoptee has undergone pre-
7. A child not otherwise disqualified by law or adoption services.
this Rules.
B. If the petitioner is an alien, the
CHILD LEGALLY AVAILABLE FOR ADOPTION petition shall allege the following:
This refers to a child who has been voluntarily or (a) The jurisdictional facts;
involuntarily committed to the DSWD or to a duly (b) Sub-paragraph b above (same
licensed and accredited child-placing or child caring as a Filipino citizen);
agency, freed from the parental authority of his (c) That his/her country has
biological parents, or in case of rescission of diplomatic relations with the
adoption, his guardian or adopter/s. Philippines;
(d) That he/she been living in the
2 WAYS TO COMMIT A CHILD: Philippines for at least 3
continuous years prior to the

________________________________________________________________________________________________
filing of the application for adoption; 4. The first name, surname, or names by
(e) Certified to have legal capacity to which the adoptee is to be known and
adopt by his/her country; and registered in the Civil Registry.
(f) That his/her government allows the
adoptee to enter his/her country as Petition shall be verified and specifically state
his/her adopted child. at the initiatory pleading whether the petition
contains an application for a change of name,
The residency requirement and certification of rectification of simulated birth, voluntary or
aliens qualification to adopt may be waived for the involuntary commitment of children, declaration
following: of abandonment, dependency or being
1. The adopter is a former Filipino citizen who neglected.
seeks to adopt a relative within the 4 th
degree of consanguinity or affinity; CAFS shall be included
2. One who seeks to adopt the legitimate child pursuant to sec. 5, Rule 7 of
of his/her Filipino spouse; the Rules of Court.
3. One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a ANNEXES TO THE PETITION
relative within the 4th degree of
consanguinity or affinity of the Filipino A. Birth, baptismal, or foundling certificate,
spouse. as the case may be and school records
showing the name, age and residence of
C. If the adopter is the legal guardian of the the adoptee;
adoptee: B. Affidavit of consent of the following:
The petition shall allege that the 1. The adoptee, if 10 years or
guardianship had been terminated and the over;
guardian had cleared his financial 2. The biological parents of the
accountabilities. child, if known, or the legal
guardian, or the child-placement
D. If the adopter is married, the spouse agency, child-caring agency or
shall be a co-petitioner except: the proper government
1. One spouse seeks to adopt the instrumentality which has legal
legitimate child of the other; custody of the child;
2. If one spouse seeks to adopt his 3. The legitimate and adopted
own illegitimate child and the other children of the adopter, if any,
spouse has signified his consent who are 10 years of age or over;
thereto; 4. The illegitimate children of the
3. If the spouses are legally separated adopter living with him who are
from each other. 10 years of age or over;
E. If the adoptee is a foundling, the petition 5. The spouse, if any, of the
shall allege the entries which should appear adopter or adoptee.
in his birth certificate, such as name of child,
date of birth, place of birth if known, sex, C. Child study report on the adoptee and
name and citizenship of adoptive mother his biological parents;
and father, and date and place of their D. If the petitioner is an alien, a certification
marriage. by his diplomatic or consular office or
F. If the petition prays for the change of name, any appropriate government agency that
it shall also state the cause or reason for he has legal capacity to adopt and that
such change of name. his government allows the adoptee to
enter his country as his own adopted
In all petitions, it shall be alleged: child unless exempted under section
1. The first name, surname or names, 4(2);
age and residence of the adoptee E. Home study reports on the adopters. If
as shown by his record of birth, the adopter is an alien or residing
baptismal, or foundling certificate abroad but qualified to adopt the home
and school records; study report of a foreign adoption
2. That the adoptee is not disqualified agency duly accredited by the Inter-
by law to be adopted; Country Adoption Board;
3. The probable value and character
of the estate of the adoptee;

________________________________________________________________________________________________
F. Decree of annulment, nullity, or legal The social worker verifies with

separation of the adopter as well as that of the Civil Registry the real
the biological parents, if any. parents and the name of the
adoptee and the fact that he is
PROCEDURE legally available for adoption
The social worker may make
A. ORDER OF HEARING (sec. 12) recommendations to the court if
1. It must be published at least once a week he finds some grounds to deny
for 3 consecutive weeks; the petition.
2. At the discretion of the court, copies of the
order of hearing shall be furnished to the C. HEARING (sec. 14)
Office of the Solicitor General, to the It is to be held within 6 months from the
provincial or city prosecutor, the DSWD, date of issuance of the order.
and the biological parents, if known; Except: In case of application for change
3. If change of name of the adoptee is prayed of name which hearing must neither be
for in the petition, notice to the SolGen shall within 4 months after last publication nor
be MANDATORY. within 30 days prior to election.
Contents of the order: The petitioner and the adoptee must

1. The registered name of the adoptee in the personally appear and the former must
birth certificate and the names by which the testify in court.
adoptee has been known which shall be
stated in the caption; D. SUPERVISED TRIAL CUSTODY [STC]
2. The purpose of the petition; (sec. 15)
3. The complete name which the adoptee will Before the issuance of the Decree of Adoption,
use if petition is granted; the court shall give adopter trial custody of the
4. The date and place of hearing which shall adoptee for at least 6 months.
be set within 6 months from the date of the
issuance of the order and shall direct that a REASON: In order for the parties to adjust
copy thereof be published before the date of psychologically and emotionally with each other
the hearing at least once a week for 3 and to establish a bonding relationship.
successive weeks in a newspaper of
general circulation in the province or city GR: Alien adopter must complete the 6 months
where the court is situated; Provided, that in STC.
case of application for change of name, the EXCEPTION: Same as exceptions from
date set for hearing shall not be within 4 residency and certification requirements
months after the last publication of the
notice nor within 30 days prior to an NOTE: Court may reduce or exempt parties
election. from supervised trial custody, if it finds that the
same shall be for the best interest of the
The newspaper shall be selected by raffle adoptee.
under the supervision of the executive
judge. E. DECREE OF ADOPTION
If issued, this will take effect as of the date of the
5. A directive to the social worker of the court, filing of the original petition.
the social service office of the local
government unit or any child-placing or child In case of change of name, the decree shall be
caring agency, or the DSWD to prepare and submitted to the Civil Registrar where the court
submit a child and home study reports issuing the same is situated.
before hearing if such reports have not been
attached to the petition due to unavailability An amended birth certificate shall be issued.
at the time of the filing of the latter; and The original birth certificate shall be stamped
6. A directive to the social worker of the court “cancelled” and shall be sealed in the Civil
to conduct counseling sessions with the Registry records.
biological parents on the matter of adoption
of the adoptee and submit her report before Note: the new birth certificate to be issued to the
the date of hearing. adoptee shall not bear any notation that it is an
amended issue.
B. CHILD and HOME STUDY REPORTS (sec. 13)

________________________________________________________________________________________________
EFFECTS OF ADOPTION: (5) When only the adopters survive,

1. Adopter shall exercise parental authority; they shall inherit the entire estate; and
2. All legal ties between biological parents and
adoptee shall be severed, except when
biological parent is the spouse of the (6) When only collateral blood relatives
adopter; of the adopted survive, then the
3. Adoptee shall be considered legitimate child ordinary rules of legal or intestate
of the adopter for all intents and purposes; succession shall apply.
4. Adopters shall have reciprocal rights of
succession without distinction from All hearings and records are confidential (sec.
legitimate filiation. 18).
NOTES: under the law:

INTER-COUNTRY ADOPTION (sec. 26-32)
Art. 979, NCC, par. 2. An adopted child succeeds to
the property of the adopting parents in the same WHERE to file Petition (sec. 28):
manner as a legitimate child. 1. A verified petition to adopt a Filipino
child may be filed by a Filipino
The following, HOWEVER, are pertinent permanently residing abroad or foreign
provisions of the FC: national with the Family Court having
jurisdiction of the place where the child
Art. 189, FC. Adoption shall have the following resides or may be found; or
2. It may be filed directly with the ICAB.
effects:
(1) For civil purposes, the adopted shall be WHO may Adopt:
deemed to be a legitimate child of the 1. Any alien or Filipino citizen permanently
adopters and both shall acquire the residing abroad who is at least 27 years
reciprocal rights and obligations arising of age;
from the relationship of parent and child, 2. Other requirements are the same as
with R.A. 8552 (Domestic Adoption Act
including the right of the adopted to use of 1998).
the surname of the adopters;
WHO may be Adopted:
(2) The parental authority of the parents by Only a child legally available for
nature over the adopted shall terminate domestic adoption may be the subject of
inter-country adoption.
and be vested in the adopters, except that
if the adopter is the spouse of the parent A child under the Inter-Country Adoption
by nature of the adopted, parental Act is defined as any person below 15
authority over the adopted shall be years of age.
exercised jointly by both spouses; and
CONTENTS OF THE PETITION (sec. 30)
(3) The adopted shall remain an intestate PETITIONER MUST ALLEGE:
heir of his parents and other blood 1. His age and the age of the child to be
relatives. adopted, showing that he is at last 27
years of age and at least 16 years older
Art. 190, FC. Legal or intestate succession to the than the child to be adopted at the time
estate of the adopted shall be governed by the of application, unless petitioner is the
parent by nature of the child or the
following rules:
spouse of such parent;
2. If, married, the name of the spouse who
(2) When the parents, legitimate or must be joined as co-petitioner except
illegitimate, or the legitimate ascendants of when adopted is a legitimate child of his
the adopted concur with the adopter, they spouse;
shall divide the entire estate, one-half to be 3. That he has capacity to act and assume
all rights and responsibilities of parental
inherited by the parents or ascendants and authority under his national law, and has
the other half, by the adopters;
________________________________________________________________________________________________
undergone the appropriate counseling from Section 2. Order to answer. —

an accredited counselor in his country; Section 3. Judgment. —
4. That he has not been convicted of a crime Section 4. Service of Judgment.
involving moral turpitude; Section 5. Time within which to file petition.
5. That he is eligible to adopt under his
national law;
6. That he can provide the proper care and NOTES:
support and instill the necessary moral
values and example to his children, RESCISION OF ADOPTION
including the child to be adopted;
7. That he agrees to uphold the basic rights of Under the Domestic Adoption Act of 1998, the
the child, as embodied under Philippine adopter CAN NO LONGER RESCIND the
laws and the UN Convention on the Rights adoption, he can merely DISINHERIT the
of the Child, and to abide by the rules and adoptee in accordance with the provisions of the
regulations issued to implement the Civil Code.
provisions of RA 8043;
8. That he comes from a country which the Bar Exam Question 2012
Philippines has diplomatic relations and 84. A and B adopted their nephew. They
whose government maintains similarly filed an action for revocation of the
authorized and accredited agency and that adoption on May 1, 1998 on the ground
adoption of a Filipino child is allowed under that their nephew neglected them. Based on
his national law; the Rules of Domestic Adoption, the judge
9. The he possesses all the qualifications and must:
non of the disqualifications provide in this a. advise A and B to just disinherit the
Rule, in Republic Act 8043, and all other nephew.
applicable laws of the Philippines. b. disallow the revocation.
c. refer the petition to the DSWD.
ANNEXES (sec. 31): d. grant the petition after hearing.
1. Birth certificate of petitioner; SUGGESTED ANSWERS: (a) and (b),
2. Marriage contract, if married, and, if Adoption being in the best interest of
applicable, the divorce decree, or judgment the child, shall not be subject to
dissolving the marriage; rescission by the adopter(s). However,
3. Sworn statement of consent of petitioner’s the adopter(s) may disinherit the
biological or adopted child above 10 years adoptee for causes provided in Article
of age;
919 of the Civil Code. (Sec.19, R.A. 8552
4. Physical, medical and psychological
Rules of Domestic Adoption).
evaluation of the petitioner certified by a
duly licensed physician and psychologist;
5. Income tax return or any authentic
Rescission relates only as to the date of the
document showing petitioner’s current
judgment. Hence, vested rights prior to the
financial capability;
rescission shall be respected.
6. Police clearance of petitioner issued within
6 months before filing the petition;
WHO files (sec.19):
7. Character reference from local
1. Adoptee
church/minister, the petitioner’s employer
a) Over 18 years of age;
and a member of the immediate community
b) If minor, with the assistance of
who have known the petitioner for at least 5
DSWD.
years;
2. Guardian or Counsel, if over 18 but
8. Full-body postcard size pictures of the
incapacitated
petitioner and his immediate family taken at
least 6 months before filing the petition.
GROUNDS for Rescission (sec.19):
1. Repeated physical violence and verbal
maltreatment by the adopter despite
having undergone counseling;
RULE 100
2. Attempt on the life of the adoptee;
3. Sexual assault or violence; or
Rescission and Revocation of Adoption 4. Abandonment or failure to comply with
parental obligations.
Section 1. Who may file petition; grounds.
________________________________________________________________________________________________
of his relatives residing in the province or city as

VENUE (sec. 20) the judge may deem proper. The court shall
Family Court of the province or city where furthermore order the sheriff to produce the
adoptee resides. alleged insane person, if possible, on the date of
the hearing.
WHEN to file verified petition (sec.24):
Within 5 YEARS from reaching the age of Section 3. Hearing and judgment. — Upon
majority or after recovery from satisfactory proof, in open court on the date
incompetency. fixed in the order, that the commitment applied
for is for the public welfare or for the welfare of
Adverse party shall file his answer within 15 the insane person, and that his relatives are
days from receipt of order of court requiring unable for any reason to take proper custody
him to answer (sec. 22). and care of him, the court shall order his
commitment to such hospital or other place for
EFFECTS OF JUDGMENT OF RESCISSION: the insane as may be recommended by the
1. Parental authority of the biological parent or Director of Health. The court shall make proper
legal custody of DSWD will be restored; provisions for the custody of property or money
2. Reciprocal rights of adopter and adoptee is belonging to the insane until a guardian be
extinguished; properly appointed.
3. Vested rights prior to the judicial rescission
shall be respected; Section 4. Discharge of insane. — When, in
4. Successional rights shall revert to its status the opinion of the Director of Health, the person
prior to adoption, as of the date of judgment ordered to be committed to a hospital or other
of judicial rescission; place for the insane is temporarily or
5. Adoptee shall use the name in his original permanently cured, or may be released
birth or foundling certificate; and without danger he may file the proper petition
6. Civil Registrar shall reinstate his original with the Court of First Instance which ordered
birth or foundling certificate. the commitment.
Unlike in revocation of guardianship, revocation of
adoption is a separate proceeding from adoption. Section 5. Assistance of fiscal in the
proceeding. — It shall be the duty of the
provincial fiscal or in the City of Manila the fiscal
of the city, to prepare the petition for the Director
of Health and represent him in court in all
RULE 101 proceedings arising under the provisions of this
rule.
Proceedings for Hospitalization of Insane
Persons
Section 1. Venue, Petition for commitment. — A RULE 102

petition for the commitment of a person to a hospital
or other place for the insane may be filed with the Habeas Corpus
Court of First Instance (now RTC) of the province
where the person alleged to be insane is found. The
petition shall be filed by the Director of Health in all NOTES: HC only applies to living persons
cases where, in his opinion, such commitment is for (body). However, in a case, the SC held that HC
the public welfare, or for the welfare of said person can be applied to obtain custody of the
who, in his judgment, is insane and such person or deceased body. Note, however that the subject
the one having charge of him is opposed to his person died during the pendency of the HC
being taken to a hospital or other place for the proceedings.
insane.
Appeal in HC is within 48 hours from notice of
judgment (sec. 39, BP 129)
Section 2. Order for hearing. — If the petition filed
is sufficient in form and substance, the court, by an Habeas Corpus (1993)
order reciting the purpose of the petition, shall fix a Roxanne, a widow, filed a petition for habeas corpus
date for the hearing thereof, and copy of such order
shall be served on the person alleged to be insane,
and to the one having charge (over) him, or on such

________________________________________________________________________________________________
with the Court of Appeals against Major Amor who is Note: Actual physical restraint is not required;
allegedly detaining her 18-year old son Bong without any restraint which will prejudice freedom of
authority of the law. action is sufficient.
After Major Amor had a filed a return alleging the
cause of detention of Bong, the Court of Appeals WRIT OF HABEAS CORPUS (Amparo
promulgated a resolution remanding the case to the Libertad)
RTC for a full-blown trial due to the conflicting facts It is a writ directed to the person detaining
presented by the parties in their pleadings. In directing another and commanding him to produce the
the remand, the court of Appeals relied on Sec.9(1), in body of the prisoner at a certain time and place,
relation to Sec. 21 of BP 129 conferring upon said Court with the day and the cause of his caption and
the authority to try and decide habeas corpus cases detention, to do, to submit to, and receive
concurrently with the RTCs. Did the Court of Appeals whatsoever the court or judge awarding the writ
act correctly in remanding the petition to the RTC? shall consider in that behalf.
Why?
SUGGESTED ANSWER: WHEN AVAILED OF: (as consequence of a
No, because while the CA has original jurisdiction over judicial proceeding) [Feria vs. CA, GR No.
habeas corpus concurrent with the RTCs, it has no 122954, Feb. 15, 2000).
authority for remanding to the latter original actions filed
with the former. On the contrary, the CA is specifically 1. There has been a deprivation of a
given the power to receive evidence and perform any constitutional right resulting in the
and all acts necessary to resolve factual issues raised in restraint of a person;
cases falling within its original jurisdiction. 2. The court has no jurisdiction to impose
ALTERNATIVE ANSWER: the sentence;
Yes, because there is no prohibition in the law against a 3. An excessive penalty has been
superior court referring a case to a lower court having imposed, as such sentence is void as to
concurrent jurisdiction. The Supreme Court has referred the excess; or
to the CA or the RTC cases falling within their 4. When the law is amended as when the
concurrent jurisdiction. penalty is lowered.
5. It also extend to cases by which rightful
custody of any person is withheld from
the person entitled thereto (Tijing vs.
CERTIORARI, CA, GR No. 125901, March 8, 2001).
PROHIBITION AND HABEAS CORPUS 6. The writ was issued on the ground that
MANDAMUS moral restraint was being exerted by the
Special Civil Action Special proceeding employer to prevent the housemaid from
under Rule 65 leaving (Caunca vs. Salazar, 82 Phil.
It reaches the record; It reaches the body but 851).
concerned with errors not the records; inquiry
of jurisdiction on the legality of the NATURE OF THE PROCEEDING
committed by the court detention Petition for HC is like a proceeding IN REM
Direct attack Collateral attack because, it is an inquisition by the government,
at the suggestion and instance of an individual,
Failure to file comment Failure to file return
most probably, but still in the name and capacity
will not be punished by constitutes indirect
contempt and will not contempt of the sovereign. It is also instituted for the
purpose of fixing the status of a person and that
even be declared in
default there can be no judgment entered against
anybody since there is no real plaintiff and
Court and prevailing Respondent is the
defendant (Alimpos vs. CA, 106 SCRA 159).
party are named detainer
defendants
PURPOSE: The essential object and purpose of
.
the wit of HC is to inquire into all manners of
involuntary restraint as distinguished from
Section 1. To what habeas corpus extends. — voluntary, and to relieve the person therefrom, if
Except as otherwise expressly provided by law, the such restraint is illegal (Moncupa vs. Enrile, 141
writ of habeas corpus shall extend to all cases of SCRA233).
illegal confinement or detention by which any
person is deprived of his liberty, or by which the Any further rights of the parties are left
rightful custody of any person is withheld from untouched by decision on the wit, whose
the person entitled thereto.

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principal purpose is to set the individual at liberty The Congress, if not in session, shall, within
(Villavicencio vs. Lukban, 39 Phil. 778). twenty-four hours following such
proclamation or suspension, convene in
The general rule is that HC is a remedy availed
only against living person. accordance with its rules without need of a
call.
Exceptional case: Custody of the deceased body
of the person subject of a petition for HC, who died The Supreme Court may review, in an
during the pendency of the HC proceedings, was appropriate proceeding filed by any citizen,
awarded in a HC case by mere amendment of the
the sufficiency of the factual basis of the
pleadings (Eugenio, Sr. vs. Velez, 185 SCRA 425).
proclamation of martial law or the suspension
WHEN DOES THE COURT ACQUIRE of the privilege of the writ or the extension
JURISDICTION OVER THE PERSON OF THE thereof, and must promulgate its decision
RESPONDENT: thereon within thirty days from its filing.
The Writ itself plays the rule of summons in ordinary
actions; Court acquires jurisdiction over the person
A state of martial law does not suspend the
of the respondent BY MERE SERVICE OF THE operation of the Constitution, nor supplant
WRIT. the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of
GROUNDS FOR THE SUSPENSION OF THE jurisdiction on military courts and agencies
PRIVILEGE OF THE WRIT OF HABEAS CORPUS over civilians where civil courts are able to
UNDER THE CONSTITUTION:
1. Invasion, when public safety requires it; function, nor automatically suspend the
2. Rebellion, when public safety requires it. privilege of the writ.
The following is a constitutional provision The suspension of the privilege of the writ
pertinent to HC: shall apply only to persons judicially charged
for rebellion or offenses inherent in or
Section 18, Art. VII. The President shall be the directly connected with invasion.
Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, During the suspension of the privilege of the
he may call out such armed forces to prevent or writ, any person thus arrested or detained
suppress lawless violence, invasion or rebellion. shall be judicially charged within three days,
In case of invasion or rebellion, when the public otherwise he shall be released. (ARTICLE VII,
safety requires it, he may, for a period not sec. 18).
exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the IN CASE OF ILLEGAL CONFINEMENT OR
Philippines or any part thereof under martial law. DETENTION
Within forty-eight hours from the proclamation
of martial law or the suspension of the privilege GR: the release, whether permanent or
of the writ of habeas corpus, the President shall temporary, of a detained person renders the
petition for HC moot and academic.
submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote Exception: When there are restraints attached
of at least a majority of all its Members in regular to his release which precludes freedom of
or special session, may revoke such proclamation action, in which case the court can still inquire
or suspension, which revocation shall not be set into the nature of his involuntary restraint
aside by the President. Upon the initiative of the (Villavicencio vs. Lukban, supra).
President, the Congress may, in the same
manner, extend such proclamation or suspension VOLUNTARY RESTRAINT
for a period to be determined by the Congress, if
the invasion or rebellion shall persist and public GR: Writ not available if restraint is voluntary.
safety requires it.

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Exception: Writ will lie to enable the parents (or Bar Exam Question 2012
persons having substitute parental authority) to 53. A judge of an MTC can hear and decide
recover custody of a minor child although she is in petitions for habeas corpus or applications
custody of a 3rd person on his/her own volition. for bail where:
a. the Supreme Court authorizes the MTC.
NOTE: Voluntariness is viewed from the viewpoint b. the judge is the Executive Judge of the
of the person entitled to custody. MTC.
c. the judge of the RTC where the case is
WHEN PETITION FOR HC NOT PROPER: raffled has retired, was dismissed or had
died.
1. For asserting or vindicating denial of right to d. in the absence of all the RTC Judges
bail; and in the province or city.
2. For correcting errors in appreciation of facts SUGGESTED ANSWER: (d), In the
or appreciation of law. absence of all the Regional Trial Judges
in a province or city, any Metropolitan
HC can never be a substitute of an appeal. Trial Judge, Municipal Trial Judge,
Municipal Circuit Trial Judge may hear
and decide petitions for a writ of habeas
Can HC may be properly be filed with petition for
corpus or applications for bail in
certiorari and mandamus:
criminal cases in the province or city
where the absent Regional Trial Judges
The court ruled that the writs of HC and Certiorari
sit. (Section 35, Batas Pambansa Blg.
may be ancillary to each other where necessary to
129).
give effect to the supervisory powers of the higher
courts.
Habeas Corpus (2003)
A writ of HC reaches the body and the jurisdictional
matters, but not the record. A writ of certiorari
Widow A and her two children, both girls, aged 8
reaches the record but not the body. and 12 years old, reside in Angeles City, Pampanga.
A leaves her two daughters in their house at night
Hence, a writ of HC may be used with the writ of because she works in a brothel as a prostitute.
certiorari for the purpose of review. However, HC Realizing the danger to the morals of these two girls,
does not lie where the petitioner has remedy of B, the father of the deceased husband of A, files a
appeal because it will not be permitted to perform petition for abeas corpus against A for the custody
the function of a writ of error or appeal for the of the girls in the Family Court in Angeles City. In
purpose of reviewing mere errors or irregularities in said petition, B alleges that he is entitled to the
the proceedings of a court having jurisdiction over custody of the two girls because their mother is
the person and the subject matter (Galvez, et. Al. living a disgraceful life. The court issues the writ of
vs.CA, et. Al. 237 SCRA 685). habeas corpus. When A learns of the petition and
the writ, she brings her two children to Cebu City.
Section 2. Who may grant the writ. — The writ of At the expense of B the sheriff of the said Family
habeas corpus may be granted by the Supreme Court goes to Cebu City and serves the writ on A. A
Court, or any member thereof in the instances files her comment on the petition raising the
authorized by law, and if so granted it shall be following defenses: a) The enforcement of the writ
enforceable anywhere in the Philippines, and may of habeas corpus in Cebu City is illegal; and b) B has
be made returnable before the court or any member no personality to institute the petition. 6% Resolve
thereof, or before a Court of First Instance, or any the petition in the light of the above defenses of A.
judge thereof for the hearing and decision on the (6%)
merits. It may also be granted by a Court of First SUGGESTED ANSWER:
Instance, or a judge thereof, on any day and at any (a) The writ of habeas corpus issued by the Family
time, and returnable before himself, enforceable Court in Angeles City may not be legally enforced in
only within his judicial district. Cebu City, because the writ is enforceable only within
the judicial region to which the Family Court belongs,
unlike the writ granted by the Supreme Court or Court
Note: RTC, CA, and SC have concurrent jurisdiction of Appeals which is enforceable anywhere in the
to issue writs of HC. The MTC can issue the writ in Philippines. (Sec. 20 of Rule on Custody of Minors and
case there is no available RTC judge. Hierarchy of Writ of Habeas Corpus in Relation to Custody of
courts is not observed. Minors. (A.M. No. 03-04-04-SC; see also Sec. 4 of Rule
102, Rules of Court.)

________________________________________________________________________________________________
(b) B, the father of the deceased husband of A, has the certiorari, habeas corpus, injunction,
personality to institute the petition for habeas corpus of and other ancillary writs and processes
the two minor girls, because the grandparent has the in aid of its appellate jurisdiction:
right of custody as against the mother A who is a Provided, that the jurisdiction over
prostitute. (Sectioins 2 and 13, Id.) these petitions shall not be exclusive of
the Supreme Court. (Sec.2, R.A. 7975-An
Act to Strengthen the Functional and
Sandiganbayan may issue writs of HC only if it is in Structural Organization of the
aid of its appellate jurisdiction. Sandiganbayan, amending for that
purpose Presidential Decree No. 1606, as
Habeas Corpus; Jurisdiction; Sandiganbayan (2009) amended).
No.XI.C. In the exercise of its original jurisdiction, the
Sandiganbayan may grant petitions for the issuance of a
writ of habeas corpus. SUGGESTED ANSWER: COLLEGIATE RTC
FALSE. The Sandiganbayan may grant petitions for COURTS
Habeas corpus only in aid of its appellate Enforceable throughout Enforceable only within
jurisdiction (R.A. 7975, as amended by R.A 8249), the Philippines their respective judicial
not in the exercise of “original” jurisdiction. region
Returnable to any court Returnable only to
Bar Exam Question 2012 itself.
57. The Sandiganbayan can entertain a quo
warranto petition only in: JURISDICTION IN CASES OF HABEAS
a. cases involving public officers with salary CORPUS WITH RESPECT TO CUSTODY OF
grade 27 or higher. MINORS
b. only in aid of its appellate jurisdiction. Although the Family Court where the petitioner
c. as a provisional remedy. resides or where the minor may be found has
d. cases involving "ill gotten wealth". exclusive and original jurisdiction to hear
SUGGESTED ANSWER: petitions for HC with respect to minors, the SC
and the CA can take cognizance of such petition
(b), The Sandiganbayan shall have exclusive
in order that it may be enforceable within the
original jurisdiction over petitions for the
Philippines.
issuance of the writs of mandamus,
prohibition, certiorari, habeas corpus,
However, the return can be heard in the FC/RTC
injunctions, and other ancillary writs and
if there is no FC in the judicial region and there
processes in aid of its appellate jurisdiction
is no need to file a separate petition for custody
and over petitions of similar nature,
because the issue can be ventilated in the
including quo warranto, arising or that may petition for the writ.
arise in cases filed or which may be filed
under Executive Order Nos. 1, 2, 14 and 14- Jurisdiction; Habeas Corpus; Custody of Minors (2005)
A, issued in 1986: Provided, that the While Marietta was in her place of work in Makati
jurisdiction over these petitions shall not City,
be exclusive of the Supreme Court. (Sec. 4, her estranged husband Carlo barged into her house
R.A. 8249, Act amending P.D. 1606). in
Paranaque City, abducted their six-year old son,
Bar Exam Question 2012 Percival, and brought the child to his hometown in
85. Sandiganbayan exercises concurrent Baguio City. Despite Marietta's pleas, Carlo refused
jurisdiction with the Supreme Court and the to return their child. Marietta, through counsel, filed
Court of Appeals over: a petition for habeas corpus against Carlo in the
a. Petitions for Writ of Certiorari and Court of Appeals in Manila to compel him to
Prohibition; produce their son, before the court and for her to
b. Petitions for Writ of Habeas Corpus; regain custody.
c. Petitions for Quo Warranto; She alleged in the petition that despite her efforts,
d. Petitions for Writ of Amparo and Habeas she
Corpus. could no longer locate her son. In his comment,
SUGGESTED ANSWER: (d), The Carlo alleged that the petition was erroneously filed
Sandiganbayan shall have exclusive original in the Court of Appeals as the same should have
jurisdiction over petitions for the issuance
been filed in the Family Court in Baguio City which,
of the writs of mandamus, prohibition,
under Republic Act No. 8369, has exclusive
________________________________________________________________________________________________
jurisdiction, over the petition. Marietta replied that under or, if the imprisonment or restraint is without
Rule 102 of the Rules of Court, as amended, the petition any legal authority, such fact shall appear.
may be filed in the Court of Appeals and if granted, the
writ of habeas corpus shall be enforceable anywhere in NOTE: The liberal application of the Rules in
the Philippines. Whose contention is correct? Explain. accepting petitions for HC filed by detained
(5%) prisoners (Ucat).
SUGGESTED ANSWER:
Marietta's contention is correct. The Court of Appeals
Section 4. When writ not allowed or discharge
has concurrent jurisdiction with the family courts and authorized. — If it appears that the person
the Supreme Court in petitions for habeas corpus where alleged to be restrained of his liberty is in the
the custody of minors is at issue, notwithstanding the custody of an officer under process issued by a
provision in the Family Courts AH. (R.A. No. 8369) that court or judge or by virtue of a judgment or order
family courts have exclusive jurisdiction in such cases. of a court of record, and that the court or judge
(Thornton v. Thornton, G.R. No. 154598, August, 2004)
had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not
be allowed; or if the jurisdiction appears after the
REQUISITES for the issuance of the writ in writ is allowed, the person shall not be
cases where the rightful custody over the
discharged by reason of any informality or defect
person of the minor is withheld from the person in the process, judgment, or order. Nor shall
entitled thereto:
anything in this rule be held to authorize the
1. That the petitioner has the right to the discharge of a person charged with or convicted
custody over the minor; of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment.
2. That the rightful custody of the minor is
being withheld from the petitioner by
respondent; GROUNDS FOR DENIAL OR DISCHARGE OF
THE WRIT:
3. That it is for the best interest of the minor to 1. If the person is in custody of an officer
be in the custody of the petitioner and not under process issued by a court or by
that of respondent (Sombong vs. CA, virtue of a judgment or order of a court
January 31, 1996). of record which has jurisdiction to issue
the process, render judgment or make
the order
a) Warrant of arrest;
b) Writ of mitimus;
Section 3. Requisites of application therefor. — c) Commitment order;
Application for the writ shall be by petition signed d) Imprisoned for direct contempt;
and verified either by the party for whose relief it is e) Others (failure to obey an order
intended, or by some person on his behalf, and shall of the court).
set forth: 2. If jurisdiction appears after the writ is
allowed;
(a) That the person in whose behalf the 3. If the person is charged and convicted of
application is made is imprisoned or restrained an offense in the Philippines;
on his liberty; 4. If the person is suffering imprisonment
under lawful judgment;
(b) The officer or name of the person by whom 5. A 3 day detention period of a suspect
he is so imprisoned or restrained; or, if both are without charge as provided under the
unknown or uncertain, such officer or person Human Security Acts (sec. 18, RA
may be described by an assumed appellation, 9372).
and the person who is served with the writ shall
be deemed the person intended; Supervening Events may BAR release
Even if the arrest of a person is illegal,
(c) The place where he is so imprisoned or supervening events may bar release or
discharge from custody. What is to be inquired
restrained, if known;
into is the legality of detention as of, at the
earliest, the filing of the application for the writ of
(d) A copy of the commitment or cause of HC, for even the detention is at its inception is
detention of such person, if it can be procured illegal, it may, by reason of some supervening
without impairing the efficiency of the remedy; events such as the instances mentioned in

________________________________________________________________________________________________
section 4, be no longer illegal at the time of the filing 1. Does W have the personality to file the petition
of the application (Velasco vs. CA, July 7, 1995). for habeas corpus? [2%]
2. Is the petition tenable? [3%]
Habeas Corpus; Bail (2008) SUGGESTED ANSWER:
No.XIX. After Alma had started serving her 1. Yes. W, the live-in partner of A, has the
sentence for violation of BP 22, she filed a personality to file the petition for habeas corpus
petition for a writ of habeas corpus, citing Vaca because it may be filed by "some person in his
vs CA where the sentence of imprisonment of a behalf." (Sec. 3. Rule 102. Rules
party found guilty of violation of BP 22 was of Court.)
reduced to a fine equal to double the amount 2. No. The petition is not tenable because the
of the check involved. She prayed that her warrant of arrest was issued by a court which had
sentence be similarly modified and that she be Jurisdiction to issue it (Sec. 4, Rule 102 Rules of Court)
immediately released from detention. In the
alternative, she prayed that pending
determination on whether the Vaca ruling
applies to her, she be allowed to post bail Section 5. When the writ must be granted and
pursuant to Rule 102, Sec. 14, which provides issued. — A court or judge authorized to grant
that if a person is lawfully imprisoned or the writ must, when a petition therefor is
restrained on a charge of having committed an presented and it appears that the writ ought to
offense not punishable by death, he may be issue, grant the same forthwith, and immediately
admitted to bail in the discretion of the court. thereupon the clerk of the court shall issue the
accordingly, the trial court allowed Alma to writ under the seal of the court; or in case of
post bail and then ordered her release. In your emergency, the judge may issue the writ under
opinion, is the order of the trial court correct – his own hand, and may depute any officer or
(a) Under Rule 102? SUGGESTED ANSWER: person to serve it.
No, Alma, who is already convicted by final
judgment, cannot be entitled to bail under PRELIMINARY CITATION
Sec. 14, Rule 102. The provision This refers to a citation to the government officer
presupposes that she had not been having the person in his custody to show cause
convicted as yet. It provides that if she is why he writ of HC should not issue (detention is
lawfully imprisoned or restrained for an NOT PATENTLY illegal).
offense not punishable by death, she may be
recommitted to imprisonment or admitted PEREMPTORY WRIT
to bail in the discretion of the court or This is issued when the cause of detention
judge (Sec. 14, Rule 102; Celeste vs. People, appears to be patently illegal and the non-
31 SCRA 391; Vicente vs. Judge Majaducon, compliance therewith is punishable.
A.M. No. RTJ-02-1698, 23 June 2005; San
Pedro vs. Peo, G.R. No. 133297, 15 August PROCEDURE FOR THE GRANT OF WRIT:
2002).
1. Verified Petition signed by the party for
(b) Under the Rules of criminal procedure? whose relief it is intended or by some
SUGGESTED ANSWER: Under the Rules of other person in his behalf;
Criminal Procedure, Rule 114, Sec. 24 2. Allowance of the writ;
clearly prohibits the grant of bail after 3. Command officer to produce;
conviction by final judgment and after the 4. Service of writ by sheriff or other officer;
convict has started to serve sentence. In 5. Return; and
the present case, Alma had already started 6. Hearing on return.
serving her sentence. She cannot, therefore,
apply for bail (Peo. vs. Fitzgerald, G.R. No. Section 6. To whom writ directed, and what to
149723, 27 October 2006). require. — In case of imprisonment or restraint
by an officer, the writ shall be directed to him,
and shall command him to have the body of the
Habeas Corpus (1998) person restrained of his liberty before the court
A was arrested on the strength of a warrant of arrest or judge designated in the writ at the time and
issued by the RTC in connection with an Information place therein specified. In case of imprisonment
for Homicide. W, the live-in partner of A filed a petition or restraint by a person not an officer, the writ
for habeas corpus against A's jailer and police shall be directed to an officer, and shall
investigators with the Court of Appeals. command him to take and have the body of the

________________________________________________________________________________________________
person restrained of his liberty before the court or execution, or other process, if any, upon
judge designated in the writ at the time and place which the party is held;
therein specified, and to summon the person by
whom he is restrained then and there to appear (c) If the party is in his custody or power
before said court or judge to show the cause of the or is restrained by him, and is not
imprisonment or restraint. produced, particularly the nature and
gravity of the sickness or infirmity of
Section 7. How prisoner designated and writ such party by reason of which he
served. — The person to be produced should be cannot, without danger, be bought
designated in the writ by his name, if known, but if before the court or judge;
his name is not known he may be otherwise
described or identified. The writ may be served in (d) If he has had the party in his custody
any province by the sheriff or other proper officer, or or power, or under restraint, and has
by a person deputed by the court or judge. Service transferred such custody or restraint to
of the writ shall be made by leaving the original with another, particularly to whom, at what
the person to whom it is directed and preserving a time, for what cause, and by what
copy on which to make return or service. If that authority such transfer was made.
person cannot be found, or has not the prisoner in
his custody, then the service shall be made on any Section 11. Return to be signed and sworn to.
other person having or exercising such custody. — The return or statement shall be signed by
the person who makes it; and shall also be
Section 8. How writ executed and returned. — sworn by him if the prisoner is not produced, and
The officer to whom the writ is directed shall convey in all other cases unless the return is made and
the person so imprisoned or restrained, and named signed by a sworn public officer in his official
in the writ, before the judge allowing the writ, or in capacity.
case of his absence or disability, before some other
judge of the same court, on the day specified in the Section 12. Hearing on return. Adjournments.
writ, unless, from sickness or infirmity of the person — When the writ is returned before one judge, at
directed to be produced, such person cannot, a time when the court is in session, he may
without danger, be bought before the court or judge; forthwith adjourn the case into the court, there to
and the officer shall make due return of the writ, be heard and determined. The court or judge
together with the day and the cause of the caption before whom the writ is returned or adjourned
and restraint of such person according to the must immediately proceed to hear and examine
command thereof. the return, and such other matters as are
properly submitted for consideration, unless for
Section 9. Defect of form. — No writ of habeas good cause shown the hearing is adjourned, in
corpus can be disobeyed for defect of form, if it which event the court or judge shall make such
sufficiently appears therefrom in whose custody or order for the safekeeping of the person
under whose restraint the party imprisoned or imprisoned or restrained as the nature of the
restrained is held and the court or judge before case requires. If the person imprisoned or
whom he is to be bought. restrained is not produced because of his
alleged sickness or infirmity, the court or judge
Section 10. Contents of return. — When the must be satisfied that it is so grave that such
person to be produced is imprisoned or restrained person cannot be produced without danger,
by an officer, the person who makes the return shall before proceeding to hear and dispose of the
state therein, and in other cases the person in matter. On the hearing the court or judge shall
whose custody the prisoner is found shall state, in disregard matters of form and technicalities in
writing to the court or judge before whom the writ is respect to any warrant or order of commitment
returnable, plainly and unequivocably: of a court or officer authorized to commit by law.
(a) Whether he has or has not the party in Section 13. When the return evidence, and
his custody or power, or under restraint; when only a plea. — If it appears that the
prisoner is in custody under a warrant of
(b) If he has the party in his custody or commitment in pursuance of law, the return shall
power, or under restraint, the authority and be considered prima facie evidence of the cause
the true and whole cause thereof, set forth of restraint, but if he is restrained of his liberty by
at large, with a copy of the writ, order any alleged private authority, the return shall be
considered only as a plea of the facts therein set

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forth, and the party claiming the custody must prove refuses to deliver to the person demanding,
such facts. within six (6) hours after the demand therefor, a
true copy of the warrant or order of commitment,
NOTES: shall forfeit to the party aggrieved the sum of
A. If return is filed by a public officer, the one thousand pesos, to be recovered in a proper
detention is disputably presumed legal— action, and may also be punished by the court or
burden is on the petitioner to show illegality judge as for contempt.
of detention.
Section 17. Person discharged not to be
B. If private authority, it is merely considered again imprisoned. — A person who is set at
allegations, hence the party claiming liberty upon a writ of habeas corpus shall not be
custody must prove such fact. again imprisoned for the same offense unless by
the lawful order or process of a court having
jurisdiction of the cause or offense; and a person
Section 14. When person lawfully imprisoned who knowingly, contrary to the provisions of this
recommitted, and when let to bail. — If it appears rule, recommits or imprisons, or causes to be
that the prisoner was lawfully committed, and is committed or imprisoned, for the same offense,
plainly and specifically charged in the warrant of or pretended offense, any person so set at
commitment with an offense punishable by death, liberty, or knowingly aids or assists therein, shall
he shall not be released, discharged, or bailed. If he forfeit to the party aggrieved the sum of one
is lawfully imprisoned or restrained on a charge of thousand pesos, to be recovered in a proper
having committed an offense not so punishable, he action, notwithstanding any colorable pretense
may be recommitted to imprisonment or admitted to or variation in the warrant of commitment, and
bail in the discretion of the court or judge. If he be may also be punished by the court or judge
admitted to bail, he shall forthwith file a bond in such granting the writ as for contempt.
sum as the court or judge deems reasonable,
considering the circumstances of the prisoner and Section 18. When prisoner may be removed
the nature of the offense charged, conditioned for from one custody to another. — A person
his appearance before the court where the offense committed to prison, or in custody of an officer,
is properly cognizable to abide its order of judgment; for any criminal matter, shall not be removed
and the court or judge shall certify the proceedings, therefrom into the custody of another unless:
together with the bond, forthwith to the proper court.
If such bond is not so filed, the prisoner shall be 1. by legal process, or
recommitted to confinement. 2. the prisoner be delivered to an inferior
officer to carry to jail,
COMMENT: This seemed to be a misplaced 3. or, by order of the proper court or judge,
provision. be removed from one place to another
within the Philippines for trial,
Section 15. When prisoner discharged if no 4. or in case of fire epidemic, insurrection,
appeal. — When the court or judge has examined or other necessity or public calamity;
into the cause of caption and restraint of the
prisoner, and is satisfied that he is unlawfully and a person who, after such commitment,
imprisoned or restrained, he shall forthwith order his makes signs, or counter-signs any order for
discharge from confinement, but such discharge such removal contrary to this section, shall
shall not be effective until a copy of the order has forfeit to the party aggrieved the sum of one
been served on the officer or person detaining the thousand pesos, to be recovered in a proper
prisoner. If the officer or person detaining the action.
prisoner does not desire to appeal, the prisoner
shall be forthwith released. Section 19. . — The proceedings upon a
writ of habeas corpus shall be recorded by the
Section 16. Penalty for refusing to issue writ, or clerk of the court, and upon the final disposition
for disobeying the same. — A clerk of a court who of such proceedings the court or judge shall
refuses to issue the writ after allowance thereof and make such order as to costs as the case
demand therefor, or a person to whom a writ is requires. The fees of officers and witnesses
directed, who neglects or refuses to obey or make shall be included in the costs taxed, but no
return of the same according to the command officer or person shall have the right to demand
thereof, or makes false return thereof, or who, upon payment in advance of any fees to which he is
demand made by or on behalf of the prisoner, entitled by virtue of the proceedings. When a

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person confined under color of proceedings in a of sufficient discernment, unless the

criminal case is discharged, the costs shall be taxed parent chosen is unfit;
against the Republic of the Philippines, and paid out
of its Treasury; when a person in custody by virtue 3. The grandparent, or if there are several
or under color of proceedings in a civil case is of them, the grandparent chosen by the
discharged, the costs shall be taxed against him, or minor over 7 years of age and of
against the person who signed the application for sufficient discernment, unless the
the writ, or both, as the court shall direct. grandparent chosen is unfit or
disqualified;
RULE ON CUSTODY OF MINORS AND WRIT OF
HABEAS CORPUS IN RELATION TO THE 4. The eldest brother or sister over 21yars
CUSTODY OF MINORS of age unless unfit or disqualified;
(A.M. No. 03-04-04-SC) 5. The actual custodian of the minor over

21 years of age, unless unfit or
disqualified;
WHO may file Petition (sec. 2):
6. Any other person or institution which the
A verified petition may be filed by any court may deem suitable to provide
person claiming such right. proper care and guidance for the minor.
WHERE to file petition (sec. 3):
Family Court of the province or city where Habeas Corpus (2007)

the petitioner resides or where the minor No.IV. Husband H files a petition for
may be found. declaration of nullity of marriage before the
RTC of Pasig City. Wife W files a petition for
CONTENTS of the Petition (sec. 4): habeas corpus before the RTC of Pasay
1. The personal circumstances of the
City, praying for custody over their minor
petitioner and respondent;
child. H files a motion to dismiss the wife’s
petition on the ground of the pendency of
2. The name, age and present whereabouts of
the other case. Rule. SUGGESTED
the minor and his relationship to the
ANSWER: The motion to dismiss the
petitioner and respondent;
petition for habeas corpus should be
granted to avoid multiplicity of suits.
3. The material operative facts constituting
deprivation of custody; The question of who between the
spouses should have custody of their
4. Such other matters which are relevant to the minor child could also be determined in
custody of the minor. the petition for declaration of nullity of
their marriage which is already pending
in the RTC of Pasig City. In other words,
NOTE: Motion to Dismiss is not allowed except on
the petition filed in Pasig City, praying
the ground of lack of jurisdiction over the subject
for custody of the minor child is
matter and over the parties.
unnecessary and violates only the
cardinal rules of procedure against
Respondent must file verified answer within 5 days multiplicity of suits. Hence, the latter
from service of summons and a copy of the petition. suit may be abated by a motion to
dismiss on the ground of litis pendentia
Provisional Order awarding custody (sec. 13)
(Yu v. Yu, 484 SCRA 485 [2006]).
As far as practicable, the following order of
preference shall be observed in the award of
(54) Dorothy filed a petition for writ of
custody:
habeas corpus against her husband, Roy,
to get from him custody of their 5 year old
1. Both parents jointly;
son, Jeff. The court granted the petition
2. Either parent, taking into account all and required Roy to turn over Jeff to his
relevant considerations, especially the mother. Roy sought reconsideration but the
choice of the minor over 7 years of age and court denied it. He filed a notice of appeal

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five days from receipt of the order denying his THE RULE ON THE WRIT OF AMPARO
motion for reconsideration. Did he file a timely
notice of appeal? (A) No, since he filed it more Note: The basis of the Rule is the Rule-Making
than 2 days after receipt of the decision Power of the Supreme Court – Art. VIII, sec. 5 of
granting the petition. (B) No, since he filed it the 1987 Constitution.
more than 2 days after receipt of the order
denying his motion for reconsideration. (C) The Writ is merely remedial in nature.
Yes, since he filed it within 15 days from There is no criminal nor administrative
receipt of the denial of his motion for liability.
reconsideration. (D) Yes, since he filed it within There is, however, liability for contempt.
7 days from receipt of the denial of his motion
for reconsideration.
SECTION 1. Petition. – The petition for a writ

Temporary Visitation Rights (sec.15) of amparo is a remedy available to any person
The court shall provide in its order awarding whose right to life, liberty and security is violated
provisional custody appropriate visitation rights to or threatened with violation by an unlawful act or
the non-custodial parent or parents unless the court omission of a public official or employee, or of a
finds said parent or parents unfit or disqualified. private individual or entity.
Hold Departure Order (sec. 16)
The minor child subject of the petition shall not be The writ shall cover extralegal killings and
brought out of the country without prior court order enforced disappearances or threats thereof.
while the petition is pending.
The court may, motu proprio or upon application (44) What is the right correlation between a
under oath, issue an ex parte hold departure order. criminal action and a petition for Writ of
Amparo both arising from the same set of
Petition for HC (sec. 20). facts?
(A) When the criminal action is filed after
 Shall be filed with the Family Court where the Amparo petition, the latter shall be
the petitioner resides or where the minor dismissed. (B) The proceeding in an Amparo
may be found; petition is criminal in nature. (C) No
 Shall be enforceable in the judicial region to separate criminal action may be instituted
which the Family Court belongs; after an Amparo petition is filed. (D) When
 The petition may, however be brought with the criminal action is filed after the
the regular court in the absence of presiding Amparo petition, the latter shall be
judge of the Family Court, provided however consolidated with the first.
that the regular court shall refer the case to
the Family Court as soon as its presiding Writ of Amparo; Habeas Corpus (2009)
judge returns to duty; No.XIX.B. What is the writ of amparo? How
 Petition may also be filed with SC, CA or is it distinguished from the writ of habeas
any of its presiding members and, if so corpus? SUGGESTED ANSWER: A writ of
granted, shall be enforceable anywhere in amparo is a remedy available to any
the Philippines. The writ may be returnable person whose right to life, liberty, and
to a Family Court or to any regular court security is violated or threatened with
within the region where the petitioner violation by an unlawful act or omission
resides or where the minor may be found for of a public official or employee, or of a
hearing and decision on the merits. private individual or entity. The writ
shall cover extralegal killings and
enforced disappearances or threats
Republic of the Philippines thereof. Whereas a writ of habeas corpus
SUPREME COURT is a remedy available to any individual
Manila who is deprived of liberty or whose
rightful custody of any person is
A.M. No. 07-9-12-SC withheld, by unlawful confinement or
(25 September 2007) detention.

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A writ of amparo may be appealed to the committed or any of its elements occurred, or
Supreme Court under Rule 45 raising with the Sandiganbayan, the Court of Appeals,
questions of fact or law or both. The appeal the Supreme Court, or any justice of such
shall be made within 5 working days from courts. The writ shall be enforceable anywhere
the date of notice of the adverse judgment. in the Philippines.
The period for appeal for habeas corpus
shall be 48hours from the notice of the When issued by a Regional Trial Court or any
judgment appealed from. judge thereof, the writ shall be returnable before
such court or judge.
(45) Alex filed a petition for writ of amparo When issued by the Sandiganbayan or the Court
against Melba relative to his daughter Toni's of Appeals or any of their justices, it may be
involuntary disappearance. Alex said that returnable before such court or any justice
Melba was Toni's employer, who, days before thereof, or to any Regional Trial Court of the
Toni disappeared, threatened to get rid of her place where the threat, act or omission was
at all costs. On the other hand, Melba committed or any of its elements occurred.
countered that she had nothing to do with
Toni's disappearance and that she took steps When issued by the Supreme Court or any of its
to ascertain Toni's whereabouts. What is the justices, it may be returnable before such Court
quantum of evidence required to establish the or any justice thereof, or before the
parties' respective claims? (A) For Alex, Sandiganbayan or the Court of Appeals or any
probable cause; for Melba, substantial of their justices, or to any Regional Trial Court of
evidence. (B) For Alex, preponderance of the place where the threat, act or omission was
evidence; for Melba, substantial evidence. (C) committed or any of its elements occurred.
For Alex, proof beyond reasonable doubt; for
Melba, ordinary diligence. SEC. 4. No Docket Fees. – The petitioner shall
(D) For both, substantial evidence. be exempted from the payment of the docket
and other lawful fees when filing the petition.
Note connect to Rule 133. The court, justice or judge shall docket the
petition and act upon it immediately.
SEC. 2. Who May File. – The petition may be filed
by the aggrieved party or by any qualified person or SEC. 5. Contents of Petition. – The petition
entity in the following order: shall be signed and verified and shall allege the
following:
a. Any member of the immediate family,
namely: the spouse, children and parents of a. The personal circumstances of the
the aggrieved party; petitioner;
b. Any ascendant, descendant or collateral b. The name and personal circumstances
relative of the aggrieved party within the of the respondent responsible for the
fourth civil degree of consanguinity or threat, act or omission, or, if the name is
affinity, in default of those mentioned in the unknown or uncertain, the respondent
preceding paragraph; or may be described by an assumed
c. Any concerned citizen, organization, appellation;
association or institution, if there is no c. The right to life, liberty and security of
known member of the immediate family or the aggrieved party violated or
relative of the aggrieved party. threatened with violation by an unlawful
act or omission of the respondent, and
The filing of a petition by the aggrieved party how such threat or violation is
suspends the right of all other authorized parties to committed with the attendant
file similar petitions. Likewise, the filing of the circumstances detailed in supporting
petition by an authorized party on behalf of the affidavits;
aggrieved party suspends the right of all others, d. The investigation conducted, if any,
observing the order established herein. specifying the names, personal
circumstances, and addresses of the
investigating authority or individuals, as
SEC. 3. Were to File. – The petition may be filed on
well as the manner and conduct of the
ny day and at any time with the Regional Trial Court
investigation, together with any report;
of the place where the threat, act or omission was

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e. The actions and recourses taken by the or omission against the aggrieved party;
petitioner to determine the fate or and
whereabouts of the aggrieved party and the d. If the respondent is a public official or
identity of the person responsible for the employee, the return shall further state
threat, act or omission; and the actions that have been or will still be
f. The relief prayed for. taken:
The petition may include a general prayer for other i. to verify the identity of the
just and equitable reliefs. aggrieved party;
ii. to recover and preserve
SEC. 6. Issuance of the Writ. – Upon the filing of evidence related to the death or
the petition, the court, justice or judge shall disappearance of the person
immediately order the issuance of the writ if on its identified in the petition which
face it ought to issue. The clerk of court shall issue may aid in the prosecution of
the writ under the seal of the court; or in case of the person or persons
urgent necessity, the justice or the judge may issue responsible;
the writ under his or her own hand, and may iii. to identify witnesses and obtain
deputize any officer or person to serve it. statements from them
concerning the death or
disappearance;
The writ shall also set the date and time for
summary hearing of the petition which shall not be iv. to determine the cause, manner,
later than seven (7) days from the date of its location and time of death or
disappearance as well as any
issuance.
pattern or practice that may
have brought about the death or
SEC. 7. Penalty for Refusing to Issue or Serve disappearance;
the Writ. – A clerk of court who refuses to issue the v. to identify and apprehend the
writ after its allowance, or a deputized person who person or persons involved in
refuses to serve the same, shall be punished by the the death or disappearance; and
court, justice or judge for contempt without prejudice vi. to bring the suspected offenders
to other disciplinary actions. before a competent court.
SEC. 8. How the Writ is Served. – The writ shall be The return shall also state other matters relevant
served upon the respondent by a judicial officer or to the investigation, its resolution and the
by a person deputized by the court, justice or judge prosecution of the case.
who shall retain a copy on which to make a return of
service. In case the writ cannot be served
personally on the respondent, the rules on A general denial of the allegations in the petition
shall not be allowed.
substituted service shall apply.
SEC. 10. Defenses not Pleaded Deemed

SEC. 9. Return; Contents. – Within seventy-two
(72) hours after service of the writ, the respondent Waived. — All defenses shall be raised in the
shall file a verified written return together with return, otherwise, they shall be deemed waived.
supporting affidavits which shall, among other
things, contain the following: SEC. 11. Prohibited Pleadings and Motions. –
The following pleadings and motions are
prohibited:
a. The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security a. Motion to dismiss;
of the aggrieved party, through any act or b. Motion for extension of time to file
omission; return, opposition, affidavit, position
b. The steps or actions taken by the paper and other pleadings;
respondent to determine the fate or c. Dilatory motion for postponement;
whereabouts of the aggrieved party and the d. Motion for a bill of particulars;
person or persons responsible for the e. Counterclaim or cross-claim;
threat, act or omission; f. Third-party complaint;
c. All relevant information in the possession of g. Reply;
the respondent pertaining to the threat, act h. Motion to declare respondent in default;
i. Intervention;

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j. Memorandum; court, justice or judge may grant any of the

k. Motion for reconsideration of interlocutory following reliefs:
orders or interim relief orders; and
l. Petition for certiorari, mandamus or (a) Temporary Protection Order. – The
prohibition against any interlocutory order. court, justice or judge, upon motion or
motu proprio, may order that the
petitioner or the aggrieved party and any
member of the immediate family be
Prohibited Pleadings (2010) protected in a government agency or by
No. X. Marinella is a junior officer of the Armed an accredited person or private
Forces of the Philippines who claims to have institution capable of keeping and
personally witnessed the malversation of funds securing their safety. If the petitioner is
given by US authorities in connection with the an organization, association or
Balikatan exercises. Marinella alleges that as a institution referred to in Section 3(c) of
result of her exposé, there are operatives this Rule, the protection may be
within the military who are out to kill her. She extended to the officers involved.
files a petition for the issuance of a writ of
amparo against, among others, the Chief of The Supreme Court shall accredit the
Staff but without alleging that the latter persons and private institutions that
ordered that she be killed. Atty. Daro, counsel shall extend temporary protection to the
for the Chief of Staff, moves for the dismissal of petitioner or the aggrieved party and any
the Petition for failure to allege that his client member of the immediate family, in
issued any order to kill or harm Marinella. accordance with guidelines which it shall
Rule on Atty. Daro’s motion. Explain. (3%) issue.
SUGGESTED ANSWER: The motion to
dismiss must be denied on the ground that The accredited persons and private
it is a prohibited pleading under Section 11 institutions shall comply with the rules
(a) of the Rule on the Writ of Amparo. and conditions that may be imposed by
Moreover, said Rule does not require the the court, justice or judge.
petition therefor to allege a complete detail
of the actual or threatened violation of the (b) Inspection Order. — The court,
victim‟s rights. It is sufficient that there be justice or judge, upon verified motion
an allegation of real threat against and after due hearing, may order any
petitioner‟s life, liberty, and/or security person in possession or control of a
(Gen. A. Razon, Jr. vs. Tagitis, G.R. No. designated land or other property, to
182498, Dec. 03, 2009). permit entry for the purpose of
inspecting, measuring, surveying, or
photographing the property or any
relevant object or operation thereon.
SEC. 12. Effect of Failure to File Return. — In
case the respondent fails to file a return, the court, The motion shall state in detail the place
justice or judge shall proceed to hear the petition ex or places to be inspected. It shall be
parte. supported by affidavits or testimonies of
witnesses having personal knowledge of
the enforced disappearance or
SEC. 13. Summary Hearing. — The hearing on the whereabouts of the aggrieved party.
petition shall be summary. However, the court,
justice or judge may call for a preliminary
conference to simplify the issues and determine the If the motion is opposed on the ground
possibility of obtaining stipulations and admissions of national security or of the privileged
from the parties. nature of the information, the court,
justice or judge may conduct a hearing
in chambers to determine the merit of
The hearing shall be from day to day until the opposition.
completed and given the same priority as petitions
for habeas corpus.
The movant must show that the
inspection order is necessary to
SEC. 14. Interim Reliefs. — Upon filing of the
petition or at anytime before final judgment, the

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establish the right of the aggrieved party c. hold departure order;

alleged to be threatened or violated.
d. temporary protection order.
The inspection order shall specify the SUGGESTED ANSWER: (c), Under the
person or persons authorized to make the Rules on the Writ of Amparo, upon filing
inspection and the date, time, place and of the petition or at any time before final
manner of making the inspection and may judgment, the court, justice or judge
prescribe other conditions to protect the may grant any of the following interim
constitutional rights of all parties. The order relief orders; (a) Temporary Protection
shall expire five (5) days after the date of its Order; (b) Inspection Order; (c)
issuance, unless extended for justifiable Production Order; and (c) Witness
reasons. Protection Order. It does not include
Hold Departure Order. (Sec. 12 (a) (b) (c)
(c) Production Order. – The court, justice (d), A.M. No.07-9-12-SC)
or judge, upon verified motion and after due
hearing, may order any person in
possession, custody or control of any
designated documents, papers, books, SEC. 15. Availability of Interim Reliefs to
accounts, letters, photographs, objects or Respondent. – Upon verified motion of the
tangible things, or objects in digitized or respondent and after due hearing, the court,
electronic form, which constitute or contain justice or judge may issue an inspection order or
evidence relevant to the petition or the production order under paragraphs (b) and (c) of
return, to produce and permit their the preceding section.
inspection, copying or photographing by or
on behalf of the movant.
A motion for inspection order under this section
shall be supported by affidavits or testimonies of
The motion may be opposed on the ground witnesses having personal knowledge of the
of national security or of the privileged defenses of the respondent.
nature of the information, in which case the
court, justice or judge may conduct a
hearing in chambers to determine the merit SEC. 16. Contempt. – The court, justice or
of the opposition. judge may order the respondent who refuses to
make a return, or who makes a false return, or
any person who otherwise disobeys or resists a
The court, justice or judge shall prescribe lawful process or order of the court to be
other conditions to protect the constitutional punished for contempt. The contemnor may be
rights of all the parties. imprisoned or imposed a fine.
(d) Witness Protection Order. – The court, SEC. 17. Burden of Proof and Standard of
justice or judge, upon motion or motu Diligence Required. – The parties shall
proprio, may refer the witnesses to the establish their claims by substantial evidence.
Department of Justice for admission to the
Witness Protection, Security and Benefit
Program, pursuant to Republic Act No. The respondent who is a private individual or
6981. entity must prove that ordinary diligence as
required by applicable laws, rules and
regulations was observed in the performance of
The court, justice or judge may also refer duty.
the witnesses to other government
agencies, or to accredited persons or
private institutions capable of keeping and The respondent who is a public official or
securing their safety. employee must prove that extraordinary
diligence as required by applicable laws, rules
and regulations was observed in the
Bar Exam Question 2012 performance of duty.
2. Under the Rules on the Writ of Amparo,
interim relief orders may be issued by the
The respondent public official or employee
Court except:
cannot invoke the presumption that official duty
a. production order;
has been regularly performed to evade
b. witness protection order; responsibility or liability.

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SEC. 18. Judgment. — The court shall render SEC. 23. Consolidation. – When a criminal
judgment within ten (10) days from the time the action is filed subsequent to the filing of a
petition is submitted for decision. If the allegations in petition for the writ, the latter shall be
the petition are proven by substantial evidence, the consolidated with the criminal action.
court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise, When a criminal action and a separate civil
the privilege shall be denied. action are filed subsequent to a petition for a writ
of amparo, the latter shall be consolidated with
Note: The decision granting the privilege of the writ the criminal action.
is immediately executory. There is no need for a
motion for execution. After consolidation, the procedure under this
Rule shall continue to apply to the disposition of
SEC. 19. Appeal. – Any party may appeal from the the reliefs in the petition.
final judgment or order to the Supreme Court under
Rule 45. The appeal may raise questions of fact or SEC. 24. Substantive Rights. — This Rule
law or both. shall not diminish, increase or modify
substantive rights recognized and protected by
The period of appeal shall be five (5) working days the Constitution.
from the date of notice of the adverse judgment.
SEC. 25. Suppletory Application of the Rules
The appeal shall be given the same priority as in of Court. – The Rules of Court shall apply
habeas corpus cases. suppletorily insofar as it is not inconsistent with
this Rule.
SEC. 20. Archiving and Revival of Cases. – The
court shall not dismiss the petition, but shall archive SEC. 26. Applicability to Pending Cases. –
it, if upon its determination it cannot proceed for a This Rule shall govern cases involving extralegal
valid cause such as the failure of petitioner or killings and enforced disappearances or threats
witnesses to appear due to threats on their lives. thereof pending in the trial and appellate courts.
A periodic review of the archived cases shall be SEC. 27. Effectivity. – This Rule shall take
made by the amparo court that shall, motu proprio effect on October 24, 2007, following its
or upon motion by any party, order their revival publication in three (3) newspapers of general
when ready for further proceedings. The petition circulation.
shall be dismissed with prejudice upon failure to
prosecute the case after the lapse of two (2) years
from notice to the petitioner of the order archiving
the case. Republic of the Philippines
SUPREME COURT
The clerks of court shall submit to the Office of the Manila
Court Administrator a consolidated list of archived
cases under this Rule not later than the first week of EN BANC
January of every year.
A. M. No. 08-1-16-SC January 22, 2008
SEC. 21. Institution of Separate Actions. — This
Rule shall not preclude the filing of separate
criminal, civil or administrative actions. THE RULE ON THE WRIT OF HABEAS DATA
SEC. 22. Effect of Filing of a Criminal Action. – SECTION 1. Habeas Data. - The writ of
When a criminal action has been commenced, no habeas data is a remedy available to any
separate petition for the writ shall be filed. The person whose right to privacy in life, liberty or
reliefs under the writ shall be available by motion in security is violated or threatened by an unlawful
the criminal case. act or omission of a public official or employee,
or of a private individual or entity engaged in the
gathering, collecting or storing of data or
The procedure under this Rule shall govern the information regarding the person, family, home
disposition of the reliefs available under the writ of and correspondence of the aggrieved party.
amparo.

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Habeas Data (2010) No.XX. Azenith, the (a) Any member of the immediate family of
cashier of Temptation Investments, Inc. the aggrieved party, namely: the spouse,
(Temptation, Inc.) with principal offices in children and parents; or
Cebu City, is equally hated and loved by her
co-employees because she extends cash (b) Any ascendant, descendant or collateral
advances or "vales " to her colleagues whom relative of the aggrieved party within the
she likes. One morning, Azenith discovers an fourth civil degree of consanguinity or
anonymous letter inserted under the door of affinity, in default of those mentioned in the
her office threatening to kill her. Azenith preceding paragraph; or
promptly reports the matter to her superior
Joshua, who thereupon conducts an internal SEC. 3. Where to File. - The petition may be
investigation to verify the said threat. Claiming filed with the Regional Trial Court where the
that the threat is real, Temptation, Inc. opts to petitioner or respondent resides, or that which
transfer Azenith to its Palawan Office, a move has jurisdiction over the place where the data or
she resists in view of the company’s refusal to information is gathered, collected or stored, at
disclose the results of its investigation. the option of the petitioner.
Decrying the move as a virtual deprivation of
her employment, Azenith files a petition for the The petition may also be filed with the Supreme
issuance of a writ of habeas data before the Court or the Court of Appeals or the
Regional Trial Court (RTC) to enjoin Sandiganbayan when the action concerns public
Temptation, Inc. from transferring her on the data files of government offices.
ground that the company’s refusal to provide
her with a copy of the investigation results Bar Exam Question 2012
compromises her right to life, liberty and 7. A wants to file a Petition for Writ of
privacy. Resolve the petition. Explain. (5%) Habeas Data against the AFP in connection
SUGGESTED ANSWER: Azenith‟s petition with threats to his life allegedly made by
for the issuance of a writ of habeas data AFP intelligence officers. A needs copies of
must be dismissed as there is no showing AFP highly classified intelligence reports
that her right to privacy in life, liberty, or collected by Sgt. Santos who is from AFP. A
security is violated or threatened by an can file his petition with:
unlawful act or omission. Neither was the a. RTC where AFP is located;
company shown to be engaged in the
gathering, collecting nor storing of data or b. RTC where Sgt. Santos resides;
information regarding the person, family,
c. Supreme Court;
home and correspondence of the aggrieved
party (Sec. 1, Rule on the Writ of Habeas d. Court of Appeals.
Data). SUGGESTED ANSWER: (d), In accordance
with the principle of judicial hierarchy of
Habeas Data (2009) No.XIX.C. What is the the courts, A should file with the Court
writ of habeas data? SUGGESTED ANSWER: of Appeals.
A writ of habeas data is a remedy available ALTERNATIVE ANSWER: (b), The petition
to any persons whose right to privacy in may be filed with the Regional Trial
life, liberty, or security is violated or Court where the petitioner or respondent
threatened with violation by unlawful act or resides, or that which has jurisdiction
omission of a public official or employee, or over the place where the data or
of a private individual or entity engaged in information is gathered, collected or
the gathering, collecting, or storing of data stored, at the option of the petitioner.
or information regarding the person, family, (c), The petition may also be filed with
home and correspondence of the aggrieved the Supreme Court or the Court of
party. Appeals or the Sandiganbayan when the
action concerns public data files of
government offices. (Sec.3, A.M. No. 08-
1-16-SC, The Rule on the Writ of Habeas
SEC. 2. Who May File. - Any aggrieved party may Data, January 22, 2008).
file a petition for the writ of habeas data. However,
in cases of extralegal killings and enforced
disappearances, the petition may be filed by:

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SEC. 4. Where Returnable; Enforceable. - When In case of threats, the relief may include
the writ is issued by a Regional Trial Court or any a prayer for an order enjoining the act
judge thereof, it shall be returnable before such complained of; and
court or judge.
(f) Such other relevant reliefs as are just and
When issued by the Court of Appeals or the equitable.
Sandiganbayan or any of its justices, it may be
returnable before such court or any justice thereof, SEC. 7. Issuance of the Writ. - Upon the filing
or to any Regional Trial Court of the place where the of the petition, the court, justice or judge shall
petitioner or respondent resides, or that which has immediately order the issuance of the writ if on
jurisdiction over the place where the data or its face it ought to issue. The clerk of court shall
information is gathered, collected or stored. issue the writ under the seal of the court and
cause it to be served within three (3) days from
When issued by the Supreme Court or any of its the issuance; or, in case of urgent necessity, the
justices, it may be returnable before such Court or justice or judge may issue the writ under his or
any justice thereof, or before the Court of Appeals her own hand, and may deputize any officer or
or the Sandiganbayan or any of its justices, or to person serve it.
any Regional Trial Court of the place where the
petitioner or respondent resides, or that which has The writ shall also set the date and time for
jurisdiction over the place where the data or summary hearing of the petition which shall not
information is gathered, collected or stored. be later than ten (10) work days from the date of
its issuance.
The writ of habeas data shall be enforceable
anywhere in the Philippines. SEC. 8. Penalty for Refusing to Issue or
Serve the Writ. - A clerk of court who refuses to
Sec. 5. Docket Fees. - No docket and other lawful issue the writ after its allowance, or a deputized
fees shall be required from an indigent petitioner. person who refuses to serve the same, shall be
The petition of the indigent shall be docked and punished by the court, justice or judge for
acted upon immediately, without prejudice to contempt without prejudice to other disciplinary
subsequent submission of proof of indigency not actions.
later than fifteen (15) days from the filing of the
petition. SEC. 9. How the Writ is Served. - The writ
shall be served upon the respondent by a
SEC. 6. Petition. - A verified written petition for a judicial officer or by a person deputized by the
writ of habeas data should contain: court, justice or judge who shall retain a copy on
which to make a return of service. In case the
(a) The personal circumstances of the petitioner writ cannot be served personally on the
and the respondent; respondent, the rules on substituted service
shall apply.
(b) The manner the right to privacy is violated or
threatened and how it affects the right to life, SEC. 10. Return; Contents. - The respondent
liberty or security of the aggrieved party; shall file a verified written return together with
supporting affidavits within five (5) working days
from service of the writ, which period may be
(c) The actions and recourses taken by the
reasonably extended by the Court for justifiable
petitioner to secure the data or information;
reasons. The return shall, among other things,
contain the following:
(d) The location of the files, registers or
databases, the government office, and the
(a) The lawful defenses such as national
person in charge, in possession or in control of
security, state secrets, privileged
the data or information, if known;
communications, confidentiality of the
source of information of media and others;
(e) The reliefs prayed for, which may include the
updating, rectification, suppression or
(b) In case of respondent in charge, in
destruction of the database or information or
possession or in control of the data or
files kept by the respondent.
information subject of the petition;

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(i) a disclosure of the data or information proceed to hear the petition ex parte, granting
about the petitioner, the nature of such data the petitioner such relief as the petition may
or information, and the purpose for its warrant unless the court in its discretion requires
collection; the petitioner to submit evidence.
(ii) the steps or actions taken by the SEC. 15. Summary Hearing. - The hearing on
respondent to ensure the security and the petition shall be summary. However, the
confidentiality of the data or information; court, justice or judge may call for a preliminary
and, conference to simplify the issues and determine
the possibility of obtaining stipulations and
(iii) the currency and accuracy of the data or admissions from the parties.
information held; and,
SEC. 16. Judgment. - The court shall render
(c) Other allegations relevant to the resolution of judgment within ten (10) days from the time the
the proceeding. petition is submitted for decision. If the
allegations in the petition are proven by
substantial evidence, the court shall enjoin the
A general denial of the allegations in the petition
act complained of, or order the deletion,
shall not be allowed.
destruction, or rectification of the erroneous data
or information and grant other relevant reliefs as
SEC. 11. Contempt. - The court, justice or judge may be just and equitable; otherwise, the
may punish with imprisonment or fine a respondent privilege of the writ shall be denied.
who commits contempt by making a false return, or
refusing to make a return; or any person who
otherwise disobeys or resist a lawful process or Upon its finality, the judgment shall be enforced
by the sheriff or any lawful officers as may be
order of the court.
designated by the court, justice or judge within
five (5) working days.
SEC. 12. When Defenses May be Heard in
Chambers. - A hearing in chambers may be
SEC. 17. Return of Service. - The officer who
conducted where the respondent invokes the
executed the final judgment shall, within three
defense that the release of the data or information in
(3) days from its enforcement, make a verified
question shall compromise national security or state
return to the court. The return shall contain a full
secrets, or when the data or information cannot be
statement of the proceedings under the writ and
divulged to the public due to its nature or privileged
a complete inventory of the database or
character.
information, or documents and articles
inspected, updated, rectified, or deleted, with
Sec. 13. Prohibited Pleadings and Motions. - The copies served on the petitioner and the
following pleadings and motions are prohibited: respondent.
(a) Motion to dismiss; The officer shall state in the return how the
(b) Motion for extension of time to file return, judgment was enforced and complied with by
opposition, affidavit, position paper and other the respondent, as well as all objections of the
pleadings; parties regarding the manner and regularity of
(c) Dilatory motion for postponement; the service of the writ.
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
SEC. 18. Hearing on Officer’s Return. - The
(f) Third-party complaint;
court shall set the return for hearing with due
(g) Reply;
notice to the parties and act accordingly.
(h) Motion to declare respondent in default;
(i) Intervention;
(j) Memorandum; SEC. 19. Appeal. - Any party may appeal from
(k) Motion for reconsideration of interlocutory the final judgment or order to the Supreme Court
orders or interim relief orders; and under Rule 45. The appeal may raise questions
(l) Petition for certiorari, mandamus or of fact or law or both.
prohibition against any interlocutory order.
The period of appeal shall be five (5) working
SEC. 14. Return; Filing. - In case the respondent days from the date of notice of the judgment or
fails to file a return, the court, justice or judge shall final order.

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The appeal shall be given the same priority as in or, in the City of Manila, to the Juvenile and
habeas corpus and amparo cases. Domestic Relations Court.
SEC. 20. Institution of Separate Actions. - The NOTES: The RTC of the province where the
filing of a petition for the writ of habeas data shall petitioner has been residing for 3 years prior to
not preclude the filing of separate criminal, civil or the filing of the petition.
administrative actions.
A change of name is a proceeding in rem and
SEC. 21. Consolidation. - When a criminal action is such, strict compliance with all jurisdictional
filed subsequent to the filing of a petition for the writ, requirements, particularly on publication, is
the latter shall be consolidated with the criminal essential in order to vest the court with
action. jurisdiction (Herrera).
When a criminal action and a separate civil action Section 2. Contents of petition. — A petition
are filed subsequent to a petition for a writ of for change of name shall be signed and verified
habeas data, the petition shall be consolidated with by the person desiring his name changed, or
the criminal action. some other person on his behalf, and shall set
forth:
After consolidation, the procedure under this Rule
shall continue to govern the disposition of the reliefs (a) That the petitioner has been a bona
in the petition. fide resident of the province where the
petition is filed for at least three (3)
SEC. 22. Effect of Filing of a Criminal Action. - years prior to the date of such filing;
When a criminal action has been commenced, no
separate petition for the writ shall be filed. The relief (b) The cause for which the change of
under the writ shall be available to an aggrieved the petitioner's name is sought;
party by motion in the criminal case.
(c) The name asked for.
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ of Note: must also contain all names by
habeas data. which the petitioner is known (Secan
Kok vs. Republic, 52 SCRA 322).
SEC. 23. Substantive Rights. - This Rule shall not
diminish, increase or modify substantive rights. Requirement for verification is formal, not
jurisdictional. It is not a ground for dismissing the
SEC. 24. Suppletory Application of the Rules of petition.
Court. - The Rules of Court shall apply suppletorily
insofar as it is not inconsistent with this Rule. JURISDICTIONAL REQUIREMENTS
SEC. 25. Effectivity. - This Rule shall take effect on 1. The verified petition should be published
for 3 successive weeks in some
February 2, 2008, following its publication in three
newspaper of general circulation in the
(3) newspapers of general circulation.
province;
2. That both the title or caption of the
[PUBLISHED IN THE MANILA BULLETIN, THE petition and its body shall recite:
PHILIPPINE STAR AND THE PHILIPPINE DAILY a. Name/names or aliases of the
INQUIRER ON 25 JANUARY 2008] applicant;
b. Cause for which the change of
name is sought;
c. New name asked for (Secan
RULE 103 Kok vs. Republic, supra).
Change of Name REASON: Change of name is a matter of public

interest.
Section 1. Venue. — A person desiring to change
Section 3. Order for hearing. — If the petition
his name shall present the petition to the Court of
filed is sufficient in form and substance, the
First Instance of the province in which he resides,

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court, by an order reciting the purpose of the petition under Rule 103 (Republic vs.
petition, shall fix a date and place for the hearing Hernandez, GR No. 117209, Feb. 9, 1996).
thereof, and shall direct that a copy of the order be
published before the hearing at least once a week Section 4. Hearing. — Any interested person
for three (3) successive weeks in some may appear at the hearing and oppose the
newspaper of general circulation published in the petition. The Solicitor General or the proper
province, as the court shall deem best. The date set provincial or city fiscal shall appear on behalf of
for the hearing shall not be within thirty (30) days the Government of the Republic.
prior to an election nor within four (4) months after
the last publication of the notice. Section 5. Judgment. — Upon satisfactory proof
in open court on the date fixed in the order that
Effect of discrepancy in the petition and the
such order has been published as directed and
published order:
that the allegations of the petition are true, the
the defect in the petition and the order, as to the court shall, if proper and reasonable cause
spelling of the name of the petitioner, is appears for changing the name of the petitioner,
substantial, because it did not correctly identify adjudge that such name be changed in
the party to said proceedings (Tan vs. Republic, accordance with the prayer of the petition.
40 SCRA 1128).
Section 6. Service of judgment. — Judgments or
orders rendered in connection with this rule shall
GROUNDS FOR THE CHANGE OF NAME: be furnished the civil registrar of the
1. Name is ridiculous, tainted with dishonor or municipality or city where the court issuing the
extremely difficult to write or pronounce; same is situated, who shall forthwith enter the
2. Consequence of change of status (e.g. same in the civil register.
legitimated child);
3. Necessity to avoid confusion; Bar Exam Question 2011
4. Having continuously used and have been (55) Angel Kubeta filed a petition to change
known since childhood by a Filipino name, his first name "Angel." After the required
unaware of their alien parentage; publication but before any opposition could
5. A sincere desire to adopt a Filipino name to be received, he filed a notice of dismissal.
erase signs of former alienage, all in good The court confirmed the dismissal without
faith and without prejudicing anybody. prejudice. Five days later, he filed another
petition, this time to change his surname
TITLE OF PETITION MUST CONTAIN THE "Kubeta." Again, Angel filed a notice of
FOLLOWING: dismissal after the publication. This time,
1. Official name (birth certificate)—be very however, the court issued an order,
particular with the spelling because it may confirming the dismissal of the case with
avoid or annul the proceedings; it is prejudice. Is the dismissal with prejudice
jurisdictional; correct? (A) Yes, since such dismissal with
2. All aliases; and prejudice is mandatory. (B) No, since the
3. Name asked for. rule on dismissal of action upon the
plaintiff’s notice does not apply to special
NOTE: All the name and aliases must appear in the proceedings. (C) No, since change of name
title or caption of the petition, because the reader does not involve public interest and the
usually merely glances at the title of the petition and rules should be liberally construed.
may proceed only to read the entire petition if the (D) Yes, since the rule on dismissal of
title is of interest to him (Secan Kok vs. Republic, action upon the plaintiff‟s notice applies
supra). and the two cases involve a change in
name.
The non-inclusion of all names or aliases of the
applicant in the caption of the order or in the title of
the petition defeats the very purpose of the required
publication (Republic vs. Zosa, Sept. 12, 1988)
RULE 104
A decree of adoption grants the adoptee the right to
use the adopter’s surname but not to change the Voluntary Dissolution of Corporations
former’s first name which relief must be sought in a

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NOTE: Dissolution of corporations should now be referred to in the next preceding section, file his
filed with the SEC and is covered by Title XIV opposition to the petition, stating the grounds or
Sections 117 to 122 of the Corporation Code of the reasons therefor.
Philippines.
Section 5. Judgment. — If, from the evidence
presented during the hearing, the court is
satisfied that the recognition of the minor natural
RULE 105 child was willingly and voluntarily made by the
parent or parents concerned, and that the
Judicial Approval of Voluntary Recognition of recognition is for the best interest of the child, it
Minor Natural Children shall render judgment granting judicial approval
of such recognition.
Section 1. Venue. — Where judicial approval of a
Section 6. Service of judgment upon civil
voluntary recognition of a minor natural child is
registrar. — A copy of the judgment rendered in
required, such child or his parents shall obtain the
accordance with the preceding section shall be
same by filing a petition to that effect with the Court
served upon the civil registrar whose duty it
of First Instance of the province in which the child
shall be to enter the same in the register.
resides. In the City of Manila, the petition shall be
filed in the Juvenile and Domestic Relations Court.
RULE 106
VOLUNTARY RECOGNITION
This refers to an admission of the fact of paternity or Constitution of Family Home
maternity by the presumed parent (Gapusan Chua
vs. CA, 188 SCRA 160). NOTE: THE Rule may be deemed to have been
repealed by the following pertinent provisions of
Section 2. Contents of petition. — The petition for the Family Code, which took effect on August 3,
judicial approval of a voluntary recognition of a 1988:
minor natural child shall contain the following
allegations: Art. 152, FC. The family home, constituted
jointly by the husband and the wife or by an
(a) The jurisdictional facts; unmarried head of a family, is the dwelling
house where they and their family reside, and
(b) The names and residences of the parents the land on which it is situated. (223a)
who acknowledged the child, or of either of
them, and their compulsory heirs, and the
person or persons with whom the child lives; Art. 153, FC. The family home is deemed
constituted on a house and lot from the time
(c) The fact that the recognition made by the it is occupied as a family residence. From the
parent or parents took place in a statement time of its constitution and so long as any of
before a court of record or in an authentic its beneficiaries actually resides therein, the
writing, copy of the statement or writing being family home continues to be such and is
attached to the petition. exempt from execution, forced sale or
attachment except as hereinafter provided
Section 3. Order for hearing. — Upon the filing of
and to the extent of the value allowed by law.
the petition, the court, by an order reciting the
purpose of the same, shall fix the date and place for
the hearing thereof, which date shall not be more
than six (6) months after the entry of the order, and
shall, moreover, cause a copy of the order to be RULE 107
served personally or by mail upon the interested
parties, and published once a week for three (3) Absentees
consecutive weeks, in a newspaper or newspaper
of general circulation in the province.
ABENTEE INCOMPETENT
Section 4. Opposition. — Any interested party

must, within fifteen (15) days from the service, or
from the last date of publication, of the order
________________________________________________________________________________________________
Beyond 7 years intents and purposes

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

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

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(a) The jurisdictional facts; Section 7. Who may be appointed. — In the

appointment of a representative, the spouse
(b) The names, ages, and residences of the present shall be preferred when there is no legal
heirs instituted in the will, copy of which shall be separation. If the absentee left no spouse, or if
presented, and of the relatives who would the spouse present is a minor or otherwise
succeed by the law of intestacy; incompetent, any competent person may be
appointed by the court.
(c) The names and residences of creditors
and others who may have any adverse interest In case of declaration of absence, the trustee or
over the property of the absentee; administrator of the absentee's property shall be
appointed in accordance with the preceding
paragraph.
(d) The probable value, location and character
of the property belonging to the absentee.
Section 8. Termination of administration. —
The trusteeship or administration of the property
Section 4. Time of hearing; notice and
of the absentee shall cease upon order of the
publication thereof. — When a petition for the
court in any of the following cases:
appointment of a representative, or for the
declaration of absence and the appointment of a
trustee or administrator, is filed, the court shall fix a (a) When the absentee appears personally
date and place for the hearing thereof where all or by means of an agent;
concerned may appear to contest the petition.
(b) When the death of the absentee is
Copies of the notice of the time and place fixed for proved and his testate or intestate heirs
the hearing shall be served upon the known heirs, appear;
legatees, devisees, creditors and other interested
persons, at least ten (10) days before the day of (c) When a third person appears, showing
the hearing, and shall be published once a week by a proper document that he has acquired
for three (3) consecutive weeks prior to the time the absentee's property by purchase or
designated for the hearing, in a newspaper of other title.
general circulation in the province or city where the
absentee resides, as the court shall deem best. In these cases the trustee or administrator shall
cease in the performance of his office, and the
Section 5. Opposition. — Anyone appearing to property shall be placed at the disposal of
contest the petition shall state in writing his grounds whose may have a right thereto.
therefor, and serve a copy thereof on the petitioner
and other interested parties on or before the date GR: No independent action for the declaration
designated for the hearing. of Presumptive Death.
Section 6. Proof at hearing; order. — At the Exception: Summary declaration under art.
hearing, compliance with the provisions of section 4 41, FC, for purposes of remarriage.
of this rule must first be shown. Upon satisfactory
proof of the allegations in the petition, the court shall Absentee; Declaration of Absence vs.
issue an order granting the same and appointing the Declaration of Presumptive Death (2009)
representative, trustee or administrator for the No.V. Frank and Gina were married on
absentee. The judge shall take the necessary June 12, 1987 in Manila. Barely a year
measures to safeguard the rights and interests of after the wedding, Frank exhibited a violent
the absentee and shall specify the powers, temperament, forcing Gina, for reasons of
obligations and remuneration of his representative, personal safety, to live with her parents. A
trustee or administrator, regulating them by the rules year thereafter, Gina found employment as
concerning guardians. a domestic helper in Singapore, where she
worked for ten consecutive years. All the
In case of declaration of absence, the same shall time she was abroad, Gina had absolutely
not take effect until six (6) months after its no communications with Frank, nor did she
publication in a newspaper of general circulation hear any news about him. While in
designated by the court and in the Official Gazette. Singapore, Gina met and fell in love with
Willie. On July 4, 2007, Gina filed a petition
with the RTC of manila to declare Frank

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presumptively dead, so that she could marry Section 1. Who may file petition. — Any
Willie. The RTC granted Gina’s petition. The person interested in any act, event, order or
office of the Solicitor General (OSG) filed a decree concerning the civil status of persons
notice of Appeal with the RTC, stating that it which has been recorded in the civil register,
was appealing the decision of the Court of may file a verified petition for the cancellation or
Appeals on questions of fact and law. (a) Is a correction of any entry relating thereto, with the
petition for declaration of Presumptive Death a Court of First Instance of the province where the
special proceeding? SUGGESTED ANSWER: corresponding civil registry is located.
No. the petition for Declaration of
Presumptive Death provided in Art. 41 of WHO may file:
the “Family Code” is not the special Any person interested in civil status of
proceeding governing absentees under Rule persons.
107 of the Rules of Court whose rules of
procedure will not be followed (Republic vs. WHERE to file:
C.A., 458 SCRA [2005]). Said petition for RTC of the province where the
Declaration of Presumptive Death under corresponding civil registry is found.
Article 41 of the Family Code is a summary
proceeding, authorized for purposes only of REQUISITES of Adversarial Proceedings:
remarriage of the present spouse, to avoid
incurring the crime of bigamy. Nonetheless, 1. Proper petition is filed where the Civil
it is in the nature of a special proceeding, Register is located and all parties
being an application to establish a status or interested are impleaded; (sec. 3)
a particular fact in court.
2. The order of hearing must be published
ALTERNATIVE ANSWER: A petition for once a week for 3 consecutive weeks;
declaration of presumptive death may be (sec. 4)
considered a special proceeding, because it
is so classified in the Rules of Court (Rule 3. Notice must be given to the Civil
107, Rules of Court), as differentiated from Registrar and all parties interested
an ordinary action which is adversarial. It is thereby; (sec. 4)
a mere application or proceeding to
4. Within 15 days from notice or last date
establish the status of a party or a
of publication, the civil registrar or any
particular fact, to viz: that a person has
party claiming interest may file their
been unheard of for a long time and under
opposition thereto; and (sec. 5)
such circumstance that he may be
presumed dead.
5. Full blown trial.
(b) As the RTC judge who granted Gina’s
NOTE: Proceedings for the correction of entries
petition, will you give due course to the OSG’s should not be considered as establishing one’s
notice of appeal? SUGGESTED ANSWER: status in a manner beyond dispute. The status
NO. Appeal is not a proper remedy since the corrected would not have a superior quality for
decision is immediately final and executor evidentiary purposes. There is no increase or
upon notice to the parties under Art. 247 of diminution of substantive rights (Chiao Ben Lim
the Family Code(Republic vs Bermudez- vs. Zosa, L-40252, Dec. 29, 1986).
Lorino, 449 SCRA 57 [2005]). The OSG may
assail RTC‟s grant of the petition only on
Section 2. Entries subject to cancellation or
the premise of grave abuse of discretion
correction. — Upon good and valid grounds,
amounting to lack or excess of jurisdiction.
the following entries in the civil register may be
The remedy should be by certiorari under
cancelled or corrected:
Rule 65 of the Rules of Court.
(a) births:
(b) marriage;
(c) deaths;
RULE 108 (d) legal separations;
(e) judgments of annulments of marriage;
Cancellation Or Correction Of Entries In The (f) judgments declaring marriages void from the
Civil Registry beginning;

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(g) legitimations; on indispensable parties is cured by the publication

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

________________________________________________________________________________________________
named in the petition TYPOGRAPHICAL ERROR IN AN ENTRY

First name or last AND/OR CHANGE OF FIRST NAME OR
name (there must be Only cancellation and NICKNAME IN THE CIVIL REGISTER
valid ground with correction of entries WITHOUT NEED OF A JUDICIAL ORDER,
respect to the latter) AMENDING FOR THIS PURPOSE ARTICLES
may be changed 376 AND 412 OF THE CIVIL CODE OF THE
Service of judgment shall be made on the Civil PHILIPPINES
Register concerned
Be it enacted by the Senate and the House of
Petition for Change of Name(R. 103) and Petition Representatives of the Philippines in Congress
for Correction Or Cancellation of Entries(R. 108) are assembled:
DISTINCT proceedings.
Section 1. Authority to Correct Clerical or
Hence, a party cannot change name and correct an Typographical Error and Change of First
entry in a single petition without satisfying the Name or Nickname – No entry in a civil register
jurisdictional requirements (Republic vs. Balmore). shall be changed or corrected without a judicial
order, except for clerical or typographical errors
Cancellation or Correction; Entries Civil Registry (2005) and change of first name or nickname which can
Helen is the daughter of Eliza, a Filipina, and Tony, a be corrected or changed by the concerned city
Chinese, who is married to another woman living in or municipal civil registrar or consul general in
China. Her birth certificate indicates that Helen is the accordance with the provisions of this Act and its
legitimate child of Tony and Eliza and that she is a implementing rules and regulations.
Chinese citizen. Helen wants her birth certificate
corrected by changing her filiation from "legitimate" to NOTE: The above provision of law speaks
"illegitimate" and her citizenship from "Chinese" to clearly. Clerical or typographical errors in the
"Filipino" because her parents were not married. What entries of the civil register are now to be
petition should Helen file and what procedural corrected and changed without judicial order and
requirements must be observed? Explain. (5%) by the city or municipal civil registrar or consul
SUGGESTED ANSWER: general.
A petition to change the record of birth by changing the
filiation from "legitimate" to "illegitimate" and The obvious effect is to remove from the ambit
petitioner's citizenship from "Chinese" to "Filipino" of Rule 108 the correction or changing of such
because her parents were not married, does not involve a errors in the entries of the civil register. Hence,
simple summary correction, which could otherwise be what is left for the scope of operation of Rule 8
done under the authority of R.A. No. 9048. A petition are substantial changes and corrections I the
has to be filed in a proceeding under Rule 108 of the entries (Lee vs. CA, GR NO. 118387, Oct. 11,
Rules of Court, which has now been interpreted to be 2001).
adversarial in nature. (Republic v. Valencia, G.R. No. L-
32181, March 5, 1986) Procedural requirements include: (a) Section 2. Definition of Terms – As used in this
filing a verified petition; (b) naming as parties all persons Act, the following terms shall mean:
who have or claim any interest which would be affected;
(c) issuance of an order fixing the time and place of (1) "City or Municipal civil registrar" refers to the
hearing; (d) giving reasonable notice to the parties head of the local civil registry office of the city
named in the petition; and (e) publication of the order or municipality, as the case may be, who is
once a week for three consecutive seeks in a newspaper appointed as such by the city or municipal
of general circulation. (Rule 108, Rules of Court) mayor in accordance with the provisions of
existing laws.
(2) "Petitioner" refers to a natural person filing

the petition and who has direct and personal
REPUBLIC ACT NO. 9048 interest in the correction of a clerical or
typographical error in an entry or change of first
name or nickname in the civil register.
March 22, 2001
(3) "Clerical or typographical error" refers to a
AN ACT AUTHORIZING THE CITY OR
mistake committed in the performance of clerical
MUNICIPAL CIVIL REGISTRAR OR THE CONSUL
work in writing, copying, transcribing or typing an
GENERAL TO CORRECT A CLERICAL OR

________________________________________________________________________________________________
entry in the civil register that is harmless and or nickname may be allowed in any of the
innocuous, such as misspelled name or misspelled following cases:
place of birth or the like, which is visible to the eyes
or obvious to the understanding, and can be (1) The petitioner finds the first name or
corrected or changed only by reference to other nickname to be ridiculous, tainted with
existing record or records: Provided, however, That dishonor or extremely difficult to write or
no correction must involve the change of nationality, pronounce.
age, status or sex of the petitioner.
(2) The new first name or nickname has
(4) "Civil Register" been habitually and continuously used by
the petitioner and he has been publicly
(5) "Civil registrar general" refers to the known by that by that first name or
Administrator of the National Statistics Office which nickname in the community: or
is the agency mandated to carry out and administer
the provision of laws on civil registration. (3) The change will avoid confusion.
(6) "First name" refers to a name or nickname given Section 5. Form and Contents of the Petition.
to a person which may consist of one or more – The petition shall be in the form of an affidavit,
names in addition to the middle and last names. subscribed and sworn to before any person
authorized by the law to administer oaths. The
Section 3. Who May File the Petition and Where. affidavit shall set forth facts necessary to
– Any person having direct and personal interest in establish the merits of the petition and shall
the correction of a clerical or typographical error in show affirmatively that the petitioner is
an entry and/or change of first name or nickname in competent to testify to the matters stated. The
the civil register may file, in person, a verified petitioner shall state the particular erroneous
petition with the local civil registry office of the city or entry or entries, which are sought to be
municipality where the record being sought to be corrected and/or the change sought to be made.
corrected or changed is kept.
The petition shall be supported with the following
In case the petitioner has already migrated to documents:
another place in the country and it would not be
practical for such party, in terms of transportation (1) A certified true machine copy of the
expenses, time and effort to appear in person certificate or of the page of the registry book
before the local civil registrar keeping the containing the entry or entries sought to be
documents to be corrected or changed, the petition corrected or changed.
may be filed, in person, with the local civil registrar
of the place where the interested party is presently
(2) At least two (2) public or private
residing or domiciled. The two (2) local civil documents showing the correct entry or
registrars concerned will then communicate to
entries upon which the correction or change
facilitate the processing of the petition. shall be based; and
Citizens of the Philippines who are presently

(3) Other documents which the petitioner or
residing or domiciled in foreign countries may file the city or municipal civil registrar or the
their petition, in person, with the nearest Philippine
consul general may consider relevant and
Consulates. necessary for the approval of the petition.
The petitions filed with the city or municipal civil In case of change of first name or nickname, the
registrar or the consul general shall be processed in petition shall likewise be supported with the
accordance with this Act and its implementing rules documents mentioned in the immediately
and regulations. preceding paragraph. In addition, the petition
shall be published at least once a week for two
All petitions for the clerical or typographical errors (2) consecutive weeks in a newspaper of
and/or change of first names or nicknames may be general circulation. Furthermore, the petitioner
availed of only once. shall submit a certification from the appropriate
law enforcement agencies that he has no
Section 4. Grounds for Change of First Name or pending case or no criminal record.
Nickname. – The petition for change of first name

________________________________________________________________________________________________
The petition and its supporting papers shall be filed within the period prescribed herein, such
in three (3) copies to be distributed as follows: first decision shall become final and executory.
copy to the concerned city or municipal civil
registrar, or the consul general; second copy to the Where the petition is denied by the city or
Office of the Civil Registrar General; and third copy municipal civil registrar or the consul general,
to the petitioner. the petitioner may either appeal the decision to
the civil registrar general or file the appropriate
Section 6. Duties of the City or Municipal Civil petition with the proper court.
Registrar or the Consul General. – The city or
municipal civil registrar or the consul general to Section 8. Payment of Fees. – The city or
whom the petition is presented shall examine the municipal civil registrar or the consul general
petition and its supporting documents. He shall post shall be authorized to collect reasonable fees as
the petition in a conspicuous place provided for that a condition for accepting the petition. An indigent
purpose for ten (10) consecutive days after he finds petitioner shall be exempt from the payment of
the petition and its supporting documents sufficient the said fee.
in form and substance.
Section 9. Penalty Clause. - A person who
The city or municipal civil registrar or the consul violates any of the provisions of this Act shall,
general shall act on the petition and shall render a upon conviction, be penalized by imprisonment
decision not later than five (5) working days after the of not less than six (6) years but not more than
completion of the posting and/or publication twelve (12) years, or a fine of not less than Ten
requirement. He shall transmit a copy of his decision thousand pesos (P10,000.00) but not more than
together with the records of the proceedings to the One Hundred Thousand pesos (P100,000.00),
Office of the Civil Registrar General within five (5) or both, at the discretion of the court.
working days from the date of the decision.
In addition, if the offender is a government
Section 7. Duties and Powers of the Civil official or employee he shall suffer the penalties
Registrar General. – The civil registrar general provided under civil service laws, rules and
shall, within ten (10) working days from receipt of regulations.
the decision granting a petition, exercise the power
to impugn such decision by way of an objection Section 10. Implementing Rules and
based on the following grounds: Regulations.
(1) The error is not clerical or typographical; Section 11. Retroactivity Clause. - This Act shall
have retroactive effect insofar as it does not
(2) The correction of an entry or entries in the prejudice or impair vested or acquired rights in
civil register is substantial or controversial as it accordance with the Civil Code and other laws.
affects the civil status of a person; or
Section 12. Separability Clause
(3) The basis used in changing the first name or Section 13. Repealing Clause
nickname of a person does not fall under Section 14. Effectivity Clause. –
Section 4.
NOTE: There is a new law further amending RA
The civil registrar general shall immediately notify 9048. The new law further allowed
the city or municipal civil registrar or the consul administrative change of gender and correction
general of the action taken on the decision. Upon of date of birth, particularly, the month and day
receipt of the notice thereof, the city or municipal of birth.
civil registrar or the consul general shall notify the
petitioner of such action.
The petitioner may seek reconsideration with the RULE 109

civil registrar general or file the appropriate petition
with the proper court. Appeals in Special Proceedings
If the civil registrar general fails to exercise his Section 1. Orders or judgments from which
power to impugn the decision of the city or appeals may be taken. — An interested person
municipal civil registrar or of the consul general may appeal in special proceedings from an

________________________________________________________________________________________________
order or judgment rendered by a Court of First Tan vs. Gedorio, Jr. G.R. No. 166520,
Instance or a Juvenile and Domestic Relations March 14, 2008).
Court, where such order or judgment:
(a) Allows or disallows a will;

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

________________________________________________________________________________________________
VENUE AND JURISDICTION OF SPECIAL PROCEEDINGS
SPECIAL PROCEEDING VENUE JURISDICTION
Settlement of the Estate Resident of decedent or if non- MTC if the gross value of the estate
resident, place where he had his does not exceed P300,000 or
estate P400,000 in Metro Manila
RTC if gross value exceeds the above
amounts
Escheat a. Person dies intestate leaving no RTC

heirs—resident of the decedent or if
non-resident, place where he had an
estate;
b. Reversion—where the land lies in
whole or in part;
c. Dormant deposits—where the
dormant deposits are located
Appointment of Guardians Where the minor or incompetent Family Courts in case of minors;
resides RTCs in case of incompetents
Appointment of Trustees Where the will was allowed or where RTC

the property or portion thereof
affected by the trust is located
Domestic Adoption Where adopter resides Family Court
Inter-country Adoption Where the adoptee resides if filed Family Court or the Inter-country
with the Family Court Adoption Board
Rescission of Adoption Where the adoptee resides Family Court
Habeas Corpus Where the detainee is detained (if SC,CA, RTC, MTC in the province or
filed with the RTC) city in the absence of RTC judge;
Sandiganbayan, in aid of appellate
jurisdiction
Habeas Corpus in relation to minors Where the petitioner resides or where Family Court, SC, CA
the minor may be found
Change of Name Where petitioner resides RTC
Appointment of Where the absentee resides before RTC

Representative/Declaration of his disappearance
Absence
Cancellation/Correction of Entries in Where the corresponding Civil RTC

the Civil Registries Registry is located
Petition for Declaration of Nullity, Where the petitioner or respondent Family Court
Annulment, Legal Separation has been residing for at least 6
months prior to the date of filing, in
case of non-resident respondent,
where he may be found at the
election of the petitioner

________________________________________________________________________________________________
Rules 110-127 It requires all crimes except the private

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

________________________________________________________________________________________________
(accused) JURISDICTION OVER CRIMES PUNISHABLE

Objection that the court BY DESTIERRO
has no jurisdiction over If he fails to make Where the imposable penalty is destierro, the
the subject matter may timely objections, he is case falls within the exclusive jurisdiction of the
be made at any stage deemed to have waived MTCs, considering that in the hierarchy of
of the proceedings and it (objection must be penalties under art. 71, RPC, destierro follows
the right to make such before plea) arresto mayor which involves imprisonment
objection is never (People vs. Eduarte, 182 SCRA ?[ GR NO. 88232,
waived Feb. 6,1990]).
DETERMINATION OF CRIMINAL RULE 110

JURISDICTION:
Prosecution of Offenses
1. Determined by the allegations in the
complaint or information not by the results CRIMINAL ACTION
of proof or by the trial court’s appreciation It is one by which the state prosecutes a person
of the evidence presented; for an act or omission punishable by law.
2. Determined by law enforced at the time of
Section 1. Institution of criminal actions. —
the institution of the criminal action. ONCE
Criminal actions shall be instituted as follows:
VESTED, IT CANNOT BE WITHDRAWN
by (Doctrine of Adherence/Continuity of
Jurisdiction): (a) For offenses where a preliminary
a) Subsequent valid amendment of investigation is required pursuant to
the information; section 1 of Rule 112, by filing the
b) Subsequent statutory amendment complaint with the proper officer for the
of the rules of jurisdiction unless purpose of conducting the requisite
otherwise provided. preliminary investigation.
JURISDICTION OVER COMPLEX CRIMES (b) For all other offenses, by filing the
Jurisdiction over the whole complex crime is complaint or information directly with the
lodged with the trial court having jurisdiction to Municipal Trial Courts and Municipal
impose the maximum and most serious penalty Circuit Trial Courts, or the complaint with
imposable of an offense forming part of the the office of the prosecutor. In Manila and
complex crime (Cuyos vs. Garcia, 160 SCRA other chartered cities, the complaint shall
302). be filed with the office of the prosecutor
unless otherwise provided in their
Jurisdiction; Complex Crimes (2003) charters.
In complex crimes, how is the jurisdiction of a court
determined? 4% The institution of the criminal action shall interrupt
SUGGESTED ANSWER: the running period of prescription of the offense
In a complex crime, jurisdiction over the whole charged unless otherwise provided in special
complex crime must be lodged with the trial court laws. (1a)
having jurisdiction to impose the maximum and most
serious penalty imposable on an offense forming part
NOTES: Preliminary Investigation is required for
of the complex crime. (Cuyos v. Garcia, 160 SCRA 302 offenses where the penalty prescribed by law is at
[1988]).
least 4 years, 2 months and 1 day, without regard
to fine (sec. 1, par. 2, Rule 112).
JURISDICTION OVER CONTINUING CRIMES
Continuing offenses are consummated in one
DOES NOT APPLY to offenses subject to
place, yet by the nature of the offense, the
Summary Procedure.
violation of the law is deemed continuing (e.g.
estafa and libel). As such, the courts of the
EFFECT OF INSTITUTION OF CRIMINAL
territories where the essential elements of the
ACTION:
crime took place have concurrent jurisdiction. But
It interrupts the running of the prescriptive period,
the court which first acquires jurisdiction excludes
unless otherwise provided in special laws.
other courts (Doctrine of Exclusion).

________________________________________________________________________________________________
Note: with respect to offenses penalized by prosecuted for the protection of the society
special laws, the filing of the complaint or (Domingo vs. Sandiganbayan, 322 SCRA 655).
information in court is the one that interrupts the
prescriptive period and not the filing of the Exceptions:
complaint in the proper office for preliminary 1. To afford adequate protection to the
investigation (Zaldivia vs. Reyes,211 SCRA 277). constitutional rights of the accused;
See section 2 of Act 3326. 2. When necessary for the administration of
justice or to avoid oppression or
NOTE HOWEVER: In Panaguiton v DOJ (2nd multiplicity of suits;
Division of the SC) , filing of the information in 3. When there is a prejudicial question which
the prosecution’s office interrupts the running of is sub judice;
the prescriptive period for violation of BP22. 4. When acts of the officer is without or in
excess of authority;
Bar Exam Question 2012 5. When the prosecution is under an invalid
20. The filing of a complaint with the Punong law, ordinance or regulation;
Barangay involving cases covered by the 6. When double jeopardy is clearly apparent;
Katarungang Pambarangay Rules shall: 7. When the court had no jurisdiction over
a. not interrupt any prescriptive period. the offense;
b. interrupt the prescriptive period for 90 8. When it is a case of persecution rather
days. than prosecution;
c. interrupt the prescriptive period for 60 9. When charges are manifestly false and
days. motivated by lust for vengeance;
d. interrupt the prescriptive period not 10. When there is clearly no prima facie case
exceeding 60 days. against the accused and a motion to
SUGGESTED ANSWER: quash on that ground has been denied.
(d), The filing of a complaint with the
Punong Barangay involving cases covered
by the Katarungang Pambarangay Rules
shall interrupt the prescriptive periods for Actions; Injunction (1999)
offenses and cause of action under Will injunction lie to restrain the commencement of a
existing laws for a period not exceeding criminal action? Explain. (2%)
Sixty (60) days from the filing of the SUGGESTED ANSWER:
complaint with the Punong barangay. As a general rule, injunction will not lie to restrain a
(Sec.410, Local Government Code). criminal prosecution except:
a) To afford adequate protection to the constitutional
rights of the accused;
REMEDIES OF OFFENDED PARTY IF b) When necessary for the orderly administration of
PROSECUTOR REFUSES TO FILE AN justice or to avoid oppression or multiplicity of
INFORMATION: actions;
1. File an action for mandamus, in case c) When double jeopardy is clearly apparent;
there is grave abuse of discretion; d) Where the charges are manifestly false and
2. Lodge another complaint before the court motivated by the lust for vengeance;
having jurisdiction over the offense; e) Where there is clearly no prima facie case against the
3. Take up (appeal) the matter with the accused and a motion to quash on that ground has
Secretary of Justice in accordance with been denied. (See cases cited in Roberts, Jr., vs. Court of
the Revised Administrative Code; Appeals, 254 SCRA 307 [1996] and Brocka v. Enrile, 192
4. Institute administrative charges against SCRA 183 [1990].)
the erring prosecutor;
5. File criminal action against the prosecutor
with corresponding action for damages. Section 2. The Complaint or information. — The
complaint or information shall be in writing, in the
MAY INJUNCTION ISSUE TO RESTAIN name of the People of the Philippines and against
CRIMINAL PROSECUTION? all persons who appear to be responsible for the
GR: NO. Criminal prosecutions may not be offense involved. (2a)
restrained or stayed by injunction, preliminary or
final. The reason being, public interest requires Section 3. Complaint defined. — A complaint is a
that criminal acts be immediately investigated and sworn written statement charging a person with an
offense, subscribed by the offended party, any

________________________________________________________________________________________________
peace officer, or other public officer charged with

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

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

________________________________________________________________________________________________
parents, grandparents or guardian, nor, in any prosecutor. (Rule 110, Sec. 5, Rules of
case, if the offender has been expressly pardoned Court). The trial prosecutor assumes full
by any of them. If the offended party dies or discretion and control over a case.
becomes incapacitated before she can file the Accordingly, the same trial prosecutor
complaint, and she has no known parents, who manifested his inability should
grandparents or guardian, the State shall initiate prosecute the case.
the criminal action in her behalf.
The offended party, even if a minor, has the right NOTE: The institution of a criminal action depends
to initiate the prosecution of the offenses of upon the sound discretion of the prosecutor. But
seduction, abduction and acts of lasciviousness once the case is filed in court, the same can no
independently of her parents, grandparents, or longer be withdrawn or dismissed without the
guardian, unless she is incompetent or incapable tribunal’s approval. Should the fiscal find it proper
of doing so. Where the offended party, who is a to conduct a reinvestigation of the case at such
minor, fails to file the complaint, her parents, stage, the permission of the court must be
grandparents, or guardian may file the same. The secured (Crespo vs. Mogul, 151 SCRA 462).
right to file the action granted to parents,
grandparents or guardian shall be exclusive of all There is a Motion for Reinvestigation filed
other persons and shall be exercised successively in court.
in the order herein provided, except as stated in The grant of the motion for reinvestigation
the preceding paragraph. will revest to the prosecutor’s office full
control and authority over the case. There
No criminal action for defamation which consists in will be no need for leave of court in
the imputation of the offenses mentioned above dismissing the case. The better practice,
shall be brought except at the instance of and however is to furnish the court with the
upon complaint filed by the offended party. (5a) order dismissing the case at the
prosecutor level (Ucat).
The prosecution for violation of special laws shall
PRIVATE PROSECUTOR may be authorized to
be governed by the provisions thereof. (n)
prosecute criminal action subject to the
following conditions:
Full control and direction of the Prosecutor 1. The public prosecutor has a heavy work
All criminal actions commenced by a complaint or schedule, or there is no public prosecutor
information shall be prosecuted under the control assigned in the province or city;
and direction of the prosecutor. 2. The private prosecutor is authorized in
WRITING by the Chief of the Regional
Bar Exam Question 2012 State Prosecutor:
82. After the DOJ Secretary granted 3. The authority of the private prosecutor is
accused's Petition for Review, the prosecution approved by the court;
filed a motion to withdraw the Information 4. The private prosecutor shall continue to
before the trial court. The judge therein prosecute the case until the end unless
denied the same. The trial prosecutor the authority is withdrawn or revoked;
manifested before the judge that he can no 5. In case of revocation or withdrawal of
longer prosecute the case because he is only authority, the same court (Memo Circular
an alter ego of the DOJ Secretary who No. 25, April 26, 2002).
ordered him to withdraw the Information.
The case should therefore be prosecuted by: In appeals before the CA, and the SC, it is only
a. a DOJ state prosecutor. the Solicitor General that is authorized to bring
and defend actions in behalf of the People of the
b. private prosecutor, if any.
Philippines (P. vs. Nano, 205 SCRA155).
c. trial prosecutor of the pairing court.
In all cases elevated to the
d. the same trial prosecutor who Sandiganbayan and from the
manifested his inability to prosecute the Sandiganbayan to the SC, the Office of
case. the Ombudsman, through its special
SUGGESTED ANSWER: (d), All criminal prosecutor shall represent the People,
actions either commenced by complaint except in cases filed pursuant to E.O. No.
or information shall be prosecuted under 1, 2, 14, and 14-A, issued in 1986 (sec. 4,
the direction and control of a public RA 8249).

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In government service related cases, the (A) Is the contemplated criminal action a
prosecution of cases cognizable by the viable option to bring? (3%)
Sandiganbayan shall be under the SUGGESTED ANSWER: No. Section 5 of
exclusive control and supervision of the Rule 110 provides that the crimes of
Office of the Ombudsman. In cases adultery and concubinage shall not be
cognizable by the regular courts, the law prosecuted except upon complaint filed by
recognizes a concurrence of jurisdiction the offended spouse. Since the offended
between the Ombudsman and other spouse is already dead, then the criminal
investigative agencies of the government action for Adultery as contemplated by
in the prosecution of said cases (Uy vs. offended party‟s relatives is no longer
Sandiganbayan, 354 SCRA 651). viable. Moreover, it appears that the
adulterous acts of Yvonne were committed
abroad. Hence, the contemplated criminal
PRIVATE CRIME action is not viable as the same was
This refers to those which cannot be prosecuted committed outside of the Philippine
except upon the complaint filed by the offended courts.
party. This legal requirement was imposed out of
the consideration for the aggrieved party might (B) Is a civil action to impugn the paternity of
prefer to suffer the outrage in silence than to go the baby boy feasible, and if so, in what
through the scandal of a public trial. proceeding may such issue be determined?
(5%)
In crimes of adultery and concubinage:
SUGGESTED ANSWER:
Yes, under Article 171 of the Familyy
NOTE: The offended spouse must be Code, the heirs of the husband may
the legal spouse at the time of the filing of impugn the filiation of the child in the
the complaint. Hence, filing of the following cases: a) If the husband should
complaint, after the grant of divorce die before the expiration of the period
obtained in a foreign country by the fixed for bringing his action: b) If he
foreign spouse, against the Filipino should die after the filing of the
spouse was not allowed (Imelda Pilapil vs. complaint, without having desisted
Hon. Ibay-Somera, GR NO. 80116, June therefrom; or c) If the child was born after
30, 1989) the death of the husband. Since Dario is
already dead when the baby was, his heirs
PROSECUTION OF PRIVATE CRIME have the right to impugn the filiation of
COMPLEXED WITH A PUBLIC OFFENSE the child. Consequently, the heirs may
In complex crimes, where one of the component impugn the filiation either by a direct
offense is a private crime, and the other is public action to impugn such filiation or raise
offense, the fiscal (prosecutor) may initiate the the same in a special proceeding for
proceedings de oficio. The reason therefore is that settlement of the estate of the decedent.
since one component is a public offense, the latter In the said proceeding, the Probate court
should prevail, the public interest being always has the power to determine questions as
paramount to private interest. to who are the heirs of the decedent
(Reyes vs. Ysip, et. al., 97 Phil. 11,
Actions; Commencement of an Action;
Jimenez vs. IAC, 184 SCRA 367).
Party (2013)
Incidentally, the heirs can also submit the
No.II. Yvonne, a young and lonely OFW, had
baby boy for DNA testing (A.M. No. 6-11-5-
an intimate relationship abroad with a friend,
SC, Rules on DNA Evidence) or even blood-
Percy. Although Yvonne comes home to
test in order to determine paternity and
Manila every six months, her foreign posting
filiation. In Jao vs. Court of Appeals, G.R.
still left her husband Dario lonely so that he
No. L-49162, July 28, 1987, the Supreme
also engaged in his own extramarital
Court held that blood grouping tests are
activities. In one particularly exhilarating
conclusive as to non-paternity, although
session with his girlfriend, Dario died. Within
inconclusive as to paternity. The fact that
180 days from Dario’s death, Yvonne gives
the blood type of the child is a possible
birth in Manila to a baby boy. Irate relatives
product of the mother and alleged father
of Dario contemplate criminally charging
does not conclusively prove that the child
Yvonne for adultery and they hire your law
is born by such parents; but, if the blood
firm to handle the case.
type of the child is not the possible blood

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type when the blood of the mother and b) The parents, grandparents or
the alleged father are cross matched, then guardian of the offended minor, in
the child cannot possibly be that of the that order, CANNOT extend a
alleged father. valid pardon in said crimes
WITHOUT the conformity of the
ALTERNATIVE ANSWER: No, there is no offended party, even if the latter is
showing in the problem of any ground that a minor;
would serve as a basis for an action to c) If the offended woman is of age,
impugn paternity of the baby boy. In and not otherwise incapacitated,
Concepcion vs. Almonte, G.R. No. 123450, only she can validly extend a
August 31, 2005 citing Cabatania vs. pardon.
Court of Appeals, the Supreme Court held
that the law requires that every NOTE: The pardon refers to pardon BEFORE the
reasonable presumption be made in favour filing of the criminal complaint in court. Pardon
of legitimacy. effected AFTER the filing of the complaint in court
The presumption of legitimacy does not does not prohibit the continuance of the
only flow out of declaration in the statute prosecution except in case of MARRIAGE (valid
but is based on the broad principles of and in good faith) between the offender and the
natural justice and the supposed virtue of offended party.
the mother. It is grounded on the policy
to protect the innocent offspring from the Subsequent sexual intercourse after the discovery
odium of illegitimacy. The presumption of of adulterous relationship is an implied pardon.
But it refers only to prior acts of
legitimacy proceeds from the sexual union
adultery(intercourse) NOT to subsequent acts
in marriage, particularly during the period
after such implied pardon.
of conception. To overthrow this
presumption on the basis of Article 166 (1)
PARDON CONSENT
(b) of the Family Code, it must be shown
Refers to past acts of Refers to future acts
beyond reasonable doubt that there was
adultery
no access that could have enabled the
Must be extended to Sufficient that it is
husband to father the child. Sexual
both offenders granted to only one
Intercourse is to be presumed where
spouse
personal access is not disposed, unless
such presumption is rebutted by evidence
GR: The SUBSEQUENT MARRIAGE between the
to the contrary. Hence, a child born to a
offended party and the accused extinguishes the
husband and wife during a valid marriage
criminal liability of the latter, together with that of
is presumed legitimate. Thus, the child‟s
the co-principals, accomplices and accessories.
legitimacy may be impugned only under
the strict standards provided by law Exceptions:
(Herrera vs. Alba, G.R. No. 148220, June 1. Where the marriage is invalid or
15, 2005). [Note: The Family Code is not contracted in bad faith in order to (solely)
covered by the 2013 bar Examination escape criminal liability;
Syllabus for Remedial Law]. 2. In private libel or libelous imputation to the
complainant of the commission of the
crimes of concubinage, adultery,
seduction, abduction or acts of
WHO CAN GIVE PARDON: lasciviousness, and in slander by deed;
1. Concubinage and Adultery—only the 3. In multiple rape, in so far as the other
offended spouse, not otherwise accused in the other acts of rape
incapacitated, can validly extend pardon respectively committed by them are
or consent contemplated therein. concerned.
2. Seduction, abduction, Acts of
lasciviousness: Note: The acquittal or death of one of the accused
a) The offended minor, if with does not bar the prosecution of the other accused
sufficient discretion, can validly (P. vs. Topino, et al.,35 Phil. 901).
pardon the accused by herself if
she has no parents or where the HOWEVER, the death of the offended party
accused is her own father and the before the filing of the complaint for adultery bars
mother is dead; further prosecution. But if offended spouse died

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after the filing of the complaint, his death will not When an offense is committed by more than one
prevent the proceeding from continuing to its person, all of them shall be included in the
ultimate conclusion. complaint or information. (6a)
Note: Desistance of the complainant does not bar Purpose of the rule:
criminal prosecution but it operates as waiver of 1. To inform the accused of the nature and
the right to pursue civil indemnity. the cause of accusation against him;
2. To notify the defendant of the criminal act
An offended party in a criminal case has sufficient imputed to him so that he can duly
personality to file special civil action for certiorari, prepare his defense.
in proper cases, even without the imprimatur of
the state. In so doing, the complainant should not Substantial defects in the complaint or information
bring the action in the name of the People of the cannot be cured by evidence that would
Philippines. The action may be prosecuted in the jeopardize the constitutional right of the accused
name of said complainant (Perez vs. Hagonoy to be informed of the nature and the cause of
Rural bank inc. 327 SCRA 588). accusations he being charged.
Parties; Prosecution of Offenses (2000)

Section 7. Name of the accused. — The
Your friend YY, an orphan, 16 years old, seeks your complaint or information must state the name and
legal advice. She tells you that ZZ, her uncle, subjected surname of the accused or any appellation or
her to acts of lasciviousness; that when she told her nickname by which he has been or is known. If his
grandparents, they told her to just keep quiet and not name cannot be ascertained, he must be
to file charges against ZZ, their son. Feeling very much described under a fictitious name with a statement
aggrieved, she asks you how her uncle ZZ can be that his true name is unknown.
made to answer for his crime. a) What would your
advice be?
If the true name of the accused is thereafter
Explain. (3%) b) Suppose the crime committed against disclosed by him or appears in some other
YY by her uncle ZZ is rape, witnessed by your mutual manner to the court, such true name shall be
friend XX. But this time, YY was prevailed upon by inserted in the complaint or information and
her grandparents not to file charges. XX asks you if record. (7a)
she can initiate the complaint against ZZ. Would your
answer be the same? Explain. (2%).
SUGGESTED ANSWER: PURPOSE
(a) I would advise the minor, an orphan of 16 years of The manifest intent of the provision is to make a
age, to file the complaint herself independently of her specific identification of the person to whom the
grandparents, because she is not incompetent or commission of an offense is imputed.
incapable to doing so upon grounds other than her
minority. (Sec. 5, Rule 110, Rules of Criminal Procedure.) An error in the name of the accused is not a
(b) Since rape is now classified as a Crime Against reversible error as long as his identity is
sufficiently established. This defect is curable at
Persons under the Anti-Rape Law of 1997 (RA 8353), I
any stage of the proceedings as insertion of the
would advise XX to initiate the complaint against ZZ.
real name of the accused is merely a matter of
form (P. Padica, 221 SCRA 362).
Section 6. Sufficiency of complaint or
information. — A complaint or information is Section 8. Designation of the offense. — The
sufficient if: complaint or information shall state the
1. it states the name of the accused; designation of the offense given by the statute,
2. the designation of the offense given by aver the acts or omissions constituting the
the statute; offense, and specify its qualifying and aggravating
3. the acts or omissions complained of as circumstances. If there is no designation of the
constituting the offense; offense, reference shall be made to the section or
4. the name of the offended party; subsection of the statute punishing it. (8a)
5. the approximate date of the commission
of the offense; Information (2001)
6. and the place where the offense was The prosecution filed an information against Jose for
committed. slight physical injuries alleging the acts constituting the
offense but without anymore alleging that it was
committed after Jose’s unlawful entry in the

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complainant’s abode. Was the information correctly through negligence (Torres vs. P., GR No.
prepared by the prosecution? Why? (5%) 175074, Aug. 31, 2011).
SUGGESTED ANSWER:
No. The aggravating circumstance of unlawful entry in An accused could not be convicted under one act
the complainant’s abode has to be specified in the when he is charged with a violation of another if
information; otherwise, it cannot be considered as the change from one statute to other involves:
aggravating. (Sec. 8 of Rule 110, Revised Rules of Criminal 1. Change in the theory of the trial;
Procedure) 2. Requires of the defendant a different
ALTERNATIVE ANSWER: defense;
The information prepared by the prosecutor is not 3. Surprises the accused in any way (US vs.
correct because the accused should have been charged Panlilio, 28 Phil. 603).
with qualified trespass to dwelling.
Section 9. Cause of the accusation. — The acts
or omissions complained of as constituting the
Information must or complaint must state the
offense and the qualifying and aggravating
following whenever possible:
circumstances must be stated in ordinary and
1. The designation of the offense given by
concise language and not necessarily in the
the statute, if there is no designation given
language used in the statute but in terms sufficient
by the statute, reference shall be made to
to enable a person of common understanding to
the section of the statute punishing it;
know what offense is being charged as well as its
2. The statements of the acts or omissions
qualifying and aggravating circumstances and for
constituting the offense, in ordinary and
the court to pronounce judgment. (9a)
concise and particular words;
3. The specific qualifying and aggravating
circumstances must be stated in ordinary PURPOSE:
and concise language. 1. To enable the court to pronounce proper
judgment;
NOTE: Qualifying and aggravating circumstances 2. To furnish the accused with such
not alleged in the information cannot be description of the charge as to enable him
appreciated even if proved on trial(P. vs. Perreras, to make a defense;
362 SRA 202). 3. As a protection for further prosecution for
the same cause(double jeopardy bar).
In case of allegations of Habitual Delinquency, it
should not be generally averred. The information RULE ON NEGATIVE AVERMENTS
must specify the requisite data regarding:
1. The commission of the crimes; GR: Where the statute alleged to have been
2. The last conviction or release; violated prohibits generally acts therein defined
3. The other previous conviction or release and is intended to apply to all persons
of the accused. indiscriminately, but prescribes certain limitation or
exceptions from its violation, the indictment or
ALLEGATIONS PREVAIL OVER THE information is sufficient even if it does NOT allege
DESIGNATION OF THE OFFENSE IN THE that the accused falls within the excepted
INFORMATION situation, for then the complete definition of the
It is not the designation of the offense in the offense is entirely separable from the exceptions
complaint or information that is controlling (P. vs. and can be made without reference to the latter. In
Samillano, 56 SCRA 573); the facts alleged this case, the exception is a matter of defense
therein and not its title determine the nature of the which the accused has to prove.
crime (P. vs. Magduwa, 73 Phil. 512).
EXCEPTION: Where the statute alleged to have
The accused may be convicted of a crime more been violated applies to specific classes of
serious than that named in the title or preliminary persons and special conditions and the
part if such crime is covered by the facts alleged in exemptions are so incorporated in the language
the body of the information and its commission is defining the crime that the ingredients of the
established by evidence (Buhat vs. CA, 265 SCRA offense cannot be accurately and clearly set forth
701). if the exemption is omitted. Then the indictment
must show that the accused does not fall within
Note: Accused charged of intentional the exemptions.
Malversation may be convicted of Malversation

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Note: amendment of pleading to conform to (b) If the true name of the of the person
evidence – Rule 10, sec. 5, does not apply in against whom or against whose properly
criminal cases. the offense was committed is thereafter
disclosed or ascertained, the court must
Section 10. Place of commission of the offense. cause the true name to be inserted in the
— The complaint or information is sufficient if it complaint or information and the record.
can be understood from its allegations that the
offense was committed or some of the essential (c) If the offended party is a juridical
ingredients occurred at some place within the person, it is sufficient to state its name, or
jurisdiction of the court, unless the particular any name or designation by which it is
place where it was committed constitutes an known or by which it may be identified,
essential element of the offense or is necessary without need of averring that it is a
for its identification. (10a) juridical person or that it is organized in
accordance with law. (12a)
NOTE: The example of the underlined portion:
1. Trespass to dwelling; Section 13. Duplicity of the offense. — A
2. Destructive arson; complaint or information must charge but one
3. Robbery in an inhabited place. offense, except when the law prescribes a single
punishment for various offenses. (13a)
PURPOSE: To show territorial jurisdiction which is
jurisdictional(mandatory) in criminal cases. GR: A complaint or information must charge only
one offense.
Note: Venue of prosecution of illegal Exceptions:
recruitment: 1. Complex crimes;
a) Place of the commission of the offense; 2. Special complex crimes;
b) Place of residence of offended party. 3. Continuous crimes or delito continuado;
Jurisdiction is with the RTC. 4. Crimes susceptible of being committed in
various modes;
5. Crime of which another offense is an
Section 11. Date of commission of the offense.
ingredient.
— It is not necessary to state in the complaint or
information the precise date the offense was
REQUISITES for Continuous crimes:
committed except when it is a material ingredient
1. Plurality of acts committed separately
of the offense. The offense may be alleged to
during a period of time;
have been committed on a date as near as
2. Unity of penal provision violated;
possible to the actual date of its commission.
3. Unity of criminal intent which means two
(11a)
or more violation of the same penal
provision are united on one and the same
NOTE: Example of the underlined portion: intent leading to the perpetration of the
1. Infanticide; same criminal purpose (P. vs. Ledesma,
2. Violation of Gun ban; 76 SCRA 47).
3. Physical injuries.
REMEMBER: Connect this section to Rule 120,
Section 12. Name of the offended party. — The sec. 3.
complaint or information must state the name and
surname of the person against whom or against Section 3, Rule 120. Judgment for two or
whose property the offense was committed, or any more offenses. — When two or more offenses
appellation or nickname by which such person has are charged in a single complaint or
been or is known. If there is no better way of information but the accused fails to object to it
identifying him, he must be described under a before trial, the court may convict him of as
fictitious name. many offenses as are charged and proved,
and impose on him the penalty for each
offense, setting out separately the findings of
(a) In offenses against property, if the fact and law in each offense. (3a)
name of the offended party is unknown,
the property must be described with such NOTE: Should there be duplicity of offense in the
particularity as to properly identify the
information, the accused must move for the
offense charged. quashal thereof BEFORE the arraignment.
Otherwise, he is deemed to have waived the

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objection and may be found guilty of as many before plea, which downgrades the nature
offenses as those charged and proved during trial. of the offense charged in or excludes any
accused from the complaint or
SPLITTING OF CASE NOT ALLOWED information, can be made only upon
On the other hand, a defendant should not be motion by the prosecutor, with notice to
harassed with various prosecutions based upon the offended party and with the leave of
the same act by splitting the same into various court.
charges, all emanating from the same law violated
when the prosecution could easily and well
embody them in a single information. NOTES: KINDS OF AMENDMENTS
Section 14. Amendment or substitution. — A A. BEFORE PLEA—covers both substantial

complaint or information may be amended, in form and formal amendments, without leave of
or in substance, without leave of court, at any court.
time before the accused enters his plea. After
the plea and during the trial, a formal amendment Except: (a) amendment which
may only be made with leave of court and when it downgrades the nature of the offense; (b)
can be done without causing prejudice to the excludes any accused from the complaint
rights of the accused. can be made only:
1) Upon motion by the prosecutor;
However, any amendment before plea, which 2) With notice to offended party;
downgrades the nature of the offense charged in 3) With leave of court.
or excludes any accused from the complaint or B. AFTER PLEA—covers only formal
information, can be made only upon motion by the amendments provided:
prosecutor, with notice to the offended party and a) Leave of court is obtained;
with leave of court. The court shall state its b) Not prejudicial to the rights of the
reasons in resolving the motion and copies of its accused.
order shall be furnished all parties, especially the
offended party. (n) Except: When a facts supervenes which
changes the nature of the crime charged
in the information or upgrades it to a
If it appears at any time before judgment that a
higher crime, in which case, there is a
mistake has been made in charging the proper
need for another arraignment of the
offense, the court shall dismiss the original
accused under the amended information.
complaint or information upon the filing of a new
one charging the proper offense in accordance
Information; Amendment (2001)
with section 19, Rule 119, provided the accused
Amando was charged with frustrated homicide. Before
shall not be placed in double jeopardy. The court
he entered his plea and upon the advice of his counsel,
may require the witnesses to give bail for their
he manifested his willingness to admit having
appearance at the trial. (14a)
committed the offense of serious physical injuries. The
prosecution then filed an amended information for
serious physical injuries against Amando. What steps
Bar Exam Questions 2013 or action should the prosecution take so that the
III. Leave of court is required to amend a amended information against Amando which
complaint or information before arraignment downgrades the nature of the offense could be validly
if the amendment __________. (1%) made? Why? (5%)
(A) upgrades the nature of the offense from a SUGGESTED ANSWER:
lower to a higher offense and excludes any of In order that the amended information which
the accused (B) upgrades the nature of the downgrades the nature of the offense could be validly
offense from a lower to a higher offense and made, the prosecution should file a motion to ask for
adds another accused (C) downgrades the leave of court with notice to the offended party. (Sec.14
nature of the offense from a higher to a of Rule 110, Revised Rules of Criminal Procedure). The new rule is
lower offense or excludes any accused (D) for the protection of the interest of the offended party
downgrades the nature of the offense from a and to prevent possible abuse by the prosecution.
higher to a lower offense and adds another
accused (E) All the above choices are Information; Amendment; Double Jeopardy; Bail (2002)
inaccurate. SUGGESTED ANSWER: (C), A. D and E were charged with homicide in one
Under Section 14 of Rule 110 of the Rules information. Before they could be arraigned, the
of Criminal Procedure, any amendment

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prosecution moved to amend the information to SUGGESTED ANSWER:

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

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the objection of the action shall be instituted and tried in the court
accused for if the of the first port of entry or of any municipality
original information or territory where the vessel passed during
would be withdrawn, such voyage, subject to the generally
the accused could accepted principles of international law.
invoke double jeopardy.
Venue (1997)
Test for propriety of Amendment after Plea: Where is the proper venue for the filing of an
The test as to whether the defendant is prejudiced information in the following cases? a) The theft of a
by the amendment of an information has been car in Pasig City which was brought to Obando,
said to be whether a defense under the original Bulacan, where it was cannibalized.
information would be available to the amended b) The theft by X, a bill collector of ABC Company,
information and whether the evidence, the with main offices in Makati City, of his collections
defendant might have would be equally applicable from customers in Tagaytay City. In the contract of
to the information in one form as in the other. employment, X was detailed to the Calamba branch
office, Laguna, where he was to turn in his collections.
c) The malversation of public funds by a Philippine
VARIANCE BETWEEN ALLEGATIONS AND consul detailed in the Philippine Embassy in London.
PROOF (situations contemplated): SUGGESTED ANSWER:
(a) The proper venue is in Pasig City where the theft
1. When the offense proved is less serious of the car was committed, not in Obando where it was
than, and is necessarily included in, the cannibalized. Theft is not a continuing offense. (People
offense charged, in which case the v Mercado, 65 Phil 665).
defendant shall be convicted of the (b) If the crime charged is theft, the venue is in
offense proved; Calamba where he did not turn in his collections. If
the crime of X is estafa, the essential ingredients of the
2. When the offense proved is more serious offense took place in Tagaytay City where he received
than and includes the offense charged, in his collections, in Calamba where he should have
which case the accused shall be turned in his collections, and in Makati City where the
convicted of the offense charged; ABC Company was based. The information may
therefore be filed in Tagaytay City or Calamba or
3. When the offense proved is neither Makati which have concurrent territorial Jurisdiction.
included in, nor does it include, the (Catingub vs. Court of Appeals, 121 SCRA 106).
offense charged and is different (c) The proper court is the Sandiganbayan which has
therefrom, in which case the court shall jurisdiction over crimes committed by a consul or
dismiss the case upon filing of the proper higher official in the diplomatic service. (Sec. 4(c). PD
charge(Rule 110, sec.14, par.3). 1606, as amended by RA. No. 7975). The Sandiganbayan
is a national court. (Nunez v. Sandiganbayan, 111 SCRA
Section 15. Place where action is to be 433 [1982]. It has only one venue at present, which is in
instituted. — Metro Manila, until RA. No. 7975, providing for two
other branches in Cebu and in Cagayan de Oro, is
(a) Subject to existing laws, the criminal action implemented.
shall be instituted and tried in the court of the Alternative Answers:
municipality or territory where the offense was (b) The information may be filed either in Calamba or
committed or where any of its essential in Makati City, not in Tagaytay City where no offense
ingredients occurred. had as yet been committed, (c) Assuming that the
Sandiganbayan has no jurisdiction, the proper venue is
(b) Where an offense is committed in a train, the first RTC in which the charge is filed (Sec. 15(d). Rule
aircraft, or other public or private vehicle while 110).
in the course of its trip, the criminal action
shall be instituted and tried in the court of any
municipality or territory where such train,
aircraft or other vehicle passed during such its Note: place of arrival and departure NOT
trip, including the place of its departure and included.
arrival.
(d) Crimes committed outside the Philippines
(c) Where an offense is committed on board a but punishable under Article 2 of the Revised
vessel in the course of its voyage, the criminal

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Penal Code shall be cognizable by the court GR: sec. 16.

where the criminal action is first filed. (15a) Exceptions:
1. Where the nature of the crime and the law
PURPOSE: The purpose being not to compel the punishing it, no civil liability arises in favor
defendant to move to, and appear in a court from of he offended party;
that of the territory where the crime was 2. Where the offended party has waived his
committed, as it would cause him great right to civil indemnity;
inconvenience in looking for his witnesses and 3. Where the offended party has expressly
other evidence in another place(Beltran vs. reserved his right to institute a separate
Ramos, 96 Phil. 149). civil action;
4. Where the offended party has already
VENUE is Jurisdictional in criminal cases. instituted said action.
Place where action is to be instituted: NOTE: As a general rule, only the prosecutor can
file a complaint/information in the RTC.
GR: par. (a).
Exceptions: EXCEPT: When the accused was arrested without
1. Par. (b), (c), and (d); a warrant, an inquest is conducted. In the absence
2. Piracy; of the inquest prosecutor, the complaint can be
3. Art. 360, RPC. Libel—the action may be directly filed with the RTC by the offended party.
instituted at the election of the offended
party in the province or city:
a) Where the libelous article is
printed and first published; RULE 111
b) If one of the offended party is a
private individual, where said
Prosecution of Civil Action
individual actually resides at the
time of the commission of the
offense; Section 1. Institution of criminal and civil
c) If the offended part is a public actions. — (a) When a criminal action is
official, where he holds office at instituted, the civil action for the recovery of civil
the time of the commission of the liability arising from the offense charged shall be
offense. deemed instituted with the criminal action unless
the offended party waives the civil action,
4. In exceptional circumstances—to ensure reserves the right to institute it separately or
a fair trial and impartial inquiry. The SC institutes the civil action prior to the criminal
shall have the power to change the venue action.
or place of trial to avoid miscarriage of
justice(sec.5[4], art. VIII, 1987 The reservation of the right to institute separately
Constitution). [Ampatuan and Abu Sayaf the civil action shall be made before the
cases]. prosecution starts presenting its evidence and
under circumstances affording the offended party
5. In cases falling under BP 22—action is a reasonable opportunity to make such
filed in the place where the check was reservation.
dishonored or issued.
When the offended party seeks to enforce civil
6. Sandiganbayan cases. liability against the accused by way of moral,
nominal, temperate, or exemplary damages
without specifying the amount thereof in the
complaint or information, the filing fees thereof
Section 16. Intervention of the offended party in shall constitute a first lien on the judgment
criminal action. — Where the civil action for awarding such damages.
recovery of civil liability is instituted in the criminal
action pursuant to Rule 111, the offended party Where the amount of damages, other than actual,
may intervene by counsel in the prosecution of the is specified in the complaint or information, the
offense. (16a) corresponding filing fees shall be paid by the
offended party upon the filing thereof in court.

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Except as otherwise provided in these Rules, no that no reservation to file such civil action separately
filing fees shall be required for actual damages. shall be allowed. [Sec. 1(b), Rule 111, Revised Rules of Criminal
Procedure]
No counterclaim, cross-claim or third-party
complaint may be filed by the accused in the
Actions; BP22; Demurrer to Evidence (2003)
criminal case, but any cause of action which could
In an action for violation of Batas Pambansa Big. 22,
have been the subject thereof may be litigated in a
the court granted the accused’s demurrer to evidence
separate civil action. (1a)
which he filed without leave of court. Although he was
acquitted of the crime charged, he, however, was
(b) The criminal action for violation of Batas required by the court to pay the private complainant
Pambansa Blg. 22 shall be deemed to include the the face value of the check. The accused filed a Motion
corresponding civil action. No reservation to file of Reconsideration regarding the order to pay the face
such civil action separately shall be allowed. value of the check on the following grounds: a) the
demurrer to evidence applied only to the criminal
Upon filing of the aforesaid joint criminal and civil aspect of the case; and b) at the very least, he was
actions, the offended party shall pay in full the entitled to adduce controverting evidence on the civil
filing fees based on the amount of the check liability. Resolve the Motion for Reconsideration. (6%)
involved, which shall be considered as the actual SUGGESTED ANSWER:
damages claimed. Where the complaint or (a) The Motion for Reconsideration should be denied.
information also seeks to recover liquidated, The ground that the demurrer to evidence applied only
moral, nominal, temperate or exemplary damages, to the criminal aspect of the case was not correct
the offended party shall pay additional filing fees because the criminal action for violation of Batas
based on the amounts alleged therein. If the Pambansa Blg. 22 included the corresponding civil
amounts are not so alleged but any of these action. (Sec. 1(b) of Rule 111).
damages are subsequently awarded by the court, (b) The accused was not entitled to adduce
the filing fees based on the amount awarded shall controverting evidence on the civil liability, because he
constitute a first lien on the judgment. filed his demurrer to evidence without leave of court.
(Sec. 23 of Rule 119).
Where the civil action has been filed separately
and trial thereof has not yet commenced, it may
be consolidated with the criminal action upon Instances where no reservation for a separate
application with the court trying the latter case. If civil action is allowed:
the application is granted, the trial of both actions 1. BP 22 cases;
shall proceed in accordance with section 2 of this 2. Cases cognizable by the Sandiganbayan
Rule governing consolidation of the civil and (sec. 4, PD 1606, as amended by RA
criminal actions. (cir. 57-97) 8249);
3. Tax cases (sec. 7 par. B, no. 1, RA 9282).
Actions; BP22; Civil Action deemed included (2001)
Saturnino filed a criminal action against Alex for the NOTE: Only the civil liability arising from the
latter’s bouncing check. On the date of the hearing offense charged as a felony is now deemed
after the arraignment, Saturnino manifested to the instituted.
court that he is reserving his right to file a separate
civil action. Civil liability arising from other sources of
The court allowed Saturnino to file a civil action obligations (law, contract, quasi-contract, and
separately and proceeded to hear the criminal case. quasi-delict) are no longer deemed instituted like
those under Article, 32, 33, 34 and 2176 of the
Alex filed a motion for reconsideration contending
NCC which can be prosecuted even without
that the civil action is deemed included in the criminal
reservation.
case. The court reconsidered its order and ruled that
Saturnino could not file a separate action. Is the
If the judgment did not provide for the award of
court’s order granting the motion for reconsideration
civil damages, the judge may be compelled by
correct? Why? (5%) mandamus.
SUGGESTED ANSWER:
Yes, the court’s order granting the motion for
Take Note: as a GR, there is no filing fee is
reconsideration is correct. The Rules provide that the
required for actual damages. However, in BP 22
criminal action for violation of B.P. Blg. 22 shall be
cases, there is required payment of filing fee
deemed to include the corresponding civil action, and
based upon the value of the check.

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Section 2. When separate civil action is indemnify the defendant in case the complaint
suspended. — After the criminal action has been should be found to be malicious.
commenced, the separate civil action arising
therefrom cannot be instituted until final judgment
has been entered in the criminal action. If during the pendency of the civil action, an
information should be presented by the
If the criminal action is filed after the said civil prosecuting attorney, the civil action shall be
action has already been instituted, the latter shall suspended until the termination of the criminal
be suspended in whatever stage it may be found proceedings.
before judgment on the merits. The suspension
shall last until final judgment is rendered in the Exceptions:
criminal action. Nevertheless, before judgment on 1. In cases of independent civil actions
the merits is rendered in the civil action, the same under art. 32, 33, 34 and 2176, NCC;
may, upon motion of the offended party, be 2. The civil action presents a prejudicial
consolidated with the criminal action in the court question under art. 36, NCC;
trying the criminal action. In case of consolidation, 3. In case the civil action is consolidated with
the evidence already adduced in the civil action the criminal action;
shall be deemed automatically reproduced in the 4. Where the civil action is not intended to
criminal action without prejudice to the right of the enforce a civil liability arising from the
prosecution to cross-examine the witnesses offense (art. 31, NCC).
presented by the offended party in the criminal
case and of the parties to present additional CONSOLIDATION OF CIVIL AND CRIMINAL
evidence. The consolidated criminal and civil CASES
actions shall be tried and decided jointly. The consolidation must be in the criminal court,
irrespective of the nature of the offense, the
During the pendency of the criminal action, the amount of civil claim or rank of the court trying the
running of the period of prescription of the civil civil case.
action which cannot be instituted separately or
whose proceeding has been suspended shall be Notice that as a rule consolidation of the criminal
tolled. (n) and civil cases may be consolidated only before
the trial of the civil cases is commenced.
The extinction of the penal action does not carry Nevertheless, it may still be consolidated before
with it extinction of the civil action. However, the judgment is rendered on merits (sec. 1, in relation
civil action based on delict shall be deemed to sec. 2.
extinguished if there is a finding in a final judgment
in the criminal action that the act or omission from ACQUITTAL IN A CRIMINAL CASE DOES NOT
which the civil liability may arise did not exist. (2a) BAR THE FILING OF THE CIVIL CASE WHERE:
1. The acquittal is based on reasonable
NOTES: doubt, if the civil case has been reserved;
GR: PRIMACY OF CRIMINAL ACTON OVER 2. The decision contains a declaration that
CIVIL ACTION. the liability of the accused is only civil and
not criminal;
3. The civil liability is not derived on the
Art. 35,NCC. When a person, claiming to criminal act of which the accused is
be injured by a criminal offense, charges another acquitted (Sapiera vs. CA, 314 SCRA
with the same, for which no independent civil 370)[ART. 31, NCC].
action is granted in this Code or any special law,
but the justice of the peace finds no reasonable NOTE: The extinction of the civil liability arising
grounds to believe that a crime has been from the crime(delict); whereas, the civil liability for
the same act arising from other sources of
committed, or the prosecuting attorney refuses obligation is not even extinguished by a
or fails to institute criminal proceedings, the declaration in the criminal case that the criminal
complainant may bring a civil action for damages act charged has not happened or has not been
against the alleged offender. Such civil action committed by the accused.
may be supported by a preponderance of
evidence. Upon the defendant's motion, the Civil Liability not Extinguished despite
Acquittal. (2010) (2) Name two instances
court may require the plaintiff to file a bond to where the trial court can hold the accused

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civilly liable even if he is acquitted. (2%) Actions; Commencement of an Action;

SUGGESTED ANSWER: The instances Criminal, Civil (2013) No.III. While in his
where the civil liability is not Nissan Patrol and hurrying home to Quezon
extinguished despite the acquittal of the City from his work in Makati, Gary figured in
accused where: (1) The acquittal is based a vehicular mishap along that portion of
on reasonable doubt; (2) Where the court EDSA within the City of Mandaluyong. He
expressly declares that the liability of the was bumped from behind by a Ford
accused is not criminal but only civil in Expedition SUV driven by Horace who was
nature; and (3) Where the civil liability is observed using his cellular phone at the time
not derived from or based on the criminal of the collision. Both vehicles - more than 5
act of which the accused is acquitted years old – no longer carried insurance other
(Remedios Nota Sapiera vs. Court of than the compulsory third party liability
Appeals, September 14, 1999). insurance. Gary suffered physical injuries
while his Nissan Patrol sustained damage in
excess of Php500,000.
ENFORCEMENT OF SUBSIDARY CIVIL
LIABILITY (A) As counsel for Gary, describe the process
Noteworthy is the fact that the subsidiary liability you need to undertake starting from the
established in articles 102 and 103 of RPC may point of the incident if Gary would proceed
be enforce in the same criminal case by filing in criminally against Horace, and identify the
said criminal action a motion for execution against court with jurisdiction over the case. (3%)
the person subsidiary liable (alias writ of SUGGESTED ANSWER:
execution) A) As counsel for Gary, I will first have
him medically examined in order to
ascertain the gravity and extent of the
Acquittal; Effect (2002) injuries sustained from the accident.
Delia sued Victor for personal injuries which she Second, I will secure an accurate police
allegedly sustained when she was struck by a car driven report relative to the mishap unless
by Victor. May the court receive in evidence, over Horace admits his fault in writing, and
proper and timely objection by Delia, a certified true request Gary to secure a car damage
copy of a judgment of acquittal in a criminal estimate from a car repair shop. Third, I
prosecution charging Victor with hit-and-run driving will ask him to execute his Sinumpaang
in connection with Delia’s injuries? Why? (3%) Salaysay. Thereafter, I will use his
SUGGESTED ANSWER:
Sinumpaang Salaysay or prepare a
If the judgment of acquittal in the criminal case finds
Complaint-affidavit and file the same in
that the act or omission from which the civil liability the Office of the City Prosecutor of
may arise does not exist, the court may receive it in Mandaluyong City (Sections 1 and 15 Rule
evidence over the objection by Delia. [Rule 111, sec. 2, last 110, Rules of Criminal Procedure). This
paragraph].
ALTERNATIVE ANSWER: being a case of simple negligence and the
If the judgment of acquittal is based on reasonable penalty for the offense does not exceed six
doubt, the court may receive it in evidence because in months imprisonment, the court with
such case, the civil action for damages which may be original and exclusive jurisdiction is the
instituted requires only a preponderance of the Metropolitan Trial Court of Mandaluyong
evidence. (Art. 29, Civil Code). City.
(B) If Gary chooses to file an independent civil

Section 3. When civil action may proceeded
action for damages, explain briefly this type
independently. — In the cases provided for in
Articles 32, 33, 34 and 2176 of the Civil Code of of action: its legal basis; the different
the Philippines, the independent civil action may approaches in pursuing this type of action;
be brought by the offended party. It shall proceed the evidence you would need; and types of
independently of the criminal action and shall defenses you could expect. (5%)
require only a preponderance of evidence. In no
case, however, may the offended party recover SUGGESTED ANSWER:
damages twice for the same act or omission An independent civil action is an action
charged in the criminal action. (3a) which is entirely distinct and separate
from the criminal action. Such civil action
shall proceed independently of the
criminal prosecution and shall require

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only a preponderance of evidence. Section case for Reckless Imprudence Resulting in

3 of Rule 111 allows the filing of an Serious Physical Injuries was filed against X
independent civil action by the offended before the Municipal Trial Court (MTC) of Sta.
party based on Article 33 and 2176 of the Maria. Atty. L, the private prosecutor, did not
New Civil Code. The different approaches reserve the filing of a separate civil action. V
that the plaintiff can pursue in this type subsequently filed a complaint for Damages
of action are as follows: (a) File the against X and Y before the Regional Trial
independent civil action and prosecute Court of Pangasinan in Urdaneta where he
the criminal case separately. (b) File the resides. In his "Certification Against Forum
independent civil action without filing the Shopping," V made no mention of the
criminal case. (c) File the criminal case pendency of the criminal case in Sta. Maria.
without need of reserving the independent (a) Is V guilty of forum shopping? (2%)
civil action. Aside from the testimony of SUGGESTED ANSWER:
Gary, the pieces of evidence that would be No, V is not guilty of forum shopping
required in an independent civil action are because the case in Sta. Maria, Bulacan, is
the medical report and certificate a criminal action filed in the name of the
regarding the injuries sustained by Gary, People of the Philippines, where civil
hospital and medical bills including liability arising from the crime is deemed
receipt of payments made police report also instituted therewith; whereas the
and proof of the extent of damage case filed in Urdaneta, Pangasinan, is a
sustained by his car and the Affidavit of civil action for quasi-delict in the name of
witnesses who saw Horace using his V and against both X and Y for all damages
cellular phone at the time the incident caused by X and Y to V, which may be
happened. beyond the jurisdiction of MTC. Hence,
I will also present proof of employment of the tests of forum shopping, which is res
Gary such as payslip in order to prove that adjudicate or litis pendencia, do not
he was gainfully employed at the time of obtain here. Moreover, substantive law
the mishap, and as a result of the injuries (Art. 33, Civil Code) and Sec. 3, Rule 111,
he suffered, he was not able to earn his Revised Rules of Criminal Procedure,
usual income thereof. I will also present expressly authorize the filing such action
the attending Doctor of Gary to for damages entirely separate and distinct
corroborate and authenticate the contents from the criminal action.
of the medical report and abstract thereof.
The evidence required to hold defendant (b) Instead of filing an Answer, X and Y move
Horace liable is only preponderance of to dismiss the complaint for damages on the
evidence. The types of defenses that may ground of litis pendentia. Is the motion
be raised against this action are fortuitous meritorious? Explain. (2%) SUGGESTED
event, force majeure or acts of God. The ANSWER: No, the motion to dismiss base
defendant can also invoke contributory on alleged litis pendencia is without merit
negligence as partial defense. Moreover, because there is no identity of parties and
the defendant can raise the usual defenses subject matter in the two cases. Besides,
that the: (a) plaintiff will be entitled to Art. 33 of the Civil Code and Rule 111,
double compensation or recovery, and (b) Sec. 3 of the Rules of Criminal Procedure
defendant will be constrained to litigate authorize the separate civil action for
twice and therefore suffer the cost of damages arising from physical injuries to
litigation twice. proceed independently.
Actions; Complaint; Forum Shopping (c) Suppose only X was named as defendant
(2010) in the complaint for damages, may he move
No.IV. X was driving the dump truck of Y for the dismissal of the complaint for failure
along Cattleya Street in Sta. Maria, Bulacan. of V to implead Y as an indispensable party?
Due to his negligence, X hit and injured V (2%) SUGGESTED ANSWER:
who was crossing the street. Lawyer L, who No, X may not move for dismissal of the
witnessed the incident, offered his legal civil action for damages on the contention
services to V. V, who suffered physical that Y is an indispensable party who
injuries including a fractured wrist bone, should be impleaded. Y is not an
underwent surgery to screw a metal plate to indispensable party but only necessary
his wrist bone. On complaint of V, a criminal party. Besides, nonjoinder and misjoinder

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of parties is not a ground for dismissal of A final judgment entered in favor of the offended
actions (Rule 3, Sec. 11, Rules of Court). party shall be enforced in the manner especially
provided in these rules for prosecuting claims
(d) X moved for the suspension of the against the estate of the deceased.
proceedings in the criminal case to await the
decision in the civil case. For his part, Y If the accused dies before arraignment, the case
moved for the suspension of the civil case to shall be dismissed without prejudice to any civil
await the decision in the criminal case. action the offended party may file against the
Which of them is correct? Explain. (2%) estate of the deceased. (n)
SUGGESTED ANSWER: Neither of them is
correct. Both substantive law (Art. 33 of Section 5. Judgment in civil action not a bar. —
the Civil Code) and procedural law (Rule A final judgment rendered in a civil action
111, Sec. 3, Rules of Criminal Procedure) absolving the defendant from civil liability is not a
provide for the two actions to proceed bar to a criminal action against the defendant for
independently of each other, therefore, no the same act or omission subject of the civil
suspension of action is authorized. action. (4a)
(e) Atty. L offered in the criminal case his Section 6. Suspension by reason of prejudicial
affidavit respecting what he witnessed during question. — A petition for suspension of the
the incident. X’s lawyer wanted to cross- criminal action based upon the pendency of a
examine Atty. L who, however, objected on prejudicial question in a civil action may be filed in
the ground of lawyer-client privilege. Rule on the office of the prosecutor or the court conducting
the objection. (2%) the preliminary investigation. When the criminal
action has been filed in court for trial, the petition
SUGGESTED ANSWER: The objection to suspend shall be filed in the same criminal
should be overruled. Lawyer-client action at any time before the prosecution rests.
privilege is not involved here. The subject (6a)
on which the counsel would be examined
has been made public in the affidavit he NOTES: Art. 36, NCC. Pre-judicial questions
offered and thus, no longer privileged, which must be decided before any criminal
aside from the fact that it is in respect of prosecution may be instituted or may proceed,
what the counsel witnessed during the shall be governed by rules of court which the
incident and not to the communication Supreme Court shall promulgate and which shall
made by the client to him or the advice he not be in conflict with the provisions of this Code.
gave thereon in his professional capacity.
PREJUDICIAL QUESTION
It is one which arises in a case, the resolution of
Section 4. Effect of death on civil actions. — which is a logical antecedent of the issue involved
The death of the accused after arraignment and therein and cognizance of which pertains to
during the pendency of the criminal action shall another tribunal (Agpalo, p. 137).
extinguish the civil liability arising from the delict.
However, the independent civil action instituted Prejudicial question is based on a fact distinct and
under section 3 of this Rule or which thereafter is separate from the crime but so intimately
instituted to enforce liability arising from other connected with it that it determines the guilt or
sources of obligation may be continued against innocence of the accused.
the estate or legal representative of the accused
after proper substitution or against said estate, as REASON: To avoid two conflicting decisions.
the case may be. The heirs of the accused may be
substituted for the deceased without requiring the WHERE TO FILE PETITION FOR SUSPENSION
appointment of an executor or administrator and OF CRIMINAL ACTION:
the court may appoint a guardian ad litem for the 1. Office of the Prosecutor;
minor heirs. 2. Court where the case is filed for trial, at
any time before prosecution rests.
The court shall forthwith order said legal
Section 7. Elements of prejudicial question. —
representative or representatives to appear and
The elements of a prejudicial question are:
be substituted within a period of thirty (30) days
from notice.

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(a) the previously instituted civil action the prosecutor in the criminal case, briefly discuss your
involves an issue similar or intimately related grounds in support of your opposition to the motion
to the issue raised in the subsequent criminal to suspend proceedings. (5%).
action, and SUGGESTED ANSWER:
As the prosecutor, I will argue that the motion to
(b) the resolution of such issue determines suspend is not in order for the following reasons:
whether or not the criminal action may 1 The civil case filed by CX against MM for
proceed. (5a) accounting and damages does not involve an issue
similar to or intimately related to the issue of estafa
raised in the criminal action.
NOTES: 2 The resolution of the issue in the civil case for
accounting will not determine whether or not the
criminal action for estafa may proceed. (Sec. 5, Rule 111,
PREJUDICIAL PREVIOUS QUESTION Rules of Criminal Procedure.)
QUESTION
I. Administrative Bar Exam Question 2011
Civil and Criminal and civil cases; (17) The city prosecutor of Manila filed, upon
cases II. Civil then Soledad’s complaint, a criminal action for
administrative estafa against her sister, Wella, before the
cases; RTC of Manila for selling to Victor a land that
III. Civil and civil she previously sold to Soledad. At the same
cases; time Soledad filed a civil action to annul the
IV. Administrative second sale before the RTC of Quezon City.
and criminal (ULP May the Manila RTC motu proprio suspend
case before Labor the criminal action on ground of prejudicial
Arbiters before question? (A) Yes, if it may be clearly inferred
filing a Criminal that complainant will not object to the
case for ULP) suspension of the criminal case. (B) No, the
V. Criminal then civil accused must file a motion to suspend the
(Falsification and action based on prejudicial question.
Probate of Will) (C) Yes, if it finds from the record that such
prejudicial question exists. (D) Yes, if it is
Note: It is not in all cases that the decision (finding convinced that due process and fair trial will
of facts) in the administrative case will bind the be better served if the criminal case is
civil case. suspended.
Prejudicial Question (1999)

What is a prejudicial question? (2%) Prejudicial Question; Suspension of Criminal Action
SUGGESTED ANSWER: (1999)
A prejudicial question is an issue involved in a civil A allegedly sold to B a parcel of land which A later
action which is similar or intimately related to the issue also sold to X. B brought a civil action for nullification
raised in the criminal action, the resolution of which of the second sale and asked that the sale made by A in
determines whether or not the criminal action may his favor be declared valid. A theorized that he never
proceed. (Sec. 5 of Rule 111.) sold the property to B and his purported signatures
ANOTHER ANSWER: appearing in the first deed of sale were forgeries.
A prejudicial question is one based on a fact distinct Thereafter, an Information for estafa was filed against
and separate from the crime but so intimately A based on the same double sale that was the subject
connected with it that it determines the guilt or of the civil action. A filed a "Motion for Suspension of
innocence of the accused. Action" in the criminal case, contending that the
resolution of the issue in the civil case would
Prejudicial Question (2000) necessarily be determinative of his guilt or innocence.
CX is charged with estafa in court for failure to remit Is the suspension of the criminal action in order?
to MM sums of money collected by him (CX) for MM Explain. (2%)
in payment for goods purchased from MM, by SUGGESTED ANSWER:
depositing the amounts in his (CX’s) personal bank Yes. The suspension of the criminal action is in order
account. CX files a motion to suspend proceedings because the defense of A in the civil action, that he
pending resolution of a civil case earlier filed in court never sold the property to B and that his purported
by CX against MM for accounting and damages signatures in the first deed of sale were forgeries, is a
involving the amounts subject of the criminal case. As prejudicial question the resolution of which is
________________________________________________________________________________________________
determinative of his guilt or innocence. If the first sale except in writing and in the presence of
is null and void, there would be no double sale and A counsel. (Article III, Sec. 12 (1), 1987
would be innocent of the offense of estafa. (Ras v. Constitution). These guaranteed rights are
Rasul, 100 SCRA 125.) available in all kinds of investigation
including a preliminary investigation. In a
preliminary investigation, a public
prosecutor determines whether a crime
RULE 112 has been committed and whether there is
probable cause that the accused is guilty
Preliminary Investigation thereof. (Rules of Court, Rule 112, Section
1). (Metropolitan Bank and Trust Company
NOTE: This Rule has been partially amended by vs. Rogelio Reynaldo, et.al., G.R. No.
AM 05-8-26-SC. The amendment took effect on 164538, August 9, 2010, Del Castillo, J.).
Oct. 3, 2005. The amendment, in essence, The right to have a preliminary
consists of removing the conduct of Preliminary investigation conducted before being
Investigation from judges of first level courts. bound over to trial for a criminal offense
and hence formally at risk of incarceration
or some other penalty, is not a mere
For purposes of preliminary investigation,
formal or technical right: it is a
complaint need not be filed by offended party.
substantive right. To deny the accused‟s
A complaint for purposes of preliminary
investigation by the Prosecutor need not be filed claim to a preliminary investigation would
by the offended party. The rule has been that, be to deprive him of the full measure of
unless the offense subject thereof is one that his right to due process.” (Sales vs.
cannot be prosecuted de oficio, the same may be Sandiganbayan, G.R. No. 143802,
filed, for preliminary investigation purposes, by November 16, 2001). Applying the
any competent person. The crime of estafa is a foregoing constitutional and procedural
public crime which can be initiated by “any precepts, there is no doubt that the
competent person”. The witnesses who executed custodial rights are available during the
the affidavits based on their personal knowledge preliminary investigation.
of the acts committed by the petitioner ALTERNATIVE ANSWER:
(respondent) fall within the purview of “any There are some authorities however, who
competent person” who may institute the believe that the custodial rights do not
complaint for a public crime. (Ebarle vs Sucaldito, apply during the preliminary investigation
L-33628 & 34162, Dec. 29, 1987, 156 SCRA 803; is a summary proceeding and merely
cited in Soriano vs Hon. Casanova, L-163400, inquisitorial in nature. Hence, the accused
March 31, 2006). cannot yet invoke the full exercise of his
rights including the right to counsel.
Bar Exam Question 2012 Moreover, a preliminary investigation is
100. An accused's custodial rights, e.g., right not part of a trial and it is only in a trial
to counsel and right to remain silent, is where an accused can demand the full
available: exercise of his rights, such as the right to
a. at preliminary investigation. confront and cross-examine his accusers
b. at police line-up for identification to establish his innocence (Albana vs.
purposes. Belo, G.R. No. 158734, October 2, 2009,
c. at ultra-violet examination to determine Leonardo-De Castro, J.). In a preliminary
presence of ultra violet powder on accused's investigation, a full and exhaustive
hands. presentation of the parties‟ evidence is
d. at one-on-one confrontation with not even required, but only such as may
eyewitness. engender a well-grounded belief that an
SUGGESTED ANSWER: offense has been committed and that the
(a), Any person under investigation for the accused is probably guilty thereof. (George
commission of an offense shall have the Miller vs. Secretary Hernando B. Perez,
right to be informed of his right to remain G.R. No. 165412, May 30, 2011, Villarama,
silent and to have competent and Jr.). Ergo, the custodial rights of the
independent counsel preferably of his own accused are not available during the
choice. If the person cannot afford the preliminary investigation. (c), At ultra-
services of counsel, he must be provided violet examination to determine presence
with one. These rights cannot be waived of ultra violet powder on accused‟s hands.

________________________________________________________________________________________________
The custodial rights of an accused are arrested without a warrant unless there is a waiver
already available at the time an ultra- of the provisions of art. 125 of RPC.
violet examination to determine presence
of ultra-violet powder on his hands is However, the arrested can ask for a PI in the
being conducted. following cases:
There is a custodial investigation when a 1. If a person is arrested, he can ask for PI
person is taken under the custody of the before the filing of the
law or otherwise deprived of his freedom complaint/information but he must sign a
of action in any significant way. waiver in accordance with art. 125, RPC;
“Custodial investigation is in the stage 2. After the filing of the complaint or
“where the police investigation is no information, the accused may, within 5
longer a general inquiry into an unsolved days from the time he learns of its filing,
crime but has begun to focus on a ask for PI.
particular suspect taken into custody by
the police who carry out a process of 3-FOLD PURPOSE OF PI:
interrogation that leads itself to elicit 1. To inquire concerning the commission of
incriminating statements.” (People vs. the crime and the connection of the
Sunga, G.R. No. 126029, March 27, 2003). accused with it, in order that he may be
Otherwise stated, a custodial investigation informed of the nature and character of
begins when the investigation starts to the crime charged against him, and if,
focus on a particular suspect. Among the there is probable cause for believing him
rights guaranteed to a suspect is that he guilty, that the state may take the
necessary steps to bring him to trial;
must continuously have a counsel
2. To preserve evidence and keep the
assisting him from the very start of that
witnesses within the control of the state;
interrogation (Poeple vs. Morial, et. al.,
3. To determine the amount of bail if the
G.R. No. 129295, April 15, 2001). Clearly,
offense is bailable.
when an accused is compelled to undergo
ultra-violet examination to determine the PI: PERSONAL STATUTORY RIGHT
presence of the ultra-violet powder on his The right to PI is a personal right covered by a
hands, it is no longer a mere general statute and may be waived expressly or by
inquiry but rather a custodial implication.
investigation which focuses on him as a
suspect in the commission of the crime. The right to PI is deemed waived by:
Therefore, for all intents and purposes, he 1. Failure to invoke it before the accused
is entitled to exercise his Constitutional pleaded;
safeguard and guaranteed rights to 2. His silence;
counsel and to remain silent. 3. Failure to request for PI within 5 days from
the time he learns of the filing of the
information/complaint in instances where
Section 1. Preliminary investigation defined; the accused was arrested without a
when required. — Preliminary investigation is an warrant.
inquiry or proceeding to determine whether there
is sufficient ground to engender a well-founded Absence of PI does not affect the jurisdiction of
belief that a crime has been committed and the the court or invalidate a valid information, if no
respondent is probably guilty thereof, and should timely objection was raised by the accused.
be held for trial.
If an objection is raised, the court, instead of
Except as provided in section 6 of this Rule, a dismissing the information, should conduct such
preliminary investigation is required to be investigation or remand the case for PI to the
conducted before the filing of a complaint or Prosecutor’s Office (Doromal vs. Sandiganbayan,
information for an offense where the penalty 117 SCRA 354).
prescribed by law is at least four (4) years, two
(2) months and one (1) day without regard to the REMEDIES OF THE ACCUSED IF THERE WAS
fine. (1a) NO PI:
1. Refuse to enter plea and object to further
Note: There is no right of PI under sec. 7 (now proceedings upon such ground;
2. Insist on a PI;
sec. 6 of the circular) when a person is lawfully
3. File certiorari if refused, when proper;

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4. Raise lack of PI as an error on appeal; does not exceed 4 years and 2 months. Under Sec. 1,
5. File prohibition. second par., Rule 112, a preliminary investigation is
not required. (Note: The penalty is not stated in the question.)
PI is not a part of trial, the dismissal of the case by
the investigator will not constitute double jeopardy Section 2. Officers authorized to conduct
and will not bar the filing of another complaint for preliminary investigations. —
the same offense, but if refilled, the accused is
entitled to another PI (US vs. Marfori, 35 Phil.
The following may conduct preliminary
666).
investigations:
(61) What is the remedy of the accused if the (a) Provincial or City Prosecutors and their
trial court erroneously denies his motion for assistants;
preliminary investigation of the charge
against him? (A) Wait for judgment and, on (b) Judges of the Municipal Trial Courts and
Municipal Circuit Trial Courts;
appeal from it, assign such denial as error.
(B) None since such order is final and
executory. (C) Ask for reconsideration; if (c) National and Regional State
denied, file petition for certiorari and Prosecutors; and
prohibition. (D) Appeal the order denying the
motion for preliminary investigation. (d) Other officers as may be authorized by
law.
Arrest; Warrantless Arrest; Preliminary Investigation Their authority to conduct preliminary

(2004) investigations shall include all crimes cognizable
AX swindled RY in the amount of P10,000 sometime by the proper court in their respective territorial
in mid-2003. On the strength of the sworn statement jurisdictions. (2a)
given by RY personally to SPO1 Juan Ramos
sometime in mid-2004, and without securing a warrant, Section 3. Procedure. — The preliminary
the police officer arrested AX. Forthwith the police investigation shall be conducted in the following
officer filed with the City Prosecutor of Manila a manner:
complaint for estafa supported by RY"s sworn
statement and other documentary evidence. After due (a) The complaint shall state the address of
inquest, the prosecutor filed the requisite information the respondent and shall be accompanied by
with the MM RTC. No preliminary investigation was the affidavits of the complainant and his
conducted either before or after the filing of the witnesses, as well as other supporting
information and the accused at no time asked for such documents to establish probable cause. They
an investigation. shall be in such number of copies as there are
However, before arraignment, the accused moved to respondents, plus two (2) copies for the
quash the information on the ground that the official file. The affidavits shall be subscribed
prosecutor suffered from a want of authority to file the and sworn to before any prosecutor or
information because of his failure to conduct a government official authorized to administer
preliminary investigation before filing the information, oath, or, in their absence or unavailability,
as required by the Rules of Court. Is the warrantless before a notary public, each of who must
arrest of AX valid? Is he entitled to a preliminary certify that he personally examined the
investigation before the filing of the information? affiants and that he is satisfied that they
Explain. (5%) voluntarily executed and understood their
SUGGESTED ANSWER: affidavits.
No. The warrantless arrest is not valid because the
alleged offense has not just been committed. The (b) Within ten (10) days after the filing of the
crime was allegedly committed one year before the complaint, the investigating officer shall either
arrest. (Sec. 5 (b) of Rule 113). dismiss it if he finds no ground to continue
Yes, he is entitled to a preliminary investigation with the investigation, or issue a subpoena to
because he was not lawfully arrested without a warrant the respondent attaching to it a copy of the
(See Sec. 7 of Rule 112). He can move for a reinvestigation. complaint and its supporting affidavits and
ALTERNATIVE ANSWER: documents.
He is not entitled to a preliminary investigation
because the penalty for estafa is the sum of P10,000

________________________________________________________________________________________________
The respondent shall have the right to Procedure Summary:

examine the evidence submitted by the
complainant which he may not have been 1. Filing of the complaint together with the
furnished and to copy them at his expense. If affidavits and supporting documents;
the evidence is voluminous, the complainant
may be required to specify those which he 2. Within 10 days after filing, the investigating
intends to present against the respondent, prosecutor would either dismiss the case or
and these shall be made available for issue subpoenas;
examination or copying by the respondent at
his expense. 3. If subpoena is issued, respondent shall submit
a counter-affidavit and other supporting
Objects as evidence need not be furnished a documents within 10 days from receipt
party but shall be made available for thereof. Note: The respondent may ask for the
examination, copying, or photographing at the extension of time to file counter-affidavits
expense of the requesting party. which must not be more than 10 days (Ucat);
4. Hearing (optional) within 10 days from

(c) Within ten (10) days from receipt of the
submission of counter-affidavits or from the
subpoena with the complaint and supporting
expiration of the period for their submission;
affidavits and documents, the respondent
shall submit his counter-affidavit and that of
5. Resolution by the Investigating Prosecutor.
his witnesses and other supporting documents
relied upon for his defense. The counter-
affidavits shall be subscribed and sworn to
Note: The respondent shall not be allowed to file
and certified as provided in paragraph (a) of
motion to dismiss instead in lieu of counter-
this section, with copies thereof furnished by
him to the complainant. The respondent shall affidavits.
not be allowed to file a motion to dismiss in
lieu of a counter-affidavit.
RIGHTS OF THE RESPONDENT IN A PI:
1. To submit counter-affidavits;
(d) If the respondent cannot be subpoenaed, 2. To examine the evidence submitted by the
or if subpoenaed, does not submit counter- complainant;
affidavits within the ten (10) day period, the 3. To be present in the clarificatory hearing.
investigating officer shall resolve the
complaint based on the evidence presented The Rules do not require the presence of the
by the complainant. respondent in the PI. What is required is that he
be given the opportunity to controvert the
(e) The investigating officer may set a hearing evidence of the complainant by submitting
if there are facts and issues to be clarified counter-affidavits.
from a party or a witness. The parties can be
present at the hearing but without the right to Failure of the offended party to attend in the
examine or cross-examine. They may, clarificatory hearing despite several rescheduling
however, submit to the investigating officer which results to the dismissal of the complaint in
questions which may be asked to the party or the prosecution level constitutes a bar to another
witness concerned. prosecution. The doctrine of res judicata and
estoppel has been applied although they are civil
The hearing shall be held within ten (10) days law concepts.
from submission of the counter-affidavits and
other documents or from the expiration of the Res Judicata in Prison Grey (2010) No.XVII. What is
period for their submission. It shall be "res judicata in prison grey"? (2%) SUGGESTED
terminated within five (5) days. ANSWER: “Res judicata in prison grey” is the criminal
concept of double jeopardy, as “res judicata” is the
(f) Within ten (10) days after the investigation, doctrine of civil law (Trinidad vs. Office of the
the investigating officer shall determine Ombudsman, G.R. No. 166038, December 4, 2007).
whether or not there is sufficient ground to Described as “res judicata in prison grey,” the right
hold the respondent for trial. (3a) against double jeopardy prohibits the prosecution of
a person for a crime of which he has been previously
acquitted or convicted. The purpose is to set the

________________________________________________________________________________________________
effects of the first prosecution forever at rest, move for dismissal of the complaint or information
assuring the accused that he shall not thereafter be with notice to the parties. The same rule shall
subjected to the danger and anxiety of a second apply in preliminary investigations conducted by
charge against him for the same offense (Joel B. Caes the officers of the Office of the Ombudsman. (4a)
vs. Intermediate Appellate Court, November 6, 1989).
Actions; Discretionary Power of Fiscal (1999)
A filed with the Office of the Fiscal a Complaint for
Section 4. Resolution of investigating estafa against B. After the preliminary investigation,
prosecutor and its review. — If the investigating the Fiscal dismissed the Complaint for lack of merit.
prosecutor finds cause to hold the respondent for May the Fiscal be compelled by mandamus to file the
trial, he shall prepare the resolution and case in court? Explain. (2%)
information. He shall certify under oath in the SUGGESTED ANSWER:
information that he, or as shown by the record, an No. The public prosecutor may not be compelled by
authorized officer, has personally examined the mandamus to file the case in court because the
complainant and his witnesses; that there is determination of probable cause is within the
reasonable ground to believe that a crime has discretion of the prosecutor. The remedy is an appeal
been committed and that the accused is probably to the Secretary of Justice. (Sec. 4 Rule 112.)
guilty thereof; that the accused was informed of
the complaint and of the evidence submitted
against him; and that he was given an opportunity NOTE: When the investigating prosecutor has
to submit controverting evidence. Otherwise, he already commenced the investigation – that is,
shall recommend the dismissal of the complaint. there were already counter-affidavits – the
investigating prosecutor may only recommend the
dismissal of the complaint (Review Lecture).
Within five (5) days from his resolution, he shall
forward the record of the case to the provincial or The absence of certification of the prosecutor
city prosecutor or chief state prosecutor, or to the
does not affect the validity of the information.
Ombudsman or his deputy in cases of offenses Certification is not an integral part of the
cognizable by the Sandiganbayan in the exercise information (Review Lecture).
of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt
thereof and shall immediately inform the parties of APPEAL TO THE SECRETARY OF JUSTICE
such action. (DOJ Circular No. 70 dated July 3,2000)
No complaint or information may be filed or An aggrieved party may appeal by filing a verified
dismissed by an investigating prosecutor without petition for review with the Secretary of Justice,
the prior written authority or approval of the and furnishing copies thereof to the adverse party
provincial or city prosecutor or chief state and the prosecution office issuing the assailed
prosecutor or the Ombudsman or his deputy. resolution (sec. 4):
1. The appeal shall be taken within 15 days
Where the investigating prosecutor recommends from receipt of the resolution or the denial
the dismissal of the complaint but his of the motion for
recommendation is disapproved by the provincial reconsideration/reinvestigation if one has
or city prosecutor or chief state prosecutor or the been filed within 15 days from receipt
Ombudsman or his deputy on the ground that a assailed resolution. Only one motion for
probable cause exists, the latter may, by himself, reconsideration is allowed (sec. 3);
file the information against the respondent, or 2. Unless the Secretary directs otherwise,
direct any other assistant prosecutor or state the appeal shall not stay the filing of the
prosecutor to do so without conducting another corresponding information in court on the
preliminary investigation. basis of the finding of probable cause in
the appealed resolution (sec. 9, par. 1);
If upon petition by a proper party under such rules 3. If the Secretary finds it necessary to
as the Department of Justice may prescribe or reinvestigate the case, the reinvestigation
motu proprio, the Secretary of Justice reverses or shall be held by the investigating
modifies the resolution of the provincial or city prosecutor, unless, for compelling
prosecutor or chief state prosecutor, he shall reasons, another prosecutor is designated
direct the prosecutor concerned either to file the to conduct the same(sec. 11).
corresponding information without conducting
another preliminary investigation, or to dismiss or
________________________________________________________________________________________________
The Ombudsman has the authority to reverse or modifies the resolution of the provincial or city
modify the resolution of the officers of the Office of prosecutor or chief state prosecutor, he shall
the Ombudsman. direct the prosecutor concerned either to
file the corresponding information without
He may direct the officer concerned either conducting another preliminary investigation,
(1) To file the corresponding information in or to dismiss or move for the dismissal of
court without conducting another the complaint or information with notice to
investigation; or (2) To dismiss the case or the parties. x x x (Last par. Sec. 4, Rule 114).
move for the dismissal of the complaint of
information with notice to the parties. b. One ground for the suspension of the
arraignment of the accused is “A petition for
review of the resolution of the prosecutor is
Q. When shall the Investigating Prosecutor file pending at either at the Department of Justice,
the information against the accused? or the Office of the President, provided, that
the period of suspension shall not exceed 60
Ans. After the resolution of the motion for days counted from the filing of the petition with
reconsideration (MFR) filed by the respondent the reviewing office. “ (Sec. 11 [c], Rule 116).
(accused) or the lapse of the 15-day period from
receipt by the respondent or his counsel of a copy If the accused
of the resolution, if no MFR is filed within the said (respondent) does not take step
15-day period. to prevent his arraignment, in
effect, he is estopped to pursue
Under the Rules, upon the release of the his appeal in the DOJ, warranting
resolution finding probable cause against the its dismissal if one had already
respondent, the information against the accused been filed (Dimatulac vs Villon,
may likewise be filed in court. This is implied from 297 SCRA 679). Where,
Sec. 4, Rule 112 providing that: “If the however, the arraignment is done
investigating prosecutor finds cause to hold the with undue haste so as to
respondent for trial, he shall prepare the resolution preempt the action of the DOJ in
and information. x x x “. The filing of the upgrading the crime charged in
information simultaneously with the release of the the information, the arraignment is
resolution of the investigating prosecutor was void for lack of due process
upheld by the Supreme Court in Webb vs de afforded to the State. (Ibid.).
Leon. (247 SCRA 652). However, Webb was
modified in Ombudsman vs Castro (L-164678, 4. Resolutions or final orders of the DOJ. Sec.
Oct. 20, 2005, 473 SCRA 608, First Div.). wherein 1, Rule 43 (Scope of appeal from quasi-judicial
it was held that the information shall be filed ONLY agencies to Court of Appeals). DOJ not a quasi-
after the accused is afforded his right to file a judicial agency whose resolutions or final orders
motion for reconsideration, otherwise, a denial of are appealable to the Court of Appeals under Rule
such right which is allowed in Sec. 3 of DOJ 43. However, in case of grave abuse of
Cir. No. 70 and under Sec. 56 of the Manual for discretion, the proper remedy is a Petition for
Prosecutors renders the preliminary Certiorari under Rule 65 to be filed with the Court
investigation conducted INCOMPLETE. of Appeals (Torres, Jr. vs. Aguinaldo, L-164268,
June 28, 2005, 461 SCRA 599).
Prosecutor need not wait for resolution of
petition for review/appeal filed by the The decision of the DOJ Secretary is NOT
respondent (accused) with the DOJ. judicially appealable. But it may be appealed to
the Office of the President if the penalty is at least
It is believed, however, that once the motion for Reclusion Perpetua and the offense does not
reconsideration is denied, the investigating prescribe in six months. The decision of the office
prosecutor can already file the information in of the President is appealable to the CA under
court. That is, he does not have to wait for a Rule 43, then to the SC (Review Lecture).
resolution by the DOJ of the Appeal or Petition for
Review which the respondent (accused) may file.
This is implied from the following provisions: NOTE: Where the information was already filed in
court but the accused filed a petition for review of
a. If upon petition by a proper party under the findings of the investigating prosecutor with
such rules as the DOJ may prescribe or motu the DOJ, the court is bound to suspend the
proprio, the Secretary of Justice reverses or

________________________________________________________________________________________________
arraignment of the accused for a period of not

exceeding 60 days (Rule 116, sec.11, c).
Section 5. Resolution of investigating judge and its
This does not contradict the doctrine in Crespo vs. review. —
Mogul, 151 SCRA 462, because said case merely
advised the DOJ as far as practicable to refrain NOTE: Section 5 was deleted by AM 05-8-26-
from entertaining a petition for review or appeal SC
from the action of the prosecutor when the Section 6 is now the section 5.
complaint or information was already filed in court.
Bar Exam Question 2011 Section 5. When warrant of arrest may issue. —
(70) Upon review, the Secretary of Justice (a) By the Regional Trial Court. — Within ten
ordered the public prosecutor to file a motion (10) days from the filing of the complaint or
to withdraw the information for estafa information, the judge shall personally evaluate
the resolution of the prosecutor and its supporting
against Sagun for lack of probable cause. The
evidence. He may immediately dismiss the case if
public prosecutor complied. Is the trial court
the evidence on record clearly fails to establish
bound to grant the withdrawal? (A) Yes, since
probable cause. If he finds probable cause, he
the prosecution of an action is a prerogative
shall issue a warrant of arrest, or a commitment
of the public prosecutor. (B) No, since the
order if the accused has already been arrested
complainant has already acquired a vested
pursuant to a warrant issued by the judge who
right in the information. (C) No, since the
conducted the preliminary investigation or when
court has the power after the case is filed the complaint or information was filed pursuant to
to itself determine probable cause. (D) Yes, section 7 of this Rule. In case of doubt on the
since the decision of the Secretary of Justice existence of probable cause, the judge may order
in criminal matters is binding on courts. the prosecutor to present additional evidence
within five (5) days from notice and the issue must
be resolved by the court within thirty (30) days
Information; Bail (2003) from the filing of the complaint of information.
After the requisite proceedings, the Provincial
Prosecutor filed an Information for homicide against
(b) By the Municipal Trial Court. — When
X. The latter, however, timely filed a Petition for
required pursuant to the second paragraph of
Review of the Resolution of the Provincial Prosecutor
section 1 of this Rule, the preliminary investigation
with the Secretary of Justice who, in due time, issued a
of cases falling under the original jurisdiction of the
Resolution reversing the resolution of the Provincial Metropolitan Trial Court, Municipal Trial Court in
Prosecutor and directing him to withdraw the Cities, Municipal Trial Court, or Municipal Circuit
Information. Trial Court may be conducted by either the judge
Before the Provincial Prosecutor could comply with or the prosecutor. When conducted by the
the directive of the Secretary of Justice, the court prosecutor, the procedure for the issuance of a
issued a warrant of arrest against X. warrant or arrest by the judge shall be governed
The Public Prosecutor filed a Motion to Quash the by paragraph (a) of this section. When the
Warrant of Arrest and to Withdraw the Information, investigation is conducted by the judge himself, he
attaching to it the Resolution of the Secretary of shall follow the procedure provided in section 3 of
Justice. The court denied the motion. (6%) a) Was this Rule. If the findings and recommendations are
there a legal basis for the court to deny the motion? b) affirmed by the provincial or city prosecutor, or by
If you were the counsel for the accused, what the Ombudsman or his deputy, and the
remedies, if any, would you pursue? corresponding information is filed, he shall issue a
SUGGESTED ANSWER: warrant of arrest. However, without waiting for the
a. Yes, there is a legal basis for the court to deny the conclusion of the investigation, the judge may
motion to quash the warrant of arrest and to withdraw issue a warrant of arrest if he finds after an
the information. The court is not bound by the examination in writing and under oath of the
Resolution of the Secretary of Justice. (Crespo v. Mogul, complainant and his witnesses in the form of
151 SCRA 462 [1987]). searching question and answers, that a probable
b. If I were the counsel for the accused, I would cause exists and that there is a necessity of
surrender the accused and apply for bail because the placing the respondent under immediate custody
offense is merely homicide, a non-capital offense. At in order not to frustrate the ends of justice.
the pre-trial, I would make a stipulation of facts with
the prosecution which would show that no offense (c) When warrant of arrest not necessary. — A
was committed. warrant of arrest shall not issue if the accused is

________________________________________________________________________________________________
already under detention pursuant to a warrant

issued by the municipal trial court in accordance While the judge may rely on the fiscal’s
with paragraph (b) of this section, or if the certification thereof, the same is not conclusive on
complaint or information was filed pursuant to him as the issuance of said warrant calls for the
section 7 of this Rule or is for an offense penalized exercise of judicial discretion and, for that purpose
by fine only. The court shall then proceed in the the judge may require the submission of affidavits
exercise of its original jurisdiction. (6a) of witnesses to aid him in arriving the proper
conclusion, or may require the fiscal to conduct
NOTE: This section is substantially modified further preliminary investigation or reinvestigation.
by the removal of power to conduct PI from
inferior court judges. INSTANCES WHEN WARRANT OF ARREST
NOT NECESSARY:
PROBABLE CAUSE 1. When the accused is already under
It presupposes a reasonable ground for belief in detention;
the existence of facts warranting the proceedings 2. If the complaint or information was filed
complained of. after the accused was lawfully arrested
without a warrant;
An apparent state of facts found to exist upon 3. If the offense is punishable by a fine only.
reasonable inquiry which would induce a
reasonably intelligent and prudent man to believe Section 6. When accused lawfully arrested
that the accused person had committed the crime without warrant. — When a person is lawfully
charged. arrested without a warrant involving an offense
which requires a preliminary investigation, the
If the judge finds probable cause, he shall issue complaint or information may be filed by a
warrant of arrest, or a commitment order if the prosecutor without need of such investigation
accused had already been arrested and hold him provided an inquest has been conducted in
for trial. If the judge is satisfied that there is no accordance with existing rules. In the absence or
necessity for the issuance of a warrant of arrest, unavailability of an inquest prosecutor, the
he may issue summons instead of a warrant of complaint may be filed by the offended party or a
arrest. peace office directly with the proper court on the
basis of the affidavit of the offended party or
Judges of the RTCs and MTCs need not arresting officer or person.
personally examine the complainant and the
witnesses in the determination of probable cause Before the complaint or information is filed, the
for the issuance of the warrant of arrest. He is only person arrested may ask for a preliminary
required to: investigation in accordance with this Rule, but he
must sign a waiver of the provisions of Article 125
1. Personally evaluate the report and the of the Revised Penal Code, as amended, in the
supporting documents submitted by the presence of his counsel. Notwithstanding the
prosecutor; waiver, he may apply for bail and the investigation
2. And on the basis thereof, he may: must be terminated within fifteen (15) days from its
a) Dismiss; inception.
b) Issue warrant;
c) Require further affidavits. After the filing of the complaint or information in
court without a preliminary investigation, the
VERY IMPORTANT: This is to be distinguished in
accused may, within five (5) days from the time he
finding probable cause for the issuance of a learns of its filing, ask for a preliminary
SEARCH WARRANT which requires the judge to investigation with the same right to adduce
personally examine the applicant and the
evidence in his defense as provided in this Rule.
witnesses in the form of searching questions and
(7a; sec. 2, R.A. No. 7438)
answers. For detailed discussion, refer to Search
and Seizure.
The provincial prosecutor, if he believes that the 8. W was arrested in the act of committing a
accused should be immediately placed in custody, crime on October 1, 2011. After an inquest
may file the corresponding information so that the hearing, an information was filed against W
RTC may issue the necessary warrant of arrest and his lawyer learned of the same on
(Samulde vs. Salvani, Jr. GR NO. 78606, Sept. October 5, 2011. W wants to file a motion for
26, 1988).

________________________________________________________________________________________________
preliminary investigation and therefore he investigated at all, and how would you avail
has only up to _____ to file the same. of this remedy? (4%) SUGGESTED ANSWER:
a. October 20, 2011; I will file a Motion for the conduct of
preliminary investigation or
b. October 10, 2011; reinvestigation and the quashal or recall
c. November 15, 2011; of the warrant of arrest in the Court where
the case is pending with an additional
d. October 16, 2011. prayer to suspend the arraignment. Under
SUGGESTED ANSWER: (b), When a person Section 6 of Rule 112 of the Rules of
is lawfully arrested without a warrant Court, after the filing of the complaint or
involving an offense which requires a information in court without a preliminary
preliminary investigation, he may ask a investigation, the accused may within five
preliminary investigation with the same days from the time he learns of its filing
right to adduce evidence in his defense ask for preliminary investigation with the
within five (5) days from the time he same right to adduce evidence in his
learns of the filing of the complaint or defense.
information in court. (Rule 112, Sec. 7, Moreover, Section 26, Rule 114 of the
Rules of Court). Rules on Criminal Procedure provides that
an application for or admission to bail
shall not bar the accused from challenging
Actions; Commencement of an Action the validity of his arrest or legality of the
(2012) No.V. X was arrested, en flagrante, for warrant issued therefor, or from assailing
robbing a bank. After an investigation, he the regularity or questioning the absence
was brought before the office of the of a preliminary investigation of the
prosecutor for inquest, but unfortunately no charge against him, provided that he
inquest prosecutor was available. May the raises them before entering his plea. The
bank directly file the complaint with the court shall resolve the matter as early as
proper court? If in the affirmative, what practicable but not later than the start of
document should be filed? (5%) SUGGESTED the trial of the case.
ANSWER:
ALTERNATIVE ANSWER: I will file a
Yes, the bank may directly file the Motion to Quash on the ground that the
complaint with the proper court. In the Sandiganbayan has no jurisdiction over
absence or unavailability of an inquest the person of the accused (Section 3, Rule
prosecutor, the complaint may be filed by 117 of the Rules of Criminal Procedure).
the offended party or a peace officer The Sandiganbayan has exclusive original
directly with the proper court on the basis jurisdiction over violations of R.A. 3019
of the affidavit of the offended party or (Anti-graft and Corrupt Practices law)
arresting officer or person (Section 6, Rule where one or more of the accused are
112 of the Revised Rules of Criminal officials occupying the enumerated
Procedure). positions in the government whether in a
permanent, acting, or interim incapacity,
R.A. 3019; Remedies (2013) at the time of the commission of the
No.VII. You are the defense counsel of Angela offense (Sec. 4, R.A. 8249).
Bituin who has been charged under RA 3019
( Anti-Graft and Corrupt Practices Act ) In Bondoc vs. Sandiganbayan, G.R. No.
before the Sandiganbayan. While Angela has 71163-65, November 9, 1990, the
posted bail, she has yet to be arraigned. Supreme Court held that before the
Angela revealed to you that she has not been Sandiganbayan may lawfully try a private
investigated for any offense and that it was individual under PD 1606, the following
only when police officers showed up at her requisites must be established: (a) he must
residence with a warrant of arrest that she be charged with a public officer/employee;
learned of the pending case against her. She and (b) he must be tried jointly. Since the
wonders why she has been charged before aforementionedrequisites are not present,
the Sandiganbayan when she is not in the Sandiganbayan has no jurisdiction.
government service. (A) What "before-trial"
remedy would you invoke in Angela’s behalf (B) What "during-trial" remedy can you use
to address the fact that she had not been to allow an early evaluation of the

________________________________________________________________________________________________
prosecution evidence without the need of

presenting defense evidence; when and how Sec. 18. Period of Detention Without Judicial
can you avail of this remedy? (4%) Warrant of Arrest.
SUGGESTED ANSWER: I will file a Motion
for Leave to file a Demurrer to Evidence SEC. 18. Period of Detention Without Judicial
within five (5) days from the time the Warrant of Arrest. “ The provisions of Article
prosecution has rested its case. If the
125 of the Revised Penal Code to the contrary
motion is granted, I will file a demurrer to
evidence within a non-extendible period of notwithstanding, any police or law
Ten (10) days from notice. However, if the enforcement personnel, who, having been
motion for leave to file demurrer to duly authorized in writing by the Anti-
evidence is denied, I can adduce evidence Terrorism Council has taken custody of a
for the accused during the trial to meet person charged with or suspected of the
squarely the reasons for its denial (Section crime of terrorism or the crime of conspiracy
23, Rule 119, Rules of Criminal
to commit terrorism shall, without incurring
Procedure). This remedy would allow the
early evaluation of the sufficiency of any criminal liability for delay in the delivery
prosecution‟s evidence without the need of detained persons to the proper judicial
of presenting defense evidence. It may be authorities, deliver said charged or suspected
done through the court‟s initiative or person to the proper judicial authority within
upon motion of the accused and after the a period of three (3) days counted from the
prosecution rested its case. moment the said charged or suspected
person has been apprehended or arrested,
detained, and taken into custody by the said
police, or law enforcement personnel:
INQUEST
It is an informal and summary investigation Provided, That the arrest of those suspected
conducted by a public prosecutor in criminal cases of the crime of terrorism or conspiracy to
involving persons arrested and detained without commit terrorism must result from the
the benefit of a warrant of arrest issued by the surveillance under Section 7 and examination
court for the purpose of determining whether or of bank deposits under Section 27 of this Act.
not said persons should remain in custody and
correspondingly be charged in court.
Inquest Proceedings must be terminated within

INQUEST PROCEEDINGS
the periods prescribed under the provisions of art.
125, RPC.

Receipt by the inquest officer of referral
(99) When may an information be filed in documents
court without the preliminary investigation
required in the particular case being first
conducted? (A) Following an inquest, in
cases of those lawfully arrested without a Arrest not properly Arrest properly
warrant. (B) When the accused, while under effected effected
custodial investigation, informs the arresting
officers that he is waiving his right to
preliminary investigation. (C) When the
accused fails to challenge the validity of the
warrantless arrest at his arraignment. (D) Release shall be A PI may be
When the arresting officers take the suspect recommended conducted if
before the judge who issues a detention order requested
against him.
Otherwise,
RA 9372 HUMAN SECURITY ACT OF 2007 inquest proper
NOTE: Took effect on July 14, 2007.

________________________________________________________________________________________________
prosecutor involving an offense

Determination of punishable by imprisonment of less four
probable cause (4) years, two (2) months and one (1) day,
the procedure outlined in section 3(a) of
this Rule shall be observed. The
If no probable cause, If there is probable prosecutor shall act on the complaint
release shall be cause, information based on the affidavits and other
recommended shall be filed supporting documents submitted by the
complainant within ten (10) days from its
filing.
NOTE: The 5 day period is MANDATORY. Failure (b) If filed with the Municipal Trial
to file the motion within the said period amounts to Court. — If the complaint or information is
waiver of the right to ask for PI. filed directly with the Municipal Trial Court
or Municipal Circuit Trial Court for an
Where the information is amended without a new offense covered by this section, the
PI having been conducted, the 5-day period is procedure in section 3(a) of this Rule shall
computed from the time the accused learns of the be observed. If within ten (10) days after
filing of the amended information. the filing of the complaint or information,
the judge finds no probable cause after
Where the trial court has granted a motion for personally evaluating the evidence, or
reinvestigation, it must hold in abeyance the after personally examining in writing and
arraignment and trial of the accused until the under oath the complainant and his
prosecutor shall have conducted and made a witnesses in the form of searching
report on the result of such reinvestigation. question and answers, he shall dismiss
the same. He may, however, require the
RIGHT TO BAIL PENDING PI submission of additional evidence, within
A person lawfully arrested may post bail before ten (10) days from notice, to determine
the filing of the information or even after its filing further the existence of probable cause. If
without having waived his right to PI, provided that the judge still finds no probable cause
he asks for a PI within the period fixed in the despite the additional evidence, he shall,
Rules [before entering his plea](P. vs. CA, May within ten (10) days from its submission or
29, 1995). expiration of said period, dismiss the
case. When he finds probable cause, he
Section 7. Records. — (a) Records supporting the shall issue a warrant of arrest, or a
information or complaint. — An information or commitment order if the accused had
complaint filed in court shall be supported by the already been arrested, and hold him for
affidavits and counter-affidavits of the parties and trial. However, if the judge is satisfied that
their witnesses, together with the other supporting there is no necessity for placing the
evidence and the resolution on the case. accused under custody, he may issue
summons instead of a warrant of arrest.
(b) Record of preliminary investigation. — The (9a)
record of the preliminary investigation, whether
conducted by a judge or a fiscal, shall not form PROCEDURE TO BE FOLLOWED IN CASES
part of the record of the case. However, the court, WHICH DO NOT REQUIRE PI
on its own initiative or on motion of any party, may 1. Evaluate the evidence presented;
order the production of the record or any its part 2. Conduct searching questions and
when necessary in the resolution of the case or answers;
any incident therein, or when it is to be introduced 3. Require the submission of additional
as an evidence in the case by the requesting evidence.
party. (8a)
Note: For cases under the Revised Rules on
Section 8. Cases not requiring a preliminary Summary Procedure, no warrant of arrest shall be
investigation nor covered by the Rule on issued EXCEPT where the accused fails to appear
Summary Procedure. — after being summoned.
(a) If filed with the prosecutor. — If the

complaint is filed directly with the

________________________________________________________________________________________________
RULE 113 NOTE: Posting of Bail does not bar one from
questioning the illegal arrest (sec. 26, Rule 114)
Arrest
Jurisdiction; Reinvestigation; Arrest
Note: For more detailed substantive discussion on (2008) No.X. Jose, Alberto and Romeo were
arrest, please refer to the Constitutional Law charged with murder. Upon filing the
Reviewer. information, the RTC judge issued warrants
for their arrest. Learning of the issuance of
the warrants, the three accused jointly filed a
Section 1. Definition of arrest. — Arrest is the
motion for reinvestigation and for the recall of
taking of a person into custody in order that he
the warrants of arrest. On the date set for
may be bound to answer for the commission of an
hearing of their motion, none of accused
offense. (1)
showed up in court for fear of being arrested.
The RTC judge denied their motion because
MODES OF ARREST the RTC did not acquire jurisdiction over the
1. Arrest by virtue of a warrant; persons of the movants. Did the RTC rule
2. Warrantless arrest under exceptional correctly? SUGGESTED ANSWER: The RTC
circumstances (sec. 5, Rule 113). was not entirely correct in stating that it
had no jurisdiction over the persons of the
ESSENTIAL REQUISITES OF A VALID
accused. By filing motions and seeking
ARREST:
affirmative reliefs from the court, the
1. It must be issued upon probable cause
accused voluntarily submitted themselves
which must be determined personally by a
to the jurisdiction of the court. However,
judge after personally evaluating the
the RTC correctly denied the motion for
records form the prosecutor’s office or by
examination under oath or affirmation of reinvestigation. Before an accused ca
the complainant and the witnesses he move for reinvestigation and the recall of
may produce; his warrant of arrest, he must first
2. The warrant must particularly describe the surrender his person to the court
person to be seized. (Miranda, et al. vs. Tuliao, G.R. No.
158763, 31 March 2006).
NOTE: A warrant of arrest has no expiry date. It
remains valid until arrest is effected(executed),
warrant lifted by the judge, or is quashed. This is
different from a search warrant which must be Section 2. Arrest; how made. — An arrest is
used (served) within 10 days from issuance. made by an actual restraint of a person to be
arrested, or by his submission to the custody of
Bar Exam Question 2011 the person making the arrest.
(13) Ramon witnessed the commission of a
crime but he refuses to testify for fear of his No violence or unnecessary force shall be used in
life despite a subpoena being served on him. making an arrest. The person arrested shall not be
Can the court punish him for contempt? (A) subject to a greater restraint than is necessary for
No, since no person can be compelled to be a his detention. (2a)
witness against another. (B) Yes, since
public interest in justice requires his REASONABLE AMOUNT OF FORCE MAY BE
testimony. (C) No, since Ramon has a valid USED TO EFFECT ARREST
reason for not testifying. (D) Yes, since It is a principle very generally accepted that an
litigants need help in presenting their cases. officer, having the right to arrest an offender, may
use such force as is necessary to effect his
purpose, and to a great extent he is made the
REMEDY FOR WARRANTS IMPROPERLY judge of the degree of force that may be properly
ISSUED exerted.
Where a warrant of arrest is improperly issued, the
proper remedy is a petition to quash the warrant, A police officer , in the performance of his
NOT Habeas Corpus, since the court in the latter duties, must stand his ground and cannot,
case may only order his release but not enjoin the like a private individual, take refuge in
further prosecution or preliminary examination of flight. His duty requires him to overcome
the accused (Alimpoos vs. CA, 106 SCRA 159). his opponent (Valcorza vs. People, 30
SCRA 143).
________________________________________________________________________________________________
(c) When the person to be arrested is a

Upon arrest, the following may be confiscated prisoner who has escaped from a penal
from the person arrested: establishment or place where he is serving
1. Objects subject of the offense or used or final judgment or is temporarily confined while
intended to be used in the commission of his case is pending, or has escaped while
the crime; being transferred from one confinement to
2. Objects which are fruits of the crime; another.
3. Those which might be used by the
arrested person to commit violence or to In cases falling under paragraph (a) and (b)
escape; above, the person arrested without a warrant shall
4. Dangerous weapons and those which be forthwith delivered to the nearest police station
may be used as evidence in the case. or jail and shall be proceeded against in
accordance with section 7 of Rule 112. (5a)
Section 3. Duty of arresting officer. — It shall be
the duty of the officer executing the warrant to Arrest; Warrantless Arrests & Searches
arrest the accused and to deliver him to the (2007) No.VI. (a) On his way home, a member
nearest police station or jail without unnecessary of the Caloocan City police force witnesses a
delay. (3a) bus robbery in Pasay City and effects the
arrest of the suspect. Can he bring the
Section 4. Execution of warrant. — The head of suspect to Caloocan City for booking since
the office to whom the warrant of arrest was that is where his station is? Explain briefly.
delivered for execution shall cause the warrant to (5%) SUGGESTED ANSWER: No, the
be executed within ten (10) days from its receipt. arresting officer may not take the arrested
Within ten (10) days after the expiration of the suspect from Pasay City to Caloocan City.
period, the officer to whom it was assigned for The arresting officer is required to deliver
execution shall make a report to the judge who the person arrested without a warrant to
issued the warrant. In case of his failure to the nearest police station or jail (Rule
execute the warrant, he shall state the reasons 113, Sec. 5, 2000 Rules of Criminal
therefor. (4a) Procedure). To be sure, the nearest police
station or jail is in Pasay City where the
Note: No time limit is fixed for the validity of a arrest was made, and not in Caloocan
warrant of arrest. City.
(b) In the course of serving a search warrant,
This must be so, for the return mentioned in this the police find an unlicensed firearm. Can
section does not refer to the physical delivery of the police take the firearm even if it is not
the same copy of the process to the issuing covered by the search warrant? If the warrant
court, but the report of the officer charged with is subsequently quashed, is the police
the execution on the action taken by him required to return the firearm? Explain
thereon. In short, the 10 day period is only a briefly. (5%) SUGGESTED ANSWER: Yes,
directive to the officer executing the warrant to the police may take with him the
make a return (report) to the court (P. vs. “unlicensed” firearm although not covered
Givera, 349 SCRA 513). by the search warrant. Possession of an
“unlicensed firearm” is a criminal offense
Section 5. Arrest without warrant; when lawful. and the police officer may seize an article
— A peace officer or a private person may, which is the “subject of an offense.” Thus
without a warrant, arrest a person: us especially so considering that the
“unlicensed firearm” appears to be in
(a) When, in his presence, the person to be “plain view” of the police officer when the
arrested has committed, is actually conducted the search. Even if the warrant
committing, or is attempting to commit an was subsequently quashed, the police are
offense; not mandated to return the “unlicensed
firearm.” The quashal of the search
(b) When an offense has just been warrant did not affect the validity of the
committed, and he has probable cause to seizure of the “unlicensed firearm.”
believe based on personal knowledge of facts Moreover, returning the firearm to a
or circumstances that the person to be person who is not otherwise allowed by
arrested has committed it; and law to possess the same would be

________________________________________________________________________________________________
tantamount to abetting a violation of the investigation provided an inquest has

law. been conducted in accordance with
existing rules.
Jurisdiction; Complex Crimes (2013)
No.VIII. On his way to the PNP Academy in
Silang, Cavite on board a public transport
bus as a passenger, Police Inspector LAWFUL WARRANTLESS ARRESTS:
Masigasig of the Valenzuela Police witnessed
an on-going armed robbery while the bus was 1. In flagrante cases (par. a);
traversing Makati. His alertness and training 2. Hot pursuit cases (par. b);
enabled him to foil the robbery and to 3. Prisoner escape cases (par. c);
subdue the malefactor. He disarmed the felon 4. Where a person lawfully arrested escapes
and while frisking him, discovered another or is rescued (sec. 13, Rule 113);
handgun tucked in his waist. He seized both 5. By the bondsman for the purpose of
handguns and the malefactor was later surrendering the accused (sec. 23, Rule
charged with the separate crimes of robbery 114);
and illegal possession of firearm. 6. Where the accused, on bail, attempts to
A) Where should Police Inspector Masigasig leave the country without permission from
bring the felon for criminal processing? To the court (sec. 23, Rule 114).
Silang, Cavite where he is bound; to Makati
where the bus actually was when the felonies OTHERS:
took place; or back to Valenzuela where he is 1. Arrest for the purpose of carrying into
stationed? Which court has jurisdiction over effect a final order of deportation (but not
the criminal cases? (3%) SUGGESTED for purposes of investigation);
ANSWER: 2. Arrest for contempt of legislative
Police Inspector Masigasig should bring proceedings (Senate and House of
the felon to the nearest police station or Reps.);
jail in Makati City where the bus actually 3. Arrests for contempt (direct) of court;
was when the felonies took place. In cases 4. Arrest of a material witness for failure to
of warrantless arrest, the person arrested post bail (sec. 14, Rule 119);
without a warrant shall be forthwith 5. Rule 110, sec. 14 (by implication).
delivered to the nearest police station or
jail and shall be proceeded against in
accordance with section 7 of Rule 112 If the arrest was effected without a warrant, the
(Section 113, Rules of Criminal arresting officer must comply with the provisions of
Procedure). Consequently, the criminal art. 125,RPC. OTHERWISE, he may be made
case for robbery and illegal possession of liable for delay in the delivery of persons to proper
firearms can be filed in Regional Trial judicial authorities.
Court of Makati City or on any of the
places of departure or arrival of the bus. NOTE: Every warrant must contain a
recommendation of the amount of bail except
(B) May the charges of robbery and illegal when the offense is non-bailable.
possession of firearm be filed directly by the
investigating prosecutor with the appropriate IN FLAGRANTE DELICTO ARRESTS
court without a preliminary investigation? An offense is committed in the presence or within
(4%) SUGGESTED ANSWER: Yes. Since the the view of the person making the arrest when he
sees the offense, although at a distance, or hears
offender was arrested in flagrante delicto
the disturbance created thereby and proceeds at
without a warrant of arrest, an inquest
once to the scene thereof; or the offense is
proceeding should be conducted and
continuing or has been consummated, at the time
thereafter a case may be filed in court
the arrest is made (P. vs. Evaresto, 216 SCRA
even without the requisite preliminary
431).
investigation. Under Section 6, Rule 112,
Rules of Criminal Procedure, when a Personal knowledge must be based upon
person is lawfully arrested without a probable cause which means an actual belief or
warrant involving an offense which reasonable grounds of suspicion.
requires a preliminary investigation, the
complaint or information may be filed by a
prosecutor without a need of such

________________________________________________________________________________________________
The grounds of suspicion is reasonable when, in without a warrant of arrest and searched his house
the absence of actual belief of the arresting without a search warrant. a) Can the gun used by B in
officers, the suspicion that the person to be shooting A, which was seized during the search of the
arrested is probably guilty of committing the house of B, be admitted in evidence? b) Is the arrest of
offense is based on actual facts (Posadas vs. B legal? c) Under the circumstances, can B be
Ombudsman, 341 SCRA 388). convicted of homicide?
SUGGESTED ANSWER:
RULES ON ILLEGALITY OF ARREST (a) No. The gun seized during the search of the house
of B without a search warrant is not admissible in
1. An accused who enters his plea of not evidence. (Secs. 2 and 3[2], Art. III of Constitution). Moreover,
guilty and participates in the trial waives the search was not an incident to a lawful arrest of a
the illegality of the arrest. Objection to the person under Sec. 12 of Rule 126.
illegality of the arrest must be made (b) No. A warrantless arrest requires that the crime has
before arraignment, otherwise it is in fact just been committed and the police arresting
deemed waived, as the accused , in this has personal knowledge of facts that the person to be
case, has voluntarily submitted himself to arrested has committed it. (Sec. 5, Rule 113). Here, the
the jurisdiction of the court. crime has not just been committed since a period of
2. Illegality of the warrantless arrest may be two days had already lapsed, and the police arresting
cured by the filing of the information in has no such personal knowledge because he was not
court and the subsequent issuance of a present when the incident happened. (Go vs. Court of
warrant of arrest. Appeals. 206 SCRA 138).
This is however, without prejudice to the (c) Yes. The gun is not indispensable in the conviction
criminal, administrative or civil liability that of A because the court may rely on testimonial or
the arresting officers may have incurred other evidence.
by reason of such illegal arrest.
3. Once a person has been duly charged in
court, he may no longer question his
Section 6. Time of making arrest. — An arrest
detention by a petition for Habeas Corpus;
may be made on any day and at any time of the
his remedy is to quash the information or
day or night. (6)
quashal of the warrant of arrest.
NOTE: As compared to search warrant that is
generally served only in daytime.
Arrest; Warrantless Arrests; Objection (2000)
Section 7. Method of arrest by officer by virtue
FG was arrested without a warrant by policemen while
of warrant. — When making an arrest by virtue of
he was walking in a busy street. After preliminary
a warrant, the officer shall inform the person to be
investigation, he was charged with rape and the
arrested of the cause of the arrest and of the fact
corresponding information was filed in the RTC. On that a warrant has been issued for his arrest,
arraignment, he pleaded not guilty. Trial on the merits except when he flees or forcibly resists before the
ensued. The court rendered judgment convicting him. officer has opportunity to so inform him, or when
On appeal, FG claims that the judgment is void the giving of such information will imperil the
because he was illegally arrested. If you were the arrest. The officer need not have the warrant in his
Solicitor General, counsel for the People of the possession at the time of the arrest but after the
Philippines, how would you refute said claim? (5%) arrest, if the person arrested so requires, the
SUGGESTED ANSWER:
warrant shall be shown to him as soon as
Any objection to the illegality of the arrest of the practicable. (7a)
accused without a warrant is deemed waived when he
pleaded not guilty at the arraignment without raising
the question. T is too late to complain about a Section 8. Method of arrest by officer without
warrant. — When making an arrest without a
warrantless arrest after trial is commenced and
warrant, the officer shall inform the person to be
completed and a judgment of conviction rendered
arrested of his authority and the cause of the
against the accused. (People v. Cabiles, 284 SCRA 199,
[1999])
arrest, unless the latter is either engaged in the
commission of an offense, is pursued immediately
Arrest; Warrantless Arrests & Searches (1997) after its commission, has escaped, flees or forcibly
A was killed by B during a quarrel over a hostess in a resists before the officer has opportunity so to
nightclub. Two days after the incident, and upon inform him, or when the giving of such information
will imperil the arrest. (8a)
complaint of the widow of A, the police arrested B

________________________________________________________________________________________________
Section 9. Method of arrest by private person. Informations, one for violation of the “Dangerous
— When making an arrest, a private person shall Drug Act”, as amended, and another for illegal
inform the person to be arrested of the intention to possession of firearms.
arrest him and cause of the arrest, unless the The accused filed an action for recovery of the firearm
latter is either engaged in the commission of an in another court against the police officers with an
offense, is pursued immediately after its application for the issuance of a writ of replevin. He
commission, or has escaped, flees, or forcibly alleged in his Complaint that he was a military
resists before the person making the arrest has informer who had been issued a written authority to
opportunity to so inform him, or when the giving of carry said firearm. The police officers moved to
such information will imperil the arrest. (9a) dismiss the complaint on the ground that the subject
firearm was in custodia legis. The court denied the
Section 10. Officer may summon assistance. — motion and instead issued the writ of replevin.
An officer making a lawful arrest may orally (a) Was the seizure of the firearm valid?
summon as many persons as he deems (b) Was the denial of the motion to dismiss proper?
necessary to assist him in effecting the arrest. 6%
Every person so summoned by an officer shall SUGGESTED ANSWER:
assist him in effecting the arrest when he can (a) Yes, the seizure of the firearm was valid because it
render such assistance without detriment to was seized in the course of a valid arrest in a buy-bust
himself. (10a) operation. (Sec. 12 and 13 of Rule 126) A search warrant was
not necessary. (People v. Salazar, 266 SCRA 607 [1997]).
Note: Only an officer is covered by this section. (b) The denial of the motion to dismiss was not
Hence, private individual cannot summon proper. The court had no authority to issue the writ of
assistance. replevin whether the firearm was in custodia legis or
not. The motion to recover the firearm should be filed
Section 11. Right of officer to break into in the court where the criminal action is pending.
building or enclosure. — An officer, in order to
make an arrest either by virtue of a warrant, or Section 13. Arrest after escape or rescue. — If a
without a warrant as provided in section 5, may person lawfully arrested escapes or is rescued,
break into any building or enclosure where the any person may immediately pursue or retake him
person to be arrested is or is reasonably believed without a warrant at any time and in any place
to be, if he is refused admittance thereto, after within the Philippines. (13)
announcing his authority and purpose. (11a)
NOTE: The pursuit must be immediate. The
REQUISITES: fugitive may be retaken by any person who may
1. Person to be arrested is or is reasonably not necessarily be the same person from whose
believed to be in said building; custody he escaped or was rescued.
2. That he announced his authority and
purpose for entering therein; Section 14. Right of attorney or relative to visit
3. That he has requested and denied person arrested. — Any member of the
admittance. Philippine Bar shall, at the request of the person
arrested or of another acting in his behalf, have
Section 12. Right to break out from building or the right to visit and confer privately with such
enclosure. — Whenever an officer has entered person in the jail or any other place of custody at
the building or enclosure in accordance with the any hour of the day or night. Subject to reasonable
preceding section, he may break out therefrom regulations, a relative of the person arrested can
when necessary to liberate himself. (12a) also exercise the same right. (14a)
Note: Private individual making an arrest cannot Take Note: The lawyer can visit and confer at any
break in or out of a building or enclosure time. But relatives are subject to reasonable
because only officers are allowed by rules to do regulations. Thus, they may not at any time visit
so. their confined relatives.
Arrest; Warrantless Arrests & Seizures (2003) Note: RA 7438 defined certain rights of persons
In a buy-bust operation, the police operatives arrested arrested, detained, or under custodial
the accused and seized from him a sachet of shabu and investigation, with penalties for violations thereof
an unlicensed firearm. The accused was charged in two

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34. In a criminal case for violation of a city

ordinance, the court may issue a warrant of Bail; Application (2012)
arrest: No.I.B. A was charged with a non-bailable
a. for failure of the accused to submit his offense. At the time when the warrant of
counter-affidavit. arrest was issued, he was confined in the
b. after finding probable cause against the hospital and could not obtain a valid
accused. clearance to leave the hospital. He filed a
c. for failure of the accused to post bail. petition for bail saying therein that he be
d. for non-appearance in court whenever considered as having placed himself under
required. the jurisdiction of the court. May the court
SUGGESTED ANSWER: (d), The criminal entertain his petition? Why or why not? (5%)
case for violation of a city ordinance is SUGGESTED ANSWER: No, the court may
governed by the Revised Rules on not entertain his petition as he has not
Summary Procedure. Under the said Rule, yet been placed under arrest. A must be
the court shall not order the arrest of the “literally” placed under the custody of the
accused except for failure to appear law before his petition for bail could be
whenever required. (Section 16, 1991 entertained by the court (Miranda vs.
Revised Rules on Summary Procedure). Tuliao, G.R. No. 158763, March 31, 2006).
Accordingly, the court may issue warrant ALTERNATIVE ANSWER: Yes, a person is
of arrest for non-appearance of the deemed to be under the custody of the law
accused whenever required in a criminal either when he has been arrested or has
case for infraction of a city ordinance. surrendered himself to the jurisdiction of
the court. the accused who is confined in
a hospital may be deemed to be in the
custody of the law if he clearly
RULE 114 communicates his submission to the court
while he is confined in the hospital.
(Paderanga vs. Court of Appeals, G.R. No.
Bail No. 115407, August 28, 1995).
Section 1. Bail defined. — Bail is the security Bar Exam Question 2012
given for the release of a person in custody of the 17. X was charged for murder and was
law, furnished by him or a bondsman, to issued a warrant of arrest. X remains at large
guarantee his appearance before any court as but wants to post bail. X's option is to:
required under the conditions hereinafter a. file a motion to recall warrant of arrest;
specified. Bail may be given in the form of b. surrender and file a bail petition;
corporate surety, property bond, cash deposit, c. file a motion for reinvestigation;
or recognizance. (1a)
d. file a petition for review with the OOJ.
SUGGESTED ANSWER: (b), Bail is the
BAIL BOND RECOGNIZANCE security given for the release of a person
An obligation under in the custody of the law (Rule 114, Sec.
seal given by the An obligation of record, 1, Rules of Court). The Rules use of word,
accused with one or entered into before “custody” to signify that bail is only
more sureties, and some court or available for someone who is under the
made payable to the magistrate duly custody of the law. Hence, X should first
proper officer with the authorized to take it, surrender before he could be allowed to
condition to be void with the condition to do post bail.
upon performance by some particular act
the accused of such
acts as he may be Bar Exam Question 2011
legally required to (95) A surety company, which provided the
perform bail bond for the release of the accused, filed
a motion to withdraw as surety on the
Note: A person is in the custody of the law when ground of the accused’s non-payment of the
he has been either arrested or otherwise deprived renewal premium. Can the trial court grant
of his freedom or when he has voluntarily the withdrawal?
submitted himself to the jurisdiction of the court by (A) No, since the surety‟s undertaking is
surrendering to the proper authorities. not annual but lasts up to judgment. (B)
Yes, since surety companies would fold up
________________________________________________________________________________________________
otherwise. (C) No, since the surety company (c) The failure of the accused to appear at the
technically takes the place of the accused trial without justification and despite due
with respect to court attendance. (D) Yes, notice shall be deemed a waiver of his right to
since the accused has breached its be present thereat. In such case, the trial may
agreement with the surety company. proceed in absentia; and
(d) The bondsman shall surrender the

Bail; Forms of Bail (1999) accused to the court for execution of the final
In what forms may bail be given? (2%) judgment.
SUGGESTED ANSWER:
Bail may be given by a corporate surety, or through a
The original papers shall state the full name and
property bond, cash deposit or recognizance.
address of the accused, the amount of the
undertaking and the conditions herein required.
PROSECUTION WITNESSES may also be
Photographs (passport size) taken within the last
required to post bail to ensure their appearance at
six (6) months showing the face, left and right
the trial of the case where:
profiles of the accused must be attached to the
1. There is substitution of information (sec.
bail. (2a)
14, Rule 110);
2. Where the court believes that a material
witness may not appear at the trial Bar Exam Question 2011
(sec.14, Rule 119). (49) When may the bail of the accused be
cancelled at the instance of the bondsman?
REQUIRING ARRAIGNMENT BEFORE GRANT (A) When the accused jumps bail. (B) When
OF BAIL IS NOT VALID the bondsman surrenders the accused to
It is a mistaken theory of the court to first require the court. (C) When the accused fails to pay
arraignment before the grant of bail where it is his annual premium on the bail bond.
authorized. The reasons are: (D) When the accused changes his address
1. The trial court could ensure the presence without notice to the bondsman.
of the accused at the arraignment
precisely by granting bail and ordering his NOTE: No additional conditions can be imposed.
presence at any stage of the proceedings
such as arraignment (sec. 2[b], Rule 114); A detention prisoner who escapes waives his right
and to cross-examination (Gimenez vs. Nazareno, 160
2. The accused would be placed in a SCRA 1).
position where he has to choose between
filing a motion to quash and thus delay his By filing a fake bail bond, an appellant is deemed
release on bail, and foregoing the filing of to have escaped from confinement during the
a motion to quash so that he can be pendency of his appeal and in the normal course
arraigned at once and thereafter be of things, his appeal should be dismissed.
released on bail (Lavides vs.CA, 324
SCRA 321). The condition of the bail that “ The accused shall
appear before the proper court whenever so
Section 2. Conditions of the bail; requirements. required by the court or these Rules” operates as
— All kinds of bail are subject to the following a valid restriction on his right to travel (Manotoc,
conditions: Sr. vs. CA 142 SCRA 149).
(a) The undertaking shall be effective upon Section 3. No release or transfer except on
approval, and unless cancelled, shall remain court order or bail. — No person under detention
in force at all stages of the case until by legal process shall be released or transferred
promulgation of the judgment of the Regional except upon order of the court or when he is
Trial Court, irrespective of whether the case admitted to bail. (3a)
was originally filed in or appealed to it;
Section 4. Bail, a matter of right; exception. —
(b) The accused shall appear before the All persons in custody shall be admitted to bail as
proper court whenever required by the court of a matter of right, with sufficient sureties, or
these Rules; released on recognize as prescribed by law or this
Rule (a) before or after conviction by the
Metropolitan Trial Court, Municipal Trial Court,
Municipal Trial Court in Cities, or Municipal Circuit

________________________________________________________________________________________________
Trial Court, and (b) before conviction by the under custody of the law, bail may be applied for
Regional Trial Court of an offense not punishable and granted as an exception, only upon clear and
by death, reclusion perpetua, or life imprisonment. convincing showing that:
(4a)
1. Once granted bail, the applicant will not
Section 13, Art III, 1987 Constitution. All be a flight risk or danger to the
community; and
persons, except those charged with offenses
2. There exists special, humanitarian and
punishable by reclusion perpetua, when compelling circumstances including, as a
evidence of guilt is strong, shall, before matter of reciprocity, those cited by the
conviction, be bailable by sufficient sureties, or highest court in the requesting state when
be released on recognizance as may be it grants provisional liberty in extradition
provided by law. The right to bail shall not be cases therein.
impaired even when the privilege of the writ of
a. A prospective extraditee is entitled to notice
habeas corpus is suspended. Excessive bail shall and hearing before the cancellations of his
not be required. bail.
NOTE: In instances where bail is a matter of right Considering that petitioner has not been shown to
ant the bail to be granted is based on the be a flight risk nor a danger to the community, she
recommendation of the prosecution as stated in is entitled to notice and hearing before her bail
the information or complaint, a hearing is not could be cancelled. Based on the record, we find
necessary. that, absent prior notice and hearing, the bail
cancellation was in violation of her right to due
But where, however, there is a reduction of bail as process tantamount to grave abuse of discretion
recommended or after conviction by the RTC of an on the part of the trial court. (Rodriguez, et al. vs.
offense not punishable by death, reclusion Hon. Presiding Judge of RTC Branch 17, Manila,
perpetua, or life imprisonment wherein the grant of et al., L-157977, Feb. 27, 2006).
bail is discretionary, there must be a hearing
before the bail is granted in order to afford the b. However, a prospective extraditee is not
prosecution to oppose it (Bangayan vs. Butacan, entitled to notice and hearing before the
345 SCRA 301). issuance of warrant for his arrest.
The prosecution cannot adduce evidence for the In Government of USA vs. Purganan L-148571, 24
denial of bail when it is a matter of right. However, Sept. 2002, 389 SCRA 623), we said that a
when it is a matter of discretion, prosecution may prospective extraditee is not entitled to notice and
show proof for the denial of bail. hearing before the issuance of a warrant of arrest,
because notifying him before his arrest only tips
Important note: A warrant of arrest without him of his pending arrest. But this is for cases
recommendation for bail is a violation of the pending the issuance of a warrant of arrest, not in
constitutional right of the accused to bail unless a CANCELLATION of a bail that had been issued
the accused is charged with a capital offense or after determination that the extraditee is a no-flight
offenses punishable by reclusion perpetua or life risk. The policy is that a prospective extraditee is
imprisonment and the evidence of guilt is strong arrested and detained to avoid his flight from
(Paraga vs. Veneracio, 269 SCRA 371). justice. On the extraditee lies the burden of
showing that he will not flee once bail is granted.
GR: An extradite is not entitled to bail. If after his arrest and if the trial court finds that he
is no flight risk, it grants him bail. The grant of
The constitutional provision on bail as well bail, presupposes that the petitioner has already
as sec. 4, Rule 114 applies only when a presented evidence to prove her right to be on
person has been arrested and detained bail, that she is no flight risk, and the trial court
for violation of Philippine laws. It does not had already exercised its sound discretion and
apply to extradition proceedings because had already determined that under the
extradition courts do not render judgments Constitution and laws in force, petitioner is entitled
of conviction or acquittal (Govt. of US vs. to provisional release.
Judge Purganan, Sept. 24, 2002).
EXCEPTION: Accordingly, it was held that after a (9) The Metropolitan Trial Court convicted
potential extraditee has been arrested and placed Virgilio and Dina of concubinage. Pending

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appeal, they applied for bail, claiming they of the guidelines that the judge may use in fixing a
are entitled to it as a matter of right. Is their reasonable amount of bail is the probability of the
claim correct? (A) No, bail is not a matter of accused appearing in trial.
right after conviction. (B) Yes, bail is a matter
of right in all cases not involving moral Bail; Matter of Right vs. Matter of Discretion (1999)
turpitude. (C) No, bail is dependent on the When is bail a matter of right and when is it a matter
risk of flight. (D) Yes, bail is a matter of of discretion? (2%)
right in the Metropolitan Trial Court SUGGESTED ANSWER:
before and after conviction. When Bail is a matter of right:
All persons in custody shall (a) before or after
conviction by the metropolitan and municipal trial
Extradition (2004) courts, and (b) before conviction by the RTC of an
RP and State XX have a subsisting Extradition Treaty. offense not punishable by death, reclusion perpetua or
Pursuant thereto RP's Secretary of Justice (SOJ) filed a life imprisonment, be admitted to bail as a matter of
Petition for Extradition before the MM RTC alleging right, with sufficient sureties, or be released on
that Juan Kwan is the subject of an arrest warrant duly recognizance as prescribed by law or Rule 114. (Sec. 4,
issued by the proper criminal court of State XX in Rule 114, Rules of Court, as amended by Circular No. 12-
connection with a criminal case for tax evasion and 94.)
fraud before his return to RP as a balikbayan. When bail is a matter of discretion:
Petitioner prays that Juan be extradited and delivered Upon conviction by the RTC of an offense not
to the proper authorities of State XX for trial, and that punishable by death, reclusion perpetua or life
to prevent Juan's flight in the interim, a warrant for his imprisonment, on application of the accused. If the
immediate arrest be issued. Before the RTC could act penalty of imprisonment exceeds six years but not
on the petition for extradition, Juan filed before it an more than 20 years, bail shall be denied upon a
urgent motion, in sum praying (1) that SoJ's showing by the prosecution, with notice to the
application for an arrest warrant be set for hearing and accused, of the following or other similar
(2) that Juan be allowed to post bail in the event the circumstances:
court would issue an arrest warrant. Should the court 1 That the accused is a recidivist, quasi-re-cidivist or
grant or deny Juan's prayers? Reason. (5%) habitual delinquent, or has committed the crime
SUGGESTED ANSWER: aggravated by the circumstance of reiteration;
Under the Extradition Treaty and Law, the 2 That the accused is found to have previously escaped
application of the Secretary of Justice for a warrant from legal confinement, evaded sentence, or has
of arrest need not be set for hearing, and Juan violated the conditions of his bail without valid
cannot be allowed to post bail if the court would justification;
issue a warrant of arrest. The provisions in the Rules 3 That the accused committed the offense while on
of Court on arrest and bail are not basically probation, parole, or under conditional pardon;
applicable. (Government of the United States of 4 That the circumstances of the accused or his case
America v. Puruganan, 389 SCRA 623 [2002]) indicate the probability of flight if released on bail; or
5 That there is undue risk that during the pendency of
the appeal, the accused may commit another crime.
Right to bail not available to military (Sec. 1, Id.)
personnel.
The right to bail embodied in the constitution, is Bail; Matter of Right vs. Matter of Discretion (2006)
not available to military personnel or officer When is bail a matter of right and when is it a matter
charged with the violation of Articles of War of discretion? (5%)
(Aswat vs. Galido, 204 SCRA 205). SUGGESTED ANSWER:
Bail is a matter of right (a) before or after conviction
Bail; Matter of Right (1999) by the inferior courts; (b) before conviction by the
When the accused is entitled as a matter of right to RTC of an offense not punishable by death, reclusion
bail, may the Court refuse to grant him bail on the perpetua or life imprisonment., when the evidence of
ground that there exists a high degree of probability guilt is not strong (Sec. 4, Rule 114, 2000 Rules of
that he will abscond or escape? Explain. (2%) Criminal Procedure).
SUGGESTED ANSWER: Bail is discretionary: Upon conviction by the RTC of
If bail is a matter of right, it cannot be denied on the an offense not punishable by death, reclusion perpetua
ground that there exists a high degree of probability or life imprisonment (Sec. 5, Rule 114, 2000 Rules of
that the accused will abscond or escape. What the Criminal Procedure).
court can do is to increase the amount of the bail. One

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Section 5. Bail, when discretionary. — Upon application for bail on ground of habitual
conviction by the Regional Trial Court of an delinquency? (A) Yes, the felonies are both
offense not punishable by death, reclusion punishable under the Revised Penal Code. (B)
perpetua, or life imprisonment, admission to bail is Yes, her twin convictions indicated her
discretionary. The application for bail may be filed criminal inclinations. (C) No, the felonies
and acted upon by the trial court despite the filing fall under different titles in the Revised
of a notice of appeal, provided it has not Penal Code. (D) No, the charges are both
transmitted the original record to the appellate bailable.
court. However, if the decision of the trial court
convicting the accused changed the nature of the Bar Exam Question 2011
offense from non-bailable to bailable, the (28) Berto was charged with and convicted of
application for bail can only be filed with and violating a city ordinance against littering in
resolved by the appellate court. public places punishable by imprisonment of
one month or a fine of P1,000.00. But the
Should the court grant the application, the city mayor pardoned him. A year later, he
accused may be allowed to continue on was charged with violating a city ordinance
provisional liberty during the pendency of the against jaywalking which carried the same
appeal under the same bail subject to the consent penalty. Need Berto post bail for such
of the bondsman. offense? (A) Yes, his previous conviction
requires posting of bail for the present
If the penalty imposed by the trial court is charge. (B) Yes, since he may be deemed to
imprisonment exceeding six (6) years, the have violated the terms of his pardon. (C) No,
accused shall be denied bail, or his bail shall be because he is presumed innocent until
cancelled upon a showing by the prosecution, with proven otherwise. (D) No, one charged with
notice to the accused, of the following or other the violation of a city ordinance is not
similar circumstances: required to post bail, notwithstanding a
previous pardon.
(a) That he is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed the Section 6. Capital offense defined. — A capital
crime aggravated by the circumstance of offense is an offense which, under the law existing
reiteration; at the time of its commission and of the
application for admission to bail, may be punished
(b) That he has previously escaped from legal with death. (6a)
confinement, evaded sentence, or violated the
conditions of his bail without valid justification; NOTE: If the law at the time of the commission
does not impose the death penalty, the
(c) That he committed the offense while under subsequent amendment of the law increasing
probation, parole, or conditional pardon; the penalty cannot apply to the case, otherwise
it would be ex post facto, and penalties are
(d) That the circumstances of his case determined at the time of the commission of the
indicate the probability of flight if released on offense.
bail; or
If the law at the time of the application for bail
has amended the prior law, which impose the
(e) That there is undue risk that he may
death penalty by reducing such penalty, such
commit another crime during the pendency of
favorable law, generally has a retro-active effect
the appeal.
(art. 22, RPC).
The appellate court may, motu proprio or on Bar Exam Question 2011
motion of any party, review the resolution of the (58) Which of the following states a correct
Regional Trial Court after notice to the adverse guideline in hearing applications for bail in
party in either case. (5a) capital offenses? (A) The hearing for bail in
capital offenses is summary; the court
Bar Exam Question 2011 does not sit to try the merits of the case.
(3) Angie was convicted of false testimony and (B) The prosecution’s conformity to the
served sentence. Five years later, she was accused’s motion for bail is proof that its
convicted of homicide. On appeal, she applied evidence of his guilt is not strong. (C) The
for bail. May the Court of Appeals deny her accused, as applicant for bail, carries the

________________________________________________________________________________________________
burden of showing that the prosecution’s appealed from the decision but B and C did not. B
evidence of his guilt is not strong. (D) The started serving his sentence but C escaped and is at
prosecution must have full opportunity to large. In the Court of Appeals, A applied for bail but
prove the guilt of the accused. was denied. Finally, the Court of Appeals rendered a
decision acquitting A on the ground that the evidence
pointed to the NPA as the killers of the victim.
Section 7. Capital offense or an offense 1 Was the Court of Appeal's denial of A's
punishable by reclusion perpetua or life application for bail proper? [2%]
imprisonment, not bailable. — No person 2 Can B and C be benefited by the decision of the
charged with a capital offense, or an offense Court of Appeals? [3%]
punishable by reclusion perpetua or life SUGGESTED ANSWER:
imprisonment, shall be admitted to bail when 1, Yes, the Court of Appeals properly denied A's
evidence of guilt is strong, regardless of the stage application for bail. The court had the discretion to do
of the criminal prosecution. (7a) so. Although A was convicted of homicide only, since
he was charged with a capital offense, on appeal he
NOTE: RA 9346 (AN ACT PROHIBITING THE could be convicted of the capital offense. (Obosa vs.
Court of Appeals, 266 SCRA 281.)
IMPOSITION OF DEATH PENALTY IN THE ALTERNATIVE ANSWER:
PHILIPPINES, June 24,2006) abolished (may be Under Circular No. 2-92, A is entitled to bail because
called suspended because the constitution itself he was convicted of homicide and hence the evidence
did not totally abolished death penalty). Hence of guilt of murder is not strong.
there is no more capital offense. SUGGESTED ANSWER:
2. B, who did not appeal, can be benefited by the
GR: No bail if charge is a capital offense or is decision of the Court of Appeals which is favorable
punishable by reclusion perpetua or life and applicable to him. (Sec. 11 [a]. Rule 122, Rules of Criminal
imprisonment AND evidence of guilt is strong. Procedure.) The benefit will also apply to C even if his
appeal is dismissed because of his escape.
REASON: One who faces a probable death
sentence has a particularly strong temptation to Section 8. Burden of proof in bail application.
flee. — At the hearing of an application for bail filed by
a person who is in custody for the commission of
Exception: If the accused charged with a capital an offense punishable by death, reclusion
offense is a minor. perpetua, or life imprisonment, the prosecution
For the purposes of recommending the has the burden of showing that evidence of guilt is
amount of bail, the privileged mitigating strong. The evidence presented during the bail
circumstance of minority shall be hearing shall be considered automatically
considered (sec. 34 RA 9344 (JUVENILE reproduced at the trial, but upon motion of either
JUSTICE AND WELFARE ACT OF 2206). party, the court may recall any witness for
additional examination unless the latter is dead,
NOTE: RA9344 suspends the sentence of outside the Philippines, or otherwise unable to
persons convicted of an offense while they were testify. (8a)
below 18 years of age. For those committed by
minors 15 years old and below, there is no
criminal liability, only civil. Minors more that 15 but Bail (2002)
not more than 18 must have acted with D was charged with murder, a capital offense. After
discernment. Otherwise, they have no criminal arraignment, he applied for bail. The trial court
liability. ordered the prosecution to present its evidence in full
on the ground that only on the basis of such
NOTE: Even though the penalty provided by law is presentation could it determine whether the evidence
reclusion perpetua or life imprisonment or death, if of D’s guilt was strong for purposes of bail. Is the
such penalty is not likely to be imposed on ruling correct? Why? (3%)
SUGGESTED ANSWER:
account of the attendance of (privileged) mitigating
circumstances, the crime does not fall under the No, the prosecution is only required to present as
category of a capital offense for purposes of bail much evidence as is necessary to determine whether
(Bravo, Jr. vs. Borja, 134 SCRA 466). the evidence of D’s guilt is strong for purposes of
bail.(Rule 114, sec. 8).
Bail; Appeal (1998)
In an information charging them of Murder,
NOTES: Bail hearing is mandatory. Granting
policemen A, B and C were convicted of Homicide. A
bail without hearing is gross ignorance of the law

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subjects the judge to administrative liabilities and CAEL GLORIOSO and ATTY. MIRIAM S.
even dismissal from office [the judge was fined in LORINA-RENTOY, complainants, vs. JUDGE
the amount of 20, 000 pesos] (Taborite vs. LORINDA B. TOLEDO-MUPAS, MTC-
Sollesta, AM No. MTJ-02-1388 , Aug. 12, 2003). Dasmariñas, Cavite, respondent)
Q. What is the administrative liability of a judge Comment: It is the DOJ Prosecutor who has the
who granted an application for bail without legal authority to determine the crime probably
conducting a hearing as required in Sec. 8 of committed by the accused which is to be charged
Rule 114? in the information. The authority of the judge to
determine what was the crime actually committed
Ans. Gross ignorance of the law and for by the accused comes in only after the trial on the
incompetence. merits. (Ucat)
The Bitoon Doctrine. Exhaustion of judicial EVIDENCE OF GUILT IS STRONG WHEN

remedies not required before filing Proof is evident or the presumption of guilt is
administrative charge against judge provided strong. The test is not whether the evidence
the complaint does not request that the establishes guilt beyond reasonable doubt but
respondent’s questioned order be nullified . whether it shows evident guilt or great
(EN BANC ,A.M. No. MTJ-05-1598. January 23, 2006 presumption of guilt.
LEONORA BITOON, FLORENCIO CANTADA, ANITA
MENDOZA, CAEL GLORIOSO and ATTY. MIRIAM S.
The court’s order granting or denying bail must
CLORINA-RENTOY, complainants, vs. JUDGE LORINDA B.
TOLEDO-MUPAS, MTC-Dasmariñas, Cavite, respondent). contain a summary of evidence of the prosecution
(P. vs. Judge Cabral, GR NO. 131909, Feb. 18,
1999).
The hearing should be summary or otherwise in
the discretion of the court. The burden of proving Note here that the evidence produced in the bail
that the guilt of the accused is strong lies within hearing automatically forms part of the evidence of
the prosecution (Comia vs.Antona, 337 SCRA the case on trial. This is different from the
656). evidence produced during the PI which is not
automatically reproduced on trial.
Q. What is the right of the accused (applicant)
during the bail hearing? Section 9. Amount of bail; guidelines. — The
judge who issued the warrant or granted the
Ans. The right to cross examination (of application shall fix a reasonable amount of bail
prosecution witnesses) and to introduce his own considering primarily, but not limited to, the
evidence in rebuttal. (Basco vs Rapatalo, A.M.No. following factors:
RTJ-96-1335, 5 March 1997, 269 SCRA 220,
225).
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
Q. Where the accused is charged with murder,
(c) Penalty for the offense charged;
would it be tenable for the court to grant his
(d) Character and reputation of the accused;
application for bail on a finding that the crime
(e) Age and health of the accused;
committed by the accused was only homicide?
(f) Weight of the evidence against the
Ans. No. It is a well-settled rule that the judge accused;
(g) Probability of the accused appearing at the
conducting a bail hearing (preliminary
trial;
investigation during the time when judges of the
(h) Forfeiture of other bail;
town courts were not yet divested of such
(i) The fact that accused was a fugitive from
authority effective Oct. 3, 2005) has no legal
justice when arrested; and
authority to determine the character of the crime.
(j) Pendency of other cases where the
The only authority of the judge during the bail
accused is on bail.
hearing is to determine whether the evidence of
guilt is strong, but he has no authority to reduce or
change the crime charged in order to justify the Excessive bail shall not be required. (9a)
grant of bail to the accused. (Depamaylo vs
Brotarlo, A.M. No. MTJ-92-731, 29 Nov. 1996, 265 NOTE: But, at the bottom, in bail fixing, the
SCRA 151, 157, cited in . EN BANC, A.M. No. principal factor considered, to the determination
MTJ-05-1598. January 23, 2006 A BITOON, of which most other factors are directed, is the
FLORENCIO CANTADA, ANITA MENDOZA, probability of the appearance of the accused, or

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of his flight to avoid punishment (Villaseñor vs. NOTE: Philippine residency is required of a
Abano, 21 SCRA 312). property bondsman. The reason for this is that
bondsmen in criminal cases, residing outside of
Section 10. Corporate surety. — Any domestic or the Philippines, are not within the reach of the
foreign corporation, licensed as a surety in processes of the court (Villaseñor vs. Abano,
accordance with law and currently authorized to supra).
act as such, may provide bail by a bond
subscribed jointly by the accused and an officer of Section 13. Justification of sureties. — Every
the corporation duly authorized by its board of surety shall justify by affidavit taken before the
directors. (10a) judge that he possesses the qualifications
prescribed in the preceding section. He shall
Section 11. Property bond, how posted. — A describe the property given as security, stating the
property bond is an undertaking constituted as nature of his title, its encumbrances, the number
lien on the real property given as security for the and amount of other bails entered into by him and
amount of the bail. still undischarged, and his other liabilities. The
court may examine the sureties upon oath
concerning their sufficiency in such manner as it
Within ten (10) days after the approval of the
may deem proper. No bail shall be approved
bond, the accused shall cause the annotation of
unless the surety is qualified. (13a)
the lien on the certificate of title on file with the
Register of Deeds if the land is registered, or if
unregistered, in the Registration Book on the PURPOSE
space provided therefor, in the Registry of Deeds To enable the judge to determine whether or not
for the province or city where the land lies, and on the surety possesses the qualification to act as
the corresponding tax declaration in the office of such, especially his financial worth.
the provincial, city and municipal assessor
concerned. The justification being under oath, any falsity
introduced thereto by the surety would render him
liable for perjury
Within the same period, the accused shall submit
to the court his compliance and his failure to do so
shall be sufficient cause for the cancellation of the Section 14. Deposit of cash as bail. — The
property bond and his re-arrest and detention. accused or any person acting in his behalf may
(11a) deposit in cash with the nearest collector or
internal revenue or provincial, city, or municipal
treasurer the amount of bail fixed by the court, or
Section 12. Qualifications of sureties in
recommended by the prosecutor who investigated
property bond. — The qualification of sureties in
or filed the case. Upon submission of a proper
a property bond shall be as follows:
certificate of deposit and a written undertaking
showing compliance with the requirements of
(a) Each must be a resident owner of real section 2 of this Rule, the accused shall be
estate within the Philippines; discharged from custody. The money deposited
shall be considered as bail and applied to the
(b) Where there is only one surety, his payment of fine and costs while the excess, if any,
real estate must be worth at least the shall be returned to the accused or to whoever
amount of the undertaking; made the deposit. (14a)
(c) If there are two or more sureties, each Section 15. Recognizance. — Whenever allowed
may justify in an amount less than that by law or these Rules, the court may release a
expressed in the undertaking but the person in custody to his own recognizance or that
aggregate of the justified sums must be of a responsible person. (15a)
equivalent to the whole amount of bail
demanded. RECOGNIZANCE
This refers to an obligation of record, entered into
In all cases, every surety must be worth the before some court or officer authorized to take it
amount specified in his own undertaking over and with a condition to do some particular act, the
above all just debts, obligations and properties most usual condition in criminal cases being the
exempt from execution. (12a) appearance of the accused on trial.

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NOTE: There may be a case where the accused UNDER THE REVISED RULES OF SUMMARY
is released on his own recognizance, which PROCEDURE
means that he has become his own jailer. GR: NO BAIL
EXCEPTIONS:
Section 16. Bail, when not required; reduced 1. Where a warrant of arrest is issued for
bail or recognizance. — No bail shall be required failure to appear when required by the
when the law or these Rules so provide. court;
2. When accused:
When a person has been in custody for a period  Is a recidivist;
equal to or more than the possible maximum  Is a fugitive from justice;
imprisonment prescribe for the offense charged,  Is charged with physical injuries;
he shall be released immediately, without  Does not reside in the place
prejudice to the continuation of the trial or the where the violation of the law or
proceedings on appeal. If the maximum penalty to ordinance is committed;
which the accused may be sentenced is destierro,  Has no known residence.
he shall be released after thirty (30) days of
preventive imprisonment.
A person in custody for a period equal to or more Section 17. Bail, where filed. —
than the minimum of the principal penalty
prescribed for the offense charged, without (a) Bail in the amount fixed may be filed
application of the Indeterminate Sentence Law or with the court where the case is pending,
any modifying circumstance, shall be released on or in the absence or unavailability of the
a reduced bail or on his own recognizance, at the judge thereof, with any regional trial judge,
discretion of the court. (16a) metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge in the
NOTE: The first paragraph of this section is province, city, or municipality. If the
substantially from the last par. of art. 29, RPC. accused is arrested in a province, city, or
municipality other than where the case is
RELEASED WITHOUT BAIL pending, bail may also be filed with any
regional trial court of said place, or if no
1. Offense charged is violation of an judge thereof is available, with any
ordinance, light felony or a criminal metropolitan trial judge, municipal trial
offense, the imposable penalty wherefore judge, or municipal circuit trial judge
does not exceed 6 months and/or a fine of therein.
2,000 under RA 6036;
2. Where the accused has applied for (b) Where the grant of bail is a matter of
probation and before the same has been discretion, or the accused seeks to be
resolved but no bail was filed or the released on recognizance, the application
accused is incapable of filing one, in may only be filed in the court where the
which case he may be released on case is pending, whether on preliminary
recognizance; investigation, trial, or on appeal.
3. In case of a youthful offender held for
physical or mental examination, trial, or (c) Any person in custody who is not yet
appeal, if unable to furnish bail and under charged in court may apply for bail with
the circumstances under PD 603 as any court in the province, city, or
amended (this is already modified by RA municipality where he is held. (17a)
9344);
4. Cases falling under art. 29 last par., RPC.
NOTE: As an addition, (d) if the decision
of the trial court convicting the accused
changed the nature of the offense from
ON REDUCED BAIL OR ON HIS OWN
non-bailable to bailable, the application for
RECOGNIZANCE
bail can only be filed and resolved by the
appellate court (sec. 5, Rule114).
1. When had already served the minimum
term, without applying the provisions of
the ISL and the modifying circumstances; Bail; Application; Venue (2002)

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If an information was filed in the RTC-Manila of guilt appears to the court, be required to give
charging D with homicide and he was arrested in bail in the amount fixed, or in lieu thereof,
Quezon City, in what court or courts may he apply for committed to custody. (20a)
bail? Explain. (3%)
SUGGESTED ANSWER: NOTE: Where the offense is bailable as a matter
D may apply for bail in the RTC-Manila where the of right, the mere probability that the accused will
information was filed or in the RTC-Quezon City escape, or even if he had previously escaped from
where he was arrested, or if no judge, thereof is detention, does not deprive him of his right to bail.
available, with any metropolitan trial judge, municipal The remedy is to INCREASE the amount of bail,
trial judge or municipal circuit trial judge therein. (Rule provided such amount would not be excessive (Sy
114, sec. 17). Guan vs. Amparo, 79 Phil. 670).
Section 21. Forfeiture of bond. — When the

Section 18. Notice of application to prosecutor. presence of the accused is required by the court
— In the application for bail under section 8 of this or these Rules, his bondsmen shall be notified to
Rule, the court must give reasonable notice of the produce him before the court on a given date and
hearing to the prosecutor or require him to submit time. If the accused fails to appear in person as
his recommendation. (18a) required, his bail shall be declared forfeited and
the bondsmen given thirty (30) days within which
NOTE: Such notice is necessary because the to produce their principal and to show cause why
burden of proving that the evidence of guilt is no judgment should be rendered against them for
strong is on the prosecution and that the the amount of their bail. Within the said period, the
discretion of the court in admitting the accused bondsmen must:
to bail can only be exercised after the fiscal has
been heard regarding the nature of the evidence (a) produce the body of their principal or
in is possession (P. vs. Raba, 130 Phil. 384). give the reason for his non-production;
and
Section 19. Release on bail. — The accused
must be discharged upon approval of the bail by (b) explain why the accused did not
the judge with whom it was filed in accordance appear before the court when first
with section 17 of this Rule. required to do so.
Whenever bail is filed with a court other than Failing in these two requisites, a judgment shall be
where the case is pending, the judge who rendered against the bondsmen, jointly and
accepted the bail shall forward it, together with the severally, for the amount of the bail. The court
order of release and other supporting papers, to shall not reduce or otherwise mitigate the liability
the court where the case is pending, which may, of the bondsmen, unless the accused has been
for good reason, require a different one to be filed. surrendered or is acquitted. (21a)
(19a)
NOTE: The 30-day period granted to the
NOTE: Once the accused has been admitted to bondsmen to comply with the 2 requisites for the
bail, he is entitled to immediate release from lifting of the order of forfeiture cannot be
custody. An officer who fails or refuses to shortened by the court but may be extended for
release him from detention notwithstanding the good cause shown.
approval by the proper court of his bail bond
may be held liable under art. 126, RPC for
ORDER OF ORDER OF
“delaying release”.
FORFEITURE CONFISCATION
Is conditional and Is not independent of
Section 20. Increase or reduction of bail. — interlocutory, there the order of forfeiture. It
After the accused is admitted to bail, the court being something more is a judgment
may, upon good cause, either increase or reduce to be done, such as the ultimately determining
its amount. When increased, the accused may be production of the the liability of the
committed to custody if he does not give bail in the accused within 30-days surety. Therefore final
increased amount within a reasonable period. An as provided by the and executory at once
accused held to answer a criminal charge, who is rules. Not appealable
released without bail upon filing of the complaint
or information, may, at any subsequent stage of
the proceedings and whenever a strong showing

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Section 22. Cancellation of bail. — Upon WITHDRAWAL OR APPLICATION FOR

application of the bondsmen, with due notice to PROBATION
the prosecutor, the bail may be cancelled upon A. Allowed—if the application for probation is
surrender of the accused or proof of his death. unintelligently (not voluntary) made.
Application was filed only by a counsel de
The bail shall be deemed automatically cancelled oficio.
upon acquittal of the accused, dismissal of the B. Not Allowed—application was done
case, or execution of the judgment of conviction. intelligently (voluntary).
Application filed by the counsel de parte.
In all instances, the cancellation shall be without
The withdrawal must, however be within the 15
prejudice to any liability on the bond. (22a)
day period of filing the appeal(Ucat).
NOTE: Judicial Order is necessary in order to
Section 25. Court supervision of detainees. —
relieve the bondsmen from the obligation
The court shall exercise supervision over all
contracted by them by virtue of their bond.
persons in custody for the purpose of eliminating
unnecessary detention. The executive judges of
Section 23. Arrest of accused out on bail. — For the Regional Trial Courts shall conduct monthly
the purpose of surrendering the accused, the personal inspections of provincial, city, and
bondsmen may arrest him or, upon written municipal jails and their prisoners within their
authority endorsed on a certified copy of the respective jurisdictions. They shall ascertain the
undertaking, cause him to be arrested by a police number of detainees, inquire on their proper
officer or any other person of suitable age and accommodation and health and examine the
discretion. condition of the jail facilities. They shall order the
segregation of sexes and of minors from adults,
An accused released on bail may be re-arrested ensure the observance of the right of detainees to
without the necessity of a warrant if he attempts to confer privately with counsel, and strive to
depart from the Philippines without permission of eliminate conditions inimical to the detainees.
the court where the case is pending. (23a)
In cities and municipalities to be specified by the
NOTE: The proper court may issue a hold- Supreme Court, the municipal trial judges or
departure order or direct the Department of municipal circuit trial judges shall conduct monthly
Foreign Affairs to cancel the passport of the personal inspections of the municipal jails in their
accused. This is a case of valid restriction of the respective municipalities and submit a report to
person’s right to travel so that he may be dealt the executive judge of the Regional Trial Court
with in accordance with the law (Silverio vs. CA, having jurisdiction therein.
195 SCRA 760).
A monthly report of such visitation shall be
Section 24. No bail after final judgment; submitted by the executive judges to the Court
exception. — No bail shall be allowed after the Administrator which shall state the total number of
judgment of conviction has become final. If before detainees, the names of those held for more than
such finality, the accused has applies for thirty (30) days, the duration of detention, the
probation, he may be allowed temporary liberty crime charged, the status of the case, the cause
under his bail. When no bail was filed or the for detention, and other pertinent information.
accused is incapable of filing one, the court may (25a)
allow his release on recognizance to the custody
of a responsible member of the community. In no The employment of physical,
case shall bail be allowed after the accused has psychological, or degrading punishment
commenced to serve sentence. (24a) against any prisoner or detainee or the
use of substandard or inadequate penal
NOTE: The application for probation must be filed facilities under sub-human conditions shall
within the period of perfecting an appeal, such be dealt with by law (art. III, sec. 19, par.2,
filing operates as a waiver of the right to appeal 1987 Constitution).
(sec. 4 PD 968 as amended). See also the Anti-Torture Act.
BONUS NOTES: Section 26. Bail not a bar to objections on

illegal arrest, lack of or irregular preliminary
investigation. — An application for or admission

________________________________________________________________________________________________
to bail shall not bar the accused from challenging (a) To be presumed innocent until the
the validity of his arrest or the legality of the contrary is proved beyond reasonable
warrant issued therefor, or from assailing the doubt.
regularity or questioning the absence of a
preliminary investigation of the charge against (b) To be informed of the nature and
him, provided that he raises them before entering cause of the accusation against him.
his plea.
(c) To be present and defend in person
The court shall resolve the matter as early as and by counsel at every stage of the
practicable but not later than the start of the trial of proceedings, from arraignment to
the case. (n) promulgation of the judgment. The
accused may, however, waive his
presence at the trial pursuant to the
stipulations set forth in his bail, unless his
RULE 115 presence is specifically ordered by the
court for purposes of identification. The
Rights of Accused absence of the accused without justifiable
cause at the trial of which he had notice
shall be considered a waiver of his right to
NOTE: This Rule enumerates the rights of a be present thereat. When an accused
person accused of an offense, which are both under custody escapes, he shall be
constitutional as well as statutory, save the right to deemed to have waived his right to be
appeal which is purely statutory in character. present on all subsequent trial dates until
custody over him is regained. Upon
These rights are heavily and thoroughly motion, the accused may be allowed to
discussed in the CONSTITUTIONAL LAW defend himself in person when it
subject. sufficiently appears to the court that he
can properly protect his right without the
Section 14, Art. III, 1987 Constitution. assistance of counsel.
1. No person shall be held to answer for a (d) To testify as a witness in his own
criminal offense without due process of behalf but subject to cross-examination on
law. matters covered by direct examination.
His silence shall not in any manner
2. In all criminal prosecutions, the accused
prejudice him.
shall be presumed innocent until the
contrary is proved, and shall enjoy the (e) To be exempt from being compelled to
right to be heard by himself and counsel, be a witness against himself.
to be informed of the nature and cause of
the accusation against him, to have a (f) To confront and cross-examine the
speedy, impartial, and public trial, to witnesses against him at the trial. Either
meet the witnesses face to face, and to party may utilize as part of its evidence
have compulsory process to secure the the testimony of a witness who is
deceased, out of or can not with due
attendance of witnesses and the diligence be found in the Philippines,
production of evidence in his behalf. unavailable or otherwise unable to testify,
However, after arraignment, trial may given in another case or proceeding,
proceed notwithstanding the absence of judicial or administrative, involving the
the accused: Provided, that he has been same parties and subject matter, the
duly notified and his failure to appear is adverse party having the opportunity to
cross-examine him.
unjustifiable.
(g) To have compulsory process issued to
Section 1. Rights of accused at the trial. — In all secure the attendance of witnesses and
criminal prosecutions, the accused shall be production of other evidence in his behalf.
entitled to the following rights:

________________________________________________________________________________________________
(h) To have speedy, impartial and public information. To convict him of an offense other
trial. than that charged in the complaint or information
would be a violation of this constitutional right (P
(i) To appeal in all cases allowed and in vs. Ortega, 276 SCRA 166).
the manner prescribed by law. (1a)
When a person is charged in a complaint with a
RIGHTS OF THE ACCUSED AT THE TRIAL: crime and the evidence does not show that he is
guilty thereof, but does show that he is guilty of
some other crime or lesser offense, the court may
A. TO BE PRESUMED INNOCENT
sentence him for such lesser offense, PROVIDED
the lesser offense is a cognate offense and is
In all criminal prosecution, the accused shall be
included or in the complaint with the court.
presumed innocent until the contrary is proved
beyond reasonable doubt.
The qualifying or aggravating (ordinary or special)
must be ALLEGED and PROVED in order to be
REASONABLE DOUBT
considered by the court.
It is that doubt engendered by an investigation of
the whole proof and an ability, after such
C. TO BE PRESENT AND DEFEND IN PERSON
investigation, to let the mind rest easy upon
AND BY COUNSEL AT EVERY STAGE OF THE
certainty of guilt.
PROCEEDING
NOTE: Absolute certainty of guilt is not demanded
Presence of the accused is required only:
by law to convict of any criminal charge but moral
1. During arraignment (sec. 1b, Rule 116);
certainty is required, and this certainty is required
2. Promulgation of sentence, except when
as to every proposition of proof requisite to
the conviction is for a light offense, in
constitute the offense.
which case, it may be pronounced in the
presence of his counsel or representative;
REASON: The slightest possibility of an innocent
3. When ordered by the court for purposes of
man being convicted for an offense he has not
identification.
committed would be far dreadful than letting a
guilty person go unpunished for a crime he may
Not applicable in the SC and CA—The law
have perpetrated (P. vs. Lagmay, 306 SCRA 157).
securing to an accused the right to be present at
every stage of the proceedings has no application
EQUIPOISE RULE
to the proceedings before the CA and the SC nor
Where the evidence of the parties in a criminal
to the entry and promulgation of their judgments.
case are evenly balanced, the constitutional
The defendant need not be present in the court
presumption of innocence should tilt in favor of the
during the hearing of the appeal (sec. 9,Rule 124).
accused who must be acquitted.
Accused may waived his right to be present during
The Legislature may enact that when certain facts
the trial. However, his presence may be compelled
have been proven they shall be prima facie
when he is to be identified (Aquino, Jr. vs. Military
evidence of the existence of the guilt of the
Commission, 63 SCRA 546).
accused and shift the burden of proof provided
that there is a rational connection between the
He may be ordered arrested by the court for non-
facts proved and the ultimate fact presumed so
appearance upon summons.
that an inference of the one from proof of the other
is not unreasonable and arbitrary experience (P.
However, when he admits in open court that he is
vs. Mingoa, 92 Phil. 856).
the person named defendant during the
arraignment, his presence for purposes of
B. TO BE INFORMED OF THE NATURE AND
identification may not be necessary. Besides,
CAUSE OF ACCUSATIONS AGAINST HIM
when he is on bail, pictures submitted with the bail
application may be used for purposes of
This right requires that the information should
identification (Ucat).
state the facts and the circumstances constituting
the crime charged in such a way that a person of
EFFECTS OF WAIVER OF THE RIGHT TO
common understanding may easily comprehend
APPEAR BY THE ACCUSED:
and be informed of what it is all about.
1. Waiver of the right to present evidence;
2. Prosecution can present evidence if
An accused cannot be convicted of an offense
accused fails to appear;
unless it is clearly charged in the complaint or
________________________________________________________________________________________________
3. The court can decide even without the Court (as of 2004 the Court of Appeals has the jurisdiction to
accused’s evidence. such review) to review the decision of conviction
sentencing the accused to death, because he is entitled
TRIAL IN ABSENTIA to an automatic review of the death sentence. (Sees.
It is important to state that the provision of the 3[e] and 10, Rule 122, Rules of Criminal Procedure; People
Constitution authorizing trial in absentia of the vs. Espargas, 260 SCRA 539.)
accused in case of his non-appearance AFTER
ARRAIGNMENT despite due notice simply means
that he waives his right to meet the witnesses face An escapee who has been duly tried in absentia
to face among others. waives his right to present evidence on his own
behalf and to confront and cross-examine
Such waiver of the accused does not mean a witnesses who testified against him (Gimenez vs.
release of the accused from his obligation under Nazareno, 160 SCRA 1).
the bond to appear in court whenever so required.
The accused may waive his right but not his duty One who escapes from prison or confinement:
or obligation to the court. 1. Losses standing in court;
2. Deemed to have waived any right to seek
REQUISITES FOR TRIAL IN ABSENTIA relief from the court, unless he surrenders
1. The accused has been arraigned; or submits to the jurisdiction of the court;
2. He has been duly notified of the trial; 3. Beyond the pale and protection of the law.
3. His failure to appear is unjustified.
D. RIGHT TO COUNSEL
Trial; Trial in Absentia (2010) No. XIX. (1) Even the most educated or intelligent man may
Enumerate the requisites of a "trial in not have skill in the science of the law, particularly
absentia " (2%) and a "promulgation of in the rules of procedure Without the aid of
judgment in absentia" (2%). SUGGESTED counsel, a person may be convicted not because
ANSWER: The requisites of a valid trial in he is guilty but because he does not know how to
absentia are: (1) accused‟s arraignment; establish his innocence. (P. vs. Holgado, 86
(2) his due notification of the trial; (3) his Phil.752).
unjustifiable failure to appear during trial
(Bernardo vs. People, G.R. No. 166980, PURPOSE: To balance the discrepancy between
April 4, 2007). The requisites for a valid our adversarial system wherein the accused is
promulgation of judgment are: (a) A valid faced with the awesome prosecution machinery of
notice of promulgation of judgment; (b) the state.
Said notice was duly furnished to the
accused personally or thru counsel; (c) The right covers the period beginning from
Accused failed to appear on the scheduled custodial investigation, well into the rendition of
judgment and even appeal (P. vs. Serzo, 274
date of promulgation of judgment despite
SCRA 553).
due notice; (d) Such judgment be recorded
in the criminal docket; (e) Copy of said
judgment had been duly served upon the
CUSTODIAL INVESTIGATION
accused or his counsel.
It is the questioning by law enforcement officers of
a suspect taken into custody or otherwise
Trial; Trial in Absentia; Automatic Review of Conviction
deprived of is freedom of action in a significant
(1998)
way. It includes the practice of issuing an
1. What are the requisites of a trial in absentia? [2%]
“invitation” to a person who is investigated in
2. If an accused who was sentenced to death escapes, connection with an offense he is suspected to
is there still a legal necessity for the Supreme Court to have committed (RA 7438).
review the decision of SUGGcoEnSvTiEcDti oAnN?S
[W3%ER] :
1. The requisites of trial in absentia are: (a) the accused Right to counsel means reasonably effective
has already been arraigned; (b) he has been duly counsel
notified of the trial; and (c) his failure to appear is If during the investigation the assisting lawyer left,
unjustifiable. (Sec. 14 [2], Article III. Constitution; Parada or come and goes, the statement signed by the
vs. Veneracion, 269 SCRA 371 [1997].) accused is still inadmissible because the lawyer
2. Yes, there is still a legal necessity for the Supreme should assist his client from the time the
confessant answers the first question asked by the

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investigating officer until the signing of the extra- A denial of the defendant’s right to testify in his
judicial confession (P. vs. Morial363 SCRA 96). own behalf would constitute an unjustifiable
violation of his constitutional right (P. vs. Santiago,
NOTE: The right to counsel and the right to 46 Phil. 734).
remain silent do not cease even after the criminal
complaint/information has already been filed in Note: If the accused testifies, he may be cross-
court AS LONG AS he is still in custody. examined but only on matters covered by his
Basis: these are oftentimes the critical stages of direct examination, unlike an ordinary witness who
the pre-trial proceedings. can be cross-examined as to any matter stated in
the direct examination or connected therewith
IMPORTANT: The duty of the court to appoint a (sec. 6, Rule 132). His failure to testify is not taken
counsel de oficio when the accused has no legal against him but failure to produce evidence in his
counsel of choice and desires to employ the behalf is considered against him (US vs. Bay, 97
services of one is MANDATORY only at the time Phil. 495).
of the arraignment (sec. 6, Rule116).
An accused cannot be compelled to take the
 Right to counsel may be invoked on witness stand unlike an ordinary witness for the
appeal; reason than the sole purpose of putting him on the
 Violation of right to counsel is a ground for stand is precisely to incriminate him.
New Trial;
When the accused was assisted by a fake lawyer, GR: Silence of the accused shall not be taken
he is entitled to a new trial. against him.
Exception: When the prosecution has already
An order dismissing an appeal was set aside established a prima facie case against the
when the late filing is due to the fact that the accused.
lawyer is fake.
F. RIGHT AGAINST SELF-INCRIMINATION
Note: however, in the case of P. vs. Elesterio,
although the accused was defended by a fake AVAILABILITY
lawyer, it is observed that he has chosen the It is available not only in criminal prosecution but
lawyer and that his representation does not also to other government proceedings including
change the fact that he was carrying an civil action, and administrative or legislative
unlicensed firearm. investigations.
RIGHT TO COUNSEL DE PARTE IS NOT The accused is protected under this rule from
ABSOLUTE questions which tend to incriminate him that is,
It cannot be used to delay the speedy which may subject him to a penal liability.
administration of justice. Hence, he cannot
successfully ask the service of a lawyer who he Note: The right may be waived by failure to invoke
cannot afford or is under conflict of interest. the privilege at the proper time, that is, AFTER the
incriminating question is asked and BEFORE his
Admissibility; Admission of Guilt; Requirements (2006) answer. The lawyer must be very vigilant under
What are the requirements in order that an admission this situation. The client presumably does not
of guilt of an accused during a custodial investigation know that an incriminating question is shot at him.
be admitted in evidence? (2.5%) The lawyer must manifest to the court his intention
SUGGESTED ANSWER: to explain to the client that the question might
1 The admission must be voluntary. incriminate him (Ucat).
2 The admission must be in writing.
3 The admission must be made with the assistance of SCOPE
competent, independent counsel. GR: The privilege of the accused to be exempt
4. The admission must be express (People v. Prinsipe, from testifying as a witness involves a prohibition
G.R. No. 135862, May 2, 2002). against testimonial compulsion only and the
5. In case the accused waives his rights to silence and production of the accused of incriminating
to counsel, such waiver must be in writing, executed documents and articles demanded from him (US
with the assistance of competent, independent counsel. vs. Tan Teng, 23 Phil. 145).
Exceptions: Immunity statutes such as:

E. TESTIFY AS WITNESS IN HIS OWN BEHALF a) RA 1379—Forfeiture of illegally obtained
wealth;

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b) RA 749—Bribery and Graft cases. himself to a blood test to determine whether he has
HIV under Sec. 17(a) of R.A. No, 8054. His rights to
RIGHT OF THE ACCUSED VS. RIGHT OF AN be presumed innocent of the crime charged, to privacy
ORDINARY WITNESS and against self-incrimination are not violated by such
The ordinary witness may be compelled to take compulsory testing. In an action in which the physical
the witness stand and claim the privilege as each condition of a party is in controversy, the court may
question requiring an incriminating answer is shot order the accused to submit to a physical examination.
at him, while an accused may altogether refuse to (Sec. 1, Rule 28, 1997 Rules of Civil Procedure)(Look for citation of
take the witness stand and refuse to answer any latest case, in 2004)
and all questions. b) If the result of such test shows that he is HIV
positive, and the prosecution offers such result in
NOTE; However, if the accused testifies in his evidence to prove the qualifying circumstance under
own behalf, he may be cross-examined as any the Information for qualified rape, should the court
reject such result on the ground that it is the fruit of a
other witness. He may not on cross-examination
poisonous tree? Explain.
refuse to answer any question on the ground that SUGGESTED ANSWER:
the answer might incriminate him for the crime Since the rights of the accused are not violated because
which he is charged, but he may refuse to answer the compulsory testing is authorized by the
any question incriminating him for an offense law, the result of the testing cannot be considered to be the
distinct that for which he is charged. fruit of a poisonous tree and can be offered in evidence to
prove the qualifying circumstance under the information for
BODY CAN BE SUBMITTED TO EXAMINATION qualified rape under R.A. No. 8353. The fruit, of the
(NO VIOLATION AGAINST SELF poisonous tree doctrine refers to that rule of evidence that
INCRIMINATION): excludes any evidence which may have been derived or
1. Fingerprint; acquired from a tainted or polluted source. Such evidence is
2. Photograph; inadmissible for having emanated from spurious origins. The
3. Measurement; doctrine, however, does not apply to the results obtained
4. Stand; pursuant to Sec. 1, Rule 28, 1997 Rules of Civil Procedure,
as
5. Assume position;
it does not contemplate a search within the moaning of the
6. Blood examination; law. (People v. Montilla, G.R. No. 123872, January 30,1998)
7. Pregnancy test;
8. Wear particular dress;
Note: To impose mandatory drug testing on the
9. Drug test (sec. 36, RA 9165); (Already
accused is a blatant attempt to harness a medical
removed under new law and
test as a tool for criminal prosecution, contrary to
jurisprudence)
the stated objectives of RA 9165. Drug testing in
10. Alcoholic breath;
this case would violate a persons' right to privacy
11. DNA;
guaranteed under Sec. 2, Art. III of the
12. Hair samples;
Constitution. Worse still, the accused persons are
13. Paraffin test;
veritably forced to incriminate themselves.
14. Ultra-violet examination;
Declared Unconstitutional. (ATTY.MANUEL J.
15. Medical examination.
LASERNA, JR., vs.
DANGEROUS DRUGS BOARD and PHILIPPINE
Rights of the Accused; Validity; HIV Test (2005)
DRUG ENFORCEMENT AGENCY, G.R. No.
Under Republic Act No. 8353, one may be charged with
andfound guilty of qualified rape if he knew on or before 158633,November 3, 2008)
thecommission of the crime that he is afflicted with Human
Immuno-Deficiency Virus (HIV)/Acquired Admissibility; Evidence from Invasive and
ImmuneDeficiency Syndrome (AIDS) or any other Involuntary Procedures (2010) No. XIII.
sexuallytransmissible disease and the virus or disease is Policemen brought Lorenzo to the Philippine
transmitted tothe victim. Under Section 17(a) of Republic General Hospital (PGH) and requested one of
Act No. 8504 the court may compel the accused to submit its surgeons to immediately perform surgery
himself to a blood test where blood samples would be on him to retrieve a packet of 10 grams of
extracted from his veins todetermine whether he has HIV. shabu which they alleged to have swallowed
(8%)
Lorenzo. Suppose the PGH agreed to, and did
a) Are the rights of the accused to be presumed
perform the surgery is the package of shabu
innocent of the crime charged, to privacy, and
admissible in evidence? Explain. (3%)
against self-incrimination violated by such
compulsory testing? SUGGESTED ANSWER: No, the package of
Explain. shabu extracted from the body of Lorenzo
SUGGESTED ANSWER: is not admissible in evidence because it
No. The court may compel the accused to submit was obtained through surgery which

________________________________________________________________________________________________
connotes forcible invasion into the body because the accused is on the witness
of Lorenzo without his consent and absent stand.
due process. The act of the policemen and SUGGESTED ANSWER: (E), Section 17,
the PGH surgeon involved, violate the Article III of the 1987 Constitution
fundamental rights of Lorenzo, the provides that no person shall be compelled
suspect. ALTERNATIVE ANSWER: because to be a witness against himself. The
the constitutional right against self- essence of the right against self-
incriminating evidence exists. In the past, incrimination is testimonial compulsion,
Supreme Court has already declared many that is, the giving of evidence against
invasive and involuntary procedures (i.e himself through a testimonial act (People
examination of women‟s genitalia, vs. Casinillo, 213 SCRA 777 [1992]).
expulsion of morphine from one‟s mouth,
DNA testing) as constitutionally sound. In Beltran vs. Samson, G.R. No. 32025,
September 23, 1929, the Supreme Court
held that for the purposes of the
constitutional privilege there similarity
GR: Accused cannot be required to produce between on who is compelled to produce a
documents that may incriminate him. document and one who is compelled to
Exception: When there is a specific provision of furnish a specimen of his handwriting, for
law directing a person to produce such document in both cases, the witness is required to
even if it may incriminate him. furnish evidence against himself. In this
Example: case, the purpose of the fiscal, who
1. the Statement of Assets and Liabilities of requested the handwriting of the witness,
Public officers; was to compare and determine whether
2. books of accounts of corporations under the accused wrote the documents believed
police and taxing powers of the state. to be falsified. Thus, the right against self-
incrimination may be invoked by a
Some examples of incriminating compulsions: witness who was compelled to furnish his
1. production of handwriting specimen handwriting for comparison.
2. Forced re-enactment (P. vs. Olvis);
3. Signing a receipt of the seized articles. In Gonzales vs. Secretary of Labor, the
Supreme Court held that the privilege
against self-incrimination must be
invoked at the proper time, and the
Bar Exam Question 2013 proper time to invoke it is when a
XVIII. Maria was accused of libel. While
question calling for an incriminating
Maria was on the witness stand, the
answer is propounded. This has to be so,
prosecution asked her to write her name and because before a question is asked there
to sign on a piece of paper, apparently to
would be no way of telling whether the
prove that she authored the libelous information to be elicited from the
material. Maria objected as writing and witness is self-incriminating or not. As
signing her name would violate her right
stated in Jones on Evidence (Vol. 6, pp.
against self-incrimination. Was Maria’s 4926-4927), a person who has been
objection proper? (1%) (A) No, she can be summoned to testify “cannot decline to
cross examined just like any other witness
appear, nor can he decline to be sworn as
and her sample signature may be taken to a witness” and “no claim of privilege can
verify her alleged authorship of the libelous be made until a question calling for a
statements. (B) No, her right against self- criminating answer is asked; at that time,
incrimination is waived as soon as she and generally speaking, at that time only,
became a witness. (C) No, this privilege may the claim of privilege may properly be
be invoked only by an ordinary witness and imposed‟ (Bagadiong vs. Gonzales, G.R.
not by the accused when she opts to take the
No. L-25966, December 28, 1979, De
witness stand. (D) The objection was Castro, J.).
improper under all of A, B, and C. (E) The
objection was proper as the right to self-
ALTERNATIVE ANSWER: (B), The right
incrimination is a fundamental right that against self-incrimination may be waived
affects liberty and is not waived simply expressly or impliedly. Thus, when Maria
took the witness stand, she is deemed to

________________________________________________________________________________________________
have waived her right against self-

incrimination. H. RIGHT TO COMPULSORY PROCESS TO
SECURE ATTENDANCE OF WITNESSES.
G. RIGHT TO CONFRONT AND CROSS- Section 14, Rule 119. Bail to secure appearance of
EXAMINE THE WITNESS AGAINST HIM AT material witness. — When the court is satisfied,
TRIAL upon proof or oath, that a material witness will
not testify when required, it may, upon motion of
CONFRONTATION either party, order the witness to post bail in such
It is the fact of setting a witness face to face with sum as may be deemed proper. Upon refusal to
the accused so that the latter may make any post bail, the court shall commit him to prison
objection he has to the witness, and the witness until he complies or is legally discharged after his
may indentify the accused, and this must take testimony has been taken.
place in the presence of the court having
jurisdiction to permit the privilege of cross-
examination. Bail; Witness Posting Bail (1999)
May the Court require a witness to post bail? Explain
PURPOSE: The primary purpose is to secure the your answer. (2%)
SUGGESTED ANSWER:
opportunity of cross-examination and the
Yes. The court may require a witness to post bail if he
secondary purpose is to enable the judge to
is a material witness and bail is needed to secure his
observe the demeanor of witnesses.
appearance. The rules provide that when the court is
Notes: Testimony of a witness who is not satisfied, upon proof or oath, that a material witness
submitted for cross-examination is not admissible will not testify when required, it may, upon motion of
in evidence. The affidavits of witnesses who are either party, order the witness to post bail in such sum
not presented during the trial—thus, are not as may be deemed proper. Upon refusal to post bail,
subjected to cross-examination—are inadmissible the court shall commit him to prison until he complies
because they are hearsay (P. vs. Quidato, GR or is legally discharged after his testimony is taken. (Sec.
6, Rule 119)
NO. 117401, Oct. 1, 1998).
Exception to the right of confrontation: REQUISITES FOR COMPELLING THE

ATTENDANCE OF WITNESSES AND THE
PRODUCTION OF EVIDENCE:
Section 47, Rule 130. Testimony or
1. The evidence is really material;
deposition at a former proceeding. — The 2. The accused (party) is not guilty of neglect
testimony or deposition of a witness in previously obtaining the production of
deceased or unable to testify, given in a such evidence;
former case or proceeding, judicial or 3. The evidence will be available at the time
administrative, involving the same parties desired;
4. No similar evidence can be obtained. (P.
and subject matter, may be given in
vs. Chua, GR NO. 128280, April 4, 2001).
evidence against the adverse party who
had the opportunity to cross-examine See also the topic on Subpoenas.
him.
I. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC
Note: Identification was annulled in a case where TRIAL
there was lack of confrontation.
The right of confrontation may be waived SPEEDY TRIAL means a trial free from vexatious
capricious and oppressive delays.
Testimony of a witness who later on died
is admissible if the adverse party was The right to a speedy trial is intended to avoid
given the opportunity to cross-examine oppression and to prevent delay by imposing on
but failed to do so due to his own fault. the courts and on the prosecution an obligation to
proceed with reasonable dispatch.
Party must seasonably invoke the right to cross-
examination. Silence or failure to assert it is The courts, in determining whether the right of the
tantamount to renunciation. Counsel must move accused to a speedy trial has been denied should
for the cross-examination of the adverse party. consider such facts as:

________________________________________________________________________________________________
1. The length of time of delay; two (2) years. The numerous, unreasonable
2. The accused’s assertion or non-assertion postponements of the arraignment
of his right; demonstrate an abusive exercise of
3. Prejudice to the accused resulting from discretion (Lumanlaw v. Peralta, 482 SCRA
the delay. 396 [2006]). Arraignment of an accused
would not take thirty minutes of the
NOTE: There is NO violation of the right where the precious time of the court, as against the
delay is imputable to the accused (Solis vs. preventive imprisonment and deprivation
Agloro, 64 SCRA 370). of liberty of the accused just because he
FAILURE TO ASSERT MAY AMOUNT TO does not have the means to post bail
WAIVER OR ABANDONMENT OF THE RIGHT. although the crime charged is bailable.
Presumed waive if the repeated postponement is The right to a speedy trial is guaranteed
procured by the accused or his counsel. by the Constitution to every citizen
accused of a crime, more so when is under
REMEDIES OF THE ACCUSED WHEN HIS preventive imprisonment. L, in the given
RIGHT TO A SPEEDY TRIAL IS VIOLATED: case, was merely invoking his
1. He should ask for the trial of the case; constitutional right when a motion to
2. Motion to dismiss based on sec.14 of the dismiss the case was twice filed by his
Speedy Trial Act of 1998; counsel. The RTC is virtually enjoined by
3. Mandamus to compel the dismissal in the fundamental law to respect such right;
case the motion is denied; hence a duty. Having refused or neglected
4. Plus Habeas Corpus to obtain immediate to discharge the duty enjoined by law
freedom.
whereas there is no appeal nor any plain,
speedy, and adequate remedy in the
ordinary course of law, the remedy of
mandamus may be availed of.
RA 8493 SPEEDY TRIAL ACT OF 1998
PERIOD FOR THE ARRAIGNMENT OF THE

DUTY OF THE COURT AFTER ARRAIGNMENT
ACCUSED
OF THE ACCUSED
Within 30 days from the filing of the
information or from the date the accused
The court shall order a pre-trial conference to
appeared before the justice/judge/court in
consider the following:
which the charge is pending, whichever
1. Plea bargaining;
date last occurs.
2. Stipulation of facts;
3. Marking for identification of evidence of
Trial; Speedy Trial (2007) No.IX. L was
parties;
charged with illegal possession of shabu
4. Waiver of objections to the admissibility of
before the RTC. Although bail was allowable
evidence;
under his indictment, he could not afford to
5. Such other matter as will promote a fair
post bail, and so he remained in detention at
and expeditious trial.
the City Jail. For various reasons ranging
from the promotion of the Presiding Judge, to WHEN SHALL TRIAL COMMENCED AFTER
the absence of the trial prosecutor, and to the ARRAIGNMENT
lack of notice to the City Jail Warden, the Within 30 days from arraignment.
arraignment of L was postponed nineteen However, it may be extended but only:
times over a period of two years. Twice during 1. For 180 days for the first 12
that period, L’s counsel filed motions to calendar month period from
dismiss, invoking the right of the accused to effectivity of the law;
speedy trial. Both motions were denied by the 2. 120 days for the second 12 month
RTC. Can L file a petition for mandamus. period;
Reason briefly. SUGGESTED ANSWER: Yes, 3. 80 days for the 3rd 12 month
L can file a petition for mandamus to period.
enforce his constitutional right to a
speedy trial which was capriciously denied TIME LIMIT FOR TRIAL OF CRIMINAL CASES
to him. It shall not exceed 180 days from the first
There is absolutely no justification for day of trial.
postponing an arraignment of the accused However, this rule is not absolute.
nineteen (19) times and over a period of
________________________________________________________________________________________________
Exceptions: Note: But the judge can ask clarificatory

1. Those governed by the Rule on Summary questions to the accused. This is not only
Procedure; a right but duty of the judge who feels the
2. Where the penalty prescribed by law does need to elicit information to the end that
not exceed 6 months imprisonment or a justice will be served (P. vs. Vaynaco, GR
fine of 1,000 or both; NO. 126286, March 22, 1999).
3. Those authorized by the Chief Justice of  Where the judge where the case is
the SC. pending is previously the one who
prosecutes the case;
IMPARTIAL TRIAL  The judge of the case on appeal is the
Due process of law requires hearing before an judge (Promoted to higher court) who
impartial and disinterested tribunal, and that every rendered the judgment appealed from.
litigant is entitled to nothing less than the cold
neutrality of an impartial judge (Mateo, Jr. vs. PUBLIC TRIAL
Villaluz, 50 SCRA 180). It means one held openly or publicly. It is sufficient
that the relatives and friends who want to see the
Judicial Autonomy & Impartiality (2003) proceedings are given the opportunity to witness
In rendering a decision, should a court take into the proceedings.
consideration the possible effect of its verdict upon
the PURPOSE: So that the public will know that the
political stability and economic welfare of the nation? accused is fairly dealt with and not unjustly
4% condemned. This is intended to prevent possible
SUGGESTED ANSWER: abuses that may be committed against the
No, because a court is required to take into accused (Garcia vs. Domingo, 52 SCRA 143).
consideration only the legal issues and the evidence
admitted in the case. The political stability and EXCLUSION OF THE PUBLIC IS VALID WHEN:
economic welfare of the nation are extraneous to the 1. Evidence to be produced is offensive to
case. They can have persuasive influence but they are decency or public morals;
not the main factors that should be considered in 2. Upon motion of the accused (sec. 21,
deciding a case. A decision should be based on the law, Rule 119).
rules of procedure, justice and equity. However, in
exceptional cases the court may consider the political RULE ON TRIAL BY PUBLICITY
stability and economic welfare of the nation when The right of the accused to a fair trial is not
these incompatible to a free press. Pervasive publicity is
are capable of being taken into judicial notice of and not per se prejudicial to the right of the accused to
are a fair trial.
relevant to the case.
To warrant a finding of prejudicial publicity, there
Note: “Like Caesar’s wife, a judge must not only must be allegations and proof that the judges have
be pure BUT beyond suspicion” (Palang vs. Zosa, been unduly influenced, not simply that they might
58 SCRA 776). be by the barrage of publicity (P. vs. Teehankee,
NOTE: If the judge is partial or is suffering from 249 SCRA 54).
valid grounds for his inhibition, a motion for
inhibition must be made before the trial judge has An accused has a right to a public trial, but it is a
already made some pronouncement (judgment) right that belongs to him more than anyone else,
on the merits of the case. Hence a motion for where his life or liberty can be held critically in
inhibition after the judgment and denial of motion balance. A public trial is not synonymous with a
for reconsideration is untenable (P. vs. Lacson, L- PUBLICIZED TRIAL; it only implies that the court
149453, Oct. 7, 2003).(Ucat). doors must be open to those who wish to come,
sit in the available seats, conduct themselves with
REASON: A party may not be allowed to decorum, and observe trial process(RE: Request
speculate upon the action of the court. for the Live TV Coverage of the Trial of Former
President Joseph Estrada, AM NO. 01-4-03-SC,
SOME CASES SHOWING PARTIALITY OF THE June 29, 2001).
JUDGE:
 When the trial judge personally conducted J. RIGHT TO APPEAL ON ALL CASES
the cross-examination of the accused ALLOWED BY LAW AND IN THE MANNER
(Imelda Marcos vs. Sandiganbayan). PRESCRIBED BY LAW

________________________________________________________________________________________________
(b) The accused must be present at the

The right to appeal is purely of statutory origin. It is arraignment and must personally enter his plea.
not a matter of absolute right, independently of Both arraignment and plea shall be made of
constitutional or statutory provisions allowing such record, but failure to do so shall not affect the
appeal. validity of the proceedings.
WAIVER OF THE RIGHT TO APPEAL (c) When the accused refuses to plead or makes a
The right to appeal is a personal right of the conditional plea, a plea of not guilty shall be
accused and similarly to other rights of kindred entered for him. (1a)
nature, it may be waived expressly or by
implication. (d) When the accused pleads guilty but presents
exculpatory evidence, his plea shall be deemed
The waiver, however, must be intelligently made, withdrawn and a plea of not guilty shall be entered
with full knowledge of its consequences. Hence, a for him. (n)
waiver of a grossly ignorant accused was set
aside. He was allowed to appeal despite the lapse
of the period to file an appeal. (e) When the accused is under preventive
detention, his case shall be raffled and its records
Flight of the accused is a waiver of his right to transmitted to the judge to whom the case was
appeal. raffled within three (3) days from the filing of the
information or complaint. The accused shall be
Note: However, before the abolition of the death arraigned within ten (10) days from the date of the
penalty, when imposed, the right to appeal is not raffle. The pre-trial conference of his case shall be
waivable for the law provides for the automatic held within ten (10) days after arraignment. (n)
review to the SC which was subsequently
transferred to the CA. (f) The private offended party shall be required to
appear at the arraignment for purposes of plea
bargaining, determination of civil liability, and other
RULE 116 matters requiring his presence. In case of failure
of the offended party to appear despite due notice,
the court may allow the accused to enter a plea of
Arraignment and Plea
guilty to a lesser offense which is necessarily
included in the offense charged with the
ARRAIGNMENT conformity of the trial prosecutor alone. (cir. 1-89)
It is the formal mode of implementing the
constitutional right of the accused to be informed (g) Unless a shorter period is provided by special
of the cause and nature of the accusations against law or Supreme Court circular, the arraignment
him. shall be held within thirty (30) days from the date
the court acquires jurisdiction over the person of
PLEA
the accused. The time of the pendency of a
It pertains to the matter which the accused, on his motion to quash or for a bill of particulars or other
arraignment, alleges in answer to the charge
causes justifying suspension of the arraignment
against him. shall be excluded in computing the period. (sec. 2,
cir. 38-98)
Section 1. Arraignment and plea; how made. —
(a) The accused must be arraigned before the 81. The case of R, who is under detention,
court where the complaint or information was filed was raffled to the RTC on March 1. His
or assigned for trial. The arraignment shall be arraignment should be set not later than:
made in open court by the judge or clerk by a. March 4;
furnishing the accused with a copy of the b. March 16;
complaint or information, reading the same in the c. March 30;
language or dialect known to him, and asking him d. March 11.
whether he pleads guilty or not guilty. The SUGGESTED ANSWER: (d), The
prosecution may call at the trial witnesses arraignment of R should be set not later
other than those named in the complaint or than March 11. Under Section 1, Rule 116
information.
of the Rules of Court, the accused shall be

________________________________________________________________________________________________
arraigned within ten (10) days from the without delay and trial should
date of the raffle. commence within 3 days
 No postponement except
sickness of the accused
NOTES: Some important considerations: or other grounds beyond
1. Trial in absentia is allowed only after the court’s control.
accused has been arraigned; 2. RA 7610—Trial shall commence
2. Judgment is generally void when there is within 3 days from arraignment.
lack of arraignment (Cabangangan vs.
Concepcion); Notes: the court has no duty to point out the
3. There can be no arraignment in absentia; duplicitousness of the offenses charged in the
Note: However, arraignment in information/complaint or to point out other defects.
absentia is technically allowed under It is the solemn duty of the lawyer to be vigilant to
Rule 14, sec. 2, Rules of Procedure protect his client.
for Environmental Cases (RPEC).
GR: It is generally presumed, unless otherwise
4. if the accused went to trial without proved, that an arraignment was duly conducted in
arraignment, but his counsel had the the course of the proceedings. This springs from
opportunity to cross-examine the the presumption of regularity in the performance of
witnesses of the prosecution and after the official duty.
prosecution he was arraigned, the defect
was cured (P. vs. Atienza and Closa). Exception: When the accused is charged with a
capital offense. This is because of the primacy of
If the information is materially amended, the right to life of the accused. The effect might be
arraignment to the amended information is irreversible.
mandatory.
WHEN PLEA OF NOT GUILTY SHOULD BE
ENTERED:
PERIOD TO PLEA
1. When the accused so pleaded;
A. when the accused is under preventive 2. When he refuses to plead;
detention: 3. Where in admitting the act charged, he
sets up matter of defense or with lawful
His case shall be raffled and its justification;
records transmitted to the judge to 4. When he enters a conditional plea of guilt;
whom the case was raffled within 5. Where after plea of guilty, he introduces
3 days from the filing of the evidence of self defense or other
complaint or information and the exculpatory evidence;
accused arraigned within 10 days 6. When the plea is indefinite or ambiguous.
from the date of the raffle. The 7. When accused, on bail, failed to appear
pre-trial conference shall be held on the date of his arraignment (Rule 14,
within 10 days after arraignment. sec. 2, RPEC)
B. When the accused is not under

preventive detention: GR: An unconditional plea of guilty admits the
Unless a shorter period is crime and all attendant circumstances alleged in
provided by special law or the SC the information including the allegation of
circular, the arraignment shall be conspiracy and warrants judgment of conviction
held within 30 days from the date without need of further evidence.
the court acquires jurisdiction over
the person of the accused. EXCEPTIONS:
1. Where the plea of guilty is compelled by
C. Some laws providing for a shorter violence or intimidation;
period for arraignment: 2. When the accused did not fully
understand the consequences of his plea;
1. RA 4908—Complainant is about 3. Where the information is insufficient to
to depart from the Philippines sustain conviction of the offense charged;
without definite date of return;
accused should be arraigned

________________________________________________________________________________________________
4. Where the information does not charged It is the process whereby the accused, the
an offense. Any conviction thereunder is offended party and the prosecution work out a
void; mutually satisfactory disposition of the case
5. Where the court has no jurisdiction. subject to the court’s approval. It usually involves
6. Plea of guilt if for a capital offense. the defendant’s pleading guilty to a lesser offense
or to only one or some of the counts of a multi-
NOTE: The accused is not entitled to know in count indictment in return for a lighter sentence
advance all the prosecution witnesses. To allow than that for the graver charge.
otherwise would jeopardize the administration of
criminal justice. If the accused entered a plea of guilty to a lesser
offense without the consent of the offended party
NOTE: The case of P. vs. Balisacan, is not and the prosecutor and was convicted, his
anymore controlling, which held that when the subsequent conviction of the crime charged would
accused pleads guilty but is allowed to present not place him in DOUBLE JEOPARDY.
evidence for mitigating circumstance, but in effect
presented a complete justifying circumstance, the Bar Exam Question 2012
plea is deemed vacated. Hence there is no more 15. At arraignment, X pleads not guilty to a
standing plea on the judgment of acquittal, double Robbery charge. At the pretrial, he changes
jeopardy does not apply in case of subsequent his mind and agrees to a plea bargaining,
appeal by the government for the same offense. with the conformity of the prosecution and
The new rule is that when the accused pleads offended party, which downgraded the
guilty BUT presents exculpatory evidence, a plea offense to theft. The Court should therefore:
of not guilty shall be entered for him(by the court a. render judgment based on the change of
or order of the court). plea.
b. allow the withdrawal of the earlier plea
Note: mere written manifestation is not a valid and arraign X for theft and render
plea as required by the Rules. judgment.
c. receive evidence on the civil liability
ACQUITTAL DESPITE PLEA OF GUILTY and render judgment.
Despite the plea of guilty, the accused must be d. require the prosecution to amend the
acquitted when the TOTALITY of the evidence information.
points to his acquittal. Hence, conviction in this SUGGESTED ANSWERS: (b) and (c), The
case is a grave abuse of discretion correctible by
Court should allow the withdrawal of the
certiorari.
earlier plea and arraign X for theft and
render judgment without need of an
Note that certiorari may be accompanied by a
amendment of complaint or information.
Petition for Habeas Corpus to obtain immediate
(Rule 116, Sec. 2, Rules of Court). Be that
release of the accused from detention.
as it may, the Court has to receive
evidence on the civil liability which is
Section 2. Plea of guilty to a lesser offense. — impliedly instituted with the criminal
At arraignment, the accused, with the consent of action before it renders a judgment
the offended party and the prosecutor, may be against X. (Rule 111, Sec.1, Rules of
allowed by the trial court to plead guilty to a lesser
Court).
offense which is necessarily included in the
offense charged. After arraignment but before trial,
Plea of Guilty; to a Lesser Offense (2002)
the accused may still be allowed to plead guilty to D was charged with theft of an article worth
said lesser offense after withdrawing his plea of
p15,000.00. Upon being arraigned, he pleaded not
not guilty. No amendment of the complaint or
guilty to the offense charged. Thereafter, before trial
information is necessary. (sec. 4, circ. 38-98)
commenced, he asked the court to allow him to
change his plea of not guilty to a plea of guilt but only
PLEA OF GUILTY to estafa involving P5,000.00. Can the court allow D to
It is an unconditional admission of guilt, freely, change his plea? Why? (2%)
voluntarily and made with full knowledge of the SUGGESTED ANSWER:
consequences and meaning of his act and with a No, because a plea of guilty to a lesser offense may be
clear understanding of the precise nature of the allowed if the lesser offense is necessarily included in
crime charged in the complaint or information. the offense charged. (Rule 116, sec. 2). Estafa involving
P5,000.00 is not necessarily included in theft of an
PLEA BARGAINING article worth P15,000.00

________________________________________________________________________________________________
can be had without the need of submission of

DOJ CIRCULAR ON THE CONSENT OF THE evidence.
PROSECUTOR (DOJ CIRC. No. 55, March 11,
1996) Exceptions: (non-waivable defenses)
If the penalty imposable is prision mayor or higher,
or a fine exceeding 12,000, the trial prosecutor 1. Lack of jurisdiction;
shall submit comment or recommendation to the 2. Failure to charge an offense;
city or provincial prosecutor or to the chief state 3. Prescription of the offense;
prosecutor for approval. If approved, trial
4. Defendant would be placed in double
prosecutor may, with the consent of the offended jeopardy.
party, enter into plea bargaining.
FAILURE TO CHARGE AN OFFENSE
Plea of guilty to a lesser offense after prosecution Where the facts charged in the information do not
rests is allowed when the prosecution does not state an offense, no conviction thereon can be had
have sufficient evidence to convict the accused of notwithstanding the accused’s plea of guilty (P. vs.
the crime charged (P. vs. Villarama210 SCRA 246 Digoro, 16 SCRA 376).
[1992].
Section 5. Withdrawal of improvident plea of
Section 3. Plea of guilty to capital offense; guilty. — At any time before the judgment of
reception of evidence. — When the accused conviction becomes final, the court may permit an
pleads guilty to a capital offense, the court shall improvident plea of guilty to be withdrawn and be
conduct a searching inquiry into the voluntariness substituted by a plea of not guilty. (5)
and full comprehension of the consequences of
his plea and require the prosecution to prove his Plea of guilty not subject not collateral attack.
guilt and the precise degree of culpability. The
accused may present evidence in his behalf. (3a) INSTANCES OF IMPROVIDENT PLEA
Note: The rule is mandatory. The accused must 1. Plea of guilty was compelled by violence
be informed of his right to present evidence if he or intimidation;
so desires. 2. The accused did not fully understand the
consequences of his plea;
To constitute SEARCHING INQUIRY, the 3. Insufficient information to sustain
questioning must focus on: conviction;
1. The voluntariness of the plea; 4. Information does not charge an offense;
2. Whether the accused understood fully the 5. Court has no jurisdiction.
consequences of his plea.
3. Whether or not the custodial rights of the NOTE: The withdrawal of plea of guilty is not a
accused were observed (P. vs. Durango, matter right but of sound judicial discretion (P. vs.
GR NO. 135428, April 5, 2000). Lambrino, 103 Phil. 504).
EFFECT OF IMPROVIDENT PLEA Section 6. Duty of court to inform accused of

If the sole basis of the conviction is the his right to counsel. — Before arraignment, the
improvident plea, judgment of conviction should court shall inform the accused of his right to
be reversed. However, if there exists sufficient counsel and ask him if he desires to have one.
evidence in the record for his conviction, Unless the accused is allowed to defend himself in
conviction should be sustained (P. vs. Petalcorin, person or has employed a counsel of his choice,
GR O. 65376, Dec.29, 1989). the court must assign a counsel de oficio to
defend him. (6a)
Section 4. Plea of guilty to non-capital offense;
reception of evidence, discretionary. — When DUTIES OF THE COURT WHEN THE ACCUSED
the accused pleads guilty to a non-capital offense, APPEARS WITHOUT COUNSEL (FOUR-FOLD):
the court may receive evidence from the parties to
determine the penalty to be imposed. (4) 1. It must inform the defendant that it is his
right to have an attorney before being
GR: As a rule, the unconditional plea of guilty arraigned;
admits all the allegations in the complaint or 2. After giving such information, the court
information including all its attendant must ask him if he desires the aid of an
circumstances and such, a judgment of conviction attorney;

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3. If he desires, but is unable to employ one, As long as the counsel de oficio

the court shall assign an attorney de oficio duly performed his duties, lack of
to defend him; sympathy to the defendant’s
4. If the accused desires to procure an cause does not deny the accused
attorney of his own, he be given the right to counsel (P. vs. Prieto,
reasonable time therefore.(P. vs. Holgado, 80 Phil. 138).
85 Phil. 752 [1950]. 4. Right to counsel substantially satisfied
even where the counsel de oficio
Failure of the court to comply with the above appeared only after trial has commenced
duties is denial of due process. as long as he was given the right to cross-
examine the witnesses of the prosecution
Presumption of regularity in the performance of (US vs. Ramirez, 26 Phil. 616).
duties does not prevail over the claim that the 5. Right to counsel de parte during
accused has failed to appeal because he was not arraignment is not absolute.
assisted by counsel (Amar vs. Moscoso, 98 Phil. 6. Right to counsel during trial may be
115). waived. It must be raised before the trial
court. Otherwise, it may not be raised for
the first time on appeal.
Section 7. Appointment of counsel de oficio. — 7. Duty of the court during arraignment does
The court, considering the gravity of the offense not include information as to the (duration)
and the difficulty of the questions that may arise, penalty for the offense.
shall appoint as counsel de oficio only such
members of the bar in good standing who, by Section 8. Time for counsel de oficio to prepare
reason of their experience and ability, can for arraignment. — Whenever a counsel de oficio
competently defend the accused. But in localities is appointed by the court to defend the accused at
where such members of the bar are not available, the arraignment, he shall be given a reasonable
the court may appoint any person, resident of the time to consult with the accused as to his plea
province and of good repute for probity and ability, before proceeding with the arraignment. (8)
to defend the accused. (7a)
Note: What is reasonable is dependent upon
NOTES: various circumstances like the gravity of the
offense, complexity of the allegations, etc.
1. Private prosecutor disqualified to act as
counsel de oficio. Section 9. Bill of particulars. — The accused
A private prosecutor who assisted may, before arraignment, move for a bill of
the prosecution of the case as to particulars to enable him properly to plead and to
the other co-accused cannot be prepare for trial. The motion shall specify the
appointed as counsel de oficio of alleged defects of the complaint or information and
one of the alleged perpetrators the details desired. (10a)
(US vs. Laranja, 21 Phil. 500).
2. Counsel de officio need not be a choice of NOTE: The remedy against an indictment which
the accused (US vs. Laranja, supra).
that fails to allege the time of the commission of
the crime with sufficient definiteness is a motion
Duties of the court during arraignment and
for a bill of particulars, not motion to quash
duties during trial distinguished
(Rocaberte vs. P., 193 SCRA 152 [1991].
The court has the affirmative duty to inform the
accused of his right to counsel during the Bill of particulars available to specify the age of
arraignment. While on the trial, it is for the the minor below 12 years of age, which is
accused to assert his right to counsel (US vs. different from a minor 7 years of age, who is
Binajoh, 35 Phil. 23). raped. (P. vs. Fuertes, 296 SCRA 602 [1998].
Otherwise stated, in arraignment, the presumption
that official duties are regularly performed may not Failure to ask for bill of particulars amounts to
apply. While on trial, the presumption applies. The waiver of right (P. vs. Gutierrez, 91 Phil. 876).
right to counsel is non-waivable on arraignment
BUT is waivable on trial by his silence or failure to
assert his right. Section 10. Production or inspection of
material evidence in possession of
3. Reluctance of counsel de oficio does not prosecution. — Upon motion of the accused
amount to denial of right to counsel. showing good cause and with notice to the parties,

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the court, in order to prevent surprise, (b) There exists a prejudicial question;
suppression, or alteration, may order the and
prosecution to produce and permit the inspection
and copying or photographing of any written (c) A petition for review of the resolution
statement given by the complainant and other of the prosecutor is pending at either the
witnesses in any investigation of the offense Department of Justice, or the Office of the
conducted by the prosecution or other President; provided, that the period of
investigating officers, as well as any designated suspension shall not exceed sixty (60)
documents, papers, books, accounts, letters, days counted from the filing of the petition
photographs, objects or tangible things not with the reviewing office. (12a)
otherwise privileged, which constitute or contain
evidence material to any matter involved in the Other incidents that may suspend the period
case and which are in the possession or under the of arraignment:
control of the prosecution, police, or other law 1. Pendency of a motion to quash;
investigating agencies. (11a) 2. Motion for bill of particulars;
3. Motion for inhibition of judge.
Note: modes of discovery are available in
Preliminary Investigation (Web vs. De Leon, 247 Note: Petition for Review in the Office of the
SCRA 653 [1995]. President only in cases of which the imposable
penalty is non-bailable.
Discovery; Production and Inspection (2009) No.XI.A.
The accused in a criminal case has the right to avail of Bar Exam Question 2012
the various modes of discovery. SUGGESTED ANSWER: 12. An accused may move for the suspension
TRUE. The accused has the right to move for the of his arraignment if:
production or inspection of material evidence in the a. a motion for reconsideration is pending
possession of the prosecution. It authorizes the before the investigating prosecutor.
defense to inspect, copy or photograph any evidence b. accused is bonded and his bondsman
of the prosecution in its possession after obtaining failed to notify him of his scheduled
permission from the court (Rule 116, Sec. 10; Webb arraignment.
vs. De Leon, 247 SCRA 652 [1995]). ALTERNATIVE c. a prejudicial question exists.
ANSWER: FALSE. The accused in criminal case only d. there is no available public attorney.
has the right to avail of conditional examination of SUGGESTED ANSWER:
his witness before a judge, or, if not practicable, a (c), Under Section 11, Rule 116 of the
member of a Bar in good standing so designated by Rules of Criminal Procedure, upon motion
the judge in the order, or if the order be made by a of the proper party, the arraignment shall
court of superior jurisdiction, before an inferior court be suspended in the following cases: (a)
to be designated therein. (sec.12 &13, Rule 119). The accused appears to be suffering from
an unsound mental condition which
Modes of discovery under civil actions does not apply
effectively renders him unable to fully
to criminal proceedings because the latter is primarily
understand the charge against him and to
governed by the REVISED RULES OF CRIMINAL
plead intelligently thereto. In such case,
PROCEDURE (Vda. de Manguerravs Risos – 563 SCRA
the court shall order his mental
499). examination and, if necessary, his
confinement for such purpose; (b) There
exists a prejudicial question; and (c) A
Section 11. Suspension of arraignment. — petition for review of the resolution of the
Upon motion by the proper party, the arraignment prosecutor is pending at either the
shall be suspended in the following cases: Department of Justice, or the Office of the
President; provided that the period of
(a) The accused appears to be suffering suspension shall not exceed sixty (60)
from an unsound mental condition days counted from the filing of the
which effectively renders him unable to petition with the reviewing office. (Rule
fully understand the charge against him 116, Sec. 11, Rules of Court).
and to plead intelligently thereto. In such
case, the court shall order his mental
examination and, if necessary, his
confinement for such purpose;

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RULE 117 merits as it would impair the right of the accused

to speedy trial.
Motion to Quash
MOTION TO QUASH 43. Which of the following statements is
It is a special pleading filed by the defendant incorrect?
before entering his plea, which hypothetically a. A Motion to Quash which is granted is a
admits the truth of the facts spelled out in the bar to the prosecution for the same offense if
complaint or information at the same time that it the criminal action or liability has been
sets up a matter which, if duly proved, would extinguished.
preclude further proceedings. b. In the Court of Appeals, the accused may
file a motion for
The court in resolving the motion cannot consider new trial based only on newly discovered
facts contrary to those alleged in the information evidence.
or which do not appear on the face of the c. A demurrer to evidence may be filed
information, except those admitted by the without leave of court in a criminal case.
prosecution. d. None of the above.
SUGGESTED ANSWER: (d), A Motion to
GR: The accused may move to quash the Quash which is granted is a bar to the
complaint or information at any time BEFORE prosecution for the same offense if the
entering his plea. criminal action or liability has been
extinguished. (Rule 117, Sec.6 in relation
Exceptions: (non-waivable) to Section3). In the Court of Appeals, the
1. Failure to charge an offense; accused may file a motion for new trial
2. Lack of jurisdiction over the offense based only on newly discovered evidence.
charged; (Rule 53, Sec. 1, Rules of Court). A
3. Extinction (prescription)of the offense or demurrer to evidence may be filed without
penalty; leave of court in criminal case. (Rule 119,
4. Defendant would be placed in double Sec. 23, Rules of Court).
jeopardy.
Section 1. Time to move to quash. — At any Section 3. Grounds. — The accused may move
time before entering his plea, the accused may to quash the complaint or information on any of
move to quash the complaint or information. (1) the following grounds:
Section 2. Form and contents. — The motion to (a) That the facts charged do not constitute an
quash shall be in writing, signed by the accused offense;
or his counsel and shall distinctly specify its
factual and legal grounds. The court shall
(b) That the court trying the case has no
consider no ground other than those stated in the
jurisdiction over the offense charged;
motion, except lack of jurisdiction over the offense
charged. (2a)
(c) That the court trying the case has no
jurisdiction over the person of the accused;
NOTE: A motion to suspend the issuance of
warrant of arrest is considered motion to quash
where the allegations in the motion sufficiently (d) That the officer who filed the information had
alleges that the information does not charge an no authority to do so;
offense. The allegations contained in the body of
the motion is controlling not the caption or title of (e) That it does not conform substantially to the
the motion (P. vs. Matondo, 1 SCRA 534). prescribed form;
(f) That more than one offense is charged except

when a single punishment for various offenses is
RESOLUTION OF A MOTION TO QUASH prescribed by law;
A motion to quash must be resolved BEFORE
the trial and cannot defer the hearing and the (g) That the criminal action or liability has been
determination of said motion until trial on the extinguished;

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(h) That it contains averments which, if true, would 1. Two grounds to quash an Information are:
constitute a legal excuse or justification; and a) That the facts charged do not constitute an offense;
and
(i) That the accused has been previously b) That the court trying the case has no jurisdiction
convicted or acquitted of the offense charged, or over the offense charged or the person of the accused.
the case against him was dismissed or otherwise c) That the officer who filed the information had no
terminated without his express consent. (3a) authority to do so;
d) That it does not conform substantially to the
prescribed form;
e) That more than one offense is charged except in
Information; Motion to Quash (2005) those cases in which existing laws prescribe a single
Rodolfo is charged with possession of unlicensed punishment for various offenses;
firearms in an Information filed in the RTC. It was f) That the criminal action or liability has been
alleged therein that Rodolfo was in possession of two extinguished;
unlicensed firearms: a .45 caliber and-a .32 caliber. g) That it contains averments which, if true, would
Under Republic Act No. 8294, possession of an constitute a legal excuse or justification; and
unlicensed .45 caliber gun is punishable by prision h) That the accused has been previously convicted or
mayor in its minimum period and a fine of P30.000.00, in jeopardy of being convicted, or acquitted of the
while possession of an unlicensed .32 caliber gun is offense charged. (Sec. 3, Rule 117. Rules of Criminal Procedure.)
SUGGESTED ANSWER:
punishable by prision correctional in its maximum 2. No. The certification which is provided in Sec. 4,
period and a fine of not less than P15,000.00. As Rule 112. Rules of Criminal Procedure, is not an
counsel of the accused, you intend to file a motion to indispensable part of the information. (People vs.
quash the Information. What ground or grounds Lapura, 255 SCRA 85.)
should you invoke? Explain. (4%)
SUGGESTED ANSWER: Information; Motion to Quash (2009)
The ground for the motion to quash is that more than No.IV. Pedrito and Tomas, Mayor and
one offense is charged in the information. (Sec. 3[f], Rule Treasurer, respectively, of the Municipality of
117, 2000 Rules of Criminal Procedure) Likewise, the RTC has San Miguel, Leyte, are charged before the
no jurisdiction over the second offense of possession Sandiganbayan for violation of Section 3(e),
of an unlicensed .32 caliber gun, punishable by prision RA no. 3019 (Anti-Graft and Corrupt
correctional in its maximum period and a fine of not Practices Act). The information alleges,
less than P15.000.00. It is the MTC that has exclusive among others, that the two conspired in the
and original jurisdiction over all offenses punishable by purchase of several units of computer
imprisonment not exceeding six years. (Sec. 2, R.A. No. through personal canvass instead of a public
7691, amending B.P. Blg. 129)
bidding, causing undue injury to the
municipality. Before arraignment, the
Information; Motion to Quash (2009) No.XVI.B. A
accused moved for reinvestigation of the
criminal information is filed in court charging Anselmo
charge, which the court granted. After
with homicide. Anselmo files a motion to quash
reinvestigation, the Office of the Special
information on the ground that no preliminary Prosecutor filed an amended information
investigation was conducted. Will the motion be duly singed and approved by the Special
granted? Why or why not? SUGGESTED ANSWER: NO, Prosecutor, alleging the same delictual facts,
the motion to quash will not be granted. The lack of but with an additional allegation that the
preliminary investigation is not a ground for a motion accused gave unwarranted benefits to SB
to quash under the Rules of Criminal Procedure. enterprises owned by Samuel. Samuel was
Preliminary investigation is only a statutory right and also indicted under the amended
can be waived. The accused should instead file a information. Before Samuel was arraigned,
motion for reinvestigation within five (5) days after he moved to quash the amended information
he learns of the filing in Court of the case against him on the ground that the officer who filed had
(Sec. 6, Rule 112, as amended). no authority to do so. Resolve the motion to
quash with reasons. SUGGESTED ANSWER:
Information; Motion to Quash; Grounds (1998) The motion to quash filed by Samuel
1 Give two (2) grounds to quash an Information.[2%] should be granted. There is no showing
2 If the Information is not accompanied by a that the special prosecutor was duly
certification that a preliminary investigation has been authorized or deputized to prosecute
conducted. Is the Information void? [3%] Samuel. Under R.A. No. 6770, also known
SUGGESTED ANSWER: as the Ombudsman Act of 1989, the

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Special Prosecutor has the power and no authority to file the information, the court did not
authority, under the supervision and acquire jurisdiction over the person of the accused and
control of the Ombudsman, to conduct over the subject matter of the offense charged. (Cudia
preliminary investigation and prosecute v. Court of Appeals, 284 SCRA 173 [1999]). Hence, this
criminal cases before the Sandiganbayan ground is not waived if not raised in a motion to quash
and perform such other duties assigned to and could be raised at the pretrial. (Sec. 8, Rule 117, Rules of
him by the Ombudsman (Calingin vs. Court).
Desierto, 529 SCRA 720 [2007]). Absent a
clear delegation of authority from the
Ombudsman to the Special Prosecutor to NOTES:
file the information, the latter would have
no authority to file the same. The Special 1. Matters of defense not a proper ground for
Prosecutor cannot be considered an alter motion to quash (P. vs. Miranda, 2 SCRA
ego of the Ombudsman as the doctrine of 261 [1961]). EXCEPTION: Extinction of
qualified political agency does not apply criminal liability; prescription; and former
to the office of the Ombudsman. In fact, jeopardy.
the powers of the office of the Special
Prosecutor under the law may be exercised Affidavit of desistance is not a
only under the supervision and control ground for Motion to Quash. But it
and upon authority of the Ombudsman may be a ground for dismissal
(Perez vs. Sandiganbayan, 503 SCRA 252 (Demurrer to evidence), for
[2006]). absence of evidence by the State
ALTERNATIVE ANSWER: (Review Lecture).
The motion to quash should be denied for
lack of merit. The case is already filed in 2. Fatally defective information is not
court which must have been done with the necessarily void when not objected to
approval of the Ombudsman, and thus the during trial and supplemented by
Special Prosecutor‟s office of the competent proof (P. vs. Belga, 100 Phil.
Ombudsman takes over. As it is the court 996 [1957]).
which ordered the reinvestigation, the
Office of the Special Prosecutor which is Note: substantial defects in the
handling the case in court, has the information that would jeopardize the right
authority to act and when warranted, to be informed of the nature and cause of
refile the case. The amendment made is accusations against the accused is not
only a matter of form which only cured by evidence (IIo, et al. vs. CA, 108
particularized the violation of the same Phil. 938 [1960]).
provision of Rep. Act 3019, as amended.
Trial tip: when the information does not
charge an offense, do not file a motion to
quash, but go to trial because the
Information; Motion to Quash (2000) prescriptive period will not be suspended
BC is charged with illegal possession of firearms under if the information is void (Atty. Ucat)
an Information signed by a Provincial Prosecutor.
After arraignment but before pre-trial, BC found out 3. For discussion on jurisdiction, please refer
that the Provincial Prosecutor had no authority to sign to explanations found elsewhere in this
and file the information as it was the City Prosecutor work.
who has such authority. During the pre-trial, BC
moves that the case against him be dismissed on the
ground that the Information is defective because the 4. Jurisdiction over the person of the
officer signing it lacked the authority to do so. The accused is obtained:
Provincial Prosecutor opposes the motion on the a) When he was arrested;
ground of estoppel as BC did not move to quash the b) When he submits voluntarily to
Information before arraignment. If you are counsel for the jurisdiction of the court.
BC, what is your argument to refute the opposition of
the Provincial Prosecutor? (5%) Note: It has been held that a
SUGGESTED ANSWER: motion to quash on the ground of
I would argue that since the Provincial Prosecutor had lack of jurisdiction over the person
of the accused must be solely on

________________________________________________________________________________________________
based on this ground. The charge so as to enable him to prepare his

inclusion of other grounds is defense (P. vs. Ferrer, L-8957, April 29,
deemed to be a submission to the 1957).
courts jurisdiction (Sanchez vs.
Demetriou, GR NO. 111771-77, 8. Grounds for extinction of criminal liability.
Nov. 9, 1993).
Art. 89. How criminal liability is totally
The rule is different in civil cases extinguished. — Criminal liability is totally
because of the Omnibus Motion
extinguished:
Rule.
1. By the death of the convict, as to the
5. Want of authority of the officer filing the personal penalties and as to pecuniary
information. penalties, liability therefor is extinguished
A fiscal is without authority to file only when the death of the offender occurs
information outside its territorial before final judgment.
jurisdiction (Cudia vs. CA, GR NO. 2. By service of the sentence;
110315, Jan. 16, 1998).
3. By amnesty, which completely extinguishes
Lack of authority of the person filing the the penalty and all its effects;
information cannot be cured by silence, 4. By absolute pardon;
acquiescence, even by express consent. 5. By prescription of the crime;
The general rule is that if defendant enters 6. By prescription of the penalty;
a plea before filing a motion to quash, all
7. By the marriage of the offended woman, as
objections to the information in so far as
formal objections are deemed waived. A provided in Article 344 of this Code.
valid complaint is a requisite for the court
to acquire jurisdiction over the case. A NOTE: These grounds are EXCLUSIVE in
valid information is one which is signed character.
and filed by a competent(authorized) Accordingly, it was held that lack of preliminary
person. Hence, lack of authority of the investigation is not a ground for a motion to quash,
person who filed the information may be not only because it is not stated in the rules as
raised at any stage of the proceedings one of the grounds, but also because lack of PI
being intimately connected with the does not impair the validity of the information,
jurisdiction of the court (Villa vs. Ibañez, does not render it otherwise defective and does
88 Phil. 402). not affect the jurisdiction of the court over the case
(P. vs. Yutila, 102 SCRA 264).
Lack of authority may not be cured by
amendment of the information (Cruz, Jr. a. Death of one of the co-accused does not
vs. Sandiganbayan, 194 SCRA 474 cause the dismissal of the criminal action
[1991]). (US vs. De La Torre and Gregorio, 25
Phil. 36).
6. Formal defects not prejudicial to the b. Death of offended party generally does
substantial rights of the accused will not not affect or bar the prosecution of the
be sustained as ground for quashing the case. The real offended party in a public
information. The proper procedure is for offense is the state.
the court to order the amendment of the However, with respect to crimes which
information pursuant to sec. 4, Rule 117. cannot be prosecuted de oficio
(adultery/concubinage) death of the
7. Duplicity of offenses charged. offended party BEFORE the institution of
Failure to move for the quashal of the the action BARS the further prosecution of
information on the ground of duplicity of the case. Note that such does not
offenses before arraignment is deemed extinguished the criminal liability but only
waiver of the defect. Hence, the accused constitute a procedural bar for the
can be convicted of crimes as charged prosecution of the case.
and proved on trial (P. vs. Errojo, 229 c. Partial extinction of criminal liability:
SCRA 49 [1994]).  By conditional pardon;
 Commutation of sentence;
REASON FOR THE RULE: To give the  Good conduct allowance (art. 94,
defendant the necessary knowledge of the RPC).

________________________________________________________________________________________________
 Parole.
d. Effect of pardon by the offended party
9. Amnesty completely extinguishes penalty and
its effect (Republic vs. Vera, 182 SCRA 800 Art. 344, RPC. Prosecution of the crimes of
[1990]). adultery, concubinage, seduction, abduction,
rape and acts of lasciviousness. — The crimes of
a. Amnesty may be proved even if not
pleaded (P. vs. Macadaeg, 91 Phil. 410).
adultery and concubinage shall not be prosecuted
b. Pardon and amnesty distinguished. except upon a complaint filed by the offended
spouse.
PARDON AMNESTY
Pardon is granted Proclamation by the The offended party cannot institute criminal
by the Chief Chief Executive and prosecution without including both the guilty
Executive concurrence of
parties, if they are both alive, nor, in any case, if
Congress
Must be pleaded Need not be alleged he shall have consented or pardoned the
and proved (private and proved (public offenders.
act of the act which the courts
president) can take judicial The offenses of seduction, abduction, rape or acts
notice) of lasciviousness, shall not be prosecuted except
Can be granted
upon a complaint filed by the offended party or
Pardon is granted generally at any
only after final time even before her parents, grandparents, or guardian, nor, in
conviction prosecution is any case, if the offender has been expressly
commenced or after pardoned by the above named persons, as the
conviction case may be.
Generally available Generally granted
to any class of to persons who are
In cases of seduction, abduction, acts of
crimes guilty of political
offenses lasciviousness and rape, the marriage of the
Pardon looks offender with the offended party shall extinguish
forward and Looks backwards the criminal action or remit the penalty already
relieves the and abolishes and imposed upon him. The provisions of this
offender from the puts into oblivion paragraph shall also be applicable to the co-
imposition of the the offense itself
principals, accomplices and accessories after the
penalty but does and the person
not work for the stands before the fact of the above-mentioned crimes.
restoration of the law as though he
rights to hold public had committed no Art. 266-C, RPC. Effect of Pardon—The
office, or the right crime subsequent valid marriage between the offender
of suffrage, and and the offended party shall extinguish the
other vestiges of
the crime (like
criminal action or the penalty imposed.
moral turpitude)
unless expressly In case it is the legal husband who is the offender,
remitted in the the subsequent forgiveness by the wife as the
pardon) offended party shall extinguish the criminal action
or the penalty: Provided, That the crime shall not
The grant of pardon to one of the persons
be extinguished or the penalty shall not be
convicted of the offense does not necessarily
inure to the benefit of the other (US vs. Guarin, 30 abated if the marriage be void ab initio (RA 8353).
Phil. 85).
Note: however, if multiple rapes are committed,
c. The person granted conditional pardon marriage of one of the defendants extinguishes
must STRICTLY comply with the terms of the latter’s liability and that of his accessories or
the pardon. The same is a contract accomplices for a single crime of rape only and
between him and the Chief Executive. If cannot extend to other separate acts of rape; each
he violates the conditions, art. 159, RPC carnal act constitutes a separate and distinct
shall be applied to him. crime of rape (P. vs. Bernardo, 38 OG 3479).

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those punishable by arresto mayor, which shall

Jurisdiction; Finality of a Judgment (2005) prescribe in five years.
Mariano was convicted by the RTC for raping Victoria
and meted the penalty of reclusion perpetua. While
serving sentence at the National Penitentiary, Mariano The crime of libel or other similar offenses shall
and Victoria were married. Mariano filed a motion in prescribe in one year.
said court for his release from the penitentiary on his
claim that under Republic Act No. 8353, his marriage The crime of oral defamation and slander by deed
to Victoria extinguished the criminal action against shall prescribe in six months.
him for rape, as well as the penalty imposed on him.
However, the court denied the motion on the ground
that it had lost jurisdiction over the case after its
Light offenses prescribe in two months.
decision had become final and executory. (7%)
a) Is the filing of the court correct? Explain. When the penalty fixed by law is a compound
SUGGESTED ANSWER: one, the highest penalty shall be made the basis
No. The court can never lose jurisdiction so long as its of the application of the rules contained in the
decision has not yet been fully implemented and
first, second and third paragraphs of this article.
satisfied. Finality of a judgment cannot operate to
divest a court of its jurisdiction. The court retains an (As amended by RA 4661, approved June 19,
interest in seeing the proper execution and 1966).
implementation of its judgments, and to that extent,
may issue such orders necessary and appropriate for Art. 91. Computation of prescription of offenses.
these purposes. (Echegaray v. Secretary of Justice, G.R. — The period of prescription shall commence to
No. 13205, January 19, 1999)
run from the day on which the crime is
b) What remedy/remedies should the counsel of
Mariano take to secure his proper and most discovered by the offended party, the authorities,
expeditious release from the National Penitentiary? or their agents, and shall be interrupted by the
Explain. filing of the complaint or information, and shall
SUGGESTED ANSWER:
commence to run again when such proceedings
To secure the proper and most expeditious release of
Mariano from the National Penitentiary, his counsel terminate without the accused being convicted or
should file: (a) a petition for habeas corpus for the acquitted, or are unjustifiably stopped for any
illegal confinement of Mariano (Rule 102), or (b) a reason not imputable to him.
motion in the court which convicted him, to nullify the
execution of his sentence or the order of his The term of prescription shall not run when the
commitment on the ground that a supervening offender is absent from the Philippine
development had occurred (Melo v. People, G.R. No. L- Archipelago.
3580, March 22, 1950) despite the finality of the
judgment.
Art. 92. When and how penalties prescribe. — The
10. Prescription is the loss of the state of the penalties imposed by final sentence prescribe as
right to prosecute the crime or to demand the follows:
service of the penalty imposed.
1. Death and reclusion perpetua, in
(the following are pertinent RPC provisions):
twenty years;
Art. 90. Prescription of crime. — Crimes
punishable by death, reclusion perpetua or 2. Other afflictive penalties, in fifteen
reclusion temporal shall prescribe in twenty years;
years.
3. Correctional penalties, in ten years;
Crimes punishable by other afflictive penalties with the exception of the penalty of
shall prescribe in fifteen years. arresto mayor, which prescribes in five
years;
Those punishable by a correctional penalty shall
prescribe in ten years; with the exception of 4. Light penalties, in one year.

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Art. 93. Computation of the prescription of BUT note, however, in a prosecution of the crime
penalties. — The period of prescription of of Bigamy, period of prescription commenced to
run only upon the discovery of the bigamous
penalties shall commence to run from the date
marriage contracted by the accused and NOT
when the culprit should evade the service of his from the time the marriage is recorded in the civil
sentence, and it shall be interrupted if the registry (Sermonia vs. CA, 233 SCRA 155 [1994]).
defendant should give himself up, be captured, Reason: The registration of the marriage is not for
should go to some foreign country with which this the validity of the marriage.
Government has no extradition treaty, or should
Prescription of continuing crimes runs only from
commit another crime before the expiration of
the time such acts constituting the offense had
the period of prescription. ceased to exist.
a. For unlawful solicitation; computed from
OTHERS: the latest act (P. vs. Castañeda, 187
Computation of prescriptive period of violations of SCRA 148 [1990]).
special laws. b. Rebellion when such rebellion had ceased
The applicable law is Act No. 3326. to exist.
Prescription shall begin to run from the
day of the commission of the violation of Prescription of crime does not necessarily
the law, and if the same be not known at extinguish civil liability.
the time, from discovery thereof. It is
interrupted only by institution of judicial Note: The state is not barred by prescription,
proceedings for its investigation and laches, or estoppel in recovering unlawfully
punishment (Zaldivia vs. Reyes, 211 acquired public property (art. XI, sec. 15,
SCRA 277 [1992]). Constitution)
Illegal Recruitment is deemed discovered only Where the last day of the prescriptive period for
when the complainant learned that the recruiter is filing an information is a Sunday or a legal holiday,
without authority or license. the information can no longer be filed on the next
working day. The remedy is for the prosecutor to
Period of prescription under the Anti- Graft Law is file the information on the last working day before
from time of discovery and not from time of criminal offense prescribes (Yapdiangco vs.
commission Buencamino, 122 SCRA 713 [1983]).
Note: where the accused has been found to have Note: crimes punished under RA 9851
committed a lesser offense included in the offense “Philippine Act on Crimes Against
charged, he cannot be convicted of the lesser Humanitarian Law, Genocide, and other
offense if at the time of the filing of the greater Crimes Against Humanity”, does not prescribe
offense, the lesser offense had already (sec. 11).
prescribed. To hold otherwise would be to allow
circumvention of the law on prescription by simple
Section 4. Amendment of the complaint or
and expedient way of filing a graver offense which
information. — If the motion to quash is based on
includes the lesser offense( Francisco vs. CA, 122
an alleged defect of the complaint or information
SCRA 538).
which can be cured by amendment, the court shall
order that an amendment be made. (4a)
Prescription is interrupted even if there is lack of
jurisdiction (Cruz, et al. vs. Enrile, GR NO. 75983,
April 15, 1988). If it is based on the ground that the facts charged
do not constitute an offense, the prosecution shall
The rule on constructive notice in civil cases is be given by the court an opportunity to correct the
applicable in criminal cases. In a prosecution of defect by amendment. The motion shall be
Falsification of a public document, the prescriptive granted if the prosecution fails to make the
period commences to run from the period the amendment, or the complaint or information still
alleged forged document was registered with the suffers from the same defect despite the
Register of Deeds. Registration is a constructive amendment. (n)
notice to the whole world (P. vs. Villalon, 192
SCRA 521 [1990]). NOTE: When the original complaints states a
cause of action, but does it so imperfectly, and
afterwards an amended complaint is filed,

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correcting the defect, the plea of prescription will accused, if in custody, shall be discharged unless
relate to the time of the filing of the original he is also in custody for another charge. (5a)
complaint.
EFFECT IF THE COURT SUSTAINS THE
Bar Exam Question 2013 MOTION TO QUASH
IX. Which of the following distinguishes a 1. If the ground of the motion is either
motion to quash from a demurrer to a. The facts charged do not
evidence? (1%) constitute an offense;
(A) A motion to quash a complaint or b. That the officer who filed the
information is fi led before the prosecution information had no authority to do
rests its case. (B) A motion to quash may be so;
fi led with or without leave of court, at the c. That it does not conform to the
discretion of the accused. (C) When a motion prescribed form;
to quash is granted, a dismissal of the d. That more than one offense is
case will not necessarily follow. (D) The charged
grounds for a motion to quash are also
grounds for a demurrer to evidence. (E) The The court may order that another information be
above choices are all wrong. SUGGESTED filed or an amendment thereof be made, within a
ANSWER: (C), Under Section 4 of Rule 117, definite period. If such order is not made, or if
if the motion to quash is based on an having been made, another information is not
alleged defect of the complaint or filed within the time specified in the order, or within
information which can be cured by such time as the court may allow, the accused, if
amendment, the court shall order that an in custody shall be discharged, unless he is also in
amendment be made. If it is based on the custody of some other charge.
ground that the facts charged do not
constitute an offense, the prosecution 2. If the motion to quash is sustained on any
shall be given by the court an opportunity of the following grounds:
to correct the defect by amendment. The a. That criminal action or liability has
motion shall be granted if the prosecution been extinguished;
fails to make the amendment, or the b. That it contains averments, which
complaint or information still suffers from if true, would constitute a legal
the same defect despite the amendment. excuse or justification;
Section 5 of Rule 117 also provides that if c. That the accused has been
the motion to quash is sustained, the previously convicted or acquitted
court may order that another complaint or of the offense charged.
information be filed except as provided in
The court must state, in its order granting the
section 6 of this rule. If the order is made,
motion, the release of the accused if he is in
the accused, if in custody, shall not be
custody or the cancellation of his bond if he is on
discharged unless admitted to bail. If no
bail
order is made nor if having been made, no
new information is filed within the time
3. If the ground upon which the motion to
specified in the order or within such
quash is sustained is that the court has no
further time as the court may allow for jurisdiction over the offense charged, the
good cause, the accused, if in custody, better practice is for the court to remand
shall be discharged unless he is also in or forward the case to the proper court,
custody for another charge. not to quash the complaint or information.
Note: The prosecution may elevate to the higher

Section 5. Effect of sustaining the motion to courts an order granting a motion to quash. The
quash. — If the motion to quash is sustained, the accused would not be placed in double jeopardy
court may order that another complaint or because there has been no arraignment yet.
information be filed except as provided in section
6 of this rule. If the order is made, the accused, if PROCEDURE IF MOTION TO QUASH IS
in custody, shall not be discharged unless DENIED:
admitted to bail. If no order is made or if having 1. Accused should plead;
been made, no new information is filed within the 2. Accused should go to trial without
time specified in the order or within such further prejudice to the special defenses he
time as the court may allow for good cause, the invoked in the motion;

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3. Appeal from the judgment of conviction However, the conviction of the accused shall not
and assign as one of the errors the denial be a bar to another prosecution for an offense
of the motion to quash. which necessarily includes the offense charged in
the former complaint or information under any of
An order denying a motion to quash is not the following instances:
appealable.
Appeal in due time, as the proper remedy, implies (a) the graver offense developed due to
a previous conviction as a result of a trial on the supervening facts arising from the same act or
merits of the case and does not apply to an omission constituting the former charge;
interlocutory order denying the motion to quash. If
the court, in denying the motion, acts without or in (b) the facts constituting the graver charge
excess or with grave abuse of discretion, then became known or were discovered only after
certiorari or prohibition will lie (Newsweek Inc. vs. a plea was entered in the former complaint or
IAC, 142 SCRA 443). information; or
On the other hand, if the motion to quash is
granted, the order to that effect is a final order, not (c) the plea of guilty to the lesser offense was
merely interlocutory, and is, therefore, appealable made without the consent of the prosecutor
at once (Milo vs. Salonga, 152 SCRA 113). and of the offended party except as provided
in section 1 (f) of Rule 116.
Section 6. Order sustaining the motion to In any of the foregoing cases, where the accused
quash not a bar to another prosecution; satisfies or serves in whole or in part the
exception. — An order sustaining the motion to judgment, he shall be credited with the same in
quash is not a bar to another prosecution for the the event of conviction for the graver offense. (7a)
same offense unless the motion was based on the
grounds specified in section 3 (g) and (i) of this NOTES:
Rule. (6a)
Section 21, art. III, 1987 Constitution. No
person shall be twice put in jeopardy of
The exceptions are: punishment for the same offense. If an act is
1. The motion was based on the ground that
punished by a law and an ordinance,
the criminal action or liability has been
extinguished; conviction or acquittal under either shall
constitute a bar to another prosecution for
2. (Double jeopardy) that the accused has the same act.
been previously convicted or acquitted of
the offense charged, or the case against
him was dismissed or otherwise REQUISITES FOR DOUBLE JEOPARDY:
terminated without his express consent. 1. First jeopardy must have attached prior to
the second;
Section 7. Former conviction or acquittal; 2. The first jeopardy must have been validly
double jeopardy. — When an accused has been terminated;
convicted or acquitted, or the case against him 3. The second jeopardy must be for the
dismissed or otherwise terminated without his same offense, or the second offense
express consent by a court of competent includes or is necessarily included in the
jurisdiction, upon a valid complaint or information offense charged on the first information or
or other formal charge sufficient in form and an attempt or frustration to commit the
substance to sustain a conviction and after the same (P. vs. Bocar, 138 SCRA 169).
accused had pleaded to the charge, the conviction
or acquittal of the accused or the dismissal of the
case shall be a bar to another prosecution for the Bar Exam Question 2011
offense charged, or for any attempt to commit the (52) The accused was convicted for estafa
same or frustration thereof, or for any offense thru falsification of public document filed by
which necessarily includes or is necessarily one of two offended parties. Can the other
included in the offense charged in the former offended party charge him again with the
complaint or information. same crime? (A) Yes, since the wrong done
the second offended party is a separate

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crime. (B) No, since the offense refers to prosecutor then filed an information in the RTC,
the same series of act, prompted by one charging D with direct assault based on the same facts
criminal intent. (C) Yes, since the second alleged in the information for slight physical injuries
offended party is entitled to the vindication of but with the added allegation that D inflicted the
the wrong done him as well. (D) No, since the injuries out of resentment for what the complainant
second offended party is in estoppel, not had done in the performance of his duties as chairman
having joined the first criminal action. of the board of election inspectors. D moved to quash
the second information on the ground that its filing
had placed him in double jeopardy. How should D’s
Actions; Commencement of an Action; Double Jeopardy motion to quash be resolved? (4%)
(2004) SUGGESTED ANSWER:
SPO1 CNC filed with the MTC in Quezon City D’s motion to quash should be granted on the ground
(MeTCQC) a sworn written statement duly subscribed of double jeopardy because the first offense charged is
by him, charging RGR (an actual resident of Cebu necessarily included in the second offense charged.
City) with the offense of slight physical injuries [Draculan v. Donato, 140 SCRA 425 (1985)].
ALTERNATIVE ANSWER:
allegedly inflicted on SPS (an actual resident of
Quezon City). The Judge of the branch to which the D’s motion to quash should be denied because the two
case was raffled thereupon issued an order declaring dismissals of the case against him were on his motion
that the case shall be governed by the Rule on (hence with his express consent) and his right to a
Summary Procedure in criminal cases. speedy trial was not violated.
Soon thereafter, the Judge ordered the dismissal of the
case for the reason that it was not commenced by Double Jeopardy; Upgrading; Original Charges (2005)
For the multiple stab wounds sustained by the victim,
information, as required by said Rule. Sometime later,
Noel was charged with frustrated homicide in the
based on the same facts giving rise to the slight
RTC. Upon arraignment, he entered a plea of guilty to
physical injuries case, the City Prosecutor filed with the
same MeTC-QC an information for attempted said crime. Neither the court nor the prosecution was
aware that the victim had died two days earlier on
homicide against the same RGR. In due time, before
account of his stab wounds. Because of his guilty plea,
arraignment, RGR moved to quash the information on
Noel was convicted of frustrated homicide and meted
the ground of double jeopardy and after due hearing,
the corresponding penalty.
the Judge granted his motion. Was the dismissal of the
When the prosecution learned of the victim's death, it
complaint for slight physical injuries proper? Was the
filed within fifteen (15) days therefrom a motion to
grant of the motion to quash the attempted homicide
amend the information to upgrade the charge from
information correct? Reason (5%)
SUGGESTED ANSWER: frustrated homicide to consummated homicide. Noel
Yes, the dismissal of the complaint for slight physical opposed the motion claiming that the admission of the
injuries is proper because in Metropolitan Manila and amended information would place him in double
in chartered cities, the case has to be commenced only jeopardy. Resolve the motion with reasons. (4%)
SUGGESTED ANSWER:
by information. (Sec. 11, Revised Rule on Summary Procedure).
The amended information to consummated homicide
No, the grant of the motion to quash the attempted
from frustrated homicide does not place the accused in
homicide information on the ground of double
double jeopardy. As provided in the second paragraph
jeopardy was not correct, because there was no valid
of Sec. 7, Rule 117,2000 Rules of Criminal Procedure, the
prosecution for slight physical injuries.
conviction of the accused shall not be a bar to another
prosecution for an offense which necessarily includes
Double Jeopardy (2002)
D was charged with slight physical injuries in the the offense charged in the former complaint or
MTC. He pleaded not guilty and went to trial. After information when: (a) the graver offense developed
the prosecution had presented its evidence, the trial due to supervening facts arising from the same act or
court set the continuation of the hearing on another omission constituting the former charge; or (b) the
date. On the date scheduled for hearing, the facts constituting the graver charge became known or
prosecutor failed to appear, whereupon the court, on were discovered only after a plea was entered in the
motion of D, dismissed the case. A few minutes later, former complaint or information. Here, when the plea
the prosecutor arrived and opposed the dismissal of to frustrated homicide was made, neither the court nor
the case. The court reconsidered its order and directed the prosecution was aware that the victim had died
D to present his evidence. Before the next date of trial two days earlier on account of his stab wounds.
came, however, D moved that the last order be set
aside on the ground that the reinstatement of the case
It is necessary in the first case that:
had placed him twice in jeopardy. Acceding to this
motion, the court again dismissed the case. The

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1. The complaint or information or other  Violation of the prosecution’s right to due

formal charge was sufficient in form and process ousts court of jurisdiction (p. VS.
substance to sustain a conviction; Bocar, 138 SCRA 171);
2. The court had jurisdiction;  Judge must still be in office when
3. The accused had been arraigned and judgment is promulgated (P. vs. Tolentino,
pleaded; and GR NO. 4632 [1938]);
4. He was convicted or acquitted or the case See sec. 9, Rule 135.
was dismissed without his express
consent.  OPEN COURT DOCTRINE (Olaguer vs.
Military Commission, 150 SCRA 144);
When all this circumstances are present, they
constitute a BAR to second prosecution for: C. There must be a valid Arraignment and a
1. The same offense; valid plea:
2. An attempt to commit such offense;  No double jeopardy where accused is not
3. A frustration of said offense; validly arraigned (P. vs. Montiero, 192
4. Any offense which is necessarily included SCRA 548);
or necessarily includes the first offense.  Mere written manifestation not a valid plea
(Jimenez vs. Military Commission, 102
SCRA 40).
Discussions of the Requisites (for 1st jeopardy)
D. Termination of first case; by conviction,
A. complaint or information must be sufficient acquittal, and dismissal without express
in form and substance: consent:
 See notes on section 1;  No double jeopardy in PI (Bernarte vs.
 Authority of the person who filed the SND, 116 SCRA 43);
complaint or information;  Mere filing of two information not basis for
 Effects of defective information; double jeopardy (P. vs. Milflores,115
 Conviction under information which SCRA 570);
charges no offense is void (P. vs. Austria,  Dismissal must be definite and
94 Phil. 897); unconditional (P. vs. Jabajab, 100 Phil.
 Defective information may be cured by 307);
evidence if no objection (Serra vs.  Dismissal without prejudice to the filing of
Mortiga, 11 Phil. 762); another case is not termination (P. vs.
Mogul, 131 SCRA 296 [1984]);
But without prejudice of the right to be  Dismissal with grave abuse of discretion
informed of the nature and cause of amounting to excess of jurisdiction is null
accusation. and void and cannot be a basis for plea of
double jeopardy (P. vs. Mogul, supra.);
 Test of jeopardy is the crime charged in  Mere grave abuse of discretion (not
the information and not that proved on amounting to amounting to lack or excess
trial. Hence, a person charged of theft but of jurisdiction) not sufficient to bar
was acquitted, may subsequently application of double jeopardy (P. vs.
prosecuted for estafa, the offense proved Hernando, 108 SCRA 1221);
in the first case of theft.( P. vs. Magat de  Erroneous dismissal on the ground of
Soriano, 94 Phil. 188); prescription is valid and will not bar the
 Void information or complaint will not claim of double jeopardy (P. vs. Onel, GR
confer jurisdiction to the court to hear the NO. L- 8393, April 27, 1956);
case (P. vs. Manaba, 58 Phil. 665).  Presence of accused not indispensable in
promulgation but may however, lose the
B. Court of competent jurisdiction: remedies provided by the rules (sec. 6,
 Jurisdiction is conferred by law and in Rule 120);
some cases, the constitution itself;  Judge who rendered the decision must
 Determined in the allegations; still be in office (P. vs. So, L-8732, July
 Determined, generally at the time of filing 30, 1957);
of action;  Judgment must be promulgated in its
 Valid complaint/information confers entirety. If no promulgation, there is also
jurisdiction (P. vs. Jayme, 24 Phil. 90); no double jeopardy (Dizon vs. Lopez, 278
 Venue is jurisdictional in criminal cases; SCRA 143);

________________________________________________________________________________________________
Note: Reading of the dispositive 8. Separate offenses under RPC.

portion is not enough. However, in
case if very lengthy judgments, upon TEST FOR DETRMINING WHETHER THE
motion, promulgation may be limited OFFENSES ARE IDENTICAL
to the dispositive portion only.
A. SAME OFFENSE TEST
 Silence does not mean consent (P. vs. There is identity between two offenses not
Ylagan, 58 Phil. 851); only when the 2nd offense is exactly the
Note: but a notation of “No Objection” at same as the first, but also when the 2nd
the bottom of the prosecution’s motion to offense is an attempt or frustration of, or is
dismiss constitutes an express consent necessarily included in the offense
(Pendatun vs. Aragon, 93 Phil. 798). charged in the 1st information.
 An appeal by the private complainant on
the civil aspect of a criminal case, of EXCEPTIONS TO THE IDENTITY RULE
which the accused is acquitted, does not 1. The graver offense developed due to
put the accused in double jeopardy supervening facts arising from the same
(Manantan vs. CA, L-107125, Jan. 29, act or omission constituting the former
2001). charge;
2. The facts constituting the graver offense
became known or were discovered only
The discharge of a defendant on a PI is not such after a plea was entered in the former
an adjudication as will bar subsequent prosecution complaint or information;
of the offense. The accused is not yet arraigned 3. The plea of guilty to the lesser offense
on PI. was made without the consent of the
prosecutor and the offended party; except
DISMISSAL VS. ACQUITTAL when the offended party fails to appear
Acquittal is always based on the merits, that is during arraignment in which case, it may
the defendant is acquitted because the evidence be made with the consent of the trial
does not show defendant’s guilt beyond prosecutor alone.
reasonable doubt; but dismissal does not decide
the case on the merits or that the defendant is not B. SAME EVIDENCE TEST
guilty. Whether the facts as alleged in the 2 nd
information, if proved, would have been
If an act is punished by two provisions of law or sufficient to sustain the former
statutes, but each provision requires proof of an information, or for which the accused may
additional fact which the other does not require, have been acquitted or convicted.
NEITHER conviction nor acquittal in one will bar a
prosecution for the other (Perez vs. CA, 163 OTHER NOTES:
SCRA 236). Warning against prosecution of several
offenses arising from a single act;
Examples (no double jeopardy): Only one criminal prosecution for single
1. Estafa and violation of BP 22 (P. vs. criminal intent;
Reyes, 228SCRA13); Single larcency test
2. Selling mortgage property (Act 1506) and Prohibition of filing from lowest to highest;
estafa for selling mortgaged property as
free from encumbrance (P. vs. Alvarez, SAME ACT PUNISHED BY LAW AND
45 Phil. 472); ORDINANCE.
3. Illegal fishing and illegal possession of
explosives (P vs. Acierto, 95 Phil. 865); The filing of a criminal case for violation of an
4. Alarm and scandal and discharge of ordinance prohibiting the unauthorized installation
firearm (P. vs. Doriquiez, 24 SCRA 164); of electrical devises intended to unlawfully lessen
5. Illegal possession and theft (P. vs. the electrical consumption, which was dismissed
Remerata, 98 Phil. 413); because of prescription, bars the filing of criminal
6. Illegal possession and carrying firearm case of theft under the RPC (P. vs. Relova, 148
outside residence without permit (P. vs. SCRA 304).
Bacani, 120 SCRA 271);
7. Consented abduction and qualified The rule of double jeopardy in reckless
seduction (Perez vs. CA, GR NO. 80838, imprudence cases.
Nov. 29, 1988).

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There is no complex crime where one offense is

light offense. They are separate offenses subject
to different penalties. Reckless imprudence Section 8. Provisional dismissal. — A case shall
resulting in slight physical injuries and reckless not be provisionally dismissed except with the
imprudence resulting to damage to property is not express consent of the accused and with notice to
complex crime and CANNOT be a subject of a the offended party.
single information. The two cases may however
be consolidated (Reodica vs. CA, reiterating The provisional dismissal of offenses punishable
Lontok vs. Gorgonio, 89 SCRA 632 [1979]). by imprisonment not exceeding six (6) years or a
fine of any amount, or both, shall become
NOTE: This ruling is already modified. There shall permanent one (1) year after issuance of the
be no splitting of charges and only one information order without the case having been revived. With
shall be filed in the same court (Ivler vs. Modesto- respect to offenses punishable by imprisonment of
San Pedro, 635 SCRA 191). more than six (6) years, their provisional
dismissal shall become permanent two (2) years
GR: Appeal by the prosecution is generally
after issuance of the order without the case having
prohibited (P. vs. Ang Cho Kio, 95 Phil. 475). been revived. (n)
Exceptions:
1. If dismissal is made upon motion, or with Bar Exam Question 2011
express consent of the accused; (2) A pending criminal case, dismissed
2. The dismissal is not an acquittal or based provisionally, shall be deemed permanently
upon consideration of the evidence or dismissed if not revived after 2 years with
merits of the case; respect to offenses punishable by
3. The question to be passed upon is purely imprisonment (A) of more than 12 years. (B)
legal one so that the dismissal if found to not exceeding 6 years or a fine not exceeding
be incorrect, the case would be remanded P1,000.00.
to the court of origin for further (C) of more than 6 years or a fine in excess of
proceedings (P. vs. Carandang, GR NO. P1,000.00. (D) of more than 6 years.
L-434659, Dec. 21, 1990).
Note: if no revival of the case within the
GR: Review on certiorari is likewise, generally prescribed period, the dismissal becomes
prohibited (P. vs. Velasco, GR NO. 127444, Sept. permanent.
13, 2000).
GR: Where the case is dismissed provisionally
Exception: there is want of jurisdiction or grave with the consent of the accused, he cannot invoke
abuse of discretion (P. vs. CA, 308 SCRA 687). double jeopardy in another prosecution therefor or
where the case is reinstated on a motion for
GR: No reopening of the case to modify judgment reconsideration by the prosecution
of the defendant (P. vs. Paet, 100 Phil. 357).
EXCEPTIONS: Where the dismissal was actually
Exception: Where the judgment made an acquittal based on:
reservation [mere continuation] (Lim vs. Oreta, 94 1. Lack or insufficiency of the evidence
Phil. 40). (Demurrer to Evidence);
2. Denial of the right to speedy trial, hence
Appeal by the offended party of the civil liability even if he accused gave his express
but does not allow that the accused be convicted consent to such dismissal or moved for
of a higher offense (Heirs of Tito Rillorta vs. Firme, such dismissal, such consent is
157 SCRA 518). immaterial as such dismissal is actually an
acquittal.
NOTE: Double jeopardy is available in contempt
proceedings, whether civil or criminal contempt,
because contempt is essentially criminal in nature Exception to the exception:
(Santiago vs. Asuncion, 184 SCRA 118 [1990]). Q. Can the trial court reconsider its order of
dismissal based on failure to prosecute (violation
Question of double jeopardy not reviewable by a of accused’s right to speedy trial) without violating
writ of habeas corpus because HC does not delve the accused’s right against double jeopardy?
into the question of jurisdiction. The remedy is to
complement certiorari with HC.

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Ans. Yes, if it appears that there was in fact no The accused gave his express consent to the
unreasonable, vexatious and oppressive delay in provisional dismissal of the case. The offended party
the proceedings. Hence, there was no reason to was notified of the dismissal but she refused to give
support the initial order of dismissal. It follows her consent.
then that accused cannot invoke his constitutional Subsequently, the private complainant urged the public
right against double jeopardy because accused’s prosecutor to refile the murder charge because the
right to speedy trial was not transgressed. accused failed to pay the consideration which he had
Moreover, the trial court’s order was upon motion promised for the execution of the Affidavit of
of accused’s counsel, hence, made with his Desistance. The public prosecutor obliged and refiled
express consent. That being the case, despite the the murder charge against the accused on 01 February
reconsideration of said order, double jeopardy did 2003, the accused filed a Motion to Quash the
not attach. (Almario vs CA, et al. L-127772, Information on the ground that the provisional
March 22, 2001). dismissal of the case had already become permanent.
(6%)
Additional Notes: a) Was the provisional dismissal of the case proper?
If the case is wrongfully dismissed, as long as the b) Resolve the Motion to Quash.
prosecution is not denied of its day in court, the SUGGESTED ANSWER:
case may not be appealed or disturbed by (a) The provisional dismissal of the case was proper
certiorari and mandamus. Double jeopardy sets in because the accused gave his express consent thereto
(P. vs. Lagui, 171 SCRA 305). and the offended party was notified. It was not
necessary for the offended party to give her consent
Q. The trial court (RTC) dismissed the case and thereto. (Sec. 8 of Rule 117).
denied the motion for reconsideration (MFR) filed (b) The motion to quash the information should be
by the prosecution. Upon petition for Certiorari denied because, while the provisional dismissal had
under Rule 65 filed by the prosecution with the already become permanent, the prescriptive period for
Court of Appeals, the latter nullified the RTC’s filing the murder charge had not prescribed. There was
order dismissing the case and directed the trial
no double jeopardy because the first case was
court to reinstate the case and continue the
dismissed before the accused had pleaded to the
proceedings. In the RTC, the accused raised the
charge. (Sec. 7 of Rule 117).
issue that to reinstate the case against him would
violate his constitutional right against double
Provisional Dismissal (2002)
jeopardy. Resolve. In a prosecution for robbery against D, the prosecutor
moved for the postponement of the first scheduled
Ans. Untenable. The trial court acted without
hearing on the ground that he had lost his records of
jurisdiction or with grave abuse of discretion in
the case. The court granted the motion but, when the
ordering the dismissal of the case and in denying
new date of trial arrived, the prosecutor, alleging that
the MFR filed by the prosecution. Hence, in
effect, the first jeopardy was never terminated and
he could not locate his witnesses, moved for the
the remand of the criminal case for further hearing provisional dismissal of the case. If D’s counsel does
and/or trial before the trial court amounts merely to not object, may the court grant the motion of the
a continuation of the first jeopardy, and does not prosecutor? Why? (3%)
SUGGESTED ANSWER:
expose the accused to a second jeopardy.
No, because a case cannot be provisionally dismissed
(People vs Tac-an, L-148000, Feb. 27, 2003, 398
except upon the express consent of the accused and
SCRA 373).
with notice to the offended party. (Rule 117, sec. 8).
No double jeopardy if there was no valid
promulgation of judgment.
Section 9. Failure to move to quash or to allege
Dismissal; Provisional Dismissal (2003) any ground therefor. — The failure of the
Before the arraignment for the crime of murder, the accused to assert any ground of a motion to
private complainant executed an Affidavit of quash before he pleads to the complaint or
Desistance stating that she was not sure if the accused information, either because he did not file a motion
was the man who killed her husband. The public to quash or failed to allege the same in said
prosecutor filed a Motion to Quash the Information motion, shall be deemed a waiver of any
on the ground that with private complainant’s objections except those based on the grounds
desistance, he did not have evidence sufficient to provided for in paragraphs (a), (b), (g), and (i) of
convict the accused. On 02 January 2001, the court section 3 of this Rule. (8)
without further proceedings granted the motion and
provisionally dismissed the case. Non-waivable grounds:

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1. Information does not charge an offense; (f) such other matters as will promote a fair
2. Lack of jurisdiction of the court; and expeditious trial of the criminal and civil
3. Extinction of the offense or penalty; aspects of the case. (secs. 2 and 3, cir. 38-98)
4. Double jeopardy.
Note: If the accused had pleaded not guilty to the
crime charged, he may state whether he
interposes a negative or affirmative defense. A
RULE 118 negative defense shall require the prosecution to
prove the guilt of the accused beyond reasonable
Pre-Trial doubt, while an affirmative defense may modify
the order of trial and require the accused to prove
such defense by clear and convincing evidence
IMPORTANCE OF PRE-TRIAL (sec. 3 Circular 38-98).[Sec. 7, par. 2, Speedy
1. It covers not only that period technically Trial Act]
defined in Rule 118 but also that period
from filing of the information up to the NOTE: This disclosure order runs counter to the
actual conduct of trial; right of the accused to be presumed innocent and
2. It encompasses many legal remedies the burden of proof (sec. 14, art. lll, 1987
such as the filing of a motion to quash Constitution).
(Rule 117), motion to suppress evidence
(Rule 126, sec. 14), motion for the It would result in absurdity where the accused
determination of probable cause (Rule pleads “not guilty” but may be required to prove
126); his innocence if he interposes “an affirmative
3. It is that period when accused may invoke defense.”
the presumption of innocence and be
assured that he need not say or do
anything else (old rule was that pre-trial is
at the option of the accused). PRE-TRIAL IN CIVIL PRE-TRIAL IN
CASES CRIMINAL CASES
Section 1. Pre-trial; mandatory in criminal The presence of the The accused is merely
cases. — In all criminal cases cognizable by the defendant is required, required to sign the
Sandiganbayan, Regional Trial Court, unless he is duly written agreement
Metropolitan Trial Court, Municipal Trial Court in represented at the pre- arrived at in the pre-trial
Cities, Municipal Trial Court and Municipal Circuit trial conference by his conference, if he is in
Trial Court, the court shall after arraignment and counsel with the conformity with it.
within thirty (30) days from the date the court requisite authority to Unless otherwise
acquires jurisdiction over the person of the enter into a required by the court,
accused, unless a shorter period is provided for in compromise his presence therefore
special laws or circulars of the Supreme Court, agreement, failing in is not indispensable.
order a pre-trial conference to consider the either of which the case NOTE: This is aside
following: will proceed as if the from the consideration
defendant has been that the accused may
(a) plea bargaining; declared in default waive the right to be
present at any stage of
(b) stipulation of facts; the proceeding except
at arraignment,
promulgation of
(c) marking for identification of evidence of the
judgment, or required
parties;
by the court for
purposes of
(d) waiver of objections to admissibility of identification.
evidence; The presence of the The presence of the
plaintiff is required at private offended party is
(e) modification of the order of trial if the the pre-trial unless not required at the pre-
accused admits the charge but interposes a excused therefrom for trial. Instead, he is
lawful defense; and valid reasons or if he is required to appear at
represented by a the arraignment of the
person fully authorized accused for the
in writing to perform the purposes of plea

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acts specified in sec. 4, bargaining, caused by Atty. OP, he was substituted by Atty. QR as
Rule 18. determination of civil defense counsel. Atty. QR forthwith filed a motion to
Absent such liability, and other withdraw the "Joint Stipulation," alleging that it is
justification, the case matters requiring is prejudicial to the accused because it contains, inter alia,
may be dismissed with presence. the statement that the "Defense admitted all the
or with out prejudice. Should he fail to appear documentary evidence of the Prosecution," thus
therein, and the leaving the accused little or no room to defend
accused offers to plead himself, and violating his right against self-
to a lesser offense incrimination. Should the court grant or deny QR's
necessarily included in motion? Reason. (5%)
the offense charged, he SUGGESTED ANSWER:
may be allowed to do The court should deny QR's motion. If in the pretrial
so with the conformity agreement signed by the accused and his counsel, the
of the prosecutor alone. accused admits the documentary evidence of the
A pre-trial brief is No pre-trial brief but prosecution, it does not violate his right against self-
required with the only requires the incrimination. His lawyer cannot file a motion to
particulars and the attendance at the pre- withdraw. A pre-trial order is not needed. (Bayas v.
sanctions provided by trial conference to Sandiganbayan, 391 SCRA 415(2002}). The
sec. 6, Rule 18 consider matters stated admission of such documentary evidence is allowed by
in sec. 2 Rule 118 the rule. (Sec. 2 of Rule 118; People v. Hernandez,
260 SCRA 25 [1996]).
Pre-Trial; Criminal Case vs. Civil Case (1997)
Give three distinctions between a pre-trial in a criminal
case and a pre-trial in a civil case. SUGGESTED NOTE: Admissions deemed waiver of the right of
ANSWER: confrontation. The admission of the accused that
Three distinctions between a pre-trial in a criminal case the witness, if present, would testify to certain
and a pre-trial in a civil case are as follows: matters stated in the affidavit of the prosecution
1. The pre-trial in a criminal case is conducted only (US vs. Anastacio, 6 Phil. 413).
"where the accused and counsel agree" (Rule 118, Sec. 1):
while the pre-trial in a civil case is mandatory. (Sec. 1 of Admissions also would result to [deemed] waiver
former Rule 20; Sec, 1 of new Rule 18). of the right to present evidence on his behalf (P.
2. The pre-trial in a criminal case does not consider the vs. Dichoso, 96 SCRA 957).
possibility of a compromise, which is one important
aspect of the pre-trial in a civil case. (Sec. 1 of former Rule Note: stipulations of facts during trial need not be
20; Sec. 2 of new Rule 18). in writing. They are already contained in the TSN.
3. In a criminal case, a pre-trial agreement is required
to be reduced to writing and signed by the accused and GR: The admissions of the counsel during (in the
his counsel (See; Rule 118, Sec. 4); while in a civil case, the course of) trial, as a general rule binds the client
agreement may be contained in the pretrial order. (Sec. 4 and need not be in writing (P. vs. Ravelo, 202
of former Rule 20; See 7 of new Rule 78). SCRA 655).
Section 2. Pre-trial agreement. — All agreements EXCEPTION: When the mistake of the lawyer
or admissions made or entered during the pre-trial would result in serious injustice [prejudicial to the
conference shall be reduced in writing and signed substantial rights] to the client (Villa Rheccar Bus
by the accused and counsel, otherwise, they vs. De La Cruz, 157 SCRA13).
cannot be used against the accused. The
agreements covering the matters referred to in The agreements referred to in this section is
section 1 of this Rule shall be approved by the subject to the approval of the court; Provided, That
court. (sec. 4, cir. 38-98) that agreement on the plea of the accused to a
lesser offense may only be revised, modified, or
Pre-Trial Agreement (2004) annulled by the court when the same is contrary
Mayor TM was charged of malversation through to law, public morals, or public policy (sec. 3,
falsification of official documents. Assisted by Atty. Speedy Trial Act of 1998).
OP as counsel de parte during pre-trial, he signed
together with Ombudsman Prosecutor TG a "Joint Plea to a lesser offense must be for an offense
Stipulation of Facts and Documents," which was which is necessarily included in the offense
presented to the Sandiganbayan. Before the court charged (sec. 4 Circular 38-98).
could issue a pre-trial order but after some delay

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Note: No plea bargaining in cases under RA parties, limit the trial to matters not disposed of,
9165, sec. 23. and control the course of the action during the
trial, unless modified by the court to prevent
REQUISITES before the pre-trial agreement can manifest injustice. (3)
be used as evidence:
1. They are reduced to writing; NOTE: Thereafter, where a plea of not guilty is
2. The pre-trial agreement is signed by the entered, the accused shall have at least 15 days
accused and his counsel. to prepare for trial which shall commence within
30 days from receipt of the pre-trial order (sec.
The requirement in sec. 2 is intended to safeguard 6,Circ. 38-98).
the right of the accused against improvident or
unauthorized agreements or admissions, which
his counsel may have entered into, or which any
person may ascribed to the accused without his
knowledge, as he may have waived his presence
at the pre-trial conference. RULE 119
The omission of signature of the accused and his Trial

counsel, as mandatorily required, renders the
stipulation of facts inadmissible in evidence (P. vs. TRIAL
Marollano, 276 SCRA 84 [1997]). The examination before a competent tribunal
according to the laws of the land, of the facts put
Section 3. Non-appearance at pre-trial in issue in a case for the purpose of determining
conference. — If the counsel for the accused or such issue.
the prosecutor does not appear at the pre-trial
conference and does not offer an acceptable Section 1. Time to prepare for trial. — After a
excuse for his lack of cooperation, the court may plea of not guilty is entered, the accused shall
impose proper sanctions or penalties. (se. 5, cir. have at least fifteen (15) days to prepare for trial.
38-98) The trial shall commence within thirty (30) days
from receipt of the pre-trial order. (sec. 6, cir. 38-
Note: the sanctions or penalty may be in the form 98)
of reprimand, fine or imprisonment. Inasmuch as
this is similar to indirect contempt of court, the Note: Denial of the right to prepare for trial is a
penalty for indirect contempt may be imposed. reversible error. A trial without opportunity to
prepare for it, when granted by law whose terms
The accused is not the one compelled to appear, are mandatory and imperative, is no trial at all
but only the counsel of the accused or the (Montilla vs. Arellano).
prosecutor. The principal reason why accused is
not included in the mandatory appearance is the Bar Exam Question 2012
fear that to induce him is to violate his 41. After a plea of not guilty is entered, the
constitutional right to remain silent. accused shall have _____ days to prepare for
trial.
Bar Exam Question 2011 a. 15;
(60) What is the consequence of the b. 10;
unjustified absence of the defendant at the c. 30;
pre-trial? (A) The trial court shall declare him d. None of the above.
as in default. (B) The trial court shall SUGGESTED ANSWER: (a), After a plea of
immediately render judgment against him. not guilty is entered, the accused shall
(C) The trial court shall allow the plaintiff have at least fifteen (15) days to prepare
to present evidence ex-parte. (D) The trial for trial. The trial shall commence within
court shall expunge his answer from the (30) days from receipt of the pre-trial
record. order. (Rule 119, Sec. 1, Rules of Court).
Section 4. Pre-trial order. — After the pre-trial Section 2. Continuous trial until terminated;
conference, the court shall issue an order reciting postponements. — Trial once commenced shall
the actions taken, the facts stipulated, and continue from day to day as far as practicable until
evidence marked. Such order shall bind the

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terminated. It may be postponed for a reasonable of the trial of a defendant against his protest
period of time for good cause. (2a) beyond a reasonable period of time:
1. Mandamus to compel dismissal of the
The court shall, after consultation with the action;
prosecutor and defense counsel, set the case for 2. If he is restrained of his liberty, Habeas
continuous trial on a weekly or other short-term Corpus to obtain his freedom.
trial calendar at the earliest possible time so as to
ensure speedy trial. In no case shall the entire trial The SC adopted continuous trial system as a
period exceed one hundred eighty (180) days mode of judicial fact finding and adjudication
from the first day of trial, except as otherwise conducted with speed and dispatch so that trials
authorized by the Supreme Court. (sec. 8, cir. 38- are held on the scheduled dates without
98). postponement, the factual issues for trial well-
defined at pre-trial and the whole proceedings
terminated and ready for judgment within 90 days
The time limitations provided under this section
from date of initial hearing, unless for meritorious
and the preceding section shall not apply where
reasons an extension is permitted.
special laws or circulars of the Supreme Court
provide for a shorter period of trial. (n)
The system requires that the Presiding Judge:
1. Adhere faithfully to the session hours
EXAMPLE CASES WHERE TIME LIMIT NOT prescribed by laws;
APPLICABLE 2. Maintain full control of the proceedings;
and
1. RA 7610—Trial shall commence within 3 3. Effectively allocate and use time and court
days from arraignment; resources to avoid court delays.
The non-appearance of the prosecution at the
2. RA 4908—Complainant is about to depart trial, despite due notice, justified a provisional or
from the Philippines without definite date an absolute dismissal depending upon the
of return; accused should be arraigned circumstances.
without delay and trial should commence
within 3 days.
Section 3. Exclusions. — The following periods of
No postponement except sickness of the
delay shall be excluded in computing the time
accused or other grounds beyond the
within which trial must commence:
court’s control;
(a) Any period of delay resulting from other

3. Criminal cases covered by the Rules on
proceedings concerning the accused, including
Summary Procedure where the penalty
but not limited to the following:
imposable does not exceed 6 months
imprisonment or a fine of 1,000.00 pesos,
or both; (1) Delay resulting from an examination of
4. Administrative Order No. 104-96; the physical and mental condition of the
5. General Order No. 39, Sept. 19, 1973, accused;
cases involving tourist or transients must
be disposed within 24 hours after filing (2) Delay resulting from proceedings with
thereof. respect to other criminal charges against
the accused;
REQUISITES before a trial can be put-off on
account of absence of witness: (3) Delay resulting from extraordinary
1. The witness is material and appears to be remedies against interlocutory orders;
such to the court;
2. That the party who applies is not guilty of (4) Delay resulting from pre-trial
neglect; proceedings; provided, that the delay
3. That the witness can be had at the time to does not exceed thirty (30) days;
which the trial is deferred;
4. No similar evidence could be obtained;
5. That an affidavit showing the existence of (5) Delay resulting from orders of
the above circumstances must be filed. inhibition, or proceedings relating to
change of venue of cases or transfer from
Remedies of the accused where a prosecuting other courts;
officer without good cause secure postponements

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(6) Delay resulting from a finding of the impossible or result in a miscarriage of justice;
existence of a prejudicial question; and and
(7) Delay reasonably attributable to any (b) Whether or not the case taken as a whole
period, not exceed thirty (30) days, during is so novel, unusual and complex, due to the
which any proceeding which any number of accused or the nature of the
proceeding concerning the accused is prosecution, or that it is unreasonable to
actually under advisement. expect adequate preparation within the
periods of time established therein.
(b) Any period of delay resulting from the absence
or unavailability of an essential witness. In addition, no continuance under section 3(f) of
this Rule shall be granted because of congestion
For purposes of this subparagraph, an essential of the court's calendar or lack of diligent
witness shall be considered absent when his preparation or failure to obtain available witnesses
whereabouts are unknown or his whereabouts on the part of the prosecutor. (sec. 10, cir. 38-98)
cannot be determined by due diligence. He shall
be considered unavailable whenever his Notes:
whereabouts are known but his presence for trial Grant of postponement subject to the
cannot be obtained by due diligence. sound discretion of the court;
The lawyer should not presumed that his
(c) Any period of delay resulting from the mental request for postponement will be granted
incompetence or physical inability of the accused by the court.
to stand trial.
Section 5. Time limit following an order for new
(d) If the information is dismissed upon motion of trial. — If the accused is to be tried again
the prosecution and thereafter a charge is filed pursuant to an order for a new trial, the trial shall
against the accused for the same offense, any commence within thirty (30) days from notice of
period of delay from the date the charge was the order, provided that if the period becomes
dismissed to the date the time limitation would impractical due to unavailability of witnesses and
commence to run as to the subsequent charge other factors, the court may extend it but not to
had there been no previous charge. exceed one hundred eighty (180) days from
notice of said order for a new trial. (sec. 11, cir.
(e) A reasonable period of delay when the 38-98)
accused is joined for trial with a co-accused over
whom the court has not acquired jurisdiction, or, Section 6. Extended time limit. —
as to whom the time for trial has not run and no Notwithstanding the provisions of section 1(g),
motion for separate trial has been granted. Rule 116 and the preceding section 1, for the first
twelve-calendar-month period following its
(f) Any period of delay resulting from a effectivity on September 15, 1998, the time limit
continuance granted by any court motu proprio, or with respect to the period from arraignment to trial
on motion of either the accused or his counsel, or imposed by said provision shall be one hundred
the prosecution, if the court granted the eighty (180) days. For the second twelve-month
continuance on the basis of its findings set forth in period, the limit shall be one hundred twenty (120)
the order that the ends of justice served by taking days, and for the third twelve-month period, the
such action outweigh the best interest of the public time limit shall be eighty (80) days. (sec. 7, cir. 38-
and the accused in a speedy trial. (sec. 9, cir. 38- 98)
98)
Note: This is now obsolete (Ucat).
Section 4. Factors for granting continuance. —
The following factors, among others, shall be Section 7. Public attorney's duties where
considered by a court in determining whether to accused is imprisoned. — If the public attorney
grant a continuance under section 3(f) of this Rule. assigned to defend a person charged with a crime
knows that the latter is preventively detained,
(a) Whether or not the failure to grant a either because he is charged with a bailable crime
continuance in the proceeding would likely but has no means to post bail, or, is charged with
make a continuation of such proceeding a non-bailable crime, or, is serving a term of

________________________________________________________________________________________________
imprisonment in any penal institution, it shall be hereof, the court may punish such counsel,
his duty to do the following: attorney, or prosecution, as follows:
(a) Shall promptly undertake to obtain the (1) By imposing on a counsel privately
presence of the prisoner for trial or cause retained in connection with the defense of
a notice to be served on the person an accused, a fine not exceeding twenty
having custody of the prisoner requiring thousand pesos (P20,000.00);
such person to so advise the prisoner of
his right to demand trial. (2) By imposing on any appointed counsel
de oficio, public attorney, or prosecutor a
(b) Upon receipt of that notice, the fine not exceeding five thousand pesos
custodian of the prisoner shall promptly (P5,000.00); and
advise the prisoner of the charge and of
his right to demand trial. If at anytime (3) By denying any defense counsel or
thereafter the prisoner informs his prosecutor the right to practice before the
custodian that he demands such trial, the court trying the case for a period not
latter shall cause notice to that effect to exceeding thirty (30) days. The
sent promptly to the public attorney. punishment provided for by this section
shall be without prejudice to any
(c) Upon receipt of such notice, the public appropriate criminal action or other
attorney shall promptly seek to obtain the sanction authorized under these rules.
presence of the prisoner for trial. (sec. 13, cir. 38-98)
(d) When the custodian of the prisoner Section 9. Remedy where accused is not
receives from the public attorney a brought to trial within the time limit. — If the
properly supported request for the accused is not brought to trial within the time limit
availability of the prisoner for purposes of required by Section 1(g), Rule 116 and Section 1,
trial, the prisoner shall be made available as extended by Section 6 of this rule, the
accordingly. (sec. 12, cir. 38-98) information may be dismissed on motion of the
accused on the ground of denial of his right of
NOTE: Public Attorneys referred to in this section speedy trial. The accused shall have the burden of
are those attorneys of the PAO of the Department proving the motion but the prosecution shall have
of Justice who are assisting the accused not the burden of going forward with the evidence to
financially capable to have counsel of their own. establish the exclusion of time under section 3 of
These public attorneys enter their appearance in this rule. The dismissal shall be subject to the
behalf of the accused upon his request or that of rules on double jeopardy.
his relative or upon being appointed as counsel de
oficio by the court. Failure of the accused to move for dismissal prior
to trial shall constitute a waiver of the right to
Section 8. Sanctions. — In any case in which dismiss under this section. (sec. 14, cir. 38-98)
private counsel for the accused, the public
attorney, or the prosecutor. Trial; Remedies (2013)
No.IV. At the Public Attorney's Office station
(a) Knowingly allows the case to be set for in Taguig where you are assigned, your work
trial without disclosing that a necessary requires you to act as public defender at the
witness would be unavailable for trial; local Regional Trial Court and to handle
cases involving indigents.
(b) Files a motion solely for delay which he (A) In one criminal action for qualified theft
knows is totally frivolous and without merit; where you are the defense attorney, you
learned that the woman accused has been in
detention for six months, yet she has not
(c) Makes a statement for the purpose of
been to a courtroom nor seen a judge. What
obtaining continuance which he knows to be
remedy would you undertake to address the
false and which is material to the granting of a
continuance; or situation and what forum would you use to
invoke this relief? (3%)
SUGGESTED ANSWER: Section 7, Rule 119
(d) Willfully fails to proceed to trial without provides, if the public attorney assigned
justification consistent with the provisions

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to defend a person charged with a crime in the conduct of the arraignment of

knows that the latter is preventively petitioner, he has indeed the right to
detained, either because he is charged demand – through a writ of mandamus –
with a bailable crime but has no means to expeditious action from all official tasked
post bail, or, is charged with a non- with the administration of justice. Thus,
bailable crime, or, is serving a term of he may not only demand that his
imprisonment in any penal institution, it arraignment be held but, ultimately, that
shall be his duty to do the following: (a) the information against him be dismissed
Shall promptly undertake to obtain the on the ground of the violation of his right
presence of the prisoner for trial or cause to speedy trial.” Ergo, a writ of mandamus
a notice to be served on the person having is available to the accused to compel the
custody of the prisoner requiring such dismissal of the case.
person to so advise the prisoner of his
right to demand trial. ALTERNATIVE ANSWER: The appropriate
(b) Upon receipt of that notice, the remedy of the detained accused is to
custodian of the prisoner shall promptly apply for bail since qualified theft is
advise the prisoner of the charge and of bailable, and she is entitled to bail before
his right to demand trial. If at any time conviction in the Regional Trial Court
thereafter the prisoner informs his (Section 4, Rule 114 of the Rules of
custodian that he demands such trial, the Criminal Procedure). [Note: unless the
latter shall cause notice to that effect to aggregate value of the property stolen is
be sent promptly to the public attorney. P500,000 and the above she will not be
Xxx Moreover, Section 1 (e), Rule 116 entitled to bail as a matter of right,
provides, when the accused is under because the penalty for the offense is
preventive detention, his case shall be reclusion perpetua pursuant to
raffled and its records transmitted to the Memorandum Order No. 117
judge to whom the case was raffled within
the three (3) days from the filing of the (B) In another case, also for qualified theft,
information or complaint. The accused the detained young domestic helper has been
shall be arraigned within ten (10) days brought to court five times in the last six
from the date of the raffle. The pre-trial months, but the prosecution has yet to
conference of his case shall be held within commence the presentation of its evidence.
ten (10) days after the arraignment. On You find that the reason for this is the
the other hand, if the accused is not continued absence of the employer-
under preventive detention, the complainant who is working overseas. What
arraignment shall be held within thirty remedy is appropriate and before which
(30) days from the date the court acquires forum would you invoke this relief? (3%)
jurisdiction over the person of the SUGGESTED ANSWER:
accused. (Section 1 (g), Rule 116). I will file a motion to dismiss the
Since the accused has not been brought information in the court where the case is
for arraignment within the limit required pending on the ground of denial of the
in the aforementioned Rule, the accused right to speedy trial (Section 9,
Information may be dismissed upon Rule 119; Tan vs. People, G.R. No.
motion of the accused invoking his right 173637, April 21, 2009, Third Division,
to speedy trial (Section 9, Rule 119( or to Chico-Nazario, J.). this remedy can be
a speedy disposition of cases (Section 16, invoked, at any time, before trial and if
Article III, 1987 Constitution). granted will result to an acquittal. Since
the accused has been brought to Court
ALTERNATIVE ANSWER: A Petition for five times and in each instance it was
Mandamus is also feasible. In People vs. postponed, it is clear that her right to a
Lumanlaw, G.R. No. 164953, February 13, Speedy Trial has been violated. Moreover,
2006, the Supreme Court held that “a writ I may request the court to issue Subpoena
of mandamus may be issued to control the Duces Tecum and Ad Testificandum to the
exercise of discretion when, in the witness, so in case he disobeys same, he
performance of duty, there is undue delay may be cited in contempt. I may also file a
that can be characterized as a grave abuse motion to order the witness employer-
of discretion resulting in manifest complainant to post bail to secure his
injustice. Due to the unwarranted delays

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appearance in court. (Section 14, Rule application for bail is an appropriate

119). remedy to secure provisional liberty of the
ALTERNATIVE ANSWER: I will move for 14-year old boy. Under the Rules, bail is a
the dismissal of the case for failure to matter of right before or even after
prosecute. The grant of the motion will be conviction before the Metropolitan Trial
with prejudice unless the court says Court which has jurisdiction over the
otherwise. The Motion will be filed with crime of malicious mischief. (Section 4,
the Court where the action is pending. Rule 114 of the Rules of Criminal
Procedure). ALTERNATIVE ANSWER:
C) Still in another case, this time for illegal Under R.A. 9344 or otherwise known as
possession of dangerous drugs, the the Juvenile Justice and Welfare Act of
prosecution has rested but you saw from the 2006 as amended by R.A. 10630, a child
records that the illegal substance allegedly in conflict with the law has the right to
involved has not been identified by any of the bail and recognizance or to be transferred
prosecution witnesses nor has it been the to a youth detention home/youth
subject of any stipulation. rehabilitation center. Thus:
Should you now proceed posthaste to the
presentation of defense evidence or consider There a child is detained, the court shall
some other remedy? Explain the remedial order: (a) the release of the minor on
steps you propose to undertake. (3%) recognizance to his/her parents and other
SUGGESTED ANSWER: No. I will not suitable person; (b) the release of the child
proceed with the presentation of defense in conflict with the law on bail; or (c) the
evidence. I will first file a motion for leave transfer of the minor to a youth detention
to file demurrer to evidence within five (5) home/youth rehabilitation center. The
days from the time the prosecution has court shall not order the detention of a
rested its case. If the Motion is granted, I child in a jail pending trial or hearing of
will file a demurrer to evidence within a his case. The writ of habeas corpus shall
non-extendible period of ten (10) days extend to all cases of illegal confinement
from notice on the ground of insufficiency or detention by which any person is
of evidence. In the alternative, I may deprived of his liberty, or by which the
immediately file a demurrer to evidence rightful custody of any person is withheld
without leave of court (Section 23, Rule from the person entitled thereto (IN THE
119, Rules of Criminal Procedure). In MATTER OF THE PETITION OF HABEAS
People vs. De Guzman, G.R. No. 186498, CORPUS OF EUFEMIA E. RODRIGUEZ,
March 26, 2010, the Supreme Court held filed by EDGARDO E. VELUZ vs. LUISA R.
that in a prosecution for violation of the VILLANUEVA and TERESITA R. PABELLO,
Dangerous Drugs Act, the existence of the G.R. No. 169482, January 29, 2008,
dangerous drugs is a condition sine qua CORONA, J.).
non for conviction. The dangerous drug is Since minors fifteen (15) years of age and
the very corpus delicti of the crime. under are not criminally responsible, the
Similarly, in People vs. Sitco, G.R. No. child may not be detained to answer for
178202, May 14, 2010, the High Court the alleged offense. The arresting
held that in prosecutions involving authority has the duty to immediately
narcotics and other illegal substances, the release the child to the custody of his
substance itself constitutes part of the parents or guardians or in their absence to
corpus delicti of the offense and the fact the child‟s nearest relative (Section 20,
of its existence is vital to sustain a republic Act 9344).
judgment of conviction beyond reasonable
doubt. Following the hierarchy of courts, the
Petition must be filed in the Regional trial
(D) In one other case, an indigent mother Court having jurisdiction over the place
seeks assistance for her 14-year old son who where the child is being detained.
has been arrested and detained for malicious [Note: R.A. 9344 is not covered by the
mischief. Would an application for bail be the 2013 Bar Examination Syllabus for
appropriate remedy or is there another Remedial law].
remedy available? Justify your chosen
remedy and outline the appropriate steps to Section 10. Law on speedy trial not a bar to
take. (3%) SUGGESTED ANSWER: Yes. An provision on speedy trial in the Constitution.

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— No provision of law on speedy trial and no rule REVERSE TRIAL

implementing the same shall be interpreted as a When the accused admits the act or omission
bar to any charge of denial of the right to speedy charged in the complaint or information but
trial guaranteed by section 14(2), article III, of the interposes a lawful defense, the trial court may
1987 Constitution. (sec. 15, cir. 38-98) allow the accused to present his defense first and
thereafter give the prosecution the opportunity to
Section 11. Order of trial. — The trial shall present its rebuttal evidence.
proceed in the following order:
Refusal of the trial court to reverse the order of the
trial upon demand of the accused who pleads self-
(a) The prosecution shall present evidence to
defense as a defense is not reversible error (P. vs.
prove the charge and, in the proper case, the
Gutierrez, 302 SCRA 643).
civil liability.
Note: Trial of an accessory can proceed without
(b) The accused may present evidence to awaiting the result of separate charge against the
prove his defense, and damages, if any, principal as long as the commission of the offense
arising from the issuance of a provisional can be duly established in evidence (Vino vs. P.
remedy in the case. 178 SCRA 626 [1989]).
(c) The prosecution and the defense may, in Trial; Reverse Trial (2007) No.V. (b) What is
that order, present rebuttal and sur-rebuttal reverse trial and when may it be resorted to?
evidence unless the court, in furtherance of Explain briefly. (5%) SUGGESTED ANSWER:
justice, permits them to present additional A reverse trial is one where the defendant
evidence bearing upon the main issue. or the accused present evidence ahead of
the plaintiff or prosecution and the latter
(d) Upon admission of the evidence of the is to present evidence by way of rebuttal
parties, the case shall be deemed submitted to the former‟s evidence. This kind of
for decision unless the court directs them to trial may take place in a civil case when
argue orally or to submit written memoranda. the defendant‟s Answer pleads new
matters by way of affirmative defense, to
(e) When the accused admits the act or defeat or evade liability for plaintiff‟s
omission charged in the complaint or claim which is not denied but
information but interposes a lawful defense, controverted.
the order of trial may be modified. (3a) In a criminal case, a reverse trial may take
place when the accused made known to
GR: The order in the presentation of evidence the trial court, on arraignment, that he
must be followed. The accused may not be adduce affirmative defense of a justifying
required to present his evidence first before the or exempting circumstances and thus
prosecution adduces its own proof. impliedly admitting the act imputed to
him. The trial court may then require the
EXCEPTION: Where the reverse procedure was accused to present evidence first, proving
adopted without the objection of the defendant the requisites of the justifying or
and such procedure did not prejudice his exempting circumstance he is invoking,
substantial rights, the defect is not a reversible and the prosecution to present rebuttal
error. evidence controverting the same.
A departure from the order of the trial is not

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

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(c) that the witness is sick or infirm as to afford testify when required, it may, upon motion of either
reasonable ground for believing that he will party, order the witness to post bail in such sum
not be able to attend the trial, or resides more as may be deemed proper. Upon refusal to post
than one hundred (100) kilometers from the bail, the court shall commit him to prison until he
place of trial and has no means to attend the complies or is legally discharged after his
same, or that other similar circumstances exist testimony has been taken. (6a)
that would make him unavailable or prevent
him from attending the trial. Note: Even if the witness has been cited to
appear before a court sitting outside of the
The motion shall be supported by an affidavit of province in which he resides and the distance is
the accused and such other evidence as the court more than (50) now 100 km from his place of
may require. (4a) residence by usual course of travel, he is still
bound by the subpoena. Rule 23 applies only in
Section 13. Examination of defense witness; civil cases (P. vs. Montejo, 21 SCRA 722).
how made. — If the court is satisfied that the
examination of a witness for the accused is Connect to: sec. 14, Rule 110.
necessary, an order will be made directing that the
witness be examined at a specified date, time and Section 15. Examination of witness for the
place and that a copy of the order be served on prosecution. — When it satisfactorily appears
the prosecutor at least three (3) days before the that a witness for the prosecution is too sick or
scheduled examination. The examination shall be infirm to appear at the trial as directed by the order
taken before a judge, or, if not practicable, a of the court, or has to leave the Philippines with no
member of the Bar in good standing so designated definite date of returning, he may forthwith be
by the judge in the order, or if the order be made conditionally examined before the court where the
by a court of superior jurisdiction, before an case is pending. Such examination, in the
inferior court to be designated therein. The presence of the accused, or in his absence after
examination shall proceed notwithstanding the reasonable notice to attend the examination has
absence of the prosecutor provided he was duly been served on him, shall be conducted in the
notified of the hearing. A written record of the same manner as an examination at the trial.
testimony shall be taken. (5a) Failure or refusal of the accused to attend the
examination after notice shall be considered a
Discovery; Production and Inspection (2009) No.XI.A. waiver. The statement taken may be admitted in
The accused in a criminal case has the right to avail of behalf of or against the accused. (7a)
the various modes of discovery. SUGGESTED ANSWER:
TRUE. The accused has the right to move for the EXAMINATION OF EXAMINATION OF
production or inspection of material evidence in the DEFENSE WITNESS PROSECUTION
possession of the prosecution. It authorizes the WITNESS
defense to inspect, copy or photograph any evidence Conducted before any Conducted only before
of the prosecution in its possession after obtaining judge, member of the the judge or the court
permission from the court (Rule 116, Sec. 10; Webb bar in good standing, or where the case is
vs. De Leon, 247 SCRA 652 [1995]). ALTERNATIVE before any inferior court pending
ANSWER: FALSE. The accused in criminal case only No right to cross- There is right to cross-
has the right to avail of conditional examination of examine examine
his witness before a judge, or, if not practicable, a May be made if the Cannot be made even if
witness resides more the witness resides
member of a Bar in good standing so designated by
than 100 km from place more than 100 km from
the judge in the order, or if the order be made by a
of trial the place of trial
court of superior jurisdiction, before an inferior court
to be designated therein. (sec.12 &13, Rule 119). Note: Distance is not a valid ground to grant
Modes of discovery under civil actions does not apply conditional examination of prosecution witness.
to criminal proceedings because the latter is primarily The reason is the primacy of the right of the
governed by the REVISED RULES OF CRIMINAL accused to confront his accuser and his
PROCEDURE (Vda. de Manguerravs Risos – 563 SCRA witnesses.
499).
Section 14. Bail to secure appearance of Section 16. Trial of several accused. — When
material witness. — When the court is satisfied, two or more accused are jointly charged with any
upon proof or oath, that a material witness will not offense, they shall be tried jointly unless the court,

________________________________________________________________________________________________
in its discretion and upon motion of the prosecutor (a) There is absolute necessity for the
or any accused, orders separate trial for one or testimony of the accused whose
more accused. (8a) discharge is requested;
Notes: The motion for a SEPARATE trial must be (b) The is no other direct evidence
filed BEFORE the commencement of the trial and available for the proper prosecution of the
cannot be raised for the first time on appeal. If a offense committed, except the testimony
separate trial is granted, the testimony of one of of said accused;
the accused imputing the crime to his co-accused
is not admissible against the latter. In joint trial, it (c) The testimony of said accused can be
would be admissible if the latter had opportunity substantially corroborated in its material
for cross-examination. points;
Exception: In the interest of justice, it can be (d) Said accused does not appear to be
allowed even after prosecution had rested its case the most guilty; and
(Joseph vs. Villaluz, 89 SCRA 324).
JOINT TRIAL IN THE SANDIGANBAYAN (e) Said accused has not at any time
Private individuals charged as co-principals, been convicted of any offense involving
accomplices, or accessories shall be tried jointly moral turpitude.
with public officers before the proper court.
Evidence adduced in support of the discharge
However, if the public officer is the one charged as shall automatically form part of the trial. If the court
accomplice or accessory, the jurisdiction is with denies the motion for discharge of the accused as
the regular courts. Accessory follows the principal state witness, his sworn statement shall be
(Totaan vs. Felix, GR NO. 81847-48, April 7, inadmissible in evidence. (9a)
1988).
Notes:
If the circumstances made it impossible for joint
trial as in the case when the trial of the public Absolute necessity of testimony (P. vs. Borja, 106
offenders have been concluded, the trial of the Phil. 1111)
private offenders shall proceed independently Absolute certainty of the testimony is not required
(Bondoc vs. Sandiganbayan, 191 SCRA 254). (P. vs. CA, 124 SCRA 328).
Separate trial is discretionary; denial is justified All requisites must be complied with. Trial type
when accused is not substantially prejudiced (P. hearing on the motion is not required (P. vs. CA,
vs. Go, 88 Phil. 203). 223 SCRA 479).
GR: When separate trial is granted, prosecutor Additional requisites for discharge:
should repeat and produce all evidence at each 1. The court should require the presentation
and every trial. of evidence and the sworn statement of
the proposed witness;
Exception: If agreed by the parties not to repeat 2. Sworn statement containing the
presentation and all the accused are present an requirements in sec. 17, Rule 119.
had opportunity for cross-examination (P. vs.
Carpio, 68 Phil. 490). The motion need not allege that all the requisites
are complied with BUT the requisites must be
Section 17. Discharge of accused to be state proved during the hearing of the motion (Chua vs.
witness. — When two or more persons are jointly CA, GR NO. 103397, Aug. 28, 1996).
charged with the commission of any offense, upon
motion of the prosecution before resting its case, Absence of any of the requisites for the discharge
the court may direct one or more of the accused to of a particeps criminis is a ground for objection for
be discharged with their consent so that they may his discharge, but such objection must be raised
be witnesses for the state when, after requiring the before the discharge is ordered (P. vs. Ferrer, GR
prosecution to present evidence and the sworn NO. 102012, March 14, 1996).
statement of each proposed state witness at a
hearing in support of the discharge, the court is Absolute certainty of all the requirements is not
satisfied that: necessary (P. vs. Padica, GR NO. 102645, April 7,
1993).

________________________________________________________________________________________________
witness at a hearing in support of the

More than one accused may be discharged (P. vs. discharge, the court is satisfied that:
Bacsa, 104 Phil. 136) (P. vs. Peralta, GR NO. (a) There is absolute necessity for the
121971, Oct. 16 2000). testimony of the accused whose discharge
is required;
Discharge should not be ordered before (b) There is no other direct evidence
presenting the evidence by the prosecution. available for the proper prosecution of the
Danger is that if discharged before presentation of offense committed, except the testimony
evidence, the proposed witness may disappear of said accused; (c) The testimony of said
(Flores vs. Sandiganbayan, 124 SCRA 109). accused can be substantially corroborated
in its material points; (d) Said accused
Discharge, when there is conspiracy, is necessary does not appear to be the most guilty; and
when the crime is committed secretly (P. vs. (e) Said accused has not at any time been
Villamor, 110 SCRA 199 [1981]). convicted of any offense involving moral
turpitude. Evidence adduced in support of
Testimony of a co-conspirator alone, unless given the discharge shall automatically form
in a straightforward manner and it contains details part of the trial. If the court denies the
which could not have been made as a result of an motion for discharge of the accused as
afterthought, is not sufficient for conviction. Such state witness, his sworn statement shall
testimony comes from a polluted source (P. vs. be inadmissible in evidence (People vs.
Bariquit, GR NO. 122733 Oct. 2, 2000). Feliciano Anabe Y Capillan, G.R> No.
179033, September 6, 2010, Carpio-
Testimony of a state witness should be
Morales, J.).
carefully scrutinized and received with great
caution (P. vs. Gongora, 8 SCRA 473 [1973]).
Denial of discharge, when tainted with grave
REASON: Use of testimony of one of the accused
abuse of discretion, correctible by certiorari (P. vs.
in a crime results in setting some guilty persons at
CA, 131 SCRA 107 [1984]).
liberty, and in some instances, at least, makes the
state a party to the setting of a premium upon
Erroneous or improper discharge does not affect
treachery and to the grant of reward for conduct
the acquittal of the discharged accused (P. vs.
which every honorable man instinctively recoils
Aniñon, GR NO. 39083, March 16, 1988).
with horror and disgust (US vs. Abanzado, 37 Phil.
655 [1918]).
Erroneous or improper discharge does not affect
the competency and quality of the testimony (P.
vs. Jamero, 24 SCRA 206 [1968]).
VIII. Which among the following is a requisite
before an accused may be discharged to Discharge of an accused who had already
become a state witness? (1%) (A) The pleaded guilty but not yet sentenced was allowed
testimony of the accused sought to be (P. vs. Ocima, 2112SCRA 646).
discharged can be substantially corroborated
on all points. (B) The accused does not
appear to be guilty. (C) There is absolute EFFECTS OF DISCHARGE
necessity for the testimony of the accused 1. Evidence adduced in support of the
whose discharge is requested. (D) The discharge shall automatically form part of
accused has not at any time been convicted the trial;
of any offense. (E) None of the above. 2. If the court denies the motion to discharge
SUGGESTED ANSWER: (C), Under Section the accused as state witness, his sworn
17 of Rule 119 of the Rules of Criminal statement shall be inadmissible in
Procedure, when two or more persons are evidence;
jointly charged with the commission of 3. Discharge of the accused operates as an
any offense, upon motion of the acquittal and bar to further prosecution for
prosecution before resting its case, the the same offense.
court may direct one or more of the
accused to be discharged with their OTHER MODES OF DISCHARGE:
consent so that they may be witnesses for 1. RA 6981 Witness Protection Program and
the state when after requiring the Benefit Act;
prosecution to present evidence and the 2. The power of the Ombudsman to grant
sworn statement of each proposed state immunity under sec. 17, RA 6770;
________________________________________________________________________________________________
3. Immunity under PD 749; accused fails or refuses to testify against his co-
4. Immunity under EO 14-A. accused in accordance with his sworn statement
constituting the basis for the discharge. (10a)
RA 6981 RULES OF COURT NOTES: Failure to testify must refer exclusively
The offense in which It has no qualification, it to defendant’s will or fault.
the testimony is to be applies to all felonies
used is limited only to Where an accused who turns state’s evidence
grave felony on a promise of immunity but later retracts and
The immunity is The immunity is fails to keep his part of the agreement, his
granted by the DOJ granted by the court confession of his participation in the commission
The witness is The witness so of the crime is admissible as evidence against
automatically entitled to discharged must still him.
certain rights and apply for the enjoyment
benefits of said rights and Discharge from original information to amended
benefits with the DOJ information, not new information. Hence,
Prosecutor required not He is charged in the discharge from the original information is not
to include the name of court as one of the affected by the amendment of the information
the witness in the accused as stated in (P. vs. Taruc, 5 SCRA 132).
information the information
No information may The charged against Section 19. When mistake has been made in
thus filed against the him shall be dropped charging the proper offense. — When it
witness and the same shall becomes manifest at any time before judgment
operate as an acquittal that a mistake has been made in charging the
proper offense and the accused cannot be
convicted of the offense charged or any other
EFFECT OF CERTIFICATION OF THE offense necessarily included therein, the accused
SECRETARY OF JUSTICE (RA 6981): shall not be discharged if there appears good
a. If the case is not yet filed, the prosecutor cause to detain him. In such case, the court shall
is compelled not to include the witness in commit the accused to answer for the proper
the information; offense and dismiss the original case upon the
b. If the information is already filed in court, filing of the proper information. (11a)
the prosecutor shall file a motion for the
discharge of the accused as a state Connected to sec. 14, Rule 110, last par.:
witness. Under the law, it is mandatory for If it appears at any time before judgment that a
the court to grant the motion. mistake has been made in charging the proper
NOTE: This modified the ruling in Crespo offense, the court shall dismiss the original
vs. Mogul, supra, which provides that the complaint or information upon the filing of a
discharge (dismissal) of a case filed in new one charging the proper offense in
accordance with section 19, Rule 119,
court is subject to the sound discretion of provided the accused shall not be placed in
the judge. double jeopardy. The court may require the
witnesses to give bail for their appearance at
Witness; Utilized as State Witness; Procedure (2006) the trial.
As counsel of an accused charged with homicide, you
are convinced that he can be utilized as a state witness.
What procedure will you take? (2.5%) This rule is predicated on the fact that an accused
SUGGESTED ANSWER:
person has the right to be informed of the nature
As counsel of an accused charged with homicide, the
and cause of accusations against him, and to
procedure that can be followed for the accused to be convict him of an offense different from that
utilized as a state witness is to ask the Prosecutor to charged in the complaint or information would be
recommend that the accused be made a state witness. an unauthorized denial of that right (US vs.
It is the Prosecutor who must recommend and move Campo, 23 Phil. 369).
for the acceptance of the accused as a state witness.
The accused may also apply under the Witness
Remedies; Void Judgment (2004)
Protection Program.
AX was charged before the YY RTC with theft of
Section 18. Discharge of accused operates as
jewelry valued at P20.000, punishable with
acquittal. — The order indicated in the preceding
imprisonment of up to 10 years of prision mayor
section shall amount to an acquittal of the
discharged accused and shall be a bar to future
under the Revised Penal Code. After trial, he was
prosecution for the same offense, unless the convicted of the offense charged, notwithstanding that

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the material facts duly established during the trial of similar character may be tried jointly at the
showed that the offense committed was estafa, discretion of the court. (14a)
punishable by imprisonment of up to eight years of
prision mayor under the said Code. No appeal having NOTE: In complex crimes, only grave and less
been taken therefrom, said judgment of conviction grave felonies may be complexed or that one
became final. Is the judgment of conviction valid? Is offense is a necessary means to commit the other.
the said judgment reviewable thru a special civil action Hence, there would be no complex crime in
for certiorari? Reason. (5%) reckless imprudence resulting to slight physical
SUGGESTED ANSWER: injuries and damage to property. But they may be
Yes, the judgment of conviction for theft upon an tried jointly. They are founded from the same facts
information for theft is valid because the court had (Reodica vs. CA, reiterating Lontok vs. Gorgonio,
jurisdiction to render judgment. However, the 89 SCRA 632).
judgment was grossly and blatantly erroneous. The
variance between the evidence and the judgment of In these cases, the charges may be tried jointly at
conviction is substantial since the evidence is one for the court’s discretion. The object of consolidation
estafa while the judgment is one for theft. The of trials is to avoid multiplicity of suits, guard
elements of the two crimes are not the same. (Lauro against oppression or abuse, prevent delay, clear
Santos v. People, 181 SCRA 487). One offense does not congested dockets, simplify the work of the trial
necessarily include or is included in the other. (Sec. 5 of court, and save unnecessary cost and expenses
Rule 120). (Palanca vs. Querubin, 30 SCRA 730).
The judgment of conviction is reviewable by certiorari
even if no appeal had been taken, because the judge CONSOLIDATION OF CIVIL ACTION (not
committed a grave abuse of discretion tantamount to arising from the crime) WITH CRIMINAL
lack or excess of his jurisdiction in convicting the ACTION
accused of theft and in violating due process and his
right to be informed of the nature and the cause of the The SC sustained the order of the trial court to
accusation against him, which make the judgment consolidate a civil action (an action for recovery of
void. wage differential, overtime, and termination pay
With the mistake in charging the proper offense, the plus damages) with criminal action for violation of
judge should have directed the filing of the proper Minimum Wage Law. The Court held that:
information and thereafter dismissed the original
information. (Sec. 19 of Rule 119). “a court may order several action pending before it to be
tried together where they arise from the same act, event
or transaction, involve the same or like issues, and
depend largely or substantially on the same evidence;
provided, that:
Section 20. Appointment of acting prosecutor. 1. The court has jurisdiction over the cases to be
— When a prosecutor, his assistant or deputy is consolidated;
disqualified to act due to any of the grounds stated 2. Joint trial will not give one party an undue
advantage or prejudice her substantial rights of
in section 1 of Rule 137 or for any other reasons,
the other parties” (Canos vs. Peralta).
the judge or the prosecutor shall communicate
with the Secretary of Justice in order that the latter
See also sec. 1,Rule 31.
may appoint an acting prosecutor. (12a)
Section 23. Demurrer to evidence. — After the

Section 21. Exclusion of the public. — The
prosecution rests its case, the court may dismiss
judge may, motu proprio, exclude the public from
the action on the ground of insufficiency of
the courtroom if the evidence to be produced
evidence (1) on its own initiative after giving the
during the trial is offensive to decency or public
prosecution the opportunity to be heard or (2)
morals. He may also, on motion of the accused,
upon demurrer to evidence filed by the accused
exclude the public from the trial, except court
with or without leave of court.
personnel and the counsel of the parties. (13a)
If the court denies the demurrer to evidence filed

Connect to Rule on Examination of Child
with leave of court, the accused may adduce
Witness, section 23.
evidence in his defense. When the demurrer to
evidence is filed without leave of court, the
Section 22. Consolidation of trials of related accused waives the right to present evidence and
offenses. — Charges for offenses founded on the submits the case for judgment on the basis of the
same facts or forming part of a series of offenses evidence for the prosecution. (15a)

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The motion for leave of court to file demurrer to accused. A judgment of acquittal is
evidence shall specifically state its grounds and immediately executor and no appeal can
shall be filed within a non-extendible period of five be made therefrom. Otherwise the
(5) days after the prosecution rests its case. The Constitutional protection against double
prosecution may oppose the motion within a non- jeopardy would be violated.
extendible period of five (5) days from its receipt.
Demurrer to Evidence; Civil Case vs.
If leave of court is granted, the accused shall file Criminal Case (2007) No.V. (a) Distinguish
the demurrer to evidence within a non-extendible the effects of the filing of a demurrer to the
period of ten (10) days from notice. The evidence in a criminal case and its filing in a
prosecution may oppose the demurrer to evidence civil case. (5%) SUGGESTED ANSWER: The
within a similar period from its receipt. following are the distinctions in effects of
demurrer to the evidence in criminal
The order denying the motion for leave of court to cases from that in civil cases:
file demurrer to evidence or the demurrer itself (1) In criminal cases, demurrer to the
shall not be reviewable by appeal or by certiorari evidence requires leave of court,
before judgment. (n) otherwise, the accused would lose his
right to present defense evidence if filed
Notes: Rule not applicable if prosecution has and denied; in civil cases, no leave of
not rested court is required for filing such demurrer.
If the demurrer is sustained by the court, the order (2) In criminal cases, when such demurrer
of dismissal is tantamount to acquittal. Hence, not is granted, the dismissal of the case is not
appealable. appealable inasmuch as the dismissal
would amount to an acquittal, unless
GR: The order denying the motion for leave of made by a court acting without or in
court to file demurrer to evidence or the excess of jurisdiction; in civil cases, when
demurrer itself shall not be reviewable by appeal such demurrer is granted, the dismissal of
or by certiorari before judgment. the case can be appealed by the plaintiff.
(3) In criminal cases, the accused loses his
Exception: when there is grave abuse of right to present his defense-evidence in
discretion, certiorari may be resorted to the trial court when he filed the demurrer
(Congregation of the Religious of the Virgin without prior leave of court; while in civil
Mary vs. CA, 291 SCRA 385 [1998]). cases, the defendant loses his right to
present his defense-evidence only if the
The appellants informed the court that they will plaintiff appealed such dismissal and the
file demurrer to evidence and the court agreed case is before the appellate court already
to give them time to file the same is substantial since the case would be decide only on the
compliance of the required leave of court (P. vs. basis of plaintiff‟s evidence on record.
Ciobal, 184 SCRA 469).
Demurrer to Evidence (2009) No.XVI.A.

After the prosecution had rested and made Demurrer to Evidence; Contract of Carriage (2004)
its formal offer of evidence, with the court AX, a Makati-bound paying passenger of PBU, a
admitting all of the prosecution evidence, the public utility bus, died instantly on board the bus on
accused filed a demurer to evidence with account of the fatal head wounds he sustained as a
leave of court. the prosecution was allowed to result of the strong impact of the collision between the
comment thereon. Thereafter, the court bus and a dump truck that happened while the bus was
granted the demurer, finding that the still travelling on EDSA towards Makati. The
accused could not have committed the foregoing facts, among others, were duly established
offense charged. If the prosecution files a on evidence in-chief by the plaintiff TY, sole heir of
motion for reconsideration on the ground AX, in TY’s action against the subject common carrier
that the court order granting the demurer for breach of contract of carriage. After TY had rested
was not in accord with law and his case, the common carrier filed a demurrer to
jurisprudence, will the motion prosper? evidence, contending that plaintiff’s evidence is
SUGGESTED ANSWER: NO, the motion will insufficient because it did not show (1) that defendant
not prosper. With the granting of the was negligent and (2) that such negligence was the
demurrer, the case shall be dismissed and proximate cause of the collision. Should the court
the legal effect is the acquittal of the

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grant or deny defendant's demurrer to evidence? evidence. The court denied Carlos’ motion to present
Reason briefly. (5%) evidence and instead judgment on the basis of the
SUGGESTED ANSWER: evidence for the prosecution. Was the court correct in
No. The court should not grant defendant's preventing Carlos from presenting his evidence and
demurrer to evidence because the case is for breach rendering judgment on the basis of the evidence for
of contract of carriage. Proof that the defendant was the prosecution? Why? (5%)
negligent and that such negligence was the SUGGESTED ANSWER:
proximate cause of the collision is not required. Yes, because the demurrer to the evidence was filed
(Articles 1170 and 2201, Civil Code; (Mendoza v. Phil. without leave of court. The Rules provide that when
Airlines, Inc., 90 Phil. 836 [1952]; Batangas the demurrer to evidence is filed without leave of
Transportation Co. v. Caguimbal, 22 SCRA171 U court, the accused waives the right to present evidence
968]; Abeto v. PAL, 115 SCRA 489 [1982]; Aboitiz v. and submits the case for judgment on the basis of the
Court of Appeals, 129 SCRA 95 [1984]). evidence for the prosecution. (Sec. 23 of Rule 119, Revised
Rules of Criminal Procedure)
Demurrer to Evidence; w/o Leave of Court (1998)
Facing a charge of Murder, X filed a petition for bail. Demurrer to Evidence; w/o Leave of Court (2004)
The petition was opposed by the prosecution but after The information for illegal possession of firearm filed
hearing the court granted bail to X. On the first against the accused specifically alleged that he had no
scheduled hearing on the merits, the prosecution license or permit to possess the caliber .45 pistol
manifested that it was not adducing additional mentioned therein. In its evidence-in-chief, the
evidence and that it was resting its case. X filed a prosecution established the fact that the subject
demurrer to evidence without leave of court but it was firearm was lawfully seized by the police from the
denied by the court. possession of the accused, that is, while the pistol was
1. Did the court have the discretion to deny the tucked at his waist in plain view, without the accused
demurrer to evidence under the circumstances being able to present any license or permit to possess
mentioned above? (2%) the firearm. The prosecution on such evidence rested
2. If the answer to the preceding question is in the its case and within a period of five days therefrom, the
affirmative, can X adduce evidence in his defense after accused filed a demurrer to evidence, in sum
the denial of his demurrer to evidence? [1%] contending that the prosecution evidence has not
3. Without further proceeding and on the sole basis of established the guilt of the accused beyond reasonable
the evidence of the prosecution, can the court legally doubt and so prayed that he be acquitted of the
convict X for Murder? (2%) offense charged. The trial court denied the demurrer
SUGGESTED ANSWER: to evidence and deemed the accused as having waived
1. Yes. The Court had the discretion to deny the his right to present evidence and submitted the case
demurrer to the evidence, because although the for judgment on the basis of the prosecution evidence.
evidence presented by the prosecution at the hearing In due time, the court rendered judgment finding the
for bail was not strong, without any evidence for the accused guilty of the offense charged beyond
defense, it could be sufficient for conviction. reasonable doubt and accordingly imposing on him the
2. No. Because he filed the demurrer to the evidence penalty prescribed therefor. Is the judgment of the trial
without leave. (Sec. 15, Rule 119, Rules of Criminal Procedure.) court valid and proper? Reason. (5%)
However, the trial court should inquire as to why the SUGGESTED ANSWER:
accused filed the demurrer without leave and whether Yes. The judgment of the trial court is valid. The
his lawyer knew that the effect of filing it without leave accused did not ask for leave to file the demurrer to
is to waive the presentation of the evidence for the evidence. He is deemed to have waived his right to
accused. (People vs. Fores, 269 SCRA 62.) present evidence. (Sec. 23 of Rule 119; People v. Flores,
3. Yes. Without any evidence from the accused, the 269 SCRA 62 [1997]; Bernardo v. Court of Appeals, 278
prima facie evidence of the prosecution has been SCRA 782 [1997]. However, the judgment is not proper
converted to proof beyond reasonable doubt. or is erroneous because there was no showing from
ALTERNATIVE ANSWER: the proper office like the Firearms Explosive Unit of
If the evidence of guilt is not strong and beyond the Philippine National Police that the accused has a
reasonable doubt then the court cannot legally convict permit to own or possess the firearm, which is fatal to
X for murder. the conviction of the accused. (Mallari v. Court of
Appeals &People,265 SCRA 456[1996]).
Demurrer to Evidence; w/o Leave of Court (2001)
Carlos, the accused in a theft case, filed a demurrer to
evidence without leave of court. The court denied the Section 24. Reopening. — At any time before
demurrer to evidence and Carlos moved to present his finality of the judgment of conviction, the judge
may, motu proprio or upon motion, with hearing in

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either case, reopen the proceedings to avoid a accused and the aggravating or mitigating
miscarriage of justice. The proceedings shall be circumstances which attended its commission;
terminated within thirty (30) days from the order (2) the participation of the accused in the
granting it. (n) offense, whether as principal, accomplice, or
accessory after the fact;
Connect to sec. 6 Rule 135. (3) the penalty imposed upon the accused;
Connected to sec. 7, Rule 120: and
(4) the civil liability or damages caused by
Section 7. Modification of judgment. — A judgment of his wrongful act or omission to be recovered
conviction may, upon motion of the accused, be from the accused by the offended party, if
modified or set aside before it becomes final or before there is any, unless the enforcement of the
appeal is perfected. Except where the death penalty is civil liability by a separate civil action has been
imposed, a judgment becomes final after the lapse of reserved or waived.
the period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or served,
or when the accused has waived in writing his right to In case the judgment is of acquittal, it shall state
appeal, or has applied for probation. whether the evidence of the prosecution
absolutely failed to prove the guilt of the accused
or merely failed to prove his guilt beyond
reasonable doubt. In either case, the judgment
shall determine if the act or omission from which
RULE 120
the civil liability might arise did not exist. (2a)
Judgment
Connected to:
Section 1. Judgment definition and form. —

Judgment is the adjudication by the court that the Art. 29, NCC. When the accused in a criminal
accused is guilty or not guilty of the offense prosecution is acquitted on the ground that
charged and the imposition on him of the proper his guilt has not been proved beyond
penalty and civil liability, if any. It must be written reasonable doubt, a civil action for damages
in the official language, personally and directly for the same act or omission may be
prepared by the judge and signed by him and shall instituted. Such action requires only a
contain clearly and distinctly a statement of the
facts and the law upon which it is based. (1a) preponderance of evidence. Upon motion of
the defendant, the court may require the
Note: It is not necessary that the judge who tried plaintiff to file a bond to answer for damages
the case be the same judicial officer to decide it. It in case the complaint should be found to be
is sufficient if he be appraised of the evidence malicious.
already presented by reading of the transcript of
testimonies already introduced, in the same If in a criminal case the judgment of acquittal
manner as appellate courts review evidence on
appeal (P. vs. Peralta, 237 SRA 220 [1994]). is based upon reasonable doubt, the court
shall so declare. In the absence of any
REMEDY IF THE JUDGMENT IS NOT PUT IN declaration to that effect, it may be inferred
WRITING: To file a petition for mandamus to from the text of the decision whether or not
compel the judge to put in writing the decision of the acquittal is due to that ground.
the court.
Otherwise, the judgment must make a finding on
The court has the right to reprehend acts of the
the civil liability of the accused in favor of the
accused despite his acquittal provided that it is
offended party. There appears to be no sound
relevant to the issues of the case (P. vs. Meneses,
reasons to require a separate civil action to still be
74 Phil. 119).
filed considering that the facts to be proved in the
civil case have already been established in the
criminal proceedings where the accused was
Section 2. Contents of the judgment. — If the acquitted. Due process has been accorded the
judgment is of conviction, it shall state: accused (Padilla vs. CA, 129 SCRA 558).
(1) the legal qualification of the offense REASONABLE DOUBT

constituted by the acts committed by the

________________________________________________________________________________________________
The state of the case which, after full 1. The acquittal is based on reasonable
consideration of all evidence, leaves the mind of doubt;
the judge in such a condition that he cannot say 2. The decision contains a declaration that
that he feels an abiding conviction, to a moral the liability is only civil not criminal;
certainty, of the truth of the charge. 3. Civil liability is not derived from the
criminal act of which the accused is
ACQUITTAL acquitted (Sadio vs. RTC of Antique, 201
Finding of not guilty based on the merits, that is, SCRA 744).
the accused is acquitted because the evidence
does not show that his guilt is beyond reasonable GR: Duty of the court to award civil liability (P. vs.
doubt, or a dismissal of the case after the Ursua, 60 Phil. 252).
prosecution has rested its case upon motion of the Exceptions:
accused on the ground that the evidence fails to 1. Civil liability is waived;
show beyond reasonable doubt that the accused 2. Claim for civil liability is reserved;
is guilty 3. Civil liability, when allowed by law, is
separately filed.
It is well-settled that acquittal , in a criminal case is
immediately final and executory upon its Failure to award civil liability is appealable
promulgation, and that accordingly, the state may (Bernardo vs. CA, 190 SCRA 63).
not seek its review without placing the accused in
double jeopardy (Barbers vs. Laguio,351 SCRA When civil liability is proper, there is no need to file
606). separate action for its award, despite acquittal of
the accused (Interpacific Transit vs. Aviles, 186
Strict compliance of the first par. of section 2. The SCRA 385).
decision must clearly state the facts and the law
on which it is based (P. vs. Bugarin, GR NO. CIVIL LIABILITY ARISING FROM CRIMES
110817-22, June 13, 1997). INCLUDES:
1. Actual damages;
Trial courts should not merely reproduce 2. Exemplary damages;
everything testified to by witness (P. vs. Molina, 3. Loss of earning capacity;
GR NO. 70008, April 26, 1990). 4. Attorney’s fees, when exemplary
damages is to be awarded or separate
Narration of the substance of the testimony of civil action was filed (P. vs. Marollano, 276
witness was held enough statement of facts (P. SCRA 84);
vs. Sabijon, 94 Phil. 1047). 5. Moral damages
6. Liability ex delictu.
Trial court must make an independent assessment
of the evidence and must not solely rely on the The court should, however, specify the extent of
word of the prosecution on the suppose damages and not lump them altogether (P. vs.
insufficiency of evidence (Martinez vs. CA, 237 Castillo, 261SCRA 493).
SCRA575 [1994]).
Section 3. Judgment for two or more offenses.
Express specification of the law violated not — When two or more offenses are charged in a
necessary. If the conclusion is based upon some
single complaint or information but the accused
provision of law, the sentence will be sustained fails to object to it before trial, the court may
(US vs. Mendoza, 14 Phil. 198). convict him of as many offenses as are charged
and proved, and impose on him the penalty for
Alternative penalty may not be imposed. Hence, each offense, setting out separately the findings of
the sentence to pay the fine of P460 or to suffer fact and law in each offense. (3a)
imprisonment for 3 months is invalid (P. vs.
Egudez, 36 Phil. 860).
NOTE: This is different to subsidiary penalty for (66) What is the effect of the failure of the
failure to pay fine as provided as provided in art. accused to file a motion to quash an
38 and 39, RPC. information that charges two offenses? (A) He
may be convicted only of the more serious
ACQUITTAL IN A CRIMINAL CASE DOES NOT offense. (B) He may in general be convicted
BAR CONTINUATION OF CIVIL LIABILITY of both offenses. (C) The trial shall be void.
CONNECTED THEREWITH:

________________________________________________________________________________________________
(D) He may be convicted only of the lesser In applying the provisions of this rule the duration
offense. of perpetual penalties (pena perpetua) shall be
computed at thirty years.
Section 4. Judgment in case of variance

Connected to RPC, art. 70: between allegation and proof. — When there is
variance between the offense charged in the
Art. 70. Successive service of sentence. — When complaint or information and that proved, and the
the culprit has to serve two or more penalties, he offense as charged is included in or necessarily
shall serve them simultaneously if the nature of includes the offense proved, the accused shall be
convicted of the offense proved which is included
the penalties will so permit otherwise, the in the offense charged, or of the offense charged
following rules shall be observed: which is included in the offense proved. (4a)
In the imposition of the penalties, the order of Designation of offense in the information is not
their respective severity shall be followed so that necessarily the crime charged. Settled is the
they may be executed successively or as nearly as rule that in case of variance between the
may be possible, should a pardon have been designation of the offense in the caption/title and
as alleged in the body (recital of facts) of the
granted as to the penalty or penalties first complaint/information, the latter prevails (US vs.
imposed, or should they have been served out. Burns, 41 Phil. 418).
For the purpose of applying the provisions of the Note: keep in mind that the accused can only be
next preceding paragraph the respective severity convicted of the lesser offense.
of the penalties shall be determined in
An accused cannot be convicted for the lesser
accordance with the following scale: offense necessarily included in the offense
charged if at the time of the filing of the
1. Death, information, the lesser offense has already
2. Reclusion perpetua, prescribed (Francisco vs. CA, 122 SCRA 538)
3. Reclusion temporal,
4. Prision mayor, Section 5. When an offense includes or is
included in another. — An offense charged
5. Prision correccional,
necessarily includes the offense proved when
6. Arresto mayor, some of the essential elements or ingredients of
7. Arresto menor, the former, as alleged in the complaint or
8. Destierro, information, constitute the latter. And an offense
9. Perpetual absolute disqualification, charged is necessarily included in the offense
10 Temporal absolute disqualification. proved, when the essential ingredients of the
former constitute or form a part of those
11. Suspension from public office, the right to
constituting the latter. (5a)
vote and be voted for, the right to follow a
profession or calling, and GR: If what is proved by the prosecution is an
12. Public censure. offense which is included in the offense charged,
the accused may be convicted of the offense
Notwithstanding the provisions of the rule next proved.
preceding, the maximum duration of the convict's
Exception: Where the facts supervened after the
sentence shall not be more than three-fold the
fling of the information which changes the nature
length of time corresponding to the most severe of the offense.
of the penalties imposed upon him. No other
penalty to which he may be liable shall be
inflicted after the sum total of those imposed Example:
equals the same maximum period. A. Offense charged necessarily includes offense
proved
Charge is acts of lasciviousness but
Such maximum period shall in no case exceed proved is just unjust vexation; convict the
forty years.
________________________________________________________________________________________________
accused of unjust vexation, the crime If the accused is confined or detained in another
proved. province or city, the judgment may be
promulgated by the executive judge of the
B. Offense charged is necessarily included in the Regional Trial Court having jurisdiction over the
offense proved place of confinement or detention upon request of
Charge is acts of lasciviousness but the court which rendered the judgment. The court
proved is attempted rape; convict the promulgating the judgment shall have authority to
accused of acts of lasciviousness, the accept the notice of appeal and to approve the bail
crime charged. 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
ADDITIONAL EXAMPLES: bailable, the application for bail can only be filed
 Anti-Graft includes falsification of official and resolved by the appellate court.
and commercial documents (Pecho, vs.
Sandiganbayan); The proper clerk of court shall give notice to the
 Willful acts includes commission of accused personally or through his bondsman or
negligent acts (Samson vs. CA, 103 Phil. warden and counsel, requiring him to be present
277); at the promulgation of the decision. If the accused
 One charged of rape cannot be convicted tried in absentia because he jumped bail or
of qualified seduction (P. vs. Castro, 58 escaped from prison, the notice to him shall be
SCRA 473); served at his last known address.
However, when the allegations of the

In case the accused fails to appear at the
information contains allegations sufficient
scheduled date of promulgation of judgment
to make-out a case of qualified seduction,
despite notice, the promulgation shall be made by
he should be convicted of qualified recording the judgment in the criminal docket and
seduction despite the charge of rape serving him a copy thereof at his last known
(Gonzales vs. CA, 232 SCRA 667 [1994]). address or thru his counsel.
 Simple robbery included in kidnapping
with ransom (P. vs. Puno, 219 SCRA 85); If the judgment is for conviction and the failure of
 An accused charged with a complex crime the accused to appear was without justifiable
may be convicted of one of the cause, he shall lose the remedies available in
component crimes (US. Vs. Lahoylahoy, these rules against the judgment and the court
38 Phil. 350); shall order his arrest. Within fifteen (15) days from
 Technical malversation is not included or promulgation of judgment, however, the accused
does not include the crime of malversation may surrender and file a motion for leave of court
of public funds (Parungao vs. to avail of these remedies. He shall state the
Sandiganbayan, 197 SCRA173); reasons for his absence at the scheduled
 Co-Principal may be convicted as promulgation and if he proves that his absence
accessory even if the principal is acquitted was for a justifiable cause, he shall be allowed to
(Vino vs. People 178 SCRA 626); avail of said remedies within fifteen (15) days from
 The fact that information indicated notice. (6a)
marijuana leaves while laboratory report
mentioned flowering tops is not a ground Bar Exam Question 2012
for acquittal (P. vs. Viloria, 191 SCRA 13. P failed to appear at the promulgation of
777). judgment without justifiable cause. The
judgment convicted P for slight physical
Section 6. Promulgation of judgment. — The injuries. Judgment may therefore be
judgment is promulgated by reading it in the promulgated in the following manner:
presence of the accused and any judge of the a. By the reading of the judgment in the
court in which it was rendered. However, if the presence of only the judge.
conviction is for a light offense, the judgment may b. By the clerk of court in the presence of P's
be pronounced in the presence of his counsel or counsel.
representative. When the judge is absent or c. By the clerk of court in the presence of a
outside of the province or city, the judgment may representative of P.
be promulgated by the clerk of court. d. By entering the judgment into the
criminal docket of the court.

________________________________________________________________________________________________
SUGGESTED ANSWER: (d), If P fails to (b) Can the trial court also order the arrest of X?
appear at the promulgation of judgment SUGGESTED ANSWER:
without justifiable cause, the (a) In the absence of the accused, the promulgation
promulgation shall be made by recording shall be made by recording the Judgment in the
the judgment in the criminal docket and criminal docket and a copy thereof served upon the
serving him a copy thereof at his last accused or counsel. (Sec. 6. third par., Rule 120)
known address or thru his counsel. (Rule (b) No, the trial court cannot order the arrest of X if
120, Sec. 6, Rules of Court). the judgment is one of acquittal and, in any event, his
failure to appear was with justifiable cause since he had
Bar Exam Question 2011 to attend to another criminal case against him.
(22) The accused jumps bail and fails to
appear on promulgation of judgment where Bar Exam Question 2012
he is found guilty. What is the consequence 58. The judgment in a criminal case may be
of his absence? (A) Counsel may appeal the promulgated by the following, except by:
judgment in the absence of the accused. (B) a. a Sandiganbayan justice in cases
The judgment shall be promulgated in his involving anti-graft laws.
absence and he loses his right of appeal. b. a Clerk of Court of the court which
(C) The promulgation of the judgment shall rendered judgment.
be suspended until he is brought to the c. an Executive Judge of a City Court if the
jurisdiction of the court. (D) The judgment accused is detained in another city.
shall be void. d. any judge of the court in which it was
rendered.
SUGGESTED ANSWER:
(a), The Sandiganbayan is a special court
of the same level as the Court of Appeals
Notes:
(CA), and possessing all the inherent
powers of a court of justice, with
1. The judgment must have been rendered
functions of a trial court. It is a collegial
and promulgated during the incumbency
court. x x x The members of the graft
of the judge who signed it;
court act on the basis of consensus or
2. The presence of counsel during
majority rule. The three Justices of a
promulgation of judgment is not necessary
division, rather than a single judge, are
(Gonzales vs. Presiding Judge of Br.
naturally expected to exert keener
1RTC of Bohol, 186 SCRA 101);
3. Presence of the accused during judiciousness and to apply broader
promulgation is not indispensable. circumspection in trying and deciding
cases. (Edgar Payumo et al. Vs. Hon.
Judges are required to take down notes of salient Sandiganbayan et al., G.R. No. 151911,
portions of the hearing and to proceed in the July 25, 2011, Mendoza, J.). Thus, a
preparation of decisions without waiting for the Sandiganbayan Justice alone may not
TSN; with or without the TSN, the 90 day period promulgate judgment in a criminal case
for deciding cases should be adhered to (Lowan involving anti-graft laws. On the other
vs. Moleta, 90 SCRA 579). hand, a judgment in the regular court is
promulgated by reading it in the presence
Judgment must be promulgated in its entirety. of the accused and any judge of the court
Mere reading of the dispositive portion is not in which it was rendered. When the judge
sufficient (Dizon vs. Lopez, 278 SCRA 483). is absent or outside the province or city,
the judgment may be promulgated by the
Judgment; Promulgation of Judgment (1997) clerk of court. if the accused is confined
X, the accused in a homicide case before the RTC. or detained in another province or city,
Dagupan Cay, was personally notified of the the judgment may be promulgated by the
promulgation of judgment in his case set for 10 executive judge of the Regional Trial
December 1996. On said date. X was not present as he Court having jurisdiction over the place of
had to attend to the trial of another criminal case confinement or detention upon request of
against him in Tarlac, Tarlac. The trial court denied the the court which rendered the judgment.
motion of the counsel of X to postpone the (Rule 120, Sec. 6, Rules of Court).
promulgation.
(a) How shall the court promulgate the judgment in
the absence of the accused? SEE ALSO NOTES ON DOUBLE JEOPARDY.

________________________________________________________________________________________________
Section 7. Modification of judgment. — A or instruments of the crime are merely accessory

judgment of conviction may, upon motion of the penalty. Hence, they are automatically deemed
accused, be modified or set aside before it included in the imposition of the principal penalty.
becomes final or before appeal is perfected.
Except where the death penalty is imposed, a Art. 45, RPC. Confiscation and forfeiture of the
judgment becomes final after the lapse of the
proceeds or instruments of the crime. — Every
period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or penalty imposed for the commission of a
served, or when the accused has waived in writing felony shall carry with it the forfeiture of the
his right to appeal, or has applied for probation. proceeds of the crime and the instruments or
(7a) tools with which it was committed.
Bar Exam Question 2012 Such proceeds and instruments or tools shall
61. A judgment of conviction in a criminal
be confiscated and forfeited in favor of the
case becomes final when:
a. accused orally waived his right to appeal. Government, unless they be property of a
b. accused was tried in absentia and failed to third person not liable for the offense, but
appear at the promulgation. those articles which are not subject of lawful
c. accused files an application for commerce shall be destroyed.
probation.
d. reclusion perpetua is imposed and the The trial court can validly amend the civil aspect of
accused fails to appeal. its decision within 15 days from promulgation of
SUGGESTED ANSWER: (c), A judgment of judgment even though the appeal had in the
conviction in a criminal case becomes meantime already been perfected by the accused
final when the accused after the lapse of from the judgment of conviction
the period for perfecting an appeal, or
when the sentence has been partially or Section 8. Entry of judgment. — After a
totally satisfied or served, or when the judgment has become final, it shall be entered in
accused has waived in writing his right to accordance with Rule 36. (8)
appeal, or has applied for probation (Rule
120, Sec. 7, Rules of Court). Section 2. Entry of judgments and final orders.
— If no appeal or motion for new trial or
reconsideration is filed within the time provided in
these Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of
Connect to section 24, Rule 119: entries of judgments. The date of finality of the
judgment or final order shall be deemed to be the
Section 24. Reopening. — At any time before date of its entry. The record shall contain the
finality of the judgment of conviction, the judge dispositive part of the judgment or final order and
may, motu proprio or upon motion, with hearing in shall be signed by the clerk, within a certificate that
either case, reopen the proceedings to avoid a such judgment or final order has become final and
miscarriage of justice. The proceedings shall be executory.
terminated within thirty (30) days from the order
granting it.
The final judgment of the court is carried into
effect by the process called “mittimus”.
Notes: Modification of final judgment by the trial
court was not allowed. The judgment in this case
did not include the confiscation of the money MITTIMUS
found at the time and place of gambling. It is a process issued by the court after conviction
Modification of said judgment to include to carry out final judgment, such as commanding a
confiscation of such money is barred by double prison warden to hold the accused in accordance
jeopardy (US. Vs. Hart, 24 Phil. 578). with the terms of the judgment.
However, when there is an express reservation as

to the disposition of the money found in the pocket
of the person who already paid the fine, there is Section 9. Existing provisions governing
no double jeopardy (Lim vs. Oreta, 94 Phil. 40). suspension of sentence, probation and parole
not affected by this Rule. — Nothing in this Rule
IMPORTANT: It must be noted that under art. 45, shall affect any existing provisions in the laws
RPC, confiscation and forfeiture of the proceeds
________________________________________________________________________________________________
governing suspension of sentence, probation or Hon. Samson-Tatad, GR No. 170979,

parole. (9a) Feb. 9, 2011).
NOTE: Suspension of sentence, Probation, and A motion for reconsideration of the judgment may
Parole are substantially discussed in separate be filed in order to correct errors of law or fact in
subject (Criminal Law Reviewer). the judgment. It does not require further
proceedings.
Appeals; Abandonment of a Perfected Appeal (2009)

No.XI.E. The filing of a motion for the reconsideration
of the trial court’s decision results in the abandonment
of a perfected appeal. SUGGESTED ANSWER: FALSE.
The trial court has lost jurisdiction after perfection of
the appeal and so it can no longer entertain a motion
RULE 121 for reconsideration. ALTERNATIVE ANSWER: FALSE,
because the appeal may be perfected as to one party
New Trial or Reconsideration but not yet perfected as to the other party who may
still file a motion for reconsideration without
NOTE: “WRIT OF ERROR CORAM NOBIS” abandonment of his right of appeal even though the
A remedy under American jurisdiction whereby the appeal of the case is perfected already as to the other
lingering effects of an erroneous conviction based party.
on an unconstitutional law or a sham trial is
removed or erased. Ex.: Section 1. New trial or reconsideration. — At
1. Recidivism; any time before a judgment of conviction becomes
2. Habitual delinquency; final, the court may, on motion of the accused or
3. Reiteracion; at its own instance but with the consent of the
4. Moral turpitude. accused, grant a new trial or reconsideration. (1a)
NEW TRIAL NOTE: Once the appeal is perfected, the trial

It is the rehearing of the case decided but before steps out of the case an the appellate court steps
judgment of conviction becomes final, whereby in. should it come to pass then that during the
errors of law or irregularities are expunged from pendency of the appeal, new and material
the record or new evidence is introduced, or both evidence, for example, has been discovered, the
steps are taken. accused may file a motion for new trial in the
Bar Exam Question 2011 appellate court.
(83) What is the effect and ramification of an
order allowing new trial? (A) The court’s The trial court can take cognizance of the motion
decision shall be held in suspension until the for reconsideration filed by the private offended
defendant could show at the reopening of party within the period to appeal with respect to
trial that it has to be abandoned. (B) The the civil liability even the accused had already
court shall maintain the part of its judgment perfected his appeal (P. vs. Ursua, 60 Phil. 252).
that is unaffected and void the rest. (C) The
evidence taken upon the former trial, if CASES WHEN THE TRIAL COURT LOSES
material and competent, shall remain in JURISDICTION OVER THE SENTENCE
use. (D) The court shall vacate the judgment BEFORE LAPSE OF 15 DAYS:
as well as the entire proceedings had in the 1. When the accused voluntarily submits to
case. the execution of the sentence;
2. When the accused perfects his appeal.
The moment appeal is perfected, the court
A motion for new trial or reconsideration should be a quo loses jurisdiction over it, except for
filed with the trial court within 15 days from the correcting clerical errors.
promulgation of judgment and interrupts the period Note: Under the civil procedure there is
for perfecting an appeal from the time of its filing such a thing called “Residual Powers of
until notice of the order overruling the motion shall the court”.
have been served upon the accused or his
counsel. NEW TRIAL REOPENING OF THE
.Fresh period rule in Neypes vs. CA CASE
equally applies in criminal cases (Yu vs. Filed after judgment is Made by the court

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rendered but before before judgment is

finality thereof rendered in the However, if the incompetence, ignorance, or
exercise of sound inexperience of counsel is so great and the error
discretion committed as a result thereof is so serious that the
Made by the court on Does not require the client, who otherwise has a good cause, is
motion of the accused consent of the accused; prejudiced and denied his day in court, the
or at its own instance may be made by either litigation may be re-opened to give the client a
but with the consent of party who can chance to present his case.
the accused thereafter present Violation of right to counsel is a ground for new
additional evidence trial (Delgado vs. CA, 145 SCRA 357).
[Right to counsel means reasonably effective

Section 2. Grounds for a new trial. — The court assistance].
shall grant a new trial on any of the following
grounds: Dismissal of appeal is set aside if lawyer is fake
(Telan vs. CA, 202 SCRA 534). But note on the
case of P. vs. Elesterio, supra.
(a) The errors of law or irregularities
prejudicial to the substantial rights of the Loss of stenographic notes after trial is not a
accused have been committed during the trial; ground for new trial, the remedy is the
reconstitution of missing evidence (P. vs. Bocar,
(b) The new and material evidence has been 97 Phil. 398).
discovered which the accused could not with
reasonable diligence have discovered and OTHER GROUNDS FOR NEW TRIAL:
produced at the trial and which if introduced
and admitted would probably change the 1. Section 11, Rule 124. Scope of judgment. —
judgment. (2a) The Court of Appeals may reverse, affirm, or
modify the judgment and increase or reduce
Requisites for newly discovered evidence as the penalty imposed by the trial court, remand
the case to the Regional Trial Court for new
ground for new trial: trial or retrial, or dismiss the case.;
1. That the evidence is material;
2. Evidence is discovered after trial; 2. Power of the SC to suspend it own for the
3. That the evidence could not have been benefit of substantial justice;
discovered and produced at the trial even 3. Recantation of witness
with the exercise of reasonable diligence;
4. Evidence is not merely cumulative, The GR is that recantation of witness is
corroborative, or impeaching; frowned upon and looked upon with
5. The evidence is of such weight that if disfavor because they can easily be
admitted would probably change the secured usually for monetary
judgment; consideration.
6. Affidavits of witnesses by whom such Exception: when, however, the sole basis
evidence is expected to be given [or duly of conviction is the testimony of the
authenticated documents sought to be recanting witness, a new trial may be had
introduced](P. vs. Dela Cruz, 2 SCRA (P. vs. Bocar, supra).
1119).
7. Notice to the prosecutor; Confession; Affidavit of Recantation (1998)
8. Hearing. 1 If the accused on the witness stand repeats his earlier
uncounseled extrajudicial confession implicating his
IMPORTANT: Pro forma rule is not applicable in
coaccused in the crime charged, is that testimony
criminal cases (P. vs. Colmenares, 107 Phil 220).
admissible in evidence against the latter? [3%]
2 What is the probative value of a witness' Affidavit of
Lost appeal cannot be retrieved by a motion for
Recantation? [2%]
new trial (Navarro vs. CA, 234 SCRA 639). SUGGESTED ANSWER:
1. Yes. The accused can testify by repeating his earlier
Mistakes of counsel in the conduct of the trial are uncounseled extrajudicial confession, because he can
not grounds for a new trial. This rule is the same be subjected to cross-examination.
whether the mistakes are result of ignorance, 2. On the probative value of an affidavit of
inexperience, or incompetence (US vs. Umali, 15
recantation, courts look with disfavor upon
Phil. 37).

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recantations because they can easily be secured from (a) When a new trial is granted on the ground
witnesses, usually through intimidation or for a of errors of law or irregularities committed
monetary consideration, Recanted testimony is during the trial, all proceedings and evidence
exceedingly unreliable. There is always the probability affected thereby shall be set aside and taken
that it will be repudiated. (Molina vs. People. 259 SCRA anew. The court may, in the interest of justice,
138.) allow the introduction of additional evidence.
(b) When a new trial is granted on the ground

RECANTATION AFFIDAVIT OF of newly-discovered evidence, the evidence
DESISTANCE already adduced shall stand and the newly-
To renounce and To formally declare the discovered and such other evidence as the
withdraw a prior lack of interest in the court may, in the interest of justice, allow to be
statement formally and prosecution of the introduced shall be taken and considered
publicly action against the together with the evidence already in the
accused record.
Section 3. Ground for reconsideration. — The (c) In all cases, when the court grants new
court shall grant reconsideration on the ground of trial or reconsideration, the original judgment
errors of law or fact in the judgment, which shall be set aside or vacated and a new
requires no further proceedings. (3a) judgment rendered accordingly. (6a)
NOTE: The effect of granting new trial is not to

acquit the accused of the crime of which the
BERRY RULE judgment finds him guilty, but precisely to set
Burden is on the accused to proved that the aside the judgment so that the case may be tried
requisites for New Trial or Reconsideration is de novo as if no trial had been had before.
fully satisfied (Ucat).
Section 4. Form of motion and notice to the

prosecutor. — The motion for a new trial or RULE 122
reconsideration shall be in writing and shall state
the grounds on which it is based. If based on a Appeal
newly-discovered evidence, the motion must be
supported by affidavits of witnesses by whom
such evidence is expected to be given or by duly Section 1. Who may appeal. — Any party may
authenticated copies of documents which are appeal from a judgment or final order, unless the
proposed to be introduced in evidence. Notice of accused will be placed in double jeopardy. (2a)
the motion for new trial or reconsideration shall be
given to the prosecutor. (4a) APPEAL
It is a proceeding for review by which the whole
Note: While the rule requires that an affidavit of case is transferred to the higher court for final
merits must be attached to support a motion for determination.
new trial based on newly discovered evidence,
yet the defect or lack of it may be cured by An appeal is not an inherent right of a person. The
testimony under oath of the defendant at the right to appeal is and always has been statutory.
hearing of the motion (Paredes vs. Borja 3
SCRA 495) Only final orders or judgments are appealable.
An order granting new trial in criminal cases is

Section 5. Hearing on motion. — Where a appealable (P. vs. CA, 82 SCRA 607).
motion for a new trial calls for resolution of any
question of fact, the court may hear evidence EFFECT OF AN APPEAL
thereon by affidavits or otherwise. (5a) An appeal in a criminal case opens the whole
case for review and this includes the review of the
Section 6. Effects of granting a new trial or penalty, indemnity, and the damages involved.
reconsideration. — The effects of granting a new Consequently, on appeal, the appellate court may
trial or reconsideration are the following: increase the penalty, indemnity, or damages
awarded by the trial court, although the offended

________________________________________________________________________________________________
party had not appealed from such award, and the a) What are the modes of appeal to the Supreme
party who sought a review is the accused. Court? (2%)
b) Comment on a proposal to amend Rule 122,
From the judgment of conviction, two appeals may Section 2(b), in relation to Section 3(c), of the Revised
be accordingly be taken: Rules of Criminal Procedure to provide for appeal to
1. The accused may seek review of said the Court of Appeals from the decisions of the RTC in
judgment, as regards both action; or criminal cases, where the penalty imposed is reclusion
2. The complainant may appeal with respect perpetua or life imprisonment, subject to the right of
to the civil liability, either because the the accused to appeal to the Supreme Court. (3%)
lower court has refused of failed to award SUGGESTED ANSWER:
damages, or because the award is A. The modes of appeal to the Supreme Court are:
unsatisfactory to him. (a) APPEAL BY CERTIORARI on pure questions of
law under Rule 45 through a petition for review
For discussion on the right of the prosecution to oncertiorari; and
appeal, see discussions on double jeopardy. (b) ORDINARY APPEAL in criminal cases through a
notice of appeal from convictions imposing reclusion
GR: A private prosecutor in a criminal case has no perpetua or life imprisonment or where a lesser
authority to act for the People before the court on penalty is involved but for offenses committed on the
appeal. It is the government’s counsel, the Solgen, same occasion or which arose out of the same
who appears in criminal cases or their incidents occurrence that gave rise to the more serious offense.
before the SC. At the very least, the provincial (Rule 122, sec. 3) Convictions imposing the death penalty
prosecutor himself, with the conformity of the are elevated through automatic review.
solgen, shall act for the People. B. There is no constitutional objection to providing in
the Rules of Court for an appeal to the Court of
Exception: The civil award may be appealed by Appeals from the decisions of the RTC in criminal
the private prosecutor on behalf of the offended cases where the penalty imposed is reclusion perpetua
party or his successors.
or life imprisonment subject to the right of the accused
to appeal to the Supreme Court, because it does not
Plea of double jeopardy in certiorari is premature.
deprive the Supreme Court of the right to exercise
Where the validity of the orders of dismissal is
precisely the issue, the preliminary issue of
ultimate review of the judgments in such cases.
whether or not double jeopardy is available in
certiorari is premature. If the order of dismissal is
upheld, there is double jeopardy for subsequent Section 3. How appeal taken. —
prosecution. If order of dismissal is invalidated,
there is no double jeopardy (P. vs. Castañeda, GR (a) The appeal to the Regional Trial Court, or
NO. L-46882 Sept. 15, 1988). to the Court of Appeals in cases decided by
the Regional Trial Court in the exercise of its
original jurisdiction, shall be taken by filing a
Section 2. Where to appeal. — The appeal may notice of appeal with the court which
be taken as follows: rendered the judgment or final order appealed
from and by serving a copy thereof upon the
(a) To the Regional Trial Court, in cases adverse party.
decided by the Metropolitan Trial Court,
Municipal Trial Court in Cities, Municipal Trial (b) The appeal to the Court of Appeals in
Court, or Municipal Circuit Trial Court; cases decided by the Regional Trial Court in
the exercise of its appellate jurisdiction shall
be by petition for review under Rule 42.
(b) To the Court of Appeals or to the Supreme
Court in the proper cases provided by law, in
cases decided by the Regional Trial Court; (c) The appeal to the Supreme Court in cases
and where the penalty imposed by the Regional
Trial Court is death, reclusion perpetua, or life
(c) To the Supreme Court, in cases decided imprisonment, or where a lesser penalty is
by the Court of Appeals. (1a) imposed but for offenses committed on the
same occasion or which arose out of the
same occurrence that gave rise to the more
serious offense for which the penalty of death,
reclusion perpetua, or life imprisonment is
Remedies; Appeal to SC; Appeals to CA (2002) imposed, shall be by filing a notice of appeal
________________________________________________________________________________________________
in accordance with paragraph (a) of this and service by mail. The service is complete at the
section. time of such delivery.
PUBLICATION OF NOTICE OF APPEAL

(d) No notice of appeal is necessary in cases
where the death penalty is imposed by the If copy of the notice of appeal cannot be served
Regional Trial Court. The same shall be on the adverse party or his counsel, it may be
automatically reviewed by the Supreme done by publication.
Court as provided in section 10 of this Rule.
Service by publication is made in a newspaper
of general circulation in the vicinity once a week
(e) Except as provided in the last paragraph of for a period not exceeding 30 days (Pamaran, p.
section 13, Rule 124, all other appeals to the 636).
Supreme Court shall be by petition for review
on certiorari under Rules 45. (3a) Notice of appeal must be in writing and filed with
the clerk of court (US. Vs. Tenorio, 37Phil. 7).
NOTE: Appeals falling under subsection (c) and
(d) was subsequently transferred to the CA (AM However verbal notice of appeal made in open
NO. 00-5-03-SC, Oct. 15, 2004). court together with the filing of the bond
constitute substantial compliance with the Rules
However, with the abolition of death penalty, there (P. vs. Agasang, 99 Phil. 11).
is no more automatic appeal.
Notice of appeal by registered mail is valid
MODES OF REVIEW (Yangco vs. Ocampo, 57 Phil. 1).
The Rules recognizes 4 modes by which the
decision or final order of the court may be Section 5. Waiver of notice. — The appellee may
reviewed by a higher tribunal, viz.: waive his right to a notice that an appeal has been
1. Ordinary appeal; taken. The appellate court may, in its discretion,
2. Petition for review (appeal from decision entertain an appeal notwithstanding failure to give
rendered on the courts appellate such notice if the interests of justice so require.
jurisdiction); (5a)
3. Petition for review on certiorari (pure
questions of law-Rule 45); Section 6. When appeal to be taken. — An
4. Automatic appeal(death penalty). appeal must be taken within fifteen (15) days from
promulgation of the judgment or from notice of the
Section 4. Publication of notice of appeal. — If final order appealed from. This period for
personal service of the copy of the notice of perfecting an appeal shall be suspended from the
appeal can not be made upon the adverse party or time a motion for new trial or reconsideration is
his counsel, service may be done by registered filed until notice of the order overruling the motion
mail or by substituted service pursuant to sections shall have been served upon the accused or his
7 and 8 of Rule 13. (4a) counsel at which time the balance of the period
begins to run. (6a)
Section 7. Service by mail. — Service by registered
mail shall be made by depositing the copy in the post NOTE: In computing the period to appeal, the first
office in a sealed envelope, plainly addressed to the
day is excluded and the last day is included.
party or his counsel at his office, if known, otherwise
at his residence, if known, with postage fully prepaid, Should the last day fall on a Sunday or a legal
and with instructions to the postmaster to return the holiday, the period continues to run until the next
mail to the sender after ten (10) days if undelivered. If day which is neither a Sunday nor holiday (sec.
no registry service is available in the locality of either 13, Revised Administrative Code).
the senders or the addressee, service may be done
by ordinary mail. Section 7. Transcribing and filing notes of
stenographic reporter upon appeal. — When
Section 8. Substituted service. — If service of notice of appeal is filed by the accused, the trial
pleadings, motions, notices, resolutions, orders and court shall direct the stenographic reporter to
other papers cannot be made under the two
transcribe his notes of the proceedings. When
preceding sections, the office and place of residence
of the party or his counsel being unknown, service filed by the People of the Philippines, the trial
may be made by delivering the copy to the clerk of court shall direct the stenographic reporter to
court, with proof of failure of both personal service transcribe such portion of his notes of the
proceedings as the court, upon motion, shall

________________________________________________________________________________________________
specify in writing. The stenographic reporter shall shall be forwarded to the Supreme Court for
certify to the correctness of the notes and the automatic review and judgment within five (5) days
transcript thereof, which shall consist of the after the fifteenth (15) day following the
original and four copies, and shall file the original promulgation of the judgment or notice of denial of
and four copies with the clerk without unnecessary a motion for new trial or reconsideration. The
delay. transcript shall also be forwarded within ten (10)
days after the filing thereof by the stenographic
If death penalty is imposed, the stenographic reporter. (10a)
reporter shall, within thirty (30) days from
promulgation of the sentence, file with the clerk Section 11. Effect of appeal by any of several
original and four copies of the duly certified accused. —
transcript of his notes of the proceedings. No
extension of time for filing of said transcript of (a) An appeal taken by one or more of several
stenographic notes shall be granted except by the accused shall not affect those who did not
Supreme Court and only upon justifiable grounds. appeal, except insofar as the judgment of the
(7a) appellate court is favorable and applicable to
the latter;
Section 8. Transmission of papers to appellate
court upon appeal. — Within five (5) days from (b) The appeal of the offended party from the
the filing of the notice of appeal, the clerk of the civil aspect shall not affect the criminal aspect
court with whom the notice of appeal was filed of the judgment or order appealed from.
must transmit to the clerk of court of the appellate
court the complete record of the case, together (c) Upon perfection of the appeal, the
with said notice. The original and three copies of execution of the judgment or final order
the transcript of stenographic notes, together with appealed from shall be stayed as to the
the records, shall also be transmitted to the clerk
appealing party. (11a)
of the appellate court without undue delay. The
other copy of the transcript shall remain in the
lower court. (8a) Section 12. Withdrawal of appeal. —
Notwithstanding the perfection of the appeal, the
Regional Trial Court, Metropolitan Trial Court,
Section 9. Appeal to the Regional Trial Courts.
Municipal Trial Court in Cities, Municipal Trial
— Court, or Municipal Circuit Trial Court, as the case
may be, may allow the appellant to withdraw his
(a) Within five (5) days from perfection of the appeal before the record has been forwarded by
appeal, the clerk of court shall transmit the the clerk of court to the proper appellate court as
original record to the appropriate Regional provided in section 8, in which case the judgment
Trial Court. shall become final.
(b) Upon receipt of the complete record of the The Regional Trial Court may also, in its
case, transcripts and exhibits, the clerk of discretion, allow the appellant from the judgment
court of the Regional Trial Court shall notify of a Metropolitan Trial Court, Municipal Trial Court
the parties of such fact. in Cities, Municipal Trial Court, or Municipal Circuit
Trial Court to withdraw his appeal, provided a
(c) Within fifteen (15) days from receipt of the motion to that effect is filed before rendition of the
said notice, the parties may submit judgment in the case on appeal, in which case the
memoranda or briefs, or may be required by judgment of the court of origin shall become final
the Regional Trial Court to do so. After the and the case shall be remanded to the latter court
submission of such memoranda or briefs, or for execution of the judgment. (12a)
upon the expiration of the period to file the
same, the Regional Trial Court shall decide Section 13. Appointment of counsel de oficio
the case on the basis of the entire record of for accused on appeal. — It shall be the duty of
the case and of such memoranda or briefs as the clerk of the trial court, upon filing of a notice of
may have been filed. (9a) appeal, to ascertain from the appellant, if confined
in prison, whether he desires the Regional Trial
Section 10. Transmission of records in case of Court, Court of Appeals or the Supreme Court to
death penalty. — In all cases where the death appoint a counsel de oficio to defend him and to
penalty is imposed by the trial court, the records transmit with the record on a form to be prepared

________________________________________________________________________________________________
by the clerk of court of the appellate court, a Section 4. When brief for appellee to be filed;
certificate of compliance with this duty and of the reply brief of the appellant. — Within thirty (30)
response of the appellant to his inquiry. (13a) days from the receipt of the brief of the appellant,
the appellee shall file seven (7) copies of the brief
of the appellee with the clerk of court which shall
be accompanied by proof of service of two (2)
copies thereof upon the appellant.
RULE 123 Within twenty (20) days from receipt of the brief
of the appellee, the appellant may file a reply brief
Procedure in the Municipal Trial Courts traversing matters raised in the former but not
covered in the brief of the appellant. (4a)
Section 1. Uniform Procedure. — The procedure
Section 5. Extension of time for filing briefs. —
to be observed in the Metropolitan Trial Courts,
Extension of time for the filing of briefs will not be
Municipal Trial Courts and Municipal Circuit Trial
allowed except for good and sufficient cause and
Courts shall be the same as in the Regional Trial
only if the motion for extension is filed before the
Courts, except where a particular provision applies
expiration of the time sought to be extended. (5a)
only to either of said courts and in criminal cases
governed by the Revised Rule on Summary
Procedure. (1a) Section 6. Form of briefs. — Briefs shall either be
printed, encoded or typewritten in double space on
RULE 124 the legal size good quality unglazed paper, 330
mm. in length by 216 mm. in width. (6a)
Procedure in the Court of Appeals
Section 7. Contents of brief. — The briefs in
criminal cases shall have the same contents as
Section 1. Title of the case. — In all criminal provided in sections 13 and 14 of Rule 44. A
cases appealed to the Court of Appeals, the party certified true copy of the decision or final order
appealing the case shall be called the "appellant" appealed from shall be appended to the brief of
and the adverse party the "appellee," but the title appellant. (7a)
of the case shall remain as it was in the court of
origin. (1a)
Section 8. Dismissal of appeal for
abandonment or failure to prosecute. — The
Section 2. Appointment of counsel de oficio for Court of Appeals may, upon motion of the
the accused. — If it appears from the record of appellee or motu proprio and with notice to the
the case as transmitted that: appellant in either case, dismiss the appeal if
the appellant fails to file his brief within the
(a) the accused is confined in prison, time prescribed by this Rule, except where the
(b) is without counsel de parte on appeal, or appellant is represented by a counsel de oficio.
(c) has signed the notice of appeal himself,
the clerk of court of the Court of Appeals shall The Court of Appeals may also, upon motion of
designate a counsel de oficio. the appellee or motu proprio, dismiss the appeal if
the appellant escapes from prison or confinement,
An appellant who is not confined in prison may, jumps bail or flees to a foreign country during the
upon request, be assigned a counsel de oficio pendency of the appeal. (8a)
within ten (10) days from receipt of the notice to
file brief and he establishes his right thereto. (2a) GROUNDS FOR DISMISSAL OF APPEAL:
1. Failure to file brief (in the CA) within the
Section 3. When brief for appellant to be filed. reglementary period, except when
— Within thirty (30) days from receipt by the represented by counsel de oficio;
appellant or his counsel of the notice from the 2. Escape from prison or confinement;
clerk of court of the Court of Appeals that the 3. Jumping bail;
evidence, oral and documentary, is already 4. Flight to foreign country during the
attached to the record, the appellant shall file pendency of the appeal.
seven (7) copies of his brief with the clerk of court
which shall be accompanied by proof of service of NOTE: In appeals to the CA, the court can validly
two (2) copies thereof upon the appellee. (3a) dismissed the case for failure to file is brief (sec.

________________________________________________________________________________________________
8,Rule 124. However, in appeals to the RTC, the GR: The findings of the judge (who actually
court cannot dismiss the case for failure to file observed the manner the witnesses testified)
brief or memoranda, appellate court shall decide who tried the case and heard the witnesses are
base on the entire record of the case (sec. 9, (c), not disturbed on appeal.
Rule 122).
Exception: When it is shown that the trial court
DISMISSAL OF APPEAL; NEED OF NOTICE TO has overlooked certain facts of substance and
THE APPELANT value that, if considered, might affect the result
The CA may dismiss motu proprio or on motion by of the case (P. vs. Cabiling, 74 SCRA 285).
appellee an appeal for failure on the part of the
appellant to file his brief on time, BUT it must Trial court’s findings on the credibility of the
have a notice served upon the appellant of the witnesses should not be disturbed on appeal
action to be taken by the court before dismissing UNLESS substantial facts which might affect the
motu proprio the appeal. results of the case have been overlooked.
Effect of escape of accused; Abandonment of Bar Exam Question 2013

appeal XII. Findings of fact are generally not
disturbed by the appellate court except in
1. If the convict escapes from prison or cases __________. (1%) (A) where the issue is
confinement or refuses to surrender to the the credibility of the witness (B) where the
proper authorities, jumps bail or flees to a judge who heard the case is not the same
foreign country, he is deemed to have judge who penned the decision (C) where the
abandoned his appeal and the judgment judge heard several witnesses who gave
of the court below becomes final; conflicting testimonies (D) where there are
substantially overlooked facts and
2. In that case, the accused cannot be circumstances that, if properly
afforded the right to appeal, unless he considered, might affect the result of the
voluntarily submits to the jurisdiction of the case (E) None of the above. SUGGESTED
court or is otherwise arrested within 15 ANSWER: (D), In Miranda vs. People, G.R.
days from notice of judgment against him. No. 176298, January 25, 2012, the
Supreme Court explained that absent any
Note: However, prior to the abolition of the death showing that the lower courts overlooked
penalty, if death penalty is imposed, the escape of substantial facts and circumstances,
the accused does not relieve the SC (CA) of the which if considered, would change the
burden of automatically reviewing the case, in the result of the case, the Court should give
same manner that a withdrawal of appeal by a deference to the trial court‟s appreciation
death convict would not remove the case from he of the facts and of the credibility of
jurisdiction of the court (P. vs. Bugnay, 128 SCRA
witness.
31)
Section 11. Scope of judgment. — The Court of

Section 9. Prompt disposition of appeals. —
Appeals may reverse, affirm, or modify the
Appeals of accused who are under detention shall
judgment and increase or reduce the penalty
be given precedence in their disposition over other
imposed by the trial court, remand the case to the
appeals. The Court of Appeals shall hear and
Regional Trial Court for new trial or retrial, or
decide the appeal at the earliest practicable time
dismiss the case. (11a)
with due regard to the rights of the parties. The
accused need not be present in court during the
hearing of the appeal. (9a) All errors, assigned or not should be reviewed
(Suy Sui vs. P., 92 Phil. 684).
Section 10. Judgment not to be reversed or
Conviction for higher offense on appeal; No
modified except for substantial error. — No
double jeopardy (Lontoc vs. P., 74 Phil. 513).
judgment shall be reversed or modified unless the
Court of Appeals, after an examination of the
HOWEVER, the conviction must be limited to
record and of the evidence adduced by the
the crime charge in the information (Babanto vs.
parties, is of the opinion that error was committed
Zosa, 120 SCRA 834).
which injuriously affected the substantial rights of
the appellant. (10a)

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Section 12. Power to receive evidence — The b. Where the judgment also imposes a
Court of Appeals shall have the power to try lesser penalty for offenses committed on
cases and conduct hearings, receive evidence the same occasion or arose out of the
and perform any and all acts necessary to resolve same occurrence that give rise to the
factual issues raised in cases more severe offense for which the penalty
of death was imposed, and the accused
(a) falling within its original jurisdiction, appeals, the appeal shall be certified for
review to the SC;
(b) involving claims for damages arising from
c. In case the CA imposes reclusion
provisional remedies, or
perpetua, life imprisonment or a lesser
penalty, it shall render and enter judgment
(c) where the court grants a new trial based imposing such penalty. The judgment may
only on the ground of newly-discovered be appealed to the CA by notice of appeal
evidence. (12a) filed with the CA.
Section 13. Quorum of the court; certification Section 14. Motion for new trial. — At any time
or appeal of cases to Supreme Court. — Three after the appeal from the lower court has been
(3) Justices of the Court of Appeals shall perfected and before the judgment of the Court of
constitute a quorum for the sessions of a division. Appeals convicting the appellant becomes final,
The unanimous vote of the three (3) Justices of a the latter may move for a new trial on the ground
division shall be necessary for the pronouncement of newly-discovered evidence material to his
of a judgment or final resolution, which shall be defense. The motion shall conform with the
reached in consultation before the writing of the provisions of section 4, Rule 121. (14a)
opinion by a member of the division. In the event
that the three (3) Justices can not reach a
Section 15. Where new trial conducted. —
unanimous vote, the Presiding Justice shall direct
When a new trial is granted, the Court of Appeals
the raffle committee of the Court to designate two
may conduct the hearing and receive evidence as
(2) additional Justices to sit temporarily with them,
provided in section 12 of this Rule or refer the trial
forming a special division of five (5) members and
to the court of origin. (15a)
the concurrence of a majority of such division shall
be necessary for the pronouncement of a
judgment or final resolution. The designation of Section 16. Reconsideration. — A motion for
such additional Justices shall be made strictly by reconsideration shall be filed within fifteen (15)
raffle and rotation among all other Justices of the days after from notice of the decision or final order
Court of Appeals. of the Court of Appeals, with copies served upon
the adverse party, setting forth the grounds in
Whenever the Court of Appeals finds that the support thereof. The mittimus shall be stayed
during the pendency of the motion for
penalty of death, reclusion perpetua, or life
reconsideration.
imprisonment should be imposed in a case, the
court, after discussion of the evidence and the law
involved, shall render judgment imposing the No party shall be allowed a second motion for
penalty of death, reclusion perpetua, or life reconsideration of a judgment or final order. (16a)
imprisonment as the circumstances warrant.
However, it shall refrain from entering the Section 17. Judgment transmitted and filed in
judgment and forthwith certify the case and trial court. — When the entry of judgment of the
elevate the entire record thereof to the Supreme Court of Appeals is issued, a certified true copy of
Court for review. (13a) the judgment shall be attached to the original
record which shall be remanded to the clerk of the
court from which the appeal was taken. (17a)
SECTION 13 (Amended by AM NO. 00-5-03-SC,
Oct. 15, 2004) Section 18. Application of certain rules in civil
a. Whenever the CA finds that the penalty of to criminal cases. — The provisions of Rules 42,
death should be imposed, the court shall 44 to 46 and 48 to 56 relating to procedure in the
render judgment but refrain from making Court of Appeals and in the Supreme Court in
an entry of judgment and forthwith certify original and appealed civil cases shall be applied
the case and elevate its entire record to to criminal cases insofar as they are applicable
the SC for review; and not inconsistent with the provisions of this
Rule. (18a)

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Note: The foregoing rule did not include 4. When the judgment is premised on a
Annulment of Judgment (Rule 47). If the court is misapprehension of facts;
without jurisdiction, the proper remedy is 5. When the findings of facts are conflicting;
certiorari and Habeas corpus. 6. When the CA in making its findings went
beyond the issues of the case and the
same is contrary to the admissions of both
parties;
RULE 125 7. When certain material facts and
circumstances had been overlooked
which, if taken into account would alter the
Procedure in the Supreme Court result as it would give rise to reasonable
doubt to acquit the accused.
See also A.M. No. 10-4-20-SC
THE INTERNAL RULES OF THE SUPREME Section 3. Decision if opinion is equally
COURT divided. — When the Supreme Court en banc is
equally divided in opinion or the necessary
Section 1. Uniform procedure. — Unless majority cannot be had on whether to acquit the
otherwise provided by the Constitution or by law, appellant, the case shall again be deliberated
the procedure in the Supreme Court in original upon and if no decision is reached after re-
and in appealed cases shall be the same as in the deliberation, the judgment of conviction of the
Court of Appeals. (1a) lower court shall be reversed and the accused
acquitted. (3a)
NOTE: A case may reach the SC in the following
manner:
1. Automatic review;
2. Ordinary appeal; RULE 126
3. Petition for review on certiorari.
Search and Seizure
EFFECT OF DIRECT APPEAL TO THE
SUPREME COURT ON QUESTION OF LAW IN
CRIMINAL CASES Section 2, art III, 1987 Const.. The right of the
A direct appeal to the SC on questions of law, in people to be secure in their persons, houses,
criminal cases in which the penalty imposed is not papers, and effects against unreasonable
death or life imprisonment, precludes a review of searches and seizures of whatever nature and for
the facts.
any purpose shall be inviolable, and no search
Cases involving both questions of law and fact warrant or warrant of arrest shall issue except
come within the jurisdiction of the CA. upon probable cause to be determined personally
by the judge after examination under oath or
affirmation of the complainant and the witnesses
he may produce, and particularly describing the
Section 2. Review of decisions of the Court of place to be searched and the persons or things to
Appeals. — The procedure for the review by the be seized.
Supreme Court of decisions in criminal cases
rendered by the Court of Appeals shall be the
Crimes that may arose in violation of the
same as in civil cases. (2a)
constitutional grant:
1. Trespassing--- if committed by private
GR: Finding of facts of the CA is conclusive upon individual;
the SC. 2. Violation of Domicile--- if committed by
public officers;
EXCEPTIONS: 3. Grave coercion--- when proper; search is
1. When the conclusion is a finding not in the domicile.
grounded entirely on speculation,
surmises or conjectures; Compliance with the constitutional requirements
2. When the inference made is manifestly are mandatory. Presumption of regularity in the
absurd, mistaken or impossible; performance of duty is not applicable in search
3. When there is grave abuse of discretion in warrant cases.
the appreciation of facts;

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

________________________________________________________________________________________________
(Rule 126, Sec.5, Rules of Court). if the at night when it is positively asserted in
judge is satisfied of the existence of facts the affidavit that the property is on the
upon which the application is based or person or in the place ordered to be
that there is probable cause to believe searched (Alvares vs. CFI of Tayabas, 64
that they exist, he shall issue the warrant, Phil. 33). There is no showing that the
which must be substantially in the form exception applies.
prescribed by the Rules. (Rule 126, Sec.6,
Rules of Court). (e) Suppose the search warrant was served
Suppose the judge issues the search warrant on March 15, 2012 and the search yielded
worded in this way: the described contraband and a case was
PEOPLE OF THE PHILIPPINES Plaintiff filed against the accused in RTC, Sta. Cruz,
-versus- Criminal Case Laguna and you are the lawyer of Sio Pao
No. 007 for and Ho Pia, what will you do? (3%)
Violation of R.A. SUGGESTED ANSWER: If I were the lawyer
9165 of Sio Pao and Ho Pia, I would file a
Ho Pia and Sio Pao, Accused. Motion to Quash the search warrant for
having been served beyond its period of
TO ANY PEACE OFFICER validity. (Rule 126, Sec. 14, Rules of
Greetings: It appearing to the satisfaction of Court). A search warrant shall be valid
the undersigned after examining under oath only for ten (10) days from its date.
PDEA Director shabunot that there is Thereafter, it shall be void. (Rule 126,
probable cause to believe that violations of Sec.10, Revised Rules of Court).
Section 18 and 16 of R.A. 9165 have been
committed and that there are good and (f) Suppose an unlicensed armalite was found
sufficient reasons to believe that Ho Pia and in plain view by the searchers and the
Sio Pao have in their possession or control, in warrant was ordered quashed, should the
a two (2) door apartment with an iron gate court order the return of the same to the
located at Jupiter St., Sta. Cruz, Laguna, Chinese nationals? Explain your answer.
undetermined amount of "shabu" and drug (3%) SUGGESTED ANSWER: No, the court
manufacturing implements and should not order the return of the
paraphernalia which should be seized and unlicensed armalite because it is
brought to the undersigned, You are hereby contraband or illegal per se. (PDEA vs.
commanded to make an immediate search, at Brodett, G.R. No. 196390, September 28,
any time in the day or night, of the premises 2011). The possession of an unlicensed
above described and forthwith seize and take armalite found in plain view is mala
possession of the abovementioned personal prohibita. The same should be kept in
property, and bring said property to the custodial legis.
undersigned to be dealt with as the law
directs. Witness my hand this 1st day of
March, 2012. (signed) Judge XYZ
Section 3. Personal property to be seized. — A
(d) Cite/enumerate the defects, if any, of the search warrant may be issued for the search and
search warrant. (3%) seizure of personal property:
SUGGESTED ANSWER: (1) The search
warrant failed to particularly describe the (a) Subject of the offense;
place to be searched and the things to be
seized (Rule 126, Sec.4, Rules of Court). (b) Stolen or embezzled and other
(2) The search warrant commanded the proceeds, or fruits of the offense; or
immediate search, at any time in the day
or night. The general rule is that a search (c) Used or intended to be used as the
warrant must be served in the day time means of committing an offense. (2a)
(Rule 126, Sec.8, Revised Rules on
Criminal Procedure), or that portion of the
Note: The rule does not require that the property
twenty-four hours in which a man‟s to be seized should be owned by the person
person and countenance are against whom the search warrant is directed. It
distinguishable (17 C.J. 1134). By way of may or may not be owned by him.
exception, a search warrant may be made

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In search incidental to an arrest even without a Santos and the seizure of an undetermined amount of
warrant the person arrested may be searched for: shabu. The team arrived at the house of Santos but
1. Dangerous weapons; failed to find him there. Instead, the team found
2. Anything which may be used as proof of Roberto Co. The team conducted a search in the
the commission of an offense. house of Santos in the presence of Roberto Co and
barangay officials and found ten (10) grams of shabu.
Section 4. Requisites for issuing search Roberto Co was charged in court with illegal
warrant. — A search warrant shall not issue possession of ten grams of shabu. Before his
except upon probable cause in connection with arraignment, Roberto Co filed a motion to quash the
one specific offense to be determined personally warrant on the following grounds
by the judge after examination under oath or (a) it was not the accused named in the search warrant;
affirmation of the complainant and the witnesses and (b) the warrant does not describe the article to be
he may produce, and particularly describing the seized with sufficient particularity. Resolve the motion
place to be searched and the things to be seized with reasons. (4%)
which may be anywhere in the Philippines. (3a) SUGGESTED ANSWER:
The motion to quash should be denied. The name of
REQUISITES: (clue words) the person in the search warrant is not important. It is
not even necessary that a particular person be
1. Issued upon probable cause; implicated (Mantaring v. Roman, A.M. No. RTJ-93-904,
2. Probable cause determined by the judge; February 28, 1996), so long as the search is conducted in
3. Personal examination, under oath or the place where the search warrant will be served.
affirmation, of the applicant and the Moreover, describing the shabu in an undetermined
witnesses, in the form of searching amount is sufficiently particular. (People v. Tee, G.R.
questions and answers; Nos. 140546-47, January 20, 2003)
4. Particular description of the property to be
seized;
5. Particular description of the place, or WHO MAY QUESTION THE VALIDITY OF
persons to be searched; SEARCH AND SEIZURE
6. Issued for one specific offense; Well settled is the rule that the legality of a seizure
7. It must be served within 10 days from can be contested only by the party whose rights
issue. have been impaired thereby, and that the
objection to an unlawful search and seizure is
PROBABLE CAUSE (in search and seizure purely personal and cannot be availed of by third
cases) parties.
It refers to the facts and circumstances which
could lead a reasonable , discreet and prudent REMEDIES FROM AN UNLAWFUL SEARCH:
man to believe that the property subject of an 1. A motion to quash the search warrant;
offense is in the place sought to be searched. 2. A motion to suppress as evidence the
objects illegally taken;
Affidavits of complainant and his witnesses is not 3. Repliven, if the objects are legally
sufficient for the issuance of search warrant. possessed.
Judge should take the depositions of the
witnesses and the complainant and attached them Note: The remedies are alterative. If a motion to
to the record of the case (Mata vs. Bayona, 128 quash is denied, a motion to suppress cannot be
SCRA 388). availed subsequently.
Certification of absence of license to possess, Where the search warrant is a patent nullity,
from the Firearms and Explosives Division of the certiorari lies to nullify the same.
PNP, is needed in the application for search
warrant for illegal possession of firearms. The illegality of the search does not call for the
return of the things seized, the possession of
In case of firearms search, there must be a sketch which is prohibited by law. However, those
where such firearm is located (Ucat). personalties seized in violation of the
constitutional immunity whose possession is not
Search Warrant; Motion to Quash (2005) per se illegal or unlawful ought to be returned to
Police operatives of the Western Police District, their rightful owner or possessor.
Philippine National Police, applied for a search
warrant in the RTC for the search of the house of Juan Any evidence obtained in violation of the
constitutional immunity against unreasonable

________________________________________________________________________________________________
searches and seizures are inadmissible for any must be under oath may not be in public. It may
purpose in any proceeding (sec. 2, art. III, 1987 even be held in the secrecy of the chambers. It
Const.). must be under oath and in writing.
However, they may be used against the person Section 6. Issuance and form of search
violating the constitutional grant against warrant. — If the judge is satisfied of the
unreasonable searches and seizures. existence of facts upon which the application is
based or that there is probable cause to believe
General warrants (without particular description that they exist, he shall issue the warrant, which
of the things to be seized) are void. must be substantially in the form prescribed by
these Rules. (5a)
Note: However, that search warrant is severable.
The general description of some objects does not NOTE: The search warrant must be in writing
render the entire warrant void. Things particularly and must contain such particulars as name of
described can still be sustained while those the person against whom it is directed, the
generally described may just be cut-off from the offense for which it was issued, the place to be
warrant (Uy vs. BIR, Oct. 20, 2000). search and the specific things to be seized.
There is particular description of the thing to
Search warrant cannot issue against diplomatic
be seized when: (PARTICULARITY TEST)
officers (WHO vs. Aquino, 48 SCRA
242).[Diplomatic/Sovereign Immunity]
1. The description is as specific as
circumstances will allow; Bar Exam Question 2012
 However, particular description of
99. A certificate against Forum-Shopping is
caliber or type of weapon is not
not required in:
necessary
a. petitions for probate of will.
Mathematical certainty of the grams of
b. application for search warrant.
shabu subject of the search warrant is not
c. complaint-in-intervention.
necessary
d. petition for Writ of Kalikasan.
2. When it expresses a conclusion of fact by SUGGESTED ANSWER: (b), A certification
which the warrant officer may be guided; against forum shopping is not required in
or an application for search warrant. The
Rules of Court, require only initiatory
3. When the things described are limited to pleading to be accompanied with a
those which bear a direct relation to the certificate of non-forum shopping
offense for which the warrant is issued. omitting any mention of “applications” as
in Supreme Court No. 04-94. Hence, the
absence of such certification will not
“MULTI-FACTOR BALANCING TEST” in result in the dismissal of the application
determining probable cause: for search warrant. (Savage vs. Judge A.B.
One which require the officer to weigh the manner Taypin, G.R. No. 134217, May 11, 2000).
and intensity of the interference on the right of the
people, the gravity of the crime committed, and
the circumstances attending the incident. Section 7. Right to break door or window to
effect search. — The officer, if refused
admittance to the place of directed search after
Section 5. Examination of complainant; record. giving notice of his purpose and authority, may
— The judge must, before issuing the warrant, break open any outer or inner door or window of a
personally examine in the form of searching house or any part of a house or anything therein to
questions and answers, in writing and under oath, execute the warrant or liberate himself or any
the complainant and the witnesses he may person lawfully aiding him when unlawfully
produce on facts personally known to them and detained therein. (6)
attach to the record their sworn statements,
together with the affidavits submitted. (4a) KNOCK AND ANNOUNCE PRINCIPLE
Generally, officers implementing a search warrant
NOTE: An application for search warrant is must announce their presence, identify
heard ex parte. It is neither a trial nor a part of themselves to the accused and the persons who
the trial. The examination or investigation, which rightfully have possession of the premises to be

________________________________________________________________________________________________
searched, and to show to them the search warrant Art. 130, RPC. Searching domicile without
to be implemented by them and to explain to them witnesses. — The penalty of arresto mayor in its
said warrant in a language or dialect known and medium and maximum periods shall be imposed
understood by them. upon a public officer or employee who, in cases
where a search is proper, shall search the
Unannounced intrusion into the premises is domicile, papers or other belongings of any
permissible only when: person, in the absence of the latter, any member
1. The person whose premises or is entitled of his family, or in their default, without the
to the possession thereof refuses, upon presence of two witnesses residing in the same
demand to open it; locality.
2. When such person in the premises knew
the identity of the officers and of their Section 9. Time of making search. — The
authority; warrant must direct that it be served in the day
3. When the officers are justified, in the time, unless the affidavit asserts that the property
honest belief that there is an imminent is on the person or in the place ordered to be
peril to life or limb; searched, in which case a direction may be
4. When those in the premises, aware of the inserted that it be served at any time of the day or
presence of someone outside, are then night. (8)
engage in activities which justifies the
officers to believe that an escape or Section 10. Validity of search warrant. — A
destruction of evidence is imminent search warrant shall be valid for ten (10) days
(Vallejo vs. CA, GR NO. 156413, April 14, from its date. Thereafter it shall be void. (9a)
2004).
NOTE: While under sec. 10 search warrant has
a validity of 10 days, nevertheless, it cannot be
Art. 129, RPC. Search warrants maliciously
used everyday of said period and once articles
obtained and abuse in the service of those
have been seized under said warrant, it cannot
legally obtained. — In addition to the liability
be used again for another search and seizure,
attaching to the offender for the commission
EXCEPT when the search conducted on one
of any other offense, the penalty of arresto
day was interrupted, in which case the same
mayor in its maximum period to prision
may be continued under the same warrant the
ceeding P1,000 pesos shall be imposed upon
following day if not beyond the 10 day period
any public officer or employee who shall
(Uy Kheytin vs. Villareal, 42 Phil. 886).
procure a searcorreccional in its minimum
period and a fine not exch warrant without just
cause, or, having legally procured the same,
11. The validity of a search warrant is days:
shall exceed his authority or use unnecessary
a. 15;
severity in executing the same.
b. 30;
c. 60;
Section 8. Search of house, room, or premise d. 120.
to be made in presence of two witnesses. — SUGGESTED ANSWER: NO CORRECT
No search of a house, room, or any other premise ANSWER. The Committee recommends
shall be made except in the presence of the lawful that the examinee be given a full credit for
occupant thereof or any member of his family or in any answer to the question. Validity of a
the absence of the latter, two witnesses of
Search Warrant.- A search warrant shall be
sufficient age and discretion residing in the same valid for ten (10) days from its date.
locality. (7a)
Thereafter, it shall be void. (Rule 126, Sec.
10, Rules of Court).
REASON: In order to insure that the execution
of the warrant will be fair and reasonable, and in Bar Exam Question 2012
order to insure that the officer conducting the 44. Which of the following is true?
search shall not exceed his authority or use a. Summons expires after 5 days from issue.
unnecessary severity in executing the search b. Writ of Execution expires after 10 days
warrant, as well as for the protection of the from issue.
officers against unjust accusations of planting
c. Search Warrant expires after 20 days from
evidence.
issue.
d. Subpoena expires after 30 days from issue.
SUGGESTED ANSWER:

________________________________________________________________________________________________
NO CORRECT ANSWER. The Committee been used or constitute proof in the commission of
recommends that the examinee be given an offense without a search warrant. (12a)
full credit for any answer to the question.
ALTERNATIVE ANSWER: (c), According to WHEN MAY THERE BE A SEARCH WITHOUT A
the Committee, this it the most logical WARRANT:
answer because search warrant expires 10
days after its issuance. 1. In times of war, within the area of military
operation (exceptional circumstances);
2. As an incident of a lawful arrest subject

Section 11. Receipt for the property seized. — to the following requisites:
The officer seizing property under the warrant a. Arrest must be lawful;
must give a detailed receipt for the same to the b. Search and search and seizure
lawful occupant of the premises in whose must be contemporaneous with
presence the search and seizure were made, or in the arrest;
the absence of such occupant, must, in the c. Search must be within the
presence of at least two witnesses of sufficient permissible area or within the
age and discretion residing in the same locality, immediate control of the accused;
leave a receipt in the place in which he found the
seized property. (10a) 3. Under plain view doctrine—prohibited
articles open to eye and hand;
NOTE: The person searched or found in the
area searched may not be compelled to sign REQUISITES:
the receipt, otherwise, his right against self a) Prior valid intrusion based on the
incrimination is violated. valid warrantless arrest in which
the police are legally present in
Section 12. Delivery of property and the pursuit of their official
inventory thereof to court; return and functions;
proceedings thereon. — (a) The officer must b) The evidence is inadvertently
forthwith deliver the property seized to the discovered;
judge who issued the warrant, together with a c) Evidence is immediately apparent
true inventory thereof duly verified under oath. without any further search;
d) Apparent illegality of the
(b) Ten (10) days after issuance of the search evidence.
warrant, the issuing judge shall ascertain if the
return has been made, and if none, shall Search & Seizure; Plain View (2008)
summon the person to whom the warrant was No.IX. The search warrant authorized the
issued and require him to explain why no seizure of “undetermined quantity of shabu.”
return was made. If the return has been made, During the service of the search warrant, the
the judge shall ascertain whether section 11 of raiding team also recovered a kilo of dried
this Rule has been complied with and shall marijuana leaves wrapped in newsprint. The
require that the property seized be delivered accused moved to suppress the marijuana
to him. The judge shall see to it that leaves as evidence for the violation of Section
subsection (a) hereof has been complied with. 11 of the Comprehensive Dangerous Drugs
Act of 2002 since they were not covered by
(c) The return on the search warrant shall be the search warrant. The State justified the
filed and kept by the custodian of the log book seizure of the marijuana leaves under the
on search warrants who shall enter therein the “plain view” doctrine. There was no indication
date of the return, the result, and other actions of whether the marijuana leaves were
of the judge. discovered and seized before or after the
seizure of the shabu. If you are the judge,
A violation of this section shall constitute contempt how would you rule on the motion to
of court.(11a) suppress? SUGGESTED ANSWER: The
“plain view” doctrine cannot be invoked
Section 13. Search incident to lawful arrest. — because the marijuana leaves were
A person lawfully arrested may be searched for wrapped in newsprint and there was no
dangerous weapons or anything which may have evidence as to whether the marijuana

________________________________________________________________________________________________
leaves were discovered and seized before the respondent in an administrative case
or after the seizure of the shabu. If they (misconduct), was held reasonable by SC
were discovered after the seizure of the under the circumstances. There was no
shabu, then the marijuana could not have violation of the constitutional right to
been seized in plain view (CF. Peo vs. Mua, privacy as guaranteed by section 2, Article
G.R. No. 96177, 27 January 1997). In any III of the Constitution. (Pollo vs.
case, the marijuana should be confiscated Constantino-David, GR No. 181881, Oct.
as a prohibited article. 18, 2011, En Banc).
Search & Seizure; Warrantless Search

4. Consented search; subject to the (2010)
following : No.VII. As Cicero was walking down a dark
a. There is a right; alley one midnight, he saw an "owner-type
b. There must be knowledge of the jeepney" approaching him. Sensing that the
existence of the right; occupants of the vehicle were up to no good,
c. There must be intent to waive he darted into a corner and ran. The
such right. occupants of the vehicle − elements from the
Western Police District − gave chase and
Note: Silence and lack of apprehended him. The police apprehended
objection is not tantamount to Cicero, frisked him and found a sachet of
consent. 0.09 gram of shabu tucked in his waist and a
Swiss knife in his secret pocket, and detained
him thereafter. Is the arrest and body-search
5. When it is pursuant to some inspection legal? (3%) SUGGESTED ANSWER: The
as mandated by law—like: arrest and body-search was legal. Cicero
a) Fire safety inspection; appears to be alone „walking down the
b) Sanitary inspection; dark alley” and at midnight. There
c) Visitorial Power of the Regional appears probable cause for the policemen
Director, under the Labor Code. to check him, especially when he darted
6. Under the Tariff and Customs Code for into a corner (presumably also dark) and
purposes of enforcing customs and tariff run under such circumstance.
laws; Although the arrest came after the body-
search where Cicero was found with shabu
Except: Dwelling house. and a Swiss knife, the body-search is legal
under the “Terry search” rule or the “stop
7. Search and seizures of vessels and and frisk” rule. And because the mere
aircraft;
possession, with animus, of dangerous
drug (the shabu) is a violation of the law
Note: Routinary airport inspection under
(R.A. 9165), the suspect is in a continuing
RA 6235.
state of committing a crime while he is
8. Search of moving vehicle;
illegally possessing the dangerous drug,
a. Extensive search—when there is
thus making the arrest tantamount to an
probable cause;
arrest in flagrante: so the arrest is legal
b. Routinary search--- mere visual
search (checkpoint search) and correspondingly, the search and
seizure of the shabu and the concealed
9. Search by private individuals/institution knife may be regarded as incident to a
a) Malls; lawful arrest.
b) Department stores. ALTERNATIVE ANSWER: No, the arrest
10. Stop and Frisk Rule (Terry Doctrine) and the body-search were not legal. In this
Terry vs. Ohio, 392 US 1 case, Cicero did not run because the
occupants of the vehicle identified
11. Search of an office computer assigned to themselves as police officers. He darted
a government employee. into the corner and ran upon the belief
that the occupants of the vehicle were up
to no good. Cicero‟s act of running does
The search of office computer, where
not show any reasonable ground to believe
personal files were stored and used by the
that a crime has been committed or is
government employer as evidence against
________________________________________________________________________________________________
about to be committed for the police had allowed direct recourse to it or even
officers to apprehend him and conduct to the Court of Appeals via a special civil
body search. Hence, the arrest was illegal action for certiorari from a trial court‟s
as it does not fall under any of the quashal of search warrant.
circumstances for a valid warrantless
arrest provided in Sec. 5 of Rule 113 of More SUBSTANTIAL DISCUSSIONS on search
the Rules of Criminal Procedure. and seizure are found in the Political Law
Review.
Section 14. Motion to quash a search warrant

or to suppress evidence; where to file. — A RULE 127
motion to quash a search warrant and/or to
suppress evidence obtained thereby may be filed Provisional Remedies in Criminal Cases
in and acted upon only by the court where the
action has been instituted. If no criminal action has Section 1. Availability of provisional remedies.
been instituted, the motion may be filed in and — The provisional remedies in civil actions,
resolved by the court that issued the search insofar as they are applicable, may be availed of
warrant. However, if such court failed to resolve in connection with the civil action deemed
the motion and a criminal case is subsequent filed instituted with the criminal action. (1a)
in another court, the motion shall be resolved by
the latter court. (n)
KINDS OF PROVISIONAL REMEDIES:
1. Attachment (Rule 57);
REMEDIES AGAINST SEARCH WARRANT 2. Injunction (Rule 58);
3. Receivership (Rule 59);
1. If not yet enforced--- Motion to Quash the 4. Repliven (Rule 60);
warrant; 5. Support pendente lite (Rule 61).
2. If already served--- Motion to Suppress
Evidence; if denied;
3. Object to it during the formal offer of the Section 2. Attachment. — When the civil action is
evidence during trial. properly instituted in the criminal action as
provided in Rule 111, the offended party may have
the property of the accused attached as security
Bar Exam Question 2012 for the satisfaction of any judgment that may be
recovered from the accused in the following
79. When a Motion to Quash search warrant
cases:
is denied, the best remedy is:
a. appeal the denial order.
(a) When the accused is about to abscond
b. file a motion to suppress evidence. from the Philippines;
c. file an injunction suit.
(b) When the criminal action is based on a
d. file a certiorari petition. claim for money or property embezzled or
SUGGESTED ANSWER: (b), When a motion fraudulently misapplied or converted to
to quash search warrant is denied, the the use of the accused who is a public
best remedy is to file a motion to suppress officer, officer of a corporation, attorney,
evidence since they are alternative and factor, broker, agent, or clerk, in the
not cumulative remedies. (Regalado, course of his employment as such, or by
Remedial law Compendium, 2004 Edition, any other person in a fiduciary capacity, or
Tenth Edition, page 662). ALTERNATIVE for a willful violation of duty;
ANSWER: (d), In Santos vs. Pryce gases
Inc. G.R. No. 165122, November 23, 2007, (c) When the accused has concealed,
the Supreme Court held that the special removed, or disposed of his property, or is
civil action for certiorari is the proper about to do so; and
recourse in assailing the quashal of the
search warrant. The Trial court‟s (d)When the accused resides outside the
unwarranted reversal of its earlier finding Philippines. (2a)
of probable cause constituted grave abuse
of discretion. Hence, the Supreme Court

________________________________________________________________________________________________

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

________________________________________________________________________________________________
Legislative facts and adjudicative facts.

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

AS AMENDED PER RESOLUTION the factum probans and the factum probandum.
FACTUM PROBANDUM
ADOPTED ON MARCH 14, 1989
It is the ultimate fact sought to be established. It
refers to the proposition:
PART IV a) The elements of the crime;
b) The elements of the cause of action.
RULES OF EVIDENCE
It may be ascertained in the:
1. Pleadings submitted by the parties;
2. Pre-trial order;
3. Issues tried with their express or implied
RULE 128 consent (sec. 5, Rule 10).
General Provisions NOTE: Generally, if a fact is admitted, there is no

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

________________________________________________________________________________________________
Proposition to be Material evidencing the 3. Corroborative Evidence--- evidence

established proposition which is of different kind and character as
Conceived of as Conceived of for that already given and tends to prove the
hypothetical; that practical purposes as same proposition.
which one party existent, and is offered 4. Cumulative Evidence--- evidence which
affirms and the other as such for the is of the same kind and character as that
denies consideration of the already given and tends to prove the
court same proposition.
C. Depending upon its weight and

NOTE: While it is true that the confessions of the acceptability:
appellant were made without the benefit of
counsel, they are still admissible in evidence 1. Primary or Best Evidence--- evidence
because the appellant failed to make a timely which affords the greatest certainty of the
objections before trial(P. vs. Samus, GR NO. fact in question.
135957-58, SEPT. 27, 2002). Rules of Exclusion
are not SELF-EXECUTORY. 2. Secondary or Substitutionary
Evidence--- evidence which is inferior to
CLASSIFICATION OF EVIDENCE primary evidence and admissible only in
the absence of the latter.
A. Depending on its ability to establish the fact
in dispute, evidence may be: D. Depending on its nature:
1. Direct Evidence--- evidence which 1. Object Evidence--- evidence addressed

proves the fact in dispute without the aid to the senses of the court and is capable
of inference or presumption. of being exhibited to be examined or
viewed by the court. Also known as
2. Circumstantial Evidence--- proof of fact autoptic preference or real or physical
or facts from which , taken either singly or evidence.
collectively, the existence of particular
fact in dispute may be inferred as NOTE: Physical evidence speaks more
necessary or probable consequence. eloquently than a hundred witnesses (P.
vs. Pabillo, GR NO. 122103, Nov. 4,
Note: Circumstantial evidence is evidence of 2003).
relevant facts.
2. Documentary Evidence--- supplied by
Direct evidence and circumstantial evidence are at written instruments or derived from
par in weight of evidence. conventional symbols ad letters by which
ideas are represented on material
Note: According to Atty. Ucat, circumstantial substances.
evidence is sometimes the best evidence because
it cannot lie, it cannot be rehearsed or be a 3. Testimonial Evidence--- is a verbal or
product of an afterthought. oral evidence which consists of the
narration or deposition by one who has
B. Depending on the degree of its value in observed or has personal knowledge of
establishing a disputed fact: that to which he is testifying.
1. Prima Facie Evidence--- evidence which 4. Positive Evidence--- where the witness
suffices for the proof of a particular fact affirms that a fact did or did not occur. It is
until contradicted by other evidence. entitled greater weight since the witness
represents of his personal knowledge the
Note: it is by itself sufficient to establish presence or absence of a fact.
the factum probandum if no evidence to
the contrary appears. 5. Negative Evidence--- where the witness
states that he did not see or know of the
2. Conclusive Evidence--- evidence which occurrence of a fact and there is total
is incontrovertible or one which the law disclaimer of personal knowledge.
does not allow to be contradicted. It is
insurmountable evidence. E. Depending on its quality:

________________________________________________________________________________________________
Section 2. Scope. — The rules of evidence shall

1. Relevant Evidence--- if it has a relation to be the same in all courts and in all trials and
the fact in issue as to induce a belief in its hearings, except as otherwise provided by law or
existence or non-existence. these rules. (2a)
Note: A simple test of relevancy is the INSTANCES WHERE THE RULES OF

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

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

________________________________________________________________________________________________
whether it is directed toward a fact within used in evidence in any court until the requisite
the range of allowable controversy. stamp or stamps shall have been affixed thereto
and cancelled.
b. Probativeness--- the tendency of the
evidence to establish the proposition that No notary public or other officer authorized
it is offered to prove. to administer oaths shall add his jurat or
Degree of Probativeness—To be relevant,
acknowledgment to any document subject to
it need not be conclusive. The evidence
must merely help a little. documentary stamp tax unless the proper
documentary stamps are affixed thereto and
COMPETENT--- if not excluded by law or the cancelled.
Rules. Competency is determined by the
Failure to stamp a document required by law to be
constitution and the laws.
stamped shall render the document inadmissible
in any court until the requisite stamp or stamps
The general rule is evidence having rational
shall have been affixed thereto and cancelled
probative value are admissible, EXCEPT some
(§201 NIRC). This is an absolute inadmissibility.
specific rule (law, const.) forbids their admission.
General Banking Act of 2000,
Evidence even though relevant should be
RA 8791, §55.1 (b)
excluded if its probative value is substantially
outweighed by the risk that its admission will Sec. 55. Prohibited Transactions. -
cause:
55.1. No director, officer, employee, or agent
1. Undue/unfair prejudice; of any bank shall –
2. confusion of the issues;
3. undue delay or waste of time; (b) Without order of a court of competent
4. mislead the trier of fact; and jurisdiction, disclose to any unauthorized person
5. needless presentation of cumulative any information relative to the funds or
evidence. properties in the custody of the bank belonging to
private individuals, corporations, or any other
RULES OF EXCLUSIONARY
EXCLUSION RULES
entity: Provided, That with respect to bank
Governed by the rules Commonly used for deposits, the provisions of existing laws shall
on evidence evidence excluded by prevail;
the constitution Elements of the exclusion:
SCOPE OF EXCLUSIONARY RULES (rights director, officer, employee, or agent of any bank
protected) disclosure to unauthorized person
1. right against unreasonable search and information relative to the funds or properties in
seizure; the custody of the bank belonging to private
2. right to privacy and inviolability of individuals, corporations, or any other entity
communication; without a court order
3. right of a person under investigation of an
offense; de Leon: Note that this provision covers only
4. right against self-incrimination. property in the custody of the bank other than
bank deposits. For bank deposits, RA 1405
Statutory rules of exclusion governs. Note also that the provision does not
state the nature of the inadmissibility. I submit that
NIRC, §201, as amended by RA it is a rule of absolute inadmissibility.
8424
Sec. 201. Effect of Failure to Stamp Taxable RA 1405: Law on Secrecy of
Document. — An instrument, document or paper Bank Deposits
which is required by law to be stamped and which Sec. 2. All deposits of whatever nature with
has been signed, issued, accepted or transferred banks or banking institutions in the Philippines
without being duly stamped, shall not be including investments in bonds issued by the
recorded, nor shall it or any copy thereof or any Government of the Philippines, its political
record of transfer of the same be admitted or subdivisions and its instrumentalities, are hereby
________________________________________________________________________________________________
considered as of an absolutely confidential nature replay the same for any other person or persons;
and may not be examined, inquired or looked into or to communicate the contents thereof, either
by any person, government official, bureau or verbally or in writing, or to furnish transcriptions
office, except upon written permission of the thereof, whether complete or partial, to any
depositor, or in cases of impeachment, or upon other person: Provided, That the use of such
order of a competent court in cases of bribery or record or any copies thereof as evidence in any
dereliction of duty of public officials, or in cases civil, criminal investigation or trial of offenses
where the money deposited or invested is the mentioned in section 3 hereof, shall not be
subject matter of the litigation. covered by this prohibition.
GR: All deposits of whatever nature with banks or Unlawful acts:
banking institutions in the Philippines including
any person, not being authorized by all the parties
investments in bonds issued by the Government
to any private communication or spoken word,
of the Philippines, its political subdivisions and its
to tap any wire or cable, or by using any other
instrumentalities, are hereby considered as of an
device or arrangement, to secretly overhear,
absolutely confidential nature and may not be
intercept, or record such communication or
examined, inquired or looked into by any person,
spoken word by using a device commonly
government official, bureau or office.
known as a dictaphone or dictagraph or
detectaphone or walkie-talkie or tape
Exceptions:
recorder, or however otherwise described:
written permission of the depositor
any person to knowingly possess any tape record,
impeachment, or wire record, disc record, or any other such
record, or copies thereof, of any
order of a competent court in cases of
communication or spoken word secured in the
bribery or manner prohibited by this law; or
dereliction of duty of public officials, or any person to replay the same for any other
person or persons
where the money deposited or invested is the
subject matter of the litigation. any person to communicate the contents thereof,
either verbally or in writing, or
de Leon: I submit that this is a rule of absolute
inadmissibility. any person to furnish transcriptions thereof,
whether complete or partial, to any other
person:
RA 4200: Wire-tapping
The use of such record or any copies thereof as
Sec. 1. It shall be unlawful for any evidence in any civil, criminal investigation or trial
person, not being authorized by all the parties to of offenses mentioned in section 3 hereof, shall
not be covered by this prohibition.
any private communication or spoken word, to
tap any wire or cable, or by using any other Sec. 2. Any person who willfully or
device or arrangement, to secretly overhear, knowingly does or who shall aid, permit, or cause
intercept, or record such communication or to be done any of the acts declared to be
spoken word by using a device commonly known unlawful in the preceding section or who violates
as a dictaphone or dictagraph or detectaphone or the provisions of the following section or of any
walkie-talkie or tape recorder, or however order issued thereunder, or aids, permits, or
otherwise described: causes such violation shall, upon conviction
It shall also be unlawful for any person, be he thereof, be punished xxx.
a participant or not in the act or acts penalized in Sec. 3. Nothing contained in this Act,
the next preceding sentence, to knowingly however, shall render it unlawful or punishable
possess any tape record, wire record, disc record, for any peace officer, who is authorized by a
or any other such record, or copies thereof, of written order of the Court, to execute any of the
any communication or spoken word secured acts declared to be unlawful in the two preceding
either before or after the effective date of this sections in cases involving the crimes of treason,
Act in the manner prohibited by this law; or to espionage, provoking war and disloyalty in case of

________________________________________________________________________________________________
war, piracy, mutiny in the high seas, rebellion,

conspiracy and proposal to commit rebellion, Information obtained in violation of the anti-
wiretapping act is absolutely inadmissible.
inciting to rebellion, sedition, conspiracy to
commit sedition, inciting to sedition, kidnapping Ramirez v. CA, 248 SCRA 590 (1995) Even a
as defined by the Revised Penal Code, and person privy to a communication who records his
violations of Commonwealth Act No. 616, private conversation with another without the
punishing espionage and other offenses against knowledge of the latter violates the anti-
national security: Provided, That such written wiretapping act. The recording is inadmissible in
evidence.
order shall only be issued or granted upon written
application and the examination under oath or Note: An extension telephone line cannot be
affirmation of the applicant and the witnesses he placed in the same category as a dictapone,
may produce and a showing: (1) that there are dictagraph or other devices enumerated in sec. 1
reasonable grounds to believe that any of the of RA 4200 as the use thereof cannot be
crimes enumerated hereinabove has been considered as tapping the wire or cable of a
telephone line (Gaanan vs. CA, 145 SCRA 112).
committed or is being committed or is about to
be committed: Provided, however, That in cases
involving the offenses of rebellion, conspiracy and DOCTRINE OF THE “FRUIT OF THE
proposal to commit rebellion, inciting to POISONOUS TREE”
rebellion, sedition, conspiracy to commit sedition, The doctrine posits that all evidence (the fruit)
and inciting to sedition, such authority shall be derived from an illegal search (the poisonous tree)
must be suppressed.
granted only upon prior proof that a rebellion or
acts of sedition, as the case may be, have actually KINDS OF ADMISSIBILITY
been or are being committed; (2) that there are
reasonable grounds to believe that evidence will 1. MULTIPLE--- Evidence that is plainly
be obtained essential to the conviction of any relevant and competent for two or more
person for, or to the solution of, or to the purposes will be received if it satisfies all
the requirements prescribed by law in
prevention of, any of such crimes; and (3) that
order that it may be admissible for the
there are no other means readily available for purpose for which it is presented, even if it
obtaining such evidence. does not satisfy the other requisites for its
xxx admissibility for other purposes.
Conditions for valid wiretapping: Note: for instance, evidence that the
any peace officer general reputation of the accused for
truth, honesty or integrity is bad is
authorized by a written order of the Court inadmissible to prove that he committed
the crime charged but it may be
in cases involving the crimes of treason,
admissible to impeach his credibility as a
espionage, provoking war and disloyalty in
witness.
case of war, piracy, mutiny in the high seas,
rebellion, conspiracy and proposal to commit
2. CONDITIONAL--- Evidence which appear
rebellion, inciting to rebellion, sedition,
to be immaterial is admitted by the court
conspiracy to commit sedition, inciting to
subject to the condition that its
sedition, kidnapping, espionage and other
connection with another or other facts
offenses against national security:
subsequently to be proved will be
Sec. 4. Any communication or spoken word, established.
or the existence, contents, substance, purport,
3. CURATIVE--- Evidence otherwise
effect, or meaning of the same or any part
improper is admitted to contradict
thereof, or any information therein contained improper evidence presented or
obtained or secured by any person in violation of introduced by the other party, to cure,
the preceding sections of this Act shall not be contradict or neutralize such improper
admissible in evidence in any judicial, quasi- evidence (fighting fire with fire).
judicial, legislative or administrative hearing or
investigation.
________________________________________________________________________________________________
Offer of Evidence; Fruit of a Poisonous objection with reasons. (3%) SUGGESTED

Tree (2010) ANSWER:
No. VIII. Dominique was accused of The objection to the admissibility of the
committing a violation of the human Security documents which the arresting officer
Act. He was detained incommunicado, asked Edmond to sign without the benefit
deprived of sleep, and subjected to water of counsel, is well-taken. Said documents
torture. He later allegedly confessed his guilt having been signed by the accused while
via an affidavit. After trial, he was acquitted under custodial investigation, imply an
on the ground that his confession was “admission” without the benefit of
obtained through torture, hence, counsel, that the shabu came from him
inadmissible as evidence. In a subsequent and that the P3,000,00 was received by
criminal case for torture against those who him pursuant to the illegal selling of the
deprived him of sleep and subjected him to drugs. Thus, it was obtained by the
water torture. Dominique was asked to testify arresting officer in clear violation of Sec.
and to, among other things, identify his 12 (3), Art. III of the 1987 Constitution,
above said affidavit of confession. As he was particularly the right to be assisted by
about to identify the affidavit, the defense counsel during custodial investigation.
counsel objected on the ground that the Moreover, the objection to the
affidavit is a fruit of a poisonous tree. Can admissibility of the evidence was timely
the objection be sustained? Explain. (3%) made, i.e., when the same is formally
SUGGESTED ANSWER: No, the objection offered.
may not be sustained on the ground
stated, because the affiant was only to
identify the affidavit which is not yet Admissibility (1998)
being offered in evidence. The doctrine of The barangay captain reported to the police that X was
the poisonous tree can only be invoked by illegally keeping in his house in the barangay an
Domingo as his defense in the crime of Armalite M16 rifle. On the strength of that
Violation of Human Security Act filed information, the police conducted a search of the
against him but not by the accused house of X and indeed found said rifle. The police
torture case filed by him. raiders seized the rifle and brought X to the police
In the instant case, the presentation of station. During the investigation, he voluntarily signed
the affidavit cannot be objected to by the a Sworn Statement that he was possessing said rifle
defense counsel on the ground that is a without license or authority to possess, and a Waiver
fruit of the poisonous tree because the of Right to Counsel.
same is used in Domingo‟s favor. During the trial of X for illegal possession of firearm,
the prosecution submitted in evidence the rifle. Sworn
Offer of Evidence; Fruit of a Poisonous Statement and Waiver of Right to Counsel, individually
Tree (2009) No.VI. Arrested in a buy-bust rule on the admissibility in evidence of the:
operation, Edmond was brought to the police 1. Rifle; [2%]
station where he was informed of his 2. Sworn Statement; and [2%1
constitutional rights. During the 3. Waiver of Right to Counsel of X. [1%]
investigation, Edmond refused to give any SUGGESTED ANSWER:
statement. However, the arresting officer 1. The rifle is not admissible in evidence because it was
asked Edmond to acknowledge in writing that seized without a proper search warrant. A warrantless
six (6) sachets of “shabu” were confiscated search is not justified. There was time to secure a
from him. Edmond consented and also search warrant. (People us. Encinada G.R. No. 116720,
signed a receipt for the amount of P3,000, October 2. 1997 and other cases)
allegedly representing the “purchase price of 2. The sworn statement is not admissible in evidence
the shabu.” At the trial, the arresting officer because it was taken without informing him of his
testified and identified the documents custodial rights and without the assistance of counsel
executed and signed by Edmond. Edmond’s which should be independent and competent and
lawyer did not object to the testimony. After preferably of the choice of the accused. (People us.
the presentation of the testimonial evidence, Januario, 267 SCRA 608.)
the prosecutor made a formal offer of 3. The waiver of his right to counsel is not admissible
evidence which included the documents because it was made without the assistance of counsel
signed by Edmond. Edmond’s lawyer object of his choice. (People us. Gomez, 270 SCRA 433.)
to the admissibility of the document for being
the fruit of the poisoned tree. Resolve the

________________________________________________________________________________________________
Admissibility (2002) No. The sworn written statements of Max and Brix
Acting on a tip by an informant, police officers may not be admitted in evidence, because they were
stopped a car being driven by D and ordered him to not assisted by counsel. Even if the police captain
open the trunk. The officers found a bag containing before whom they signed the statements was a lawyer,
several kilos of cocaine. They seized the car and the he was not functioning as a lawyer, nor can he be
cocaine as evidence and placed D under arrest. considered as an independent counsel. Waiver of the
Without advising him of his right to remain silent and right to a lawyer must be done in writing and in the
to have the assistance of an attorney, they questioned presence of independent counsel. (People v. Mahinay, 302
him regarding the cocaine. In reply, D said, “I don’t SCRA 455 11999]; People v. Espiritu, 302 SCRA 533 [1999]).
know anything about it. It isn’t even my car.” D was
charged with illegal possession of cocaine, a prohibited
drug. Upon motion of D, the court suppressed the use Section 4. Relevancy; collateral matters. —
of cocaine as evidence and dismissed the charges Evidence must have such a relation to the fact in
against him. D commenced proceedings against the issue as to induce belief in its existence or non-
police for the recovery of his car. In his direct existence. Evidence on collateral matters shall not
examination, D testified that he owned the car but had be allowed, except when it tends in any
registered it in the name of a friend for convenience. reasonable degree to establish the probability or
On cross-examination, the attorney representing the improbability of the fact in issue. (4a)
police asked, “After your arrest, did you not tell the
arresting officers that it wasn’t your car?” If you were Collateral matter
D’s attorney, would you object to the question? Why? It refers to facts other than the fact in issue.
(5%)
SUGGESTED ANSWER: Collateral facts – matters other than facts in
Yes, because his admission made when he was issue and which are offered as a basis merely for
questioned after he was placed under arrest was in inference as to the existence or non-existence of
violation of his constitutional right to be informed of the facts in issue
his right to remain silent and to have competent and
independent counsel of his own choice. Hence, it is
inadmissible in evidence. [Constitution, Art. III, sec. 12; R.A. RULE 129
7438 (1992), sec, 2; People v. Mahinay, 302 SCRA 455].
ALTERNATIVE ANSWER:
Yes, because the question did not lay the predicate to What Need Not Be Proved
justify the cross-examination question.
NOTE: The following facts need not be proved:
Admissibility (2004) 1. Those which the court may properly take
Sgt. GR of WPD arrested two NPA suspects, Max and judicial notice of (Rule 129);
Brix, both aged 22, in the act of robbing a grocery in 2. Those which are judicially admitted;
Ermita. As he handcuffed them he noted a pistol 3. Those which are conclusively presumed;
tucked in Max's waist and a dagger hidden under Brix's 4. Those disputably presumed but
shirt, which he promptly confiscated. At the police uncontradicted.
investigation room, Max and Brix orally waived their
right to counsel and to remain silent. Then under oath, JUDICIAL NOTICE
they freely answered questions asked by the police Cognizance of certain facts which judges may
desk officer. Thereafter they signed their sworn properly take and act upon without proof. They are
statements before the police captain, a lawyer. Max based on consideration of expediency and
admitted his part in the robbery, his possession of a convenience for it displaces the necessity for
pistol and his ownership of the packet of shabu found evidence on a settled matter. It may be mandatory
in his pocket. or discretionary.
Brix admitted his role in the robbery and his
A judge is not justified in refusing to take judicial
possession of a dagger. But they denied being NPA hit
notice of a fact which is not within his knowledge
men. In due course, proper charges were filed by the
or memory if the fact in question is one which is he
City Prosecutor against both arrestees before the MM
proper subject of judicial cognizance.
RTC.
May the written statements signed and sworn to by Object of judicial notice:
Max and Brix be admitted by the trial court as To save time, labor and expense in securing and
evidence for the prosecution? Reason. (5%) introducing evidence on matters which is the
SUGGESTED ANSWER:
proper subject of judicial notice

________________________________________________________________________________________________
Judicial notice cannot fill-in the missing element succession personally known to the
of a crime. presiding judge.
Section 1. Judicial notice, when mandatory. —

A court shall take judicial notice, without the Bar Exam Question 2012
introduction of evidence, of: 80. A court may take judicial notice of:
a. the Twitter account of President Aquino.
1. the existence and territorial extent of b. a Committee Report issued by the
states, their political history, forms of Congressional Committee on Labor
government and symbols of nationality, Relations.
2. the law of nations, c. the effects of taking aspirin everyday.
3. the admiralty and maritime courts of the d. the arbitral award issued by International
world and their seals, Court of Arbitration.
4. the political constitution and history of the SUGGESTED ANSWER: (b), A court shall
Philippines, take judicial notice, without the
5. the official acts of legislative, executive introduction of evidence, of the existence
and judicial departments of the and territorial extent of states, their
Philippines, political history, forms of government and
6. the laws of nature, symbols of nationality, the law of nations,
7. the measure of time, and the admiralty and maritime courts of the
8. the geographical divisions. (1a) world and their seals, the political
constitution and history of the
NOTES: Philippines, the official acts of the
legislative, executive, and judicial
THE LAW OF NATIONS departments of the Philippines, the laws
The law of nations which is the subject of judicial of nature, the measure of time, and the
notice is the law which regulates the relations of geographical divisions. (Rule 129, Sec. 1,
the dominant powers of the earth. It is the Rules of Court).
compilation of rules which by common consent of
mankind have acquiesced in as law.
EXCEPTIONS TO THE RULE:
FOREIGN MUNICIPAL LAWS 1. Foreign law accepted by the government;
GR: They must be proved as any other fact. They 2. Common law.
do not proved themselves nor can courts take
judicial notice of them. They must be alleged and DOCTRINE OF PROCESSUAL PRESUMPTION
proved. It is that doctrine which lays down the presumption
that the foreign law is the same as the law of the
They may be evidenced by an official publication forum. It arises if the foreign law, though properly
thereof or by a copy attested by the officer having applicable, is either not alleged, or if alleged, is not
legal custody of the record. Or his deputy, and proved before a competent court.
accompanied with a certificate that such officer
has the custody thereof. NOTE: When the parties in a case agree on what
the foreign law provides, these are admissions of
The certificate may be made by a secretary of an fact which other parties and the court are made to
embassy or legation, consul general, consul, vice- rely upon. Hence, they are in estoppel to
consul and consular agent or by any officer in the subsequently take a contrary position (Phil.
foreign service of the Philippines stationed in a Commercial and Industrial Bank vs. Escolin, et
foreign country in which the record is kept, al.).
authenticated by the seal of the office.
The mere personal knowledge of the judge is not
Bar Exam Question 2011 the judicial knowledge of the court. Judicial
(81) Which of the following matters is NOT A cognizance is taken only of those matters which
PROPER SUBJECT of judicial notice? are “commonly known”. A fact may be of judicial
(A) Persons have killed even without motive. notice and not of the judge’s personal knowledge
(B) Municipal ordinances in the and vice versa. The rule refers to facts which
municipalities where the MCTC sits. (C) ought to be known to judges because of their
Teleconferencing is now a way of conducting judicial functions
business transactions. (D) British law on

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Section 2. Judicial notice, when discretionary. 4. In cases seeking to determine what is

— A court may take judicial notice of matters reasonable exercise of discretion or
which: whether or not the previous ruling is
applicable in a case under consideration.
1. are of public knowledge,
2. or are capable to unquestionable NOTE: These exceptions are applicable only
demonstration, when the case referred to or the original or part
3. or ought to be known to judges because thereof are actually withdrawn from the archives
of their judicial functions. (1a) and admitted as part of the record of the case then
pending.
Judicial Notice of Facts
This is measured by general knowledge of the
same facts. A fact generally recognized or known Judicial Notice of Municipal Ordinances
when its existence or operation is accepted by the
public without qualification or contention. Inferior courts should take judicial notice of
municipal or city ordinances in force within their
TEST OF NOTORIETY: Whether the fact involve territorial jurisdiction.
is notoriously or publicly known as to make it
proper to accept its existence without proof. The RTC should take judicial notice of municipal
ordinances only when:
Tabuena v. CA, 196 SCRA 650 (1991) As a
general rule courts are not authorized to take 1. They are expressly authorized by a
judicial notice, in the adjudication of cases statute;
pending before them, of the contents of the 2. On appeals of decisions of inferior courts
records of other cases, even when such cases when such court had taken notice of a
have been tried or are pending in the same court, municipal ordinance.
and notwithstanding the fact that both cases may 3. It may also take discretionary judicial
have been heard or are actually pending before notice under sec. 2.
the same judge.
RULES BEFORE THE APPELLATE COURTS
However, exceptions are:
1. The appellate court is without authority to
1. when in the absence of objection, and as take notice or to take into consideration
a matter of convenience to all parties, a the judicial records of a case previously
court may properly treat all or any part of decided by the trial court upon which said
the original record of a case filed in its court did not have the opportunity to pass;
archives as read into the record of a case 2. An appellate court cannot consult the
pending before it, when, with the records in another case to ascertain a fact
knowledge of the opposing party, not shown by the records of the case
reference is made to it for that purpose, before it, but could go to its other
by name and number or in some other decisions for the law that is determinative
manner by which it is sufficiently of or applicable to the case under review;
designated; or when the original record of 3. The SC can also take judicial notice of its
the former case or any part of it, is records in a previous case in connection
actually withdrawn from the archives by with the conduct of litigant or witness in a
the court's direction, at the request or with similar matter;
the consent of the parties, and admitted 4. Lower courts, from the CA down to the
as a part of the record of the case then lowest level must take judicial notice of
pending; decisions of the SC, as they are duty
bound to know the rulings of the highest
2. When the present action is closely tribunal and to apply them in the
interrelated to another case pending adjudication of cases, they being part of
between the same parties; the legal system.
3. Where the interest of public in

ascertaining the truth is of paramount
importance; Judicial Notice; Evidence (2005)
Explain briefly whether the RTC may, motu proprio, take
judicial notice of: (5%)
________________________________________________________________________________________________
1. The street name of methamphetamine hydro- was pleaded as part of the defense of defendant but no
chloride is shabu. evidence was presented to prove the existence of said
SUGGESTED ANSWER: law, what is the presumption to be taken by the court
The RTC may motu proprio take judicial notice of the as to the wordings of said law"?
street name of methamphetamine hydrochloride is SUGGESTED ANSWER:
shabu, considering the chemical composition of shabu. (a) The three instances when a Philippine court can
(People v. Macasling, GM, No. 90342, May 27, 1993) take judicial notice of a foreign law are: (1) when the
2. Ordinances approved by municipalities under Philippine courts are evidently familiar with the foreign
its territorial jurisdiction; law (Moran. Vol. 5, p. 34, 1980 edition); (2) when the foreign
SUGGESTED ANSWER: law refers to the law of nations (Sec. 1 of Rule 129) and (3)
In the absence of statutory authority, the RTC may not when it refers to a published treatise, periodical or
take judicial notice of ordinances approved by
pamphlet on the subject of law if the court takes
municipalities under their territorial jurisdiction, except
judicial notice of the fact that the writer thereof is
on appeal from the municipal trial courts, which took
judicial notice of the ordinance in question. (U.S. v. recognized in his profession or calling as expert on the
Blanco, G.R, No. 12435, November 9,1917; U.S. v. subject (Sec. 46. Rule 130).
Hernandez, G.R. No. 9699, August 26, 1915) (b) A written foreign law may be evidenced by an official
3. Foreign laws; publication thereof or by a copy attested by the officer
SUGGESTED ANSWER: having the legal custody of the record, or by his deputy, and
The RTC may not generally take judicial notice of accompanied. If the record is not kept in the Philippines,
foreign laws (In re Estate of Johnson, G.R. No. 12767, with a certificate that such officer has the custody, if the
November 16, 1918; Fluemer v. Hix, G.R. No. 32636, office in which the record is kept is in a foreign country, the
certificate may be made by a secretary of the embassy or
March 17, 1930), which must be proved like any other
legation, consul general, consul, vice-consul, or consular
matter of fact (Sy Joe Lieng v. Sy Quia, G.R. No. 4718, agent or by any officer in the foreign service of the
March 19, 1910) except in a few instances, the court in Philippines stationed in the foreign country in which the
the exercise of its sound judicial discretion, may take record is kept, and authenticated by the seal of his office
notice of foreign laws when Philippine courts are (Sec. 24, Rule 132, Zalamea v. CA, 228 SCRA 23).
evidently familiar with them, such as the Spanish Civil (c) The presumption is that the wordings of the
Code, which had taken effect in the Philippines, and foreign law are the same as the local law. (Northwest
other allied legislation. (Pardo v. Republic, G.R. No. Orient Airlines v. Court of Appeals, 241 SCRA 192; Moran,
L2248 January 23, 1950; Delgado v. Republic, G.R. No. Vol. 6. page 34, 1980 edition; Lim v. Collector of Customs,
L2546, January .28, 1950) 36 Phil. 472). This is known as the PROCESSUAL
4. Rules and Regulations issued by quasijudicial PRESUMPTION.
bodies implementing statutes;
SUGGESTED ANSWER:
The RTC may take judicial notice of Rules and
Section 3. Judicial notice, when hearing
Regulations issued by quasi-judicial bodies necessary. — During the trial, the court, on its
implementing statutes, because they are capable of own initiative, or on request of a party, may
unquestionable demonstration (Chattamal v. Collector of announce its intention to take judicial notice of any
Customs, G.R. No. 16347, November 3,1920), unless the matter and allow the parties to be heard thereon.
law itself considers such rules as an integral part of the
statute, in which case judicial notice becomes
After the trial, and before judgment or on appeal,
mandatory.
the proper court, on its own initiative or on request
5. Rape may be committed even in public places.
SUGGESTED ANSWER:
of a party, may take judicial notice of any matter
The RTC may take judicial notice of the fact that rape and allow the parties to be heard thereon if such
may be committed even in public places. The "public matter is decisive of a material issue in the case.
setting" of the rape is not an indication of consent. (n)
(People v. Tongson, G.R. No. 91261, February 18, 1991)
The Supreme Court has taken judicial notice of the Section 4. udicial admissions. — An admission,
fact that a man overcome by perversity and beastly verbal or written, made by the party in the course
passion chooses neither the time, place, occasion nor of the proceedings in the same case, does not
victim. (People v, Barcelona, G.R. No. 82589, October 31, require proof. The admission may be contradicted
1990) only by showing that it was made through palpable
mistake or that no such admission was made. (2a)
Judicial Notice; Evidence; Foreign Law (1997) NOTE: Lack of jurisdiction over the subject matter
a) Give three instances when a Philippine court can cannot be admitted because jurisdiction is
take judicial notice of a foreign law. b) How do you conferred by law and cannot be subject of the
prove a written foreign law? c) Suppose a foreign law stipulation or admission of the parties.

________________________________________________________________________________________________
Judicial admissions are always conclusive upon

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

________________________________________________________________________________________________
Rules of Admissibility 2. To insure that there has been no

significant changes in the object’s
A. OBJECT (REAL) EVIDENCE condition.
OCULAR INSPECTION OR “VIEW”

Section 1. Object as evidence. — Objects as
The court can go to the place where the object is
evidence are those addressed to the senses of the
located, when the object evidence cannot be
court. When an object is relevant to the fact in
brought to the court [see also sec. 21 (4) to (6),
issue, it may be exhibited to, examined or viewed
RA 9165]. Unless bulky, the ocular inspection can
by the court. (1a)
be conducted in the court where the evidence is
brought.
This is the evidence of the highest order.
This is also known as a real evidence, VIEW PART OF THE TRIAL
demonstrative evidence, physical The inspection or view outside the courtroom
evidence, and autoptic preference. should be made in the presence of the parties or
at least with the previous notice to them in order
REAL EVIDENCE DEMONSTRATIVE that they may see the object to be viewed. Such
EVIDENCE inspection is part of the trial, inasmuch as
Tangible object that Tangible evidence that evidence is thereby being received. The parties
played some actual role merely illustrates a are entitled to be present at any stage of the trial,
in the matter that gave matter of importance in and consequently they are entitled to be at least
rise to the litigation the litigation notified of the time and place set for the view.
REAL EVIDENCE may be: Read sec. 21 of RA 9165, on the chain of

custody of the seized prohibited drug. Refer to
1. Direct Evidence--- it can prove directly the Criminal Law Reviewer. (see. Table)
the fact for which it is offered.
Chain of Custody (2012) No.II.A. (a) Discuss
E.g. In a physical injury case, the the "chain of custody" principle with respect
direct real evidence of disfiguring to evidence seized under R.A. 9165 or the
injury would be the exhibition of Comprehensive Dangerous Drugs Act of
the injury itself to the court. 2002. (5%) SUGGESTED ANSWER:
In prosecutions involving narcotics and
2. Circumstantial Evidence--- facts about other illegal substances, the substance
the object are proved as the basis for an itself constitutes part of the corpus delicti
inference that other facts are true. of the offense and the fact of its existence
is vital to sustain a judgment of
E.g. In a paternity case, a baby conviction beyond reasonable doubt. The
may be shown and his
chain of custody requirement is essential
appearance compared with that of
to ensure that doubts regarding the
the alleged father, if they look
identity of the evidence are removed
alike, the court may draw an
through the monitoring and tracking of
inference that the parental
the movements of the seized drugs from
relationship exists.
the accused, to the police, to the forensic
REQUISITES OF OBJECT EVIDENCE: chemist, and finally to the court. (People
vs. Sitco, G.R. No. 178202, May 14, 2010,
1. The object must be relevant to the fact in Velasco, Jr. J.). Ergo, the existence of the
issue; dangerous drug is a condition sine qua
2. The object must be authenticated before it non for conviction. (People vs. De Guzman
is admitted; Y Danzil, G.R. No. 186498, March 26,
3. The object must not be hearsay; 2010 Nachura J.). The failure to establish,
4. The object must not be privileged; through convincing proof, that the
5. It must met any additional requirement set integrity of the seized items has been
by law. adequately preserved through an
unbroken chain of custody is enough to
PURPOSE OF AUTHENTICATION engender reasonable doubt on the guilt of
1. To prevent the introduction of an object an accused (People vs. De Guzman Y
different from the one testified about; Danzil). Nonetheless, non-compliance with

________________________________________________________________________________________________
the procedure shall not render void and Bar Exam Question 2012
invalid the seizure and custody of the 52. PDEA agents conducted a search on a
drugs when: house abandoned by its owners in Quezon
(1) such non-compliance is attended by City. The search, in order to be valid, must
justifiable grounds; and (2) the integrity be made in the presence of:
and the evidentiary value of the seized a. any relative of the owner of the house.
items are properly preserved by the b. the Director of the PDEA and a member of
apprehending team. There must be proof the media.
that these two c. the Barangay Chairman and a Barangay
(2) requirements were met before such Tanod.
non-compliance may be said to fall within d. any elected Quezon City official.
the scope of then proviso. (People vs. Dela SUGGESTED ANSWER:
Cruz, G.R. No. 177222, October 29, 2008, (d), Under the “chain of custody”
570 SCRA 273). principle, the apprehending team having
initial custody and control of the drugs
ALTERNATIVE ANSWER: shall, immediately after seizure and
Crucial in proving chain of custody is the confiscation, physically inventory and
marking of the seized drugs or other photograph the same in the presence of
related items immediately after they are the accused or the person/s from whom
seized from the accused. Marking after such items were confiscated and/or seized
seizure is the starting point in the or his/her representative or counsel, a
custodial link, thus, it is vital that the representative from media and the DOJ,
seized contraband are immediately and any elected public official who shall
marked because succeeding handlers of be required to sign the copies of the
the specimens will use the markings as inventory and be given a copy thereof.
reference. Thus, non-compliance by the (Sec. 21(1), RA 9165).
apprehending/buy-bust team with Sec.21
of R.A. 9165 is not fatal as long as there is
justifiable ground therefor, and as long as Limitations against the use of real evidence
the integrity and the evidentiary value of may be classified into:
the confiscated/seized items are properly
preserved by the apprehending 1. Inherent Limitation--- When the object is
officer/team. (People vs. Mantalaba, G.R. relevant to the fact in issue, it may be exhibited to,
No. 186227, July 20, 2011). examined or viewed by the court.
Thus, it excludes:
Bar Exam Question 2011 a. Irrelevant evidence;
(32) Arvin was caught in flagrante delicto b. Illegally obtained evidence.
selling drugs for P200,000.00. The police
officers confiscated the drugs and the money 2. Non-inherent Limitations--- Relevant
and brought them to the police station where evidence may be excluded on the ground that
they prepared the inventory duly signed by although relevant and authentic, its probative
police officer Oscar Moreno. They were, value is exceeded by its prejudicial effect such as
however, unable to take pictures of the items. the following:
Will this deficiency destroy the chain of a. Indecency and impropriety;
custody rule in the drug case? (A) No, a b. Undue prejudice;
breach of the chain of custody rule in drug c. Offensive to sensibilities;
cases, if satisfactorily explained, will not d. Inconvenience and unnecessary expense.
negate conviction. (B) No, a breach of the
chain of custody rule may be offset by NOTE: But when the exhibition is necessary to the
presentation in court of the drugs. (C) Yes, ends of justice, notions of decency and delicacy of
chain of custody in drug cases must be feeling will not be allowed to prevail. Evidence
may be received in chambers.
strictly observed at all times to preserve the
integrity of the confiscated items. (D) Yes,
Admissibility; Private Document (2005)
compliance with the chain of custody rule in
May a private document be offered, and admitted in
drug cases is the only way to prove the
evidence both as documentary evidence and as object
accused’s guilt beyond reasonable doubt.
evidence? Explain.
SUGGESTED ANSWER:

________________________________________________________________________________________________
Yes, it can be considered as both documentary and Sec. 3. Definition of Terms. – For purposes of
object evidence. A private document may be offered this Rule, the following terms shall be defined as
and admitted in evidence both as documentary follows:
evidence and as object evidence. A document can also
be considered as an object for purposes of the case. a. “Biological sample” means any organic
Objects as evidence are those addressed to the senses material originating from a person’s body,
of the court. (Sec. 1, Rule 130, Rules of Court) Documentary even if found in inanimate objects, that is
evidence consists of writings or any material susceptible to DNA testing. This includes
containing letters, words, numbers, figures, symbols or blood, saliva and other body fluids,
other modes of written expressions, offered as proof tissues, hairs and bones;
of their contents. (Sec. 2, Rule 130, Rules of Court) Hence, a b. “DNA” means deoxyribonucleic acid,
private document may be presented as object evidence which is the chain of molecules found in
in order to 'establish certain physical evidence or every nucleated cell of the body. The
characteristics that are visible on the paper and totality of an individual’s DNA is unique for
writings that comprise the document. the individual, except identical twins;
c. “DNA evidence” constitutes the totality of
the DNA profiles, results and other genetic
Republic of the Philippines information directly generated from DNA
SUPREME COURT testing of biological samples;
d. “DNA profile” means genetic information
Manila
derived from DNA testing of a biological
sample obtained from a person, which
EN BANC biological sample is clearly identifiable as
originating from that person;
A.M. No. 06-11-5-SC e. “DNA testing” means verified and
(2 October 2007) credible scientific methods which include
the extraction of DNA from biological
RULE ON DNA EVIDENCE samples, the generation of DNA profiles
and the comparison of the information
RESOLUTION obtained from the DNA testing of
biological samples for the purpose of
determining, with reasonable certainty,
Acting on the recommendation of the Chairperson
whether or not the DNA obtained from two
and Members of the Subcommittee on Evidence
or more distinct biological samples
submitting for the Court’s consideration and
originates from the same person (direct
approval the proposed Rule on DNA Evidence, the
identification) or if the biological samples
Court Resolved to APPROVE the same.
originate from related persons (kinship
analysis); and
This Resolution shall take effect on October 15, f. “Probability of Parentage” means the
2007 following its publication in a newspaper of numerical estimate for the likelihood of
general circulation. parentage of a putative parent compared
with the probability of a random match of
October 2, 2007. two unrelated individuals in a given
population.
RULE ON DNA EVIDENCE
Sec. 4. Application for DNA Testing Order. –
SECTION 1. Scope. – This Rule shall apply The appropriate court may, at any time, either
whenever DNA evidence, as defined in Section 3 motu proprio or on application of any person who
hereof, is offered, used, or proposed to be offered has a legal interest in the matter in litigation, order
or used as evidence in all criminal and civil actions a DNA testing. Such order shall issue after due
as well as special proceedings. hearing and notice to the parties upon a showing
of the following:
Sec. 2. Application of other Rules on Evidence.
– In all matters not specifically covered by this a. A biological sample exists that is relevant
Rule, the Rules of Court and other pertinent to the case;
provisions of law on evidence shall apply. b. The biological sample: (i) was not
previously subjected to the type of DNA
testing now requested; or (ii) was

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previously subjected to DNA testing, but provided that (a) a biological sample exists, (b)
the results may require confirmation for such sample is relevant to the case, and (c) the
good reasons; testing would probably result in the reversal or
c. The DNA testing uses a scientifically valid modification of the judgment of conviction.
technique;
d. The DNA testing has the scientific Note: Connect with sec. 10 of this Rule.
potential to produce new information that
is relevant to the proper resolution of the Sec. 7. Assessment of probative value of DNA
case; and
evidence. – In assessing the probative value of
e. The existence of other factors, if any, the DNA evidence presented, the court shall
which the court may consider as consider the following:
potentially affecting the accuracy of
integrity of the DNA testing.
a. The chain of custody, including how the
biological samples were collected, how
This Rule shall not preclude a DNA testing, they were handled, and the possibility of
without need of a prior court order, at the behest contamination of the samples;
of any party, including law enforcement agencies, b. The DNA testing methodology, including
before a suit or proceeding is commenced.
the procedure followed in analyzing the
samples, the advantages and
Sec. 5. DNA Testing Order. – If the court finds disadvantages of the procedure, and
that the requirements in Section 4 hereof have compliance with the scientifically valid
been complied with, the court shall – standards in conducting the tests;
c. The forensic DNA laboratory, including
a. Order, where appropriate, that biological accreditation by any reputable standards-
samples be taken from any person or setting institution and the qualification of
crime scene evidence; the analyst who conducted the tests. If the
b. Impose reasonable conditions on DNA laboratory is not accredited, the relevant
testing designed to protect the integrity of experience of the laboratory in forensic
the biological sample, the testing process casework and credibility shall be properly
and the reliability of the test results, established; and
including the condition that the DNA test d. The reliability of the testing result, as
results shall be simultaneously disclosed hereinafter provided.
to parties involved in the case; and
c. If the biological sample taken is of such an The provisions of the Rules of Court concerning
amount that prevents the conduct of the appreciation of evidence shall apply
confirmatory testing by the other or the suppletorily.
adverse party and where additional
biological samples of the same kind can Admissibility; DNA Evidence (2010) No.IX.
no longer be obtained, issue an order
In a prosecution for rape, the defense relied
requiring all parties to the case or
on Deoxyribonucleic Acid (DNA) evidence
proceedings to witness the DNA testing to
showing that the semen found in the private
be conducted.
part of the victim was not identical with that
of the accused’s. As private prosecutor, how
An order granting the DNA testing shall be will you dispute the veracity and accuracy of
immediately executory and shall not be the results of the DNA evidence? (3%)
appealable. Any petition for certiorari initiated SUGGESTED ANSWER: As a private
therefrom shall not, in any way, stay the prosecutor, I shall try to discredit the
implementation thereof, unless a higher court results of the DNA test by questioning and
issues an injunctive order. The grant of DNA
possibly impugning the integrity of the
testing application shall not be construed as an
DNA profile by showing a flaw/error in
automatic admission into evidence of any
obtaining the biological sample obtained;
component of the DNA evidence that may be
the testing methodology employed; the
obtained as a result thereof.
scientific standard observed; the forensic
DNA laboratory which conducted the test;
Sec. 6. Post-conviction DNA Testing. – Post- and the qualification, training and
conviction DNA testing may be available, without experience of the forensic laboratory
need of prior court order, to the prosecution or any personnel who conducted the DNA testing.
person convicted by final and executory judgment

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Probability of Paternity is less than 99.9%,

Admissibility; DNA Evidence (2009) the results of the DNA testing shall be
No.I.[a] The Vallejo standard refers to considered as corroborative evidence. If
jurisprudential norms considered by the the value of the Probability of Paternity is
court in assessing the probative value of DNA 99.9% or higher there shall be a
evidence. SUGGESTED ANSWER: TRUE. In disputable presumption of paternity.
People vs. Vallejo, 382 SCRA 192 (2002), it
was held that in assessing the probative Sec. 10. Post-conviction DNA Testing –
value of DNA evidence, courts should Remedy if the Results Are Favorable to the
consider among other things, the Convict. – The convict or the prosecution may file
following data: how the samples were a petition for a writ of habeas corpus in the court
collected, how they were handled, the of origin if the results of the post-conviction DNA
possibility of contamination of the testing are favorable to the convict. In the case the
samples, whether the proper standards court, after due hearing finds the petition to be
and procedures were followed in meritorious, it shall reverse or modify the judgment
conducting the tests and the qualification of conviction and order the release of the convict,
of the analyst who conducted tests. unless continued detention is justified for a lawful
cause.
A similar petition may be filed either in the Court of

Sec. 8. Reliability of DNA Testing Appeals or the Supreme Court, or with any
Methodology. – In evaluating whether the DNA member of said courts, which may conduct a
testing methodology is reliable, the court shall hearing thereon or remand the petition to the court
consider the following: of origin and issue the appropriate orders.
a. The falsifiability of the principles or Bar Exam Question 2012

methods used, that is, whether the theory 86. C, a convict, was able to get favorable
or technique can be and has been tested; results of a post-conviction DNA testing
b. The subjection to peer review and showing that C could not have committed the
publication of the principles or methods; crime. To gain freedom, C may:
c. The general acceptance of the principles a. file a petition for Writ of Habeas Corpus
or methods by the relevant scientific before the court of origin.
community; b. apply for full pardon.
d. The existence and maintenance of c. file a Motion to annul judgment of
standards and controls to ensure the conviction on the ground of fraud.
correctness of data generated; d. file a Motion for new trial under Rule 121.
e. The existence of an appropriate reference SUGGESTED ANSWER: (a), The convict or
population database; and the prosecution may file a petition for a
f. The general degree of confidence writ of habeas corpus in the court of origin
attributed to mathematical calculations if the results of the post-conviction DNA
used in comparing DNA profiles and the testing are favourable to the convict. In
significance and limitation of statistical case the court, after due hearing, finds the
calculations used in comparing DNA petition to be meritorious, it shall reverse
profiles. or modify the judgment of conviction and
order the release of the convict, unless
Sec. 9. of DNA Testing Results. – In evaluating continued detention is justified for a
the results of DNA testing, the court shall consider lawful cause. A similar petition may be
the following: filed either in the Court of Appeals or the
Supreme Court, or with any member of
a. The evaluation of the weight of matching said courts, which may conduct a hearing
DNA evidence or the relevance of thereon or remand the petition to the
mismatching DNA evidence; court of origin and issue the appropriate
b. The results of the DNA testing in the light orders. (Sec.10, Rule on DNA Evidence).
of the totality of the other evidence
presented in the case; and that Sec. 11. Confidentiality. – DNA profiles and all
c. DNA results that exclude the putative results or other information obtained from DNA
parent from paternity shall be conclusive testing shall be confidential. Except upon order of
proof of non-paternity. If the value of the
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the court, a DNA profile and all results or other a. A court order to that effect has been
information obtained from DNA testing shall only secured; or
be released to any of the following, under such b. The person from whom the DNA sample
terms and conditions as may be set forth by the was obtained has consented in writing to
court: the disposal of the DNA evidence.
a. Person from whom the sample was taken; Sec. 13. Applicability to Pending Cases. Except
b. Person from whom the sample was taken; as provided in Section 6 and 10 hereof, this Rule
c. Lawyers of private complainants in a shall apply to cases pending at the time of its
criminal action; effectivity.
d. Duly authorized law enforcement
agencies; and Sec. 14. Effectivity. This Rule shall take effect on
e. Other persons as determined by the court. October 15, 2007, following publication in a
newspaper of general
Whoever discloses, utilizes or publishes in any
form any information concerning a DNA profile
without the proper court order shall be liable for
indirect contempt of the court wherein such DNA B. DOCUMENTARY EVIDENCE
evidence was offered, presented or sought to be
offered and presented.
Section 2. Documentary evidence. —
Documents as evidence consist of writing or any
Where the person from whom the biological
material containing letters, words, numbers,
sample was taken files a written verified request to figures, symbols or other modes of written
the court that allowed the DNA testing for the expression offered as proof of their contents. (n)
disclosure of the DNA profile of the person and all
results or other information obtained from the DNA
testing, the same may be disclosed to the persons NOTE: A document may constitute object
named in the written verified request. evidence depending upon the purpose for which
the document is tendered. If it is produced without
regard to the message which it contains, it is
Sec. 12. Preservation of DNA Evidence. The
treated as real, not documentary evidence. In
trial court shall preserve the DNA evidence in its such case, the best evidence rule does not apply.
totality, including all biological samples, DNA
profiles and results or other genetic information 1. Best Evidence
obtained from DNA testing. For this purpose, the
court may order the appropriate government
agency to preserve the DNA evidence as follows: Section 3. Original document must be
produced; exceptions. — When the subject of
inquiry is the contents of a document, no evidence
a. In criminal cases: shall be admissible other than the original
document itself, except in the following cases:
i. for not less than the
period of time that any (a) When the original has been lost or
person is under trial for an
destroyed, or cannot be produced in court,
offense; or without bad faith on the part of the offeror;
ii. in case the accused is
serving sentence, until
such time as the accused (b) When the original is in the custody or
has served his sentence; under the control of the party against
whom the evidence is offered, and the
latter fails to produce it after reasonable
a. In all other cases, until such time as the notice;
decision in the case where the DNA
evidence was introduced has become
final and executory. NOTE: Even in criminal cases,
there must still be a request for
the production of the document
The court may allow the physical destruction of a even if it be in the possession of
biological sample before the expiration of the the accused and if he refuses to
periods set forth above, provided that: produce it invoking his right
against self-incrimination, then

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secondary evidence may be terms of a document and requires the document’s

introduced (P. vs. Bomping, 48 production without having aim to establish its
Phil. 887). terms.
(c) When the original consists of It refers merely to the proof of what are the
numerous accounts or other documents contents of the document and not as proof of the
which cannot be examined in court truth of the facts stated therein.
without great loss of time and the fact
sought to be established from them is only It does not apply where there is no bona fide
the general result of the whole; and dispute on the contents of the documents and no
useful purpose would be served by its production.
Secondary evidence may consist
Note: Best evidence does not mean superior
of summary of the voluminous
evidence.
documents or records (Herrera).
Compañia Maritima v. Allied Free
“Laying the Basis”
Workers Union, 77 SCRA 24
The act of laying the foundation before accepting
(1977) – voluminous character of
or introducing the secondary evidence.
accounts must be established,
and it must be made available to
NOTE: In addition to the Best Evidence Rule, if
the adverse party before parole;
the document contains a material alteration, the
audit made by or testimony of
private auditor is inadmissible as offeror must account for the alteration (sec. 31,
proof of original record or books Rule 132) and if a portion of the document is
introduced by a party, the adverse party can
of accounts; auditor’s opinion not
inquire on, or introduce the remaining portions of
admissible; best evidence on cost
of equipment are sales invoices the document [Theory of Indivisibility of the
not testimony of an auditor. Evidence—sec. 17, Rule 132].
PURPOSES:
(d) When the original is a public record in
the custody of a public officer or is 1. To Prevent Fraud
recorded in a public office. (yy2a)
If a party is in possession of such
Secondary evidence may consist evidence and withholds it, and
of a certified true copy of the seeks to substitute inferior
document and official publication evidence in its place, the
thereof (Herrera). presumption naturally arises that
the better evidence is withheld for
BEST EVIDENCE RULE [aka Original Evidence fraudulent purposes which its
Rule](sec. 3) production would expose and
The specific evidentiary requirement applicable to defeat.
documentary evidence.
2. To Exclude Uncertainties In the Contents
BER Requisites: of the Document.
1) There must be a document;
2) The subject of the inquiry is the contents The best evidence rule accepts
of the document. the document itself as the best
evidence of its contents, because
No evidence shall be received which is merely it is certain; and rejects a copy
substitutionary in its nature so long as the original thereof, because of the
evidence can be had. It is mandatory that the uncertainty of its contents caused
original copy be presented in court. In other by the hazards of faulty
words, secondary evidence of its contents cannot duplication, or an oral description
be admitted until the non-production of the original thereof, because of the
has been satisfactorily accounted for. uncertainty caused by frailties of
human recollection.
The original evidence must be produced whenever
its contents are the subject of the inquiry. It In a criminal case of falsification
excludes testimony designed to establish the of a document, it is indispensable

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that the judge have before him copy of the promissory note, which they both signed
the document alleged to have A made two photo (xeroxed) copies of the promissory
been falsified in order that he may note, giving one copy to B and retaining the other
find whether or not the crime was copy. A entrusted the typewritten copy to his counsel
actually committed. for safekeeping. The copy with A's counsel was
destroyed when the law office was burned. a) In an
action to collect on the promissory note, which is
The original is in the hands of the deemed to be the "original" copy for the purpose of
defendant and he fails to produce the "Best Evidence Rule"? b) Can the photocopies in
them in the court upon demand of the hands of the parties be considered "duplicate
the prosecutor, certified copies of original copies"? c) As counsel for A, how will you
said documents may be prove the loan given to A and B?
presented by the prosecution and SUGGESTED ANSWER:
admissible in evidence, on the (a) The copy that was signed and lost is the only
principle that secondary evidence "original" copy for purposes of the Best Evidence
are admissible whenever the Rule. (Sec. 4 [b] of Rule 130).
primary evidence is not (b) No, They are not duplicate original copies because
obtainable. there are photocopies which were not signed (Mahilum
v. Court of Appeals, 17 SCRA 482 ), They constitute
People v. Tandoy, 192 SCRA 28 (1990) The best secondary evidence. (Sec. 5 of Rule 130).
evidence rule does not apply to the marked money (c) The loan given by A to B may be proved by
in a buy bust operation because the inquiry is not secondary evidence through the xeroxed copies of the
on the contents of the marked bill, but merely its promissory note. The rules provide that when the
existence. original document is lost or destroyed, or cannot be
produced in court, the offerer, upon proof of its
execution or existence and the cause of its
Section 4. Original of document. — unavailability without bad faith on his part, may prove
its contents by a copy, or by a recital of its contents in
(a) The original of the document is one the some authentic document, or by the testimony of
contents of which are the subject of witnesses in the order stated. (Sec. 5 of Rule 130).
inquiry.
(b) When a document is in two or more 2. Secondary Evidence

copies executed at or about the same
time, with identical contents, all such Section 5. When original document is
copies are equally regarded as originals. unavailable. — When the original document has
been lost or destroyed, or cannot be produced in
(c) When an entry is repeated in the court, the offeror, upon proof of its execution or
regular course of business, one being existence and the cause of its unavailability
copied from another at or near the time of without bad faith on his part, may prove its
the transaction, all the entries are likewise contents by a copy, or by a recital of its contents in
equally regarded as originals. (3a) some authentic document, or by the testimony of
witnesses in the order stated. (4a)
NOTE: A copy of the original document may not
be used without accounting for the original copies. NOTE: The order does not apply where the law
It must appear that all copies have been lost or specifically provides for the class or quantum of
destroyed or cannot be produced before secondary evidence to establish the contents of
secondary evidence can be given of by anyone. the document (DEFINITE EVIDENTIARY RULE).
E.g. proof required in case the holographic will is
The Rule of Duplicate Original lost.
When the document is in two or more copies
executed at or about the same time, with identical The EXECUTION of a document may be proven
contents, all such copies are considered originals. by:
It may be introduced in evidence without
accounting for the non-production of other copies. 1. Any person who executed the document;
2. Any person before whom the execution
Best Evidence Rule (1997) was acknowledged;
When A loaned a sum of money to B. A typed a single

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3. Any person who was present and saw it a) prove execution or existence
executed and delivered;
b) prove cause of unavailability without
4. Any person who after its execution and
bad faith of the offeror
delivery, saw it and recognized the
signatures; c) proof of contents in the following order
5. Any person to whom the parties to the
1) copy
instrument previously confessed the
execution thereof. 2) recital of its contents in
The LOSS of a document may be proven by: 3) some authentic document, or

4) testimony of witnesses
1. Any person who knew the fact of loss;
2. Anyone who has made a sufficient (b) the original is in the custody or under the
examination in the place/s where the control of the adverse party
document or papers of similar character a) adverse party had reasonable notice
are usually kept by the persons in whose to produce the original (Subpoena
custody the documents lost was and has duces tecum)
been unable to find it;
3. Anyone who has made investigation b) proof of the original’s existence
which is sufficient to satisfy the court that c) adverse party fails to produce the
the instrument was indeed lost. original
The CONTENTS of a document may be proven d) proof of contents in the following order
by: 1) copy
1. Any person who signed the document; 2) recital of its contents in

2. Any person who read it; 3) some authentic document, or
3. Any person who heard it read knowing it,
or being proved from other sources, the 4) testimony of witnesses
document so read was the one in (c) the original consists of numerous accounts or
question; other documents which cannot be examined
4. Any person who was present when the in court without great loss of time and the fact
contents of the document were talked sought to be established from them is only the
over between the parties thereto to such general result of the whole; and
an extent as to give him reasonably full
information as to its contents; (d) the original is a public record in the custody of
5. Any person to whom the parties to the a public officer or is recorded in a public office
instrument have confessed or stated the – contents may be proved by a certified copy
contents thereof. issued by the public officer in custody thereof
To prove loss, get affidavits of loss from all the

people who possibly has a copy of the original, CASES:
e.g. Notarized Deed of Sale
a) Vendor
de Vera v Aguilar, 218 SCRA 602 (1983) In case
b) vendee of loss of the original of a document, the order of
c) notary public proof is as follows; 1) existence of the original, 2)
its due execution, 3) loss, and 4) its contents.
d) clerk of the court which gave the notary Failure to prove loss of all the originals without
public commission fault of the offeror renders secondary evidence
e) Bureau of Archives inadmissible.
Vda. de Corpus v. Brabangco, (C.A.) 59 O.G.

Requisites for admission of secondary 8262 (1963)– when the existence of a document is
evidence, according to grounds proven, the court should allow the lost document
to be proven by parole; testimony of a witness
(a) the original has been lost or destroyed, or need not be verbatim.
cannot be produced in court
Remedy; Lost Documents; Secondary Evidence (1992)
________________________________________________________________________________________________
Ajax Power Corporation, a utility company, sued in the Municipality of Victorias v. CA, 149 SCRA 32
RTC to enforce a supposed right of way over a (1987)
property owned by Simplicio. At the ensuing trial, Ajax Facts: In action to recover land, a party failed to
presented its retired field auditor who testified that he produce the deed of sale, but presented only a
know for a fact that a certain sum of money was Certificate from the Archives Division of the
periodically paid to Simplicio for some time as Bureau of Records Management of an entry in a
consideration for a right of way pursuant to a written Notarial register.
contract. The original contract was not presented. Held: Certificate is admissible. Where the
Instead, a purported copy, identified by the retired original has been lost or destroyed, the offeror
field auditor as such, was formally offered as part of may prove its contents by a recital of its
his testimony. Rejected by the trial court, it was finally contents in some authentic document or by
made the subject of an offer of proof by Ajax. Can testimony of witnesses. The Certificate is one
Ajax validly claim that it had sufficiently met its burden such authentic document.
of proving the existence of the contract establishing its
right of way? Explain, Section 8. Party who calls for document not
SUGGESTED ANSWER: bound to offer it. — A party who calls for the
No. Ajax had not sufficiently met the burden of production of a document and inspects the same
proving the existence of the written contract because. is not obliged to offer it as evidence. (6a)
It had not laid the basis for the admission of a
purported copy thereof as secondary evidence. Ajax
should have first proven the execution of the original
document and its loss or destruction. (Sec. 5 of Rule 130) Republic of the Philippines
SUPREME COURT
Section 6. When original document is in Manila
adverse party's custody or control. — If the
document is in the custody or under the control of A.M. No. 01-7-01-SC July 17, 2001
adverse party, he must have reasonable notice to
produce it. If after such notice and after
RULES ON ELECTRONIC EVIDENCE
satisfactory proof of its existence, he fails to
produce the document, secondary evidence may
be presented as in the case of its loss. (5a) Acting on the Memorandum dated 18 June 2001
of the Committee on the Revision of the Rules of
Court to Draft the Rules on E-Commerce Law
NOTE: It is not necessary to show that the
[R.A. No. 8792] submitting the Rules on Electronic
original is in the actual possession of the
Evidence for this Court's consideration and
adverse party. It is enough that the
approval, the Court Resolved to APPROVED the
circumstances are such as to indicate that the
same.
writing is in his possession.
If there is failure to produce the original despite The Rules on Electronic Evidence shall apply to
reasonable notice, the adverse party is cases pending after their effectivity. These Rules
afterwards forbidden to produce the document in shall take effect on the first day of August 2001
order to contradict the other party’s copy or following their publication before the 20th of July in
evidence of its contents or it may also be two newspapers of general circulation in the
regarded as judicial admission in advance of the Philippines
correctness of the first party’s evidence. It also
gives rise to the presumption of suppression of 17th July 2001.
evidence
RULES ON ELECTRONIC EVIDENCE
Section 7. Evidence admissible when original
document is a public record. — When the Rule 1
original of document is in the custody of public COVERAGE
officer or is recorded in a public office, its contents
may be proved by a certified copy issued by the Section 1. Scope. – Unless otherwise provided
public officer in custody thereof. (2a) herein, these Rules shall apply whenever an
electronic document or electronic data message,
NOTE: Connect this to Rule 132, sections 23 to as defined in Rule 2 hereof, is offered or used in
27. evidence.

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Section 2. Cases covered. – These Rules shall expression or perform any one or more of
apply to all civil actions and proceedings, as well these functions.
as quasi-judicial and administrative cases.
(e) "Digital signature" refers to an
Note: Criminal actions are not included based on electronic signature consisting of a
the rules. However recent decision of the transformation of an electronic document
Supreme Court has expanded the Coverage of the or an electronic data message using an
Rules on Electronic Evidence – under A.M. No. asymmetric or public cryptosystem such
01-7-01-SC and the rules shall apply to all criminal that a person having the initial
and civil actions and proceedings, as well as untransformed electronic document and
quasi-judicial and administrative cases. (People the signer's public key can accurately
of the Philippines v. Enojas, GR. No. 204894, determine:
March 10, 2014)
i. whether the transformation was
Section 3. Application of other rules on evidence. created using the private key that
– In all matters not specifically covered by these corresponds to the signer's public
Rules, the Rules of Court and pertinent provisions key; and
of statutes containing rules on evidence shall
apply. ii. whether the initial electronic
document had been altered after
Rule 2 the transformation was made.
DEFINITION OF TERMS AND CONSTRUCTION
(f) "Digitally signed" refers to an electronic
Section 1. Definition of terms. – For purposes of document or electronic data message
these Rules, the following terms are defined, as bearing a digital signature verified by the
follows: public key listed in a certificate.
(a) "Asymmetric or public cryptosystem" (g) "Electronic data message" refers to

means a system capable of generating a information generated, sent, received or
secure key pair, consisting of a private stored by electronic, optical or similar
key for creating a digital signature, and a means.
public key for verifying the digital
signature. (h) "Electronic document" refers to
information or the representation of
(b) "Business records" include records of information, data, figures, symbols or
any business, institution, association, other modes of written expression,
profession, occupation, and calling of described or however represented, by
every kind, whether or not conducted for which a right is established or an
profit, or for legitimate or illegitimate obligation extinguished, or by which a fact
purposes. may be proved and affirmed, which is
received, recorded, transmitted, stored,
(c) "Certificate" means an electronic processed, retrieved or produced
document issued to support a digital electronically. It includes digitally signed
signature which purports to confirm the documents and any print-out or output,
identity or other significant characteristics readable by sight or other means, which
of the person who holds a particular key accurately reflects the electronic data
pair. message or electronic document. For
purposes of these Rules, the term
"electronic document" may be used
(d) "Computer" refers to any single or
interchangeably with "electronic data
interconnected device or apparatus,
message".
which, by electronic, electro-mechanical
or magnetic impulse, or by other means
with the same function, can receive, (i) "Electronic key" refers to a secret code
record, transmit, store, process, correlate, which secures and defends sensitive
analyze, project, retrieve and/or produce information that crosses over public
information, data, text, graphics, figures, channels into a form decipherable only
voice, video, symbols or other modes of with a matching electronic key.

________________________________________________________________________________________________
(j) "Electronic signature" refers to any Rule 3

distinctive mark, characteristic and/or ELECTRONIC DOCUMENTS
sound in electronic form, representing the
identity of a person and attached to or Section 1. Electronic documents as functional
logically associated with the electronic equivalent of paper-based documents. –
data message or electronic document or Whenever a rule of evidence refers to the term
any methodology or procedure employed writing, document, record, instrument,
or adopted by a person and executed or memorandum or any other form of writing, such
adopted by such person with the intention term shall be deemed to include an electronic
of authenticating, signing or approving an document as defined in these Rules.
electronic data message or electronic
document. For purposes of these Rules, Admissibility; Electronic Evidence (2003)
an electronic signature includes digital a) State the rule on the admissibility of an electronic
signatures. evidence. b) When is an electronic evidence regarded
as being the equivalent of an original document under
(k) "Ephemeral electronic the Best Evidence Rule? 4%
communication" refers to telephone SUGGESTED ANSWER:
conversations, text messages, chatroom (a) Whenever a rule of evidence refers to the term
sessions, streaming audio, streaming writing, document, record, instrument, memorandum
video, and other electronic forms of or any other form of writing, such term shall be
communication the evidence of which is deemed to include an electronic document as defined
not recorded or retained. in these Rules.
(Sec. 1 of Rule 3, Rules of Electronic Evidence effective August 1, 2001).
(l) "Information and communication An electronic document is admissible in evidence if it
system" refers to a system for generating, complies with the rules on admissibility prescribed by
sending, receiving, storing or otherwise the Rules of Court and related laws and is
processing electronic data messages or authenticated in the manner prescribed by these Rules.
electronic documents and includes the (Sec. 2 of Rule 3, Id.). The authenticity of any private
computer system or other similar devices electronic document must be proved by evidence that
by or in which data are recorded or stored it had been digitally signed and other appropriate
and any procedure related to the security measures have been applied. (Sec. 2 of Rule 5, Id.).
recording or storage of electronic data (b) An electronic document shall be regarded as the
messages or electronic documents. equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable by
(m) "Key pair" in an asymmetric sight or other means, shown to reflect the data
cryptosystem refers to the private key and accurately. (Sec. 1 of Rule 4)
its mathematically related public key such
that the latter can verify the digital Actions; Hold Departure Order (2010) No.
signature that the former creates. XVIII. While window-shopping at the mall on
August 4, 2008, Dante lost his organizer
(n) "Private key" refers to the key of a key including his credit card and billing
pair used to create a digital signature. statement. Two days later, upon reporting the
matter to the credit card company, he
(o) "Public key" refers to the key of a key learned that a one-way airplane ticket was
pair used to verify a digital signature. purchased online using his credit card for a
flight to Milan in mid- August 2008. Upon
Section 2. Construction. – These Rules shall be extensive inquiry with the airline company,
liberally construed to assist the parties in obtaining Dante discovered that the plane ticket was
a just, expeditious, and inexpensive determination under the name of one Dina Meril. Dante
of cases. approaches you for legal advice.
(a) What is the proper procedure to prevent

The interpretation of these Rules shall also take
Dina from leaving the Philippines? (2%)
into consideration the international origin of
SUGGESTED ANSWER: I would advise:
Republic Act No. 8792, otherwise known as the
(1) The filing of an appropriate criminal
Electronic Commerce Act.
action cognizable by the RTC against Dina
and the filing in said criminal action a
Motion for the issuance of a Hold

________________________________________________________________________________________________
Departure Order; (2) thereafter, a written Corp., cited in Torres vs. Pagcor, GR No. 193531,
request with the Commissioner of the Dec. 14, 2011).
Bureau of Immigration for a Watch List
Order pending the issuance of the Hold Best Evidence Rule; Electronic Evidence
Departure Order should be filed; (3) then, (2009)
the airline company should be requested No.XI. [d] An electronic evidence is the
to cancel the ticket issued to Dina. equivalent of an original document under the
Best Evidence Rule if it is a printout or
(b) Suppose an Information is filed against readable by sight or other means, shown to
Dina on August 12, 2008 and she is reflect the data accurately. SUGGESTED
immediately arrested. What pieces of ANSWER: TRUE. This statement is
electronic evidence will Dante have to secure embodied in Sec. 1, Rule 4 of A.m. No. 01-
in order to prove the fraudulent online 7-01-SC, re: Rules on Electronic Evidence.
transaction? (2%) SUGGESTED ANSWER:
He will have to present (a) his report to
the bank that he lost his credit card (b) Section 2. Copies as equivalent of the
that the ticket was purchased after the originals. – When a document is in two or more
report of the lost and (c) the purchase of copies executed at or about the same time with
one-way ticket. Dante should bring an identical contents, or is a counterpart produced by
original (or an equivalent copy) printout the same impression as the original, or from the
of: 1) the online ticket purchase using his same matrix, or by mechanical or electronic re-
credit card; 2) the phone call log to show recording, or by chemical reproduction, or by other
that he already alerted the credit card equivalent techniques which accurately
company of his loss; and 3) his credit card reproduces the original, such copies or duplicates
billing statement bearing the online ticket shall be regarded as the equivalent of the original.
transaction.
Notwithstanding the foregoing, copies or
duplicates shall not be admissible to the same
extent as the original if:
Section 2. Admissibility. – An electronic document (a) a genuine question is raised as to the

is admissible in evidence if it complies with the authenticity of the original; or
rules on admissibility prescribed by the Rules of
Court and related laws and is authenticated in the (b) in the circumstances it would be unjust
manner prescribed by these Rules. or inequitable to admit the copy in lieu of
the original.
Section 3. Privileged communication. – The
confidential character of a privileged Rule 5
communication is not lost solely on the ground AUTHENTICATION OF ELECTRONIC
that it is in the form of an electronic document. DOCUMENTS
Section 1. Burden of proving authenticity. –

The person seeking to introduce an electronic
Rule 4 document in any legal proceeding has the burden
BEST EVIDENCE RULE of proving its authenticity in the manner provided
in this Rule.
Section 1. Original of an electronic document.
– An electronic document shall be regarded as the Section 2. Manner of authentication. – Before
equivalent of an original document under the Best any private electronic document offered as
Evidence Rule if it is a printout or output readable authentic is received in evidence, its authenticity
by sight or other means, shown to reflect the data must be proved by any of the following means:
accurately.
(a) by evidence that it had been digitally
Note: A facsimile transmission is not considered signed by the person purported to have
as an electronic evidence under the Electronic signed the same;
Commerce Act (MCC Industrial vs. Sangyong

________________________________________________________________________________________________
(b) by evidence that other appropriate Section 2. Authentication of electronic signatures.

security procedures or devices as may be – An electronic signature may be authenticated in
authorized by the Supreme Court or by any of the following manner:
law for authentication of electronic
documents were applied to the document; (a) By evidence that a method or process
or was utilized to establish a digital signature
and verify the same;
(c) by other evidence showing its integrity
and reliability to the satisfaction of the (b) By any other means provided by law;
judge. or
(c) By any other means satisfactory to the

judge as establishing the genuineness of
Bar Exam Question 2012 the electronic signature.
47. A private electronic document's
authenticity may be received in evidence Section 3. Disputable presumptions relating to
when it is proved by: electronic signatures. – Upon the authentication of
a. evidence that it was electronically an electronic signature, it shall be presumed that:
notarized.
b. evidence that it was digitally signed by (a) The electronic signature is that of the
the person who purportedly signed the person to whom it correlates;
same.
c. evidence that it contains electronic data (b) The electronic signature was affixed by
messages. that person with the intention of
d. evidence that a method or process was authenticating or approving the electronic
utilized to verify the same. document to which it is related or to
SUGGESTED ANSWER: indicate such person's consent to the
(b), Before any private electronic transaction embodied therein; and
document is offered as authentic is
received in evidence, its authenticity (c) The methods or processes utilized to
must be proved by evidence that it had affix or verify the electronic signature
been digitally signed by the person operated without error or fault.
purported to have signed the same. (Rule
5, Sec. 2(a), Rules on Evidence).
Section 4. Disputable presumptions relating to
digital signatures. – Upon the authentication of a
digital signature, it shall be presumed, in addition
to those mentioned in the immediately preceding
Section 3. Proof of electronically notarized section, that:
document. – A document electronically notarized
in accordance with the rules promulgated by the (a) The information contained in a
Supreme Court shall be considered as a public certificate is correct;
document and proved as a notarial document
under the Rules of Court.
(b) The digital signature was created
during the operational period of a
certificate;
(c) No cause exists to render a certificate

Rule 6 invalid or revocable;
ELECTRONIC SIGNATURES
(d) The message associated with a digital
Section 1. Electronic signature. – An electronic signature has not been altered from the
signature or a digital signature authenticated in the time it was signed; and,
manner prescribed hereunder is admissible in
evidence as the functional equivalent of the
(e) A certificate had been issued by the
signature of a person on a written document.
certification authority indicated therein.

________________________________________________________________________________________________
Rule 7 reasonable grounds to doubt the integrity

EVIDENTIARY WEIGHT OF ELECTRONIC of the information and communication
DOCUMENTS system;
Section 1. Factors for assessing evidentiary (b) Whether the electronic document was
weight. – In assessing the evidentiary weight of an recorded or stored by a party to the
electronic document, the following factors may be proceedings with interest adverse to that
considered: of the party using it; or
(a) The reliability of the manner or method (c) Whether the electronic document was
in which it was generated, stored or recorded or stored in the usual and
communicated, including but not limited to ordinary course of business by a person
input and output procedures, controls, who is not a party to the proceedings and
tests and checks for accuracy and who did not act under the control of the
reliability of the electronic data message party using it.
or document, in the light of all the
circumstances as well as any relevant Rule 8
agreement; BUSINESS RECORDS AS EXCEPTION TO THE
HEARSAY RULE
(b) The reliability of the manner in which
its originator was identified; Section 1. Inapplicability of the hearsay rule. –
A memorandum, report, record or data compilation
(c) The integrity of the information and of acts, events, conditions, opinions, or diagnoses,
communication system in which it is made by electronic, optical or other similar means
recorded or stored, including but not at or near the time of or from transmission or
limited to the hardware and computer supply of information by a person with knowledge
programs or software used as well as thereof, and kept in the regular course or conduct
programming errors; of a business activity, and such was the regular
practice to make the memorandum, report, record,
(d) The familiarity of the witness or the or data compilation by electronic, optical or similar
person who made the entry with the means, all of which are shown by the testimony of
communication and information system; the custodian or other qualified witnesses, is
excepted from the rule on hearsay evidence.
(e) The nature and quality of the
information which went into the Section 2. Overcoming the presumption. – The
communication and information system presumption provided for in Section 1 of this Rule
upon which the electronic data message may be overcome by evidence of the
or electronic document was based; or untrustworthiness of the source of information or
the method or circumstances of the preparation,
transmission or storage thereof.
(f) Other factors which the court may
consider as affecting the accuracy or
integrity of the electronic document or Rule 9
electronic data message. METHOD OF PROOF
Section 2. Integrity of an information and Section 1. Affidavit evidence. – All matters

communication system. – In any dispute involving relating to the admissibility and evidentiary weight
the integrity of the information and communication of an electronic document may be established by
system in which an electronic document or an affidavit stating facts of direct personal
electronic data message is recorded or stored, the knowledge of the affiant or based on authentic
court may consider, among others, the following records. The affidavit must affirmatively show the
factors: competence of the affiant to testify on the matters
contained therein.
(a) Whether the information and
communication system or other similar Section 2. Cross-examination of deponent. – The
device was operated in a manner that did affiant shall be made to affirm the contents of the
not affect the integrity of the electronic affidavit in open court and may be cross-examined
document, and there are no other as a matter of right by the adverse party.

________________________________________________________________________________________________
Rule 10 If the foregoing communications are recorded or

EXAMINATION OF WITNESSES embodied in an electronic document, then the
provisions of Rule 5 shall apply.
Section 1. Electronic testimony. – After summarily
hearing the parties pursuant to Rule 9 of these Bar Exam Question 2012
Rules, the court may authorize the presentation of 46. Under the Rules of Electronic Evidence,
testimonial evidence by electronic means. Before "ephemeral electronic conversation" refers to
so authorizing, the court shall determine the the following, except:
necessity for such presentation and prescribe a. text messages;
terms and conditions as may be necessary under b. telephone conversations;
the circumstances, including the protection of the c. faxed document;
rights of the parties and witnesses concerned. d. online chatroom sessions;
SUGGESTED ANSWER:
Section 2. Transcript of electronic testimony. – (c), An “ephemeral electronic
When examination of a witness is done communication” refers to telephone
electronically, the entire proceedings, including the conversations, text messages, chatroom
questions and answers, shall be transcribed by a sessions, streaming audio, streaming
stenographer, stenotypist or other recorder video, and other electronic forms of
authorized for the purpose, who shall certify as communications, the evidence of which is
correct the transcript done by him. The transcript not recorded or retained (Sec.1(k), Rule 2).
should reflect the fact that the proceedings, either A facsimile transmission is not considered
in whole or in part, had been electronically as an electronic evidence under the
recorded. Electronic Commerce Act. In MCC
Industrial Sales Corporation vs. Ssangyong
Section 3. Storage of electronic evidence. – The Corporation, the Supreme Court
electronic evidence and recording thereof as well concluded that the terms “electronic data
as the stenographic notes shall form part of the message” and “electronic document,: as
record of the case. Such transcript and recording defined under the Electronic Commerce
shall be deemed prima facie evidence of such Act of 2000, do not include facsimile
proceedings. transmission. Accordingly, a facsimile
transmission cannot be considered as
Rule 11 electronic evidence. It is not the
AUDIO, PHOTOGRAPHIC, VIDEO, AND functional equivalent of an original under
EPHEMERAL EVIDENCE the Best Evidence Rule and is not
admissible as electronic evidence. (Torres
Section 1. Audio, video and similar evidence. – vs. PAGCOR, G.R. No. 193531, December
Audio, photographic and video evidence of events, 14, 2011).
acts or transactions shall be admissible provided it
shall be shown, presented or displayed to the
court and shall be identified, explained or
authenticated by the person who made the Rule 12
recording or by some other person competent to EFFECTIVITY
testify on the accuracy thereof.
Section 1. Applicability to pending cases. – These
Section 2. Ephemeral electronic Rules shall apply to cases pending after their
communications. – Ephemeral electronic effectivity.
communications shall be proven by the testimony
of a person who was a party to the same or has
Section 2. Effectivity. – These Rules shall take
personal knowledge thereof. In the absence or
effect on the first day of August 2001 following
unavailability of such witnesses, other competent
their publication before the 20th of July 2001 in
evidence may be admitted.
two newspapers of general circulation in the
Philippines.
A recording of the telephone conversation or
ephemeral electronic communication shall be
covered by the immediately preceding section.
3. Parol Evidence Rule

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Section 9. Evidence of written agreements. — and agreement of the parties. This is an exception to
When the terms of an agreement have been the parol evidence rule. [Sec. 9(b) of Rule 130, Rules of Court]
reduced to writing, it is considered as containing b) Yes, the copy in the possession of Pedro is a
all the terms agreed upon and there can be, duplicate original and with identical contents. [Sec. 4(b) of
between the parties and their successors in Rule 130]. Moreover, the failure of Lucio to produce the
interest, no evidence of such terms other than the original of the note is excusable because he was not
contents of the written agreement. given reasonable notice, as requirement under the
Rules before secondary evidence may be presented.
However, a party may present evidence to modify, (Sec. 6 of Rule 130, Rules of Court)
explain or add to the terms of written agreement if Note: The promissory note is an actionable document and
he puts in issue in his pleading: the original or a copy thereof should have been attached to
the complaint. (Sec. 7 of Rule 9, 1997 Rules of Civil Procedure). In
(a) An intrinsic ambiguity, mistake or such a case, the genuineness and due execution of the note,
imperfection in the written agreement; if not denied under oath, would be deemed admitted.
(Sec. 8 of Rule 9, 1997 Rules of Civil Procedure)
(b) The failure of the written agreement to Bar Exam Question 2012
express the true intent and agreement of 51. The Parole Evidence Rule applies to:
the parties thereto; a. subsequent agreements placed on issue.
b. written agreements or contractual
(c) The validity of the written agreement; documents.
or c. judgment on a compromise agreement.
d. will and testaments.
(d) The existence of other terms agreed to SUGGESTED ANSWER:
by the parties or their successors in (b), The parol evidence rule, embodied in
interest after the execution of the written Section 9, Rule 130 of the Rules of Court
agreement. holds that when the terms of an
agreement have been reduced into writing,
The term "agreement" includes wills. (7a) it is considered as containing all the terms
agreed upon and there can be, between
Parol Evidence Rule (2001) the parties and their successors-in-
Pedro filed a complaint against Lucio for the recovery interest, no evidence of such terms other
of a sum of money based on a promissory note than the contents of the written
executed by Lucio. In his complaint, Pedro alleged that agreement. (Leighton Contractors Phils.
although the promissory note says that it is payable Inc., vs. CNP industries, Inc., G.R. No.
within 120 days, the truth is that the note is payable 160972, March 9, 2010). Evidently, parol
immediately after 90 days but that if Pedro is willing, evidence only applies to written
he may, upon request of Lucio give the latter up to 120 agreements or contractual documents.
days to pay the note. During the hearing, Pedro ALTERNATIVE ANSWER: (d), Parol
testified that the truth is that the agreement between Evidence Rule applies because the term
him and Lucio is for the latter to pay immediately after “Agreement” includes wills. (Rule 130,
ninety day’s time. Also, since the original note was Sec. 9(e), Rules of Court).
with Lucio and the latter would not surrender to Pedro
the original note which Lucio kept in a place about one
day’s trip from where he received the notice to NOTE: This section is the Parol Evidence Rule.
produce the note and in spite of such notice to
produce the same within six hours from receipt of PURPOSE:
1. To give stability to a written agreement;
such notice, Lucio failed to do so. Pedro presented a
2. To remove the temptation and possibility
copy of the note which was executed at the same time
of perjury;
as the original and with identical contents. a) Over the
3. To prevent possible fraud.
objection of Lucio, will Pedro be allowed to testify as
to the true agreement or contents of the promissory REQUISITES FOR THE APPLICABILITY OF
note? Why? (2%) b) Over the objection of Lucio, can THE RULE:
Pedro present a copy of the promissory note and have 1. There must be a valid contract;
it admitted as valid evidence in his favor? Why? (3%) 2. The terms of the agreement must be
SUGGESTED ANSWER:
reduced to writing;
a) Yes, because Pedro has alleged in his complaint that
the promissory note does not express the true intent

________________________________________________________________________________________________
3. The dispute is between the parties and (e) An agreement of the leasing for a longer
their successors in interest; and period than one year, or for the sale of real
4. There is dispute as to the terms of the
property or of an interest therein;
agreement.
(f) A representation as to the credit of a third
When no timely objection is made to the person.
admission of parol evidence and when the motion
to strike out said evidence came too late and if the Art. 1405. Contracts infringing the Statute of
other party against whom such evidence was Frauds, referred to in No. 2 of article 1403, are
presented cross-examined the witness who ratified by the failure to object to the
testified in respect to the contract, said party will
presentation of oral evidence to prove the same,
[not?] be understood to have waived the benefits
of the law. Parol evidence under those facts is or by the acceptance of benefit under them.
competent and admissible (Abrenica vs. Gonda,
34 Phil. 739). Evidence Aliunde (Extrinsic Evidence)
It is that which is excluded under the Parol
Art. 1403 and 1405 Civil Code Evidence Rule. It a refer to testimonial, real, or
Art. 1403. The following contracts are documentary evidence.
unenforceable, unless they are ratified: Note: The rule applies only to INTEGRATED
xxx AGREEMENTS,. Thus, unless the written
instrument was intended by both parties as the
(2) Those that do not comply with the Statute final and exclusive memorial of their dealings, the
of Frauds as set forth in this number. In the rule does not apply.
following cases an agreement hereafter made
THEORY OF INTEGRATION OF JURAL ACTS
shall be unenforceable by action, unless the
same, or some note or memorandum, thereof, be Under this theory, previous acts and
in writing, and subscribed by the party charged, contemporaneous transactions of the parties are
or by his agent; evidence, therefore, of the deemed integrated and merged in the written
agreement cannot be received without the instrument which they have executed. When the
writing, or a secondary evidence of its contents: parties have reduced their agreement to writing, it
is presumed that they have made the writing the
(a) An agreement that by its terms is not to ONLY repository and memorial of the truth,
be performed within a year from the making and whatever is not found in the writing must be
thereof; understood to have been waived or abandoned.
(b) A special promise to answer for the debt, Exception: COLLATERAL ORAL AGREEMENT
default, or miscarriage of another; It is a contract made prior of contemporaneous
with another agreement and if it is oral and not
(c) An agreement made in consideration of inconsistent with the written contract, it is
marriage, other than a mutual promise to marry; admissible within the exception to the parol
evidence rule.
(d) An agreement for the sale of goods,
chattels or things in action, at a price not less An agreement is collateral when it meets the
than five hundred pesos, unless the buyer accept following requirements:
and receive part of such goods and chattels, or 1. It is not a part of the integrated written
the evidences, or some of them, of such things in agreement in any way;
2. It is not inconsistent with the written
action or pay at the time some part of the agreement in any way, including both the
purchase money; but when a sale is made by express and implied provisions of the
auction and entry is made by the auctioneer in his written agreement;
sales book, at the time of the sale, of the amount 3. It is not closely connected with the
and kind of property sold, terms of sale, price, principal transaction as to form a part and
names of the purchasers and person on whose parcel thereof.
account the sale is made, it is a sufficient NOTE: Parol evidence rule does not apply when
memorandum; collateral oral agreement refers to separate and
distinct subjects.

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Inciong v. CA, 257 SCRA 578 (1996) – PER does

Reason: The parties to a contract cannot be not specify that the agreement be a public
presumed to have embodied in a single writing all document; need not be in any particular form or
the agreements which they have on different signed by the parties; fraud must be corroborated.
subjects.
Cases: 4. Interpretation Of Documents
Canuto v. Mariano, 37 Phil. 840 (1918) – parol

The following are pertinent provisions of the NCC:
may be introduced to prove subsequent
agreement regardless of how soon such
agreement was made. INTERPRETATION OF CONTRACTS
Yu Tek & Co. v. Gonzales, 29 Phil. 384 (1915) – Art. 1370. If the terms of a contract are clear and
Parol evidence inadmissible to incorporate leave no doubt upon the intention of the
additional contemporaneous conditions which are contracting parties, the literal meaning of its
not mentioned at all in the writing, unless there is
fraud or mistake. stipulations shall control.
Land Settlement & Development Corp. v. Garcia If the words appear to be contrary to the evident
Plantation, 7 SCRA 750 (1963) – exception to intention of the parties, the latter shall prevail
PER may be put in issue in answer to over the former. (1281)
counterclaim; when operation of contract made to
depend upon occurrence of an event, which for
that reason is a condition precedent, such may be Art. 1371. In order to judge the intention of the
established by parol evidence, since if it is proven, contracting parties, their contemporaneous and
there will be no contract. subsequent acts shall be principally considered.
(1282)
Maulini v. Serrano, 28 Phil. 640 (1914) – PER
does not apply where the purpose of parol
evidence is to show that no written contract ever Art. 1372. However general the terms of a
existed. contract may be, they shall not be understood to
comprehend things that are distinct and cases
PNB v. Seeto, 91 Phil. 756 (1952) – assurances that are different from those upon which the
made by an indorser that the drawer has funds, parties intended to agree. (1283)
which assurances induced bank to cash the
check, are admissible in evidence.
Art. 1373. If some stipulation of any contract
Woodhouse v. Halili, 93 Phil. 526 (1953) – should admit of several meanings, it shall be
Inducement by fraud may be proved by parol understood as bearing that import which is most
because it goes into the validity of the agreement. adequate to render it effectual. (1284)
Robles v. Lizarraga, 50 Phil. 387 (1927) – parol
may be received regardless of whether the written
Art. 1374. The various stipulations of a contract
agreement contains any reference to the collateral shall be interpreted together, attributing to the
agreement and whether the action is at law or in doubtful ones that sense which may result from
equity even if it deals with related matters. all of them taken jointly. (1285)
Lechugas v. CA, 143 SCRA 335 (1986) – PER not Art. 1375. Words which may have different
applicable where suit is between one of the parties
to the document and 3rd persons; PER does not significations shall be understood in that which is
apply and may not be invoked by either party to most in keeping with the nature and object of the
the litigation against the other, where at least one contract. (1286)
of the parties to the suit is not party or privy to the
written agreement and does not base a claim on Art. 1376. The usage or custom of the place shall
the instrument; both parties to the agreement must
be borne in mind in the interpretation of the
be parties to the suit.
ambiguities of a contract, and shall fill the

________________________________________________________________________________________________
omission of stipulations which are ordinarily Section 14. Peculiar signification of terms. —
established. (1287) The terms of a writing are presumed to have been
used in their primary and general acceptation, but
evidence is admissible to show that they have a
Art. 1377. The interpretation of obscure words or local, technical, or otherwise peculiar signification,
stipulations in a contract shall not favor the party and were so used and understood in the particular
who caused the obscurity. (1288) instance, in which case the agreement must be
construed accordingly. (12)
Art. 1378. When it is absolutely impossible to
settle doubts by the rules established in the Section 15. Written words control printed. —
When an instrument consists partly of written
preceding articles, and the doubts refer to
words and partly of a printed form, and the two are
incidental circumstances of a gratuitous contract, inconsistent, the former controls the latter. (13)
the least transmission of rights and interests shall
prevail. If the contract is onerous, the doubt shall Section 16. Experts and interpreters to be used
be settled in favor of the greatest reciprocity of in explaining certain writings. — When the
interests. characters in which an instrument is written are
difficult to be deciphered, or the language is not
understood by the court, the evidence of persons
If the doubts are cast upon the principal object of
skilled in deciphering the characters, or who
the contract in such a way that it cannot be understand the language, is admissible to declare
known what may have been the intention or will the characters or the meaning of the language.
of the parties, the contract shall be null and void. (14)
(1289)
Section 17. Of Two constructions, which
Art. 1379. The principles of interpretation stated preferred. — When the terms of an agreement
have been intended in a different sense by the
in [Rule 123 of] the Rules of Court shall likewise
different parties to it, that sense is to prevail
be observed in the construction of contracts. against either party in which he supposed the
other understood it, and when different
Section 10. Interpretation of a writing according constructions of a provision are otherwise equally
to its legal meaning. — The language of a writing proper, that is to be taken which is the most
is to be interpreted according to the legal meaning favorable to the party in whose favor the provision
it bears in the place of its execution, unless the was made. (15)
parties intended otherwise. (8)
Note: Capital Insurance v. Sadang, 21 SCRA
Section 11. Instrument construed so as to give 1183 (1967) – doubt resolved against one who
effect to all provisions. — In the construction of prepared the document
an instrument, where there are several provisions
or particulars, such a construction is, if possible, to Section 18. Construction in favor of natural
be adopted as will give effect to all. (9) right. — When an instrument is equally
susceptible of two interpretations, one in favor of
Section 12. Interpretation according to natural right and the other against it, the former is
intention; general and particular provisions. — to be adopted. (16)
In the construction of an instrument, the intention
of the parties is to be pursued; and when a Section 19. Interpretation according to usage.
general and a particular provision are inconsistent, — An instrument may be construed according to
the latter is paramount to the former. So a usage, in order to determine its true character.
particular intent will control a general one that is (17)
inconsistent with it. (10)
INTRINSIC OR LATENT AMBIGUITY
Section 13. Interpretation according to It is when the writing on its face appears clear and
circumstances. — For the proper construction of unambiguous but there are collateral matters or
an instrument, the circumstances under which it circumstances which make the meaning uncertain.
was made, including the situation of the subject
thereof and of the parties to it, may be shown, so EXTRINSIC OF PATENT AMBIGUITY
that the judge may be placed in the position of
those whose language he is to interpret. (11)

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It is when the ambiguity is apparent on the face of NOTE: Parol evidence rule is not applicable to a
the writing itself and requires something to be mere receipt, unless that the receipt can qualify as
added in order to ascertain the meaning of the a valid and enforceable contract.
words used.
Parol evidence cannot be used to ratify or Hence, a receipt being given for the payment of
supplement a void contract. rent due on the lease, parol evidence is
admissible to show that the payment as made by
INTERMEDIATE AMBIGUITY note (Peralta, citing Cruz vs. CA, 192 SCRA 209).
It is where the ambiguity consists in the use of
equivocal words designating the person or subject RULE ON CONDITIONAL AGREEMENTS
matter, parol evidence of collateral or extrinsic
matter may be introduced for the purpose of aiding 1. CONDITIONS PRECEDENT--- It may be
the court in arriving at the meaning of the established by parol evidence because
language used. (this kind of ambiguity result from there is no varying of the terms of the
the use of words susceptible of two [or more] written contract by extrinsic agreement for
interpretation, like dollars, tons, etc). the reason that there is no contract in
existence, there is nothing to which to
NOTE: INTRINSIC and INTERMEDIATE apply the excluding rule.
ambiguities are curable by evidence Aliunde or
extraneous evidence. PATENT ambiguity cannot 2. CONDITIONS SUBSEQUENT--- It may
be cured by evidence Aliunde. not be established by parol evidence.
PRINCIPLE OF “FALSA DEMONSTRARIO NON PAROL EVIDENCE BEST EVIDENCE

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

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1. Qualification of Witnesses
Those persons who, under the law, labor under:
Section 20. Witnesses; their qualifications. —
Except as provided in the next succeeding A. ABSOLUTE DISQUALIFICATION
section, all persons who can perceive, and
perceiving, can make their known perception to 1. Disqualification by reason of mental
others, may be witnesses. incapacity or immaturity (sec. 21);
2. Disqualification by reason of marriage
(sec. 22).
Religious or political belief, interest in the outcome
of the case, or conviction of a crime unless
B. RELATIVE DISQUALIFICATION
otherwise provided by law, shall not be ground for
disqualification. (18a)
1. Disqualification by reason of death or
insanity of adverse party (Dead Man’s
NOTE: As a GR, every person who takes the Statute, sec. 23);
witness stand is presumed to possess the 2. Disqualification on the ground of
qualifications of a witness (Presumption of privileged communication (sec. 24).
competency).
Q: May an attorney be a witness of his own client?
Exception: The following shall be prima evidence A: Yes. When a lawyer is a witness for his client,
the one is of unsound mind: he should leave the trial of the case to other
1. The fact that a person has been recently counsel, except as to merely formal matters.
found to be of unsound mind by a court of
competent jurisdiction; TEST OF COMPETENCY
2. That one is an inmate of an asylum for the Whether the individual has sufficient
insane. understanding to appreciate the nature and
obligation of an oath and sufficient capacity to
REASON: Insanity is presumed to continue as a observe and describe the facts in regard to which
state of mind if it has once existed until the he is called to testify.
contrary is shown. Thus the burden of proof is on
the party offering him to show his competency. A witness is presumed to be competent. The
objection to the competency may be raised at any
The rule on conviction time during the examination or cross-examination;
As a general rule, conviction of a crime does not but it should be made as soon as the facts tending
necessarily disqualify a person to be a witness. to show incompetency are discovered.
Exceptions: VOIR DIRE EXAMINATION
1. A person convicted of falsification of a It is a preliminary examination conducted by the
document, perjury or false testimony is trial judge where the witness is duly sworn to
disqualified from being a witness to a will answer as to his competency to give or hear
(art. 821, NCC); evidence
2. A person seeking to become a state
witness must not have been convicted of CITIZEN’S TESTIMONIAL DUTY
an offense involving moral turpitude (Rule As a general rule, every competent person may be
119, sec. 17 [e]). compelled to bear testimony in the administration
of the laws by the duly constituted courts in of the
country. This can only be invoked by the state
Bar Exam Question 2011 after adequate notice is given, thru subpoena.
(39) Considering the qualifications required of
a would-be witness, who among the following Witnesses subpoenaed by the court are duty
is INCOMPETENT to testify? (A) A person bound to appear and testify, EXCEPT:
under the influence of drugs when the event 1. Chief Executive;
he is asked to testify on took place. 2. Judges of Superior Courts;
(B) A person convicted of perjury who will 3. Members of Congress during sessions;
testify as an attesting witness to a will. 4. Ambassadors;
(C) A deaf and dumb. (D) A mental retardate. 5. Consuls and other diplomatic officials
when there is a treaty holding them
exempt;
THE FOLLOWING CANNOT BE WITNESSES:

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6. Witness who resides more than 100 km. (b) "Child abuse" means physical, psychological,
away from his residence to the place or sexual abuse, and criminal neglect as defined
where he is to testify by ordinary course of in Republic Act No. 7610 and other related laws.
travel, or a detention prisoner if no
permission of the court in which his case (c) "Facilitator" means a person appointed by the
is pending was obtained (Rule 21, sec. court to pose questions to a child.
10).
(d) "Record regarding a child" or "record" means
any photograph, videotape, audiotape, film,
THE RULE ON EXAMINATION OF CHILD
handwriting, typewriting, printing, electronic
WITNESS
recording, computer data or printout, or other
AM NO. 00-4-07-SC memorialization, including any court document,
pleading, or any copy or reproduction of any of the
foregoing, that contains the name, description,
Republic of the Philippines address, school, or any other personal identifying
SUPREME COURT information about a child or his family and that is
Manila produced or maintained by a public agency,
private agency, or individual.
A.M. NO. 004-07-SC November 21, 2000
(e) A "guardian ad litem" is a person appointed by
RULE ON EXAMINATION OF A CHILD the court where the case is pending for a child
WITNESS who is a victim of, accused of, or a witness to a
crime to protect the best interests of the said child.
Section 1. Applicability of the Rule. - Unless
otherwise provided, this Rule shall govern the (f) A "support person" is a person chosen by the
examination of child witnesses who are victims of child to accompany him to testify at or attend a
crime, accused of a crime, and witnesses to crime. judicial proceeding or deposition to provide
It shall apply in all criminal proceedings and non- emotional support for him.
criminal proceedings involving child witnesses.
(g) "Best interests of the child" means the
Section 2. Objectives. - The objectives of this totality of the circumstances and conditions as are
Rule are to create and maintain an environment most congenial to the survival, protection, and
that will allow children to give reliable and feelings of security of the child and most
complete evidence, minimize trauma to children, encouraging to his physical, psychological, and
encourage children to testify in legal proceedings, emotional development. It also means the least
and facilitate the ascertainment of truth. detrimental available alternative for safeguarding
the growth and development of the child.
Section 3. Construction of the Rule. - This Rule
shall be liberally construed to uphold the best (h) "Developmental level" refers to the specific
interests of the child and to promote maximum growth phase in which most individuals are
accommodation of child witnesses without expected to behave and function in relation to the
prejudice to the constitutional rights of the advancement of their physical, socio-emotional,
accused. cognitive, and moral abilities.
Section 4. Definitions. - (i) "In-depth investigative interview" or "disclosure

interview" is an inquiry or proceeding conducted
(a) A "child witness" is any person who at the by duly trained members of a multidisciplinary
time of giving testimony is below the age of team or representatives of law enforcement or
eighteen (18) years. In child abuse cases, a child child protective services for the purpose of
includes one over eighteen (18) years but is found determining whether child abuse has been
by the court as unable to fully take care of himself committed.
or protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a Bar Exam Question 2012
physical or mental disability or condition. 49. Under the Rules on Examination of a
child witness, a child witness is one:
a. who is 18 years of age or below at the time
of testifying.

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b. who is below 18 years of age at the time of (7) May remain with the child while the child
the incident/crime to be testified on. waits to testify;
c. who is below 18 years of age at the time
of the giving of testimony. (8) May interview witnesses; and
d. who is 18 years of age in child abuse
cases. (9) May request additional examinations by
SUGGESTED ANSWER: (c), A “child medical or mental health professionals if there
witness” is any person who at the time of is a compelling need therefor.
giving testimony is below the age of
eighteen (18) years. (Sec.4, Rules on (c) The guardian ad litem shall be notified of all
Examination of a Child Witness). proceedings but shall not participate in the trial.
However, he may file motions pursuant to sections
9, 10, 25, 26, 27 and 31(c). If the guardian ad
litem is a lawyer, he may object during trial that
Section 5. Guardian ad litem. - questions asked of the child are not appropriate to
his developmental level.
(a) The court may appoint a guardian ad litem for
a child who is a victim of, accused of, or a witness (d) The guardian ad litem may communicate
to a crime to promote the best interests of the concerns regarding the child to the court through
child. In making the appointment, the court shall an officer of the court designated for that purpose.
consider the background of the guardian ad litem
and his familiarity with the judicial process, social (e) The guardian ad litem shall not testify in any
service programs, and child development, giving proceeding concerning any information,
preference to the parents of the child, if qualified. statement, or opinion received from the child in the
The guardian ad litem may be a member of the course of serving as a guardian ad litem, unless
Philippine Bar. A person who is a witness in any the court finds it necessary to promote the best
proceeding involving the child cannot be interests of the child.
appointed as a guardian ad litem.
(f) The guardian ad litem shall be presumed to
(b) The guardian ad litem: have acted in good faith in compliance with his
duties described in sub-section (b).
(1) Shall attend all interviews, depositions,
hearings, and trial proceedings in which a Section 6. Competency. - Every child is
child participates; presumed qualified to be a witness. However, the
court shall conduct a competency examination of
(2) Shall make recommendations to the court a child, motu proprio or on motion of a party, when
concerning the welfare of the child; it finds that substantial doubt exists regarding the
ability of the child to perceive, remember,
(3) Shall have access to all reports, communicate, distinguish truth from falsehood, or
evaluations, and records necessary to appreciate the duty to tell the truth in court.
effectively advocate for the child, except
privileged communications; (a) Proof of necessity. - A party seeking a
competency examination must present proof of
(4) Shall marshal and coordinate the delivery necessity of competency examination. The age of
of resources and special services to the child; the child by itself is not a sufficient basis for a
competency examination.
(5) Shall explain, in language understandable
to the child, all legal proceedings, including (b) Burden of proof. - To rebut the presumption of
police investigations, in which the child is competence enjoyed by a child, the burden of
involved; proof lies on the party challenging his
competence.
(6) Shall assist the child and his family in
coping with the emotional effects of crime and (c) Persons allowed at competency examination.
subsequent criminal or non-criminal Only the following are allowed to attend a
proceedings in which the child is involved; competency examination:
(1) The judge and necessary court personnel;

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(2) The counsel for the parties; for the child, he shall not be disqualified and may
(3) The guardian ad litem; serve as the interpreter of the child. The
(4) One or more support persons for the child; interpreter, however, who is also a witness, shall
and testify ahead of the child.
(5) The defendant, unless the court
determines that competence can be fully (c) An interpreter shall take an oath or affirmation
evaluated in his absence. to make a true and accurate interpretation.
(d) Conduct of examination. - Examination of a Section 10. Facilitator to pose questions to

child as to his competence shall be conducted child. -
only by the judge. Counsel for the parties,
however, can submit questions to the judge that (a) The court may, motu proprio or upon motion,
he may, in his discretion, ask the child. appoint a facilitator if it determines that the child is
unable to understand or respond to questions
(e) Developmentally appropriate questions. - asked. The facilitator may be a child psychologist,
The questions asked at the competency psychiatrist, social worker, guidance counselor,
examination shall be appropriate to the age and teacher, religious leader, parent, or relative.
developmental level of the child; shall not be
related to the issues at trial; and shall focus on the (b) If the court appoints a facilitator, the respective
ability of the child to remember, communicate, counsels for the parties shall pose questions to
distinguish between truth and falsehood, and the child only through the facilitator. The questions
appreciate the duty to testify truthfully.
shall either be in the words used by counsel or, if
the child is not likely to understand the same, in
(f) Continuing duty to assess competence. - The words that are comprehensible to the child and
court has the duty of continuously assessing the which convey the meaning intended by counsel.
competence of the child throughout his testimony.
(c) The facilitator shall take an oath or affirmation
Section 7. Oath or affirmation. - Before to pose questions to the child according to the
testifying, a child shall take an oath or affirmation meaning intended by counsel.
to tell the truth.
Section 11. Support persons. -
Section 8. Examination of a child witness. -
The examination of a child witness presented in a (a) A child testifying at a judicial proceeding or
hearing or any proceeding shall be done in open making a deposition shall have the right to be
court. Unless the witness is incapacitated to accompanied by one or two persons of his own
speak, or the question calls for a different mode of choosing to provide him emotional support.
answer, the answers of the witness shall be given
orally.
(1) Both support persons shall remain within
the view of the child during his testimony.
The party who presents a child witness or the
guardian ad litem of such child witness may,
however, move the court to allow him to testify in (2) One of the support persons may
the manner provided in this Rule. accompany the child to the witness stand,
provided the support person does not
completely obscure the child from the view of
Section 9. Interpreter for child. -
the opposing party, judge, or hearing officer.
(a) When a child does not understand the English (3) The court may allow the support person to
or Filipino language or is unable to communicate hold the hand of the child or take other
in said languages due to his developmental level, appropriate steps to provide emotional
fear, shyness, disability, or other similar reason, support to the child in the course of the
an interpreter whom the child can understand and proceedings.
who understands the child may be appointed by
the court, motu proprio or upon motion, to interpret
for the child. (4) The court shall instruct the support
persons not to prompt, sway, or influence the
child during his testimony.
(b) If a witness or member of the family of the child
is the only person who can serve as an interpreter

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(b) If the support person chosen by the child is re-cross examinations as often as necessary
also a witness, the court may disapprove the depending on his developmental level.
choice if it is sufficiently established that the
attendance of the support person during the Section 16. Testimonial aids. - The court shall
testimony of the child would pose a substantial permit a child to use dolls, anatomically-correct
risk of influencing or affecting the content of the dolls, puppets, drawings, mannequins, or any
testimony of the child. other appropriate demonstrative device to assist
him in his testimony.
(c) If the support person who is also a witness is
allowed by the court, his testimony shall be Section 17. Emotional security item. - While
presented ahead of the testimony of the child. testifying, a child shall be allowed to have an item
of his own choosing such as a blanket, toy, or doll.
Section 12. Waiting area for child witnesses. -
The courts are encouraged to provide a waiting Section 18. Approaching the witness. - The
area for children that is separate from waiting court may prohibit a counsel from approaching a
areas used by other persons. The waiting area for child if it appears that the child is fearful of or
children should be furnished so as to make a child intimidated by the counsel.
comfortable.
Section 19. Mode of questioning. - The court
Section 13. Courtroom environment. - To create shall exercise control over the questioning of
a more comfortable environment for the child, the children so as to (1) facilitate the ascertainment of
court may, in its discretion, direct and supervise the truth, (2) ensure that questions are stated in a
the location, movement and deportment of all form appropriate to the developmental level of the
persons in the courtroom including the parties, child, (3) protect children from harassment or
their counsel, child, witnesses, support persons, undue embarrassment, and (4) avoid waste of
guardian ad litem, facilitator, and court personnel. time.
The child may be allowed to testify from a place
other than the witness chair. The witness chair or The court may allow the child witness to testify in
other place from which the child testifies may be a narrative form.
turned to facilitate his testimony but the opposing
party and his counsel must have a frontal or profile
view of the child during the testimony of the child. Bar Exam Question 2012
The witness chair or other place from which the 3. A narrative testimony is usually objected
child testifies may also be rearranged to allow the to but the court may allow such testimony if:
child to see the opposing party and his counsel, if a. it would expedite trial and give the
he chooses to look at them, without turning his court a clearer understanding of the
body or leaving the witness stand. The judge need matters related;
not wear his judicial robe. b. the witness is of advanced age;
c. the testimony relates to family genealogy;
Nothing in this section or any other provision of d. the witness volunteers information not
law, except official in-court identification sought by the examiner.
provisions, shall be construed to require a child to SUGGESTED ANSWER: (a), There is no
look at the accused. legal principle which prevents a witness
from giving his testimony in a narrative
form if he is requested to do so by
Accommodations for the child under this section
need not be supported by a finding of trauma to counsel. A witness may be allowed to
the child. testify by narration if it would be the best
way of getting at what he knew or could
state concerning the matter at issue. It
Section 14. Testimony during appropriate
would expedite the trial and would
hours. - The court may order that the testimony of
perhaps furnish the court a clearer
the child should be taken during a time of day
understanding of matters related as they
when the child is well-rested.
occurred. (People vs. Calixto, G.R. No.
92355, January 24, 1991).
Section 15. Recess during testimony. - ALTERNATIVE ANSWER: (b), The Rules
allow persons of tender age to testify in a
The child may be allowed reasonable periods of narrative form because they cannot cope
relief while undergoing direct, cross, re-direct, and with the technicalities of examination of

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witnesses. The same rule should be (a) The prosecutor, counsel or the guardian ad
applied to witnesses of advance age. litem may apply for an order that the testimony of
the child be taken in a room outside the courtroom
and be televised to the courtroom by live-link
television.
Section 20. Leading questions. - The court may
allow leading questions in all stages of Before the guardian ad litem applies for an order
examination of a child if the same will further the under this section, he shall consult the prosecutor
interests of justice. or counsel and shall defer to the judgment of the
prosecutor or counsel regarding the necessity of
applying for an order. In case the guardian ad
Section 21. Objections to questions. -
ltiem is convinced that the decision of the
Objections to questions should be couched in a
prosecutor or counsel not to apply will cause the
manner so as not to mislead, confuse, frighten, or
child serious emotional trauma, he himself may
intimidate the child.
apply for the order.
Section 22. Corroboration. - Corroboration shall
The person seeking such an order shall apply at
not be required of a testimony of a child. His
least five (5) days before the trial date, unless the
testimony, if credible by itself, shall be sufficient to
court finds on the record that the need for such an
support a finding of fact, conclusion, or judgment
order was not reasonably foreseeable.
subject to the standard of proof required in
criminal and non-criminal cases.
(b) The court may motu proprio hear and
determine, with notice to the parties, the need for
Section 23. Excluding the public. - When a child
taking the testimony of the child through live-link
testifies, the court may order the exclusion from
television.
the courtroom of all persons, including members
of the press, who do not have a direct interest in
the case. Such an order may be made to protect (c) The judge may question the child in chambers,
the right to privacy of the child or if the court or in some comfortable place other than the
determines on the record that requiring the child to courtroom, in the presence of the support person,
testify in open court would cause psychological guardian ad litem, prosecutor, and counsel for the
harm to him, hinder the ascertainment of truth, or parties. The questions of the judge shall not be
result in his inability to effectively communicate related to the issues at trial but to the feelings of
due to embarrassment, fear, or timidity. In making the child about testifying in the courtroom.
its order, the court shall consider the
developmental level of the child, the nature of the (d) The judge may exclude any person, including
crime, the nature of his testimony regarding the the accused, whose presence or conduct causes
crime, his relationship to the accused and to fear to the child.
persons attending the trial, his desires, and the
interests of his parents or legal guardian. The (e) The court shall issue an order granting or
court may, motu proprio, exclude the public from denying the use of live-link television and stating
the courtroom if the evidence to be produced the reasons therefor. It shall consider the following
during trial is of such character as to be offensive factors:
to decency or public morals. The court may also,
on motion of the accused, exclude the public from (1) The age and level of development of the
trial, except court personnel and the counsel of the child;
parties.
(2) His physical and mental health, including
Section 24. Persons prohibited from entering any mental or physical disability;
and leaving courtroom. - The court may order
that persons attending the trial shall not enter or
leave the courtroom during the testimony of the (3) Any physical, emotional, or psychological
child. injury experienced by him;
Section 25. Live-link television testimony in (4) The nature of the alleged abuse;
criminal cases where the child is a victim or a
witness. - (5) Any threats against the child;

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(6) His relationship with the accused or (3) If it is necessary for the child to identify the
adverse party; accused at trial, the court may allow the child
to enter the courtroom for the limited purpose
(7) His reaction to any prior encounters with of identifying the accused, or the court may
the accused in court or elsewhere; allow the child to identify the accused by
observing the image of the latter on a
television monitor.
(8) His reaction prior to trial when the topic of
testifying was discussed with him by parents
or professionals; (4) The court may set other conditions and
limitations on the taking of the testimony that it
finds just and appropriate, taking into
(9) Specific symptoms of stress exhibited by
consideration the best interests of the child.
the child in the days prior to testifying;
(h) The testimony of the child shall be preserved

(10) Testimony of expert or lay witnesses;
on videotape, digital disc, or other similar devices
which shall be made part of the court record and
(11) The custodial situation of the child and shall be subject to a protective order as provided
the attitude of the members of his family in section 31(b).
regarding the events about which he will
testify; and
Witness; Examination of a Child Witness; via Live-Link
TV (2005) When may the trial court order that the
(12) Other relevant factors, such as court testimony of a child be taken by live-link television?
atmosphere and formalities of court Explain.
procedure. SUGGESTED ANSWER:
The testimony of a child may be taken by live-link
(f) The court may order that the testimony of the television if there is a substantial likelihood that the
child be taken by live-link television if there is a child would suffer trauma from testifying in the
substantial likelihood that the child would suffer presence of the accused, his counsel or the prosecutor
trauma from testifying in the presence of the as the case may be. The trauma must of a kind which
accused, his counsel or the prosecutor as the would impair the completeness or truthfulness of the
case may be. The trauma must be of a kind which testimony of the child. (See Sec. 25, Rule on Examination of a
would impair the completeness or truthfulness of Child Witness).
the testimony of the child.
(g) If the court orders the taking of testimony by

live-link television: Section 26. Screens, one-way mirrors, and
other devices to shield child from accused. -
(1) The child shall testify in a room separate
from the courtroom in the presence of the (a) The prosecutor or the guardian ad litem may
guardian ad litem; one or both of his support apply for an order that the chair of the child or that
persons; the facilitator and interpreter, if any; a screen or other device be placed in the
a court officer appointed by the court; persons courtroom in such a manner that the child cannot
necessary to operate the closed-circuit see the accused while testifying. Before the
television equipment; and other persons guardian ad litem applies for an order under this
whose presence are determined by the court section, he shall consult with the prosecutor or
to be necessary to the welfare and well-being counsel subject to the second and third
of the child; paragraphs of section 25(a) of this Rule. The court
shall issue an order stating the reasons and
(2) The judge, prosecutor, accused, and describing the approved courtroom arrangement.
counsel for the parties shall be in the
courtroom. The testimony of the child shall be (b) If the court grants an application to shield the
transmitted by live-link television into the child from the accused while testifying in the
courtroom for viewing and hearing by the courtroom, the courtroom shall be arranged to
judge, prosecutor, counsel for the parties, enable the accused to view the child.
accused, victim, and the public unless
excluded.
Section 27. Videotaped deposition. -

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(a) The prosecutor, counsel, or guardian ad litem deposition, it is not necessary that the child be
may apply for an order that a deposition be taken able to view an image of the accused.
of the testimony of the child and that it be
recorded and preserved on videotape. Before the (f) The videotaped deposition shall be preserved
guardian ad litem applies for an order under this and stenographically recorded. The videotape and
section, he shall consult with the prosecutor or the stenographic notes shall be transmitted to the
counsel subject to the second and third clerk of the court where the case is pending for
paragraphs of section 25(a). safekeeping and shall be made a part of the
record.
(b) If the court finds that the child will not be able
to testify in open court at trial, it shall issue an (g) The court may set other conditions on the
order that the deposition of the child be taken and taking of the deposition that it finds just and
preserved by videotape. appropriate, taking into consideration the best
interests of the child, the constitutional rights of
(c) The judge shall preside at the videotaped the accused, and other relevant factors.
deposition of a child. Objections to deposition
testimony or evidence, or parts thereof, and the (h) The videotaped deposition and stenographic
grounds for the objection shall be stated and shall notes shall be subject to a protective order as
be ruled upon at the time of the taking of the provided in section 31(b).
deposition. The other persons who may be
permitted to be present at the proceeding are: (i) If, at the time of trial, the court finds that the
child is unable to testify for a reason stated in
(1) The prosecutor; section 25(f) of this Rule, or is unavailable for any
reason described in section 4(c), Rule 23 of the
(2) The defense counsel; 1997 Rules of Civil Procedure, the court may
admit into evidence the videotaped deposition of
(3) The guardian ad litem; the child in lieu of his testimony at the trial. The
court shall issue an order stating the reasons
therefor.
(4) The accused, subject to sub-section (e);
(j) After the original videotaping but before or

(5) Other persons whose presence is
during trial, any party may file any motion for
determined by the court to be necessary to
additional videotaping on the ground of newly
the welfare and well-being of the child;
discovered evidence. The court may order an
additional videotaped deposition to receive the
(6) One or both of his support persons, the newly discovered evidence.
facilitator and interpreter, if any;
Section 28. Hearsay exception in child abuse
(7) The court stenographer; and cases. - A statement made by a child describing
any act or attempted act of child abuse, not
(8) Persons necessary to operate the otherwise admissible under the hearsay rule, may
videotape equipment. be admitted in evidence in any criminal or non-
criminal proceeding subject to the following rules:
(d) The rights of the accused during trial,
especially the right to counsel and to confront and (a) Before such hearsay statement may be
cross-examine the child, shall not be violated admitted, its proponent shall make known to the
during the deposition. adverse party the intention to offer such statement
and its particulars to provide him a fair opportunity
(e) If the order of the court is based on evidence to object. If the child is available, the court shall,
that the child is unable to testify in the physical upon motion of the adverse party, require the child
presence of the accused, the court may direct the to be present at the presentation of the hearsay
latter to be excluded from the room in which the statement for cross-examination by the adverse
deposition is conducted. In case of exclusion of party. When the child is unavailable, the fact of
the accused, the court shall order that the such circumstance must be proved by the
testimony of the child be taken by live-link proponent.
television in accordance with section 25 of this
Rule. If the accused is excluded from the

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(b) In ruling on the admissibility of such hearsay (a) The child witness is unable to testify in court on
statement, the court shall consider the time, grounds and under conditions established under
content and circumstances thereof which provide section 28 (c).
sufficient indicia of reliability. It shall consider the
following factors: (b) The interview of the child was conducted by
duly trained members of a multidisciplinary team
(1) Whether there is a motive to lie; or representatives of law enforcement or child
protective services in situations where child abuse
(2) The general character of the declarant is suspected so as to determine whether child
child; abuse occurred.
(3) Whether more than one person heard the (c) The party offering the videotape or audiotape
statement; must prove that:
(4) Whether the statement was spontaneous; (1) the videotape or audiotape discloses the
identity of all individuals present and at all
times includes their images and voices;
(5) The timing of the statement and the
relationship between the declarant child and
witness; (2) the statement was not made in response
to questioning calculated to lead the child to
make a particular statement or is clearly
(6) Cross-examination could not show the lack
of knowledge of the declarant child; shown to be the statement of the child and not
the product of improper suggestion;
(7) The possibility of faulty recollection of the
declarant child is remote; and (3) the videotape and audiotape machine or
device was capable of recording testimony;
(8) The circumstances surrounding the
(4) the person operating the device was
statement are such that there is no reason to
competent to operate it;
suppose the declarant child misrepresented
the involvement of the accused.
(5) the videotape or audiotape is authentic
and correct; and
(c) The child witness shall be considered
unavailable under the following situations:
(6) it has been duly preserved.
(1) Is deceased, suffers from physical infirmity,
lack of memory, mental illness, or will be The individual conducting the interview of the child
exposed to severe psychological injury; or shall be available at trial for examination by any
party. Before the videotape or audiotape is offered
in evidence, all parties shall be afforded an
(2) Is absent from the hearing and the
opportunity to view or listen to it and shall be
proponent of his statement has been unable
to procure his attendance by process or other furnished a copy of a written transcript of the
proceedings.
reasonable means.
The fact that an investigative interview is not

(d) When the child witness is unavailable, his
videotaped or audiotaped as required by this
hearsay testimony shall be admitted only if
section shall not by itself constitute a basis to
corroborated by other admissible evidence.
exclude from evidence out-of-court statements or
testimony of the child. It may, however, be
Section 29. Admissibility of videotaped and considered in determining the reliability of the
audiotaped in-depth investigative or statements of the child describing abuse.
disclosure interviews in child abuse cases. -
The court may admit videotape and audiotape in-
depth investigative or disclosure interviews as
evidence, under the following conditions:
Section 30. Sexual abuse shield rule. -

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(a) Inadmissible evidence. - The following (6) Other persons as determined by the court.
evidence is not admissible in any criminal
proceeding involving alleged child sexual (b) Protective order. - Any videotape or
abuse: audiotape of a child that is part of the court record
shall be under a protective order that provides as
(1) Evidence offered to prove that the follows:
alleged victim engaged in other sexual
behavior; and (1) Tapes may be viewed only by parties, their
counsel, their expert witness, and the
(2) Evidence offered to prove the sexual guardian ad litem.
predisposition of the alleged victim.
(2) No tape, or any portion thereof, shall be
(b) Exception. - Evidence of specific divulged by any person mentioned in sub-
instances of sexual behavior by the alleged section (a) to any other person, except as
victim to prove that a person other than the necessary for the trial.
accused was the source of semen, injury, or
other physical evidence shall be admissible. (3) No person shall be granted access to the
tape, its transcription or any part thereof
A party intending to offer such evidence must: unless he signs a written affirmation that he
has received and read a copy of the protective
(1) File a written motion at least fifteen order; that he submits to the jurisdiction of the
(15) days before trial, specifically court with respect to the protective order; and
describing the evidence and stating the that in case of violation thereof, he will be
purpose for which it is offered, unless the subject to the contempt power of the court.
court, for good cause, requires a different
time for filing or permits filing during trial; (4) Each of the tape cassettes and transcripts
and thereof made available to the parties, their
counsel, and respective agents shall bear the
(2) Serve the motion on all parties and the following cautionary notice:
guardian ad litem at least three (3) days
before the hearing of the motion. "This object or document and the contents
thereof are subject to a protective order
Before admitting such evidence, the court must issued by the court in (case title) , (case
conduct a hearing in chambers and afford the number) . They shall not be examined,
child, his guardian ad litem, the parties, and their inspected, read, viewed, or copied by any
counsel a right to attend and be heard. The motion person, or disclosed to any person, except as
and the record of the hearing must be sealed and provided in the protective order. No additional
remain under seal and protected by a protective copies of the tape or any of its portion shall be
order set forth in section 31(b). The child shall not made, given, sold, or shown to any person
be required to testify at the hearing in chambers without prior court order. Any person violating
except with his consent. such protective order is subject to the
contempt power of the court and other
Section 31. Protection of privacy and safety. - penalties prescribed by law."
(5) No tape shall be given, loaned, sold, or

(a) Confidentiality of records. - Any record
shown to any person except as ordered by the
regarding a child shall be confidential and kept
court.
under seal. Except upon written request and order
of the court, a record shall only be released to the
following: (6) Within thirty (30) days from receipt, all
copies of the tape and any transcripts thereof
shall be returned to the clerk of court for
(1) Members of the court staff for
safekeeping unless the period is extended by
administrative use;
the court on motion of a party.
(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem; (7) This protective order shall remain in full
(5) Agents of investigating law enforcement force and effect until further order of the court.
agencies; and

________________________________________________________________________________________________
(c) Additional protective orders. - The court his failure to acknowledge the case or recite any
may, motu proprio or on motion of any party, fact related thereto in response to any inquiry
the child, his parents, legal guardian, or the made to him for any purpose.
guardian ad litem, issue additional orders to
protect the privacy of the child. "Records" within the meaning of this sub-section
shall include those which may be in the files of the
(d) Publication of identity contemptuous. - National Bureau of Investigation and with any
Whoever publishes or causes to be published police department or government agency which
in any format the name, address, telephone may have been involved in the case. (Art. 200, P.
number, school, or other identifying D. No. 603)
information of a child who is or is alleged to be
a victim or accused of a crime or a witness Section 32. Applicability of ordinary rules. -
thereof, or an immediate family of the child The provisions of the Rules of Court on
shall be liable to the contempt power of the deposition, conditional examination of witnesses,
court. and evidence shall be applied in a suppletory
character.
(e) Physical safety of child; exclusion of
evidence. - A child has a right at any court Section 33. Effectivity. - This Rule shall take
proceeding not to testify regarding personal effect on December 15, 2000 following its
identifying information, including his name, publication in two (2) newspapers of general
address, telephone number, school, and other circulation.
information that could endanger his physical
safety or his family. The court may, however,
require the child to testify regarding personal Section 21, ROC. Disqualification by reason of
identifying information in the interest of justice. mental incapacity or immaturity. — The
following persons cannot be witnesses:
(f) Destruction of videotapes and
audiotapes. - Any videotape or audiotape of a (a) Those whose mental condition, at the time
child produced under the provisions of this of their production for examination, is such
Rule or otherwise made part of the court that they are incapable of intelligently making
record shall be destroyed after five (5) years known their perception to others;
have elapsed from the date of entry of
judgment.
(b) Children whose mental maturity is such as
to render them incapable of perceiving the
(g) Records of youthful offender. - Where a facts respecting which they are examined and
youthful offender has been charged before of relating them truthfully. (19a)
any city or provincial prosecutor or before any
municipal judge and the charges have been
ordered dropped, all the records of the case People v. de Jesus, 129 SCRA 4 (1984) – even
shall be considered as privileged and may not though feeble minded, there is no showing that
be disclosed directly or indirectly to anyone for she could not convey her ideas by words or signs
any purpose whatsoever. ___ competent; even if she had difficulty
comprehending the questions
Where a youthful offender has been charged and People v. Salomon, 229 SCRA 402 (1993) – being
the court acquits him, or dismisses the case or mental retardate is not per se a disqualification;
commits him to an institution and subsequently although speech was slurred, testimony was
releases him pursuant to Chapter 3 of P. D. No. positive, clear, plain and unambiguous
603, all the records of his case shall also be
People v. Mendoza, G.R. No. 113791, Feb. 2,
considered as privileged and may not be disclosed
1996 – any child, regardless of age, can be a
directly or indirectly to anyone except to determine
witness as long as he meets the qualifications for
if a defendant may have his sentence suspended
competency: observation, recollection, and
under Article 192 of P. D. No. 603 or if he may be
communication
granted probation under the provisions of P. D.
No. 968 or to enforce his civil liability, if said
liability has been imposed in the criminal action. Section 22. Disqualification by reason of
The youthful offender concerned shall not be held marriage. — During their marriage, neither the
under any provision of law to be guilty of perjury or husband nor the wife may testify for or against the
of concealment or misrepresentation by reason of other without the consent of the affected spouse,

________________________________________________________________________________________________
except in a civil case by one against the other, or because it is considered a crime against the wife.
in a criminal case for a crime committed by one When an offense directly attacks, or directly
against the other or the latter's direct descendants impairs the conjugal relation, it comes within the
or ascendants. (20a) exception to the marital disqualification rule.
People v. Castañeda, 88 SCRA 562 (1979) The
PURPOSE: wife can testify against the husband in a case for
To obviate perjury and to prevent domestic falsification of the wife’s signature in public
disunity and unhappiness. documents to sell share of wife in conjugal
REQUISITES: property because it is a crime committed by the
1. The spouse for or against whom the husband against the wife.
testimony is offered is a party to the case;
2. That the spouses are legally married Lezama v Rodriguez, 23 SCRA 1166 (1968) Wife
(includes voidable marriage); who is a co-defendant of her husband in a case of
3. Testimony is offered during the existence collusive fraud, where their interests are not
of the marriage; separate, can not be examined as a hostile
4. Case is not one against the other. witness by the adverse party.
People v. Francisco, 78 Phil. 694 (1947) – when
the husband imputes crime against wife, he
Disqualification by Disqualification by waives the marital disqualification rule.
REASON OF REASON OF
MARRIAGE (sec. 23) MARITAL
PRIVILEGED (sec. 24 Privilege Communication (1998)
[a]) C is the child of the spouses H and W. H sued his wife
Can be invoked only Can be claimed W for judicial declaration of nullity of marriage under
when one of the whether or not the other Article 36 of the Family Code. In the trial, the
spouses is a party to spouse is a party to the following testified over the objection of W: C, H and
the case case D, a doctor of medicine who used to treat W. Rule on
Applies only if marriage Can be claim even if W's objections which are the following:
is still existing when the after the marriage is 1. H cannot testify against her because of the rule on
testimony is offered dissolved marital privilege; [1%]
Constitutes a total Applies only to 2. C cannot testify against her because of the doctrine
prohibition for or confidential
on parental privilege; and [2%]
against the spouse of communications
3. D cannot testify against her because of the doctrine
the witness between the spouses
of privileged communication between patient and
The objection would be
physician. [2%]
raised on the ground of The married person is SUGGESTED ANSWER:
marriage. The married on the stand but the 1. The rule of marital privilege cannot be invoked in
witness would not be objection of the the annulment case under Rule 36 of the Family Code
allowed to take the privileged is raised because it is a civil case filed by one against the other,
stand at all because of when confidential (Sec. 22 , Rule 130. Rules of Court.)
the disqualification. marital communication 2. The doctrine of parental privilege cannot likewise be
Even if the testimony is is inquired into invoked by W as against the testimony of C, their
for or against the child. C may not be compelled to testify but is free to
objecting spouse, the testify against her. (Sec. 25. Rule 130. Rules of Court; Art. 215,
spouse cannot testify Family Code.)
3. D, as a doctor who used to treat W, is disqualified to
NOTE: The disqualification does not apply where testify against W over her objection as to any advice or
an offense directly attacks or directly and vitally treatment given by him or any information which he
impairs the conjugal relations. may have acquired in his professional capacity. (Sec. 24
[c], Rule 130. Rules of Court.)
When there is separation between the spouses, ALTERNATIVE ANSWER:
the marital disqualification rule is sometimes not If the doctor's testimony is pursuant to the
strictly applied (Review Lecture). requirement of establishing the psychological
incapacity of W, and he is the expert called upon to
REASON: Identity of interest disappears. testify for the purpose, then it should be allowed.
(Republic vs. Court of Appeals and Molina, 26S SCRA
Ordoño v. Daquigan, 62 SCRA 270 (1975) The 198.)
wife can therefore testify against her husband in
such a case for rape against her daughter Privilege Communication; Marital Privilege (1989)

________________________________________________________________________________________________
Ody sued spouses Cesar and Baby for a sum of money XYZ, an alien, was criminally charged of promoting
and damages. At the trial, Ody called Baby as his first and facilitating child prostitution and other sexual
witness. Baby objected, joined by Cesar, on the ground abuses under Rep. Act No. 7610. The principal witness
that she may not be compelled to testify against her against him was his Filipina wife, ABC. Earlier, she
husband. Ody insisted and contended that after all, she had complained that XYZ's hotel was being used as a
would just be questioned about a conference they had center for sex tourism and child trafficking. The
with the barangay captain, a matter which is not defense counsel for XYZ objected to the testimony of
confidential in nature. The trial court ruled in favor of ABC at the trial of the child prostitution case and the
Ody. Was the ruling proper? Will your answer be the introduction of the affidavits she executed against her
same if the matters to be testified on were known to husband as a violation of espousal confidentiality and
Baby or acquired by her prior to her marriage to marital privilege rule. It turned out that DEF, the
Cesar? Explain. minor daughter of ABC by her first husband who was
SUGGESTED ANSWER: a Filipino, was molested by XYZ earlier.
No. Under the Rules on Evidence, a wife cannot be Thus, ABC had filed for legal separation from XYZ
examined for or against her husband without his since last year. May the court admit the testimony and
consent, except in civil cases by one against the other, affidavits of the wife, ABC, against her husband, XYZ,
or in a criminal case for a crime committed by one in the criminal case involving child prostitution?
against the other. Since the case was filed by Ody Reason. (5%)
against the spouses Cesar and Baby, Baby cannot be SUGGESTED ANSWER:
compelled to testify for or against Cesar without his Yes. The court may admit the testimony and affidavits of the
consent. (Lezama vs. Rodriguez, 23 SCRA 1166). wife against her husband in the criminal case where it
The answer would be the same if the matters to be involves child prostitution of the wife's daughter. It is not
testified on were known to Baby or acquired by her covered by the marital privilege rule. One exception thereof
is where the crime is committed by one against the other or
prior to her marriage to Cesar, because the marital the latter's direct descendants or ascendants. (Sec. 22, Rule 130).
disqualification rule may be invoked with respect to A crime by the husband against the daughter is a crime
testimony on any fact. It is immaterial whether such against the wife and directly attacks or vitally impairs the
matters were known to Baby before or after her conjugal relation. (Ordono v. Daquigan, 62 SCRA 270 [1975]).
marriage to Cesar.
Privilege Communication; Marital Privilege (2000) Privilege Communication; Marital Privilege (2006)
Vida and Romeo are legally married. Romeo is charged Leticia was estranged from her husband Paul for more
to court with the crime of serious physical injuries than a year due to his suspicion that she was having an
committed against Selmo, son of Vida, stepson of affair with Manuel their neighbor. She was temporarily
Romeo. Vida witnessed the infliction of the injuries on living with her sister in Pasig City. For unknown
Selmo by Romeo. The public prosecutor called Vida to reasons, the house of Leticia's sister was burned, killing
the witness stand and offered her testimony as an the latter. Leticia survived. She saw her husband in the
eyewitness. Counsel for Romeo objected on the vicinity during the incident. Later he was charged with
ground of the marital disqualification rule under the arson in an Information filed with the Regional Trial
Rules of Court. a) Is the objection valid? (3%) b) Will Court, Pasig City. During the trial, the prosecutor
your answer be the same if Vida’s testimony called Leticia to the witness stand and offered her
is offered in a civil case for recovery of personal testimony to prove that her husband committed arson.
property filed by Selmo against Romeo? (2%) Can Leticia testify over the objection of her husband
SUGGESTED ANSWER: on the ground of marital privilege? (5%)
(a) No. While neither the husband nor the wife may ALTERNATIVE ANSWER:
testify for or against the other without the consent of No, Leticia cannot testify over the objection of her
the affected spouse, one exception is if the testimony husband, not under marital privilege which is inapplicable
of the spouse is in a criminal case for a crime and which can be waived, but she would be barred under
committed by one against the other or the latter’s Sec. 22 of Rule 130, which prohibits her from testifying
direct descendants or ascendants. (Sec, 22, Rule 130). The and which cannot be waived (Alvarez v. Ramirez, G.R.
No. 143439, October 14, 2005).
case falls under this exception because Selma is the ALTERNATIVE ANSWER:
direct descendant of the spouse Vide. Yes, Leticia may testify over the objection of her
(b) No. The marital disqualification rule applies this husband. The disqualification of a witness by reason of
time. The exception provided by the rules is in a civil marriage under Sec. 22, Rule 130 of the Revised Rules
case by one spouse against the other. The case here of Court has its exceptions as where the marital
involves a case by Selmo for the recovery of personal relations are so strained that there is no more harmony
property against Vida’s spouse, Romeo. to be preserved. The acts of Paul eradicate all major
aspects of marital life. On the other hand, the State has
Privilege Communication; Marital Privilege (2004)

________________________________________________________________________________________________
an interest in punishing the guilty and exonerating the ALTERNATIVE ANSWER: Yes. Nenita may
innocent, and must have the right to offer the be allowed to testify against Walter. It is
testimony of Leticia over the objection of her husband well settled that the marital
(Alvarez v. Ramirez, G.R. No. 143439, October 14, 2005). disqualification rule does not apply when
the marital and domestic relations
between spouses are strained.
Privilege Communication (2013) No.IX. For In Alvarez vs. Ramirez, G.R. No. 143439,
over a year, Nenita had been estranged from October 14, 2005, the Supreme Court
her husband Walter because of the latter’s citing People vs. Castaneda, 271 SCRA
suspicion that she was having an affair with 504, held that the act of private
Vladimir, a barangay kagawad who lived in respondent in setting fire to the house of
nearby Mandaluyong. Nenita lived in the his sister-in-law Susan Ramirez, Knowing
meantime with her sister in Makati. One day, fully well that his wife was there, and in
the house of Nenita’s sister inexplicably fact with the alleged intent of injuring the
burned almost to the ground. Nenita and her latter, is an act totally alien to the
sister were caught inside the house but harmony and confidences of marital
Nenita survived as she fled in time, while her relation which the disqualification
sister tried to save belongings and was primarily seeks to protect. The criminal
caught inside when the house collapsed. act complained of had the effect of
As she was running away from the burning directly and vitally impairing the conjugal
house, Nenita was surprised to see her relation. It underscored the fact that the
husband also running away from the scene. marital and domestic relations between
Dr. Carlos, Walter’s psychiatrist who lived her and the accused-husband have become
near the burned house and whom Walter so strained that there is no more
medically consulted after the fire, also saw harmony, peace or tranquillity to be
Walter in the vicinity some minutes before preserved. Hence, the identity is non-
the fire. Coincidentally, Fr. Platino, the existent. In such a situation, the security
parish priest who regularly hears Walter’s and confidences of private life which the
confession and who heard it after the fire, law aims to protect are nothing but ideals
also encountered him not too far away from which through their absence, merely leave
the burned house. Walter was charged with a void in the unhappy home. Thus, there
arson and at his trial, the prosecution moved is no reason to apply the Marital
to introduce the testimonies of Nenita, the Disqualification Rule.
doctor and the priest-confessor, who all saw
Walter at the vicinity of the fire at about the (B) May the testimony of Dr. Carlos, Walter’s
time of the fire. (A) May the testimony of psychiatrist, be allowed over Walter’s
Nenita be allowed over the objection of objection? (3%) SUGGESTED ANSWER: Yes.
Walter? (3%) SUGGESTED ANSWER: The testimony of Walter‟s psychiatrist
No. Nenita may not be allowed to testify may be allowed. The privileged
against Walter. Under the Marital communication contemplated under Sec.
Disqualification Rule, during their 24 (c) Rule 130 of the Rules on Evidence
marriage, neither the husband nor the involves only persons authorized to
wife may testify for or against the other practice medicine, surgery or obstetrics. It
without the consent of the affected does not include a Psychiatrist. Moreover,
spouse, except in a civil case by one the privileged communication applies only
against the other, or in a criminal case for in civil cases and not in a criminal case
a crime committed by one against the for arson.
other or the latter‟s direct descendants or Besides, the subject of the testimony of
ascendants (Section 22, Rule 130, Rules Dr. Carlos was not in connection with the
on Evidence). The foregoing exceptions advice or treatment given by him to
cannot apply since it only extends to a Walter, or any information he acquired in
criminal case of one spouse against the attending to Walter in a professional
other or the latter‟s direct ascendants or capacity. The testimony of Dr. Carlos is
descendants. Clearly, Nenita is not the limited only to what he perceived at the
offended party and her sister is not her vicinity of the fire and at the time of the
direct ascendant or descendant for her to fire.
fall within the exception.

________________________________________________________________________________________________
(C) May the testimony of Fr. Platino, the marital disqualification rule because she is
priest-confessor, be allowed over Walter’s not the wife of Mabini. Besides, Graciana
objection? (3%) SUGGESTED ANSWER: Yes. will identify only the cellphone as that of
The Priest can testify over the objection her husband Emilio, not the messages
of Walter. The disqualification requires therein which to her are hearsay.
that the same were made pursuant to a
religious duty enjoined in the course of (C) If Mabini’s objection in question B was
discipline of the sect or denomination to overruled, can he object to the presentation
which they belong and must be of the text message on the ground that it is
confidential and penitential in character, hearsay? (2%) SUGGESTED ANSWER: No,
e.g., under the seal of confession (Sec. 24 Gregoria‟s text message in Emilio‟s
(d) Rule 130, Rules on Evidence). Here, the cellphone is not covered by the hearsay
testimony of Fr. Platino was not rule because it is regarded in the rules of
previously subject of a confession of evidence as independently relevant
Walter or an advice given by him to Walter statement: the text message is not to
in his professional character. The prove the truth of the fact alleged therein
Testimony was merely limited to what Fr. but only as to the circumstances of
Platino perceived “at the vicinity of the whether or not premeditation exists.
fire and at about the time of the fire.”
Hence, Fr. Platino may be allowed to (C) Suppose that shortly before expired,
testify. Emilio was able to send a text message to his
wife Graciana reading “Nasaksak ako. D na
Privilege Communication; Marital me makahinga. Si Mabini ang may gawa
Privilege (2010) No. I. On March 12, 2008, ni2.” Is this message admissible as a dying
Mabini was charged with Murder for fatally declaration? Explain. (3%) SUGGESTED
stabbing Emilio. To prove the qualifying ANSWER: Yes, the text message is
circumstance of evident premeditation, the admissible as a dying declaration since
prosecution introduced on December 11, the same came fdrom the victim who
2009 a text message, which Mabini’s “shortly” expired and it is in respect of
estranged wife Gregoria had sent to Emilio on the cause and circumstance of his death.
the eve of his death, reading: “Honey, The decisive factor that the message was
pa2tayin u ni Mabini. Mtgal n nyang plano made and sent under consciousness of an
i2. Mg ingat u bka ma tsugi k.” impending death, is evidently attendant
(A) A subpoena ad testificandum was served from the victim‟s statement: “D na me
on Gregoria for her to be presented for the makahinga” and the fact that he died
purpose of identifying her cellphone and the shortly after he sent the text message.
tex message. Mabini objected to her However, cellphone messages are regarded
presentation on the ground of marital as electronic evidence, and in a recent
privilege. Resolve. SUGGESTED ANSWER: case (Ang vs. Court of Appeals et al., GR
The objection should be sustained on the NO. 182835, April 20, 2010), the Supreme
ground of the marital disqualification rule Court ruled that the Rules on Electronic
(Rule 130, Sec. 22), not on the ground of Evidence applies only to civil actions,
the “marital privilege” communication quasi-judicial proceedings and
rule (Rule 130, Sec. 24). The marriage administrative proceeding, not to criminal
between Mabini and Gregoria is still actions.
subsisting and the situation at bar does Note: (Rules on electronic evidence is now
not come under the exceptions to the applicable in criminal cases – Genesis)
disqualification by reason of marriage.
ALTERNANTIVE ANSWER: No, the text
(B) Suppose Mabini’s objection in question A message is not admissible as a dying
was sustained. The prosection thereupon declaration because it lacks indication
announced that it would be presenting that the victim was under consciousness
Emilio’s wife Graciana to identify Emilio’s of an impending death. The statement “D
cellphone bearing Gregoria’s text message. na me makahinga” is still unequivocal in
Mabini objected again. Rule on the objection. the text message sent that does not imply
(2%) SUGGESTED ANSWER: The objection consciousness of forth-coming death.
should be overruled. The testimony of
Graciana is not covered by the said

________________________________________________________________________________________________
MARRYING THE WITNESS Incompetency applies whether the deceased died

An accused can effectively “seal the lips” of a before or after the commencement of the action
witness by marrying the witness. As long as valid against him if at the time the testimony is given he
marriage is in existence at the time of the trial, the was already dead and cannot disprove it.
witness spouse cannot be compelled to testify
even where the crime charge is against the NOTE: Only the parties are barred, but the
witness person and even though the marriage was witnesses other than that of the parties can testify.
entered into for the express purpose of
suppressing the testimony.
ASSIGNOR (under this section)
It pertains to the assignor of a cause of action
WHO MAY OBJECT: which has already arisen and not assignor of a
It is ONLY the spouse-party and not the other right before any cause of action accrued.
spouse who is offered as a witness.
Admissibility; Death of Adverse Party (2007) No.II. (a)
This is a testimonial disqualification, as opposed The surviving parties rule bars Maria from testifying for
to the testimonial privilege of ascendants and the claimant as to what the deceased Jose had said to
descendants (Rule 130 §25). Hence, the witness her, in a claim filed by Pedro against the estate of Jose.
has no say whether the objection is to be raised or (3%) SUGGESTED ANSWER: False. The said rule bars
not. The holder of the privilege is the spouse- only parties-plaintiff and their assignors, or persons
litigant. When the spouse-litigant consents to the prosecuting a claim against the estate of a deceased;
testimony, the spouse-witness must testify
it does not cover Maria who is a mere witness.
whether he wants to or not.
Furthermore, the disqualification is in respect of any
matter of fact occurring before the death of said
deceased (Sec. 23, Rule 130, Rules of Court, Razon v.
Intermediate Appellate Court, 207 SCRA 234 [1992]).
Section 23. Disqualification by reason of death It is Pedro who filed the claim against the estate of
or insanity of adverse party. — Parties or Jose.
assignor of parties to a case, or persons in whose
behalf a case is prosecuted, against an executor MARITAL
or administrator or other representative of a DEAD MAN’S DISQUALIFICATION
deceased person, or against a person of unsound STATUTE RULE
mind, upon a claim or demand against the estate Only partial
of such deceased person or against such person disqualification as the
of unsound mind, cannot testify as to any matter of witness is not It is a complete and
fact occurring before the death of such deceased completely disqualified absolute disqualification
person or before such person became of unsound but is only prohibited
mind. (20a) from testifying on the
matters specified
DEADMAN’S STATUTE/THE RULE ON therein
SURVIVING PARTIES Applies only to a civil Applies to civil or
case or special criminal case, subject
REQUISITES: proceeding over the only to the exceptions
1. The witness is a party or assignor of a estate of the deceased provided therein
party to a case or persons on whose or insane person
behalf the case is prosecuted;
2. The action is against the executor or PURPOSE: It is designed to close the lips of the
administrator or other representative of party plaintiff when death has permanently closed
the deceased person or a person of the lips of the party defendant in order to remove
unsound mind; from the surviving party the temptation to give
3. The subject matter of the action is a claim false testimony and the possibility of fictitious
against the estate of such deceased claims against the deceased.
person or person of unsound mind;
4. The testimony refers to any matter of fact
which occurred before the death of such MATTERS PROHIBITED
deceased person or before such person Matters occurring in the presence and within the
became of unsound mind. hearing of decedent to which he might testify of
his personal knowledge if he where alive.

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Abraham v. Recto-Kasten, 4 SCRA 298 (1962) A

FACTS FAVORABLE TO THE DECEASED ARE cross-examination of the disqualified witness is a
NOT PROHIBITED waiver of the dead man’s privilege, even if there
Inasmuch as the statutes are designed to protect was a continuing objection.
the interest of a deceased or insane person, they
Lichauco v. Atlantic Gulf, 84 Phil. 330 (1949) This
do not exclude testimonies which are favorable to
in effect ruled that the Dead Man’s statute can not
the representative of such person.
be invoked against a plaintiff-corporation. Interest
no longer disqualifies a witness.
DEAD MAN’S STATUTE DOES NOT APPLY IN
Officers/stockholder of corporation may testify in a
THE FOLLOWING:
case filed against the estate of a deceased by the
1. Testimonies of mere witnesses who are
corporation
not party plaintiffs, nor their assignors, nor
persons in whose behalf the case is Escolin: In an action where the administrator is the
prosecuted; plaintiff, the defendant may testify on facts
2. If the plaintiff is the executor or occurring prior to the death of the decedent.
administrator or other representative of
Tongco v. Vianzon, 50 Phil 698 (1927) – action
the deceased or person of unsound mind;
must be brought against the estate, not by the
3. In an action against a partnership;
estate, to be covered under the dead man’s
4. If the person or persons mentioned under
the rule files a counterclaim; statute
5. When the testimony refers to fraudulent Escolin: If there is no instrument evidencing the
transactions committed by the persons claim, it would be difficult to prove the claim in the
mentioned in the rule, provided that fraud estate proceeding because of the dead man’s
has been clearly established by other statute. However, if there is such an instrument, it
evidence; is not barred by the dead man’s statute (Neibert v.
6. When there is waiver; Neibert)
7. When the testimony of a plaintiff refers to
the non-occurrence of a fact because in Goñi v. CA, 144 SCRA 222 (1986) – heirs of a
that case, the plaintiff does not testify on deceased are “representatives” within the ambit of
the occurrence of a fact but of its non- the dead man’s statute; waived by defendant if he
occurrence; files counterclaim against plaintiff; adverse party
8. In cadastral cases since there is neither may testify to transactions or communications with
plaintiff nor defendant; deceased which were made with an agent of such
9. Testimony on the possession by witness person if the agents is still alive and can testify as
of a written instrument made by the long as it is confined to the transactions
deceased, as such fact exists even after
the decedent’s demise. Section 24. Disqualification by reason of
privileged communication. — The following
CASES: persons cannot testify as to matters learned in
confidence in the following cases:
Razon v. IAC, 207 SCRA 234 (1992) The dead
man’s statute does not apply where the case is (a) The husband or the wife, during or
filed by the estate. Besides, cross-examination of after the marriage, cannot be examined
the witness is a waiver of the privilege. without the consent of the other as to any
communication received in confidence by
Reyes v. Wells, 54 Phil 102 (1929) If the witness
one from the other during the marriage
sought to be disqualified is not the plaintiff (e.g.
except in a civil case by one against the
disinterested 3rd party), the dead man’s statute is
other, or in a criminal case for a crime
not applicable.
committed by one against the other or the
Guerrero v. St. Clare’s Realty, 124 SCRA 553 latter's direct descendants or ascendants;
(1983) Mere witnesses not parties to the case are
not disqualified by the dead man’s statute. REQUISITES:
Furthermore, the rule requires that the defendant 1. There was a valid marital relation;
must be the estate. It does not apply where the 2. The privileged is invoked with
heirs are being sued in their individual capacities. respect to a confidential
“Representatives” are only those who, like the information between the spouses
executor, one sued in their representative, not during said marriage; and
personal, capacity

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3. The spouse against whom the

evidence is offered has not given PURPOSE: To encourage full disclosure
his/her consent to such testimony. by client to his attorney of all pertinent
matters so as to further the administration
NOTE: There is presumption of of justice.
confidentiality on all communication
between husband and wife. TEST: Whether the communications are
made to the attorney with a view of
Communication overheard by third obtaining from him professional
persons without the knowledge of the assistance or advice regardless of
spouses is still confidential but third party whether there is a pending or merely
is not disqualified to testify. Note, that the impending litigation or any litigation.
testimony of the 3rd person may be
hearsay and may not be admitted.
However, it may be admitted for the Attorney-Client Privilege DOES NOT
purpose of or as an evidence of the fact APPLY to communications which are:
that said spouse confided to the other 1. Intended to be made public;
spouse about certain matter [Independent 2. Intended to be communicated to
Relevant Statement]. others;
3. Received from 3rd persons not
Where there is collusion and voluntary acting as agents or in behalf of
disclosure to third party, the latter the client;
becomes an agent and cannot testify. 4. Intended for an unlawful purpose;
5. Made in the presence of third
Communication in furtherance of fraud parties who are strangers to the
and crime is not privileged. attorney-client relationship.
(b) An attorney cannot, without the GR: A lawyer may not invoke the privilege
consent of his client, be examined as to and refuse to divulge the name or identity
any communication made by the client to of his client.
him, or his advice given thereon in the
course of, or with a view to, professional EXCEPTIONS:
employment, nor can an attorney's 1. Where a strong possibility exists
secretary, stenographer, or clerk be that revealing the client’s name
examined, without the consent of the would implicate the client in the
client and his employer, concerning any very activity for which he sought
fact the knowledge of which has been the lawyer’s advice;
acquired in such capacity; 2. Where disclosure would open the
client to civil liability;
3. Where the prosecutors have no
case against the client, unless by
revealing the client’s name, the
REQUISITES: said name would furnish the
1. Witness is a lawyer; missing link that would form the
2. There is an attorney-client chain of testimony necessary to
relationship; convict an individual for a crime
3. The privileged is invoked with (Regala vs. Sandiganbayan, 262
respect to a confidential SCRA 122).
communication between them in
the course of professional
employment; WORK-PRODUCT RULE
4. The client has not given consent The court cannot demand that the
to the attorney’s testimony prepared draft of a lawyer regarding a
thereon; or if the attorney’s case be produced in court.
secretary, stenographer, or clerk
is sought to be examined, that
both the client and the attorney Privilege Communication; Lawyer-Client
have not given their consent (2008)
thereto.

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No.XIV. On August 15, 2008, Edgardo interrogatories to Ely, asking whether

committed estafa against Petronilo in the statements of witnesses were obtained; if
amount of P3 Million. Petronilo brought his written copies were to be furnished; if oral,
complaint to the National Bureau of the exact provision were to be set forth in
Investigation, which found that Edgardo had detail. Ely refused to comply, arguing that
visited his lawyer twice, the first time on the documents and information asked are
August 14, 2008 and the second on August privileged communication. Is the contention
16, 2008; and that both visits concerned the tenable? Explain (4%)
swindling of Petronilo. During the trial of SUGGESTED ANSWER: Yes, the lawyer-
Edgardo, the RTC issued a subpoena ad client privilege covers any communication
testificandum to Edgardo’s lawyer for him to made by the client to the lawyer, or the
testify on the conversations during their first lawyer‟s advice given thereon in the
and second meetings. May the subpoena be course of, or with a view to professional
quashed on the ground of privileged employment. The documents and
communication? Explain fully. (4%) information sought were gathered and
SUGGESTED ANSWER: prepared pursuant to the engagement of
Yes, the mantle of privileged Ely as a lawyer for the company (Air
communication based on lawyer-client Philippines Corporation v. Pennswell, Inc.,
relationship protects the communication GR No. 172835, 13 December 2007). Sec.
between a lawyer and his client against 5, Rule 25 of the Rules of Court provides
any adverse party as in this case. The that interrogatories may relate to any
subpoena requiring the lawyer to testify matter that can be required into under
can be quashed on the ground of Sec. 2, Rule 23 o depositions and
privileged communication (See Regala v. discovery refers to privileged confidential
Sandiganbayan, GR No. 105938, 20 communications under Sec. 24, Rule 130.
September 1996). Sec. 24 (b) Rule 130
provides that an attorney cannot, without
the consent of his client be examined in (c) A person authorized to practice
any communication made to him by his medicine, surgery or obstetrics cannot in a
client to him, or his advice given thereon, civil case, without the consent of the
including his secretary, stenographer, patient, be examined as to any advice or
clerk concerning any fact the knowledge treatment given by him or any information
of which has been acquired in such which he may have acquired in attending
capacity. However, where the subject such patient in a professional capacity,
matter of the communication involves the which information was necessary to
commission of the crime, in which the enable him to act in capacity, and which
lawyer himself is a participant or would blacken the reputation of the
conspirator, then the same is not covered patient;
by the privilege. Moreover, if the
substance of the communication can be REQUISITES:
established by independent evidence, the 1. Witness is a person authorized to
lawyer maybe compelled to testify. practice medicine, surgery, or
obstetrics;
Privilege Communication; Lawyer-Client 2. The physician is authorized to
(2008) No.XX. A tugboat owned by Speedy practice medicine, surgery or
Port Service, Inc. (SPS) sank in Manila Bay obstetrics;
while helping tow another vessel, drowning 3. The information was acquired or
five (5) crews in the resulting shipwreck. At the advice or treatment was given
the maritime board inquiry, the four (4) by him in his professional capacity
survivors testified. SPS engaged Atty. Ely to for the purpose of treating or
defend it against potential claims and to sue curing the patient;
the company owning the other vessel for 4. The information, advice or
damages to tug. Ely obtained signed treatment, if revealed, would
statements from the survivors. He also blacken the reputation of the
interviewed other persons, in some instance patient; and
making memoranda. The heirs of the five (5) 5. The privilege is invoked in a civil
victims filed an action for damages against case whether the patient is a
SPS. Plaintiffs’ counsel sent written party thereto or not.

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waives any privilege he may have in that action
PURPOSE: It is intended to facilitate and or any other involving the same controversy,
make safe full and confidential disclosure regarding the testimony of every other person
who has examined or may thereafter examine
by the patient to the physician of all facts,
him in respect of the same mental or physical
circumstances and symptoms examination.
untrammeled by apprehension of their
subsequent and enforced disclosure and Dentist, pharmacist or nurses are
publication on the witness stand to the disqualified if acting as agents.
end that the physician may form a correct
opinion and enabled safely and TEST: Whether the 3rd person was an agent
efficaciously to treat his patient. of the doctor in a professional capacity.
WHEN IS PHYSICIAN IS ACTING IN HIS SCOPE OF PROHIBITION
PROFESSIONAL CAPACITY It applies not only to communication but also
It is when he attends to his patient for to opinions or prescription.
curative, preventive or palliative treatment.
Not all information obtained
Note: It is essential that at the time the confidentially by the physician from
communication were made the the patient and necessary for his
professional relationship of patient and treatment are within the privilege. The
physician existed. information held to be privileged is
that would blacken he reputation of
WHEN PRIVILEGE DOES NOT APPLY: the patient.
1. Where the communication is not
given in confidence; NOTE: It is only the tenor of the
2. The communication is NOT communication by patient to the doctor that is
relevant to the professional privileged. Hence, the fact of communication,
employment; the date and frequency of consultation with
3. The communication was made for the doctor are excluded (Lim vs. CA, 214
an unlawful purpose; SCRA 273 [1992]).
4. The information was intended to
be made public; DURATION OF PROHIBITION
5. There was waiver of privilege It continues after the death but it may be waived
either by provision of law or by the personal representative of the decedent.
contract;
Lim v. CA, 214 SCRA 273 (1992) The physician-
Waivers of the physician-patient patient privilege is not violated by permitting
privilege, Rule 28, Sec. 3 and 4 physician to give expert testimony regarding
hypothetical facts.
Sec. 3. Report of findings. — If
requested by the party examined, the party Krohn v. CA, 233 SCRA 146 (1994) Non-physician
causing the examination to be made shall testimony on a medical psychologist’s report is not
deliver to him a copy of a detailed written covered by the physician patient privilege. This is
report of the examining physician setting out
hearsay but there was no objection.
his findings and conclusions. After such
request and delivery, the party causing the
examination to be made shall be entitled upon
request to receive from the party examined a
like report of any examination, previously or (d) A minister or priest cannot, without the
thereafter made, of the same mental or consent of the person making the
physical condition. If the party examined confession, be examined as to any
refuses to deliver such report, the court on confession made to or any advice given
motion and notice may make an order by him in his professional character in the
requiring delivery on such terms as are just, course of discipline enjoined by the
and if a physician fails or refuses to make such church to which the minister or priest
a report the court may exclude his testimony if belongs;
offered at the trial. (3a)
Sec. 4. Waiver of privilege. — By
requesting and obtaining a report of the REQUISITES:
examination so ordered or by taking the
deposition of the examiner, the party examined 1. Witness is a minister or priest;

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2. The confession must have been without the consent of (another).” The (law) Rule
made to the priest in his does not say that one can not testify or be
professional capacity in the examined over the objection of another. The
course of discipline enjoined by wording of the (law) Rule is to the effect that an
the church to which he belongs; objection of the other party in the privileged
3. The communications made were communication is not necessary for the privilege
confidential and penitential in to hold. Consent of the other party in the privileged
character. communication is an act that needs to be proved
for the testimony to be admitted. This is not to say
NOTE: It is respect for religious order and that failure of a such a party to object will never
the confessor that adheres to the divine render such testimony admissible. This is to say
concept of atonement which spawned the that where the other party to the privileged
privilege. communication is not a litigant in the case, and
privileged communication is offered in evidence
Its rationale is to allow and encourage without the consent of such party, the litigant
individuals to fulfill their religious, against whom the testimony is offered may object
emotional or other needs by protecting to its admission on the ground of privileged
confidential disclosures to religious communication. Where the other party in the
practitioners (Peralta, Jr.) privileged communication is a litigant, then his
failure to object will be taken as a consent to the
(e) A public officer cannot be examined testimony or a waiver of a privilege.
during his term of office or afterwards, as
to communications made to him in official OTHER PRIVILEGED MATTERS
confidence, when the court finds that the
public interest would suffer by the 1. The guardian ad litem shall not testify in
disclosure. (21a) any proceeding concerning any
information, statement, or opinion
received from the child in the course of
serving as such, unless the court finds it
necessary to promote the best interest of
REQUISITES: the child (sec. 5(e), Rule on the
1. Witness is a public officer; Examination of Child Witness);
2. The communication was given to 2. Editors may not be compelled to disclose
the public officer in confidence; the source of published news;
3. The communication was given
during the term of office of the (a) Newsman’s Privilege
public officer; RA 53 as amended by RA 1477
4. Public interest would suffer by the Sec. 1. Without prejudice to his liability
disclosure of the communication. under the civil and criminal laws, the
publisher, editor, columnist or duly accredited
NOTES on sec. 24 in general: WHO MAY reporter of any newspaper, magazine or
ASSERT PRIVILEGE: periodical of general circulation cannot be
1. Holder of the privilege; compelled to reveal the source of any news-
2. Authorized person; and report or information appearing in said
3. Persons to whom privileged publication which was related in confidence to
communication is made. such publisher, editor or reporter unless the
court or a House or committee of Congress
We apply the privileged communication to both finds that such revelation is demanded by the
civil and criminal cases EXCEPT as to the doctor- security of the State.
patient privilege, which is applicable only in civil
cases 3. Voters may not be compelled to disclose
whom they voted for;
Unless waived, the disqualification under sec. 24 4. Trade secrets;
remains even after the various relationships 5. Bank deposits under RA 1405 (subject to
therein have ceased to exist. some exceptions);
Note that the privilege applies only to
Note that the wording of the (law) Rule is to the bank deposits. As to other property being
effect that “(someone) may not be examined held by a bank, bank personnel may be

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examined upon order of a court (Sec. 55.1 3. Admissions and Confessions

[d], RA 8791, General Banking Act of
2000). NOTE: Section 26 to 33 speak of
EXTRAJUDICIAL admissions and confessions.
6. Informer’s privilege--- the Prosecutor may
not be compelled to present an informer to Section 26. Admission of a party. — The act,
protect his identity and when his testimony declaration or omission of a party as to a relevant
would be merely cumulative and fact may be given in evidence against him. (22)
corroborative (Herrera, p. 363).
ADMISSION
It refers to any extrajudicial statement or conduct
2. Testimonial Privilege by a party to the present litigation that is
inconsistent with a position the party presently
Section 25. Parental and filial privilege. — No takes.
person may be compelled to testify against his
parents, other direct ascendants, children or other Admissibility; Admission of Guilt (2008)
direct descendants. (20a) No. XVI. The mutilated cadaver of a woman
was discovered near a creek. Due to
REASON for the rule: To preserve family witnesses attesting that he was the last
cohesion. person seen with the woman when she was
still alive, Carlito was arrested within five
Notes: There is no distinction between legitimate hours after the discovery of the cadaver and
or illegitimate relations. brought to the police station. The crime
laboratory determined that the woman had
Note that this is a testimonial privilege, not a been raped. While in police custody, Carlito
testimonial disqualification, found in §22-24 of broke down in the presence of an assisting
Rule 130 [careful not to be confused in the counsel orally confessed to the investigator
multiple use of the word “privilege”]. Here, the that he had raped and killed the woman,
witness is the holder of the privilege and has the detailing the acts he had performed up to his
power to invoke or waive the privilege. The dumping of the body near the creek. He was
relative against whom he is testifying can not genuinely remorseful. During the trial, the
invoke nor waive the privilege. However this must state presented the investigator to testify on
be construed in the light of Art. 215 of the Family the oral confession of Carlito. Is the oral
Code confession admissible in evidence of guilt?
Art. 215. No descendant shall be compelled, in a (4%) SUGGESTED ANSWER: The
criminal case, to testify against his parents and declaration of the accused expressly
grandparents, except when such testimony is acknowledging his guilt, in the presence of
indispensable in a crime against the descendant or assisting counsel, may be given in
by one parent against the other. evidence against him and any person,
otherwise competent to testify as a
Hence, a descendant may be compelled to testify
witness, who heard the confession is
in a criminal case where
competent to testify as to the substance
the descendant-witness himself is the victim, or to what he heard and understood it. What
is crucial here is that the accused was
informed of his right to an attorney and
the descendant-witness’s parent commits a crime that what he says may be used in evidence
against the descendant-witness’s other against him. As the custodial confession
parent. was given in the presence of an assisting
Note that an ascendant may not be compelled to counsel, Carlito is deemed fully aware of
testify even if it is a crime by the descendant the consequences of his statements
against the ascendant-witness. The ascendant- (People v. Silvano, GR No. 144886, 29
witness may testify voluntarily though. April 2002).
The filial privilege is personal to the witness. The

court may not invoke it for the witness (Review
Lecture). RULE 129, Sec. 4 RULE 130, Sec. 26
Judicial admission Extra-judicial admission
In the course of a

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proceeding in the same Out of court declaration present claims and

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

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by the accused may be received in evidence as an GR: In CRIMINAL CASES, an offer of

implied admission of guilt. compromise by the accused may be received in
evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted
offer of a plea of guilty to lesser offense, is not EXCEPTIONS:
admissible in evidence against the accused who 1. Those involving quasi-offenses (criminal
made the plea or offer. negligence);
2. Those cases falling under the
Katarungang Pambarangay Law;
An offer to pay or the payment of medical, hospital
3. Plea of guilty later withdrawn;
or other expenses occasioned by an injury is not
4. An unaccepted offer of plea bargaining;
admissible in evidence as proof of civil or criminal
5. An offer to pay or payment of medical,
liability for the injury. (24a)
hospital or other expenses occasioned by
n injury;
NOTES: 6. Those expressly allowed by law to be
compromised (Tax cases not involving
GR: In CIVIL CASES, an offer of compromise is fraud and not yet filed in court).
not an admission of any liability, and is not
admissible in evidence against the offeror. An offer of compromise that may be considered an
implied admission need not be made by the
EXCEPTION: It is when such offer is clearly not accused himself. It may be made by his counsel,
only to buy peace but amounts to an admission of or relatives, provided it is made with the consent
liability, the offered compromise being directed of the accused or with his knowledge and he does
only to the amount paid (El Varadero de Manila not stop it.
vs. Insular Lumber, 46 Phil. 176).
US v. Torres, 34 Phil. 994 (1916) – offer of
REASON: It is the policy of the law to favor compromise in criminal cases inadmissible when
settlement of disputes, to foster compromises and accused shows that it was made not under a
to promote peace. consciousness of guilt, but merely to avoid
inconvenience of imprisonment or for some other
Bar Exam Question 2012 reason; in this case, the law allowed compromise,
70. Which of the following statements is not thus the offer to compromise is not admitted
accurate?
a. A plea of guilty later withdrawn is
admissible in evidence against the
accused who made the plea. People v. Godoy, 250 SCRA 676 (1995) – offer to
b. An unaccepted offer of a plea of guilty to a compromise made by a person other than the
lesser offense is inadmissible in evidence accused is inadmissible if the accused repudiated
against the accused. the actions of such person by raising the trial
c. An offer to pay or payment of medical court’s admission of evidence of such offer as an
expenses arising from injury is not evidence error.
or proof of civil/criminal liability for the People v. de Guzman, 265 SCRA 228 (1996) –
Injury. the offer to compromise made by a person other
d. In civil cases, an offer of compromise by than the accused was admitted in evidence
the accused is admissible as an implied because the accused failed to repudiate such acts
admission of guilt. by raising the trial court’s admission of evidence
SUGGESTED ANSWERS: (a), A plea of on such offer as an error.
guilty later withdrawn is not admissible in
People v. Yparriguirre, 268 SCRA 35 (1997) –
evidence against the accused who made
whether a complaint has been filed or not is
the plea (Rule 130, Sec. 27, Rules of irrelevant as to the admissibility of an offer to
Court). (d), In civil cases, an offer of compromise.
compromise is not an admission of any
liability, and is not admissible in evidence
against the offeror. (Rule 130, Sec.27, Admissibility; Offer to Settle; Implied
Rules of Court). Admission of Guilt (2008) No.VIII. Bembol
was charged with rape. Bembol’s father,
Ramil, approached Artemon, the victim’s
father, during the preliminary investigation

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and offered P1 Million to Artemon to settle contemplation of mutual secure relief against a
the case. Artemon refused the offer. (A) concessions liability recognized as
During trial, the prosecution presented such.
Artemon to testify on Ramil’s offer and
thereby establish and implied admission of Although a judicial or extrajudicial amicable
guilt. Is Ramil’s offer to settle admissible in settlement does not bear the court ‘s approval, the
evidence? (3%) SUGGESTED ANSWER: Yes, agreement can become a source of rights and
the offer to settle by the father of the obligation between the parties (Iloilo Traders
accused, is admissible in evidence as an Finance Inc. vs. Heirs of Soriano, GR NO.
implied admission of guilt. (Peo v. 149683, June 16, 2003).
Salvador, GR No. 136870-72, 28 January
2003) Admissibility; Offer to Pay Expenses (1997)
ALTERNATIVE ANSWER: No, Under Sec. A, while driving his car, ran over B. A visited B at the
27, Rule 130 of the Rules of Court, it is hospital and offered to pay for his hospitalization
the offer of compromise by the accused expenses. After the filing of the criminal case against A
that may be received in evidence as an for serious physical injuries through reckless
implied admission of guilt. The testimony imprudence. A's insurance carrier offered to pay for
of Artemon would cover the offer of Ramil the injuries and damages suffered by B. The offer was
and not an offer of the accused himself. rejected because B considered the amount offered as
(Peo v. Viernes, GR Nos. 136733-35, 13 inadequate. a) Is the offer by A to pay the
December 2001) hospitalization expenses of B admissible in evidence?
b) Is the offer by A's insurance carrier to pay for the
(B) During the pretrial ,Bembol personally injuries and damages of B admissible in evidence?
offered to settle the case for P1 Million to the SUGGESTED ANSWER:
private prosecutor, who immediately put the (a) The offer by A to pay the hospitalization expenses
offer on record in the presence of the trial of B is not admissible in evidence to prove his guilt in
judge. Is Bembol’soffer a judicial admission of both the civil and criminal cases. (Rule 130, Sec. 27, fourth
par.).
his guilt. (3%) SUGGESTED ANSWER: Yes,
Bembol‟s offer is an admission of guilt
(b) No. It is irrelevant. The obligation of the insurance
(Sec. 33 Rule 130). If it was repeated by company is based on the contract of insurance and is
the private prosecutor in the presence of not admissible in evidence against the accused because
judge at the pretrial the extrajudicial it was not offered by the accused but by the insurance
confession becomes transposed into a company which is not his agent.
judicial confession. There is no need of
assistance of counsel. (Peo v. Buntag, GR Section 28. Admission by third party. — The
No. 123070, 14 April 2004). rights of a party cannot be prejudiced by an act,
declaration, or omission of another, except as
hereinafter provided. (25a)
GOOD SAMARITAN RULE

An offer to pay or payment of medical, hospital
(43) Ben testified that Jaime, charged with
and other expenses occasioned by the injury is
robbery, has committed bag-snatching three
not admissible in evidence as proof of civil and
times on the same street in the last six
criminal liability for the injury.
months. Can the court admit this testimony
as evidence against Jaime? (A) No, since
REASON: It is to encourage the giving of
there is no showing that Ben witnessed the
charitable and meritorious aid to the victims of
accidental harm plus a concern that such payment past three robberies. (B) Yes, as evidence of
may have been prompted solely by humanitarian his past propensity for committing robbery.
motives. (C) Yes, as evidence of a pattern of criminal
behavior proving his guilt of the present
OFFER OF ORDINARY offense. (D) No, since evidence of guilt of a
COMPROMISE ADMISSION past crime is not evidence of guilt of a
The proposal is present crime.
tentative and any The intention is
statement made in apparently to admit The Principle of RES INTER ALIOS ACTA
connection with it is liability ALTERI NOCERE NO DEBET (Things done
hypothetical between strangers ought not to injure those who
To buy peace and in To seek to buy or are not parties to it).

________________________________________________________________________________________________
1st PART is section 28. REQUISITES:

Exceptions to 1st part are: (vicarious admissions) 1. Conspiracy is proved by evidence other
1. Sec. 29; than the admission itself;
2. Sec. 30; 2. That the admission relates to the
3. Sec. 31; conspiracy itself;
4. Sec. 32. 3. That it has been made while the declarant
was engaged in carrying out the
conspiracy; and
2nd PART is section 34. 4. The object of the conspiracy has not been
consummated.
Section 29. Admission by co-partner or agent.
— The act or declaration of a partner or agent of Take note of the Doctrine of Interlocking
the party within the scope of his authority and Confessions (Testimonies).
during the existence of the partnership or agency,
may be given in evidence against such party after People v. Sumayo, 70 SCRA 488 (1976) Where
the partnership or agency is shown by evidence the extra-judicial confessions of the accused are
other than such act or declaration. The same rule consistent in many material details and manifest
applies to the act or declaration of a joint owner, amazing consistency and accuracy in the
joint debtor, or other person jointly interested with narration of events and of facts which could not
the party. (26a) have been known to the police investigators if the
same were not voluntarily given by the accused,
REQUISITES: (clue words) such statements are admissible against the
1. Act or declaration is within the scope of accused on the doctrine of interlocking
confessions.
authority;
2. During existence of partnership or agency;
3. Partnership or agency is shown by other de Leon: The value of the doctrine of interlocking
evidence. confessions is when a confession is inadmissible
against one accused (e.g. obtained without
counsel), but it is nevertheless admissible against
Ormachea v. Trillana, 13 Phil 194 (1909)
the other co-accused. The confession of one may
Discharge of a debt given by a managing partner,
be used against another to produce evidence of
2 years after the partnership had been dissolved
guilt beyond reasonable doubt.
does not qualify as a partner’s admission and can
not prejudice or bind the other partners.
People v. Alegre, 94 SCRA 109 (1979) – absent
independent evidence of conspiracy, extra-judicial
Section 30. Admission by conspirator. — The confession of the accused is not admissible
act or declaration of a conspirator relating to the against others
conspiracy and during its existence, may be given
in evidence against the co-conspirator after the People v. Raquel, 265 SCRA 248 (1996) – extra-
conspiracy is shown by evidence other than such judicial confession of accused can not be used to
act of declaration. (27) implicate co-accused unless repeated in open
court.
(53) Henry testified that a month after the Section 31. Admission by privies. — Where one
robbery Asiong, one of the accused, told him derives title to property from another, the act,
that Carlos was one of those who committed declaration, or omission of the latter, while holding
the crime with him. Is Henry’s testimony the title, in relation to the property, is evidence
regarding what Asiong told him admissible in against the former. (28)
evidence against Carlos? (A) No, since it is
hearsay. (B) No, since Asiong did not make PRIVIES
the statement during the conspiracy. (C) It refers to those who have mutual or successive
Yes, since it constitutes admission against a relationship to the same rights of property or
co-conspirator. (D) Yes, since it part of the subject matter such as personal representatives,
res gestae. heirs, devisees, legatees assigns, voluntary
grantees, or judgment creditors or purchasers
NOTE: It refers to an extrajudicial declaration of a from them with notice to facts.
conspirator, and not his testimony given on the
stand which is subject to cross-examination. The declarant was so situated that his interest
were such that he would not have made the

________________________________________________________________________________________________
admission to the prejudice of his title or 1. Allegations of unliquidated damages;

possession unless they were true. The declarant 2. Allegations which are not material to the
need not be presented as witness, his statement cause of action;
may be proved by those who have knowledge of 3. Conclusion of fact/law;
them. 4. In case of usury;
5. If defendant has not filed an answer is
REQUISITES: declared in default.
1. There must be privity between the party
and the declarant; Section 33. Confession. — The declaration of an
2. The declarant as predecessor (previous accused acknowledging his guilt of the offense
holder) in interest made the declaration charged, or of any offense necessarily included
while holding title to the property; and therein, may be given in evidence against him.
3. The admission relates to the property. (29a)
Section 32. Admission by silence. — An act or CONFESSION

declaration made in the presence and within the It is a categorical acknowledgement of guilt made
hearing or observation of a party who does or by an accused in a criminal case, without any
says nothing when the act or declaration is such exculpatory statement or explanation.
as naturally to call for action or comment if not
true, and when proper and possible for him to do If the accused admits having committed the act in
so, may be given in evidence against him. (23a) question but alleges a justification therefor, the
same is merely an admission.
REQUISITES:
1. He must have heard or observed the act There can also be confession of judgment in a civil
or declaration of the other person; case where the party expressly admits his liability.
2. He must have the opportunity to deny it;
3. He must have understood the statement; Exceptions: no confession of judgment in)
4. He must have an interest to the object, 1. In legal separation (art. 60, FC);
such that he would naturally have done 2. Declaration of nullity of marriage (art. 48,
so, if the statement was not true; FC);
5. The facts were within his knowledge; 3. Annulment of marriage (art. 48, FC).
6. The fact admitted or the inference to be JUDICIAL CONFESSION
drawn from his silence is material to the It is one made by the accused before a court in
issue. which the case is pending and in the course of
legal proceedings therein and, by itself, can
Qui tacet consentire videtur: He who is silent sustain a conviction.
appears to consent.
Exception: in capital offenses.
Note: this rule does not prevail over the right of REASON: The court must conduct hearing in
the accused to remain silent and to be presumed order to determine that the accused has full
innocent until the contrary is proved beyond knowledge of the consequences of his plea and
reasonable doubt. for the prosecution to prove the precise degree of
culpability of the accused (Rule 116, sec. 3).
People v. Paragsa, 84 SCRA 105 (1978) Failure
by a supposed rape victim to rebut sweetheart EXTRA-JUDICIAL CONFESSIONS
defense based on testimonial evidence may be It is one made in any other place or occasion and
taken against her. cannot sustain a conviction unless its
voluntariness is proven and corroborated by
corpus delicti.
DOCTRINE OF ADOPTIVE ADMISSION
An adoptive admission is a party’s reaction to a REQUISITES FOR EXTRA-JUDICIAL
statement or action by another person when it is CONFESSIONS TO BE ADMISSIBLE:
reasonable to treat the party’s reaction as an 1. Made by the defendant;
admission of something stated or implied by the 2. Confession must involve an express and
other person (Estrada vs. Desierto, 356 SCRA categorical acknowledgment of guilt;
108). In this case, Estrada’s admission was based 3. The confession must have been given
on the diary of Angara. voluntarily;
NO IMPLIED ADMISSION IN:

________________________________________________________________________________________________
4. The confession must be intelligently 5. Where the confession is used as

made, the accused realizing the circumstantial evidence to show the
importance or legal significance of his act; probability of participation by the co-
5. There must have been no violation of the conspirator;
constitutional rights of the accused; 6. When the confessant testified for his co-
6. It must be in writing (under RA 7438). defendant;
7. Where the conspirators extrajudicial
admission is corroborated by other
Rights of the Accused; Miranda Rights evidence on the record.
(2010) No.XI. X was arrested for the alleged
murder of a 6-year old lad. He was read his
Mirandarights immediately upon being 4. Previous Conduct as Evidence
apprehended. In the course of his detention,
X was subjected to three hours of non-stop Section 34. Similar acts as evidence. —
interrogation. He remained quiet until, on the Evidence that one did or did not do a certain thing
3rd hour, he answered "yes" to the question at one time is not admissible to prove that he did
of whether "he prayed for forgiveness for or did not do the same or similar thing at another
shooting down the boy." The trial court, time;
interpreting X’s answer as an admission of
guilt, convicted him. On appeal, X’s counsel but it may be received to prove:
faulted the trial court in its interpretation of
his client’s answer, arguing that X invoked
his Miranda rights when he remained quiet 1. a specific intent or knowledge;
2. identity,
for the first two hours of questioning. Rule on
3. plan,
the assignment of error. (3%) SUGGESTED
4. system,
ANSWER:
5. scheme,
The assignment of error invoked by X‟s counsel is
6. habit,
impressed with merit since there has been no express 7. custom or usage,
waiver of X‟s Miranda Rights. In order to have a valid 8. and the like. (48a)
waiver of the Miranda Rights, the same must be in
writing and made in the presence of his counsel. The NOTE: This is the 2nd part of the res inter alios
uncounselled extrajudicial confession of X being acta rule.
without a valid waiver of his Miranda Rights, is
inadmissible, as well as any information derived
This is also referred to as Propensity Rule
therefrom.
US v. Evangelista, 24 Phil 453 (1913) In a trial for
GR: An extrajudicial confession is admissible only arson, the prosecution may prove that the
against the confessor. It is incompetent evidence accused had attempted to set fire to the house on
against co-accused for being hearsay and the day previous to the burning alleged in the
because of the res inter alios acta rule. information, for the purpose of showing the intent
of the accused in subsequently setting fire to the
EXCEPTIONS: (when admissible against co- house. Where a person is charged with the
defendants) commission of a specific crime, testimony may be
1. If the co-defendants impliedly acquiesced received of the other similar acts committed about
in or adopted said confession; the same time, only for the purpose of
2. Interlocking confessions—if the accused establishing the criminal intent of the accused.
persons voluntarily and independently
executed identical confession without Offer of Evidence; res inter alios acta (2003)
collusion, and corroborated by other X and Y were charged with murder. Upon application
evidence; of the prosecution, Y was discharged from the
3. Where the accused admitted the facts Information to be utilized as a state witness. The
stated by the confessant after being prosecutor presented Y as witness but forgot to state
appraised of such confession; the purpose of his testimony much less offer it in
4. If they are charged as co-conspirator of evidence. Y testified that he and X conspired to kill the
the crime which was confessed by one of victim but it was X who actually shot the victim. The
the accused and said confession is used testimony of Y was the only material evidence
only as corroborating evidence; establishing the guilt of X. Y was thoroughly

________________________________________________________________________________________________
crossexamined by the defense counsel. After the statement is to prove the truth of the facts
prosecution rested its case, the defense filed a motion asserted therein.
for demurrer to evidence based on the following
grounds. 2. NON-HEARSAY--- Admissible. This occurs
(a) The testimony of Y should be excluded because its when the purpose for introducing the statement is
purpose was not initially stated and it was not formally not to prove the truth of the facts asserted therein
offered in evidence as required by Section 34, Rule 132 but only the making of the statements and are
of the Revised Rules of Evidence; and admissible in evidence when the making of the
(b) Y’s testimony is not admissible against X pursuant statement is relevant. These are so-called
to the rule on “res inter alios acta”. Rule on the motion INDEPENDENT RELEVANT STATEMENTS.
for demurrer to evidence on the above grounds. (6%)
SUGGESTED ANSWER: 3. EXCEPTIONS TO THE HEARSAY RULE---
The demurrer to the evidence should be denied Those which are hearsay but are considered as
because: a) The testimony of Y should not be excluded exceptions to the hearsay rule and are therefore
because the defense counsel did not object to his admissible. These are sec. 37 to 47 of Rule 130.
testimony despite the fact that the prosecutor forgot to
state its purpose or offer it in evidence. Moreover, the HEARSAY EVIDENCE
defense counsel thoroughly crossexamined Y and thus Two concepts of hearsay evidence: Any evidence,
waived the objection. whether oral or documentary, is hearsay if its
b) The res inter alios acta rule does not apply because Y probative value is not based on the personal
testified in open court and was subjected to cross knowledge of the witness but on the knowledge of
examination. some other person not on the witness stand
(Regalado, p. 736).
Hearsay evidence also includes all assertions

which have not been subject of cross-examination
Section 35. Unaccepted offer. — An offer in by the adverse party at the trial in which they are
writing to pay a particular sum of money or to being offered against him (Herrera, vol. V., p.564).
deliver a written instrument or specific personal
property is, if rejected without valid cause, Note: It is the loss of the opportunity to cross-
equivalent to the actual production and tender of examine and not the loss of cross-examination
the money, instrument, or property. (49a) itself which makes an assertion hearsay evidence.
5. Testimonial Knowledge Hearsay Rule (2007) No.III. (a) What is the

hearsay rule? (5%) SUGGESTED ANSWER:
Section 36. Testimony generally confined to The hearsay rule is a rule of evidence to
personal knowledge; hearsay excluded. — A the effect that a witness can testify only
witness can testify only to those facts which he to those facts which he knows of his own
knows of his personal knowledge; that is, which knowledge or derived from his own
are derived from his own perception, except as perceptions, except as otherwise provided
otherwise provided in these rules. (30a) in the rules of court (Rule 130, Sec. 36
Rules of Court). (b) In relation to the hearsay
REASON FOR EXCLUDING HEARSAY rule, what do the following rules of evidence
It is not subject to the test of truth because there is have in common? (5%) (1) The rule on
no opportunity for cross-examination. In other statements that are part of the res gestae. (2)
words, the witness cannot swear as to the truth The rule on dying declarations. (3) The rule
beyond what was told him, heard or read. Also this on admissions against interest. SUGGESTED
will be a violation of the constitutional right to ANSWER: The rules on the evidence
confrontation. specified in the question asked, have in
common the following: (1) The evidence
although hearsay, are allowed by the Rules
HEARSAY RULE as exceptions to the hearsay rule;
(2) The facts involved are admissible in
CLASSIFICATION OF OUT OF COURT evidence for reasons of necessity and
STATEMENTS trustworthiness; and
(3) The witness is testifying on facts which
1. HEARSAY--- Those which are considered as are not of his own knowledge or derived
hearsay and therefore inadmissible. This occurs from his own perception
when the purpose for introducing the out of court

________________________________________________________________________________________________
Testimony of a witness as to statements made by

Bar Exam Question 2011 non-human declarant (machines, etc) does not
(89) To prove the identity of the assailant in a violate the rule against hearsay. The law permits
crime of homicide, a police officer testified so-called non-human evidence on the ground that
that, Andy, who did not testify in court, machines and animals, unlike humans, lack a
pointed a finger at the accused in a police conscious motivation to tell falsehood and
lineup. Is the police officer’s testimony because the workings of machines can be
regarding Andy's identification of the accused explained by human witnesses who are subject to
admissible evidence? (A) Yes, since it is based cross-examination by opposing counsel (Herrera,
on his personal knowledge of Andy’s p. 581).
identification of the accused. (B) Yes, since it
constitutes an independently relevant 6. Exceptions To The Hearsay Rule
statement. (C) No, since the police had the
accused identified without warning him of his 1. Dying Declaration;
rights. (D) No, since the testimony is 2. Declaration Against Interest;
hearsay. 3. Act or Declaration About Pedigree;
4. Family Refutation or Tradition Regarding
Bar Exam Question 2011 Pedigree;
(96) To prove that Susan stabbed her 5. Common Reputation;
husband Elmer, Rico testified that he heard 6. Res Gestae;
Leon running down the street, shouting 7. Entries in the Ordinary Course of
excitedly, "Sinasaksak daw ni Susan ang Business;
asawa niya! (I heard that Susan is stabbing 8. Entries in Official Records;
her husband!)" Is Leon's statement as 9. Commercial Lists;
narrated by Rico admissible? (A) No, since 10. Learned Treatises;
the startling event had passed. (B) Yes, as 11. Testimony or Deposition at Former
part of the res gestae. (C) No, since the Proceeding.
excited statement is itself hearsay. (D) Yes,
as an independently relevant statement.
Sec. 28 of the Rule on Examination of Child

Hearsay Evidence (2002) Witness provides for another exception to the
Romeo is sued for damages for injuries suffered by the hearsay rule. Hearsay testimony of a child witness
plaintiff in a vehicular accident. Julieta, a witness in describing any act or attempted act of sexual
court, testifies that Romeo told her (Julieta) that he abuse may now be admitted in any criminal
(Romeo) heard Antonio, a witness to the accident, give proceeding, subject to certain pre-requisites and
an excited account of the accident immediately after its the right to cross-examination by the adverse
occurrence. Is Julieta’s testimony admissible against party.
Romeo over proper and timely objection? Why? (5%)
SUGGESTED ANSWER: REASON: They are admissible by reason of
No, Julieta’s testimony is not admissible against necessity and trustworthiness.
Romeo, because while the excited account of Antonio,
a witness to the accident, was told to Romeo, it was Hearsay evidence not objected to may be
only Romeo who told Julieta about it, which makes it admissible, but, whether objected or not, has no
hearsay. probative value and as opposed to direct and
primary evidence, the latter always prevails.
Hearsay Evidence vs. Opinion Evidence (2004)
Hearsay evidence and opinion evidence. Bar Exam Question 2011
SUGGESTED ANSWER: (90) In which of the following cases is the
Hearsay evidence consists of testimony that is not testimony in a case involving a deceased
based on personal knowledge of the person testifying, barred by the Survivorship Disqualification
(see Sec. 36, Rule 130), while opinion evidence is expert Rule or Dead Man Statute? (A) Testimony
evidence based on the personal knowledge skill, against the heirs of the deceased
experience or training of the person testifying (Sec. 49, defendant who are substituted for the
Id.) and evidence of an ordinary witness on limited latter.
matters (Sec. 50, Id.). (B) The testimony of a mere witness who is
neither a party to the case nor is in privity
NON-HUMAN EVIDENCE with the latter. (C) The testimony of an

________________________________________________________________________________________________
oppositor in a land registration case filed by Candida crying and pleading: "Huwag! Maawa ka sa
the decedent’s heirs. (D) The testimony is akin!" After raping Candida, Dencio fled from the
offered to prove a claim less than what is house with the loot. Candida then untied Marcela and
established under a written document signed rushed to the police station about a kilometer away
by the decedent. and told Police Officer Roberto Maawa that Dencio
had barged into the house of Marcela, tied the latter to
a chair and robbed her of her jewelry and money.
Hearsay; Exception; Dead Man Statute (2001) Candida also related to the police officer that despite
Maximo filed an action against Pedro, the her pleas, Dencio had raped her. The policeman
administrator of the estate of deceased Juan, for the noticed that Candida was hysterical and on the verge
recovery of a car which is part of the latter’s estate. of collapse. Dencio was charged with robbery with
During the trial, Maximo presented witness Mariano rape. During the trial, Candida can no longer be
who testified that he was present when Maximo and located. (8%)
Juan agreed that the latter would pay a rental of a) If the prosecution presents Police Officer Roberto
P20,000.00 for the use of Maximo’s car for one month Maawa to testify on what Candida had told him,
after which Juan should immediately return the car to would such testimony of the policeman be hearsay?
Maximo. Pedro objected to the admission of Mariano’s Explain.
testimony. If you were the judge, would you sustain SUGGESTED ANSWER:
Pedro’s objection? Why? (5%) No. The testimony of the policeman is not hearsay. It
SUGGESTED ANSWER: is part of the res gestae. It is also an independently
No, the testimony is admissible in evidence because relevant statement. The police officer testified of his
witness Mariano who testified as to what Maximo and own personal knowledge, not to the truth of Candida's
Juan, the deceased person agreed upon, is not statement, i.e., that she told him, despite her pleas,
disqualified to testify on the agreement. Those Dencio had raped her. (People v. Gaddi,G.R. No. 74065,
disqualified are parties or assignors of parties to a case, February 27,1989)
or persons in whose behalf a case is prosecuted, b) If the police officer will testify that he noticed
against the administrator or Juan’s estate, upon a claim Candida to be hysterical and on the verge of
or demand against his estate as to any matter of fact collapse, would such testimony be considered as
occurring before Juan’s death. (Sec. 23 of Rule 130) opinion, hence, inadmissible? Explain.
SUGGESTED ANSWER:
No, it cannot be considered as opinion, because he
was testifying on what he actually observed. The last
Hearsay; Exception; Dying Declaration (1998)
paragraph of Sec. 50, Rule 130, Revised Rules of
Requisites of Dying Declaration. [2%)
SUGGESTED ANSWER:
Evidence, expressly provides that a witness may testify
The requisites for the admissibility of a dying on his impressions of the emotion, behavior, condition
declaration are: (a) the declaration is made by the or appearance of a person.
deceased under the consciousness of his impending
death; (b) the deceased was at the time competent as
Hearsay; Exceptions (1999)
a witness; (c) the declaration concerns the cause and a) Define hearsay evidence? (2%) b) What are the
surrounding circumstances of the declarant's death; exceptions to the hearsay rule? (2%)
and (d) the declaration is offered in a (criminal) case SUGGESTED ANSWER:
wherein the declarant's death is the subject of . Hearsay evidence may be defined as evidence that
inquiry. consists of testimony not coming from personal
(People vs. Santos, 270 SCRA 650.) knowledge (Sec. 36, Rule 130, Rules of Court). Hearsay
ALTERNATIVE ANSWER: testimony is the testimony of a witness as to what he
The declaration of a dying person, made under the has heard other persons say about the facts in issue.
consciousness of an impending death, may be received . The exceptions to the hearsay rule are:
in any case wherein his death is the subject of Inquiry, dying declaration, declaration against interest, act or
as evidence of the cause and surrounding declaration about pedigree, family reputation or
circumstances of such death. (Sec. 37 of Rule 13O.) tradition regarding pedigree, common reputation, part
of the res gestae, entries in the course of business,
Hearsay; Exception; Res Gestae; Opinion of Ordinary entries in official records, commercial lists and the like,
Witness (2005) learned treatises, and testimony or deposition at a
Dencio barged into the house of Marcela, tied her to a former proceeding. (37 to 47, Rule 13O, Rules of Court)
chair and robbed her of assorted pieces of jewelry and
money. Dencio then brought Candida, Marcela's maid, Hearsay; Exceptions; Dying Declaration (1999)
to a bedroom where he raped her. Marcela could hear The accused was charged with robbery and homicide.

________________________________________________________________________________________________
The victim suffered several stab wounds. It appears

that eleven (11) hours after the crime, while the victim Ans. Motion denied. W’s testimony is an
was being brought to the hospital in a jeep, with his independent relevant statement which is one of
brother and a policeman as companions, the victim the recognized exceptions to the hearsay rule.
was asked certain questions which he answered, While it is true that the testimony of a witness
pointing to the accused as his assailant. His answers regarding a statement made by another person, if
were put down in writing, but since he was a in a intended to establish the truth of the fact asserted
critical condition, his brother and the policeman signed in the statement, is clearly hearsay evidence, it is
the statement. Is the statement admissible as a dying otherwise if the purpose of placing the statement
declaration? Explain.(2%) in the record is merely to establish the fact that the
SUGGESTED ANSWER: statement was made or the tenor of such
Yes. The statement is admissible as a dying declaration statement. Regardless of the truth or falsity of a
if the victim subsequently died and his answers were statement, when the fact that it has been made is
made under the consciousness of impending death (Sec. relevant, the hearsay rule does not apply and the
37 of Rule 130). The fact that he did not sign the statement may be shown. As a matter of fact,
statement point to the accused as his assailant, because evidence as to the making of the statement is
he was in critical condition, does not affect its not secondary but primary, for the statement
admissibility as a dying declaration. A dying declaration itself may constitute a fact in issue, or be
need not be in writing (People v. Viovicente, 286 SCRA 1) circumstantially relevant as to the existence of
such a fact. For this reason, the statement
attributed to B regarding the source of the funds
INDEPENDENT RELEVANT STATEMENTS used to purchase the subject property related to
An out of court declaration while having the court by W is admissible if only to establish the
certain characteristic of hearsay evidence fact that such statement was made and the tenor
is not actually cases of hearsay but is thereof. (Republic v. Heirs of Felipe Alejaga, Sr.,
original evidence. 441 Phil. 656, 672 (2002)
These are statements which are relevant Bar Exam Question 2011
independently, whether they are true or (38) To prove payment of a debt, Bong
not. It is also called as the apparent testified that he heard Ambo say, as the
hearsay. latter was handing over money to Tessie, that
it was in payment of debt. Is Bong’s
Independent relevant statement can later testimony admissible in evidence? (A) Yes,
on be connected by the testimony of other since what Ambo said and did is an
eye-witness. This is used to save the a independently relevant statement. (B) No,
question which is objected on the ground since what Ambo said and did was not in
of being hearsay (Ucat). response to a startling occurrence. (C) No,
since Bong’s testimony of what Ambo said
Prob. A and B are brothers. A is working abroad and did is hearsay. (D) Yes, since Ambo‟s
and he regularly sent money to B. Upon A’s statement and action, subject of Bong‟s
instruction, B bought a parcel of land and testimony, constitutes a verbal act.
constructed a residential house thereon using A’s
money. The land is declared for taxation
purposes in the name of B. Before A went home, Hearsay; Inapplicable (2009) No.XIII. [b]
B, who was then old, donated the land and the Blinded by extreme jealousy, Alberto shot his
house to C, his close friend who was then living wife, Betty, in the presence of his sister,
with B in the residential house. Thereafter, B died. Carla. Carla brought Betty to the hospital.
Upon his return and upon knowing of the donation, Outside the operating room, Carla told
A filed an action against C for the recovery of the Domingo, a male nurse, that it was Alberto
land and the house constructed thereon on the who shot Betty. Betty died while undergoing
ground that the donation was void because B was emergency surgery. At the trial of the
not the owner of the land and the house parricide charges filed against Alberto, the
constructed thereon. During the trial, W, also a prosecutor sought to present Domingo as
friend of B, testified for A and declared that B told witness, to testify on what Carla told him.
him (W) that the source of the money which he The defense counsel objected on the ground
used in buying the land and in the construction of that Domingo’s testimony is inadmissible for
the house was A. Through counsel, C moved that being hearsay. Rule on the objection with
W’s testimony be stricken of the record on the reasons. (3%)
ground that the same is hearsay. Resolve.

________________________________________________________________________________________________
SUGGESTED ANSWER: Testimony; Independent Relevant Statement (1999)

Objection overruled. The disclosure A overheard B call X a thief. In an action for
received by Domingo and Carla may be defamation filed by X against B, is the testimony of A
regarded as independently relevant offered to prove the fact of utterance i.e., that B called
statement which is not covered by the X a thief, admissible in evidence? Explain. (2%)
hearsay rule; hence admissible. The SUGGESTED ANSWER:
statement may be received not as Yes. The testimony of A who overheard B call X a
evidence of the truth of what was stated thief is admissible in evidence as an independently
but only as to the tenor thereof and the relevant statement. It is offered in evidence only to
occurrence when it was said, prove the tenor thereof, not to prove the truth of the
independently of whether it was true or facts asserted therein. Independently relevant
false. (People v. Cloud, 333 Phil. 30 [1996]; statements include statements which are on the very
People v. Malibiran, et al., G.R. No. facts in issue or those which are circumstantial
178301, April 24, 2009). evidence thereof. The hearsay rule does not apply.
(See People vs. Gaddi, 170 SCRA 649)
ALTERNATIVE ANSWER: Objection
sustained. The disclosure made by Carla Hearsay; Inapplicable (2003)
has no other probative value except to X was charged with robbery. On the strength of a
identify who shot Betty. Its tenor is warrant of arrest issued by the court, X was arrested by
irrelevant to the incident, and the same police operatives. They seized from his person a
was made not to a police investigator of handgun. A charge for illegal possession of firearm
the occurrence but to a nurse whose was also filed against him. In a press conference called
concern is only to attend to the patient. by the police, X admitted that he had robbed the
Hence, the disclosure does not qualify as victim of jewelry valued at P500,000.00.
independently relevant statement and The robbery and illegal possession of firearm cases
therefore, hearsay. The nurse is were tried jointly. The prosecution presented in
competent to testify only on the condition evidence a newspaper clipping of the report to the
of Betty when rushed to the Hospital but reporter who was present during the press conference
not as to who caused the injury. The stating that X admitted the robbery. It likewise
prosecution should call on Carla as the presented a certification of the PNP Firearms and
best witness to the incident. Explosive Office attesting that the accused had no
license to carry any firearm. The certifying officer,
Bar Exam Question 2012 however, was not presented as a witness. Both pieces
32. When caught, X readily admitted to the of evidence were objected to by the defense. (6%) a) Is
Forestry Ranger that he cut the trees. Such a the newspaper clipping admissible in evidence against
statement may be admitted and is not X? b) Is the certification of the PNP Firearm and
necessarily hearsay because: Explosive Office without the certifying officer
a. it is a judicial admission of guilt. testifying on it admissible in evidence against X?
SUGGESTED ANSWER:
b. it shows the statement was true.
(a) Yes, the newspaper clipping is admissible in
c. it will form part of the circumstantial
evidence to convict. evidence against X. regardless of the truth or falsity
d. it proves that such a statement was of a statement, the hearsay rule does not apply and
made. the statement may be shown where the fact that it is
SUGGESTED ANSWER: made is relevant. Evidence as to the making of such
(d), The statement of X may be admitted statement is not secondary but primary, for the
under the concept of independently statement itself may constitute a fact in issue or be
relevant statement, or statements which circumstantially relevant as to the existence of such
are on the very facts in issue or those fact. (Gotesco Investment Corporation vs. Chatto, 210
which are circumstantial evidence thereof. SCRA 18 [1992]) (b) Yes, the certification is admissible
It is offered in evidence only to prove the in evidence against X because a written statement
tenor thereof, or the fact that such a signed by an officer having the custody of an official
statement was made, and not to prove the record or by his deputy that after diligent search no
truth of the facts asserted therein. Hence, record or entry of a specified tenor is found to exist in
the hearsay rule does not apply. (People the records of his office, accompanied by a certificate
vs. Gaddi, 170 SCRA 649). as above provided, is admissible as evidence that the
records of his office contain no such record or entry.
(Sec. 28 of Rule 132).

________________________________________________________________________________________________
everything that constituted the res gestae

2 CLASSES OF INDEPENDENT RELEVANT of the subject of his statement, but that his
STATEMENT: statement of any given fact should be a
full expression of all he intended to say as
1. Those which are the very fact in issue; conveying his meaning in respect to such
2. Those statements which are fact.
circumstantial evidence of the fact in
issue. It includes the following: REASONS FOR ADMISSION:
1. Necessity--- It is because the declarant’s
a) Statement of a person showing death renders impossible his taking the
his state of mind, that is, his witness stand.
mental condition, knowledge,
belief, intention, ill will and other 2. Trustworthiness--- Maxim: Truth sits on
emotions; the lips of a dying man. At point of
b) Statements of a person which death, every motive for falsehood is
show his physical condition as silenced. The mind is induced by the most
illness and the like; powerful consideration to speak the truth.
c) Statements of a person from
which an inference may be made There must be a settled, hopeless expectation that
as to the state of mind of another, death is at hand. It is sufficient that he believe
that is, knowledge, belief, motive, himself in imminent danger of death at the time of
good/bad faith of the later; such declaration.
d) Statements which may identify the
date, place and person in Determination of consciousness of impending
question; death:
e) Statements showing the lack of
credibility of a witness.
1. Utterances;
2. Circumstances—That at the time of
making the declaration, the declarant did
Section 37. Dying declaration. — The declaration
not expect to survive the injury from which
of a dying person, made under the consciousness he actually died;
of an impending death, may be received in any 3. Actual character and seriousness of his
case wherein his death is the subject of inquiry, as wounds;
evidence of the cause and surrounding 4. By his conduct.
circumstances of such death. (31a)
A dying declaration may be oral or written or made
Note: the ante mortem statements after the mortal
by signs which could be interpreted and testified to
wound has been inflicted under the belief that by a witness thereto.
death is certain, stating the facts concerning the
cause of and circumstances surrounding the Dying declaration favorable to the accused are
attack. admissible.
REQUISITES:
Dying declaration may also be regarded as part of
1. That death is imminent and the declarant res gestae as they were made soon after the
is conscious of such fact;
startling occurrence without the opportunity for
2. That the declaration refers to the cause fabrication or concoction.
and the surrounding circumstances of
such death; Dying declaration is not considered confidential
3. That the declaration relates to the facts communication between spouses.
which the declarant is competent to
testify; A dying declaration may be attacked on the
4. That the declaration is offered in a case ground that any of the requisites for its
wherein the declarant’s death is the admissibility are not present and the same may be
subject of the inquiry;
impeached in the same manner testimony of any
5. That the statement is complete in itself (P.
other witness on the stand.
vs. DeJoya, 203 SCRA 343).
Note: To be complete in itself does not
mean that the declaration must recite
________________________________________________________________________________________________
29. X was shot by Y in the course of a in evidence against himself or his successors in
robbery. On the brink of death, X told W, a interest and against third persons. (32a)
barangay tanod, that it was Y who shot and
held him up. In Bar Exam Question 2011
the trial for robbery with homicide, X's (88) Which of the following is NOT
declaration can be admitted only as a dying REQUIRED of a declaration against interest
declaration: as an exception to the hearsay rule? (A) The
a. to prove robbery. declarant had no motive to falsify and
b. to prove homicide. believed such declaration to be true. (B) The
declarant is dead or unable to testify. (C) The
c. to prove robbery and homicide. declaration relates to a fact against the
interest of the declarant. (D) At the time he
d. to prove the "corpus delicti".
made said declaration he was unaware
SUGGESTED ANSWER:
that the same was contrary to his
(b), a dying declaration is admissible as
aforesaid interest.
evidence if the following circumstances
are present: (a) it concerns the cause and
the surrounding circumstances of the
(46) In which of the following situations is the
declarant‟s death; (b) it is made when
declaration of a deceased person against his
death appears to be imminent and the
interest NOT ADMISSIBLE against him or his
declarant is under a consciousness of
successors and against third persons? (A)
impending death; (c) the declarant would
Declaration of a joint debtor while the debt
have been competent to testify had he or
subsisted. (B) Declaration of a joint owner in
she survived; and (d) the dying declaration
the course of ownership. (C) Declaration of a
is offered in a case in which the subject of
former co-partner after the partnership
inquiry involves the declarant‟s death.
has been dissolved. (D) Declaration of an
(People vs. Jay Mandy Maglian, G.R. No.
agent within the scope of his authority.
189834, March 30, 2011, Velasco, Jr., J.).
Clearly, the dying declaration can only be
REQUISITES:
offered in a case in which the subject of
1. Declarant is dead or unable to testify;
inquiry involves the declarant‟s death, 2. Relates to a fact against the interest of the
and necessarily the same can only be declarant;
admitted to prove the cause and the 3. That at the time the declaration is made,
surrounding circumstances of such death. he was aware that the same was contrary
Be that as it may, the dying declaration to his interest; and
may be offered as part of the res gestae in 4. That the declarant had no motive to falsify
the crime of robbery. and he believed such declaration to be
ALTERNATIVE ANSWER: (c), The former true.
rule was that dying declaration was
inadmissible only in criminal prosecutions REASONS FOR ADMISSION
for homicide, murder or parricide wherein 1. Necessity--- such declarations are the
the declarant victim (People vs. Lara, 54 only mode of proof available.
Phil. 96). As amended, the Rule now 2. Trustworthiness--- persons do not make
provides for such admissibility in any case statements that are disadvantageous to
as long as the requisites concur. themselves without substantial reason to
(Regalado, Remedial Law Compendium, believe that the statements are true. Self-
Vol.II, 2008 Edition, Page 781). interest induces men to be cautious in
saying anything against themselves. In
other words, we can trust a man when he
Section 38. Declaration against interest. — The speaks against his interest.
declaration made by a person deceased, or
unable to testify, against the interest of the INTEREST COVERED
declarant, if the fact is asserted in the declaration Proprietary, penal, pecuniary and penal.
was at the time it was made so far contrary to It is essential that at the time of the statement, the
declarant's own interest, that a reasonable man in declarant’s interest affected thereby should be
his position would not have made the declaration actual, real or apparent not merely contingent,
unless he believed it to be true, may be received future or unconditional; otherwise, the declaration
would not in reality be against interest

________________________________________________________________________________________________
bibles or other family books or charts, engravings

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

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

________________________________________________________________________________________________
4. Verbal act must be contemporaneous with

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

________________________________________________________________________________________________
The law does not fix the precise moment when the It is well-settled that entries in the police blotter
entries should be made. It is sufficient if the entry should not be given due significance or probative
was made within a reasonable time so that it may value as they are not conclusive evidence of the
appear to have taken place while the memory of truth of their contents but merely of the fact that
the facts was unimpaired. they were recorded. Hence, they do not constitute
conclusive proof (P. vs. Cabrera, Jr. GR NO.
HOW REGULARITIES IN THE ENTRIES 138266, April 30, 2003).
PROVED
It may be proved by the form in which they appear Section 45. Commercial lists and the like. —
in the corresponding book. Evidence of statements of matters of interest to
persons engaged in an occupation contained in a
There is no overriding necessity of bringing into list, register, periodical, or other published
courts all the clerk or employees who individually compilation is admissible as tending to prove the
made the entries in a long account. It is sufficient truth of any relevant matter so stated if that
that the person who supervises them testify that: compilation is published for use by persons
1. The account was prepared under his engaged in that occupation and is generally used
supervision and and relied upon by them therein. (39)
2. The entries were regularly entered in the
ordinary course of business (Regalado, p. REQUISITES:
751). 1. Statements of matters of interest to
persons engaged in an occupation;
Section 44. Entries in official records. — Entries 2. The statement must be contained in a list,
in official records made in the performance of his register, periodical or other published
duty by a public officer of the Philippines, or by a compilation;
person in the performance of a duty specially 3. The compilation is published for the use of
enjoined by law, are prima facie evidence of the persons engaged in that occupation;
facts therein stated. (38) 4. Is generally relied upon by them.
REQUISITES FOR ADMISSIBILTY OF OFFICIAL REASON FOR ADMISSIBLITY

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

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A proper hypothetical question places before the

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

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

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Evidence of the moral character of a party criminal cases under certain situations, but
in civil case is admissible only when not to prove the bad moral character of the
pertinent to the issue of character involved offended party (D) when it is evidence of the
in the case. good character of a witness even prior to his
impeachment as witness (E) In none of the
(c) In the case provided for in Rule 132, given situations above.
Section 14, (46a, 47a) SUGGESTED ANSWER: (A), Under Section
51, Rule 130 of the Rules of Court, the
accused may prove his good moral
Character Evidence; Bad Reputation (2010) No.XII. In character which is pertinent to the moral
a prosecution for murder, the prosecutor asks accused trait involved in the offense charged.
Darwin if he had been previously arrested for violation (Section 51 (a) (1) Rule 130, Rules on
of the Anti- Graft and Corrupt Practices Act. As defense Evidence).
counsel, you object. The trial court asks you on what
ground/s. Respond. (3%) SUGGESTED ANSWER: The
objection is on the ground that the fact sought to be NOTE: In both criminal and civil cases, the bad
elicited by the prosecution is irrelevant and moral character of a witness may always be
immaterial to the offense under prosecution and proved by either party (sec. 11, Rule 132 but not
trial. Moreover, the Rules do not allow the evidence of his good moral character, unless such
prosecution to adduce evidence of bad moral character has been impeached (sec. 14).
character of the accused pertinent to the offense
charged, except on rebuttal and only if it involves a Specific conduct of a party exhibiting character is
prior conviction by final judgment (Rule 130, Sec. 51, not allowed to prove the character of such person
Rules of Court). for three reasons:
1. Undue prejudice;
Character Evidence (2002) 2. Unfair surprise;
D was prosecuted for homicide for allegedly beating 3. Confusion of issues (Francisco, . 373).
up V to death with an iron pipe.
A. May the prosecution introduce evidence that V had
a good reputation for peacefulness and nonviolence?
Why? (2%) II. Which of the following is admissible? (1%)
B. May D introduce evidence of specific violent acts (A) The affidavit of an affiant stating that he
by V? Why? (3%) witnessed the execution of a deed of sale but
SUGGESTED ANSWER:
the affiant was not presented as a witness in
A. The prosecution may introduce evidence of the the trial. (B) The extra judicial admission
good or even bad moral character of the victim if it made by a conspirator against his co-
tends to establish in any reasonable degree the conspirator after the conspiracy has ended.
probability or improbability of the offense charged. (C) The testimony of a party‟s witness
[Rule 130, sec. 51 a (3)]. In this case, the evidence is not
regarding email messages the witness
relevant. received from the opposing party. (D) The
B. Yes, D may introduce evidence of specific violent testimony of a police officer that he had
acts by V. Evidence that one did or did not do a been told by his informants that there
certain thing at one time is not admissible to prove were sachets of shabu in the pocket of the
that he did or did not do the same or a similar thing at defendant. (E) None of the above.
another time; but it may be received to prove a specific
intent or knowledge, identity, plan, system, scheme, SUGGESTED ANSWERS: (C), (D), or (E) (C),
habit, custom or usage, and the like. (Rule 130, sec. 34). The E-mail messages are considered
electronic data message or electronic
Bar Exam Questions 2013 document under the Rules on Electronic
V. Character evidence is admissible Evidence and therefore admissible as
__________. (1%) (A) in criminal cases – the evidence. The terms “electronic data
accused may prove his good moral message” and “electronic document” are
character if pertinent to the moral trait defined in the Rules on Electronic
involved in the offense charged (B) in Evidence. Thus:
criminal cases – the prosecution may prove (g) “Electronic data message” refers to
the bad moral character of the accused to information generated, sent, received or
prove his criminal predisposition (C) in stored by electronic, optical or similar

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means. (h) “Electronic document” refers statements were made is relevant, and the
to information or the representation of truth or falsity thereof is immaterial. The
information, data, figures, symbols or hearsay rule does not apply: hence, the
other modes of written expression, statements are admissible as evidence.
described or however represented, by Evidence as to the making of such
which a right is established or an statement is not secondary but primary,
obligation extinguished, or by which a fact for the statement itself may constitute a
may be proved and affirmed, which is fact in issue or be circumstantially
received, recorded, transmitted, stored, relevant as to the existence of such a fact.
processed, retrieved or produced The witness who testifies thereto is
electronically. It includes digitally signed competent because he heard the same, as
documents and any printout or output, this is a matter of fact derived from his
readable by sight or other means, which own perception, and the purpose is to
accurately reflects the electronic data prove either that the statement was made
message or electronic document. For or the tenor thereof (People vs. Malibiran,
purposes of these Rules, the term G.R. No. 178301, April 24, 2009, Austri-
“electronic document” may be used Martinez, J.). (E), The problem does not
interchangeably with “electronic data clearly provide the purposes for which the
message” (Section 1, (g), (h) Rule 2, AM evidence under (C) and (D) are being
No. 01-7-01-SC, Rules on Electronic offered. Moreover, all of the choices above
Evidence). cannot be admitted to prove the truth of
the contents thereof for the reason that
In MCC Industrial Sales Corporation vs. the evidence is not competent. For letter
Ssangyong Corporation, G.R. No. 170633, (A), the affiant is not presented, and hence
the Supreme Court held that R.A. No. hearsay. Letter (B), the admission was
8792, otherwise known as the Electronic made after the termination of the
Commerce Act of 2000, considers an conspiracy and extrajudicial, hence there
electronic data message or an electronic is no application of the Res Inter Alios
document as functional equivalent of a Acta rule. Letter (C) is also not allowed as
written document for evidentiary under the Electronic Evidence Rule, the
purposes. The Rules on Electronic output readable by sight is the best
Evidence regards an electronic document evidence to prove the contents thereof.
as admissible in evidence if it complies Letter (D) is hearsay since the affiant does
with the rules on admissibility prescribed not have personal knowledge.
by the Rules of Court and related laws,
and is authenticated in the manner Bar Exam Question 2011
prescribed by the said Rules. An electronic (75) Character evidence is admissible (A) in
document is also the equivalent of an criminal cases, the accused may prove his
original document under the Best good moral character if pertinent to the
Evidence Rule, if it is a printout or output moral trait involved in the offense
readable by sight or other means, shown charged. (B) in criminal cases, the
to reflect the data accurately. (D), If the prosecution may prove the bad moral
testimony is being offered for the purpose character of the accused to prove his criminal
of establishing that such statements were predisposition.
made, then the testimony is admissible as (C) in criminal cases, the bad moral character
independent relevant statement. The of the offended party may not be proved. (D)
Doctrine on independent relevant when it is evidence of the good character of a
statement holds that conversations witness even prior to impeachment.
communicated to a witness by a third
person may be admitted as proof,
regardless of their truth or falsity, that
they were actually made (Republic vs. RULE 131
Heirs of Alejaga Sr., G.R. No. 146030,
December 3, 2002).
Burden of Proof and Presumptions
The doctrine of independently relevant
statements is an exception to hearsay Section 1. Burden of proof. — Burden of proof is
rule. It refers to the fact that such the duty of a party to present evidence on the

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facts in issue necessary to establish his claim or admits, generally, all the allegations in the
defense by the amount of evidence required by complaint.
law. (1a, 2a)
B. Criminal Cases
PROOF The burden of proof is with the prosecution
It refers to the establishment of a requisite degree because of the presumption of innocence.
of belief in the mind of the trier of fact as to the
fact in issue. The burden of proof as to the guilt of the accused
must be borne by the prosecution. It is required
Burden of Proof vs. Burden of Evidence (2004) that courts determine first if the evidence of the
Distinguish Burden of proof and burden of evidence. prosecution has at least established a prima facie
SUGGESTED ANSWER: case before considering the evidence of the
Burden of proof is the duty of a party to present defense.
evidence on the facts in issue necessary to establish his
claim or defense by the amount of evidence required If the prosecution does not have a prima facie
by law. (Sec. 1 of Rule 131), while burden of evidence is the case, it is futile to waste time in considering the
duty of a party to go forward with the evidence to evidence presented by the defense. Should the
overthrow prima facie evidence established against prosecution succeed in establishing a prima facie
him. (Bautista v. Sarmiento, 138 SCRA 587 [1985]). case against the accused, the burden is shifted
upon the accused to prove otherwise.
TWO SEPARATE BURDENS IN BURDEN OF Under the Speedy Trial Act, if the accused
PROOF is not brought to trial within the time
1. Burden of going forward--- that of required, the information shall be
producing evidence. dismissed on motion of the accused. In
2. Burden of persuasion--- the burden of this case, the burden of proof of
persuading the trier of fact that the supporting the motion is with the accused
burdened party must prevail. (sec. 13, RA 8493).
“He who asserts, not the one who denies , DEGREE OF PROOF THAT SATISFIES THE
must prove.” BURDEN OF PROOF
A. CIVIL CASES
UPON WHOM BURDEN OF PROOF RESTS: Preponderance of evidence.
A: Civil Cases B. CRIMINAL CASES

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

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

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

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the burden is relieved from the time being, from (b) The tenant is not permitted to deny the
introducing evidence in support of his averment title of his landlord at the time of
because stands in place of evidence. commencement of the relation of landlord
and tenant between them. (3a)
NOTE: “Presumptions are like bats of law flitting in
the twilight, but disappearing in the sunshine of This is ESTOPPEL BY DEED.
actual facts” (Wigmore).
Statutory provisions on Estoppel:
CLASSIFICATION OF PRESUMPTIONS:
1. PRESUMPTION (juris) OF LAW--- It is a Art. 1431. Through estoppel an admission or

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

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(3) The party misled must have been unaware of (a) That a person is innocent of crime or
the true facts; and wrong;
(b) That an unlawful act was done with an

(4) The party defrauded must have acted in
unlawful intent;
accordance with the misrepresentation.
(c) That a person intends the ordinary
Art. 1438. One who has allowed another to consequences of his voluntary act;
assume apparent ownership of personal property
for the purpose of making any transfer of it, (d) That a person takes ordinary care of his
cannot, if he received the sum for which a pledge concerns;
has been constituted, set up his own title to
defeat the pledge of the property, made by the (e) That evidence willfully suppressed would
other to a pledgee who received the same in be adverse if produced;
good faith and for value.
(f) That money paid by one to another was
due to the latter;
Art. 1439. Estoppel is effective only as between
the parties thereto or their successors in interest. (g) That a thing delivered by one to another
belonged to the latter;
SOME OTHER CONCLUSIVE PRESUMPTIONS:
1. Under the Torrens System, registration is (h) That an obligation delivered up to the
conclusive notice to the whole world of debtor has been paid;
acts or dealings respecting the land;
2. Upon publication of laws, there is
(i) That prior rents or installments had been
conclusive presumption that everybody
paid when a receipt for the later one is
knows the law. Hence, ignorance of the
produced;
law excuses no one from compliance
therewith.
3. Art. 167,FC. The child shall be considered (j) That a person found in possession of a
legitimate although the mother may have thing taken in the doing of a recent wrongful
declared against its legitimacy or may have act is the taker and the doer of the whole act;
been sentenced as an adulteress. otherwise, that things which a person
possess, or exercises acts of ownership over,
are owned by him;
71. Under the Rules on Evidence, the (k) That a person in possession of an order on
following is a conclusive presumption and himself for the payment of the money, or the
therefore cannot be contradicted by evidence. delivery of anything, has paid the money or
a. A person intends the ordinary delivered the thing accordingly;
consequences of his voluntary act.
b. Official duty has been regularly performed. (l) That a person acting in a public office was
c. A tenant cannot deny his landlord's title regularly appointed or elected to it;
during the tenancy period.
d. A writing is truly dated. (m) That official duty has been regularly
SUGGESTED ANSWER: (c), The tenant is performed;
not permitted to deny the title of his
landlord at the time of the (n) That a court, or judge acting as such,
commencement of the Relation of whether in the Philippines or elsewhere, was
landlord and tenant between them (Rule acting in the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised
Section 3. Disputable presumptions. — The in a case were laid before the court and
following presumptions are satisfactory if passed upon by it; and in like manner that all
uncontradicted, but may be contradicted and matters within an issue raised in a dispute
overcome by other evidence: submitted for arbitration were laid before the
arbitrators and passed upon by them;

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(p) That private transactions have been fair present may contract a subsequent
and regular; marriage if he or she has well-founded
belief that the absent spouse is already
(q) That the ordinary course of business has dead. In case of disappearance, where
been followed; there is a danger of death the
circumstances hereinabove provided, an
absence of only two years shall be
(r) That there was a sufficient consideration
sufficient for the purpose of contracting a
for a contract;
subsequent marriage. However, in any
case, before marrying again, the spouse
(s) That a negotiable instrument was given or present must institute a summary
indorsed for a sufficient consideration; proceedings as provided in the Family
Code and in the rules for declaration of
(t) That an endorsement of negotiable presumptive death of the absentee,
instrument was made before the instrument without prejudice to the effect of
was overdue and at the place where the reappearance of the absent spouse.
instrument is dated;
(x) That acquiescence resulted from a belief
(u) That a writing is truly dated; that the thing acquiesced in was conformable
to the law or fact;
(v) That a letter duly directed and mailed was
received in the regular course of the mail; (y) That things have happened according to
the ordinary course of nature and ordinary
(w) That after an absence of seven years, it nature habits of life;
being unknown whether or not the absentee
still lives, he is considered dead for all (z) That persons acting as copartners have
purposes, except for those of succession. entered into a contract of co-partnership;
The absentee shall not be considered dead (aa) That a man and woman deporting
for the purpose of opening his succession till themselves as husband and wife have
after an absence of ten years. If he entered into a lawful contract of marriage;
disappeared after the age of seventy-five
years, an absence of five years shall be (bb) That property acquired by a man and a
sufficient in order that his succession may be woman who are capacitated to marry each
opened. other and who live exclusively with each other
as husband and wife without the benefit of
The following shall be considered dead for all marriage or under void marriage, has been
purposes including the division of the estate obtained by their joint efforts, work or industry.
among the heirs:
(cc) That in cases of cohabitation by a man
(1) A person on board a vessel lost during and a woman who are not capacitated to
a sea voyage, or an aircraft with is marry each other and who have acquire
missing, who has not been heard of for properly through their actual joint contribution
four years since the loss of the vessel or of money, property or industry, such
aircraft; contributions and their corresponding shares
including joint deposits of money and
(2) A member of the armed forces who evidences of credit are equal.
has taken part in armed hostilities, and
has been missing for four years; (dd) That if the marriage is terminated and
the mother contracted another marriage
(3) A person who has been in danger of within three hundred days after such
death under other circumstances and termination of the former marriage, these
whose existence has not been known for rules shall govern in the absence of proof to
four years; the contrary:
(4) If a married person has been absent (1) A child born before one hundred eighty
for four consecutive years, the spouse days after the solemnization of the

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subsequent marriage is considered to 3. If one is under fifteen and the other

have been conceived during the former above sixty, the former is deemed to have
marriage, provided it be born within the survived;
three hundred days after the termination
of the former marriage. 4. If both be over fifteen and under sixty,
and the sex be different, the male is
(2) A child born after one hundred eighty deemed to have survived, if the sex be the
days following the celebration of the same, the older;
subsequent marriage is considered to
have been conceived during such 5. If one be under fifteen or over sixty, and
marriage, even though it be born within the other between those ages, the latter is
the three hundred days after the deemed to have survived.
termination of the former marriage. [ART.
168, FC] (kk) That if there is a doubt, as between two or
more persons who are called to succeed each
(ee) That a thing once proved to exist other, as to which of them died first, whoever
continues as long as is usual with things of the alleges the death of one prior to the other,
nature; shall prove the same; in the absence of proof,
they shall be considered to have died at the
(ff) That the law has been obeyed; same time. (5a) [ART. 43, NCC]
(gg) That a printed or published book, P. vs. Padiernos, 69 SCRA 484 (1976) Mere
purporting to be printed or published by public non-presentation of a written statement of a
authority, was so printed or published; witness to the police which she allegedly did not
sign, does not give rise to the presumption that it
(hh) That a printed or published book, "contained declarations disastrous to the
purporting to contain reports of cases prosecution case". The presumption that
adjudged in tribunals of the country where the suppressed evidence is unfavorable does not
book is published, contains correct reports of apply where the evidence was at the disposal of
such cases; both the defense and the prosecution through
use of compulsory processes, e.g. subpoena
duces tecum.
(ii) That a trustee or other person whose duty
it was to convey real property to a particular
person has actually conveyed it to him when People vs. Pablo, 213 SCRA 1 (1992) The
such presumption is necessary to perfect the presumption that evidence willfully suppressed
title of such person or his successor in would be adverse if produced does not apply
interest; when the testimony of the witness is merely
corroborative. Neither does it apply in cases
where the witness, as in this case, is available to
(jj) That except for purposes of succession,
the accused because then, the evidence would
when two persons perish in the same
calamity, such as wreck, battle, or have the same weight against one party as
against the other. Mere failure to present the
conflagration, and it is not shown who died
poseur-buyer in a buy-bust operation is not
first, and there are no particular circumstances
suppression of evidence.
from which it can be inferred, the survivorship
is determined from the probabilities resulting
from the strength and the age of the sexes, Section 4. No presumption of legitimacy or
according to the following rules: illegitimacy. — There is no presumption of
legitimacy of a child born after three hundred days
following the dissolution of the marriage or the
1. If both were under the age of fifteen
separation of the spouses. Whoever alleges the
years, the older is deemed to have
legitimacy or illegitimacy of such child must prove
survived;
his allegation. (6) [ART. 169, FC]
2. If both were above the age sixty, the
younger is deemed to have survived;

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11. Not be repetitious;

12. Not call for a narration.
RULE 132
Section 2. Proceedings to be recorded. — The
Presentation of Evidence entire proceedings of a trial or hearing, including
the questions propounded to a witness and his
A. EXAMINATION OF WITNESSES answers thereto, the statements made by the
judge or any of the parties, counsel, or witnesses
with reference to the case, shall be recorded by
Section 1. Examination to be done in open means of shorthand or stenotype or by other
court. — The examination of witnesses presented means of recording found suitable by the court.
in a trial or hearing shall be done in open court,
and under oath or affirmation. Unless the witness
A transcript of the record of the proceedings made
is incapacitated to speak, or the questions calls for
by the official stenographer, stenotypist or
a different mode of answer, the answers of the
recorder and certified as correct by him shall be
witness shall be given orally. (1a)
deemed prima facie a correct statement of such
proceedings. (2a)
HOW ORAL EVIDENCE GIVEN--- It is usually
given orally in open court. Therefore, generally,
testimonies of witnesses cannot be presented in Section 3. Rights and obligations of a witness.
affidavits. — A witness must answer questions, although his
answer may tend to establish a claim against him.
However, it is the right of a witness:
However, affidavits are used in lieu testimonies
may be given under the Rules on Summary
Procedure. (1) To be protected from irrelevant,
improper, or insulting questions, and from
PURPOSE: It is to enable the court to judge the harsh or insulting demeanor;
credibility of the witness’ manner of testifying, their
intelligence and their appearance. (2) Not to be detained longer than the
interests of justice require;
Testimony of witnesses shall be given under oath
or affirmation. (3) Not to be examined except only as to
matters pertinent to the issue;
TWO-FOLD PURPOSE REQUIRING WITNESS
TO BE SWORN:
(4) Not to give an answer which will tend
1. By affecting the conscience of the witness to subject him to a penalty for an offense
to compel him to speak the truth; unless otherwise provided by law; or
2. If he willfully falsifies the truth, that he may
be punished for his perjury.
(5) Not to give an answer which will tend
The right to have the witness sworn may be to degrade his reputation, unless it to be
waived, if a party fails to object to the taking of the very fact at issue or to a fact from
testimony without the administration of an oath, he which the fact in issue would be
will be deemed to have waived his objection. presumed. But a witness must answer to
the fact of his previous final conviction for
QUESTIONS PROPOUNDED TO THE WITNESS an offense. (3a, 19a)
MUST:
Right of the witness to be free from violence.
1. Not be indefinite or uncertain; The action of the judge in seizing the witness by
2. Be relevant; the shoulder and turning him about (to look to the
3. Not be argumentative; judge) was unwarranted and an interference with
4. Not call for a conclusion of law; that freedom from unlawful personal violence to
5. Not call for opinion or hearsay evidence; which every witness is entitled while giving the
6. Not call for illegal answer; testimony in court, which his attorney had the right
7. Not call for self-incriminating testimony; to protest and to demand that the incident be
8. Not be leading; made of record (In Re: Aguas).
9. Not be misleading;
10. Not tend to degrade the reputation of Scope of right against self-incrimination
witness;

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1. No person shall be compelled to be a in any matter in connection with the

witness against himself; criminal prosecution of the witness. It
2. The rule may be invoked in any court of does not render a witness immune from
proceeding; prosecution.
3. The rule only covers testimonial 2. Transactional Immunity--- Grants
compulsion. immunity to the witness from prosecution
for an offense to which the compelled
Rationale against testimonial compulsion: testimony relates.
The court may not extract from the defendant’s
own lips and against his will an admission of his RA 6981(WITNESS PROTECTION, SECURITY,
guilt. AND BENEFIT ACT)
When act is TESTIMONIAL: Who ay be admitted (sec. 3):

If it explicitly or implicitly relate a factual assertion
or discloses information. Any person who has witnessed or has knowledge
or information on the commission of a crime and
When is there compulsion: has testified or is testifying or about to testify
It is present only if a witness has asserted right to before any judicial or quasi-judicial body, or before
refuse to disclose self-incriminating information any investigating authority, may be admitted to the
and this refusal has been overridden. program.
Provided, that:
Forced Re-enactment
It comes within the ban since prohibition against 1. The offense in which his testimony will be
testimonial compulsion extend to those used is a grave felony as defined under
communicative in nature. the RPC or its equivalent in special laws;
2. His testimony can be corroborated in
RIGHTS OF A DEFENDANT material points;
He has the right to be exempt from being a 3. He or any member of his family within the
witness against himself, cannot be compelled to second degree of consanguinity or affinity
testify or produce evidence in the criminal case in is subjected to threats to his life or bodily
which he is the accused or one of the accused, he injury;
cannot be compelled to do so even by subpoena 4. He is not a law enforcement officer.
or order of the court. He cannot be required either
for the prosecution, for co-accused or even for
himself. STATE WITNESS
It refers to a person who has participated in the
A ordinary witness or a party in a civil action commission of the crime and desires to be a state
An ordinary witness may be compelled to testify witness for the state shall be admitted to the
by subpoena, having only the right to refuse to program whenever the following circumstances
answer a particular incriminating question at the are present:
time it is put to him.
1. The offense in which his testimony will be
Limitation if a witness is party in a civil action used is a grave felony as defined under
Before the plaintiff could compel the defendant to the RPC or its equivalent in special laws;
be a witness, the plaintiff must first prove that he 2. Absolute necessity of the testimony;
has submitted written interrogatories to the 3. There is no direct evidence available for
defendant (Rule 25, sec.6) the proper prosecution of the offense
committed;
The exception under no. 4 refers to immunity 4. His testimony can be substantially
statutes wherein the witness is granted immunity corroborated in its material points;
from criminal prosecution for offenses admitted in 5. He does not appear to be the most
his testimony, e.g. under sec. 8, RA 1379, THE guilty;
LAW PROVIDING FOR FORFEITURE OF 6. He has not at any time been convicted of
ILLEGALLY ACQUIRED PROPERTY; and under an offense involving moral turpitude
PD 749, in prosecutions for bribery and graft. (sec. 10).
CLASSIFICATION OF IMMUNITY STATUTES Sworn Statement--- Before any person is admitted

1. Use Immunity--- Only prohibits the use of to the program, he shall execute a sworn
witness compelled testimony and its fruit statement describing in detail the manner the

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offense was committed and his participation testimony in bar of such prosecution Provided,
therein (sec. 11). That the following conditions concur:
Bar Exam Question 2011 (1) The information AND testimony are
(91) The prosecution moved for the discharge necessary for the conviction of the
of Romy as state witness in a robbery case it persons (members of a drug
filed against Zoilo, Amado, and him. Romy SYNDICATE) described above;
testified, consistent with the sworn statement (2) Such information and testimony are not
that he gave the prosecution. After hearing yet in the possession of the State;
Romy, the court denied the motion for his (3) Such information and testimony can be
discharge. How will denial affect Romy? (A) corroborated on its material points;
His testimony shall remain on record. (B) (4) The informant or witness has not been
Romy will be prosecuted along with Zoilo previously convicted of a crime involving
and Amado. (C) His liability, if any, will be moral turpitude, except when there is no
mitigated. other direct evidence available for the
(D) The court can convict him based on his State other than the information and
testimony. testimony of said informant or witness;
(5) The informant or witness shall strictly and
faithfully comply without delay, any
If the application is denied, said sworn statement condition or undertaking, reduced into
and other testimony given in support of said writing, lawfully imposed by the State as
application shall not be admissible in evidence. further consideration for the grant of
immunity from prosecution and
Admission to the program shall entitle such punishment;
witness to immunity from criminal prosecution for (6) The informant or witness does not appear
the offenses in which his testimony will be given to be most guilty for the offense with
and used (sec. 12) reference to which his/her information or
testimony were given; and
Failure without just cause of the witness to testify (7) There is no direct evidence available for
when lawfully required to do so, shall be the State except for the information and
prosecuted for contempt. If he testifies falsely or testimony of the said informant or witness.
evasively, he shall be liable for perjury. His
immunity shall be removed and he shall be
subjected to criminal prosecution (sec. 13). Comments: (Ucat)
Q. Point out that circumstance, if any, where a a. Even where the informant has been previously
person may be immune from prosecution of a convicted of a crime involving moral turpitude, he
crime although he is not discharged from the is still qualified to be a witness “when there is no
complaint or information to be utilized as a state other direct evidence available for the State other
witness or he is not given the benefit under RA than the information and testimony of said
6981 (Witness Protection, Security and Benefit informant or witness”.
Act).
b. (1) The meaning of the clause “shall be
Ans. Any person who has violated Secs. 7, 11, exempted from prosecution OR punishment”. It is
12, 14, 15 and 19, Art. II of RA 9165, who believed that even where the informant is not
voluntarily gives information about any violation excluded from the information or he is not
of Secs. 4, 5, 6, 8, 10, 13 and 16, Art. II of RA discharged to be utilized as a state witness,
9165 (STUDY the foregoing SECTIONS) as well should he testify for the prosecution against his
as any violation of the offenses mentioned if co-accused, even if, after the trial, he is convicted
committed by a drug syndicate, of any together with his co-accused, the penalty
information leading to the whereabouts, identifies imposed against him shall not be executed.
and arrest of all of any of the members thereof (of This is the meaning of IMMUNITY FROM
the SYNDICATE), and who willingly testifies PUNISHMENT.
against such persons as described above, shall be
EXEMPTED from prosecution or punishment for b. (2) Under the 2000 Rules of Criminal
the offense with reference to which his/her Procedure, if an accused testifies against his co-
information or testimony were given, and may accused without first being discharged to be
plead or prove the giving of such information and utilized as a State Witness, he is only a
prosecution witness without the benefit of Sec. 18,

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Rule 119 “Discharge of accused operates as made by the proponent. (Catuira vs. Court
acquittal”. However, the act of an accused in of Appeals, G.R. No. 105813, September
testifying against his co-accused is treated as a 12, 1994).
mitigating circumstance under Art. 13 (10)
“analogous” mitigating circumstance, i. e.,
analogous to a voluntary plea of guilty.
Section 6. Cross-examination; its purpose and
extent. — Upon the termination of the direct
.Section 4. Order in the examination of an
examination, the witness may be cross-examined
individual witness. — The order in which the
by the adverse party as to any matters stated in
individual witness may be examined is as follows;
the direct examination, or connected therewith,
with sufficient fullness and freedom to test his
(a) Direct examination by the proponent;
accuracy and truthfulness and freedom from
(b) Cross-examination by the opponent;
interest or bias, or the reverse, and to elicit all
(c) Re-direct examination by the proponent;
important facts bearing upon the issue. (8a)
(d) Re-cross-examination by the opponent. (4)
CROSS-EXAMINATION
Section 5. Direct examination. — Direct
It is the most reliable and effective way known to
examination is the examination-in-chief of a
test the credibility and accuracy of testimony.
witness by the party presenting him on the facts
relevant to the issue. (5a)
PURPOSES OF CROSS-EXAMINATION
Trial Practice Tips: Do not ask a question, 1. To discredit the witness;
whether on direct or cross-examination that 2. To discredit the testimony of the witness;
you do not know the answer of the witness 3. To clarify certain matters;
(Ucat). 4. To elicit information from a witness.
On cross-examination, do not ask a why, how,
or can you explain…. Scope and limits of cross-examination
1. ENGLISH RULE--- Where a witness is
called to testify to a particular fact, he
becomes a witness for all purposes and
may be fully cross-examined upon all
matters material to the issue, the
examination not being confined to the
matters inquired about in the direct
examination.
65. Immediately after the witness had been 2. AMERICAN RULE--- It restricts cross-
sworn in to testify, without any formal offer of examination to facts and circumstances
his testimony, Atty. A started asking which are connected with the matters that
questions on direct examination to the have been sated in the direct examination
witness. The court may still consider his of the witness.
testimony if:
a. the formal offer is done after the direct Under the Philippine jurisdiction, we follow the two
testimony. rules, specifically under the following instances.
b. the opposing counsel did not object.
c. the witness is an expert witness. In GENERAL, we follow the English Rule, which
d. the opposing counsel offered to stipulate allows cross-examination to elicit all important
on the testimony given. facts bearing upon the issue (sec. 6), but this does
SUGGESTED ANSWER: (b), While it is true not mean that a party by so doing is making the
that Atty. A failed to offer the questioned witness his own in accordance with section 5.
testimony when he called the witness on
the stand, the opposing counsel waived We follow the American rule as to the ACCUSED
this procedural error by failing to object at or a HOSTILE WITNESS, who may only be cross-
the appropriate time i.e., when the ground examined on matters covered by the direct
for objection became reasonably apparent examination.
the moment the witness was called to
testify without any prior offer having been DOCTRINE OF INCOMPLETE TESTIMONY

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When cross-examination cannot be done or ordered stricken from the record because
completed due to causes attributable to the party A has not been cross-examined by the
who offered the witness, the incomplete testimony defense. Consequently, it stands to reason
is rendered incompetent and should be stricken that the striking out of the A‟s testimony
from the record. altogether wiped out the required
authentication for the prosecution‟s
Where however, the prosecution witness was exhibits. They become inadmissible unless
extensively cross-examined on the material points the court, in its discretion, reopens the
and thereafter failed to appear and cannot be trial upon a valid ground and permits the
produced despite a warrant for his arrest, the rectification of the mistakes. (Spouse Dela
testimony offered may be admissible with respect Cruz vs. Papa, G.R. No. 185899, December
to the points covered by the cross-examination (P 8, 2010).
vs. Gorospe, GR NO. 51513, May, 15, 1984). ALTERNATIVE ANSWER: (b), The
uncompleted testimony of A should be
de la Paz, Jr. v. IAC, 154 SCRA 65 (1987)Where allowed to remain on the record since it
a party has had the opportunity to cross-examine was due to the fault of the defense that
a witness but failed to avail himself of it, he they were not able to exercise their right
necessarily forfeits the right to cross-examine and to cross-examine the witness. The defense
the testimony given on direct examination of the should be penalized for employing dilatory
witness will be received or allowed to remain in tactics which resulted in the witness‟
the record. Implied waiver of the right of cross- eventual incapacity to testify.
examine may take various forms, as long as the
party was given the opportunity to confront and
cross-examine an opposing witness but failed to GR: A party who voluntarily offers the testimony of
take advantage of it reasons attributable to himself
a witness in the case is bound by the testimony of
alone. Repeated absences, and/or unjustified said witness.
motions for postponement of the hearing in which
the witness is scheduled to be cross-examined
until the witness passed away is a waiver of the EXCEPTIONS:
right to cross-examine. A party is not bound when calling the following:
1. Adverse party;
Fulgado v. CA, 182 SCRA 81 (1990) The right of a 2. Hostile witness;
party to confront and cross-examine opposing 3. Unwilling witness;
witnesses in a judicial litigation, be it criminal, civil, 4. Witnesses required by law to be
or administrative, is a fundamental right which is presented (e.g. Witnesses of a Notarial
part of due process. The right is not to an actual, will).
but a mere opportunity to cross-examine. Failure
of the adverse party to move to schedule the HOSTILE WITNESS
hearing for the cross-examination of a witness A witness may be considered as unwilling or
before he died or migrated abroad (the imminence hostile only if so declared by the court upon
of which the adverse party was aware) is a waiver adequate showing of:
of such right. The burden is on the party wishing to 1. His adverse interest;
exercise the right to cross-examination, not 2. Unjustified reluctance to testify;
necessarily the plaintiff, to schedule the hearing.
3. His having misled the party into calling
him to the witness stand.
92. Witness A was examined on direct
examination by the prosecutor. The defense Section 7. Re-direct examination; its purpose
counsel however employed dilatory tactics and extent. — After the cross-examination of the
and was able to secure numerous witness has been concluded, he may be re-
examined by the party calling him, to explain or
postponements of A's cross examination. A
supplement his answers given during the cross-
suffered a stroke and became incapacitated.
examination. On re-direct-examination, questions
His uncompleted testimony may therefore be:
on matters not dealt with during the cross-
a. ordered stricken from the record.
examination, may be allowed by the court in its
b. allowed to remain in the record. discretion. (12)
c. held in abeyance until he recovers.
d. not be given any probative weight.
PURPOSE: To prevent injustice to the witness
SUGGESTED ANSWER: (a), The
and the party who has called him by affording an
uncompleted testimony of A should be

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opportunity to the witness to explain or amplify

the testimony which he has given on cross- Re-cross examination is limited to new matters
examination or to explain any apparent brought out on the re-direct examination of the
contradiction or inconsistency in his statements, witness and also on such other matters as may
an opportunity which is not ordinarily afforded be allowed the court in it’s discretion.
during his cross-examination.
The witness may be allowed to reaffirm or

explain his statements, their meaning or import
Section 9. Recalling witness. — After the
and to minimize or destroy discrediting examination of a witness by both sides has been
tendencies. concluded, the witness cannot be recalled without
leave of the court. The court will grant or withhold
NOTE: If in the exercise of discretion, the court
leave in its discretion, as the interests of justice
admits a new matter in re-examination or if may require. (14)
explanation of the answer given is necessary,
he court may permit a re-cross examination
Section 10. Leading and misleading questions.
Witness; Examination of Witnesses (1997) — A question which suggests to the witness the
a) Aside from asking a witness to explain and answer which the examining party desires is a
supplement his answer in the cross-examination, can leading question. It is not allowed, except:
the proponent ask in re-direct examination questions
on matters not dealt with during cross-examination? (a) On cross examination;
b) Aside from asking the witness on matters stated in
his re-direct examination, can the opponent in his re- (b) On preliminary matters;
cross-examination ask questions on matters not dealt
with during the re-direct? (c) When there is a difficulty in getting direct
c) After plaintiff has formally submitted his evidence, and intelligible answers from a witness who is
he realized that he had forgotten to present what he ignorant, or a child of tender years, or is of
considered an important evidence. Can he recall a feeble mind, or a deaf-mute;
witness?
SUGGESTED ANSWER: (d) Of an unwilling or hostile witness; or
(a) Yes, on redirect examination, questions on matters
not dealt with during the cross-examination may be (e) Of a witness who is an adverse party or an
allowed by the court in its discretion. (Sec. 7 of Rule 132). officer, director, or managing agent of a public
(b) Yes, the opponent in his re-cross-examination may or private corporation or of a partnership or
also ask questions on such other matters as may be association which is an adverse party.
allowed by the court in its discretion. (Sec. 8. Rule 132).
(c) Yes, after formally submitting his evidence, the A misleading question is one which assumes as
plaintiff can recall a witness with leave of court. The true a fact not yet testified to by the witness, or
court may grant or withhold leave in its discretion as contrary to that which he has previously stated. It
the interests of justice may require. (Sec. 9. Rule 132). is not allowed. (5a, 6a, and 8a)
People v. Salomon, 229 SCRA 403 (1994) A

Section 8. Re-cross-examination. — Upon the mental retardate is not for this reason alone
conclusion of the re-direct examination, the disqualified from being a witness. As in the case of
adverse party may re-cross-examine the witness other witnesses, acceptance of his testimony
on matters stated in his re-direct examination, and depends on its nature and credibility or, otherwise
also on such other matters as may be allowed by put, the quality of his perceptions and the manner
the court in its discretion. (13) he can make them known to the court. In the case
before us, the trial court noted that although
Sylvia's speech was slurred and it was necessary
PURPOSE: It is to overcome the other party’s
at times to ask her leading questions, "her
attempt to rehabilitate a witness or to rebut
testimony was positive, clear, plain, coherent and
damaging evidence brought out on re-direct
credible." Her mental condition did not vitiate her
examination.
credibility.
It is not a matter of right on re-cross examination
for counsel to touch matters not brought on the REASON FOR ALLOWING LEADING
re-direct examination of the witness. QUESTIONS ON CROSS-EXAMINATION

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The witness is not the cross-examining party’s OTHER MODES OF IMPEACHMENT aside fro
witness. He is expected to be adverse or hostile to sec. 11:
the cross-examiner. He is not expected to 1. by involving him on cross-examination in
cooperate. contradiction;
2. by showing the impossibility or
For exception no. 3 and 4 improbability of his testimony;
The party producing the said witness may 3. by proving action or conduct of the
interrogate him by leading questions and witness inconsistent with his testimony;
contradict him in all respect as if he had been 4. by showing bias, interest or hostile feeling
called by the adverse party. There is no need of a against the adverse party.
preliminary showing of hostility before leading
questions can be asked. NOTE: The impeachment is limited to bad
reputation and the bad reputation must be for lack
GR: Misleading Questions are not allowed. of veracity and does not extend to bad reputation
EXCEPTION: When waived (no objection made); for lack of morals (E.g. You may discredit a
witness because he is a well-known liar but not if
Only one counsel should be allowed to examine a he is a well-known womanizer.
witness in a single stage. However, the other
counsel may make objection to the testimony. The fact that a witness has been impeach does
not mean that his testimony will be stricken or
REASONS: disregarded.
1. To protect the witness from undue and
confusing interrogation; CONTRADICTORY EVIDENCE
2. To secure system and brevity by giving It refers to other testimony of the same witness, or
the control of the interrogation to a single other evidence presented by him in the same
hand. case, but not the testimony of another witness.
While prior inconsistent statements refer to
When is a question Preliminary: statements oral or documentary, made by the
It is when the question does not touch on any of witness sought to be impeached on occasion
the issues. other than the trial which he is testifying.
NOTE: A question that merely suggest a subject

without suggesting an answer or a specific thing is Section 12. Party may not impeach his own
not a leading question. witness. — Except with respect to witnesses
referred to in paragraphs (d) and (e) of Section 10,
Section 11. Impeachment of adverse party's the party producing a witness is not allowed to
witness. — A witness may be impeached by the impeach his credibility.
party against whom he was called,
A witness may be considered as unwilling or
1. by contradictory evidence, hostile only if so declared by the court upon
2. by evidence that his general reputation for adequate showing of his adverse interest,
truth, honesty, or integrity is bad, or unjustified reluctance to testify, or his having
3. by evidence that he has made at other misled the party into calling him to the witness
times statements inconsistent with his stand.
present, testimony,
The unwilling or hostile witness so declared, or the
but not by evidence of particular wrongful acts, witness who is an adverse party, may be
except that it may be shown by the examination of impeached by the party presenting him in all
the witness, or the record of the judgment, that he respects as if he had been called by the adverse
has been convicted of an offense. (15) party, except by evidence of his bad character. He
may also be impeached and cross-examined by
NOTE: To impeach a witness means to discredit the adverse party, but such cross-examination
the witness’ testimony. It is a fundamental right on must only be on the subject matter of his
cross-examination. Since the witness’ credibility is examination-in-chief. (6a, 7a)
always at issue, it is never beyond the permissible
scope of cross-examination. Reason: By calling the witness, the party certifies
to his credibility.

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Exceptions to sec. 12: contradictory statements are not admissible to

impeach a witness.
1. Witnesses required by law;
In the probate of a will, if the will is The rule that the attention of the witness be called
contested, the law requires that to the time, place and circumstances, does not
the proponent should present all apply where the impeaching evidence is in writing.
the attesting witnesses to the will The writing must be shown to the witness so that
if they are still alive. If any or all of he may read it or it may be read to him. He must
them testify against the due be asked if wrote it or signed it and if he admits
execution of the will or do not this, his attention must be called to the
remember having attested to it or inconsistencies.
are otherwise of doubtful
credibility, the proponent can start REASONS FOR LAYING THE PREDICATE
impeaching these witnesses. 1. To avoid unfair surprise to the adverse
2. Witness is an adverse party; party;
3. Witness is an unwilling or hostile witness. 2. To save time, as an admission of the
witness may take the extrinsic proof
REASON: Without the exceptions, the party unnecessary; and
calling the witness will be at the mercy of a 3. To give the witness, in fairness to him, a
TREACHEROUS witness. chance to explain the discrepancy.
Section 13. How witness impeached by It shall be the duty of the party trying to impugn
evidence of inconsistent statements. — Before the testimony of a witness by means of prior or for
a witness can be impeached by evidence that he that matter, subsequent inconsistent statements,
has made at other times statements inconsistent whether oral or in writing, to give the witness a
with his present testimony, the statements must chance to reconcile his conflicting declaration
be related to him, with the circumstances of the such that it is only when no reasonable
times and places and the persons present, and he explanation is given by him that he shall be
must be asked whether he made such statements, deemed impeached.
and if so, allowed to explain them. If the
statements be in writing they must be shown to EFFECT OF WITNESS DENIAL OF MAKING
the witness before any question is put to him STATEMENT
concerning them. (16) If the witness denies making the prior statement or
says that he does not remember making it, the
THE PROCESS OF IMPEACHMENT other party should call in rebuttal a witness to
TWO different stages: prove that such statement has in fact been made
(Herrera).
1. The facts discrediting the witness or his
testimony may be elicited from the witness
Prior inconsistent statement of a witness which is
upon cross-examination;
2. The facts discrediting the witness are admissible as independent evidence may be
shown without laying the predicate (E. g. Where
proved by extrinsic evidence( the adverse
said testimony contains admission against
party in rebuttal proves by another witness
interest. The admission is presented as original
or documentary evidence the facts
independent evidence. This must be offered in
discrediting the testimony of the witness
evidence-in- chief and not on rebuttal).
under attack.
A witness is impeached by prior inconsistent LAYING THE LAYING THE

statements by “laying the predicate”: PREDICATE FOUNDATION OR
1. By confronting him with such statements, BASIS
with the circumstances under which they Refers to a situation
were made; Refers only to where an evidence
2. By asking him whether he made such impeachment of a which is otherwise
statements; witness through prior incompetent will be
3. By giving him the chance to explain the inconsistent statement introduced in evidence
inconsistency. because it falls under
the exceptions to the
It is universally accepted that unless a ground is rule on exclusion.
thus laid upon cross-examination, evidence of

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Note: Under the Best Evidence Rule, if a party he knew that it was correctly
desires to introduce secondary evidence, he must recorded.
first prove that the writing was duly executed and
that the original has been lost or destroyed. NOTE: The evidence is still testimonial in
Without first laying the foundation, secondary character. The memorandum will not be
evidence will not be admitted by the court. considered as documentary evidence.
Witness; Examination of Witnesses (2002) B. PAST RECOLLECTION RECORDED

Is this question on direct examination objectionable: REVIVAL OF PAST RECOLLECTION
“What happened on July 12, 1999”? Why? (2%) A witness may also testify from
SUGGESTED ANSWER: such writing or record, though he
The question is objectionable because it has no basis, retains no recollection of
unless before the question is asked the proper basis is particular facts, if he is able to
laid. swear that the writing or record
correctly stated the transaction
Section 14. Evidence of good character of when made, but such evidence
witness. — Evidence of the good character of a must be received with caution.
witness is not admissible until such character has
been impeached. (17) NOTE: Since there is complete loss of recollection
or memory on the part of the witness, then it is the
Section 15. Exclusion and separation of memorandum itself that will serve as the evidence.
witnesses. — On any trial or hearing, the judge It will now be considered documentary evidence.
may exclude from the court any witness not at the
time under examination, so that he may not hear PRESENT PAST
the testimony of other witnesses. The judge may RECOLLECTION RECOLLECTION
also cause witnesses to be kept separate and to REVIVED RECORDED
be prevented from conversing with one another Memory is obscure but Recollection is zero
until all shall have been examined. (18) there is still memory
The main evidence is The main evidence is
the testimony of the the memorandum
Section 16. When witness may refer to
witness
memorandum. — A witness may be allowed to
refresh his memory respecting a fact, by anything The witness simply Witness must swear
written or recorded by himself or under his testifies that the that the writing correctly
direction at the time when the fact occurred, or memorandum is states the transaction
immediately thereafter, or at any other time when correctly written by him
the fact was fresh in his memory and knew that or under his direction;
the same was correctly written or recorded; but in no need to swear
such case the writing or record must be produced
and may be inspected by the adverse party, who The memorandum from which the witness may be
may, if he chooses, cross examine the witness permitted to refresh his memory need not be an
upon it, and may read it in evidence. So, also, a original writing. It is sufficient if it is shown that the
witness may testify from such writing or record, witness knows the copy to be a true one, and his
though he retain no recollection of the particular memory refreshed thereby enables him to testify
facts, if he is able to swear that the writing or from his own recollection of the facts, independent
record correctly stated the transaction when of his confidence of the accuracy of the copy.
made; but such evidence must be received with
caution. (10a) Memorandum (1996)
X states on direct examination that he once knew the
facts being asked but he cannot recall them now.
A. PRESENT RECOLLECTION REVIVED
When handed a written record of the facts he testifies
REVIVAL OF PRESENT TESTIMONY
that the facts are correctly stated, but that he has never
A witness may be allowed to
seen the writing before. Is the writing admissible as
refresh his memory respecting a
past recollection recorded? Explain,
fact, by anything written or SUGGESTED ANSWER:
recorded by himself or under his No, because for the written record to be admissible as
direction at the time when the fact past recollection recorded. It must have been written
occurred, or immediately or recorded by X or under his direction at the time
thereafter, or later so long as the when the fact occurred, or immediately thereafter, or
fact was fresh in his memory and
at any other time when the fact was fresh in his
________________________________________________________________________________________________
memory and he knew that the same was correctly Note: A public document can be received in
written or recorded. (Sec. 16 of Rule 132) But in this case X evidence without giving any proof of their due
has never seen the writing before. execution and authenticity.
Section 17. When part of transaction, writing or Note: Defective notarization does not necessarily
record given in evidence, the remainder, the nullify or render void ab initio the parties’
remainder admissible. — When part of an act, transaction, nor ipso facto invalidate the Deed of
declaration, conversation, writing or record is Sale (Abellana vs. P., GR No. 174654, Aug. 17,
given in evidence by one party, the whole of the 2011).
same subject may be inquired into by the other,
and when a detached act, declaration, PUBLIC PRIVATE
conversation, writing or record is given in WRITING WRITING
evidence, any other act, declaration, conversation, A public A private
writing or record necessary to its understanding document is writing must be
may also be given in evidence. (11a) admissible in proved relative
As to
authenticity evidence to its due
Note: this section enunciates the doctrine of without further execution and
indivisibility of evidence. proof of its genuineness
genuineness before it may
Section 18. Right to inspect writing shown to and due be received in
witness. — Whenever a writing is shown to a execution evidence
witness, it may be inspected by the adverse party. A public Private writing
(9a) instrument is binds only the
As to persons evidence parties who
B. AUTHENTICATION AND PROOF OF bound against 3rd executed it or
DOCUMENTS persons, of the their privies, in
fact which so far as due
gave rise to its execution and
AUTHENTICATION due execution date of the
It means the process of PROVING the due and to the date document are
execution and genuineness of the document. of the latter concern
Certain
DOCUMENT
transactions
It is a deed, instrument, or other duly authorized
As to validity must be in
paper by which something is proved, evidenced or
of certain public
set forth.
transaction instrument,
other wise they
Section 19. Classes of Documents. — For the will not be
purpose of their presentation evidence, given any
documents are either public or private. validity
Public documents are: Section 20. Proof of private document. —

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

notary public except last wills and signature or handwriting of the maker.
testaments; and
Any other private document need only be
(c) Public records, kept in the Philippines, identified as that which it is claimed to be. (21a)
or private documents required by law to
be entered therein.
All other writings are private. (20a)
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66. A private document may be considered as In addition to the modes of authenticating a private
evidence when it is sequentially: document under section 20, American
a. marked, identified, authenticated. jurisprudence also gives the Doctrine of Self-
b. identified, marked and offered in evidence. Authentication, that is, where the facts in writing
c. marked, identified, authenticated and could only have been known by the writer; and
offered in evidence. also the rule of authentication by adverse
d. marked, authenticated and offered in party, that is , where the reply of the adverse
evidence. party refers to and affirms the sending to him and
SUGGESTED ANSWER: his receipt of the letter in question, a copy of which
(c), Before any private document is offered the proponent is offering as evidence (Regalado).
as authentic is received in evidence, its
due execution and authenticity must be
proved. (Rule 132, Sec. 20). The private Section 21. When evidence of authenticity of
document must be marked during the pre- private document not necessary. — Where a
marking of exhibits. It must be identified private document is more than thirty years old, is
and authenticated by a witness, and produced from the custody in which it would
thereafter offered, as the court shall not naturally be found if genuine, and is unblemished
consider any evidence which has not been by any alterations or circumstances of suspicion,
formally offered. (Rule 132, Sec. 34). In no other evidence of its authenticity need be
addition, the private document must also given. (22a)
be admitted by the court in order to be
considered as evidence. NOTE: This is the ancient document rule.
An ancient document is said to be in proper

custody if it is in the place in which and under the
care of the person with whom it would naturally
Buñag v. CA, 158 SCRA 299 (1988) The
be.
authenticity and due execution of a private
document is not proven by testimony that the party REASON: The fact of it s coming from the natural
thumbmarked it. The circumstances of the
and proper place tends to remove presumptions of
presence of the witness during the execution must
fraud and strengthen the belief of its genuineness.
be related. There must be proof that the party
understood it, considering he was illiterate (implied
Bartolome v. IAC, 183 SCRA 102 (1990) Where
from the thumbmarking). There must be showing
the offeror’s witness testified that the document
that the document was duly read, explained and
had a missing 4th page, the document can not
translated to the illiterate party.
qualify as an ancient document because it is
blemished by alteration or circumstance of
NOTE: The following are private writings which suspicion. An incomplete document is akin to an
may be admitted in evidence without previous altered document, more so if the missing page
proof of its authenticity and due execution: contains the signature of the parties to the
document. Proof of the document’s authenticity
1. When the genuineness and due execution and due execution is therefore necessary.
of the document is admitted by the
adverse party; By merely producing the document, it establishes
a. Failure to deny under oath an prima facie it own authentication. The burden then
actionable document; shifts to the adverse party to prove that the
b. Request for admission is not document is not what it purports to be or other
answered. wise not authentic.
2. When such genuineness and due

execution is immaterial to the issue;
Section 22. How genuineness of handwriting
3. When the document is an ANCIENT
proved. — The handwriting of a person may be
DOCUMENT (sec. 21).
proved by any witness who believes it to be the
4. When it is offered as not authentic.
handwriting of such person because he has seen
the person write, or has seen writing purporting to
NOTE: The ancient document rule applies only if
be his upon which the witness has acted or been
there are no other witnesses to determine charged, and has thus acquired knowledge of the
authenticity.
handwriting of such person. Evidence respecting

________________________________________________________________________________________________
the handwriting may also be given by a any purpose, may be evidenced by an official
comparison, made by the witness or the court, publication thereof or by a copy attested by the
with writings admitted or treated as genuine by the officer having the legal custody of the record, or by
party against whom the evidence is offered, or his deputy, and accompanied, if the record is not
proved to be genuine to the satisfaction of the kept in the Philippines, with a certificate that such
judge. (23a) officer has the custody. If the office in which the
record is kept is in foreign country, the certificate
METHODS OF AUTHENTICATION: may be made by a secretary of the embassy or
1. Testimony of the purported writer; legation, consul general, consul, vice consul, or
2. The testimony of a witness who has seen consular agent or by any officer in the foreign
the writer sign his name or actually made service of the Philippines stationed in the foreign
the writing whether the witness attested country in which the record is kept, and
the instrument or not; authenticated by the seal of his office. (25a)
3. The testimony of a witness who is familiar
with the hand-writing. Thus, under this PROOF OF OFFICIAL RECORD
rule, the genuineness of a handwriting
may be proved: 1. Domestic Record—it may be evidenced by:
a. By any witness who believes it to a. An official publication; or
be the hand writing of such b. A copy thereof attested by the officer
person because he has seen the having the custody of the record or his
person write or has seen writing deputy, with a certificate that such officer
purporting to be his upon which has the custody.
the witness has acted or been
charged; 2. Foreign Record—it may be evidenced by:
b. By comparison made by the a. An official publication; or
witness or the court, with the b. A copy thereof attested by the officer
writings admitted or treated as having the custody of the record or his
genuine by the party, against deputy, accompanied by a certificate of
whom the evidence is offered, or the secretary of the embassy or legation,
proved to be genuine to the consul general, consul, vice-consul or
satisfaction of the judge. consular agent or foreign service officer
and with a seal of his office.
Handwriting experts not mandatory
Handwriting experts while probably useful are not Pacific Asia Overseas v. NLRC, 161 SCRA 122
indispensable in examining or comparing (1988) To be enforceable, the foreign judgment
handwriting. must be proven as a public document of a written
official act or record of an act of an official body or
tribunal of a foreign country. The offeror must
Weight of expert testimony submit an attestation issued by the proper foreign
It depends upon the assistance he may afford in official having legal custody of the original
pointing out the distinguishing marks, judgment that the copy is a faithful reproduction of
characteristics and discrepancies in and between the original, which attestation must be
the genuine and false specimens of writings which authenticated by a Philippine Consular officer
would ordinarily escape notice or detection by an having jurisdiction in that country.
untrained observer.
Zalamea v. CA, 228 SCRA 23 (1993) Foreign laws
Section 23. Public documents as evidence. — do not prove themselves nor can the courts take
Documents consisting of entries in public records judicial notice of them. Like any other fact, they
made in the performance of a duty by a public must be alleged and proved. Written law may be
officer are prima facie evidence of the facts therein evidenced by an official publication thereof or by a
stated. All other public documents are evidence, copy attested by the officer having the legal
even against a third person, of the fact which gave custody of the record, or by his deputy, and
rise to their execution and of the date of the latter. accompanied with a certificate that such officer
(24a) has custody. The certificate may be made by a
secretary of an embassy or legation, consul
general, consul, vice-consul, or consular agent or
Section 24. Proof of official record. — The
by any officer in the foreign service of the
record of public documents referred to in
Philippines stationed in the foreign country in
paragraph (a) of Section 19, when admissible for
which the record is kept, and authenticated by the

________________________________________________________________________________________________
seal of his office. Mere testimony of a witness is NOTE: GR: A document acknowledged before a
not sufficient to prove foreign law. notary public becomes a public instrument.
Hence, its execution and authenticity need not
Section 25. What attestation of copy must be proved as in a private writing.
state. — Whenever a copy of a document or
record is attested for the purpose of evidence, the EXCEPTION: Notarial Wills.
attestation must state, in substance, that the copy
is a correct copy of the original, or a specific part Section 31. Alteration in document, how to
thereof, as the case may be. The attestation must explain. — The party producing a document as
be under the official seal of the attesting officer, if genuine which has been altered and appears to
there be any, or if he be the clerk of a court having have been altered after its execution, in a part
a seal, under the seal of such court. (26a) material to the question in dispute, must account
for the alteration. He may show that:
Section 26. Irremovability of public record. —
Any public record, an official copy of which is 1. the alteration was made by another,
admissible in evidence, must not be removed from without his concurrence, or
the office in which it is kept, except upon order of 2. was made with the consent of the parties
a court where the inspection of the record is affected by it, or
essential to the just determination of a pending 3. was otherwise properly or innocently
case. (27a) made, or
4. that the alteration did not change the
Section 27. Public record of a private meaning or language of the instrument.
document. — An authorized public record of a
private document may be proved by the original If he fails to do that, the document shall not be
record, or by a copy thereof, attested by the legal admissible in evidence. (32a)
custodian of the record, with an appropriate
certificate that such officer has the custody. (28a) Section 32. Seal. — There shall be no difference
between sealed and unsealed private documents
Section 28. Proof of lack of record. — A written insofar as their admissibility as evidence is
statement signed by an officer having the custody concerned. (33a)
of an official record or by his deputy that after
diligent search no record or entry of a specified Section 33. Documentary evidence in an
tenor is found to exist in the records of his office, unofficial language. — Documents written in an
accompanied by a certificate as above provided, is unofficial language shall not be admitted as
admissible as evidence that the records of his evidence, unless accompanied with a translation
office contain no such record or entry. (29) into English or Filipino. To avoid interruption of
proceedings, parties or their attorneys are directed
Section 29. How judicial record impeached. — to have such translation prepared before trial.
Any judicial record may be impeached by (34a)
evidence of:
Pacific Asia Overseas v. NLRC, 161 SCRA 122
(a) want of jurisdiction in the court or judicial (1988) A document written in an unofficial
officer, language should be translated into either English
or Filipino. The translator should be identified
(b) collusion between the parties, or either as an official interpreter of the court, or as a
competent translator of both languages. The
translation should be either sworn to as an
(c) fraud in the party offering the record, in
accurate translation of the original, or agreed upon
respect to the proceedings. (30a)
by the parties.
Section 30. Proof of notarial documents. —
People v. Monleon, 74 SCRA 263 (1976)
Every instrument duly acknowledged or proved
Affidavits written in an unofficial language and not
and certified as provided by law, may be
accompanied with a translation are inadmissible in
presented in evidence without further proof, the
evidence.
certificate of acknowledgment being prima facie
evidence of the execution of the instrument or
document involved. (31a) C. OFFER AND OBJECTION

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Formal offer of evidence Philippine Bank of Commerce v. CA, 195 SCRA

Objections: grounds—immaterial or irrelevant 567 (1991) Where the genuineness and due
Sustained: evidence Overruled: evidence execution of documents of an instrument attached
offered will not be will be allowed to be to a complaint are deemed admitted by failure to
allowed to be presented presented in court specifically deny it under oath, such instruments
in court are considered as evidence although they were
Remedy of offeror: Presentation of not formally offered.
tender of excluded evidence offered
evidence Tabuena v. CA, 196 SCRA 650 (1991) Mere fact
Objections to presentation on grounds of that a document is marked as an exhibit does not
general or specific grounds mean it has been offered as evidence. Marking at
Sustained: question Overruled: questions the pre-trial was only for the purpose of identifying
posed will not be will be allowed them at that time. However, if an exhibit has been
permitted. E.g. duly identified by testimony duly recorded and has
misleading, revise itself been incorporated into the records (i.e.
question, or tender of recital of the contents of the exhibit).
excluded evidence
Section 35. When to make offer. — As regards
the testimony of a witness, the offer must be made
Section 34. Offer of evidence. — The court shall at the time the witness is called to testify.
consider no evidence which has not been formally
offered. The purpose for which the evidence is Documentary and object evidence shall be offered
offered must be specified. (35) after the presentation of a party's testimonial
evidence. Such offer shall be done orally unless
allowed by the court to be done in writing. (n)
Why purpose of offer must be specified Offer of Evidence (1997)

A trial court cannot take into consideration in deciding
a case an evidence that has not been "formally
To determine whether that piece of
offered". When are the following pieces of evidence
evidence should be admitted or not.
formally offered?
Because such evidence may be
admissible for several purposes under the (a) Testimonial evidence
doctrine of multiple admissibility, or may (b) Documentary evidence
be admissible for only one purpose and (c) Object evidence
SUGGESTED ANSWER:
not for another, otherwise the other party
(a) Testimonial evidence is formally offered at the time
cannot interpose the proper objection.
the witness is called to testify. (Rule 132. Sec. 35, first par.).
Evidence submitted for one purpose may
(b) Documentary evidence is formally offered after the
not be considered for other purpose by
presentation of the testimonial evidence. (Rule 132, Sec.
the judge.
35, second par.).
(c) The same is true with object evidence. It is also
NOTE: Where the evidence is inadmissible for the
offered after the presentation of the testimonial
purpose stated in the offer, it must be rejected,
evidence.
though the same may be admissible for another
purpose. The reason is that the adverse party is
Offer of Evidence; Testimonial & Documentary (1994)
prevented from objecting to the admissibility
thereof on grounds other than those available to
What is the difference between an offer of testimonial
meet the stated purpose. evidence and an offer of documentary evidence?
SUGGESTED ANSWER:
An offer of testimonial evidence is made at the time he
In the case of Mata Vda. De Onate vs. CA, the witness is called to testify, while an offer of
court allowed evidence not formally offered to be
documentary evidence is made after the presentation
admitted and considered by the trial court
of a party’s testimonial evidence. (Sec. 35, Rule 132).
provided the following requirements are present:
1. The same must have been duly identified Offer of Evidence; Failure to Offer (2007)
by testimony duly recorded; No.VII. (b) G files a complaint for recovery of
2. The same must have been incorporated to possession and damages against F. In the
the records of the case.
course of the trial, G marked his evidence but
his counsel failed to file a formal offer of

________________________________________________________________________________________________
evidence. F then presented in evidence tax STAGES IN THE PRESENTATION OF

declarations in the name of his father to DOCUMENTARY
establish that his father is a co-owner of the
property. The court ruled in favor of F, saying 1. IDENTIFICATION
that G failed to prove sole ownership of the By identification is meant proof that the
property in the face of F’s evidence. Was the document being presented is the same
court correct? Explain briefly. (5%) one offered by the witness in his
SUGGESTED ANSWER: No, the trial court testimony.
is not correct in ruling in favor of F. Tax
Declaration are not by themselves 2. MARKING
evidence of ownership; hence, they are All exhibits should be marked to facilitate
not sufficient evidence to warrant a their identification. The marking may be
judgment that F‟s father is a co-owner of done at the pre-trial or during trial.
the property. Plaintiff‟s failure to make a
formal offer of his evidence may mean a The plaintiff and the prosecution use
failure to prove the allegations in his capital letters (A, B, C, etc) and the
complaint. However, it does not accused use Arabic numbers (1, 2, 3, etc).
necessarily result in a judgment awarding
co-ownership to the defendant. While the If the exhibit is presented in connection
court may not consider evidence which is with an affidavit, like in support or in
not offered, the failure to make a formal opposition to a motion to dismiss, the
offer of evidence is a technical lapse in words “motion to dismiss”, should be
added after the letter or number.
procedure that may not be allowed to
defeat substantive justice. In the interest
3. AUTHENTICATION
of justice, the court can require G to offer
The proof of the document’s due
his evidence and specify the purpose
execution and genuineness if the purpose
thereof.
is to show that it is genuine or the proof of
its forgery, if the purpose is to show that
the document is a forgery.
IMPLIED OFFER 4. INSPECTION
Every time a question is asked of a witness, there Under section 18, Rule 132, whenever a
is an implies automatic offer of the evidence writing is shown to a witness, it may be
sought to be elicited by the question, if there is inspected by the adverse party.
any objection to the question, the same must be
raised immediately; otherwise there is a waiver. 5. FORMAL OFFER
After the termination of the testimonial
Therefore, oral evidence is always being offered evidence, the proponent will then make a
twice: formal offer and state the purpose for
1. Before the witness testifies; which the document is presented.
2. Every time a question is asked of him.
6. OBJECTIONS
PROCEDURE BEFORE DOCUMENTARY AND The objection to the introduction or
OBJECT EVIDENCE CAN BE CONSIDERED BY presentation of the document shall be
THE COURT: made when it is formally offered in
1. Marking; evidence.
2. Identification;
3. Authentication; There is a distinction between identification of
4. Formal offer; documentary evidence and formal offer of
5. If the evidence is excluded, an offer of documentary evidence as an exhibit.
proof (tender of excluded evidence). 1. In identification of documentary
evidence, the same is done in the course
Authentication and identification can be dispensed of the trial and is accompanied by the
with if there is a stipulation on the due execution marking of the evidence as an exhibit.
and genuineness of a private document. 2. In formal offer of evidence as an
exhibit, the same is done when the party
has presented his testimonial evidence.

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NOTE: The mere fact that a particular document is When the evidence is excluded upon a mere
identified and marked as an exhibit does not mean general objection, the ruling will be upheld, if any
that it will be or has been offered as part of the ground in fact existed for the exclusion. It will be
evidence of the party. The party may decide to assumed, in the absence of any request by the
formally offer it if it believes that this will advance opposing party or the court to make the objection
his cause, or it may decide not to do so at all. definite, that the ruling was placed upon the right
ground.
Section 36. Objection. — Objection to evidence
offered orally must be made immediately after the Catuira v. CA, 236 SCRA 398 (1994) Failure to
offer is made. object upon the time a witness is called to testify
on the ground that there was no formal offer of the
testimony is a waiver of the objection. Objection
Objection to a question propounded in the course
on such ground after the witness has testified is
of the oral examination of a witness shall be made
too late.
as soon as the grounds therefor shall become
reasonably apparent.
Interpacific Transit, Inc. v. Aviles, 186 SCRA 385
(1990) Objection to documentary evidence must
An offer of evidence in writing shall be objected to be made at the time it is formally offered (i.e. when
within three (3) days after notice of the unless a the party rests its case) as an exhibit and not
different period is allowed by the court. before. Objection prior to that time (e.g.
identification of the evidence) is premature. Mere
In any case, the grounds for the objections must identification and marking is not equivalent to a
be specified. (36a) formal offer of the evidence. A party may decide to
not offer evidence already identified and marked.
CLASSIFICATION OF OBJECTIONS:
1. General Objection—It does not go Admissibility; Objections (1997)
beyond declaring that the evidence as What are the two kinds of objections? Explain each
immaterial, incompetent, irrelevant or briefly. Given an example of each.
inadmissible; in other words, it does not SUGGESTED ANSWER:
specify the specific grounds for objection Two kinds of objections are: (1) the evidence being
(also known as a Broadside Objection). presented is not relevant to the issue; and (2) the
2. Specific Objection—It states why or how evidence is incompetent or excluded by the law or the
the evidence is irrelevant or incompetent. rules, (Sec. 3, Rule 138). An example of the first is when
Example: Objection to the question being the prosecution offers as evidence the alleged offer of
leading. an Insurance company to pay for the damages suffered
by the victim in a homicide case. (See 1997 No. 14).
Requirements to exclude inadmissible Examples of the second are evidence obtained in
evidence: violation of the Constitutional prohibition against
1. One has to object to the evidence; unreasonable searches and seizures and confessions
2. The objection must be timely made; and admissions in violation of the rights of a person
3. The grounds for the objection must be under custodial Investigation.
specified. ALTERNATIVE ANSWERS:
1) Specific objections: Example: parol evidence and
Reasons why objection must be specified: best evidence rule General Objections: Example:
1. So that the judge may understand the continuing objections (Sec. 37 of Rule 132).
question raised and that the adversary 2) The two kinds of objections are: (1) objection to a
may have an opportunity to remedy the question propounded in the course of the oral
defect, if possible. examination of the witness and (2) objection to an
2. To make a proper record for the reviewing offer of evidence in writing. Objection to a question
court in case of appeal. propounded in the course of the oral examination of a
witness shall be made as soon as the grounds therefor
NOTE: As a rule, failure to specify the grounds for shall become reasonably apparent otherwise, it is
the objection is in effect a waiver of the objection. waived. An offer of objection in writing shall be made
Every other objection which is not particularly within three (3) days after notice of the offer, unless a
stated is to be considered abandoned, except different period is allowed by the court. In both
where the evidence could not have been legally instances the grounds for objection must be specified.
admitted for any purpose whatever. An example of the first is when the witness is being
cross-examined and the cross examination is on a

________________________________________________________________________________________________
matter not relevant. An example of the second is that On proper motion, the court may also order the
the evidence offered is not the best evidence. striking out of answers which are incompetent,
irrelevant, or otherwise improper. (n)
Section 37. When repetition of objection
unnecessary. — When it becomes reasonably MODES OF EXCLUDING INADMISSIBLE
apparent in the course of the examination of a EVIDNCE
witness that the question being propounded are of 1. Objection when the evidence is formally
the same class as those to which objection has offered;
been made, whether such objection was sustained 2. Motion to strike out;
or overruled, it shall not be necessary to repeat a. When the witness prematurely
the objection, it being sufficient for the adverse answered the question before the
party to record his continuing objection to such adverse party had the opportunity
class of questions. (37a) to voice out fully its objection;
b. When the answer is
NOTE: This is known as the Rule on Continuing unresponsive,
Objections c. When answer is incompetent.
Irrelevant, or improper;
d. Uncompleted testimonies where
Section 38. Ruling. — The ruling of the court must
there is no opportunity for cross-
be given immediately after the objection is made,
examination;
unless the court desires to take a reasonable time
e. Conditionally admitted evidence
to inform itself on the question presented; but the
not later substantiated.
ruling shall always be made during the trial and at
such time as will give the party against whom it is
made an opportunity to meet the situation
presented by the ruling.
The reason for sustaining or overruling an (42) During trial, plaintiff offered evidence
objection need not be stated. However, if the that appeared irrelevant at that time but he
objection is based on two or more grounds, a said he was eventually going to relate to the
ruling sustaining the objection on one or some of issue in the case by some future evidence.
them must specify the ground or grounds relied The defendant objected. Should the trial
upon. (38a) court reject the evidence in question on
ground of irrelevance? (A) No, it should
Hearsay Evidence; Objection (2012) No.VII. reserve its ruling until the relevance is
(a) Counsel A objected to a question posed by shown. (B) Yes, since the plaintiff could
opposing Counsel B on the grounds that it anyway subsequently present the evidence
was hearsay and it assumed a fact not yet anew. (C) Yes, since irrelevant evidence is not
established. The judge banged his gavel and admissible. (D) No, it should admit it
ruled by saying "Objection Sustained". Can conditionally until its relevance is shown.
Counsel 8 ask for a reconsideration of the
ruling? Why? (5%) SUGGESTED ANSWER: Section 40. Tender of excluded evidence. — If
documents or things offered in evidence are
Yes, Counsel B may ask the Judge to excluded by the court, the offeror may have the
specify the ground‟s relied upon for same attached to or made part of the record. If the
sustaining the objection and thereafter evidence excluded is oral, the offeror may state for
the record the name and other personal
move its reconsideration thereof. (Rule
circumstances of the witness and the substance of
the proposed testimony. (n)
NOTE: When an attorney is not allowed by the

court to present testimony which he thinks is
Section 39. Striking out answer. — Should a competent, material and necessary to prove his
witness answer the question before the adverse case, he must make an offer of proof. This is the
party had the opportunity to voice fully its objection method of properly preserving the record to the
to the same, and such objection is found to be end that the question may be saved for the
meritorious, the court shall sustain the objection purpose of review (Caraig, P.337).
and order the answer given to be stricken off the
record. PURPOSES:

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1. To inform the court what is expected to be 4. SUBSTANTIAL EVIDENCE

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

________________________________________________________________________________________________
suspension under the Civil Service Law may only be of knowing the facts to which there are
for a maximum period of three months. The period of testifying,
the suspension under the Anti-Graft Law shall be the 3. the nature of the facts to which they
same pursuant to the equal protection clause. (Garcia testify,
v. Mojica, G.R. No. 13903, September 10, 1999; Layno v. 4. the probability or improbability of their
Sandiganbayan, G.R. No. L-65848, May 21, 1985) testimony,
5. their interest or want of interest, and
Bar Exam Question 2011 6. also their personal credibility so far as the
(21) 008-997-0001 In which of the following same may legitimately appear upon the
instances is the quantum of evidence trial.
ERRONEOUSLY applied? (A) in Writ of
Amparo cases, substantial evidence. (B) to The court may also consider the number of
satisfy the burden of proof in civil cases, witnesses, though the preponderance is not
preponderance of evidence. (C) to overcome a necessarily with the greater number. (1a)
disputable presumption, clear and
convincing evidence. (D) to rebut the
NOTE: In order to have the evidence which bears
presumptive validity of a notarial
on the issue preponderate in his favor, a party
document, substantial evidence.
must have presented in support of his contention
proof which appears to have overcome opposing
presumptions as well as opposing evidence.
Note: Evidence to be believed must not only come
from a credible witness but must also be credible
in itself.
POSITIVE NEGATIVE
TESTIMONY TESTIMONY
EQUIPOISE RULE
It is when the witness It is when the witness
Where the evidence of the parties in a criminal
affirms that a fact did or states that he did not
case is evenly balanced, the constitutional
did not occur see or know of the
presumption of innocence should tilt the scales in
occurrence of a fact
favor of the accused.
Of greater weight that Is of lesser weight than
EQUIPONDERANCE OF EVIDENCE (RULE) the other positive testimony
In civil cases, when there is balance in the
evidence of the plaintiff and the defendant, as a REASON WHY POSITIVE TESTIMONY IS OF
rule defendant wins. Plaintiff must proved his GREATER WEIGHT
allegations by preponderance of evidence. He who denies a certain fact may not remember
exactly the circumstances on which he basis his
HOWEVER, when the defendant interposes an denial.
affirmative defense, and the evidence is evenly
balanced, [it is suggested] plaintiff wins. The
affirmative defense shifted the burden of proof to Section 2. Proof beyond reasonable doubt. —
the defendant. Besides, by raising affirmative In a criminal case, the accused is entitled to an
defense, the defendant is deemed to have acquittal, unless his guilt is shown beyond
admitted the material allegations in the complaint. reasonable doubt. Proof beyond reasonable doubt
does not mean such a degree of proof, excluding
possibility of error, produces absolute certainty.
Moral certainly only is required, or that degree of
Section 1. Preponderance of evidence, how proof which produces conviction in an
determined. — In civil cases, the party having unprejudiced mind. (2a)
burden of proof must establish his case by a
preponderance of evidence. In determining where Note: Prosecution must present evidence that is
the preponderance or superior weight of evidence strong enough to convince the court that the
on the issues involved lies, the court may prisoner must be punished not because he cannot
consider: proved that he is innocent but because it has
proved that he was guilty.
1. all the facts and circumstances of the
case, For the accused, it is enough that he is able to
2. the witnesses' manner of testifying, their prove his defenses by preponderance of evidence
intelligence, their means and opportunity since it will create a reasonable doubt as to his
guilt. Thus, whenever there is a reasonable doubt

________________________________________________________________________________________________
as to is guilt, the accused is entitled to an 2. the participation of the accused as the

acquittal. perpetrator or one of the perpetrators.
The 2nd requisite means that the accused must
properly be identified. Cursory identification does
ALIBI not suffice to convict the accused. There must be
One of the weakest defenses because of the positive identification made with moral certainty as
facility with which it can be fabricated, just like a to the person of the offender (P. vs. Maguing, GR
mere denial (P. vs. Esperanza, GR No. 139217- No. 144090, June 26, 2003).
24, June 27, 2003).
Eyewitness identification is often decisive of the
It must be established by positive, clear and conviction or acquittal of the accused.
satisfactory evidence. Identification of an accused through mug shots is
one of the established procedures in pinning down
REQUISITES: criminals. However, to avoid charges of
1. showing that the accused is not only impermissible suggestion, there should be nothing
somewhere else; in the photograph that would focus attention on a
2. but that it was impossible for him to be at single person (P. vs. Villena, GR no. 140066, Oct.
the place of the crime at the time of its 14, 2002).
commission.
A police line-up is merely a part of the
MOTIVE investigation process by police investigators to
The rule is well-settled that the prosecution need ascertain the identity of the offenders or confirm
not prove motive on the part of the accused when their identification by a witness to the crime. Police
the latter has been positively identified as the officers are not obliged to assemble a police line-
author of the crime. up as a condition sine qua non to prove identity of
the offender. If on the basis of the evidence on
It becomes relevant only when the accused sas hand, police officers are certain of the identity of
not been positively identified and proof thereof the offender, they need not require a police line-up
becomes essential only when the evidence of the (Tapdasan, Jr. vs. P. GR No. 141344, Nov. 21,
commission of the crime is purely circumstantial or 2002
inconclusive.
RES IPSA LOQUITOR (the thing speaks for itself)
OUT OF COURT IDENTIFICATION: The SC has It is the maxim for the rule that the fact of the
held that on the admissibility and reliability of out- occurrence of an injury, taken with the surrounding
of-court identification of suspects, courts have circumstances, may permit an inference or raise a
adopted the “TOTALITY OF CIRCUMSTANCES presumption of negligence, or make out a
TEST” which utilizes the following factors: plaintiff’s prima facie case, and present a question
1. the witness’s opportunity to view the of fact for the defendant to meet with explanation.
criminal at the time of the crime;
2. the witness’s degree of attention at that The doctrine is simply a recognition of postulate
time; that as a matter of common knowledge and
3. the accuracy of any prior description given experience, the very nature of certain types of
by the witness; occurrences may justify an inference of
4. the level of certainty that the witness negligence on the part of the person who controls
demonstrated at the identification; the instrumentality causing the injury, in the
5. the length of time between the crime and absence of some explanation by him. However, it
the identification; does not dispense with the requirement of proof of
6. the suggestiveness of the identification negligence.
procedure.
RULE ON PARTIAL CREDIBILITY
When the identity of the appellant is not Falsus in uno, Falsus in omnibus (False in one
established beyond reasonable doubt, acquittal thing, false in everything).
necessarily follows. Conviction for the crime rests
on the strength of the prosecution’s evidence, If the testimony of a witness on a material
never on the weakness of that of the defense. issue is willfully false and given with an
intention to deceive, the court may
In every criminal prosecution, the People must disregard all the witness’ testimony.
prove:
1. the commission of the crime; and

________________________________________________________________________________________________
This is not a mandatory rule of evidence but is is credible and positive, can prove the
applied by the court in its discretion. guilt of the accused beyond reasonable
doubt. (People vs. Layson, G.R. No.
IMPORTANT: 105689, February 23, 1994). Thus, a lone
1. Deals only with weight of evidence and witness may be believed even if not
not a positive rule of law; corroborated.
2. The witness’ false or exaggerated
statements on other matters shall not
preclude the acceptance of such evidence Section 3. Extrajudicial confession, not
as is relieved from sign of falsehood; sufficient ground for conviction. — An
3. The court may accept and reject portions extrajudicial confession made by an accused,
of the witness’ testimony depending on shall not be sufficient ground for conviction, unless
the inherent credibility thereof. corroborated by evidence of corpus delicti. (3)
The credibility of witness is best determined by the
CORPUS DELICTI
trial judge, who has the direct opportunity to
In its legal sense, refers to the fact of the
observe and evaluate their demeanor on the
commission of the crime, not to the physical body
witness stand. The trial court’s finding of fact will
of the deceased or to the ashes of the burned
not be disturbed on appeal, unless there is a clear
building or as in the case of smuggled cigarettes.
showing that it plainly overlooked matters of
substance which, if considered, might affect the
The corpus delicti may be proven by the credible
result of the review (P. vs. Pacuancuan, GR NO.
testimony of a sole witness, not necessarily by
144589, June 16, 2003).
physical evidence such as the aforementioned
In rape cases, the lone testimony of the offended (Rimorin vs. P. GR No. 146481, April, 30 2003).
party, if free from serious and material
The identity of the accused is not an element of
contradictions, is sufficient to sustain a conviction
the corpus delicti.
(P. vs. Esperanza, supra).
Admissibility; Admission of Guilt (2008)
REASON: No young Filipina of decent repute
would undergo the expense, trouble, No. XVI. The mutilated cadaver of a woman
inconvenience of a public trial, exposing herself to was discovered near a creek. Due to
public shame and ridicule; suffer scandal and witnesses attesting that he was the last
embarrassment and humiliation of a public trial person seen with the woman when she was
and publicly admitting that she was criminally still alive, Carlito was arrested within five
abused unless it is the truth (P. vs Avero, 165 hours after the discovery of the cadaver and
SCRA 130). brought to the police station. The crime
laboratory determined that the woman had
The sole, uncorroborated testimony of an accused been raped. While in police custody, Carlito
who turned state witness suffice to convict his co- broke down in the presence of an assisting
accused if it is given in unhesitatingly and in a counsel orally confessed to the investigator
straightforward manner and is full of details which that he had raped and killed the woman,
by their nature could not have been the result of detailing the acts he had performed up to his
deliberate afterthought, otherwise, it needs dumping of the body near the creek. He was
corroboration, the presence or lack of which may genuinely remorseful. During the trial, the
ultimately decide the case of the prosecution and state presented the investigator to testify on
the fate of the accused (P. vs. Sunga, GR No. the oral confession of Carlito. Is the oral
126029, march 27, 2003). confession admissible in evidence of guilt?
(4%) SUGGESTED ANSWER: The
Bar Exam Question 2012 declaration of the accused expressly
60. Correctly complete the sentence: A lone acknowledging his guilt, in the presence of
witness --- assisting counsel, may be given in
a. is credible only if corroborated. evidence against him and any person,
b. is never credible. otherwise competent to testify as a
c. may be believed even if not witness, who heard the confession is
corroborated. competent to testify as to the substance
d. is always credible. to what he heard and understood it. What
SUGGESTED ANSWER: (c), The testimony is crucial here is that the accused was
of a lone prosecution witness, as long as it informed of his right to an attorney and

________________________________________________________________________________________________
that what he says may be used in evidence Direct proof of previous agreement is not
against him. As the custodial confession necessary to prove conspiracy as it may be
was given in the presence of an assisting deducted from the acts of the perpetrators before,
counsel, Carlito is deemed fully aware of during and after the commission of the crime
the consequences of his statements which are indicative of a common design,
(People v. Silvano, GR No. 144886, 29 concerted action and concurrence of sentiments
April 2002). (Serrano v. CA, GR No. 123896, June 25, 2003).
Admissibility; Offer to Marry; Circumstantial Evidence

Section 4. Circumstantial evidence, when (1998)
sufficient. — Circumstantial evidence is sufficient A was accused of having raped X. Rule on the
for conviction if: admissibility of the following pieces of evidence:
1 an offer of A to marry X; and (3%]
2 a pair of short pants allegedly left by A at the crime
(a) There is more than one circumstances;
which the court, over the objection of A, required him
to put on, and when he did, it fit him well. [2%]
(b) The facts from which the inferences SUGGESTED ANSWER:
are derived are proven; and 1. A's offer to marry X is admissible in evidence as an
Implied admission of guilt because rape cases are not
(c) The combination of all the allowed to be compromised. (Sec. 27 of Rule 13O;
circumstances is such as to produce a People vs. Domingo, 226 SCRA 156.)
conviction beyond reasonable doubt. (5) 2. The pair of short pants, which fit the accused well,
is circumstantial evidence of his guilt, although
REASON for admission: standing alone it cannot be the basis of conviction.
It is due to necessity, especially in a criminal case. The accused cannot object to the court requiring him
If only direct evidence is allowed, very few to put the short pants on. It is not part of his right
convictions could be had. Besides circumstantial against self-incrimination because it is a mere physical
evidence is based on sound rational grounds of act.
everyday logic.
Bar Exam Question 2011 Section 5. Substantial evidence. — In cases filed

(37) Cindy charged her husband, George, before administrative or quasi-judicial bodies, a
with bigamy for a prior subsisting marriage fact may be deemed established if it is supported
with Teresa. Cindy presented Ric and Pat, by substantial evidence, or that amount of relevant
neighbors of George and Teresa in Cebu City, evidence which a reasonable mind might accept
to prove, first, that George and Teresa as adequate to justify a conclusion. (n)
cohabited there and, second, that they
established a reputation as husband and Section 6. Power of the court to stop further
wife. Can Cindy prove the bigamy by such evidence. — The court may stop the introduction
evidence? (A) Yes, the circumstantial of further testimony upon any particular point
evidence is enough to support a conviction when the evidence upon it is already so full that
for bigamy. (B) No, at least one direct more witnesses to the same point cannot be
evidence and two circumstantial evidence are reasonably expected to be additionally persuasive.
required to support a conviction for bigamy. But this power should be exercised with caution.
(C) No, the circumstantial evidence is not (6)
enough to support a conviction for
bigamy. Section 7. Evidence on motion. — When a
(D) No, the circumstantial evidence cannot motion is based on facts not appearing of record
overcome the lack of direct evidence in any the court may hear the matter on affidavits or
criminal case. depositions presented by the respective parties,
but the court may direct that the matter be heard
wholly or partly on oral testimony or depositions.
Circumstantial evidence is sometimes the best (7)
evidence. Circumstantial evidence cannot lie or be
a product of deliberate afterthought which is a
possibility in a testimony of an ordinary witness
(Ucat).
RULE 134

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Perpetuation of Testimony Section 5. Reference to court. — For the

purpose of applying Rule 24 to depositions for
Section 1. Petition. — A person who desires to perpetuating testimony, each reference therein to
perpetuate his own testimony or that of another the court in which the action is pending shall be
person regarding any matter that may be deemed to refer to the court in which the petition
cognizable in any court of the Philippines, may file for such deposition was filed.
a verified petition in the court of the province of the
residence of any expected adverse party. Section 6. Use of deposition. — If a deposition to
perpetuate testimony is taken under this rule, or if,
Section 2. Contents of petition. — The petition although not so taken, it would be admissible in
shall be entitled in the name of the petitioner and evidence, it may be used in any action involving
shall show: the same subject matter subsequently brought in
accordance with the provisions of Sections 4 and
5 of Rule 24.
(a) that the petitioner expects to be a party to an
action in a court of the Philippines by is presently
unable to bring it or cause it to be brought; Section 7. Depositions pending appeal. — If an
appeal has been taken from a judgment of the
Regional Trial Court or before the taking of an
(b) the subject matter of the expected action and
his interest therein; appeal if the time therefor has not expired, the
Regional Trial Court in which the judgment was
rendered may allow the taking of depositions of
(c) the facts which he desires to establish by the witnesses to perpetuate their testimony for use in
proposed testimony and his reasons for desiring to the event of further proceedings in the said court.
perpetuate it; In such case the party who desires to perpetuate
the testimony may make a motion in the said
(d) the names of a description of the persons he Regional Trial Court for leave to take the
expects will be adverse parties and their depositions, upon the same notice and service
addresses so far as known; and thereof as if the action was pending therein.
The motion shall show:
(e) the names and addresses of the persons to be (a) the name and the addresses of the persons to
examined and the substance of the testimony be examined and the substance of the testimony
which he expects to elicit from each, and shall ask which he expects to elicit from each; and
for an order authorizing the petitioner to take the (b) the reason for perpetuating their testimony.
depositions of the persons to be examined named
in the petition for the purpose of perpetuating their If the court finds that the perpetuation of the
testimony. testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the
Section 3. Notice and service. — The petitioner depositions to be taken, and thereupon the
shall thereafter serve a notice upon each person depositions may be taken and used in the same
named in the petition as an expected adverse manner and under the same conditions as are
party, together with a copy of a petition, stating prescribed in these rules for depositions taken in
that the petitioner will apply to the court, at a time actions pending in the Regional Trial Court. (7a)
and place named therein, for the order described
in the petition. At least twenty (20) days before
the date of hearing the notice shall be served in
the manner provided for service of summons.
Rule 135
POWERS AND DUTIES OF COURTS AND
Section 4. Order of examination. — If the court is
JUDICIAL OFFICERS
satisfied that the perpetuation of the testimony
may prevent a failure or delay of justice, it shall
make an order designating or describing the
persons whose deposition may be taken and
specifying the subject matter of the examination, RULE 135
and whether the depositions shall be taken upon
oral examination or written interrogatories. The Powers and Duties of Courts and Judicial
depositions may then be taken in accordance with Officers
Rule 24 before the hearing.

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Section 1. Courts always open; justice to be except with the approval of the judge of first
promptly and impartially administered. — instance of said province, and only in the following
Courts of justice shall always be open, except on cases:
legal holidays, for the filing of any pleading, motion
or other papers, for the trial of cases, hearing of (a) When an order for the delivery of personal
motions, and for the issuance of orders or property lying outside the province is to be
rendition of judgments. Justice shall be impartially complied with;
administered without unnecessary delay.
(b) When an attachment of real or personal
Judicial Autonomy & Impartiality (2003) property lying outside the province is to be
In rendering a decision, should a court take into made;
consideration the possible effect of its verdict upon
the (c) When the action is against two or more
political stability and economic welfare of the nation? defendants residing in different provinces; and
4%
SUGGESTED ANSWER:
No, because a court is required to take into (d) When the place where the case has been
consideration only the legal issues and the evidence brought is that specified in a contract in writing
admitted in the case. The political stability and between the parties, or is the place of the
economic welfare of the nation are extraneous to the execution of such contract as appears
case. They can have persuasive influence but they are therefrom.
not the main factors that should be considered in
deciding a case. A decision should be based on the law, Writs of execution issued by inferior courts may be
rules of procedure, justice and equity. However, in enforced in any part of the part of the Philippines
exceptional cases the court may consider the political without any previous approval of the judge of first
stability and economic welfare of the nation when instance.
these
are capable of being taken into judicial notice of and Criminal process may be issued by a justice of the
are relevant to the case. peace or other inferior court, to be served outside
his province, when the district judge, or in his
absence the provincial fiscal, shall certify that in
his opinion the interest of justice require such
Sec 2. Publicity of proceedings and records. —
service.
The sitting of every court of justice shall be public,
but any court may, in its discretion, exclude the
public when the evidence to be adduced is of such Section 5. Inherent powers of court. — Every
nature as to require their exclusion in the interest court shall have power:
of morality or decency. The records of every court
of justice shall be public records and shall be (a) To preserve and enforce order in its
available for the inspection of any interested immediate presence;
person, at all proper business hours, under the
supervision of the clerk having custody of such (b) To enforce order in proceedings before it,
records, unless the court shall, in any special or before a person or persons empowered to
case, have forbidden their publicity, in the interest conduct a judicial investigation under its
of morality or decency. authority;
Section 3. Process of superior courts enforced (c) To compel obedience to its judgments,
throughout the Philippines. — Process issued orders and processes, and to the lawful orders
from a superior court in which a case is pending to of a judge out of court, in a case pending
bring in a defendant, or for the arrest of any therein;
accused person, or to execute any order or
judgment of the court, may be enforced in any part (d) To control, in furtherance of justice, the
of the Philippines. conduct of its ministerial officers, and of all
other persons in any manner connected with a
Section 4. Process of inferior courts. — The case before it, in every manner appertaining
process of inferior courts shall be enforceable thereto;
within the province where the municipality or city
lies. It shall not be served outside the boundaries
of the province in which they are comprised

________________________________________________________________________________________________
(e) To compel the attendance of persons to opportunity given for argument to the parties or
testify in a case pending therein; their counsel, it shall be lawful for him to prepare
and sign his decision in said case anywhere within
(f) To administer or cause to be administered the Philippines. He shall send the same by
oaths in a case pending therein, and in all registered mail to the clerk of the court where the
other cases where it may be necessary in the case was heard or argued to be filed therein as of
exercise of its powers; the date when the same was received by the
clerk, in the same manner as if he had been
present in court to direct the filing of the judgment.
(g) To amend and control its process and
If a case has been heard only in part, the
orders so as to make them conformable to law
Supreme Court, upon petition of any of the parties
and justice;
to the case and the recommendation of the
respective district judge, may also authorize the
(h) To authorize a copy of a lost or destroyed judge who has partly heard the case, if no other
pleading or other paper to be filed and used judge had heard the case in part, to continue
instead of the original, and to restore, and hearing and to decide said case notwithstanding
supply deficiencies in its records and his transfer or appointment to another court of
proceedings. equal jurisdiction.
Section 6. Means to carry jurisdiction into

effect. — When by law jurisdiction is conferred on
a court or judicial officer, all auxiliary writs,
processes and other means necessary to carry it
into effect may be employed by such court or
officer; and if the procedure to be followed in the
exercise of such jurisdiction is not specifically
pointed out by law or by these rules, any suitable
process or mode of proceeding may be adopted
which appears comfortable to the spirit of the said
law or rules.
Section 7. Trials and hearings; orders in

chambers. — All trials upon the merits shall be
conducted in open court and so far as convenient
in a regular court room. All other acts or
proceeding may be done or conducted by a judge
in chambers, without the attendance of the clerk or
other court officials.
Section 8. Interlocutory orders out of province.

— A judge of first instance shall have power to
hear and determine, when within the district
though without his province, any interlocutory
motion or issue after due and reasonable notice to
the parties. On the filing of a petition for the writ of
habeas corpus or for release upon bail or
reduction of bail in any Court of First Instance, the
hearings may be had at any place in the judicial
district which the judge shall deem convenient.
Section 9. Signing judgments out of province.

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

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does not exceed One Hundred Thousand Pesos

(P100,000.00) exclusive of interest and costs.
Section 3. Definiton of Terms. - For purposes of

this Rule:
ANNEXES (a) Plaintiff - refers to the party who

initiated a small claims action. The term
includes a defendant who has filed a
BONUS ITEMS counterclaim against plaintiff;
(b) Defendant - is the party against whom

Republic of the Philippines the plaintiff has filed a small claims action.
SUPREME COURT The term includes a plaintiff against whom
Manila a defendant has filed a claim, or a person
who replies to the claim;
EN BANC
(c) Person - is an individual, corporation,
A.M. No. 08-8-7-SC November 21, 2000 partnership, limited liability partnership,
association, or other juridical entity
endowed with personality by law;
RE: THE RULE OF PROCEDURE FOR SMALL
CLAIMS CASES
(d) Individual - is a natural person;
RESOLUTION
(e) Motion - means a party's request,
written or oral, to the court for an order
Acting on the recommendation of the Chairperson, action. It shall include an informal written
Technical Working Group, Committee on Revision request to the court, such as a letter;
of the Rules of Court, submitting for the
consideration and approval of the Court the
(f) Good cause - means circumstances
proposed "The Rule of Procedure for Small
Claims Cases," the Court Resolved to APPROVE sufficient to justify the requested order or
other action, as determined by the judge;
the same.
and
The Rule shall take effect on October 01, 2008
(g) Affidavit - means a written statement
following its publication two (2) newspaper of
general circulation. or declaration of facts that are shown or
affirmed to be true.
September 9, 2008
Section 4. Applicability - The Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal
RULE OF PROCEDURE FOR SMALL CLAIMS Trial Courts, and Municipal Circuit Trial Courts
CASES shall apply this Rule in all actions which are; (a)
purely civil in nature where the claim or relief
Section 1. Title. - This Rule shall be known as " prayed for by the plaintiff is solely for payment or
The Rule of Procedure for Small Claims Cases." reimbursement of sum of money, and (b) the civil
aspect of criminal action, or reserved upon the
NATURE OF SMALL CLAIMS CASES filing of the criminal action in court, pursuant to
1. Personal action Rule of 111 of the Revised Rules of Criminal
2. Action in personam Procedure.
3. Summary
These claims or demands may be;
Section 2. Scope. - This Rule shall govern the
procedure in actions before the Metropolitan trial (a) For money owned under any of the
Courts, Municipal Trial Courts in Cities, Municipal following;
Trial Courts and Municipal Circuit Trial Courts for
payment of money where the value of the claim 1. Contract of Lease;

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2. Contract of Loan;
3. Contract of Services; Bar Exam Question 2012
4. Contract of Sale; or 97. The Rule on Small Claims is applicable
5. Contract of Mortgage; to:
a. claims for unpaid rentals of P 100,000 or
(b) For damages arising from any of the less, with prayer for ejectment.
following; b. enforcement of a barangay amicable
settlement involving a money claim of P
1. Fault or negligence; 50,000 after one (1) year from date of
2. Quasi-contract; or settlement.
3. Contract; c. action for damages arising from a quasi-
delict amounting to P 100,000.
(c) The enforcement of a barangay d. action to collect on a promissory note
amicable settlement or an arbitration amounting to P 105,000 where plaintiff
award involving a money claim covered by expressly insists in recovering only P 1
this Rule pursuant to Sec. 417 of Republic 00,000.
Act 7160, otherwise known as the Local SUGGESTED ANSWER: (c), The Rule on
Government Code of 1991. Small Claims shall be applied in all actions
which are: (a) purely civil in nature where
the claim or relief prayed for by the
Bar Exam Questions 2013
plaintiff is solely for payment or
IV. A Small Claims Court __________. (1%)
reimbursement of sum of money, and (b)
(A) has jurisdiction over ejectment actions (B)
the civil aspect of criminal actions, either
has limited jurisdiction over ejectment
filed before the institution of the criminal
actions (C) does not have any jurisdiction
action, or reserved upon the filing of the
over ejectment actions (D) does not have
criminal action in court, pursuant to Rule
original, but has concurrent, jurisdiction over
111 of the Revised Rules of Criminal
ejectment actions (E) has only residual
Procedure. These claims or demands may
jurisdiction over ejectment actions
be for damages arising from fault or
SUGGESTED ANSWER: (C), Under Section
negligence. (Sec. 4, A.M. No. 08-8-7-SC,
4 of A.M. No. 8-8-7-SC, Rules of Procedure
The Rule of Procedure for Small Claims
of Small Claims, Small claims court shall
Cases).
have jurisdiction over all actions which
are: (a) purely civil in nature where the
claim or relief prayed for by the plaintiff is
solely for payment or reimbursement of
sum of money, and (b) the civil aspect of Section 5. Commencement of Small Claims
criminal actions, either filed before the Action. - A small claims action is commenced by
institution of the criminal action, or filing with the court an accomplished and verified
reserved upon the filing of the criminal Statement of Claim (Form 1 - SCC) in duplicate,
action in court, pursuant to Rule 111 of accompanied by a Certification of Non-forum
the Revised Rules of Criminal Procedure. Shopping (Form 1-A,SCC), and two (2) duly
It does not include ejectment actions. certified photocopies of the actionable document/s
Moreover, the action allowed under the subjects of the claim, as well as the affidavits of
Rules on Small claims refers only to witnesses and other evidence to support the
money under a lease contract. It does not claim. No evidence shall be allowed during the
necessarily refer to an ejectment suit. hearing which was not attached to or submitted
At any rate, Section 33 of Batas Pambansa together with the Claim, unless good cause is
Blg 129, as amended by Section 3 of R.A> shown for the admission of additional evidence.
7691, as well as Section 1, Rule 70 of the
Rules of Court, clearly provides that No formal pleading, other than the Statement of
forcible entry and unlawful detainer cases Claim described in this Rule, is necessary to
fall within the exclusive jurisdiction of the initiate a small claims action.
Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts Section 6. Joinder of Claims - Plaintiff may join
(Estel vs. Recaredo Diego, Sr. And in a single statement of claim one or more
Recaredo Diego, Jr., G.R. No. 174082, separate small claims against a defendant
January 16, 2012, Peralta, J.). provided that the total amount claimed, exclusive

________________________________________________________________________________________________
of interest and costs, does not exceed Section 8. Payment of Filing Fees. - The plaintiff
P100,00.00. shall pay the docket and other legal fees
prescribed under Rule 141 of the Revised Rules of
Section 7. Affidavits - The affidavits submitted Court, unless allowed to litigate as an indigent.
under this Rule shall state only facts of direct
personal knowledge of the affiants which are A claim filed with a motion to sue as indigent
admissible in evidence. (Form 6-SCC) shall be referred to the Executive
Judge for immediate action in case of multi-sala
A violation of this requirement shall subject the courts, or to the Presiding Judge of the court
party, and the counsel who assisted the party in hearing the small claims case. If the motion is
the preparation of the affidavits, if any, to granted by the Executive Judge, the case shall be
appropriate disciplinary action. The inadmissible raffled off or assigned to the court designated to
affidavit(s) or portion(s) thereof shall be expunged hear small claims cases. If the motion is denied,
from the record. the plaintiff shall be given five (5) days within
which to pay the docket fees, otherwise, the case
shall be dismissed without prejudice. In no case
Small Claims (2013)
shall a party, even if declared an indigent, be
No.X. As a new lawyer, Attorney Novato
exempt from the payment of the P1,000.00 fee for
limited his practice to small claims cases,
service of summons and processes in civil cases.
legal counseling and the notarization of
documents. He put up a solo practice law
office and was assisted by his wife who Section 9. Dismissal of the Claim. - After the
served as his secretary/helper. He used a court determines that the case falls under this
makeshift hut in a vacant lot near the local Rule, it may, from an examination of the
courts and a local transport regulatory allegations of the Statement of Claim and such
agency. With this practice and location, he evidence attached thereto, by itself, dismiss the
did not have big-time clients but enjoyed case outright of any of the grounds apparent from
the Claim for the dismissal of a civil action.
heavy patronage assisting walk-in clients. (A)
What role can Attorney Novato play in small
claims cases when lawyers are not allowed to Section 10. Summons and Notice of Hearing -
appear as counsel in these cases? (3%) If no ground for dismissal is found, the court shall
SUGGESTED ANSWER: Atty. Novata may forthwith issue Summons (Form 2-SCC) on the
provide legal assistance to his clients by day of receipt of the Statement of Claim, directing
giving counselling and guidance in the the defendant to submit a verified Response.
preparation and accomplishment of the
necessary documents and Affidavits to The court shall also issue a Notice (Form 4-SCC)
initiate or defend a small claims action to both parties, directing them to appear before it
including the compilation and on a specific date and time for hearing, with a
notarization of the aforementioned warning that no unjustified postponement shall be
documents, if necessary. allowed, as provided in Section 19 of this Rule.
(B) What legal remedy, if any, may Attorney The summons and notice to be served on the
Novato pursue for a client who loses in a defendant shall be accompanied by a copy of the
small claims case and before which tribunal Statement of Claim and documents submitted by
or court may this be pursued? (4%) plaintiff, and a copy of the Response (Form 3-
SUGGESTED ANSWER: SCC) to be accomplished by the defendant. The
Atty. Novata may file a petition for Notice shall contain an express prohibition against
Certiorari under Rule 65 of the Rules of the filing of a motion to dismiss or any other
Court before the RTC since a decision in motion under Section 14 of this Rule.
small claims cases is final and
unappealable (Sec. 23, A.M. No. 8-8-7 SC, Section 11. Response - The defendant shall file
Rules of Procedure for Small Claims with the court and serve on the plaintiff a duly
Cases). The petition for certiorari should accomplished and verified Response within a non
be filed before the RTC conformably to the - extendible period of ten (10) days from receipt of
Principle of judicial Hierarchy. summons. The Response shall be accompanied
by certified photocopies of documents, as well as
affidavits of witnesses and other evidence in
support thereof. No evidence shall be allowed
during the hearing which was not attached to or

________________________________________________________________________________________________
submitted together with the Response, unless against the plaintiff that (a) is within the coverage
good cause is shown for the admission of of this rule, exclusive of interest and costs; (b)
additional evidence. arises out of the same transaction or event that is
the subject matter of the plaintiff's claim; (c) does
Bar Exam Question 2011 not require for its adjudication the joinder of third
(8) Which of the following precepts forms part parties; and (d) is not the subject of another
of the rules governing small claims? (A) pending action, the claim shall be filed as a
Permissive counterclaim is not allowed. counterclaim in the response; otherwise, the
(B) The court shall render its decision within defendant shall be barred from suit on the
3 days after hearing. (C) Joinder of separate counterclaim.
claims is not allowed. (D) Motion to declare
defendant in default is allowed. The defendant may also elect to the file a
counterclaim against the plaintiff that does not
arise out of the same transaction or occurrence ,
provided that the amount and nature thereof are
within the coverage of this Rule and the
Section 12. Effect of Failure to File Response - prescribed docket and the other legal fees are
Should the defendant fail to file his response paid.
within the required period, the court by itself shall
render judgment as may be warranted by the facts
alleged in the Statement of claim limited to what is Section 14. Prohibited Pleadings and Motions -
prayed for. The court however, may, in its The following pleadings, motions, and petitions
discretion, reduce the amount of damages for shall not be allowed in the cases covered by this
being excessive or unconscionable. Rule:
Bar Exam Question 2012 (a) Motion to dismiss the compliant except on
10. A defendant who fails to file a timely the ground of lack of jurisdiction;
Answer or responsive pleading will not be (a) is already removed by later
amendment of the Rule.
declared in default in:
(b) Motion for a bill of particulars;
a. probate proceedings where the estate is
(c) Motion for new trial, or for reconsideration
valued at P 1 00,000;
of a judgment, or for reopening of trial;
b. forcible entry cases;
(d) Petition for relief from judgment;
c. collection case not exceeding P (e) Motion for extension of time to file
100,000; pleadings, affidavits, or any other paper;
d. violation of rental law. (f) Memoranda;
SUGGESTED ANSWERS: (g) Petition for certiorari, mandamus, or
(b), Under the Rules on Summary prohibition against any interlocutory order
Procedure, if the defendant fails to file an issued by the court;
Answer to the complaint within a period of (h) Motion to declare the defendant in default;
Ten (10) days from receipt thereof, the (i) Dilatory motions for postponement;
court may motu propio, or on motion of (j) Reply;
the plaintiff, render judgment as may be (k) Third-party complaints; and
warranted by the facts alleged in the (l) Interventions.
complaint and limited to what is prayed
for therein. (Sec.6, Revised Rules of Section 15. Availability of Forms; Assistance
Summary Procedure). There is no by Court Personnel. - The Clerk of Court or other
declaration of default under the Rules on personnel shall provide such assistance as may
Summary Procedure. (c), A collection case be requested by a plaintiff or a defendant
not exceeding P100,000.00 is governed by regarding the availability of forms and other
the Law on Small Claims which does not information about the coverage, requirements as
vest the Court the power and authority to well as procedure for small claims cases.
declare a defendant in default.
Section 16. Appearance. - the parties shall
appear at the designated date of hearing
personally or through a representative authorized
Section 13. Counterclaims Within the under a Special Power of Attorney (Form 5-SCC )
Coverage of this Rule - If at the time the action is to enter into an amicable settlement, to submit of
commenced, the defendant possesses a claim Judicial Dispute Resolution (JDR) and to enter into

________________________________________________________________________________________________
stipulations or admissions of facts and of judge who conducted the JDR, the hearing shall
documentary exhibits so proceed in an informal and expeditious manner
and terminated within one (1) day.
Section 17. Appearance of Attorneys Not
Allowed. - No attorney shall appear in behalf of or Absent such agreement, (a) in case of a multi-sala
represent a party at the hearing, unless the court , the case shall, on the same day, be
attorney is the plaintiff or defendant. transmitted (Form 11-SCC) to the Office of the
Clerk of Court for immediate referral by the
If the court determines that a party cannot properly Executive Judge to the pairing judge for hearing
present his/her claim or defense and needs and decision within five (5) working days from
assistance, the court may, in its discretion, allow referral; and (b) in case of single sala court, the
another individual who is not an attorney to assist pairing judge shall hear and decide the case in the
that party upon the latter's consent. court of origin within five (5) working days from
referral by the JDR judge.
Section 18. Non-appearance of Parties. -
Failure of the plaintiff to appear shall be cause for Section 23. Decision. - After the hearing, the
the dismissal of the claim without prejudice. The court shall render its decision on the same day,
defendant who appears shall be entitled to based on the facts established by the evidence
judgment on a permissive counterclaim. (Form 13-SCC). The decision shall immediately be
entered by the Clerk of Court in the court docket
Failure of the defendant to appear shall have the for civil cases and a copy thereof forthwith served
on the parties.
same effect as failure to file a Response under
Section 12 of this Rule. This shall not apply where
one of two or more defendants who are sued The decision shall be final and unappealable.
under a common cause of action and have
pleaded a common defense appears at the Note: The remedy is Rule 65.
hearing.
Section 24. Execution. - If the decision is
Failure of both parties to appear shall cause the rendered in favor of the plaintiff, execution shall
dismissal with prejudice of both the claim and issue upon motion (Form 9-SCC).
counterclaim.
Section 25. Applicability. of the Rules of Civil
Section 19. Postponement When Allowed. - A Procedure - The Rules of Civil procedure shall
request for postponement of a hearing may be apply suppletorily insofar as they are not
granted only upon proof of the physical inability of inconsistent with this rule.
the party to appear before the court on the
scheduled date and time. A party may avail of only Section 26. Effectivity. - This Rule shall take
one (1) postponement. effect on October 01, 2008 for the pilot courts
designated to apply the procedure for small claims
Section 20. Duty of the Court. - At the beginning cases following its publication in two newspaper of
of the court session, the judge shall read aloud a general circulation.
short statement explaining the nature, purpose
and the rule of procedure of small claims cases.
Republic of the Philippines
Section 21. Judicial Dispute Resolution. - At SUPREME COURT
the hearing, the judge shall conduct Judicial Manila
Dispute Resolution (JDR) through mediation,
conciliation, early neutral evaluation, or any other A.M. No. 09-6-8-SC
mode of JDR. Any settlement (Form 7-SCC) or
resolution (Form 8-SCC) of the dispute shall be RULES OF PROCEDURE FOR
reduced into writing, signed by the parties and ENVIRONMENTAL CASES
submitted to the court for approval (Form 12-
SCC). RESOLUTION
Section 22. Failure of JDR. - If JDR fails and the Acting on the recommendation of the Chairperson
parties agree in writing (Form 10-SCC) that the of the Sub-committee on the Rules of Procedure
hearing of the case shall be presided over by the

________________________________________________________________________________________________
for Environmental Cases submitting for this Courts (k) R.A. No. 6969, Toxic Substances and
consideration and approval Hazardous Waste Act;
(l) R.A. No. 7076, Peoples Small-Scale Mining
the proposed Rules of Procedure for Act;
Environmental Cases, the Court Resolved to (m) R.A. No. 7586, National Integrated Protected
APPROVE the same. Areas System Act including all laws, decrees,
orders, proclamations and issuances establishing
These Rules shall take effect within fifteen (15) protected areas;
days following its publication once in a newspaper
of general circulation. (n) R.A. No. 7611, Strategic Environmental Plan
for Palawan Act;
April 13, 2010. (o) R.A. No. 7942, Philippine Mining Act;
(p) R.A. No. 8371, Indigenous Peoples Rights Act;
(q) R.A. No. 8550, Philippine Fisheries Code;
RULES OF PROCEDURE FOR (r) R.A. No. 8749, Clean Air Act;
ENVIRONMENTAL CASES (s) R.A. No. 9003, Ecological Solid Waste
Management Act;
PART I (t) R.A. No. 9072, National Caves and Cave
Resource Management Act;
RULE 1 (u) R.A. No. 9147, Wildlife Conservation and
GENERAL PROVISIONS Protection Act;
(v) R.A. No. 9175, Chainsaw Act;
Section 1.Title. These Rules shall be known as (w) R.A. No. 9275, Clean Water Act;
"The Rules of Procedure for Environmental (x) R.A. No. 9483, Oil Spill Compensation Act of
Cases." 2007; and
Section 2.Scope. These Rules shall govern the (y) Provisions in C.A. No. 141, The Public Land
procedure in civil, criminal and special civil actions Act; R.A. No. 6657, Comprehensive Agrarian
before the Regional Trial Courts, Metropolitan Reform Law of 1988; R.A. No. 7160, Local
Trial Courts, Municipal Trial Courts in Cities, Government Code of 1991; R.A. No. 7161, Tax
Municipal Trial Courts and Municipal Circuit Trial Laws Incorporated in the Revised Forestry Code
Courts involving enforcement or violations of and Other Environmental Laws (Amending the
environmental and other related laws, rules and NIRC); R.A. No. 7308, Seed Industry
regulations such as but not limited to the following: Development Act of 1992; R.A. No. 7900, High-
Value Crops Development
(a) Act No. 3572, Prohibition Against Cutting of
Tindalo, Akli, and Molave Trees; Rules of Procedure for Environmental Cases Act;
(b) P.D. No. 705, Revised Forestry Code; R.A. No. 8048, Coconut Preservation Act; R.A.
(c) P.D. No. 856, Sanitation Code; No. 8435, Agriculture and Fisheries Modernization
(d) P.D. No. 979, Marine Pollution Decree; Act of 1997; R.A. No. 9522, The Philippine
(e) P.D. No. 1067, Water Code; Archipelagic Baselines Law; R.A. No. 9593,
(f) P.D. No. 1151, Philippine Environmental Policy Renewable Energy Act of 2008; R.A. No. 9637,
of 1977; Philippine Biofuels Act; and other existing laws
(g) P.D. No. 1433, Plant Quarantine Law of 1978; that relate to the conservation, development,
(h) P.D. No. 1586, Establishing an Environmental preservation, protection and utilization of the
Impact Statement System Including Other environment and natural resources.
Environmental Management Related Measures
and for Other Purposes; Bar Exam Question 2012
(i) R.A. No. 3571, Prohibition Against the Cutting, 37. The Director of the BFAR launches an
Destroying or Injuring of Planted or Growing intensified campaign against illegal fishpen
Trees, Flowering Plants and Shrubs or Plants of operators situated in Laguna de Bay. The
Scenic Value along Public Roads, in Plazas, illegal fishpen operators file a Section 3 (e),
Parks, School Premises or in any Other Public R.A. 3019 (causing undue injury or benefit)
Ground; case against the BFAR Director before the
Sandiganbayan. The Director's best remedy
(j) R.A. No. 4850, Laguna Lake Development before Sandiganbayan is:
Authority Act; a. file a Motion to Quash based on lack of
jurisdiction over the person.

________________________________________________________________________________________________
b. file a Motion to Quash for non-exhaustion Saw Act is the Regional Trial Court, and
of administrative remedies. not the MTC, acting as an Environmental
c. file a Motion to Dismiss because the Court.
complaint is a SLAPP suit.
d. move for suspension of proceedings
because of a pre-judicial question.
SUGGESTED ANSWER: Section 3.Objectives. - The objectives of these
(c), The Director of the BFAR may file an Rules are:
answer interposing as a defense that the
case is a Strategic Lawsuit Against Public (a) To protect and advance the constitutional
Participation (SLAPP) and attach right of the people to a balanced and healthful
supporting documents, affidavits, papers ecology;
and other evidence; and, by way of
counterclaim, pray for damages, (b) To provide a simplified, speedy and
attorney‟s fees and costs of suit. The inexpensive procedure for the enforcement of
Director who is seeking the dismissal of environmental rights and duties recognized
the case must prove by substantial under the Constitution, existing laws, rules
evidence that his acts for the enforcement and regulations, and international
of environmental law are legitimate action agreements;
for the protection, preservation and
rehabilitation of the government. The (c) To introduce and adopt innovations and
party filing the action assailed as a SLAPP best practices ensuring the effective
shall prove by preponderance of evidence enforcement of remedies and redress for
that the action is not a SLAPP and is a violation of environmental laws; and
valid claim. (Rule 6, Sec. 2, A.M. No. 09-6-
8-SC, Rules of Procedure for (d) To enable the courts to monitor and exact
Environmental Cases). compliance with orders and judgments in
environmental cases.
75. The MTC, acting as an Environmental Section 4.Definition of Terms. -
Court, has original
and exclusive jurisdiction over the following, (a) By-product or derivatives means any part
taken or substance extracted from wildlife, in raw
except:
or in processed form including stuffed animals and
a. criminal offenses punishable under the
herbarium specimens.
Chain Saw Act (R.A. 9175)
b. violation of the NIPAS Law (R.A. 7586)
(b) Consent decree refers to a judicially-approved
c. violation of the Mining Laws settlement between concerned parties based on
d. violation of Anti-Pollution Laws public interest and public policy to protect and
SUGGESTED ANSWER: preserve the environment.
(a), The Metropolitan Trial Court (MTC)
exercises exclusive original jurisdiction (c) Continuing mandamus is a writ issued by a
over all offenses punishable with court in an environmental case directing any
imprisonment not exceeding six (6) years agency or instrumentality of the government or
irrespective of the amount of fine. (BP officer thereof to perform an act or series of acts
129, Sec. 32). Relative thereto, R.A. 9175 decreed by final judgment which shall remain
or otherwise known as the Chain Saw Act effective until judgment is fully satisfied.
of 2002, penalizes any person who found
to be in possession of a chain saw and (d) Environmental protection order (EPO) refers
uses the same to cut trees and timber in to an order issued by the court directing or
forest land or elsewhere except as enjoining any person or government agency to
authorized by the Department with perform or desist from performing an act in order
imprisonment of six (6) years and one (1) to protect, preserve or rehabilitate the
day to eight (8) years or a fine of not less environment.
than Thirty thousand pesos (P30,000.00)
but not more than fifty thousand pesos (e) Mineral refers to all naturally occurring
(P50,000.00) or both at the discretion of inorganic substance in solid, gas, liquid, or any
the court. Clearly, the court which has intermediate state excluding energy materials
jurisdiction over violations of the Chain

________________________________________________________________________________________________
such as coal, petroleum, natural gas, radioactive (f) Third party complaint.
materials and geothermal energy.
Section 3.Verified complaint. The verified
(f) Precautionary principle states that when complaint shall contain the names of the parties,
human activities may lead to threats of serious their addresses, the cause of action and the reliefs
and irreversible damage to the environment that is prayed for.
scientifically plausible but uncertain, actions shall
be taken to avoid or diminish that threat. The plaintiff shall attach to the verified complaint
all evidence proving or supporting the cause of
(g) Strategic lawsuit against public action consisting of the affidavits of witnesses,
participation (SLAPP) refers to an action whether documentary evidence and if possible, object
civil, criminal or administrative, brought against evidence. The affidavits shall be in question and
any person, institution or any government agency answer form and shall comply with the rules of
or local government unit or its officials and admissibility of evidence.
employees, with the intent to harass, vex, exert
undue pressure or stifle any legal recourse that The complaint shall state that it is an
such person, institution or government agency has environmental case and the law involved. The
taken or may take in the enforcement of complaint shall also include a certification against
environmental laws, protection of the environment forum shopping. If the complaint is not an
or assertion of environmental rights. environmental complaint, the presiding judge shall
refer it to the executive judge for re-raffle.
Section 4. Who may file. Any real party in

(h) Wildlife means wild forms and varieties of flora interest, including the government and juridical
and fauna, in all developmental stages including entities authorized by law, may file a civil action
those which are in captivity or are being bred or involving the enforcement or violation of any
propagated. environmental law.
Section 5.Citizen suit. Any Filipino citizen in

representation of others, including minors or
PART II generations yet unborn, may file an action to
CIVIL PROCEDURE enforce rights or obligations under environmental
laws. Upon the filing of a citizen suit, the court
RULE 2 shall issue an order which shall contain a brief
PLEADINGS AND PARTIES description of the cause of action and the reliefs
prayed for, requiring all interested parties to
Section 1. Pleadings and motions allowed. manifest their interest to intervene in the case
The pleadings and motions that may be filed are within fifteen (15) days from notice thereof. The
complaint, answer which may include compulsory plaintiff may publish the order once in a
counterclaim and cross-claim, motion for newspaper of a general circulation in the
intervention, motion for discovery and motion for Philippines or furnish all affected barangays
reconsideration of the judgment. copies of said order.
Motion for postponement, motion for new trial and Citizen suits filed under R.A. No. 8749 and R.A.
petition for relief from judgment shall be allowed in No. 9003 shall be governed by their respective
highly meritorious cases or to prevent a manifest provisions.
miscarriage of justice.
Section 6.Service of the complaint on the
Section 2.Prohibited pleadings or motions. The government or its agencies. - Upon the filing of
following pleadings or motions shall not be the complaint, the plaintiff is required to furnish the
allowed: government or the appropriate agency, although
not a party, a copy of the complaint. Proof of
(a) Motion to dismiss the complaint; service upon the government or the appropriate
(b) Motion for a bill of particulars; agency shall be attached to the complaint.
(c) Motion for extension of time to file
pleadings, except to file answer, the extension Section 7.Assignment by raffle. - If there is only
not to exceed fifteen (15) days; one (1) designated branch in a multiple-sala court,
(d) Motion to declare the defendant in default; the executive judge shall immediately refer the
(e) Reply and rejoinder; and case to said branch. If there are two (2) or more

________________________________________________________________________________________________
designated branches, the executive judge shall

conduct a special raffle on the day the complaint is Section 12.Payment of filing and other legal
filed. fees. - The payment of filing and other legal fees
by the plaintiff shall be deferred until after
Section 8.Issuance of Temporary judgment unless the plaintiff is allowed to litigate
Environmental Protection Order (TEPO). - If it as an indigent. It shall constitute a first lien on the
appears from the verified complaint with a prayer judgment award.
for the issuance of an Environmental Protection
Order (EPO) that the matter is of extreme urgency For a citizen suit, the court shall defer the payment
and the applicant will suffer grave injustice and of filing and other legal fees that shall serve as
irreparable injury, the executive judge of the first lien on the judgment award.
multiple-sala court before raffle or the presiding
judge of a single-sala court as the case may be, Section 13.Service of summons, orders and
may issue ex parte a TEPO effective for only other court processes. - The summons, orders
seventy-two (72) hours from date of the receipt of and other court processes may be served by the
the TEPO by the party or person enjoined. Within sheriff, his deputy or other proper court officer or
said period, the court where the case is assigned, for justifiable reasons, by the counsel or
shall conduct a summary hearing to determine representative of the plaintiff or any suitable
whether the TEPO may be extended until the person authorized or deputized by the court
termination of the case. issuing the summons.
The court where the case is assigned, shall Any private person who is authorized or deputized
periodically monitor the existence of acts that are by the court to serve summons, orders and other
the subject matter of the TEPO even if issued by court processes shall for that purpose be
the executive judge, and may lift the same at any considered an officer of the court.
time as circumstances may warrant.
The summons shall be served on the defendant,
The applicant shall be exempted from the posting together with a copy of an order informing all
of a bond for the issuance of a TEPO. parties that they have fifteen (15) days from the
filing of an answer, within which to avail of
Section 9.Action on motion for dissolution of interrogatories to parties under Rule 25 of the
TEPO. - The grounds for motion to dissolve a Rules of Court and request for admission by
TEPO shall be supported by affidavits of the party adverse party under Rule 26, or at their discretion,
or person enjoined which the applicant may make use of depositions under Rule 23 or other
oppose, also by affidavits. measures under Rules 27 and 28.
The TEPO may be dissolved if it appears after Should personal and substituted service fail,
hearing that its issuance or continuance would summons by publication shall be allowed. In the
cause irreparable damage to the party or person case of juridical entities, summons by publication
enjoined while the applicant may be fully shall be done by indicating the names of the
compensated for such damages as he may suffer officers or their duly authorized representatives.
and subject to the posting of a sufficient bond by
the party or person enjoined. Section 14.Verified answer. - Within fifteen (15)
days from receipt of summons, the defendant shall
Section 10.Prohibition against temporary file a verified answer to the complaint and serve a
restraining order (TRO) and preliminary copy thereof on the plaintiff. The defendant shall
injunction. - Except the Supreme Court, no court attach affidavits of witnesses, reports, studies of
can issue a TRO or writ of preliminary injunction experts and all evidence in support of the defense.
against lawful actions of government agencies that
enforce environmental laws or prevent violations Affirmative and special defenses not pleaded shall
thereof. be deemed waived, except lack of jurisdiction.
Section 11. Report on TEPO, EPO, TRO or Cross-claims and compulsory counterclaims not
preliminary injunction. - The judge shall report asserted shall be considered barred. The answer
any action taken on a TEPO, EPO, TRO or a to counterclaims or cross-claims shall be filed and
preliminary injunction, including its modification served within ten (10) days from service of the
and dissolution, to the Supreme Court, through the answer in which they are pleaded.
Office of the Court Administrator, within ten (10)
days from the action taken.

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Section 15.Effect of failure to answer. - Should agencies. Failure to comply with the required
the defendant fail to answer the complaint within contents of a pre-trial brief may be a ground for
the period provided, the court shall declare contempt.
defendant in default and upon motion of the
plaintiff, shall receive evidence ex parte and Failure to file the pre-trial brief shall have the
render judgment based thereon and the reliefs same effect as failure to appear at the pre-trial.
prayed for.
Section 3.Referral to mediation. - At the start of
RULE 3 the pre-trial conference, the court shall inquire
PRE-TRIAL from the parties if they have settled the dispute;
otherwise, the court shall immediately refer the
Section 1.Notice of pre-trial. - Within two (2) parties or their counsel, if authorized by their
days from the filing of the answer to the clients, to the Philippine Mediation Center (PMC)
counterclaim or cross-claim, if any, the branch unit for purposes of mediation. If not available, the
clerk of court shall issue a notice of the pre-trial to court shall refer the case to the clerk of court or
be held not later than one (1) month from the filing legal researcher for mediation.
of the last pleading.
Mediation must be conducted within a non-
The court shall schedule the pre-trial and set as extendible period of thirty (30) days from receipt of
many pre-trial conferences as may be necessary notice of referral to mediation.
within a period of two (2) months counted from the
date of the first pre-trial conference. The mediation report must be submitted within ten
(10) days from the expiration of the 30-day period.
Section 2.Pre-trial brief. - At least three (3) days
before the pretrial, the parties shall submit pre-trial Section 4.Preliminary conference. - If mediation
briefs containing the following: fails, the court will schedule the continuance of the
pre-trial. Before the scheduled date of
(a) A statement of their willingness to enter into an continuance, the court may refer the case to the
amicable settlement indicating the desired terms branch clerk of court for a preliminary conference
thereof or to submit the case to any of the for the following purposes:
alternative modes of dispute resolution;
(a) To assist the parties in reaching a settlement;
(b) A summary of admitted facts and proposed
stipulation of facts; (b) To mark the documents or exhibits to be
presented by the parties and copies thereof to be
(c) The legal and factual issues to be tried or attached to the records after comparison with the
resolved. For each factual issue, the parties shall originals;
state all evidence to support their positions
thereon. For each legal issue, parties shall state (c) To ascertain from the parties the undisputed
the applicable law and jurisprudence supporting facts and admissions on the genuineness and due
their respective positions thereon; execution of the documents marked as exhibits;
(d) The documents or exhibits to be presented, (d) To require the parties to submit the depositions
including depositions, answers to interrogatories taken under Rule 23 of the Rules of Court, the
and answers to written request for admission by answers to written interrogatories under Rule 25,
adverse party, stating the purpose thereof; and the answers to request for admissions by the
adverse party under Rule 26;
(e) A manifestation of their having availed of
discovery procedures or their intention to avail (e) To require the production of documents or
themselves of referral to a commissioner or panel things requested by a party under Rule 27 and the
of experts; results of the physical and mental examination of
persons under Rule 28;
(f) The number and names of the witnesses and
the substance of their affidavits; (f) To consider such other matters as may aid in
its prompt disposition;
(g) Clarificatory questions from the parties; and
(g) To record the proceedings in the "Minutes of
(h) List of cases arising out of the same facts Preliminary Conference" to be signed by both
pending before other courts or administrative parties or their counsels;

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(d) Determine if interlocutory issues are involved

(h) To mark the affidavits of witnesses which shall and resolve the same;
be in question and answer form and shall
constitute the direct examination of the witnesses; (e) Consider the adding or dropping of parties;
and
(f) Scrutinize every single allegation of the
(i) To attach the minutes together with the marked complaint, answer and other pleadings and
exhibits before the pre-trial proper. attachments thereto, and the contents of
documents and all other evidence identified and
The parties or their counsel must submit to the pre-marked during pre-trial in determining further
branch clerk of court the names, addresses and admissions;
contact numbers of the affiants.
(g) Obtain admissions based on the affidavits of
During the preliminary conference, the branch witnesses and evidence attached to the pleadings
clerk of court shall also require the parties to or submitted during pre-trial;
submit the depositions taken under Rule 23 of the
Rules of Court, the answers to written (h) Define and simplify the factual and legal issues
interrogatories under Rule 25 and the answers to arising from the pleadings and evidence.
request for admissions by the adverse party under Uncontroverted issues and frivolous claims or
Rule 26. The branch clerk of court may also defenses should be eliminated;
require the production of documents or things
requested by a party under Rule 27 and the (i) Discuss the propriety of rendering a summary
results of the physical and mental examination of judgment or a judgment based on the pleadings,
persons under Rule 28. evidence and admissions made during pre-trial;
Section 5.Pre-trial conference; consent decree. (j) Observe the Most Important Witness Rule in
- The judge shall put the parties and their counsels limiting the number of witnesses, determining the
under oath, and they shall remain under oath in all facts to be proved by each witness and fixing the
pre-trial conferences. approximate number of hours per witness;
The judge shall exert best efforts to persuade the (k) Encourage referral of the case to a trial by
parties to arrive at a settlement of the dispute. The commissioner under Rule 32 of the Rules of Court
judge may issue a consent decree approving the or to a mediator or arbitrator under any of the
agreement between the parties in accordance with alternative modes of dispute resolution governed
law, morals, public order and public policy to by the Special Rules of Court on Alternative
protect the right of the people to a balanced and Dispute Resolution;
healthful ecology.
(l) Determine the necessity of engaging the
Evidence not presented during the pre-trial, except services of a qualified expert as a friend of the
newly-discovered evidence, shall be deemed court (amicus curiae); and
waived.
(m) Ask parties to agree on the specific trial dates
Section 6.Failure to settle. - If there is no full for continuous trial, comply with the one-day
settlement, the judge shall: examination of witness rule, adhere to the case
flow chart determined by the court which shall
(a) Adopt the minutes of the preliminary contain the different stages of the proceedings up
conference as part of the pre-trial proceedings and to the promulgation of the decision and use the
confirm the markings of exhibits or substituted time frame for each stage in setting the trial dates.
photocopies and admissions on the genuineness
and due execution of documents; Section 7.Effect of failure to appear at pre-trial.
- The court shall not dismiss the complaint, except
(b) Determine if there are cases arising out of the upon repeated and unjustified failure of the plaintiff
same facts pending before other courts and order to appear. The dismissal shall be without
its consolidation if warranted; prejudice, and the court may proceed with the
counterclaim.
(c) Determine if the pleadings are in order and if
not, order the amendments if necessary; If the defendant fails to appear at the pre-trial, the
court shall receive evidence ex parte.

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Section 8.Minutes of pre-trial. - The minutes of be fully examined in one (1) day only. This
each pre-trial conference shall contain matters rule shall be strictly adhered to subject to
taken up therein, more particularly admissions of the court‟s discretion during trial on
facts and exhibits, and shall be signed by the whether or not to extend the direct
parties and their counsel. and/or cross-examination for justifiable
reasons. On the last hearing day allotted
Section 9.Pre-trial order. - Within ten (10) days for each party, he is required to make his
after the termination of the pre-trial, the court shall formal offer of evidence after the
issue a pre-trial order setting forth the actions presentation of his last witness and the
taken during the pre-trial conference, the facts opposing party is required to immediately
stipulated, the admissions made, the evidence interpose his objection thereto.
marked, the number of witnesses to be presented Thereafter, the judge shall make the
and the schedule of trial. Said order shall bind the ruling on the offer of evidence in open
parties, limit the trial to matters not disposed of court. However, the judge has the
and control the course of action during the trial. discretion to allow the offer of evidence in
writing in conformity with Section 35,
Section 10.Efforts to settle. - The court shall Rule 132. ALTERNATIVE ANSWER: FALSE.
endeavor to make the parties agree to This rule is not absolute: it will still allow
compromise or settle in accordance with law at the trial judge the discretion whether to
any stage of the proceedings before rendition of extend the direct and/or cross
judgment. examination for justifiable reasons or not.
The exercise of this discretion may still
RULE 4
result in wrangling as to the proper
TRIAL
exercise of the trial court‟s discretion,
which can delay the proceedings.
Section 1.Continuous trial. - The judge shall
conduct continuous trial which shall not exceed
two (2) months from the date of the issuance of
Section 4.Submission of case for decision;
the pre-trial order.
filing of memoranda. - After the last party has
rested its case, the court shall issue an order
Before the expiration of the two-month period, the
submitting the case for decision.
judge may ask the Supreme Court for the
extension of the trial period for justifiable cause.
The court may require the parties to submit their
respective memoranda, if possible in electronic
Section 2.Affidavits in lieu of direct
form, within a non-extendible period of thirty (30)
examination. - In lieu of direct examination,
days from the date the case is submitted for
affidavits marked during the pre-trial shall be
decision.
presented as direct examination of affiants subject
to cross-examination by the adverse party.
The court shall have a period of sixty (60) days to
decide the case from the date the case is
Section 3.One-day examination of witness rule.
submitted for decision.
- The court shall strictly adhere to the rule that a
witness has to be fully examined in one (1) day,
Section 5.Period to try and decide. - The court
subject to the court’s discretion of extending the shall have a period of one (1) year from the filing
examination for justifiable reason. After the of the complaint to try and decide the case. Before
presentation of the last witness, only oral offer of the expiration of the one-year period, the court
evidence shall be allowed, and the opposing party may petition the Supreme Court for the extension
shall immediately interpose his objections. The of the period for justifiable cause.
judge shall forthwith rule on the offer of evidence
in open court. The court shall prioritize the adjudication of
environmental cases.
Witness; Examination of Witness (2009)
No.1.[b] The One-Day Examination of witness RULE 5
Rule abbreviates court proceedings by having JUDGMENT AND EXECUTION
a witness fully examined in only one day
during trial. SUGGESTED ANSWER: Section 1.Reliefs in a citizen suit. - If warranted,
TRUE. Par. 5(i) of Supreme Court A.M. No. the court may grant to the plaintiff proper reliefs
03-1-09-SC requires that a witness has to which shall include the protection, preservation or

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rehabilitation of the environment and the payment the environment or assertion of environmental
of attorneys fees, costs of suit and other litigation rights shall be treated as a SLAPP and shall be
expenses. It may also require the violator to governed by these Rules.
submit a program of rehabilitation or restoration of
the environment, the costs of which shall be borne Section 2. SLAPP as a defense; how alleged. -
by the violator, or to contribute to a special trust In a SLAPP filed against a person involved in the
fund for that purpose subject to the control of the enforcement of environmental laws, protection of
court. the environment, or assertion of environmental
rights, the defendant may file an answer
Section 2. Judgment not stayed by appeal. - interposing as a defense that the case is a SLAPP
Any judgment directing the performance of acts for and shall be supported by documents, affidavits,
the protection, preservation or rehabilitation of the papers and other evidence; and, by way of
environment shall be executory pending appeal counterclaim, pray for damages, attorney’s fees
unless restrained by the appellate court.
and costs of suit.
Section 3.Permanent EPO; writ of continuing
The court shall direct the plaintiff or adverse party
mandamus. - In the judgment, the court may
to file an opposition showing the suit is not a
convert the TEPO to a permanent EPO or issue a
SLAPP, attaching evidence in support thereof,
writ of continuing mandamus directing the
within a non-extendible period of five (5) days from
performance of acts which shall be effective until
receipt of notice that an answer has been filed.
the judgment is fully satisfied.
The defense of a SLAPP shall be set for hearing
The court may, by itself or through the appropriate
by the court after issuance of the order to file an
government agency, monitor the execution of the
opposition within fifteen (15) days from filing of the
judgment and require the party concerned to
comment or the lapse of the period.
submit written reports on a quarterly basis or
sooner as may be necessary, detailing the
Section 3.Summary hearing. - The hearing on
progress of the execution and satisfaction of the
the defense of a SLAPP shall be summary in
judgment. The other party may, at its option,
nature. The parties must submit all available
submit its comments or observations on the
evidence in support of their respective positions.
execution of the judgment.
The party seeking the dismissal of the case must
prove by substantial evidence that his act for the
Section 4.Monitoring of compliance with
enforcement of environmental law is a legitimate
judgment and orders of the court by a
action for the protection, preservation and
commissioner. - The court may motu proprio, or
rehabilitation of the environment. The party filing
upon motion of the prevailing party, order that the
the action assailed as a SLAPP shall prove by
enforcement of the judgment or order be referred
preponderance of evidence that the action is not a
to a commissioner to be appointed by the court.
SLAPP and is a valid claim.
The commissioner shall file with the court written
progress reports on a quarterly basis or more
Section 4.Resolution of the defense of a
frequently when necessary.
SLAPP. - The affirmative defense of a SLAPP
shall be resolved within thirty (30) days after the
Section 5. Return of writ of execution. - The
summary hearing. If the court dismisses the
process of execution shall terminate upon a
sufficient showing that the decision or order has action, the court may award damages, attorney’s
been implemented to the satisfaction of the court fees and costs of suit under a counterclaim if such
in accordance with Section 14, Rule 39 of the has been filed. The dismissal shall be with
Rules of Court. prejudice.
RULE 6 If the court rejects the defense of a SLAPP, the

STRATEGIC LAWSUIT AGAINST PUBLIC evidence adduced during the summary hearing
PARTICIPATION shall be treated as evidence of the parties on the
merits of the case. The action shall proceed in
Section 1.Strategic lawsuit against public accordance with the Rules of Court.
participation (SLAPP). - A legal action filed to
harass, vex, exert undue pressure or stifle any PART III
legal recourse that any person, institution or the SPECIAL CIVIL ACTIONS
government has taken or may take in the
enforcement of environmental laws, protection of RULE 7

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WRIT OF KALIKASAN
Section 3.Where to file. - The petition shall be
Section 1.Nature of the writ. - The writ is a filed with the Supreme Court or with any of the
remedy available to a natural or juridical person, stations of the Court of Appeals.
entity authorized by law, people’s organization,
Section 4. No docket fees. - The petitioner shall
non-governmental organization, or any public
be exempt from the payment of docket fees.
interest group accredited by or registered with any
government agency, on behalf of persons whose
Section 5.Issuance of the writ. - Within three (3)
constitutional right to a balanced and healthful
days from the date of filing of the petition, if the
ecology is violated, or threatened with violation by
petition is sufficient in form and substance, the
an unlawful act or omission of a public official or
court shall give an order: (a) issuing the writ; and
employee, or private individual or entity, involving
(b) requiring the respondent to file a verified return
environmental damage of such magnitude as to
as provided in Section 8 of this Rule. The clerk of
prejudice the life, health or property of inhabitants
court shall forthwith issue the writ under the seal
in two or more cities or provinces.
of the court including the issuance of a cease and
desist order and other temporary reliefs effective
NATURE OF THE WRIT
until further order.
1) Preliminary Mandatory Injunction;
2) Preliminary Prohibitory Injunction;
Section 6. How the writ is served. - The writ
3) Special Civil Action
shall be served upon the respondent by a court
officer or any person deputized by the court, who
Section 2.Contents of the petition. - The verified
shall retain a copy on which to make a return of
petition shall contain the following:
service. In case the writ cannot be served
personally, the rule on substituted service shall
(a) The personal circumstances of the petitioner;
apply.
(b) The name and personal circumstances of the
Section 7.Penalty for refusing to issue or serve
respondent or if the name and personal
the writ. - A clerk of court who unduly delays or
circumstances are unknown and uncertain, the
refuses to issue the writ after its allowance or a
respondent may be described by an assumed
court officer or deputized person who unduly
appellation;
delays or refuses to serve the same shall be
punished by the court for contempt without
(c) The environmental law, rule or regulation
prejudice to other civil, criminal or administrative
violated or threatened to be violated, the act or
actions.
omission complained of, and the environmental
damage of such magnitude as to prejudice the life,
Section 8.Return of respondent; contents. -
health or property of inhabitants in two or more
Within a non-extendible period of ten (10) days
cities or provinces.
after service of the writ, the respondent shall file a
verified return which shall contain all defenses to
(d) All relevant and material evidence consisting of
show that respondent did not violate or threaten to
the affidavits of witnesses, documentary evidence,
violate, or allow the violation of any environmental
scientific or other expert studies, and if possible,
law, rule or regulation or commit any act resulting
object evidence;
to environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants
(e) The certification of petitioner under oath that:
(1) petitioner has not commenced any action or
filed any claim involving the same issues in any
All defenses not raised in the return shall be
court, tribunal or quasi-judicial agency, and no
deemed waived.
such other action or claim is pending therein; (2) if
there is such other pending action or claim, a
The return shall include affidavits of witnesses,
complete statement of its present status; (3) if
documentary evidence, scientific or other expert
petitioner should learn that the same or similar
studies, and if possible, object evidence, in
action or claim has been filed or is pending,
support of the defense of the respondent.
petitioner shall report to the court that fact within
five (5) days therefrom; and
A general denial of allegations in the petition shall
be considered as an admission thereof.
(f) The reliefs prayed for which may include a
prayer for the issuance of a TEPO.

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Section 9.Prohibited pleadings and motions. - production order is necessary to establish the
The following pleadings and motions are magnitude of the violation or the threat as to
prohibited: prejudice the life, health or property of inhabitants
(a) Motion to dismiss;
(b) Motion for extension of time to file return; After hearing, the court may order any person in
(c) Motion for postponement; possession, custody or control of any designated
(d) Motion for a bill of particulars; documents, papers, books, accounts, letters,
(e) Counterclaim or cross-claim; photographs, objects or tangible things, or objects
(f) Third-party complaint; in digitized or electronic form, which constitute or
(g) Reply; and contain evidence relevant to the petition or the
(h) Motion to declare respondent in default. return, to produce and permit their inspection,
copying or photographing by or on behalf of the
Section 10.Effect of failure to file return. - In movant.
case the respondent fails to file a return, the court
shall proceed to hear the petition ex parte. The production order shall specify the person or
persons authorized to make the production and
Section 11.Hearing. - Upon receipt of the return the date, time, place and manner of making the
of the respondent, the court may call a preliminary inspection or production and may prescribe other
conference to simplify the issues, determine the conditions to protect the constitutional rights of all
possibility of obtaining stipulations or admissions parties.
from the parties, and set the petition for hearing.
Section 13.Contempt. - The court may after

The hearing including the preliminary conference hearing punish the respondent who refuses or
shall not extend beyond sixty (60) days and shall unduly delays the filing of a return, or who makes
be given the same priority as petitions for the writs a false return, or any person who disobeys or
of habeas corpus, amparo and habeas data. resists a lawful process or order of the court for
indirect contempt under Rule 71 of the Rules of
Section 12.Discovery Measures. - A party may Court.
file a verified motion for the following reliefs:
Section 14.Submission of case for decision;
(a) Ocular Inspection order ; The motion must filing of memoranda. - After hearing, the court
show that an ocular inspection order is necessary shall issue an order submitting the case for
to establish the magnitude of the violation or the decision. The court may require the filing of
threat as to prejudice the life, health or property of memoranda and if possible, in its electronic form,
inhabitants in two or more cities or provinces. It within a non-extendible period of thirty (30) days
shall state in detail the place or places to be from the date the petition is submitted for decision.
inspected. It shall be supported by affidavits of
witnesses having personal knowledge of the Section 15.Judgment. - Within sixty (60) days
violation or threatened violation of environmental from the time the petition is submitted for decision,
law. the court shall render judgment granting or
denying the privilege of the writ of kalikasan.
After hearing, the court may order any person in
possession or control of a designated land or The reliefs that may be granted under the writ are
other property to permit entry for the purpose of the following:
inspecting or
(a) Directing respondent to permanently cease
photographing the property or any relevant object and desist from committing acts or neglecting the
or operation thereon. performance of a duty in violation of environmental
laws resulting in environmental destruction or
The order shall specify the person or persons damage;
authorized to make the inspection and the date,
time, place and manner of making the inspection (b) Directing the respondent public official,
and may prescribe other conditions to protect the government agency, private person or entity to
constitutional rights of all parties. protect, preserve, rehabilitate or restore the
environment;
(b) Production or inspection of documents or
things order; The motion must show that a

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(c) Directing the respondent public official, Note: Writ of Continuing Mandamus originates
government agency, private person or entity to from India (Review Lecture)
monitor strict compliance with the decision and
orders of the court; Section 2.Where to file the petition. - The
petition shall be filed with the Regional Trial Court
(d) Directing the respondent public official, exercising jurisdiction over the territory where the
government agency, or private person or entity to actionable neglect or omission occurred or with
make periodic reports on the execution of the final the Court of Appeals or the Supreme Court.
judgment; and
Section 3. No docket fees. - The petitioner shall
(e) Such other reliefs which relate to the right of be exempt from the payment of docket fees.
the people to a balanced and healthful ecology or
to the protection, preservation, rehabilitation or Section 4.Order to comment. - If the petition is
restoration of the sufficient in form and substance, the court shall
issue the writ and require the respondent to
environment, except the award of damages to comment on the petition within ten (10) days from
individual petitioners. receipt of a copy thereof. Such order shall be
served on the respondents in such manner as the
Section 16.Appeal. - Within fifteen (15) days from court may direct, together with a copy of the
the date of notice of the adverse judgment or petition and any annexes thereto.
denial of motion for reconsideration, any party
may appeal to the Supreme Court under Rule 45 Section 5.Expediting proceedings; TEPO. - The
of the Rules of Court. The appeal may raise court in which the petition is filed may issue such
questions of fact. orders to expedite the proceedings, and it may
also grant a TEPO for the preservation of the
rights of the parties pending such proceedings.
Section 17.Institution of separate actions. - The
filing of a petition for the issuance of the writ of Section 6.Proceedings after comment is filed. -
kalikasan shall not preclude the filing of separate After the comment is filed or the time for the filing
civil, criminal or administrative actions. thereof has expired, the court may hear the case
which shall be summary in nature or require the
RULE 8 parties to submit memoranda. The petition shall
WRIT OF CONTINUING MANDAMUS be resolved without delay within sixty (60) days
from the date of the submission of the petition for
Section 1.Petition for continuing mandamus. - resolution.
When any agency or instrumentality of the
government or officer thereof unlawfully neglects Section 7.Judgment. - If warranted, the court
the performance of an act which the law shall grant the privilege of the writ of continuing
specifically enjoins as a duty resulting from an mandamus requiring respondent to perform an act
office, trust or station in connection with the or series of acts until the judgment is fully satisfied
enforcement or violation of an environmental law and to grant such other reliefs as may be
rule or regulation or a right therein, or unlawfully warranted resulting from the wrongful or illegal
excludes another from the use or enjoyment of acts of the respondent. The court shall require the
such right and there is no other plain, speedy and respondent to submit periodic reports detailing the
adequate remedy in the ordinary course of law, progress and execution of the judgment, and the
the person aggrieved thereby may file a verified court may, by itself or through a commissioner or
petition in the proper court, alleging the facts with the appropriate government agency, evaluate and
certainty, attaching thereto supporting evidence, monitor compliance. The petitioner may submit its
specifying that the petition concerns an comments or observations on the execution of the
environmental law, rule or regulation, and praying judgment.
that judgment be rendered commanding the
respondent to do an act or series of acts until the Section 8. Return of the writ. - The periodic
judgment is fully satisfied, and to pay damages reports submitted by the respondent detailing
sustained by the petitioner by reason of the compliance with the judgment shall be contained
malicious neglect to perform the duties of the in partial returns of the writ.
respondent, under the law, rules or regulations.
The petition shall also contain a sworn certification Upon full satisfaction of the judgment, a final
of non-forum shopping. return of the writ shall be made to the court by the
respondent. If the court finds that the judgment

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has been fully implemented, the satisfaction of ARREST

judgment shall be entered in the court docket.
Section 1.Arrest without warrant; when lawful.
PART IV - A peace officer or an individual deputized by the
CRIMINAL PROCEDURE proper government agency may, without a
warrant, arrest a person:
RULE 9
PROSECUTION OF OFFENSES (a) When, in his presence, the person to be
arrested has committed, is actually committing or
Section 1. Who may file. - Any offended party, is attempting to commit an offense; or
peace officer or any public officer charged with the
enforcement of an environmental law may file a (b) When an offense has just been committed, and
complaint before the proper officer in accordance he has probable cause to believe based on
with the Rules of Court. personal knowledge of facts or circumstances that
the person to be arrested has committed it.
Section 2.Filing of the information.- An Individuals deputized by the proper government
information, charging a person with a violation of agency who are enforcing environmental laws
an environmental law and subscribed by the shall enjoy the presumption of regularity under
prosecutor, shall be filed with the court. Section 3(m), Rule 131 of the Rules of Court when
effecting arrests for violations of environmental
Section 3.Special prosecutor. - In criminal laws.
cases, where there is no private offended party, a
counsel whose services are offered by any person Section 2. Warrant of arrest. - All warrants of
or organization may be allowed by the court as arrest issued by the court shall be accompanied
special prosecutor, with the consent of and subject by a certified true copy of the information filed with
to the control and supervision of the public the issuing court.
prosecutor.
RULE 12
RULE 10 CUSTODY AND DISPOSITION OF SEIZED
PROSECUTION OF CIVIL ACTIONS ITEMS, EQUIPMENT,
PARAPHERNALIA, CONVEYANCES AND
Section 1.Institution of criminal and civil INSTRUMENTS
actions. - When a criminal action is instituted, the
civil action for the recovery of civil liability arising Section 1. Custody and disposition of seized
from the offense charged, shall be deemed items. - The custody and disposition of seized
instituted with the criminal action unless the items shall be in accordance with the applicable
complainant waives the civil action, reserves the laws or rules promulgated by the concerned
right to institute it separately or institutes the civil government agency.
action prior to the criminal action.
Section 2.Procedure. - In the absence of
Unless the civil action has been instituted prior to applicable laws or rules promulgated by the
the criminal action, the reservation of the right to concerned government agency, the following
institute separately the civil action shall be made procedure shall be observed:
during arraignment.
(a) The apprehending officer having initial custody
In case civil liability is imposed or damages are and control of the seized items, equipment,
awarded, the filing and other legal fees shall be paraphernalia, conveyances and instruments shall
imposed on said award in accordance with Rule physically inventory and whenever practicable,
141 of the Rules of Court, and the fees shall photograph the same in the presence of the
constitute a first lien on the judgment award. The person from whom such items were seized.
damages awarded in cases where there is no
private offended party, less the filing fees, shall (b) Thereafter, the apprehending officer shall
accrue to the funds of the agency charged with the submit to the issuing court the return of the search
implementation of the environmental law violated. warrant within five (5) days from date of seizure or
The award shall be used for the restoration and in case of warrantless arrest, submit within five (5)
rehabilitation of the environment adversely days from date of seizure, the inventory report,
affected. compliance report, photographs, representative
samples and other pertinent documents to the
RULE 11 public prosecutor for appropriate action.

________________________________________________________________________________________________
understood by the accused and require the

(c) Upon motion by any interested party, the court accused to sign a written undertaking, as follows:
may direct the auction sale of seized items,
equipment, paraphernalia, tools or instruments of (a) To appear before the court that issued the
the crime. The court shall, after hearing, fix the warrant of arrest for arraignment purposes on the
minimum bid price based on the recommendation date scheduled, and if the accused fails to appear
of the concerned government agency. The sheriff without justification on the date of arraignment,
shall conduct the auction. accused waives the reading of the information and
authorizes the court to enter a plea of not guilty on
(d) The auction sale shall be with notice to the behalf of the accused and to set the case for trial;
accused, the person from whom the items were
seized, or the owner thereof and the concerned (b) To appear whenever required by the court
government agency. where the case is pending; and
(e) The notice of auction shall be posted in three (c) To waive the right of the accused to be present
conspicuous places in the city or municipality at the trial, and upon failure of the accused to
where the items, equipment, paraphernalia, tools appear without justification and despite due notice,
or instruments of the crime were seized. the trial may proceed in absentia.
(f) The proceeds shall be held in trust and RULE 15

deposited with the government depository bank for ARRAIGNMENT AND PLEA
disposition according to the judgment.
Section 1.Arraignment. - The court shall set the
RULE 13 arraignment of the accused within fifteen (15) days
PROVISIONAL REMEDIES from the time it acquires jurisdiction over the
accused, with notice to the public prosecutor and
Section 1.Attachment in environmental cases. offended party or concerned government agency
- The provisional remedy of attachment under that it will entertain plea-bargaining on the date of
Rule 127 of the Rules of Court may be availed of the arraignment.
in environmental cases.
Section 2.Plea-bargaining. - On the scheduled
Section 2.Environmental Protection Order date of arraignment, the court shall consider plea-
(EPO); Temporary Environmental Protection bargaining arrangements. Where the prosecution
Order (TEPO) in criminal cases. - The procedure and offended party or concerned government
for and issuance of EPO and TEPO shall be agency agree to the plea offered by the accused,
governed by Rule 2 of these Rules. the court shall:
RULE 14 (a) Issue an order which contains the plea-

BAIL bargaining arrived at;
Section 1. Bail, where filed. - Bail in the amount (b) Proceed to receive evidence on the civil aspect
fixed may be filed with the court where the case is of the case, if any; and
pending, or in the absence or unavailability of the
judge thereof, with any regional trial judge, (c) Render and promulgate judgment of
metropolitan trial judge, municipal trial judge or conviction, including the civil liability for damages.
municipal circuit trial judge in the province, city or
municipality. If the accused is arrested in a RULE 16
province, city or municipality other than where the PRE-TRIAL
case is pending, bail may also be filed with any
Regional Trial Court of said place, or if no judge Section 1.Setting of pre-trial conference. - After
thereof is available, with any metropolitan trial the arraignment, the court shall set the pre-trial
judge, municipal trial judge or municipal circuit trial conference within thirty (30) days. It may refer the
judge therein. If the court grants bail, the court case to the branch clerk of court, if warranted, for
may issue a hold-departure order in appropriate a preliminary conference to be set at least three
cases. (3) days prior to the pre-trial.
Section 2.Duties of the court. - Before granting Section 2.Preliminary conference. - The
the application for bail, the judge must read the preliminary conference shall be for the following
information in a language known to and purposes:

________________________________________________________________________________________________
iii. Amount of damages;

(a) To assist the parties in reaching a settlement
of the civil aspect of the case; (d) Define factual and legal issues;
(b) To mark the documents to be presented as (e) Ask parties to agree on the specific trial dates
exhibits; and adhere to the flow chart determined by the
court which shall contain the time frames for the
(c) To attach copies thereof to the records after different stages of the proceeding up to
comparison with the originals; promulgation of decision;
(d) To ascertain from the parties the undisputed (f) Require the parties to submit to the branch
facts and admissions on the genuineness and due clerk of court the names, addresses and contact
execution of documents marked as exhibits; numbers of witnesses that need to be summoned
by subpoena; and
(e) To consider such other matters as may aid in
the prompt disposition of the case; (g) Consider modification of order of trial if the
accused admits the charge but interposes a lawful
(f) To record the proceedings during the defense.
preliminary conference in the Minutes of
Preliminary Conference to be signed by the Section 4.Manner of questioning. - All questions
parties and counsel; or statements must be directed to the court.
(g) To mark the affidavits of witnesses which shall Section 5.Agreements or admissions. - All
be in question and answer form and shall agreements or admissions made or entered during
constitute the direct examination of the witnesses; the pre-trial conference shall be reduced in writing
and and signed by the accused and counsel;
otherwise, they cannot be used against the
(h) To attach the Minutes and marked exhibits to accused. The agreements covering the matters
the case record before the pre-trial proper. The referred to in Section 1, Rule 118 of the Rules of
parties or their counsel must submit to the branch Court shall be approved by the court.
clerk of court the names, addresses and contact
numbers of the affiants. Section 6.Record of proceedings. - All
proceedings during the pre-trial shall be recorded,
Section 3.Pre-trial duty of the judge. - During the transcripts prepared and the minutes signed
the pre-trial, the court shall: by the parties or their counsels.
(a) Place the parties and their counsels under Section 7.Pre-trial order. - The court shall issue
oath; a pre-trial order within ten (10) days after the
termination of the pre-trial, setting forth the actions
(b) Adopt the minutes of the preliminary taken during the pre-trial conference, the facts
conference as part of the pre-trial proceedings, stipulated, the admissions made, evidence
confirm markings of exhibits or substituted marked, the number of witnesses to be presented
photocopies and admissions on the genuineness and the schedule of trial. The order shall bind the
and due execution of documents, and list object parties and control the course of action during the
and testimonial evidence; trial.
(c) Scrutinize the information and the statements RULE 17

in the affidavits and other documents which form TRIAL
part of the record of the preliminary investigation
together with other documents identified and Section 1.Continuous trial. - The court shall
marked as exhibits to determine further endeavor to conduct continuous trial which shall
admissions of facts as to: not exceed three (3) months from the date of the
issuance of the pre-trial order.
i. The court’s territorial jurisdiction relative to
Section 2.Affidavit in lieu of direct
the offense(s) charged;
examination. - Affidavit in lieu of direct
examination shall be used, subject to cross-
ii. Qualification of expert witnesses; and
examination and the right to object to inadmissible
portions of the affidavit.

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intent to harass, vex, exert undue pressure or

Section 3.Submission of memoranda. - The stifle any legal recourse that any person,
court may require the parties to submit their institution or the government has taken or may
respective memoranda and if possible, in take in the enforcement of environmental laws,
electronic form, within a non-extendible period of protection of the environment or assertion of
thirty (30) days from the date the case is environmental rights.
submitted for decision.
If the court denies the motion, the court shall
With or without any memoranda filed, the court immediately proceed with the arraignment of the
shall have a period of sixty (60) days to decide the accused.
case counted from the last day of the 30-day
period to file the memoranda. PART V
EVIDENCE
Section 4.Disposition period. - The court shall
dispose the case within a period of ten (10) RULE 20
months from the date of arraignment. PRECAUTIONARY PRINCIPLE
Section 5.Pro bono lawyers. - If the accused Section 1.Applicability. - When there is a lack of
cannot afford the services of counsel or there is no full scientific certainty in establishing a causal link
available public attorney, the court shall require between human activity and environmental effect,
the Integrated Bar of the Philippines to provide pro the court shall apply the precautionary principle in
bono lawyers for the accused. resolving the case before it.
RULE 18 The constitutional right of the people to a balanced

SUBSIDIARY LIABILITY and healthful ecology shall be given the benefit of
the doubt.
Section 1.Subsidiary liability. - In case of
conviction of the accused and subsidiary liability is Precautionary Principle (2012) No.II.B.
allowed by law, the court may, by motion of the What do you understand about the
person entitled to recover under judgment, enforce "precautionary principle" under the Rules of
such subsidiary liability against a person or Procedure for Environmental Cases? (5%)
corporation subsidiary liable under Article 102 and SUGGESTED ANSWER:
Article 103 of the Revised Penal Code. Precautionary principles states that when
human activities may lead to threats of
RULE 19 serious and irreversible damage to the
STRATEGIC LAWSUIT AGAINST PUBLIC environment that is scientifically
PARTICIPATION IN CRIMINAL CASES plausible but uncertain, actions shall be
taken to avoid or diminish that threat. In
Section 1.Motion to dismiss. - Upon the filing of its essence, the precautionary principle
an information in court and before arraignment, calls for the exercise of caution in the face
the accused may file a motion to dismiss on the of risk and uncertainty (Sec. 4 [f], Rule 1,
ground that the criminal action is a SLAPP. Part 1, and Rule 20, A.M. No. 09-6-8-SC,
Rules of Procedure for Environment
Section 2.Summary hearing. - The hearing on Cases).
the defense of a SLAPP shall be summary in
nature. The parties must submit all the available
evidence in support of their respective positions. Section 2.Standards for application. - In
The party seeking the dismissal of the case must applying the precautionary principle, the following
prove by substantial evidence that his acts for the factors, among others, may be considered: (1)
enforcement of environmental law is a legitimate threats to human life or health; (2) inequity to
action for the protection, preservation and present or future generations; or (3) prejudice to
rehabilitation of the environment. The party filing the environment without legal consideration of the
the action assailed as a SLAPP shall prove by environmental rights of those affected.
preponderance of evidence that the action is not a
SLAPP. RULE 21
DOCUMENTARY EVIDENCE
Section 3.Resolution. - The court shall grant the
motion if the accused establishes in the summary Section 1.Photographic, video and similar
hearing that the criminal case has been filed with evidence. - Photographs, videos and similar

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evidence of events, acts, transactions of wildlife, of Voidable Marriages, the Court Resolved to
wildlife by-products or derivatives, forest products APPROVE the same.
or mineral resources subject of a case shall be
admissible when authenticated by the person who The Rule shall take effect on March 15,
took the same, by some other person present 2003 following its publication in a newspaper of
when said evidence was taken, or by any other general circulation not later than March 7, 2003
person competent to testify on the accuracy
thereof. March 4, 2003
Section 2.Entries in official records. - Entries in
official records made in the performance of his RULE ON DECLARATION OF ABSOLUTE
duty by a public officer of the Philippines, or by a NULLITY OF VOID MARIAGES AND
person in performance of a duty specially enjoined ANNULMENT OF VOIDABLE MARRIAGES
by law, are prima facie evidence of the facts
therein stated. Section 1. Scope - This Rule shall govern
petitions for declaration of absolute nullity of void
RULE 22 marriages and annulment of voidable marriages
FINAL PROVISIONS under the Family Code of the Philippines.
Section 1.Effectivity. - These Rules shall take The Rules of Court shall apply suppletorily.
effect within fifteen (15) days following publication
once in a newspaper of general circulation. Section 2. Petition for declaration of absolute
nullity of void marriages.
Section 2.Application of the Rules of Court. -
The Rules of Court shall apply in a suppletory
(a) Who may file. - A petition for declaration
manner, except as otherwise provided herein.
of absolute nullity of void marriage may be
filed solely by the husband or the wife. (n)
(b) Where to file. - The petition shall be filed

in the Family Court.
(c) Imprecriptibility of action or defense. -

An Action or defense for the declaration of
absolute nullity of void marriage shall not
prescribe.
(d) What to allege. - A petition under Article

36 of Family Code shall specially allege the
Republic of the Philippines complete facts showing the either or both
SUPREME COURT parties were psychologically incapacitated
Manila from complying with the essential marital
obligations of marriages at the time of the
EN BANC celebration of marriage even if such incapacity
becomes manifest only after its celebration.
A.M. No. 02-11-10-SC March 4, 2003
The complete facts should allege the
physical manifestations, if any, as are indicative of
RE: PROPOSED RULE ON DECLARATION OF
psychological incapacity at the time of the
ABSOLUTE NULLITY OF VOID MARRIAGES
celebration of the marriage but expert opinion
AND ANNULMENT OF VOIDABLE MARRIAGES
need not be alleged.
RESOLUTION Section 3. Petition for annulment of voidable

marriages. -
Acting on the letter of the Chairman of the
Committee on Revision of the Rules of Court (a) Who may file. - The following persons
submitting for this Court's consideration and may file a petition for annulment of voidable
approval the Proposed Rule on Declaration of marriage based on any of the grounds under
Absolute Nullity of Void Marriages and Annulment
________________________________________________________________________________________________
article 45 of the Family Code and within the (b) Where to file. - The petition shall be filed
period herein indicated: in the Family Court.
(1) The contracting party whose parent, or Section 4. Venue. - The Petition shall be filed in
guardian, or person exercising substitute the Family Court of the province or city where the
parental authority did not give his or her petitioner or the respondent has been residing for
consent, within five years after attaining at least six months prior to the date of filing. Or in
the age of twenty-one unless, after the case of non-resident respondent, where he
attaining the age of twenty-one, such may be found in the Philippines, at the election of
party freely cohabitated with the other as the petitioner.
husband or wife; or the parent, guardian
or person having legal charge of the Section 5. Contents and form of petition. - (1)
contracting party , at any time before such The petition shall allege the complete facts
party has reached the age of twenty-one; constituting the cause of action.
(2) The sane spouse who had no (2) it shall state the names and ages of the
knowledge of the other's insanity; or by common children of the parties and specify
any relative, guardian, or person having the regime governing their property relations,
legal charge of the insane, at any time as well as the properties involved.
before the death of either party; or by the
insane spouse during the a lucid interval If there is no adequate provision in a
or after regaining sanity, provided that the
written agreement between the parties, the
petitioner , after coming to reason, has not
petitioner may apply for a provisional order for
freely cohabited with the other as husband spousal support, custody and support of
or wife; common children, visitation rights,
administration of community or conjugal
(3) The injured party whose consent was property, and other matters similarly requiring
obtained by fraud, within five years after urgent action.
the discovery of the fraud, provided that
said party, with full knowledge of the facts (3) it must be verified and accompanied by a
constituting the fraud, has not freely certification against forum shopping. The
cohabited with the other as husband or verification and certification must be signed
wife; personally by the petitioner. No petition may
be filed solely by counsel or through an
(4) The injured party whose consent was attorney-in-fact.
obtained by force, intimidation, or undue
influence, within five years from the time If the petitioner is in a foreign country,
the force intimidation, or undue influence
the verification and certification against forum
disappeared or ceased, provided that the shopping shall be authenticated by the duly
force, intimidation, or undue influence
authorized officer of the Philippine embassy or
having disappeared or ceased, said party legation, consul general, consul or vice-consul
has not thereafter freely cohabited with or consular agent in said country.
the other as husband or wife;
(4) it shall be filed in six copies. The petitioner
(5) The injured party where the other shall serve a copy of the petition on the Office
spouse is physically incapable of of the Solicitor General and the Office of the
consummating the marriage with the other City or Provincial Prosecutor, within five days
and such incapability continues and from the date of its filing and submit to the
appears to be incurable, within five years court proof of such service within the same
after the celebration of marriage; and period.
(6) The injured party where the other party Failure to comply with any of the
was afflicted with a sexually-transmissible preceding requirements may be a ground for
disease found to be serious and appears
immediate dismissal of the petition.
to be incurable, within five years after the
celebration of marriage.

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Section 6. Summons. - The service of summons on the parties and their respective counsels, if
shall be governed by Rule 14 of the Rules of Court any.
and by the following rules:
(2) If the public prosecutor finds that
(1) Where the respondent cannot be located collusion exists, he shall state the on the
at his given address or his whereabouts are finding of collusion within ten days from
unknown and cannot be ascertained by receipt of a copy of a report The court
diligent inquiry, service of summons may, by shall set the report for hearing and If
leave of court, be effected upon him by convinced that the parties are in collusion,
publication once a week for two consecutive it shall dismiss the petition.
weeks in a newspaper of general circulation in
the Philippines and in such places as the court (3) If the public prosecutor reports that no
may order In addition, a copy of the summons collusion exists, the court shall set the
shall be served on the respondent at his last case for pre-trial. It shall be the duty of the
known address by registered mail or any other public prosecutor to appear for the State
means the court may deem sufficient. at the pre-trial.
(2) The summons to be published shall be Section 10. Social worker. - The court may
contained in an order of the court with the require a social worker to conduct a case study
following data: (a) title of the case; (b) docket and submit the corresponding report at least three
number; (c) nature of the petition; (d) principal days before the pre-trial. The court may also
grounds of the petition and the reliefs prayed require a case study at any stage of the case
for; and (e) a directive for the respondent to whenever necessary.
answer within thirty days from the last issue of
publication. Section 11. Pre-trial. -
Section 7. Motion to dismiss. - No motion to

(1) Pre-trial mandatory. - A pre-trial is
dismiss the petition shall be allowed except on the mandatory. On motion or motu proprio, the
ground of lack of jurisdiction over the subject court shall set the pre-trial after the last
matter or over the parties; provided, however, that pleading has been served and filed, or upon
any other ground that might warrant a dismissal of receipt of the report of the public prosecutor
the case may be raised as an affirmative defense that no collusion exists between the parties.
in an answer.
(2) Notice of pre-trial. - (a) The notice of pre-
Section 8. Answer. - (1) The respondent shall file
trial shall contain:
his answer within fifteen days from service of
summons, or within thirty days from the last issue
of publication in case of service of summons by (1) the date of pre-trial conference; and
publication. The answer must be verified by the
respondent himself and not by counsel or (2) an order directing the parties to file
attorney-in-fact. and serve their respective pre-trial briefs
in such manner as shall ensure the receipt
(2) If the respondent fails to file an answer, the thereof by the adverse party at least three
court shall not declare him or her in default. days before the date of pre-trial.
(3) Where no answer is filed or if the answer (b) The notice shall be served separately on
does not tender an issue, the court shall order the parties and their respective counsels as
the public prosecutor to investigate whether well as on the public prosecutor. It shall be
collusion exists between the parties. their duty to appear personally at the pre-trial.
Section 9. Investigation report of public (c) Notice of pre-trial shall be sent to the
prosecutor. - (1) Within one month after receipt of respondent even if he fails to file an answer.
the court order mentioned in paragraph (3) of In case of summons by publication and the
Section 8 above, the public prosecutor shall respondent failed to file his answer, notice of
submit a report to the court stating whether the pre-trial shall be sent to respondent at his last
parties are in collusion and serve copies thereof known address.

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Section 12. Contents of pre-trial brief. - The The mediator shall render a report
pre-trial brief shall contain the following: within one month from referral which, for good
reasons, the court may extend for a period not
(a) A statement of the willingness of the exceeding one month.
parties to enter into agreements as may be
allowed by law, indicating the desired terms (b) In case mediation is not availed of or
thereof; where it fails, the court shall proceed with the
pre-trial conference, on which occasion it shall
(b) A concise statement of their respective consider the advisability of receiving expert
claims together with the applicable laws and testimony and such other matters as may aid
authorities; in the prompt disposition of the petition.
(c) Admitted facts and proposed stipulations of Section 15. Pre-trial order. - {a) The proceedings
facts, as well as the disputed factual and legal in the pre-trial shall be recorded. Upon termination
issues; of the pre-trial, the court shall Issue a pre-trial
order which shall recite in detail the matters taken
up In the conference, the action taken thereon, the
(d) All the evidence to be presented, including
amendments allowed on the pleadings, and
expert opinion, if any, briefly stating or
describing the nature and purpose thereof; except as to the ground of declaration of nullity or
annulment, the agreements or admissions made
by the parties on any of the matters considered,
(e) The number and names of the witnesses including any provisional order that may be
and their respective affidavits; and necessary or agreed upon by the parties.
(f) Such other matters as the court may (b) Should the action proceed to trial, the
require. order shall contain a recital of the following;
Failure to file the pre-trial brief or to comply (1) Facts undisputed, admitted, and those
with its required contents shall have the same which need not be proved subject to
effect as failure to appear at the pre-trial under the Section 16 of this Rule;
succeeding paragraphs.
(2) Factual and legal issues to be litigated;
Section 13. Effect of failure to appear at the
pre-trial. - {a) If the petitioner fails to appear
(3) Evidence, including objects and
personally, the case shall be dismissed unless his
documents, that have been marked and
counsel or a duly authorized representative
will be presented;
appears in court and proves a valid excuse for the
non-appearance of the petitioner.
(4) Names of witnesses who will be
(b) If the respondent has filed his answer but presented and their testimonies in the
form of affidavits; and
fails to appear, the court shall proceed with
the pre-trial and require the public prosecutor
to investigate the non-appearance of the (5) Schedule of the presentation of
respondent and submit within fifteen days evidence.
thereafter a report to the court stating whether
his non-appearance is due to any collusion (c) The pre-trial order shall also contain a
between the parties. If there Is no collusion, directive to the public prosecutor to appear for
the court shall require the public prosecutor to the State and take steps to prevent collusion
intervene for the State during the trial on the between the parties at any stage of the
merits to prevent suppression or fabrication of proceedings and fabrication or suppression of
evidence. evidence during the trial on the merits.
Section 14. Pre-trial conference. -At the pre-trial (d) The parties shall not be allowed to raise
conference, the court: issues or present witnesses and evidence
other than those stated in the pre-trial order.
(a) May refer the issues to a mediator who
shall assist the parties in reaching an
agreement on matters not prohibited by law.
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The order shall control the trial of the case, date the trial is terminated. It may require the
unless modified by the court to prevent Office of the Solicitor General to file its own
manifest injustice. memorandum if the case is of significant interest
to the State. No other pleadings or papers may be
(e) The parties shall have five days from submitted without leave of court. After the lapse of
receipt of the pre-trial order to propose the period herein provided, the case will be
corrections or modifications. considered submitted for decision, with or without
the memoranda.
Section 16. Prohibited compromise. - The court-
shall not allow compromise on prohibited matters, Section 19. Decision. - (1) If the court renders a
such as the following: decision granting the petition, it shall declare
therein that the decree of absolute nullity or
decree of annulment shall be issued by the court
(a) The civil status of persons;
only after compliance with Article 50 and 51 of the
(b) The validity of a marriage or of a legal
Family Code as implemented under the Rule on
separation;
Liquidation, Partition and Distribution of
(c) Any ground for legal separation;
Properties.
(d) Future support;
(e) The jurisdiction of courts; and
(f) Future legitime. (2) The parties, including the Solicitor General
and the public prosecutor, shall be served with
Section 17. Trial. - (1) The presiding judge shall copies of the decision personally or by
registered mail. If the respondent summoned
personally conduct the trial of the case. No
by publication failed to appear in the action,
delegation of the reception of evidence to a
commissioner shall be allowed except as to the dispositive part of the decision shall be
matters involving property relations of the published once in a newspaper of general
circulation.
spouses.
(3) The decision becomes final upon the

(2) The grounds for declaration of absolute
expiration of fifteen days from notice to the
nullity or annulment of marriage must be
parties. Entry of judgment shall be made if no
proved. No judgment on the pleadings,
motion for reconsideration or new trial, or
summary judgment, or confession of judgment
appeal Is filed by any of the parties the public
shall be allowed.
prosecutor, or the Solicitor General.
(3) The court may order the exclusion from the
(4) Upon the finality of the decision, the court
courtroom of all persons, including members
of the press, who do not have a direct interest shall forthwith issue the corresponding decree
if the parties have no properties.
in the case. Such an order may be made if the
court determines on the record that requiring a
party to testify in open court would not If the parties have properties, the court shall
enhance the ascertainment of truth; would observe the procedure prescribed in Section 21 of
cause to the party psychological harm or this Rule.
inability to effectively communicate due to
embarrassment, fear, or timidity; would violate The entry of judgment shall be registered in
the right of a party to privacy; or would be the Civil Registry where the marriage was
offensive to decency or public morals. recorded and In the Civil Registry where the
Family Court granting the petition for declaration
(4) No copy shall be taken nor any of absolute nullity or annulment of marriage is
examination or perusal of the records of the located.
case or parts thereof be made by any person
other than a party or counsel of a party, Section 20. Appeal. -
except by order of the court.
(1) Pre-condition. - No appeal from the
Section 18. Memoranda. - The court may require decision shall be allowed unless the appellant
the parties and the public prosecutor, in has filed a motion for reconsideration or new
consultation with the Office of the Solicitor trial within fifteen days from notice of
General, to file their respective memoranda judgment.
support of their claims within fifteen days from the

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(2) Notice of appeal. - An aggrieved party or Decree in the Civil Registry where the marriage
the Solicitor General may appeal from the was registered, the Civil Registry of the place
decision by filing a Notice of Appeal within where the Family Court is situated, and in the
fifteen days from notice of denial of the motion National Census and Statistics Office. He shall
for reconsideration or new trial. The appellant report to the court compliance with this
shall serve a copy of the notice of appeal on requirement within thirty days from receipt of the
the adverse parties. copy of the Decree.
Section 21. Liquidation, partition and distribution, (b) In case service of summons was made by
custody, support of common children and delivery publication, the parties shall cause the
of their presumptive iegitimes. - Upon entry of the publication of the Decree once in a newspaper
judgment granting the petition, or, in case of of general circulation.
appeal, upon receipt of the entry of judgment of
the appellate court granting the petition, the (c) The registered Decree shall be the best
Family Court, on motion of either party, shall evidence to prove the declaration of absolute
proceed with the liquidation, partition and nullity or annulment of marriage and shall
distribution of the properties of the spouses, serve as notice to third persons concerning
including custody, support of common children the properties of petitioner and respondent as
and delivery of their presumptive legitimes well as the properties or presumptive legitimes
pursuant to Articles 50 and 51 of the Family Code delivered to their common children.
unless such matters had been adjudicated in
previous judicial proceedings. Section 24. Effect of death of a party; duty of the
Family Court or Appellate Court. - (a) In case a
Section 22. Issuance of Decree of Declaration of party dies at any stage of the proceedings before
Absolute Nullity or Annulment of Marriage." (a) the entry of judgment, the court shall order the
The court shall issue the Decree after; case closed and terminated, without prejudice to
the settlement of the estate in proper proceedings
(1) Registration of the entry of judgment in the regular courts.
granting the petition for declaration of
nullity or annulment of marriage in the (b) If the party dies after the entry of judgment
Civil Registry where the marriage was of nullity or annulment, the judgment shall be
celebrated and in the Civil Registry of the binding upon the parties and their successors
place where the Family Court is located; in interest in the settlement of the estate in the
regular courts.
(2) Registration of the approved partition
and distribution of the properties of the Section 25. Effectlvity. - This Rule shall take
spouses, in the proper Register of Deeds effect on March 15, 2003 following its publication
where the real properties are located; and in a newspaper of general circulation not later than
March 7, 2003.
(3) The delivery of the children's
presumptive legitimes in cash, property, or Republic of the Philippines
sound securities. SUPREME COURT
Manila
(b) The court shall quote in the Decree the
dispositive portion of the judgment entered EN BANC
and attach to the Decree the approved deed
of partition. A.M. No. 02-11-11-SC March 4, 2003
Except in the case of children under Articles RE: PROPOSED RULE ON LEGAL
36 and 53 of the Family Code, the court shall SEPARATION
order the Local Civil Registrar to issue an
amended birth certificate indicating the new civil
status of the children affected. RESOLUTION
Section 23. Registration and publication of the Acting on the letter of the Chairman of the
decree; decree as best evidence. - (a) The Committee on Revision of the Rules of Court
prevailing party shall cause the registration of the submitting for this Court's consideration and

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approval the Proposed Rule on Legal Separation, (i) Attempt on the life of petitioner by the
the Court Resolved to APPROVED the same. respondent; or
The Rule shall take effect on March 15, (j) Abandonment of petitioner by
2003 following its publication in a newspaper of respondent without justifiable cause for
general circulation not later than March 7, 2003 more than one year.
March 4, 2003 (b) Contents and form. - The petition for legal
separation shall:
RULE ON LEGAL SEPARATION
(1) Allege the complete facts constituting
Section 1. Scope. - This Rule shall govern the cause of action.
petitions for legal separation under the Family
Code of the Philippines. (2) State the names and ages of the
common children of the parties, specify
The Rules of Court shall apply suppletorily. the regime governing their property
relations, the properties involved, and
Section 2. Petition. - (a) Who may and when to creditors, if any. If there is no adequate
provision in a written agreement between
file. - (1) A petition for legal separation may be
the parties, the petitioner may apply for a
filed only by the husband or the wife, as the case
provisional order for spousal support,
may be within five years from the time of the
occurrence of any of the following causes: custody and support of common children,
visitation rights, administration of
community or conjugal property, and other
(a) Repeated physical violence or grossly similar matters requiring urgent action,
abusive conduct directed against the
petitioner, a common child, or a child of
(3) Be verified and accompanied by a
the petitioner;
certification against forum shopping. The
verification and certification must be
(b) Physical violence or moral pressure to personally signed by the petitioner. No
compel the petitioner to change religious petition may be filed solely by counsel or
or political affiliation; through an attorney-in-fact. If the
petitioner is in a foreign country, the
(c) Attempt of respondent to corrupt or verification and certification against forum
induce the petitioner, a common child, or shopping shall be authenticated by the
a child of the petitioner, to engage in duly authorized officer of the Philippine
prostitution, or connivance in such embassy or legation, consul general,
corruption or inducement; consul or vice-consul or consular agent in
said country
(d) Final judgment sentencing the
respondent to imprisonment of more than (4) Be filed in six copies. The petitioner
six years, even if pardoned; shall, within five days from such filing,
furnish a copy of the petition to the City
(e) Drug addiction or habitual alcoholism or Provincial Prosecutor and the
of the respondent; creditors, if any, and submit to the court
proof of such service within the same
(f) Lesbianism or homosexuality of the period.
respondent;
Failure to comply with the
(g) Contracting by the respondent of a preceding requirements may be a ground
subsequent bigamous marriage, whether for immediate dismissal of the petition.
in or outside the Philippines;
(c) Venue. - The petition shall be filed in the
(h) Sexual infidelity or perversion of the Family Court of the province or city where the
respondent; petitioner or the respondent has been residing
for at least six months prior to the date of filing
"or in The case of a non-resident respondent,

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where he may be found in the Philippines, at submit a report to the court on whether the parties
the election of the petitioner. are in collusion and serve copies on the parties
and their respective counsels, if any.
Section 3. Summons. - The service of summons
shall be governed by Rule 14 of the Rules of Court (b) If the public prosecutor finds that collusion
and by the following rules: exists, he shall state the basis thereof in his
report. The parties shall file their respective
(a) Where the respondent cannot be located comments on the finding of collusion within
at his given address or his whereabouts are ten days from receipt of copy of the report.
unknown and cannot be ascertained by The court shall set the report for hearing and if
diligent inquiry, service of summons may, by convinced that parties are in collusion,-it shall
leave of court, be effected upon him by dismiss the petition.
publication once a week for two consecutive
weeks in a newspaper of general circulation in (c) If the public prosecutor reports that no
the Philippines and in such place as the court collusion exists, the court shall set the case
may order. In addition, a copy of the summons for pre-trial. It shall be the duty of the public
shall be served on respondent at his last prosecutor to appear for the State at the pre-
known address by registered mail or by any trial.
other means the court may deem sufficient.
Section 7. Social Worker. - The court may require
(b) The summons to be published shall be a social worker to conduct a case study and to
contained in an order of the court with the submit the corresponding report at least three
following data; (1) title of the case; (2) docket days before the pre-trial. The court may also
number; (3) nature of the petition; (4) principal require a case study at any stage of the case
grounds of the petition and the reliefs prayed whenever necessary,
for, and (5) a directive for respondent to
answer within thirty days from the last issue of Section 8. Pre-trial. -
publication.
(a) Pre-trial mandatory.-A pre-trial is
Section 4. Motion to Dismiss. - No motion to mandatory. On motion or motu proprio, the
dismiss the petition shall be allowed except on the court shall set the pre-trial after the last
ground of lack of jurisdiction over the subject pleading has been served and filed, or upon
matter or over the parties; provided, however, that receipt of the report of the public prosecutor
any other ground that might warrant a dismissal of that no collusion exists between the parties on
the case may be raised as an affirmative defense a date not earlier than six months from date of
in an answer. the filing of the petition.
Section 5. Answer. - (a) The respondent shall file (b) Notice of Pre-trial.-(1) The notice of pre-
his answer within fifteen days from receipt of trial shall contain:
summons, or within thirty days from the last issue
of publication in case of service of summons by (a) the date of pre-trial conference; and
publication. The answer must be verified by
respondent himself and not by counsel or
attorney-in-fact. (b) an order directing the parties to file
and serve their respective pre-trial briefs
in such manner as shall ensure the receipt
(b) If the respondent fails to file an answer, the thereof by the adverse party at least three
court shall not declare him in default. days before the date of pre-trial.
(c) Where no answer is filed/or if the answer (2) The notice shall be served separately on
does not tender an issue the court shall order the parties and their respective counsels as
the public prosecutor to investigate whether well as on the public prosecutor. It shall be
collusion exists between the parties. their duty to appear personally at the pre-trial.
Section 6. Investigation Report of Public

(3) Notice of pre-trial shall be sent to the
Prosecutor. - (a) Within one month after receipt of respondent even if he fails to file an answer.
the court order mentioned in paragraph (c) of the In case of summons by publication and the
preceding section, the public prosecutor shall respondent failed to file his answer, notice of

________________________________________________________________________________________________
pre-trial shall be sent to respondent at his last mediator who shall assist the parties in reaching
known address. an agreement on matters not prohibited by law.
Section 9. Contents of pre-trial brief. - The pre- The mediator shall render a report within
trial brief shall contain the following: one month from referral which, for good reasons,
the court may extend for a period not exceeding
(1) A statement of the willingness of the one month.
parties to enter into agreements as may be
allowed by law, indicating the desired terms In case mediation is not availed of or where
thereof; it fails, the court shall proceed with the pre-trial
conference, on which occasion it shall consider
(2) A concise statement of their respective the advisability of receiving expert testimony and
claims together with the applicable laws and such other matters as may aid in the prompt
authorities; disposition of the petition.
(3) Admitted facts and proposed stipulations Section 12. Pre-trial order. - (a) The proceedings
of facts, as well as the disputed factual and in the pre-trial shall be recorded. Upon termination
legal issues; of the pre-trial, the court shall issue a pre-trial
order which shall recite in detail the matters taken
(4) All the evidence to be presented, including up in the conference, the action taken thereon, the
amendments allowed on the pleadings, and,
expert opinion, if any, briefly stating or
except as to the ground of legal separation, the
describing the nature and purpose thereof;
agreements or admissions made by the parties on
any of the matters considered, including any
(5) The number and names of the witnesses provisional order that may be necessary or agreed
and their respective affidavits; and upon by the parties.
(6) Such other matters as the court may (b) Should the action proceed to trial, the
require. order shall contain a recital of the following:
Failure to file the pre-trial brief or to comply (1) Facts undisputed, admitted, and those
with its required contents shall have the same which need not be proved subject to
effect as failure to appear at the pre-trial under the Section 13 of this Rule;
succeeding section.
(2) Factual and legal issues to be litigated;
Section 10. Effect of failure to appear at the
pre-trial. - (1) If the petitioner fails to appear
(3) Evidence, including objects and
personally, the case shall be dismissed unless his
documents, that have been marked and
counsel or a duly authorized representative
appears in court and proves a valid excuse for the will be presented;
non-appearance of the petitioner.
(4) Names of witnesses who will be
(2) If the respondent filed his answer but fails presented and their testimonies in the
form of affidavits; and
to appear, the court shall proceed with the
pre-trial and require the public prosecutor to
investigate the non-appearance of the (5) Schedule of the presentation of
respondent and submit within fifteen days a evidence.
report to the court stating whether his non-
appearance is due to any collusion between The pre-trial order shall also contain
the parties/ If there is no collusion the court a directive to the public prosecutor to
shall require the public prosecutor to intervene appear for the State and take steps to
for the State during the trial on the merits to prevent collusion between the parties at
prevent suppression or fabrication of any stage of the proceedings and
evidence. fabrication or suppression of evidence
during the trial on the merits.
Section 11. Pre-trial conference. - At the pre-trial
conference, the court may refer the issues to a (c) The parties shall not be allowed to raise
issues or present witnesses and evidence
________________________________________________________________________________________________
other than those stated in the pre-trial order. submitted without leave of court. After the lapse of
The order shall control the trial of the case the period herein provided, the case will be
unless modified by the court to prevent considered submitted for decision, with or without
manifest injustice. the memoranda.
(d) The parties shall have five days from Section 16. Decision. - (a) The court shall deny
receipt of the pre-trial order to propose the petition on any of the following grounds:
corrections or modifications.
(1) The aggrieved party has condoned the
Section 13. Prohibited compromise. - The court offense or act complained of or has
shall not allow compromise on prohibited matters, consented to the commission of the
such as the following: offense or act complained of;
(1) The civil status of persons; (2) There is connivance in the commission
(2) The validity of a marriage or of a legal of the offense-or act constituting the
separation; ground for legal separation;
(3) Any ground for legal separation;
(4) Future support; (3) Both parties have given ground for
(5) The jurisdiction of courts; and legal separation;
(6) Future legitime.
(4) There is collusion between the parties
Section 14. Trial. - (a) The presiding judge shall to obtain the decree of legal separation; or
personally conduct the trial of the case. No
delegation of the reception of evidence to a
(5) The action is barred by prescription.
commissioner shall be allowed except as to
matters involving property relations of the
spouses. (b) If the court renders a decision granting the
petition, it shall declare therein that the
Decree of Legal Separation shall be issued by
(b) The grounds for legal separation must be the court only after full compliance with
proved. No judgment on the pleadings, liquidation under the Family Code.
summary judgment, or confession of judgment
shall be allowed.
However, in the absence of any
property of the parties, the court shall forthwith
(c) The court may order the exclusion from the issue a Decree of Legal Separation which
courtroom of all persons, including members
shall be registered in the Civil Registry where
of the press, who do not have a direct interest
the marriage was recorded and in the Civil
in the case. Such an order may be made if the Registry where the Family Court granting the
court determines on the record that requiring a legal separation is located.
party to testify in open court would not
enhance the ascertainment of truth; would
cause to the party psychological harm or (c) The decision shall likewise declare that:
inability to effectively communicate due to
embarrassment, fear, or timidity; would violate (1) The spouses are entitled to live
the party's right to privacy; or would be separately from each other but the
offensive to decency marriage bond is not severed;
(d) No copy shall be taken nor any (2) The obligation of mutual support
examination or perusal of the records of the between the spouses ceases; and
case or parts thereof be made by any person
other than a party or counsel of a party, (3) The offending spouse is disqualified
except by order of the court. from inheriting from the innocent spouse
by intestate succession, and provisions in
Section 15. Memoranda. - The court may require favor of the offending spouse made in the
the parties and the public prosecutor to file their will of the innocent spouse are revoked by
respective memoranda in support of their claims operation of law.
within fifteen days from the date the trial is
terminated. No other pleadings or papers may be

________________________________________________________________________________________________
(d) The parties, including the Solicitor General Section 20. Registration and publication of the
and the public prosecutor, shall be served with Decree of Legal Separation; decree as best
copies of the decision personally or by evidence. -
registered mail. If the respondent summoned
by publication failed to appear in the action, (a) Registration of decree.-The prevailing
the dispositive part of the decision shall also party shall cause the registration of the
be published once in a newspaper of general Decree in the Civil Registry where the
circulation. marriage was registered, in the Civil Registry
of the place where the Family Court is
Section 17. Appeal. - situated, and in the National Census and
Statistics Office. He shall report to the court
(a) Pre-condition. - No appeal from the compliance with this requirement within thirty
decision shall be allowed unless the appellant days from receipt of the copy of the Decree.
has filed a motion for reconsideration or new
trial within fifteen days from notice of (b) Publication of decree.-- In case service of
judgment. summons was made by publication, the
parties shall cause the publication of the
(b) Notice of Appeal - An aggrieved party or Decree once in a newspaper of general
the Solicitor General may appeal from the circulation.
decision by filing a Notice of Appeal within
fifteen days from notice of denial of the motion (c) Best evidence.-The registered Decree
for reconsideration or new trial. The appellant shall be the best evidence to prove the legal
shall serve a copy of the notice of appeal separation of the parties and shall serve as
upon the adverse parties. notice to third persons concerning the
properties of petitioner and respondent.
Section 18. Liquidation, partition and distribution,
custody, and support of minor children. - Upon Section 21. Effect of death of a party; duty of
entry of the judgment granting the petition, or, in the Family Court or Appellate Court. - (a) In
case of appeal, upon receipt of the entry of case a party dies at any stage of the proceedings
judgment of the appellate court granting the before the entry of judgment, the court shall order
petition, the Family Court, on motion of either the case closed and terminated without prejudice
party, shall proceed with the liquidation, partition to the settlement of estate proper proceedings in
and distribution of the properties of the spouses, the regular courts.
including custody and support of common
children, under the Family Code unless such (b) If the party dies after the entry of judgment,
matters had been adjudicated in previous judicial the same shall be binding upon the parties
proceedings. and their successors in interest in the
settlement of the estate in the regular courts.
Section 19. Issuance of Decree of Legal
Separation. - (a) The court shall issue the Decree Section 22. Petition for revocation of
of Legal Separation after: donations. - (a) Within five (5) years from the
date the decision granting the petition for legal
(1) registration of the entry of judgment separation has become final, the innocent spouse
granting the petition tor legal separation in may file a petition under oath the same
the Civil Registry where the marriage was proceeding for legal separation to revoke the
celebrated and in the Civil Registry where donations in favor of the offending spouse.
the Family Court is located; and
(b)The revocation of the donations shall be
(2) registration of the approved partition recorded in the Register of Deeds of Deeds in
and distribution of the properties of the the places where the properties are located.
spouses, in the proper Register of Deeds
where the real properties are located. (c)Alienations, liens, and encumbrances
registered in good faith. before the recording
(b) The court shall quote in the Decree the of the petition for revocation in the registries of
dispositive portion of the judgment entered property shall be respected.
and attach to the Decree the approved deed
of partition.

________________________________________________________________________________________________
(d)After the issuance of the Decree of Legal (a) In case of reconciliation under Section 23,
Separation, the innocent spouse may revoke paragraph (c) above, the parties shall file a
the designation of the offending spouse as a verified motion for revival of regime of property
beneficiary in any insurance policy even if relations or the adoption of another regime of
such designation be stipulated as irrevocable. property relations in the same proceeding for
The revocation or change shall take effect legal separation attaching to said motion their
upon written notification thereof to the insurer. agreement for the approval of the court.
Section 23. Decree of Reconciliation. - (a) If the (b) The agreement which shall be verified
spouses had reconciled, a joint manifestation shall specify the following:
under oath, duly signed by the spouses, may be
filed in the same proceeding for legal separation. (1) The properties to be contributed to the
restored or new regime;
(b) If the reconciliation occurred while the
proceeding for legal separation is pending, the (2) Those to be retained as separate
court shall immediately issue an order properties of each spouse; and
terminating the proceeding.
(3) The names of all their known creditors,
(c) If the reconciliation occurred after the their addresses, and the amounts owing
rendition of the judgment granting the petition to each.
for legal separation but before the issuance of
the Decree, the spouses shall express in their
(c) The creditors shall be furnished with
manifestation whether or not they agree to copies of the motion and the agreement.
revive the former regime of their property
relations or choose a new regime.
(d) The court shall require the spouses to
cause the publication of their verified motion
The court shall immediately issue a for two consecutive weeks in a newspaper of
Decree of Reconciliation declaring that the general circulation.
legal separation proceeding is set aside and
specifying the regime of property relations
under which the spouses shall be covered. (e) After due hearing, and the court decides to
grant the motion, it shall issue an order
directing the parties to record the order in the
(d) If the spouses reconciled after the proper registries of property within thirty days
issuance of the Decree, the court, upon from receipt of a copy of the order and submit
proper motion, shall issue a decree of proof of compliance within the same period.
reconciliation declaring therein that the
Decree is set aside but the separation of
property and any forfeiture of the share of the Section 25. Effectivity. - This Rule shall take
guilty spouse already effected subsists, unless effect on March 15,2003 following its publication in
the spouses have agreed to revive their a newspaper of general circulation not later than
former regime of property relations or adopt a March 7, 2003.
new regime.
Republic of the Philippines
(e) In case of paragraphs (b), (c), and (d). if SUPREME COURT
the reconciled spouses choose to adopt a Manila
regime of property relations different from that
which they had prior to the filing of the petition EN BANC
for legal separation, the spouses shall comply
with Section 24 hereof. A.M. No. 02-11-12-SC March 4, 2003
(f) The decree of reconciliation shall be RE: PROPOSED RULE ON PROVISIONAL

recorded in the Civil Registries where the ORDERS
marriage and the Decree had been registered.
RESOLUTION
Section 24. Revival of property regime or
adoption of another. - Acting on the letter of the Chairman of the
Committee on Revision of the Rules of Court

________________________________________________________________________________________________
submitting for this Court's consideration and (6) the contribution of each spouse to the
approval the Proposed Rule on Provisional marriage, including services rendered in
Orders, the Court Resolved to APPROVED the home-making, child care, education, and
same. career building of the other spouse; (7)
the age and health of the spouses; (8) the
The Rule shall take effect on March 15, physical and emotional conditions of the
2003 following its publication in a newspaper of spouses; (9) the ability of the supporting
general circulation not later than March 7, 2003 spouse to give support, taking into
account that spouse's earning capacity,
earned and unearned income, assets, and
March 4, 2003
standard of living; and (10) any other
factor the court may deem just and
RULE ON PROVISIONAL ORDERS equitable.
Section 1. When Issued, - Upon receipt of a (d) The Family Court may direct the
verified petition for declaration of absolute nullity deduction of the provisional support from
of void marriage or for annulment of voidable the salary of the spouse.
marriage, or for legal separation, and at any time
during the proceeding, the court, motu proprio or
Section 3. Child Support. - The common children
upon application under oath of any of the parties,
of the spouses shall be supported from the
guardian or designated custodian, may issue
provisional orders and protection orders with or properties of the absolute community or the
conjugal partnership.
without a hearing. These orders may be enforced
immediately, with or without a bond, and for such
period and under such terms" and conditions as Subject to the sound discretion of the court,
the court may deem necessary. either parent or both may be ordered to give an
amount necessary for the support, maintenance,
Section 2. Spousal Support. - In determining and education of the child. It shall be in proportion
to the resources or means of the giver and to the
support for the spouses, the court may be guided
necessities of the recipient.
by the following rules:
In determining the amount of provisional

(a) In the absence of adequate provisions
support, the court may likewise consider the
in a written agreement between the
following factors: (1) the financial resources of the
spouses, the spouses may be supported
custodial and non-custodial parent and those of
from the properties of the absolute
the child; (2) the physical and emotional health of
community or the conjugal partnership.
the child and his or her special needs and
aptitudes; (3) the standard of living the child has
(b) The court may award support to either been accustomed to; (4) the non-monetary
spouse in such amount and for such contributions that the parents will make toward the
period of time as the court may deem just care and well-being of the child.
and reasonable based on their standard of
living during the marriage.
The Family Court may direct the deduction
of the provisional support from the salary of the
(c) The court may likewise consider the parent.
following factors: (1) whether the spouse
seeking support is the custodian of a child
Section 4. Child Custody. - In determining the
whose circumstances make it appropriate
right party or person to whom the custody of the
for that spouse not to seek outside
child of the parties may be awarded pending the
employment; (2) the time necessary to
petition, the court shall consider the best interests
acquire sufficient education and training to
of the child and shall give paramount
enable the spouse seeking support to find
consideration to the material and moral welfare
appropriate employment, and that
of the child.
spouse's future earning capacity; (3) the-
duration of the marriage; (4) the
comparative financial resources of the The court may likewise consider the
spouses, including their comparative following factors: (a) the agreement of the parties;
earning abilities in the labor market; (5) (b) the desire and ability of each parent to foster
the needs and obligations of each spouse; an open and loving relationship between the child

________________________________________________________________________________________________
and the other parent; (c) the child's health, safety, Deportation of the Department of Justice a copy of
and welfare; (d) any history of child or spousal the hold departure order issued within twenty-four
abuse by the person seeking custody or who has hours from the time of its issuance and through
had any filial relationship with the child, including the fastest available means of transmittal.
anyone courting the parent; (e) the nature and
frequency of contact with both parents; (f) habitual The hold-departure order shall contain the
use of alcohol or regulated substances; (g) marital following information:
misconduct; (h) the most suitable physical,
emotional, spiritual, psychological and educational
(a) the complete name (including the middle
environment; and (i) the preference of the child, if name), the date and place of birth, and the
over seven years of age and of sufficient place of last residence of the person against
discernment, unless the parent chosen is unfit. whom a hold-departure order has been issued
or whose departure from the country has been
The court may award provisional custody in enjoined;
the following order of preference: (1) to both
parents jointly; (2) to either parent taking into (b) the complete title and docket number of
account all relevant considerations under the the case in which the hold departure was
foregoing paragraph, especially the choice of the
issued;
child over seven years of age, unless the parent
chosen is unfit; (3} to the surviving grandparent, or
if there are several of them, to the grandparent (c) the specific nature of the case; and
chosen by the child over seven years of age and
of sufficient discernment, unless the grandparent (d) the date of the hold-departure order.
is unfit or disqualified; (4) to the eldest brother or
sister over twenty-one years of age, unless he or If available, a recent photograph of the
she is unfit or disqualified; (5) to the child's actual person against whom a hold-departure order has
custodian over twenty-one years of age, unless been issued or whose departure from the country
unfit or disqualified; or (6) to any other person has been enjoined should also be included.
deemed by the court suitable to provide proper
care and guidance for the child. The court may recall the order. motu proprio
or upon verified motion of any of the parties after
The custodian temporarily designated by summary hearing, subject to such terms and
the" court shall give the court and the parents five conditions as may be necessary for the best
days notice of any plan to change the residence of interests of the child.
the child or take him out of his residence for more
than three days provided it does not prejudice the Section 7. Order of Protection. - The court may
visitation rights of the parents. issue an Order of Protection requiring any person:
Section 5. Visitation Rights. - Appropriate (a) to stay away from the home, school,
visitation rights shall be provided to the parent business, or place of employment of the
who is not awarded provisional custody unless child, other parent or any other party, and
found unfit or disqualified by the court. . to stay away from any other specific place
designated by the court;
Section 6. Hold Departure Order. - Pending
resolution of the petition, no child of the parties (b) to refrain from harassing, intimidating,
shall be brought out of the country without prior or threatening such child or the other
order from the court. parent or any person to whom custody of
the child is awarded;
The court, motu proprio or upon application
under oath, may issue ex-parte a hold departure (c) to refrain from acts of commission or
order, addressed to the Bureau of Immigration and omission that create an unreasonable risk
Deportation, directing it not to allow the departure to the health, safety, or welfare of the
of the child from the Philippines without the child;
permission of the court.
(d) to permit a parent, or a person entitled
The Family Court issuing the hold departure to visitation by a court order or a
order shall furnish the Department of Foreign
Affairs and the Bureau of Immigration and

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separation agreement, to visit the child at revised Rule on Children in Conflict with the Law,
stated periods; the Court Resolved to APPROVE the same.
(e) to permit a designated party to enter This Resolution shall take effect on December 1,
the residence during a specified period of 2009 following its publication in two(2)
time in order to take persona! belongings newspapers general circulation not later than
not contested in a proceeding pending November 27, 2009.
with the Family Court;
November 24, 2009.
(f) to comply with such other orders as are
necessary for the protection of the child. REVISED RULE ON CHILDREN IN CONFLICT
WITH THE LAW
Section 8. Administration of Common
Property. - If a spouse without just cause Section 1. Applicability of the Rule. - This Rule
abandons the other or-fails to comply with his or shall apply to all criminal cases involving children
her obligations to the family, the court may, upon in conflict with law.
application of the aggrieved party under oath,
issue a provisional order appointing the applicant A child in conflict with the law is a person who at
or a third person as receiver or sole administrator the time of the commission of the offense is below
of the common property subject to such eighteen (18) years old but not less than fifteen
precautionary conditions it may impose.
(15) years and one (1) day old.
The receiver or administrator may not This Rule shall not apply to a person who at the
dispose of or encumber any common property or
time of the initial contact as defined in Sec. 4 (q) of
specific separate property of either spouse without
this Rule shall have reached the age of eighteen
prior authority of the court. (18) in which case, the regular rules on criminal
procedure shall apply without prejudice to the
The provisional order issued by the court rights granted under Secs. 53,54,55 and 56 of this
shall be registered in the proper Register of Deeds Rule.
and annotated in all titles of properties subject of
the receivership or administration. Bar Exam Question 2012
72. Cesar, age 16, a habitual offender, was
Section 9. Effectivity. - This Rule shall take effect caught in possession of .001 grams of
on March 15, 2003 following its publication in a marijuana. He was charged for violation of
newspaper of general circulation not later than Sec. 16 of R.A. 9165, The Comprehensive
March 7, 2003. Dangerous Drugs Law. The court which has
jurisdiction is:
a. the MTC;
b. the RTC;
Republic of the Philippines c. Special Drugs Court;
SUPREME COURT d. Family Court.
Manila SUGGESTED ANSWER:
(d), The State is mandated to safeguard
EN BANC the well-being of its citizenry, particularly
children from harmful effects of dangerous
A.M. No. 02-1-18-SC November 24, 2009 drugs on their physical and mental well-
being and to defend them against acts or
omissions detrimental to their
RULE ON JUVENILES IN CONFLICT WITH THE
development and preservation. Pursuant
LAW
to this policy and the mandate Republic
Act No. 8369, also known as The Family
RESOLUTION Courts Act of 1997, the Family Courts are
vested with exclusive jurisdiction to hear
Acting on the recommendation of the Chairperson and decide cases against minors charged
and Members of the Subcommitee on Rules with drug-related offenses (A.M. NO. 07-8-
Procedure for Family Courts submitting for this 2-SC-2, SEC.2). The objective is to ensure
Court's consideration and approval the proposed that rights of children charged with

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violation of any of the offenses under The (f) to promote, facilitate and implement in
Comprehensive Dangerous Drugs Act of administrative and judicial proceedings
2002 are well protected, and that their respect for the view of the child;
interests and those of their family and the
community are adequately balanced. (A.M. (g) To provide for the care, protection and
NO. 07-8-2-SC-2, SEC.2). wholesome moral, mental, and physical
development of children in conflict with the
law; and
Section 2. Objective. - The objective of this Rule (h) To promote and protect the rights and
is to ensure that the justice system treats every interest of children as zones of peace in
child in conflict with the law in a manner that situations of armed conflict, but who are
recognizes and upholds human dignity and worth, alleged to be in conflict with the law. (a)
and instills in the child respect for the fundamental
rights and freedom of others. The Rule considers Section 3. Interpretation. - This Rule shall be
the developmental age of the child and the interpreted liberally to promote the best interest of
desirability of the child's reintegration in the the child in conformity with Philippine laws, the
assumption of a constructive role in society in United Nations' Convention on the Rights of the
accordance with the principles of balanced and Child and relevant international treaties and
restorative justice. protocols.
To attain this objective, the Rule seeks: Section 4. Definitions. - As used in this Rule,
(a) To provide child-appropriate proceedings, (a) Age of criminal responsibility is the age
including programs and services for crime when a child, fifteen (15) years and one (1)
prevention, diversion, rehabilitation, re- day old or above but below eighteen (18)
integration and aftercare to ensure the normal years of age, commits an offense with
growth and development of the child in conflict discernment.
with the law;
(b) Bail refers to the security given for the
(b) To provide procedural rules dealing with release of the child in custody of the law,
children in conflict with the law that take into furnished by the child, the child's parent,
account their distinct circumstances, assure all guardian, or a bondsman, to guarantee the
parties of a fair hearing with each party's child's appearance before the court. Bail may
constitutional and statutory rights recognized be posted in a form such as corporate
and respected, and ensure that appropriate security, property bond or cash deposit.
disposition measures are implemented by law
enforcers social services and the courts; (c) Balanced and Restorative Justice is a
principle in juvenile justice that requires a
(c) To divert from the formal justice system process of resolving conflicts with the
children in conflict with the law who can be participation of the victim, the child in conflict
cared for or placed under community with the law, and the community. It seeks to
continuum alternative programs of treatment, obtain reparation for the victim; reconciliation
training and rehabilitation in conformity with to the victim, the child in conflict with the law,
the principles of balanced and restorative and the community, and the reassurance that
justice; the child in conflict with the law can be
reintegrated into society. It also enhances
(d) To deal with the child in a family public safety by involving the victim, the child
environment whenever possible, and to in conflict with the law, and the community in
separate the child from the parents only when prevention strategies. (a)
necessary for the child's welfare or in the
interest of public safety. (d) Best interest of the child refers to the
totality of congenial to the survival, protection
(e) To remove from children in conflict with the and feelings of security of the child and most
law the stigma of criminality and criminal encouraging to the child's physical,
behavior; psychological and emotional development. It
also means the least detrimental available

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alternative for safeguarding the growth and right and wrong and the consequences of the
development. wrongful act.
(e) Case study report is a written report on the (k) Disposition conference is a meeting held
social case inquiry conducted by the social by the court with the social worker who
worker of the local government unit or the prepared the case study report, together with
Department of Social Welfare and the child in conflict with the law and the
Development or by the social worker parents or guardian ad litem, and the child's
designated by the court on the social, cultural, counsel for the purpose of determining the
economic and legal status or condition of the disposition measures appropriate to the
child in conflict in the law. It shall include, personal and special circumstances of the
among other matters, the child's development child.
age; educational attainment; family and social
relationships; the quality of the child's peer (l) Diversion refers to an alternative child-
group; the strengths and weaknesses of the appropriate process of determining the
family; parental control; the child's attitude responsibility and treatment of a child in
towards the offense ; the harm or damage conflict with the law on the basis of the child's
done to others resulting from the offenses, if social, cultural, economic psychological or
any; and the attitude of the parents towards educational background without resorting to
the child's responsibility for the offense. The formal court adjudication.
social worker shall also include an initial
determination of the child's discernment in the (m) Diversion programs refer to programs
commission of the offense. (a)
the child in conflict the law is required to
undergo in lieu of formal court proceedings.
(f) Community continuum refers to the
aftercare of a child in conflict with the law and
(n) Expedited Transfer of a Child is a
is a provides continuous guidance and
process where a child who commits an
support to the child in conflict with the law offense is immediately brought by the
upon release from rehabilitation and apprehending officer or private individual to a
subsequent reintegration into society. social worker for preliminary determination of
Community continuum for the child includes discernment. (n)
timely release, suitable residence, food,
clothing, available employment and sufficient
means to facilitate successful reintegration in (o) Guardian Ad Litem is a person appointed
local government unit and other appropriate by the court to protect the best interest of the
agencies. (n) child. (a)
(g) Corporal punishment is any kind of (p) In conflict with the law means take into
physical punishment inflicted on the body as custody, detained, or charged with the
distinguished from pecuniary punishment or commission of an act defined and punished as
fine. a crime or offense under the law, including
violations of traffic laws, rules and regulations,
and ordinances of local government units. (a)
(h) Court refers to a designated family court or
in places where there are no designated
family courts, any regional trial court hearing (q) Initial contact refers to apprehension or
family and youth cases. (a) taking into custody of a child in conflict with
the law by law enforcement officers or private
citizens. It includes the time the child alleged
(i) Deprivation of Liberty refers to any form of to be in conflict with the law receives a
detention or imprisonment, or to the subpoena under Section 3 (b) of Rule 112 of
placement of a child in conflict with the law in the Revised Rules of Criminal Procedure or
a public or private custodial setting, from summons under Section 6 (a) or Section 9(b)
which the child in conflict with the law is not of the same Rule in cases that do not require
permitted to leave at will except by order of preliminary investigation, or where there is no
any judicial or administrative authority. (a) necessity to place the child alleged to be in
conflict with the law under immediate custody.
(j) Discernment means the capacity of the (n)
child at the time of the commission of the
offense to understand the differences between

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(r) Intake report is the initial written report (z) Status offenses refers to offenses that
containing the personal and other discriminate only against a child, such as
circumstances of the child in conflict with the curfew violations, truancy, parental
law prepared by the social worker assigned to disobedience and the like. (n)
assist the child entering the justice system.
(aa) Suspended sentence is the holding in
(s) Intervention programs refer to a series of abeyance of the service of the sentence
individualized treatment activities or programs imposed by the court upon a finding of guilt of
designed to address issues that caused the the child in conflict with the law, whereby the
child to commit an offense. These may include child undergoes rehabilitation within a fixed
counseling, skills, training, education, and period under such terms and conditions as
other activities that are aimed to improve and may be ordered by the court. (n)
enhance the child's psychological, emotional
and psychosocial well being. (n) (bb) Victimless Crimes refer to offenses where
there are no private offended parties. (n)
(t) Law Enforcement Officer refers to the
person in authority or an agent as defined in (cc) Youth detention home refers to a 24-hour
Article 152 of the Revised Penal Code, child-caring institution managed by accredited
including a barangay tanod. (n) local government units and licensed and/or
accredited non-government organizations
(u) Non-Serious Offense refers to an offense providing short-term residential care for
where the imposable penalty for the crime children in conflict with the law and where the
committed is not more than six (6) years child may be physically restricted by order of
imprisonment. (n) any judicial, administrative or other public
authority, and from which the child is not
(v) Probation is an alternative disposition, permitted to leave at will, pending court
ordered by the court, under which a child in disposition of the charge or transfer to other
conflict with the law is released after agencies or jurisdiction. (a)
conviction and sentence and permitted to
remain at home or with an appropriate (dd) Youth rehabilitation center refers to a 24-
custodian, subject to certain terms and hour residential care facility managed by the
conditions imposed by the court. Department of Social Welfare and
Development, local government units,
(w) Recognizance is an undertaking in lieu of licensed and/or accredited non-government
a bond, assumed by a mother or father, or organizations monitored by the Department of
appropriate guardian or custodian, or in their Social Welfare and Development. The Center
absence, the nearest relative, or any provides care, treatment and rehabilitation
responsible member of the community to services for children in conflict with the law
assume custody of a child in conflict with the under a structured therapeutic environment
law and be responsible for the appearance of through the guidance of a trained staff, where
the child in court whenever required during the the physical mobility of the children may be
pendency of the case. (a) restricted pending court disposition of their
cases. (a)
(x) Segregation refers to the procedure
where, upon initial contact with a child alleged Section 5. Determination of Age. - The child in
to have committed an offense, the law conflict with the law shall enjoy the presumption of
enforcer places the child in a separate and minority and shall enjoy all the rights of a child in
different area from adult detention prisoners, conflict with the law until proven to be eighteen
and ensures that female children are years old or older at the time of the commission of
separated from male children. (n) the offense. The age of the child shall be
determined according to the following rules:
(y) Serious offense refers to an offense where
the imposable penalty for the offense (1) The best evidence to prove the age of a
committed exceeds six (6) years child is an original or certified true copy of the
imprisonment. (a) certificate of live birth;

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(2) In the absence of a certificate of live birth, (a) The authority who had the initial contact
similar authentic documents such as with the child shall immediately release the
baptismal certificates and school records or child to the custody of the mother or father, or
any pertinent document that shows the date of the appropriate guardian or custodian, or in
birth of the child; their absence, the nearest relative.
(3) In the absence of the documents under (b) The authority shall immediately notify the
paragraphs 1 and 2 of this section due to loss, local social welfare and development officer of
destruction or unavailability, the testimony of the taking of the child into custody.
the child, the testimony of a member of the
family related to the child by affinity or (c) The local social welfare and development
consanguinity who is qualified to testify on officer shall, with the consent of the child and
matters respecting pedigree such as the exact the person having custody over the child,
age or date of birth of the child pursuant to determine the appropriate intervention
Sec.40, Rule 130 of the Rules on Evidence, programs for the child.
the testimonies of the other persons, the
physical appearance of the child and other (d) If the child's parents, guardians or nearest
relevant evidence, shall suffice.
relatives cannot be located, or if they refuse to
take custody, the child may be released to any
Section 6. Burden of Proof of Age. - Any person of the following: a duly registered
alleging the age of the child in conflict with the law nongovernmental or religious organization; a
has the burden of proving the age of such child. barangay official or a member of the Barangay
Council for the Protection of Children; a local
If the age of the child is contested prior to the filing social welfare and development officer; or,
of the information in court, a case for when and where appropriate, the Department
determination of age under summary proceeding of Social Welfare and Development.
may be filed before a court which shall render its
decision within 24 hours from receipt of the (e) If the child has been found by the local
appropriate pleadings of all the parties. (n) social welfare and development office to be
abandoned, neglected or abused by the
In all cases involving a child, the court shall make parents, or if the parents and the child do not
a categorical finding as to the age of the child. consent to or do not comply with the
prevention program, the Department of Social
Section 7. Exemption from Criminal Liability. - Welfare and Development or the Local Social
A child fifteen years of age or under at the time of Welfare and Development Office shall file
the commission of the offense shall be exempt before the court a petition for involuntary
from criminal liability. However, the child shall be commitment pursuant to Presidential Decree
subjected to an intervention program as provided No. 603, otherwise known as "The Child and
for in Republic Act No. 9344 when consented to Youth Welfare Code." (a)
by the child and the parents. (a)
Section 9. Procedure for Children Not Exempted
Exemption from criminal liability does not include from Criminal Liability. - A child fifteen (15) years
exemption from civil liability which shall be and one (1) day old or above but below eighteen
enforced in accordance with the provisions of (18) years of age at the time of the commission of
Article 221 of the Family Code in relation to Article the offense shall, at the sound discretion of the
101 of the Revised Penal Code and Rule 111 of court and subject to its supervision, be released
the Revised Rules of Criminal Procedure. If the on recognizance to the care of the willing and
act or omission of the child involves a quasi-delict, responsible mother or father, or appropriate
Article 2180 of the Civil Code shall apply. guardian or custodian, or, in their absence, the
nearest relative. However, if the prosecution
Section 8. Procedure for Handling Children determines that the child acted with discernment,
the child shall be proceeded against in
Exempted from Criminal Liability. - If it is
accordance with Secs. 25 to 29 or, in case of
determined at the initial contact that the child is 15
diversion, Secs. 31 to 38 of this Rule.
years of age or below, the procedure provided in
Section 20, Republic Act No. 9344 shall be
observed as follows: Section 10. Determination of Discernment. -
Discernment is preliminarily determined by a
social worker and finally by the court in the case of

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a child charged with a non-serious offense. In all development office or other accredited non-
other cases, discernment is determined by the government organizations;
court.
(k) Notify the child's parents, guardians or
The determination of discernment shall take into custodians or in their absence, the child's
account the ability of a child to understand the nearest relative and the Public Attorney's
moral and psychological components of criminal Office of the child's apprehension;
responsibility and the consequences of the
wrongful act; and whether a child can be held (l) Ensure that the child is not locked up in a
responsible for essentially antisocial behavior. jail or detention cell during the investigation;
Section 11. Duties of a Person in Authority (m) Bring the child immediately to an available
Taking a Child into Custody. - Any person taking government medical or health officer for a
into custody a child in conflict with the law shall: thorough physical and mental examination;
(a) Assign an alias to the child; (n) Ensure that should detention of the child in
conflict with the law be necessary, the
(b) Ensure that the blotter details containing segregation of the child be secured in quarters
the true name of the child, if any, are modified, separate from that of the opposite sex and
to reflect the alias by which the child shall be adult offenders, except where a child is taken
known throughout the proceedings; into custody for reasons related to armed
conflict, either as combatant, courier, guide or
(c) Explain to the child in simple language and spy, and families are accommodated as family
in a dialect that can be understood the reason units in which case, the child shall not be
for placing the child under custody, and the separated from the family;
offense allegedly committed;
(o) Record all the procedures undertaken in
(d) Advise the child of his/her constitutional the initial investigation including the following:
rights in a language or dialect understandable whether handcuffs or other instruments of
to the child; restraint were used, and if so, the reason for
such use; that the parents or guardian of the
child, the Department of Social Welfare and
(e) Present proper identification to the child;
Development, and the Public Attorney's Office
were informed of the taking into custody of the
(f) Refrain from using vulgar or profane words child and the details thereof; the measures
and from sexually harassing or abusing, or that were undertaken to determine the age of
making sexual advances on the child; child, and the precise details of the physical
and medical examination or in case of failure
(g) Avoid displaying or using any firearm, to submit a child to such examination, the
weapon, handcuffs or other instrument of reason therefore; and
force or restraint, unless absolutely necessary
and only after all methods of control have (p) Ensure that all statements signed by the
been exhausted and have failed; child during the investigation are witnessed
and signed by the child's parents or guardian,
(h) Avoid violence or unnecessary force and social worker or legal counsel in attendance.
refrain from subjecting the child to greater (n)
restraint than is necessary for apprehension
and custody; Section 12. Rights of a Child Under Custody. -
At the custodial investigation, a child who has
(i) Ensure that a body search of the child is been taken into custody shall have the following
done only by a law enforcement officer of the rights:
same gender as that of the child;
(a) At the police station, to be immediately
(j) Ensure expedited transfer of the child by assisted by a lawyer and a social worker who
immediately, or not later than eight (8) hours shall make sure that the child is effectively
after apprehension, turning over custody of informed of his/her rights, as far as the child's
the child to the local social welfare and maturity and discernment allow;

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(b) To demand that the questioning or welfare officer. A representative of a non-

interrogation take place in conditions that government organization, religious group, or
respect the rights of the child and are member of the Barangay Council for the
complaint with child-sensitive procedural Protection of Children shall be allowed to be
rules; present at the investigation in the absence of the
parents, guardian, relative, or social welfare
(c) To have the child's family located and officer. (a)
notified with dispatch;
Section 15. Guidelines for Fingerprinting and
(d) To be informed, together with the parents, Photographing of the Child. - The following
guardians or custodians or nearest relatives, guidelines shall be observed when fingerprinting
by the social welfare and development officer or photographing the child:
of the local government unit or of the
Department of Social Welfare and (a) The child's fingerprint and photograph files
Development of the consequences of the shall be kept separate from those of adults
offense alleged to have been committed with and shall be kept confidential. They may be
a view towards counseling and rehabilitation, inspected by law enforcement officers only
diversion from criminal justice system and when necessary for the effective discharge of
reparation if appropriate; their duties and upon prior authority of the
court; and
(e) To have the results of the child's medical
and dental examination kept confidential (b) The fingerprint and photograph shall be
unless otherwise ordered by the court. removed from the files and destroyed: (1) if
Whenever medical treatment for any physical the case against the child is not filed, or is
or mental defect is necessary, to demand that dismissed; or (2) when the child reaches
steps must be immediately taken by the twenty-one (21) years of age and there is no
medical officer to provide the child with the record that the child committed an offense
necessary and proper treatment; after reaching eighteen (18) years of age.
(f) To have the right of privacy respected and Section 16. Intake Report by the Social Welfare
protected at all times, including the utilization Officer. - Upon the taking into custody of a child in
of all measures necessary to promote this conflict with the law, the social welfare officer
right, including the exclusion of the media; and assigned to the child shall immediately undertake
a preliminary background investigation of the child
(g) While under investigation, not to be and, should a case be filed in court, submit to the
fingerprinted or photographed in a humiliating court the corresponding intake report prior to the
and degrading manner. arraignment.
Section 13. Taking Custody of a Child Without Section 17. Filing of Criminal Action. - A criminal
a Warrant. - The law enforcement officer or a action may be instituted against a child in conflict
private person taking into custody a child in with the law by filing a complaint with the
conflict with the law without a warrant shall prosecutor.
observe the provisions in Sections 5, 8 and 9 of
Rule 113 of the Revised Rules of Criminal All criminal actions commenced by complaint or
Procedure and shall forthwith deliver the child to information shall be prosecuted under the
the nearest police station. The child shall be direction and control of the public prosecutor
proceeded against in accordance with Section 7 of assigned to the court.
Rule 112 of the Rules of Criminal Procedure.
Petitions for confinement of a child drug
Section 14. Conduct of Initial Investigation by the dependent shall be filed under Section 21 of the
Police. - The police officer conducting the initial Rule on Children Charged under Republic Act No.
investigation of a child conflict with the law shall 9165. (n)
do so in the presence of either or both of the
parents, guardian or custodian, or in their Section 18. Prosecution of Civil Action. - When a
absence, the nearest relative of the child, the criminal action is instituted against a child in
child's counsel of choice, or a lawyer from the conflict with the law, the action for recovery of civil
Public Attorney's Office, and the local social liability arising from the offense charged shall be

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governed by Rule 111 of the Revised Rules of (a) status offences;

Criminal Procedure. (b) vagrancy and prostitution under Section
202 of the Revised Penal Code;
Section 19. Preliminary Investigation. - As far as (c) mendicancy under Presidential Decree No.
consistent with this Rule, the preliminary 1563; and
investigation of a child conflict with the law shall (d) sniffing of rugby under Presidential Decree
be governed by Section 3 of Rule 112 of the No. 1619.
Revised Rules of Criminal Procedure. A specially
trained prosecutor shall be assigned to conduct Children taken into custody for the foregoing shall,
the inquest, preliminary investigation and with their consent and that of their parents,
prosecution of the case involving a child in conflict guardian or custodian, instead undergo
with the law. The child, on the other hand, shall be appropriate counseling and treatment program. (n)
assisted by a private lawyer or if none, a lawyer
from the Public Attorney's Office. If there is an Section 22. Duties of the Clerk of Court Upon
allegation or evidence of torture or ill-treatment of Receipt of information. - The Clerk of Court, upon
a child in conflict with the law during custody or receipt of the Information, shall:
detention, it shall be the duty of the prosecutor to
investigate the same. (n)
(1) Maintain a separate case docket or
logbook for cases involving children in conflict
Section 20. Conduct of Preliminary Investigation. with the law. Whenever possible, the Clerk of
- Preliminary investigation shall be conducted in Court shall use color coding or other method
the following instances: (a) when the child in to easily distinguish the records of children in
conflict with the law does not qualify for diversion; conflict with the law from the other case
(b) when the child, the parents or guardian do not records;
agree to diversion as provided in Sections 27 and
28 of Republic Act No. 9344; or (c) when, after
(2) Determine whether the offense charged
considering the assessment and recommendation
qualifies for diversion, that is it punishable by
of the social worker, the prosecutor determines imprisonment of not more than twelve (12)
that diversion is not appropriate for the child in years, regardless of fine, or fine alone
conflict with the law. (n) regardless of the amount;
At the preliminary investigation, should there arise (3) If the crime charged is punishable by such
a need for clarificatory questions to be imprisonment, immediately assign a
propounded on the child, the Rule on Examination temporary case number in accordance with
of a Child Witness shall apply. Sec. 23 of this Rule and raffle off the case to a
court so that its Diversion Committee can
Section 21. Filing of Information. - If the immediately undertake the appropriate action
investigating prosecutor finds probable cause to under Section 33 of this Rule; and
hold the child in conflict with the law for trial, there
being discernment, the corresponding Resolution
(4) If the crime charged does not quality for
and Information shall be prepared for the approval diversion because it is punishable by
by the provincial or city prosecutor, as the case imprisonment of more than twelve (12) years,
may be. The child and the mother or father, or the case shall be assigned a regular criminal
appropriate guardian or custodian, or in the
case docket number raffled off to a court for
absence thereof, the nearest relative, and the formal proceedings. (n)
child's private counsel or lawyer from the Public
Attorney's Office shall be furnished forthwith a
copy of the approved resolution and the Section 23. Docketing of the Case - a case that
Information. qualifies for diversion under paragraph 3 of the
preceding Section shall not be docketed as a
regular criminal case but instead shall be assigned
The Information shall be filed with the court within a temporary case number as follows: CICL-(no.)
forty-five (45) days from the start of the preliminary ___- (year) ___ -D (which means diversion),
investigation. (n) before the same is raffled off to the appropriate
court.
No Information shall be filed against a child for the
commission of the following: Section 24. Venue - Subject to the provisions of
Section 15, Rule 110 of the Revised Rules of

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Criminal Procedure, any criminal or civil action Section 28. When Bail Not a Matter of Right. -
involving a child in conflict with the law shall be No child charged with an offense punishable by
instituted and tried in the appropriate court nearest reclusion perpetua or life imprisonment shall be
the place where the offense was committed or admitted to bail when evidence of guilt is strong. In
where any of its essential elements occurred. this case, the court shall commit the to a youth
detention home or youth rehabilitation center, or in
Section 25. Released of Children on the absence thereof, to the care of a provincial,
Recognizance to the Parents, Guardian, city or municipal jail as provided for in Section 27
Custodian or Nearest Relative. - The release of a of this Rule, which shall be responsible for the
child from a custody during the pendency of the appearance of the child in court whenever
case involving a non-serious offense as defined in required.
Sec. 4 (u) of this rule may be ordered by the court
only after a hearing for that purpose, and upon Section 29. Care of Child in Youth Detention
favorable recommendation of the social worker Homes or Rehabilitation Centers. - The child in
assigned to the child, with the conformity of the conflict with the law who has been transferred to a
public prosecutor and the private complainant. youth rehabilitation center or youth detention
The child shall be released to the custody of a home shall be provided with a healthy
willing and responsible mother or father, or environment. If the child is placed under the care
appropriate guardian or custodian or in their of the provincial, city or municipal jail, the child
absence, the nearest relative, who shall be shall be provided with adequate quarters separate
responsible for the child's good behavior and from adults and prisoners of the opposite sex
appearance in court whenever required. depending on the age, sex, sexual lifestyle, and
such other circumstances and needs of the child.
No child shall be ordered detained in jail pending
trial or hearing of the child's case, subject to the Section 30. Case Study Report. - After the
provisions of this Rule. (n) institution of the criminal action, the social worker
assigned to the child shall immediately undertake
Section 26. Commitment and transfer to a youth a social case inquiry of the child and the child's
Rehabilitation Center. - A child charged with non- family, the child's environment and such other
serious offense as defined in Section 4 (u) of this matters relevant to aid the court in the proper
Rule, unless released on bail or recognizance, disposition of the case. The report shall be
may be transferred to a youth detention home submitted to the court preferably before
rehabilitation center or other appropriate facility arraignment. If not available at that time, the
such as the Department of Social Welfare and Report must be submitted to the court as soon as
Development which shall ensure the appearance possible.
of the child in court.
Section 31. Diversion Committee - In each court,
In the absence of a youth detention home there shall be organized a Diversion Committee
established by the local government pursuant to composed of its Branch Clerk of Court as
Section 8 of the Family Courts Acts, in the city or chairperson; the prosecutor, a lawyer of the Public
municipality where the child resides or, a local Attorney's Office assigned to the court, and the
rehabilitation center recognized by the social worker assigned by the court to the child, as
government in the province, city or municipality members.
within the jurisdiction of the court, or the
Department of Social Welfare and Development or Section 32. Proceedings Before Arraignment -
other appropriate local rehabilitation center, the The Diversion Committee shall determine if the
youth shall be placed under the care of a child can be diverted and referred to alternative
provincial, city or municipality jail which shall measures or services. Subject to pertinent
ensure the appearance of the child in court when provisions of this Rule and pending determination
so required. (a) of diversion by the Committee, the court shall
release the child on recognizance to the parents,
Section 27. Bail as a Matter of right. - All guardian or custodian, or nearest relative; or if this
children in conflict with the law shall be admitted to is not advisable, commit the child to an
bail as a matter of right before final conviction of appropriate youth detention home or youth
an offense not punishable by reclusion perpetua rehabilitation center which shall be responsible for
life imprisonment. the presence of the child during the diversion
proceedings.

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If the Diversion Committee determines that report and recommendation in accordance with
diversion is not proper, or when the child or the Section 31 of this Rule.
private complainant object to the diversion, or
when there is failure if the diversion program if The Committee cannot recommend diversion in
undertaken by the child, it shall submit a report to case the child or the private complainant objects.
the court recommending that the case be
subjected to formal criminal proceedings. The Section 34. Diversion programs. -The
court in turn shall direct the transmittal of the Committee shall design a diversion program
records of the case to the Office of the Clerk of
talking into consideration the individual
Court for the assignment of a regular criminal characteristics and peculiar circumstances of the
docket number to the case as follows: CICL Crim. child in conflict with the law. The program shall be
Case No.___-___( year). The Office of the Clerk of for a specific and definite period and may include
Court shall thereafter return the case to the court any or a combination of the following:
for arraignment and formal proceedings.
(a) Written or oral reprimand or citation;
Section 33. Proceeding Before the Diversion
(b) Written or oral apology;
Committee. - Upon receipt by the Committee of a (c) Payment of the damage caused;
case for diversion from the Office of the Clerk of
(e) Payment of the cost of the proceedings;
Court, the chairperson shall call for a conference (f) Return of the property;
with notice to the child, the mother or father, or (g) Guidance and supervision orders;
appropriate guardian or custodian, or in their (h) Counseling for the child and his family;
absence, the nearest relative, the child's counsel, (i) Training, seminar and lectures on (i) anger
and the private complainant and counsel to
management skills; (ii) problem-solving and/or
determine if the child can be diverted to the
conflict resolution skills; (iii) values formation;
community continuum instead of formal court and (iv) other skills that will aid the child to
proceedings. properly deal with situations that can lead to a
repetition of the offense;
In determining whether diversion is appropriate for (j) Participation in available community-based
the child, the Committee shall consider the programs;
following factors: (k) Work-detail program in the community; or
(l) Institutional care and custody.
(a) The past records, if any, involving the child
in conflict with the law; The Committee shall also include in the program a
plan that will secure satisfaction of the civil liability
(b) The likelihood that the child will be an of the child in accordance with Sec. 2180 of the
obvious threat to himself/herself and the Civil Code. Inability to satisfy the civil the liability
community; shall not by itself be a ground to discontinue the
diversion program of a child. On the other hand,
(c) Whether the child has feeling of remorse consent to diversion by the child or payment of
for the offense committed; civil indemnity shall not in any way be construed
as admission of guilt and used as evidence
(d) If the child or the parent are indifferent or against the child in the event that the case is later
on returned to the court for arraignment and
hostile; and whether this will increase the
conduct of formal proceedings.
possibility of delinquent behavior; and
The court shall act on the recommendation within

(f) If community-based programs for the
five (5) days from the termination of the hearing.
rehabilitation and reintegration of the child are
available.
Section 36. Undertaking. - In all cases where a
child in conflict with the law is granted diversion by
If the Committee finds that diversion is
the court, the child, together with the mother or
appropriate, it shall design a diversion program in
father, or appropriate guardian or custodian, or in
accordance with Section 34 of this Rule for the
their absence, the nearest relative, and the child's
consideration and approval of the court.
counsel shall sign an undertaking to comply with
their respective duties and obligation under the
Should the Committee determine that diversion is terms and conditions of the express agreement by
not appropriate, it shall make the corresponding complainant assisted by counsel to the diversion
of the child, shall be approved by and enforced

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under the supervision and control of the court. It (a) Issue a closure order terminating the case
shall contain the following minimum principal if it is convinced that the child has complied
terms and conditions: satisfactorily with the diversion program; or
(a) The child shall appear before the social (b) Extend the period of diversion if it is
worker assigned to the child by the Court that convinced that the child may still be
approved the diversion program at least once rehabilitated; or
a month for evaluation of its effectiveness.
(c) Order the case to undergo formal court
(b) The child shall faithfully comply with the proceedings if it finds that the child has not
term and conditions of the program. Should complied with the diversion program, is
the child fail to do so, the Committee shall incorrigible, or that the program is not serving
report such failure to the court which shall set its purpose.
a show- cause hearing with notice to the child
and private complainant. The court shall In case of the judicially-approved transfer of
thereafter determine whether to allow the child residence of the child in conflict with the law, the
to continue with the diversion program, or to court to which supervision of the diversion
end the same and direct that the case now program was transferred shall make the proper
undergo a formal proceeding. finding. IF it finds that diversion has been
successful. It shall order the closure of the case.
Should the child be permitted by the court to However, if it determines that diversion has failed
reside in a place under the jurisdiction of another it shall return the case to the original court for
court, control and supervision over such child shall formal criminal proceedings.
be transferred to the appropriate court of that
place. The diversion records of the case such as Section 39. Rights of the Child in Conflict with
the minutes of the diversion proceedings, copy of the Law. - In all criminal proceedings, the child in
the undertaking, the intake and case study reports conflict with the law shall have the following rights
and all other pertinent documents shall be which shall be respected and protected by the
transmitted to the court to which jurisdiction over court:
the diverted child has been transferred.
(a) To be presumed innocent until guilt is
Section 37. Report of Social Worker. - The court proved beyond reasonable doubt;
social worker shall conduct regular monthly visit to
the child undergoing diversion proceedings and (b) To be informed promptly and directly of the
shall submit the corresponding reports about the nature and cause of the charge and if
status of the diverted child to the committee. At appropriate, through the child's mother, father,
any time before or at the end diversion period, the legal guardian, or appropriate custodian;
committee shall file with the court of the report
recommending termination or extension of
diversion, as the case may be. The report and (c) To be present at every stage of the
recommendation shall be heard by the court within proceedings, from arraignment to
fifteen (15) days form receipt, with notice to the promulgation of judgment. The child may,
members of the Committee, the child, the mother however, waive presence at the trial pursuant
or father, or the appropriate guardian or custodian, to the stipulations set forth in the bail bond,
or in the absence thereof, the nearest relative, the unless presence at the trial is specifically
child's counsel, and the complainant and counsel. ordered by the court for purposes of
identification. The absence of the child without
justifiable cause at the trial of which there was
The court shall thereafter determine whether the due notice shall be considered a waiver of the
diversion program has been full and satisfactorily right of the child to be present. Escape by the
complied with child under custody shall be deemed a waiver
of the right to be present in all subsequent
Section 38. Closure Order. - On the basis of the hearings until custody over such child is
report and recommendation of the Committee, the gained;
court may:
(d) To have legal and other appropriate
assistance in the preparation and presentation
of the child's defense; in case of a child

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arrested for reasons related to armed conflict, preferable in the presence of the child's
to have immediate free legal assistance; parents or legal guardian or custodian, unless
such presence is considered not to be in the
(e) If detained, to be released (I) on best interest of the child taking into account
recognizance to the willing and responsible the latter's age or other peculiar
mother or father or appropriate guardian or circumstances;
custodian, or in the absence thereof, the
nearest relative; (ii) on bail; or (iii) by (l) To be accorded all the rights under the
commitment to a youth detention home or Rule on Examination of a Child Witness;
youth rehabilitation center,
(m) To have the child's privacy fully protected
(f) Not to be detained in a jail or transferred to in all stages of the proceedings; and
an adult facility pending trial or hearing of the
case, unless detention is used as a last resort (n) To appeal in all cases allowed and in the
which must be done for the shortest time manner prescribed by law.
possible, and only upon order by the court;
Section 40. Rights of Victims of Offences
(g) In the case the child has been arrested for Committed by Children in Conflict with the
reasons related to armed conflict, either as Law. - In any case involving a child in conflict with
combatant, courier, guide or spy: the law, the victim has the following rights:
(i) To be segregated and have separate (1) To be reasonably protected from the child
detention quarters from adults except in conflict with the law;
where families are accommodated as
family units;
(2) To timely notice of any public proceedings,
or any parole proceedings involving the crime
(ii) To immediate free legal assistance in or of any release or escape of the child in
the absence of private counsel; conflict with the law;
(iii) To immediate notice of such arrest to (3) Not to be excluded from any public
the parents, guardians or custodians or proceeding, unless the court, after receiving
nearest relatives of the child; and; any clear and convincing evidence,
determines that the testimony by the victim
(iv) To be released on recognizance within would be materially altered if the victim heard
twenty-four (24) hours to the custody of other testimony in that proceeding.
the Department of Social Welfare and
Development or any responsible member (4) To be reasonably heard at any
of the community as determined by the administrative or public proceeding involving
court. diversion, release, plea, suspension of
sentence and determination of disposition
(h) To testify as a witness in his/her own measures, or any parole proceeding;
behalf; and subject to cross-examination only
on matters covered by direct examination. The (5) To confer with the prosecutor in the case;
child shall not be compelled to be a witness
against himself/herself and the child's silence (6) To avail of legal assistance from the Public
shall not in any manner prejudice him/her; Attorney's Office, Integrated Bar of the
Philippines. any other legal aid office or any
(i) To confront and cross-examine the law practitioner.
witnesses against him/her;
(7) To be informed of the availability of
(j) To have compulsory process issued to compensation from the Department of Justice
secure the attendance of witnesses and Board of Claims in accordance with the
production of other evidence in the child's provisions of Rep Act. No.7309.
behalf
(k) To have speedy and impartial trial, with

legal or other appropriate assistance and
________________________________________________________________________________________________
(8) To be entitled to support services from the opportunity to be heard in all proceedings
Department of Social Welfare and affecting such child;
Development and local government units;
(7) To ensure communication at all times
(9) To be entitled to all legal remedies and between the judge and the child;
support as provided for under the Family
Code; (8) To ensure that the child sits with close
family members of the child's choice during
(10) To be informed of the rights and the the court proceedings;
services available to victims of offenses
including the right to apply for a protection (9) To ensure that the child can communicate
order; freely with counsel at all times;
(11) To full and timely restitution as provided (10) To ensure that the child is informed in
in law; age-appropriate language of all stages of the
judicial proceeding affecting such child;
(12) To proceedings that are free from
unreasonable delay; and (11) To ensure that a child placed in a Youth
Detention Home or Youth Rehabilitation
(13) To be treated with fairness and with Center or in any child facility be given
respect for the victim's dignity and privacy. appropriate medical examination in order to
determine and put on record any evidence of
Section 41. Responsibilities of the Court. - For the ill-treatment; to identify any physical or mental
protection of the rights of the child in the conflict condition requiring medical attention; and
with the law, the court shall have the following thereafter make sure that child is provided by
responsibilities: adequate treatment and medical attention;
(1) To monitor the status of a child whose (12) To insure that a child is informed as soon
case is pending in its court placed in a youth as possible of the death, serious illness or
detention center or other institution during the injury of any immediate family member and be
pendency of the child's case; allowed to visit the ill family member or attend
the funeral, when appropriate and advisable;
(2) To receive and investigate complaints
concerning violations of the rights of the child (13) To ensure if a child dies during the
whose case is pending on its court; pendency of the case or within six (6) months
of release, an independent inquiry is
conducted on the circumstances of the death
(3) To require all professionals working for the
and a report thereof, including the child's
welfare of the child, such as barangay
captains, teachers, social workers, medical death certificate, be made available to the
child's mother or father , guardian, custodian
professionals, and law enforcers, to render
or nearest relative;
regular monthly reports to the court.
(14) When appropriate and advisable, to allow

(4) To order access to adequate services for
the child temporarily leave the detention home
rehabilitation, counseling and other forms of
or rehabilitation center by means of an "out-
reintegration for the child;
on-pass" order to attend special family
occasions such as Christmas and New Year
(5) To ensure that the child who is capable of celebrations. The "out-on-pass" order shall
forming his or her own views has the right to contain reasonable restrictions to ensure
express those views freely in all matters safety, security and timely return to detention
affecting the child, and that such views be as may be determined by the court;
accorded due weight in accordance with the
developmental age and maturity of the child;
(15) To allow at all times, and from the
moment of initial contact, any member of the
(6) To ensure that the child, either directly or family or the guardian of the child to visit the
through a representative , is provided the child, unless prejudicial to the latter's best
interest;

________________________________________________________________________________________________
(16) To allow the appointment of a Guardian agreements or admissions shall not be admissible
Ad Litem if available and advisable, to enable against the child.
the child to raise concerns and complaints
without fear or retribution; and Whenever possible and practicable, the court shall
explore all possibilities of settlement of the case,
(17) To undertake all other appropriate except its criminal aspects. Plea bargaining shall
measures to ensure the promotion of the best be resorted to only as a last measure when it shall
interest of the child and the child's eventual serve the best interest of the child and the
reintegration in society. demands of truth and restorative justice.
Section 42. Determination of the Best Interests of Section 45. Trial. - All hearings shall be
the Child. - The following factors may be conducted in a manner conducive to the best
considered in determining the best interests of a interest of the child and in an environment that will
child in conflict with the law: the child's age and allow the child to participate fully and freely in
sex, the child's mental and physical health, the accordance with the Rule on Examination of a
mental and physical health of the parents, their Child Witness.
lifestyle and other social factors; the emotional ties
between the parents and the child, the ability of Section 46. Guiding Principles in Judging the
the parents to provide the child with food, shelter, Child. - Subject to the provisions of the Revised
clothing and medical care; the established living Penal Code, as amended, and other special laws,
pattern for the child concerning school, home, the judgment against a child in conflict with the law
community and religious institution, quality of shall be guided by the following principles:
schooling, the existence of other relatives who
may be in a better position to be with the child and (1) The judgment shall be in proportion to the
the child's relationship with these relatives; the gravity of the offense, and shall consider the
child's background, maturity and level of
circumstances and the best interest of the
understanding, sexual lifestyle and any other
child, the rights of the victim, and the needs of
characteristics and needs of the child that the society in line with the demands of balanced
court may deem relevant. and restorative justice.
Section 43. Arraignment and Plea. - The

(2) Restrictions on the personal liberty of the
provisions of Rules 116 and 117 of the Revised child shall be limited to the minimum. Where
Rules of Criminal Procedure shall apply to the discretion is given by the law to the judge
arraignment of the child in the conflict with the law. whether the penalty to be imposed is fine or
The arraignment shall be scheduled within three imprisonment, the imposition of fine should be
(3) days from the date of receipt of the complaint proffered as the more appropriate penalty.
or information by the court, unless a shorter period
is provided for by law.
(3) No corporal punishment shall be imposed.
In case the child is not assisted by a private
counsel, the court shall immediately appoint its (4) In case of the presence of any exculpatory
Public Attorney as the child's counsel de oficio. evidence or doubt in the prosecution's
evidence, the doubt shall be resolved In favor
of the child.
Arraignment shall be held in chambers and
conducted by the judge by furnishing the child and
counsel a copy of the complaint or information, Section 47. Promulgation of Sentence. - If. After
reading the same in a language or dialect known the trial, the court should find the child in conflict
to and understand by the child, explaining the with the law guilty beyond reasonable doubt of the
nature and consequences of a plea of guilty or not offense charged, it shall impose the proper
guilty and asking the child's plea. penalty, including any civil liability which the child
may have incurred, and promulgate the sentence
in accordance with Section 6, Rule 120 of the
Section 44. Pre-trial. - The provisions of Rule 118
Revised Rules if Criminal Procedure.
of the Revised Rules of Criminal Procedure shall
govern the pre-trial of the child in conflict with the
law. Agreements or admissions made during the Section 48. Automatic Suspension of Sentence
pre-trial conference shall be in writing and signed and Disposition Orders. - If the child is found
by the child, the mother, the father or duly guilty of the offense charged, the court, instead of
appointed guardian, and counsel; otherwise, the executing the judgments of conviction, shall place

________________________________________________________________________________________________
the child in conflict with the law under suspended and shall submit regularly to the court a status and
sentence, without need of application. Suspension progress report on the matter. The court may set a
of sentence can be availed of even if the child is conference for the evaluation of such report in the
already eighteen years (18) of age or more but not presence, if practicable, of the child, the parents or
above twenty-one (21) years old, at the time of the guardian, counsel and other persons whose
pronouncement of guilt, without prejudice to the presence may be deemed necessary.
child's availing of other benefits such as probation,
if qualified, or adjustment of penalty, in interest of Section 51. Discharge of Child Subject of
justice. Disposition Measure. - Upon the recommendation
of the social worker assigned to the child, the
The benefits of the suspended sentence shall not court shall, after due notice to all parties and
apply to a child in conflict with the law who has hearing, dismiss the case against the child who
once enjoyed suspension of sentence, but shall has been issued disposition measures, even
nonetheless apply to one who is convicted of an before reaching eighteen(18) years of age, and
offense punishable by reclusion perpetua or life order a final discharge if it finds that the child has
imprisonment pursuant to the provisions of Rep. been rehabilitated and has shown the capability to
Act No. 9346 prohibiting the imposition of the be a useful member of the community.
death penalty and in lieu thereof, reclusion
perpetua, and after application of the privileged If the court finds that the child (a) is incorrigible; or
mitigating circumstance of minority. (b) has not shown the capability of becoming a
useful member of society; or (c) has willfully failed
If the child in conflict with the law reaches to comply with the conditions of the disposition or
eighteen (18) years of age while under suspended rehabilitation program; (d) or the child's continued
sentence, the court shall determine whether to stay in the training institution is not in the child's
discharge the child in accordance with the best interest, the child shall be brought before the
provisions of Republic Act 9344, or to extend the court for execution of the judgment.
suspended sentence for a maximum period of up
to the time the child reaches twenty-one (21) The final release of the child shall not extinguish
years of age, or to order service of sentence. the civil liability. The parents and other persons
exercising parental authority over the child shall
Section 49. Disposition Conference. -In case of be civilly liable for the injuries and damages
suspended sentence, the court shall set the case caused by the acts or omissions of the child living
for disposition conference within fifteen (15) days in their company and under the parental authority
from the promulgation of sentence with notice to subject to the appropriate defenses provided by
the social worker of the court, the child and the law.
parents or guardian ad litem of the child and the
child's counsel , the victim and counsel. At the Section 52. Probation as an Alternative to
conference, the court shall proceed to determine Imprisonment. - The court may, after it shall have
and issue any or a combination of the following convicted and sentenced a child in conflict with the
disposition measures best suited to the law and upon application at any time, place the
rehabilitation and welfare of the child: child on probation if qualified, in lieu of service of
sentence taking into account the best interest of
(1) Care, guidance, and supervision of orders; the child.
(2) Community service orders;
(3) Drug and alcohol treatment Section 53. Credit in Service of Sentence. - The
(4) Participation in group counseling and child in conflict with the law who has undergone
similar activities; and preventive imprisonment shall be credited in the
(5) Commitment to the Youth Rehabilitation service of the sentence consisting of deprivation of
Center of the Department of Social Welfare liberty, with the full time during which the child has
and Development or other centers for children undergone preventive imprisonment, if the child
in conflict with the law authorized by the agrees voluntarily in writing to abide by the same
Secretary of the Department of Social Welfare or similar disciplinary rules imposed upon
and Development. convicted prisoners, except in any of the following
cases:
Section 50. Compliance with the Disposition
Measures. - The social worker assigned to the (1) When the child is a recidivist or has been
child shall monitor the compliance by the child in convicted twice or more times of any crime; or
conflict with the law with the disposition measures

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(2) When upon being summoned for execution The court shall employ other measures to protect
of sentence, the child failed to surrender confidentiality of proceedings including non-
voluntarily. disclosure of records to the media, the
maintenance of a separate police blotter for cases
A child who does not agree to the same involving children in conflict with the law and the
disciplinary rules imposed upon convicted adoption of a system of coding to conceal material
prisoners shall be credited in the service of the information, which lead to the child's identity. The
sentence with four-fifths of the time during which records of children in conflict with the law shall not
the child has undergone preventive imprisonment. be used in subsequent proceedings or cases
involving the same offender as an adult.
Whenever the child has undergone preventive
imprisonment for a period equal to or more than Family Courts Act (2001)
the possible maximum imprisonment of the a) How should the records of child and family cases in
offense charged to which the child may be the Family Courts or RTC designated by the Supreme
sentenced and the case is not yet terminated, the Court to handle Family Court cases be treated and
child shall be released immediately without dealt with? (3%) b) Under what conditions may the
prejudice to the continuation of any on-going identity of parties in child and family cases be divulged
intervention program, and the trial thereof or the (2%)
proceeding on appeal, if the same is under review. SUGGESTED ANSWER:
In case the maximum penalty to which the child a) The records of child and family cases in the Family
may be sentenced is destierro, the child shall be Code to handle Family Court cases shall be dealt with
released after thirty (30) days of preventive utmost confidentiality. (Sec. 12, Family Courts Act of 1997) b)
imprisonment. The identity of parties in child and family cases shall
not be divulged unless necessary and with authority of
Any form of physical restraint imposed on the child the judge. (Id.)
in conflict with the law, including community
service and commitment to a rehabilitation center,
shall be considered preventive imprisonment. Section 55. Non-liability for Perjury or
Concealment or Misrepresentation. - Any
COMMENT: Sec. 53 appears to be a copy of art. person who has been in conflict with the law as a
29, RPC. RA 9344, sec. 41 does not distinguish child shall not be held guilty of perjury or of
nor qualify the kind of child in conflict with the law concealment or misrepresentation by reason of
for credit of service of sentence. failure to acknowledge the case or recite any fact
related thereto in response to any inquiry.
SEC. 41. Credit in Service of Sentence. - The
child in conflict with the law shall be credited in Section 56. Sealing of Records. - The court,
the services of his/her sentence with the full time motu proprio or on application of a person who
spent in actual commitment and detention under has been adjudge a child in conflict with the law,
this Act. or if still a minor, on motion of the parents or legal
guardian, shall, upon notice to the prosecution and
after hearing, order the sealing of the records of
Section 54. Confidentiality of Proceedings and
the case if it finds that two (2) years have elapsed
Record. - All proceedings and records involving
since the final discharged of the child after
children in conflict with the law from initial contact
suspension of sentence or probation, or from the
until final disposition of the case by the court shall
date of the closure order and the child has no
be considered privileged and confidential. The
pending case of an offense or a crime involving
public may be excluded from the proceedings and
moral turpitude.
pursuant to the provisions of Section 31 of the
Rule on Examination of a Child Witness, the
records shall not be disclosed directly or indirectly Upon entry of the order, the case shall be treated
to anyone by any of the parties or the participants as if it never occurred. All index references shall
in the proceeding for any purpose whatsoever, be deleted and in case of inquiry, the court,
except to determine if the child may have the prosecution, law enforcement officers and all other
sentence suspended under Section 38 of this Rule offices and agencies that dealt with the case shall
or if the child may be granted probation under the reply that no record exist with respect to the child
Probation Law, or to enforce the civil liability concerned. Copies of the order shall be sent to
imposed in the criminal action. these officials and agencies named in the order.
Inspection of the sealed records thereafter may be
permitted only by order of the court upon petition

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of the child who is the subject of the records or of Section 2. Scope. – The reorganization herein
other proper parties. provided shall include the Court of Appeals, the
Court of First Instance, the Circuit Criminal Courts,
This procedure shall be without prejudice to the the Juvenile and Domestic Relations Courts, the
rule on destruction of video or audio tapes under Courts of Agrarian Relations, the City Courts, the
Section 31 of the Rule on the Examination of Child Municipal Courts, and the Municipal Circuit
Witness. Courts.
COMMENT: Notice the extent of protection given CHAPTER I

to the child under this section. It technically COURT OF APPEALS
sanctions telling of a lie just to protect the interest
of the child. Now, suppose you are a law Section 3. Organization. – There is hereby
enforcement officer and a relative asks you about created a Court of Appeals which consists of a
the past of a certain person who is now applying Presiding Justice and fifty Associate Justice who
as a family driver of your relative. Would you tell shall be appointed by the President of the
your relative about the past of the child? Let say Philippines. The Presiding Justice shall be so
he was previously convicted of rape and homicide. designated in his appointment, and the Associate
Would try to protect the interest of the child or your Justice shall have precedence according to the
close relative? dates of their respective appointments, or when
the appointments of two or more of them shall
Section 57. Prohibition of Labeling. - In the bear the same date, according to the order in
conduct of proceedings from initial contact with the which their appointments were issued by the
child in conflict with the law to the final disposition President. Any member who is reappointed to the
of the case, there shall be no branding or labeling Court after rendering service in any other position
of the child as a young criminal, juvenile in the government shall retain the precedence to
delinquent, prostitute, vagrant, or attaching to the which he was entitled under his original
child in any manner any derogatory description or appointment, and his service in the Court shall, for
name. Likewise, no discriminatory statements, all intents and purposes, be considered as
conduct and practices shall be allowed, continuous and uninterrupted. (as amended by
particularly with respect to the child's social or Exec. Order No. 33,, July 28, 1986.)
economic status, physical or mental disability or
ethnic origin. Section 4. Exercise of powers and functions. –
The Court Appeals shall exercise its powers,
Section 58. Contempt Powers. - A person who functions, and duties, through seventeen (17)
directly or indirectly disobeys any order of the divisions, each composed of three (3) members.
court or obstruct or interferes with its proceedings The Court may sit en banc only for the purpose of
or the enforcement of its orders issued under this exercising administrative, ceremonial, or other
Rule shall be liable for contempt of court. non-adjudicatory functions. (as amended by Exec.
Order No. 33,.)
Section 59. Effectivity. - This Rule as revised shall
take effect on December 1, 2009 after its Section 5. Succession to Office of Presiding
publication in two (2) newspapers of general Justice. – In case of a vacancy in the absence of
circulation not later than November 27, 2009. inability to perform the powers, functions, and
duties of his office, the associate Justice who is
first in precedence shall perform his powers,
functions, and duties until such disability is
removed, or another Presiding Justice is
BATAS PAMBANSA Blg. 129 appointed and has qualified.
AN ACT REORGANIZING THE JUDICIARY, Section 6. Who presides over session of a

APPROPRIATING FUNDS THEREFOR, AND division. – If the Presiding Justice is present in any
FOR OTHER PURPOSES session of a division of the Court, he shall preside.
In his absence, the Associate Justice attending
PRELIMINARY CHAPTER such session who has precedence shall preside.
Section 1. Title. – This Act shall be known as Section 7. Qualifications. – The Presiding Justice
"The Judiciary Reorganization Act of 1980." and the Associate Justice shall have the same

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qualifications as those provided in Constitution for appellate jurisdiction of the Supreme Court in
Justice of the Supreme Court. accordance with the Constitution, the Labor
Code of the Philippines under Presidential
Section 8. Grouping of Divisions. – (Expressly Decree No. 442, as amended, the provisions
repealed by Section 4, Exec. Order No. 33, July of this Act, and of subparagraph (1) of the
28, 1986.) third paragraph and subparagraph 4 of the
fourth paragraph of Section 17 of the Judiciary
Act of 1948.
83. A decision or resolution of a division of
the Supreme Court when concurred in by The court of Appeals shall have the power to try
members who actually took part in the cases and conduct hearings, receive evidence
deliberation on the issues in a case and voted and perform any and all acts necessary to resolve
thereon, is a decision or resolution of the factual issues raised in cases falling within its
Supreme Court. original and appellate jurisdiction, including the
a. three (3); power to grant and conduct new trials or Appeals
b. five(S); must be continuous and must be completed within
c. eight (8); three (3) months, unless extended by the Chief
Justice. (as amended by R.A. No. 7902.)
d. ten (10).
SUGGESTED ANSWER:
(a), Cases or matters heard by a division Bar Exam Question 2011
shall be decided or resolved with the (86) A party aggrieved by an interlocutory
concurrence of a majority of the Members order of the Civil Service Commission (CSC)
who actually took part in the deliberations filed a petition for certiorari and prohibition
on the issues in the case and voted with the Court of Appeals. May the Court of
thereon, and in no case without the Appeals take cognizance of the petition?
concurrence of at least three of such (A) Yes, provided it raises both questions of
Members. When the required number is facts and law. (B) No, since the CSC
not obtained, the case shall be decided en Chairman and Commissioners have the rank
banc: Provided, that no doctrine or of Justices of the Court of Appeals. (C) No,
principle of law laid down by the court in a since the CSC is a Constitutional
decision rendered en banc or in division Commission. (D) Yes, since the Court of
may be modified or reversed except by the Appeals has jurisdiction over the petition
court sitting en banc. (Article VIII, Sec. 4, concurrent with the Supreme Court.
1987 Constitution).
Section 10. Place of holding sessions. – The
Section 9. Jurisdiction. – The Court of Appeals Court of Appeals shall have its permanent station
shall Exercise: in the City of Manila. Whenever demanded by
public interest, the Supreme Court, upon its own
initiative or upon recommendation of the Presiding
1. Original jurisdiction to issue writs of
Justice, may authorize a division of the Court to
mandamus, prohibition, certiorari, habeas
hold sessions outside Manila, periodically, or for
corpus, and quo warranto, and auxiliary writs
such periods and at such places as the Supreme
or processes, whether or not in aid of its
Court may determine, for the purpose of hearing
appellate jurisdiction;
and deciding cases.
2. Exclusive original jurisdiction over actions
Section 11. Quorum – A majority of the actual
for annulment of judgements of Regional Trial
members of the Court shall constitute a quorum
Courts; and
for its session en banc. Three members shall
constitute a quorum for the session of a division.
3. Exclusive appellate jurisdiction over all final The unanimous vote of the three members of a
judgments, resolutions, orders or awards of division shall be necessary for the pronouncement
Regional Trial Courts and quasi-judicial of a decision of final resolution, which shall be
agencies, instrumentalities, boards or reached in consultation before the writing of the
commission, including the Securities and opinion by any members of the division. In the
Exchange Commission, the Social Security event that the three members do not reach a
Commission, the Employees Compensation unanimous vote, the Presiding Justice shall
Commission and the Civil Service request the Raffle Committee of the Court for the
Commission, Except those falling within the designation of two additional Justice to sit

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temporarily with them, forming a special division of be his permanent station, and his appointment
five members and the concurrence of a majority of shall state the branch of the court and the seat
such division shall be necessary for the thereof to which he shall be originally assigned.
pronouncement of a decision or final resolution. However, the Supreme Court may assign
The designation of such additional Justice shall be temporarily a Regional Trial Judge to another
made strictly by raffle. region as public interest may require, provided
that such temporary assignment shall not last
A month for reconsideration of its decision or final longer than six (6) months without the consent of
resolution shall be resolved by the Court within the Regional Trial Judge concerned.
ninety (90) days from the time it is submitted for
resolution, and no second motion for A Regional Trial Judge may be assigned by the
reconsideration from the same party shall be Supreme Court to any branch or city or
entertained. (as amended by Exec. Order No. 33, municipality within the same region as public
July 28, 1986.) interest may require, and such assignment shall
not be deemed an assignment to another station
Section 12. Internal Rules. – The court en banc is within the meaning of this section.
authorized to promulgate rules or orders
governing the constitution of the divisions and the Section 18. Authority to define territory
assignment of Appellate Justices thereto, the appurtenant to each branch. – The Supreme Court
distribution of cases, and other matters pertaining shall define the territory over which a branch of the
to the operations of the Court of its divisions. Regional Trial Court shall exercise its authority.
Copies of such rules and orders shall be furnished The territory thus defined shall be deemed to be
by the Supreme Court, which rules and orders the territorial area of the branch concerned for
shall be effective fifteen (15) days after receipt purposes of determining the venue of all suits,
thereof, unless directed otherwise by the Supreme proceedings or actions, whether civil or criminal,
Court. as well as determining the Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal
CHAPTER II Circuit Trial Courts over the said branch may
REGIONAL TRIAL COURTS exercise appellate jurisdiction. The power herein
granted shall be exercised with a view to making
Section 13. Creation of Regional Trial Courts. – the courts readily accessible to the people of the
Section 14. Regional Trial Courts. different parts of the region and making the
attendance of litigants and witnesses as
inexpensive as possible.
Section 15. Qualifications. – No persons shall be
appointed Regional Trial Judge unless he is a
Section 19. Jurisdiction in civil cases. –
natural-born citizen of the Philippines, at least
thirty-five years of age, and for at least ten years, Regional Trial Courts shall exercise exclusive
original jurisdiction:
has been engaged in the practice of law in the
Philippines or has held a public office in the
Philippines requiring admission to the practice of (1) In all civil actions in which the subject of
law as an indispensable requisite. the litigation is incapable of pecuniary
estimation;
Section 16. Time and duration of sessions. –
The time and duration of daily sessions of the (2) In all civil actions which involve the title to,
Regional Trial Courts shall be determined by the or possession of, real property, or any interest
Supreme Court: Provided, however, That all therein, where the assessed value of the
motions, except those requiring immediate action, property involved exceeds Twenty thousand
shall be heard in the afternoon of every Friday, pesos (P20,000.00) or for civil actions in
unless it falls on a holiday, in which case, the Metro Manila, where such the value exceeds
hearing shall be held on the afternoon of the next Fifty thousand pesos (50,000.00) except
succeeding business day: Provided, further, That actions for forcible entry into and unlawful
the Supreme Court may, for good reasons, fix a detainer of lands or buildings, original
different motion day in specified areas jurisdiction over which is conferred upon
Metropolitan Trial Courts, Municipal Trial
Section 17. Appointment and assignment of Courts, and Municipal Circuit Trial Courts;
Regional Trial Judges. – Every Regional Trial
Judge shall be appointed to a region which shall (3) In all actions in admiralty and maritime
jurisdiction where he demand or claim

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exceeds One hundred thousand pesos involved is not merely a matter of venue,
(P100,000.00) or , in Metro Manila, where which is waivable, but of a matter of
such demand or claim exceeds Two hundred jurisdiction. However, the action may
thousand pesos (200,000.00); prosper if jurisdiction is not in issue,
because venue can be waived.
(4) In all matters of probate, both testate and ALTERNATIVE ANSWER: Yes, if the
intestate, where the gross value of the estate defendant would not file a motion to
exceeds One hundred thousand pesos dismiss on ground of improper venue and
(P100,000.00) or, in probate matters in Metro the parties proceeded to trial. (b) Will your
Manila, where such gross value exceeds Two answer be the same if the action was for
hundred thousand pesos (200,000.00); foreclosure of the mortgage over the two
parcels of land? Why or why not?
(5) In all actions involving the contract of SUGGESTED ANSWER: NO, the answer
marriage and marital relations; would not be the same. The foreclosure
action should be brought in the proper
(6) In all cases not within the exclusive court of the province where the land or
jurisdiction of any court, tribunal, person or any part thereof is situated, either in
body exercising jurisdiction or any court, Pampanga or in Bulacan. Only one
tribunal, person or body exercising judicial or foreclosure action need be filed unless
quasi-judicial functions; each parcel of land is covered by distinct
mortgage contract.
In foreclosure suit, the cause of action is
(7) In all civil actions and special proceedings
falling within the exclusive original jurisdiction for the violation of the terms and
of a Juvenile and Domestic Relations Court conditions of the mortgage contract;
and of the Courts of Agrarian Relations as hence, one foreclosure suit per mortgage
now provided by law; and contract violated is necessary.
[Note: The question is the same as 2008 Remedial Law
Bar question No.III. See Civ.Pro Venue; Real Actions]
(8) In all other cases in which the demand,
exclusive of interest, damages of whatever
kind, attorney's fees, litigation expenses, and Jurisdiction; RTC (2002)
costs or the value of the property in
P sued A in the RTC-Manila to recover the following
controversy exceeds One hundred thousand sums: (1) P200,000.00 on an overdue promissory note,
pesos (100,000.00) or, in such other (2) P80,000.00 on the purchase price of a computer,
abovementioned items exceeds Two hundred (3)
thousand pesos (200,000.00). (as amended P150,000.00 for damages to his car and
by R.A. No. 7691*) (4) P100,000.00 for attorney’s fees and litigation
expenses. Can A move to dismiss the case on the
ground that the court has no jurisdiction over the
Jurisdiction; RTC (2009) No.II. Angelina
sued Armando before the Regional Trial
subject matter? Explain. (2%)
SUGGESTED ANSWER:
Court (RTC) of Manila to recover the No, because the RTC-Manila has jurisdiction over the
ownership and possession of two parcels of subject matter. P may sue A in one complaint asserting
land; one situated in Pampanga, and the as many causes of action as he may have and since all
other in Bulacan. (a) May the action prosper? the claims are principally for recovery of money, the
Explain. SUGGESTED ANSWER: aggregate amount claimed shall be the test of
No, the action may not prosper, because jurisdiction. [Rule 2, sec. 5(d)]. The aggregate amount
under R.A. No. 7691, exclusive original claimed is P450,000.00, exclusive of the amount of
jurisdiction in civil actions which involve P100,000.00 for attorney’s fees and expenses of
title to, or possession of real property or litigation. Hence, the RTC-Manila has jurisdiction.
any interest therein is determined on the
basis of the assessed value of the land Jurisdiction; Incapable of Pecuniary Estimation (2000)
involved, whether it should be P20,000 in A brings an action in the MTC of Manila against B for
the rest of the Philippines, outside of the the annulment of an extrajudicial foreclosure sale of
Manila with the courts of the first level or real property with an assessed value of P50,000.00
with the Regional Trial Court. The located in Laguna. The complaint alleged prematurity
assessed value of the parcel of land in of the sale for the reason that the mortgage was not
Pampanga is different from the assessed yet due. B timely moved to dismiss the case on the
value of the land in Bulacan. What is ground that the action should have been brought in

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the RTC of Laguna. Decide with reason. (3%) Section 20. Jurisdiction in criminal cases. –
SUGGESTED ANSWER: Regional Trial Courts shall exercise exclusive
The motion should be granted. The MTC of Manila original jurisdiction in all criminal cases not within
has the exclusive jurisdiction of any court, tribunal or
no jurisdiction because the action for the annulment of body, except those now falling under the exclusive
the extrajudicial foreclosure is not capable of pecuniary and concurrent jurisdiction of the Sandiganbayan
estimation and is therefore under the jurisdiction of which shall hereafter be exclusively taken
the RTCs. (Russell v. Vestil, 304 SCRA 738,[1999]). cognizance of by the latter.
However, the action for annulment is a personal action
and the venue depends on the residence of either A or RA 3019; Mandatory Suspension (2001)
B. Hence, it should be brought in the RTC of the decree or executive order can mandate that the
placewhere either of the parties resides. determination of just compensation by the executive
or legislative departments can prevail over the court's
ALTERNATIVE ANSWER: findings (Export Processing Zone Authority v. Dulay,
If the action affects title to or possession of real G.R. No. L-59603, April 29,1987; Sees. 5 to 8 Rule 67,1997
property then it is a real action and jurisdiction is Rules of Civil Procedure). In addition, compensation
determined by the assessed value of the property. It is must be paid in money (Esteban v. Onorio, A.M. No. 00-
within the jurisdiction therefore of the Metropolitan 4-166-RTC, June 29, 2001).
Trial Court. .
SUGGESTED ANSWER: Governor Pedro Mario of Tarlac was charged with
(b) The Court could declare B in default because B did indirect bribery before the Sandiganbayan for
not accepting a car in exchange of the award of a series of
obtain a writ of preliminary injunction or a temporary
contracts for medical supplies. The Sandiganbayan,
restraining order from the RTC prohibiting the judge
from
after going over the information, found the same to be
proceeding in the case during the pendency of the valid and ordered the suspension of Mario. The latter
petition contested the suspension claiming that under the law
for certiorari. (Sec. 13 of R.A. 3019) his suspension is not automatic
(Sec. 7 of Rule 65; Diaz v. Diaz, 331 SCRA 302 [2002]. upon the filing of the information and his suspension
ALTERNATIVE ANSWER: under Sec. 13, R.A. 3019 is in conflict with Sec. 5 of
The Court should not declare B in default inasmuch as the Decentralization Act of 1967 (R.A. 5185).
the jurisdiction of MTC was put in issue in the Petition The Sandilganbayan overruled Mario’s contention
For Certiorari filed with the RTC. The MTC should stating that Mario’s suspension under the
defer further proceedings pending the result of such circumstances is mandatory. Is the court’s ruling
petition. (Eternal Gardens Memorial Park correct? Why?
Corporation v. Court of Appeals, 164 SCRA 421 [1988]). SUGGESTED ANSWER:
Yes. Mario’s suspension is mandatory, although not
Jurisdiction; MTC (2002) automatic, (Sec. 13 of R.A. No. 3019 in relation to Sec. 5 of the
P sued A and B in one complaint in the RTC-Manila, Decentralization Act of 1967 (R.A. No. 5185). It is mandatory
the cause of action against A being on an overdue after the determination of the validity of the
promissory note for P300,000.00 and that against B information in a pre-suspension hearing. [Segovia v.
being on an alleged balance of P300,000.00 on the Sandiganbayan, 288 SCRA 328 (1988)]. The purpose of
purchase price of goods sold on credit. Does the suspension is to prevent the accused public officer
RTCManila have jurisdiction over the case? Explain. from frustrating or hampering his prosecution by
(3%) intimidating or influencing witnesses or tampering
SUGGESTED ANSWER: with evidence or from committing further acts of
No, the RTC-Manila has no jurisdiction over the case. malfeasance while in office.
A and B could not be joined as defendants in one
complaint because the right to relief against both R.A. 3019; Pre-Suspension Hearing (2012)
defendants do not arise out of the same transaction or No.IX.A. X, an undersecretary of DENR, was
series of transactions and there is no common charged before the Sandiganbayan for
question malversation of public funds allegedly
of law or fact common to both. (Rule 3, sec. 6). Hence, committed when he was still the Mayor of a
separate complaints will have to be files and they town in Rizal. After arraignment, the
would prosecution moved that X be preventively
fall under the jurisdiction of the Metropolitan Trial suspended. X opposed the motion arguing
Court. [Flores v. Mallare-Philipps, that he was now occupying a position
144 SCRA 377 (1986)].
different from that which the Information
charged him and therefore, there is no more

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possibility that he can intimidate witnesses No. L-32950, July 30, 1971). Since a pre-
and hamper the prosecution. Decide. suspension hearing is basically a due
Suppose X files a Motion to Quash process requirement, when an accused
challenging the validity of the Information public official is given an adequate
and the Sandiganbayan denies the same, will opportunity to be heard on his possible
there still be a need to conduct a pre- defenses against the mandatory
suspension hearing? Explain. (5%) suspension under RA No. 3019, then an
SUGGESTED ANSWER: accused would have no reason to complain
There is no necessity for the court to that no actual hearing was conducted
conduct pre-suspension hearing. Under (Miguel vs. The Honorable Sandiganbayan,
Section 13 of RA No. 3019, an incumbent G.R. No. 172035, July 4, 2012). In the
public officer against whom any criminal facts given, the DENR Undersecretary was
prosecution under a valid information for already given opportunity to question the
graft-related crime such as malversation is validity of the Information for
pending in court, shall be suspended from malversation by filing a motion to quash,
office. The word “office”, from which the and yet, the Sandiganbayan sustained its
public officer charged shall be validity. There is no necessity for the
preventively suspended, could apply to court to conduct pre-suspension hearing
any office, which he might currently be to determine for the second time the
holding and not necessarily the particular validity of the information for purpose of
office under which he was charged. The preventively suspending the accused.
preventive suspension of the following
public officers was sustained: ALTERNATIVE ANSWER:
The argument that X should not be
(1) a mayor, who was charged with acts suspended as he now holds an office
committed as a government auditor of the different from that charged in the
Commission on Audit (Bayot vs. information is unavailing. Under Section
Sandiganbayan, G.R. No. L-61776 to L- 13(e) of RA 3019, a public officer may be
61861, March 23, 1984); charged before the Sandiganbayan for
(2) a public officer, who was already “causing undue injury to any party,
occupying the office of governor and not including the Government, or giving any
the position of municipal mayor that he private party any unwarranted benefits,
held previously when charged with having advantage or preference in the discharge
violated Anti-Graft Law (Deloso vs. of his official, administrative or judicial
Sandiganbayan, G.R. No. 86899, May 15, functions through manifest partiality,
1989); evident bad faith or gross inexcusable
(3) a Vice-Governor, whose suspension is negligence.” The Supreme Court has held
predicated on his acts supposedly that Section 13 of RA 3019 is so clear and
committed while still a member of the explicit that there is hardly room for any
Sangguniang Bayan (Libanan vs. extended court rationalization of the law.
Sandiganbayan, G.R. No. 112386, June 14, Preventive suspension is mandatory
1994). regardless of the respondent‟s change in
position.
Thus, the DENR undersecretary can be
preventively suspended even though he Bar Exam Question 2011
was a mayor, when he allegedly (79) The information charges PNP Chief Luis
committed malversation. Settled is the Santos, (Salary Grade 28), with "taking
rule that where the accused files a motion advantage of his public position as PNP Head
to quash the information or challenges the by feloniously shooting JOSE ONA, inflicting
validity thereof, a show cause order of the on the latter mortal wounds which caused
trial court would no longer be necessary. his death." Based solely on this allegation,
What is indispensable is that the trial which court has jurisdiction over the case?
court duly hear the parties at a hearing (A) Sandiganbayan only (B) Sandiganbayan
held for determining the validity of the or Regional Trial Court (C) Sandiganbayan or
information, and thereafter hand down its Court Martial (D) Regional Trial Court only
ruling, issuing the corresponding order of
suspension should it uphold the validity of
the information (Luciano vs. Mariano, G.R.

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Section 21. Original jurisdiction in other cases. – CHAPTER III

Regional Trial Courts shall exercise original METROPOLITAN TRIAL COURTS, MUNICIPAL
jurisdiction: TRIAL COURTS, AND MUNICIPAL CIRCUIT
TRIAL COURTS
(1) In the issuance of writs of certiorari,
prohibition, mandamus, quo warranto, habeas Section 25. Establishment of Metropolitan Trial
corpus and injunction which may be enforced Courts, Municipal Trial Courts and Municipal
in any part of their respective regions; and Circuit Trial Courts. – There shall be created a
Metropolitan Trial Court in each metropolitan area
(2) In actions affecting ambassadors and established by law, a Municipal Trial Court in each
other public ministers and consuls. of the other cities or municipalities, and a
Municipal Circuit Trial Court in each circuit
Section 22. Appellate jurisdiction. – Regional comprising such cities and/or municipalities as are
grouped together pursuant to law.
Trial Courts shall exercise appellate jurisdiction
over all cases decided by Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Section 26. Qualifications. – No person shall be
Circuit Trial Courts in their respective territorial appointed judge of a Metropolitan Trial Court,
jurisdictions. Such cases shall be decided on the Municipal Trial Court, or Municipal Circuit Trial
basis of the entire record of the proceedings had Court unless he is a natural-born citizen of the
in the court of origin and such memoranda and/or Philippines, at least 30 years of age, and, for at
briefs as may be submitted by the parties or least five years, has been engaged in the practice
required by the Regional Trial Courts. The of law in the Philippines, or has held a public office
decision of the Regional Trial Courts in such in the Philippines requiring admission to the
cases shall be appealable by petition for review to practice of law as an indispensable requisite.
the
Section 27. Metropolitan Trial Courts of the
Court of Appeals which may give it due course National Capital Region. –
only when the petition shows prima facie that the
lower court has committed an error of fact or law Section 28. Other Metropolitan Trial Courts. – The
that will warrant a reversal or modification of the Supreme Court shall constitute Metropolitan Trial
decision or judgment sought to be reviewed. Courts in such other metropolitan areas as may be
established by law whose territorial jurisdiction
NOTE: RTC cannot receive additional evidence in shall be co-extensive with the cities and
the exercise of its appellate jurisdiction. The rule is municipalities comprising the metropolitan area.
different in the CA
Every Metropolitan Trial Judge shall be appointed
Section 23. Special jurisdiction to try special to a metropolitan area which shall be his
cases. – The Supreme Court may designate permanent station and his appointment shall state
certain branches of the Regional Trial Courts to branch of the court and the seat thereof to which
handle exclusively criminal cases, juvenile and he shall be originally assigned. A Metropolitan
domestic relations cases, agrarian cases, urban Trial Judge may be assigned by the Supreme
land reform cases which do not fall under the Court to any branch within said metropolitan area
jurisdiction of quasi-judicial bodies and agencies, as the interest of justice may require, and such
and/or such other special cases as the Supreme assignment shall not be deemed an assignment to
Court may determine in the interest of a speedy another station within the meaning of this section.
and efficient administration of justice.
Section 29. Municipal Trial Courts in cities. –
Section 24. Special Rules of Procedure. –
Whenever a Regional Trial Court takes Section 31. Municipal Circuit Trial Court. –
cognizance of juvenile and domestic relation There shall be a Municipal Circuit Trial Court in
cases and/or agrarian cases, the special rules of each area defined as a municipal circuit,
procedure applicable under present laws to such comprising one or more cities and/or one or more
cases shall continue to be applied, unless municipalities. The municipalities comprising
subsequently amended by law or by rules of court municipal circuits as organized under
promulgated by the Supreme Court. Administrative Order No. 33, issued on June 13,
1978 by the Supreme Court pursuant to
Presidential Decree No. 537, are hereby

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constituted as municipal circuits for purposes of intestate, including the grant of provisional
the establishment of the Municipal Circuit Trial remedies in proper cases, where the value of
Courts, and the appointment thereto of Municipal the personal property, estate, or amount of the
Circuit Trial Judges: Provided, however, That the demand does not exceed One hundred
Supreme Court may, as the interests of justice thousand pesos (P100,000.00) or, in Metro
may require, further reorganize the said courts Manila where such personal property, estate,
taking into account workload, geographical or amount of the demand does not exceed
location, and such other factors as will contribute Two hundred thousand pesos (P200,000.00)
to a rational allocation thereof, pursuant to the exclusive of interest damages of whatever
provisions of Presidential Decree No. 537 which kind, attorney's fees, litigation expenses, and
shall be applicable insofar as they are not costs, the amount of which must be
inconsistent with this Act. specifically alleged: Provided, That where
there are several claims or causes of action
Every Municipal Circuit Trial Judge shall be between the same or different parties,
appointed to a municipal circuit which shall be his embodied in the same complaint, the amount
official station. 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 Supreme Court shall determine the city or
the same or different transactions;
municipality where the Municipal Circuit Trial
Court shall hold sessions.
Jurisdiction; MTC (2002)
Section 32. Jurisdiction of Metropolitan Trial P sued A and B in one complaint in the RTC-Manila,
Courts, Municipal Trial Courts and Municipal
the cause of action against A being on an overdue
Circuit Trial Courts in criminal cases. – Except promissory note for P300,000.00 and that against B
in cases falling within the exclusive original being on an alleged balance of P300,000.00 on the
jurisdiction of Regional Trial Courts and of the purchase price of goods sold on credit. Does the
Sandiganbayan, the Metropolitan Trial Courts, RTCManila have jurisdiction over the case? Explain.
Municipal Trial Courts, and Municipal Circuit Trial (3%)
SUGGESTED ANSWER:
Courts shall exercise:
No, the RTC-Manila has no jurisdiction over the case.
A and B could not be joined as defendants in one
(1) Exclusive original jurisdiction over all complaint because the right to relief against both
violations of city or municipal ordinances defendants do not arise out of the same transaction or
committed within their respective territorial series of transactions and there is no common
jurisdiction; and
question of law or fact common to both. (Rule 3, sec. 6).
Hence, separate complaints will have to be files and
(2) Exclusive original jurisdiction over all they would fall under the jurisdiction of the
offenses punishable with imprisonment not Metropolitan Trial Court. [Flores v. Mallare-Philipps, 144
exceeding six (6) years irrespective of the SCRA 377 (1986)].
amount of fine, and regardless of other
imposable accessory or other penalties, Jurisdiction; RTC; MeTC (2010) No.II. On
including the civil liability arising from such August 13, 2008, A, as shipper and
offenses or predicated thereon, irrespective of consignee, loaded on the M/V Atlantis in
kind, nature, value, or amount thereof: Legaspi City 100,000 pieces of century eggs.
Provided, however, That in offenses involving The shipment arrived in Manila totally
damage to property through criminal damaged on August 14, 2008. A filed before
negligence they shall have exclusive original the Metropolitan Trial Court (MeTC) of Manila
jurisdiction thereof. (as amended by R.A, No. a complaint against B Super Lines, Inc. (B
7691) Lines), owner of the M/V Atlantis, for
recovery of damages amounting to P167,899.
Section 33. Jurisdiction of Metropolitan Trial He attached to the complaint the Bill of
Courts, Municipal Trial Courts and Municipal Lading.
Circuit Trial Courts in civil cases. – Metropolitan (a) B Lines filed a Motion to Dismiss upon the
Trial Courts, Municipal Trial Courts, and Municipal ground that the Regional Trial Court has
Circuit Trial Courts shall exercise: exclusive original jurisdiction over "all actions
in admiralty and maritime" claims. In his
(1) Exclusive original jurisdiction over civil Reply, A contended that while the action is
actions and probate proceedings, testate and indeed "admiralty and maritime" in nature, it

________________________________________________________________________________________________
is the amount of the claim, not the nature of therein does not exceed Twenty thousand
the action, that governs jurisdiction. Pass on pesos (P20,000.00) or, in civil actions in Metro
the Motion to Dismiss. (3%) SUGGESTED Manila, where such assessed value does not
ANSWER: The Motion to Dismiss is exceed Fifty thousand pesos (P50,000.00)
without merit and therefore should be exclusive of interest, damages of whatever
denied. Courts of the first level have kind, attorney's fees, litigation expenses and
jurisdiction over civil actions where the costs: Provided, That value of such property
demand is for sum of money not shall be determined by the assessed value of
exceeding P300,000.00 or in Metro the adjacent lots. (as amended by R.A. No.
Manila, P400,000.00, exclusive of interest, 7691)
damages, attorney‟s fees, litigation
expenses and costs: this jurisdiction Section 34. Delegated jurisdiction in cadastral
includes admiralty and marine cases. And and land registration cases. – Metropolitan Trial
where the main cause of action is the Courts, Municipal Trial Courts, and Municipal
claim for damages, the amount thereof Circuit Trial Courts may be assigned by the
shall be considered in determining the Supreme Court to hear and determine cadastral or
jurisdiction of the court (Adm. Circular land registration cases covering lots where there
No. 09-94, June 14, 1994). (b) The MeTC is no controversy or opposition, or contested lots
denied the Motion in question A. B Lines the where the value of which does not exceed
thus filed an Answer raising the defense that One hundred thousand pesos (P100,000.00),
under the Bill of Lading it issued to A, its such value to be ascertained by the affidavit of the
liability was limited to P10,000. At the pre- claimant or by agreement of the respective
trial conference, B Lines defined as one of the claimants if there are more than one, or from the
issues whether the stipulation limiting its corresponding tax declaration of the real property.
liability to P10,000 binds A. A countered that Their decisions in these cases shall be appealable
this was no longer in issue as B Lines had in the same manner as decisions of the Regional
failed to deny under oath the Bill of Lading. Trial Courts. (as amended by R.A. No. 7691)
Which of the parties is correct? Explain. (3%)
SUGGESTED ANSWER: The contention of NOTE: Thus, decision of MTCs may be directly
B is correct: A‟s contention is wrong. It appealed to the SC via Rule 45 (Review Lecture).
was A who pleaded the Bill of Lading as an
actionable document where the Section 35. Special jurisdiction in certain
stipulation limits B‟s liability to A to cases. – In the absence of all the Regional Trial
P10,000.00 only. The issue raised by B Judges in a province or city, any Metropolitan Trial
does not go against or impugn the Judge, Municipal Trial Judge, Municipal Circuit
genuineness and due execution of the Bill Trial Judge may hear and decide petitions for a
of Lading as an actionable document writ of habeas corpus or applications for bail in
pleaded by A, but invokes the binding criminal cases in the province or city where the
effect of said stipulation. The oath is not absent Regional Trial Judges sit.
required of B, because the issue raised by
the latter does not impugn the Section 36. Summary procedures in special
genuineness and due execution of the Bill cases. – In Metropolitan Trial Courts and
of Lading. Municipal Trial Courts with at least two branches,
the Supreme Court may designate one or more
(2) Exclusive original jurisdiction over cases of branches thereof to try exclusively forcible entry
forcible entry and unlawful detainer: Provided, and unlawful detainer cases, those involving
That when, in such cases, the defendant violations of traffic laws, rules and regulations,
raises the question of ownership in his violations of the rental law, and such other cases
pleadings and the question of possession requiring summary disposition as the Supreme
cannot be resolved without deciding the issue Court may determine. The Supreme Court shall
of ownership, the issue of ownership shall be adopt special rules or procedures applicable to
resolved only to determine the issue of such cases in order to achieve an expeditious and
possession. inexpensive determination thereof without regard
to technical rules. Such simplified procedures may
provide that affidavits and counter-affidavits may
(3) Exclusive original jurisdiction in all civil
be admitted in lieu of oral testimony and that the
actions which involve title to, or possession of,
periods for filing pleadings shall be non-
real property, or any interest therein where the
extendible.
assessed value of the property or interest

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Section 37. Preliminary investigation. – Section 43. Staffing pattern. –

Section 38. Judgments and processes. – Section 44. Transitory provisions. –
(1) All judgments determining the merits of Section 45. Shari'a Courts. – Shari'a Courts to be
cases shall be in writing, stating clearly the constituted as provided for in Presidential Decree
facts and the law on which they were based, No. 1083, otherwise known as the "Code of
signed by the Judge and filed with the Clerk of Muslim Personal Laws of the Philippines," shall be
Court. Such judgment shall be appealable to included in the funding appropriations so provided
the Regional Trial Courts in accordance with in this Act.
the procedure now prescribed by law for
appeals to the Court of First Instance, by the Section 46. Gratuity of judges and personnel
provisions of this Act, and by such rules as the separated from office. –
Supreme Court may hereafter prescribe. Section 47. Repealing clause. –
Section 48. Date of Effectivity. – This Act shall
(2) All processes issued by the Metropolitan take effect immediately.
Trial Courts, Municipal Trial Courts and Approved: August 14, 1981
Municipal Circuit Trial Courts, in cases falling
within their jurisdiction, may be served
anywhere in the Philippines without the
necessity of certification by the Judge of the
Regional Trial Court.
CHAPTER IV
GENERAL PROVISIONS
Section 39. Appeals. – The period for appeal

from final orders, resolutions, awards, judgments,
or decisions of any court in all cases shall be
fifteen (15) days counted from the notice of the
final order, resolution, award, judgment, or
decision appealed from: Provided however, That
in habeas corpus cases, the period for appeal
shall be forty-eight (48) hours from the notice of
the judgment appealed from.
No record on appeal shall be required to take an

appeal. In lieu thereof, the entire record shall be
transmitted with all the pages prominently
numbered consecutively, together with an index of
the contents thereof.
This section shall not apply in appeals in special

proceedings and in other cases wherein multiple
appeals are allowed under applicable provisions of
the Rules of Court.
Section 40. Form of decision in appealed cases. –

Every decision of final resolution of a court in
appealed cases shall clearly and distinctly state Republic of the Philippines
the findings of fact and the conclusions of law on SUPREME COURT
which it is based, which may be contained in the Manila
decision or final resolution itself, or adopted by
reference from those set forth in the decision, A.M. No. 10-4-20-SC
order, or resolution appealed from.
THE INTERNAL RULES OF THE SUPREME
Section 41. Salaries. COURT
Section 42. Longevity pay. –
RESOLUTION
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the Court en banc the amendment, revision, or

Acting on the recommendation of the Sub- deletion of any of these Rules to reflect and
committee on The Internal Rules of the Supreme achieve the objectives of justice, fairness and
Court submitting for this Court’s consideration and efficiency;
approval the purposed Internal Rules of the
Supreme Court, the Court Resolved to APPROVE (d) These Rules shall be posted on the Supreme
the same. Court website.
These Rules shall take effect fifteen (15) days Section 4. Amendment or suspension of the
after publication in a newspaper of general Rules. In the interest of sound and efficient
circulation in the Philippines. administration of justice, and upon a majority vote
of the Court en banc, any provision of these Rules
May 4, 2010 may be amended, revised, deleted, suspended or
dispensed with in particular cases, upon such
terms as the Court en banc may decide to be just,
THE INTERNAL RULES OF THE SUPREME fair and proper.
COURT
RULE 2
PART I THE OPERATING STRUCTURES
RULE 1 Section 1. Exercise of judicial and administrative

THE INTERNAL RULES functions. The Court exercises its judicial
functions and its powers of administrative
Section 1. The Internal Rules. These Rules supervision over all courts and their personnel
shall govern the internal operations of the through the Court en banc or its Divisions. It
Supreme Court and guide its exercise of judicial administers its activities under the leadership of
and administrative functions. They shall be cited the Chief Justice, who may, for this purpose,
as The Internal Rules of the Supreme Court. constitute supervisory or special committees
headed by individual Members of the Court or
Section 2. Interpretation. The Internal Rules of working committees of court officials and
the Supreme Court shall be interpreted in personnel.
accordance with the mandates of the Supreme
Court under the Constitution, applicable laws, and Section 2. Quorum of the Court en banc. Eight
the Rules of Court to ensure a just, fair and Members shall constitute a quorum of the Court.
efficient administration of justice. Nothing in these In the absence of the Chief Justice, the most
Rules shall be interpreted to limit the exercise of senior Associate Justice present shall chair the
the power and authority of the Court as provided sessions of the Court.
in the Constitution, the applicable laws, and the
Rules of Court. Section 3. Court en banc matters and cases.
The Court en banc shall act on the following
Section 3. Committee on Internal Rules. matters and cases:
(a) A permanent Committee on Internal Rules of (a) cases in which the constitutionality or
the Supreme Court shall ensure, through validity of any treaty, international or executive
appropriate recommendation to the Court en banc, agreement, law, executive order, presidential
that these Rules are kept current and responsive decree, proclamation, order, instruction,
to the needs of the Court and the public it serves; ordinance, or regulation is in question;
(b) The Committee, composed mainly to Members (b) criminal cases in which the appealed
of the Court, shall include the Clerk of the decision imposes the death penalty or
Supreme Court and the Chief Attorney as reclusion perpetua;
permanent members, and may include other court
officials as may needed; (c) cases raising novel questions of law;
(c) The Committee shall collate relevant materials (d) cases affecting ambassadors, other public
from laws, the Rules of Court, and Resolutions of ministers, and consuls;
the Court at the end of every year and submit to
the Court en banc an update of the Rules the (e) cases involving decisions, resolutions, and
following January. It shall likewise recommend to orders of the Civil Service Commission, the

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Commission on Elections, and the may be replaced at the request of the regular
Commission on Audit; Members by a Member designated from another
Division in order to constitute a quorum.
(f) cases where the penalty recommended or
imposed is the dismissal of a judge, the Section 6. Resolutions of motions for
disbarment of a lawyer, the suspension of any reconsideration or clarification of an unsigned
of them for a period of more than one year, or resolution or minute resolution. Motions for
a fine exceeding forty thousand pesos; reconsideration or clarification of an unsigned
resolution or a minute resolution shall be acted
(g) cases covered by the preceding paragraph upon by the regular Division to which the ponente
and involving the reinstatement in the judiciary belongs at the time of the filling of the motion. The
of a dismissed judge, the reinstatement of a ponente is the Member to whom the Court, after
lawyer in the roll of attorneys, or the lifting of a its deliberation on the merits of a case, assigns
judge’s suspension or a lawyer’s suspension the writing of its decision or resolution in the case.
from the practice of law;
Section 7. Resolutions of motions for
(h) cases involving the discipline of a Member reconsideration or clarification of decisions or
of the Court, or a Presiding Justice, or any signed resolutions; creation of a Special
Associate Justice of the collegial appellate Division. Motions for reconsideration or
court; clarification of a decision or of a signed resolution
shall be acted upon by the ponente and the other
(i) cases where a doctrine or principle laid Members of the Division who participated in the
down by the Court en banc or by a Division rendition of the decision or signed resolution.
my be modified or reversed;
If the ponente or a Member of the Division who
(j) cases involving conflicting decisions of two participated in the rendition of the decision or
or more divisions; signed resolution has retired, is no longer a
Member of the Court, is disqualified, or has
(k) cases where three votes in a Division inhibited himself or herself from acting on the
cannot be obtained; motion for reconsideration, he or she shall be
replaced through raffle by a new ponente or
(l) Division cases where the subject matter Member. For this purpose, the Division that
has a huge financial impact on businesses or rendered the decision or signed resolution,
affects the welfare of a community; including the replacement Member, shall be
constituted as a Special Division and shall
(m) Subject to Section 11 (b) of this rule, other thereafter act on the motion for reconsideration
division cases that, in the opinion of at least and all other pleadings, motions, and incidents.
three Members of the Division who are voting
and present, are appropriate for transfer to the Section 8. Composition and reorganization of a
Court en banc; division. The composition of each Division shall
be based on seniority as follows:
(n) Cases that the Court en banc deems of
sufficient importance to merit its attention; and (a) First Division Chief Justice, the fourth in
seniority as working chairperson, the seventh in
(o) all matters involving policy decisions in the seniority, the tenth in seniority, and the thirteenth
administrative supervision of all courts and in seniority.
their personnel.
(b) Second Division the second in seniority as
Section 4. Division cases. All cases and matters Chairperson, the fifth in seniority, the eighth in
under the jurisdiction of the Court not otherwise seniority; the eleventh in seniority, and the
provided for by law, by the Rules of Court or by fourteenth in seniority.
these Internal Rules to be cognizable by the Court
en banc shall be cognizable by the Divisions. (c) Third Division the third in seniority as
Chairperson, the sixth in seniority, the ninth in
Section 5. Composition and quorum of a seniority, the twelfth in seniority, and the fifteenth
Division. Unless the Court en banc decrees in seniority.
otherwise, a quorum shall consist of a majority of
all Members of the Division, and an absent or a The Chief Justice may, however, consider factors
non-participating regular Member of a Division other than seniority in Division assignments. The

________________________________________________________________________________________________
appointment of a new Member of the Court shall (i) Committee on the Revision of the Rules
necessitate the reorganization of Divisions at the of Court;
call of the Chief Justice. (ii) Committee on Computerization and
Library;
Section 9. Effect of reorganization of Divisions on (iii) Committee on Security;
assigned cases. In the reorganization of the (iv) Bids and Awards Committees;
membership of Divisions, cases already assigned (v) Committee on Administrative
to a Member-in-Charged shall be transferred to Concerns;
the Division to which the Member-in-Charged (vi) Legislative-Executive Relations
moves, subject to the rule on the resolution of Committee;
motions for reconsideration under Section 7 of this (vii) Committee on Publication of the Court
Rule. The Member-in-Charged is the Member Systems Journal;
given the responsibility of overseeing the progress (viii) Committee on Legal Education and
and disposition of a case assigned by raffle. Bar Matters;
(ix) Committee on Retirement Program;
Section 10. Formula for assigning cases to a new (x) Committee on Public Information;
Member of the Court. The following rules shall be (xi) Judicial Reform Support Project
observed in assigning cases to a newly appointed Management Committee;
Member of the Court: (xii) Committee on Publication of the
Advanced Syllabi;
(a) the average caseload of each Member shall be (xiii) Committee on Foreign Travel;
determined by dividing the total number of (xiv) Committee on Justice on Wheels;
pending cases of all fifteen Members by fifteen; and
(xv) Committee on Gender
(b) the newly appointed Member of the Court shall Responsiveness in the Judiciary.
inherit the caseload of the Member being
replaced, and the inherited caseload, if less than The Court may create other Committees as
the average caseload as determined in (a), shall may be necessary, with the Chief Justice
be equalized with the average caseload by taking designating the Committee Chairperson and
the difference from the caseload of the incumbent Members.
Members divided among them in equal number;
(b) Subcommittees may be created by the
(c) cases submitted for decision within the last Chief Justice upon the recommendation of the
twelve months preceding the appointment of the Committee Chairperson.
new Member of the Court may be unloaded to him
or her. (c) Ad Hoc committees shall be created as the
need arises.
Section 11. Actions on cases referred to the Court
en banc. The referral of a Division case to the Section 13. Ethics Committee. In addition to the
Court en banc shall be subject to the following above, a permanent Committee on Ethics and
rules: Ethical Standards shall be established and chaired
by the Chief Justice, with the following
(a) the resolution of a Division denying a motion membership:
for referral to the Court en banc shall be final and
shall not be appealable to the Court en banc; (a) a working Vice-Chair appointed by the
Chief Justice;
(b) the Court en banc may, in the absence of
sufficiently important reasons, decline to take (b) three (3) members chosen among
cognizance of a case referred to it and return the themselves by the en banc by secret vote;
case to the Division; and and
(c) No motion for reconsideration of a resolution of (c) a retired Supreme Court Justice chosen by
the Court en banc declining cognizance of a the Chief Justice as a non-voting observer-
referral by a Division shall be entertained. consultant.
Section 12. Committees. (a) The Court shall The Vice-Chair, the Members and the retired
have the following permanent Committees, whose Supreme Court Justice shall serve for a term of
members shall be designated by the Chief Justice: one (1) year, with the election in the case of
elected Members to be held at the call of the Chief

________________________________________________________________________________________________
Justice. The Committee shall have the task of due to a gap, silence, obscurity or vagueness of
preliminarily investigating all complaints involving the law that the Court can still legitimately remedy,
graft and corruption and violations of ethical and the special circumstances of the case.
standards, including anonymous complaints, filed
against Members of the Court, and of submitting Section 2. The Court not a trier of facts. The
findings and recommendations to the en banc. All Court is not a trier of facts its role is to decide
proceedings shall be completely confidential. The cases based on the findings of fact before it.
Committee shall also monitor and report to the Where the Constitution, the law or the Court itself,
Court the progress of the investigation of similar in the exercise of its discretion, decides to receive
complaints against Supreme Court officials and evidence, the reception of evidence may be
employees, and handle the annual update of the delegated to a member of the Court, to either the
Court’s ethical rules and standards for submission Clerk of Court or one of the Division Clerks of
to the en banc. Court, or to one of the appellate courts or its
justices who shall submit to the Court a report and
Section 14. Per curiam decisions. Unless recommendation on the basis of the evidence
otherwise requested by the Member assigned to presented.
write the opinion of the Court, the decision or
resolution shall be rendered per curiam Section 3. Advisory opinions proscribed. The
Court cannot issue advisory opinions on the state
(a) where the penalty imposed is dismissal and meaning of laws, or take cognizance of moot
from service, disbarment, or indefinite and academic questions, subject only to notable
suspension in administrative cases; or exceptions involving constitutional issues.
(b) in any other case by agreement of the Section 4. Cases when the Court may
majority of the Members or upon request of a determine factual issues. The Court shall
Member. respect factual findings of lower courts, unless any
of the following situations is present:
Per Curiam
Of the whole court – relating to the unanimous (a) the conclusion is a finding grounded
decision or opinion by a court of law as opposed entirely on speculation, surmise and
to one given by an individual justice. conjecture;
Section 15. Form of resolution on motion for (b) the inference made is manifestly mistaken;
reconsideration in cases where the vote of
Members of the Court is divided. The resolution (c) there is grave abuse of discretion;
of motions for reconsideration, in case the opinion
of the Court en banc or Division is divided, may be (d) the judgment is based on a
by minute resolution specifying the respective misapprehension of facts;
votes of the Members.
(e) the findings of fact are conflicting;
Section 16. Filling up of Court positions in
Senate and House Electoral Tribunals. (f) the collegial appellate courts went beyond
Positions for Members of the Court in the Senate the issues of the case, and their findings are
Electoral Tribunal and the House of contrary to the admissions of both appellant
Representatives Electoral Tribunal shall be and appellee;
designated by the Chief Justice among the
Members of the Court in the order of seniority: The (g) the findings of fact of the collegial
most senior Member shall serve as chairperson of appellate courts are contrary to those of the
the tribunal. trial court;
RULE 3 (h) said findings of fact are conclusions

THE EXERCISE OF JUDICIAL FUNCTION without citation specific evidence on which
they are based;
Section 1. The Supreme Court a court of law.
The Court is a court of law. Its primary task is to (i) the facts set forth in the petition as well as
resolve and decide cases and issues presented by in the petitioner’s main and reply briefs are not
litigants according to law. However, it may apply disputed by the respondents;
equity where the court is unable to arrive at a
conclusion or judgment strictly on the basis of law

________________________________________________________________________________________________
(j) the findings of fact of the collegial appellate Academy (PHILJA) in the exercise of the
courts are premised on the supposed Court’s supervisory authority over them.
evidence, but are contradicted by the
evidence on record; and RULE 5
PRECEDENCE AND PROTOCOL
(k) all other similar and exceptional cases
warranting a review of the lower courts’ Section 1. Concept. The Chief Justice enjoys
findings of fact. precedence over all the other Members of the
Court in all official functions. The Associate
Justices shall have precedence according to the
order of their appointments as officially transmitted
to the Supreme Court.
RULE 4
THE EXERCISE OF ADMINISTRATIVE Section 2. When rule on precedence is
FUNCTION applicable. The rule on precedence shall be
applied in the following instances:
Section 1. Disciplinary cases against Court
personnel. Administrative supervision of courts (a) in the determination of the
and court personnel shall be undertaken by the Chairpersonship of the Division;
court en banc, provided that, in appropriate cases,
such function may be undertaken by the Divisions. (b) in the seating arrangement of the Justices
in all official functions; and
Section 2. Assisting officers in the exercise of
administrative function. In the discharge of its (c) in the choice of office space, facilities,
administrative functions, the Court shall be equipment, transportation, and cottages.
assisted by the Office of the Clerk of Court in
administrative matters and cases involving the Section 3. When rule on precedence is not
Court and the collegial appellate courts, and by applicable. Precedence in rank shall not be
the Office of the Court Administrative matters and observed in social and other non-official functions
cases involving the lower courts. or be used to justify discrimination in the
assignment of cases, amount of compensation,
Section 3. Administrative functions of the allowance or other forms of remuneration.
Court. The administrative functions of the Court
en banc consist of , but are not limited to, the PART II
following:
RULE 6
(a) the discipline of justices, judges and court FILING, RECEIVING, AND PROCESSING OF
personnel, whether by en banc or by Division, INITIATORY PLEADINGS AND APPEALS
subject to matters assignable to the Divisions,
disciplinary matters involving justices, judges Section 1. Governing rules of procedure in
and court personnel; appeals or petitions filed in the Supreme
Court. All appeals or petitions and pleadings that
(b) the temporary assignment of judges to initiate an application for relief shall be filed with
other stations as public interest may require; the Court only in accordance with the procedure
provided by the Rules of Court and other
(c) the transfer of cases, from one court, issuances of the Court.
administrative area or judicial region, to
another, or the transfer of venue of the trial of Section 2. Reception of pleadings and other
cases to avoid miscarriage of justice; documents. All appeals and petitions in all types
of cases, and original records in criminal cases
(d) the amendment, modification or revocation shall be filed with and received by the Receiving
of administrative orders and circulars issued Section of the Docket Division of the Judicial
by the Court; Records Office during office hours.
(e) the policy consideration and determination Section 3. Assessment and payment. An
of matters and issues; and initiatory pleading shall be processed pursuant to
the pertinent provisions of the Rules of Court and
(f) matters involving the Judicial and Bar issuances of the Court. The corresponding legal
Council (JBC) or the Philippine Judicial fees shall then be assessed and paid.

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method that ensures the integrity of the contents

Section 4. Docket number and entry in of the rollo.
logbook. An initiatory pleading properly filed shall
be assigned a docket or G.R. (General Register) Section 10. Processing. A court attorney at the
number, which shall identify the case for record Docket Division of the Judicial Records Office
purposes until its termination under the Rules of shall accomplish the processing slips for all
Court. Any case for which no docket fee has been initiatory pleadings, including motions for
paid shall be assigned an undocketed or UDK extension of time to file petition. The processing
number. All initiatory pleadings shall be entered in slip shall serve as the checklist of the
the logbook of the Receiving Section. requirements of the Rules of Court for filing a
case, and shall inform the Court of compliance or
Section 5. Case Administration System. non-compliance by the appellant or petitioner with
Pleadings, letters, resolutions, decisions, entry of such requirements, as gathered from the initiatory
judgment, and all the relevant information pleading filed. Information provided by the
regarding any particular case identified by a G.R. processing slip shall be reported in the initial
number or a UDK number shall be encoded in the agenda item on the case.
Case Administration System (CAS).
Section 11. Transmittal of rollo from the
Section 6. Indexing and transmittal to Docket Receiving Section to the Office of the Clerk of
Division. After the recording in the logbook and Court or the Division Clerk of Court. The
encoding in the CAS by the Receiving Section, the Judicial Records Office shall transmit all rollos to
initiatory pleading shall be indexed on a card that the Office of the Clerk of Court or Division Clerk of
shall indicate such information as court of origin, Court within forty-eight hours from receipt of
the lower court case number(s), the nature of the pleadings, documents or papers attached to them,
case, the names of the counsel(s) for the litigants, unless immediate transmittal is demanded by the
and the date and time of transmittal to the Docket nature of the case. Copies of pleadings,
Division of the Judicial Records Office. The documents, or papers not attached to the rollo
indexing of cases shall serve as a backup record shall be distributed by said Offices to all Members
of the receipt of a case by the Court. Thereafter, of the Court en banc or of the Division.
the initiatory pleading shall be transmitted to the
Docket Division. RULE 7
RAFFLE OF CASES
Section 7. Classification of cases. A court
attorney in the Docket Division shall preliminarily Section 1. Raffle of cases. Every initiatory
classify the petitions and appeals filed as en banc pleading already identified by a G.R. or a UDK
or as Division cases in accordance with law. number shall be raffled among the Members of the
Court. The Member-in-Charge to whom a case is
Section 8. Recording of cases in the main raffled, whether such case is to be taken up by the
docket book. The case shall be recorded in the Court en banc or by a Division, shall oversee its
main docket book of the Docket Division, where all progress and disposition unless for valid reason,
pleadings, motions, communications, resolutions, such as inhibition, the case has to be re-raffled,
the decision, the entry of judgment, and all unloaded or assigned to another Member.
relevant information on a particular case shall be
recorded by handwriting. The personnel charged Section 2. Raffle Committee. Two Raffle
with making entries in the main docket book of the Committees one for the en banc and the other for
said pleadings and other said pleadings and other Division cases, each to be composed of a
information shall affix his or her initials after such Chairperson and two members shall be
entries. designated by the Chief Justice from among the
Members of the Court on the basis of seniority.
Section 9. The rollo for each case. All original
pleadings and other documents filed under the Section 3. Raffle Committee Secretariat. The
same docket number shall be encased in a folder Clerk of Court shall serve as the Secretary of the
or rollo with a Court en banc-approved, color- Raffle Committee. He or she shall be assisted by
coded cartolina cover indicating the G.R. or UDK a court attorney, duly designated by the Chief
number, the title of the case, the date of filing, the Justice from either the Office of the Chief Justice
date of submission for decision, and the nature of or the Office of the Clerk of Court, who shall be
the case. The pages of the pleadings and other responsible for (a) recording the raffle proceedings
documents shall be consecutively numbered and and (b) submitting the minutes thereon to the
attached to the rollo preferably by stitching or any Chief Justice. The Clerk of Court shall make the

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result of the raffle available to the parties and their the Division to which the same Member-in-Charge
counsels or to their duly authorized belongs and to the Division Chairperson.
representatives, except the raffle of (a) bar
matters; (b) administrative cases; and (c) criminal (e) Upon receipt of the special raffle result, the
cases where the penalty imposed by the lower Judicial Records Office shall immediately forward
court is life imprisonment, and which shall be the rollo to the Division concerned, with the word
treated with strict confidentiality. "RUSH" clearly indicated on the rollo cover.
Section 4. Classification of cases for raffle. The (f) Upon receipt of the rollo, the Clerk of Court or,
initiatory pleadings duly docketed at the Judicial should the case be classified as a Division case,
Records Office shall be classified into en banc and the Division Clerk of Court shall immediately (i)
Division cases for purposes of the raffle. The Clerk prepare the Agenda item on the specially raffled
of Court shall forthwith make a report on the case; and (ii) forward the rollo and a copy of the
classified cases to the Chief Justice. Special Agenda to the Rollo Room, which shall
transmit the rollo to the Member-in-Charge and
Section 5. Schedule of regular raffle. Regular distribute the Special Agenda to the Chief Justice
raffle of en banc and Division cases shall be held and the Members of the Court or to the
on Mondays and Wednesdays, respectively. Chairperson and Members of the Division, as the
case may be.
Section 6. Special raffle of cases. Should an
initiatory pleading pray for the issuance of a (g) When the Court in recess and the urgency of
temporary restraining order or an urgent and the case requires immediate action, the Clerk of
extraordinary writ such as the writ of habeas Court or the Division Clerk of Court shall
corpus or of amparo, and the case cannot be personally transmit the rollo to the Chief Justice or
included in the regular raffle, the Clerk of Court the Division Chairperson for his or her action.
shall immediately call the attention of the Chief
Justice or, in the latter’s absence, the most senior Section 7. Conduct of the raffle. The cases
Member of the Court present. The Chief Justice or included in a previously prepared list shall be
the Senior Member of the Court may direct the raffled using a reasonably acceptable random
conduct of a special raffle, in accordance with the raffle device under a system that shall ensure the
following procedure: fair and equitable distribution of case load among
all Members of the Court.
(a) Upon receipt of an initiatory pleading
containing a motion for the conduct of a special Section 8. Transfer of rollos of raffled cases.
raffle, the Judicial Records Office shall The rollos of all raffled cases shall be delivered to
immediately (I) process the pleading and (ii) the Officers of the respective Clerks of Court, for
transmit a copy of it to the Office of the Clerk of inclusion in the next agenda of the Court en banc
Court. or the Division.
(b) The Judicial Records Office shall inform the RULE 8

Clerk of Court in writing of the motion for special INHIBITION AND SUBSTITUTE OF MEMBERS
raffle, and the Clerk of Court shall forthwith seek OF THE COURT
authority to conduct the special raffle from the
Chief Justice or substitute Senior Member, as the Section 1. Grounds for inhibition. A Member of
case may be. the Court shall inhibit himself or herself from
participating in the resolution of the case for any of
(c) The special raffle shall be conducted these and similar reasons:
immediately.
(a) the Member of the Court was the ponente of
(d) The Clerk of Court shall furnish the Member-in- the decision or participated in the proceedings in
Charge to whom the case is raffled, the Judicial the appellate or trial court;
Records Office, and the Rollo Room at the Office
of the Chief Justice, copies of the result of the (b) the Member of the Court was counsel, partner
special raffle in an envelope marked "RUSH". The or member of law firm that is or was the counsel in
Member-in-Charge shall also be furnished a copy the case subject to Section 3(c) of this rule;
of the pleading. If the case is classified as a
Division case, the Clerk of Court shall furnish the (c) the Member of the Court or his or her spouse,
same copies to the Office of the Clerk of Court of parent or child is pecuniarily interested in the
case;

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(d) the Member of the Court is related to either (b) Whenever a Member of the Division, other
party in the case within the sixth degree of than the Member-in-Charge of a case, inhibits on
consanguinity or affinity, or to an attorney or any any of the grounds specified in Section 1, except
member of a law firm who is counsel of record in paragraph (b), the case shall be decided by the
the case within the fourth degree of consanguinity four remaining Members of the Division and
or affinity; another Member of the two other Divisions chosen
by raffle to act on the case.
(e) the Member of the Court was executor,
administrator, guardian or trustee in the case; and (c) When a Member of the Division, other than the
Member-in-Charge of a case, was counsel or
(f) the Member of the Court was an official or is partner or member of a law firm that is or was
the spouse of an official or former official of a counsel in the case before the Division, such
government agency or private entity that is a party Member shall inhibit himself or herself, unless the
to the case, and the Justice or his or her spouse Member was no longer a partner or member of the
has reviewed or acted on any matter relating to law firm when it was engaged as counsel in the
the case. case and the Member votes against the client of
such firm. In any event, the mandatory inhibition
A Member of the Court may in the exercise of his shall case after the lapse of ten years from the
or her sound discretion, inhibit himself or herself resignation or withdrawal of the Member from the
for a just or valid reason other than any of those law firm, unless the Member personally handled
mentioned above. the case when he or she was a partner or member
of the law firm.
The inhibiting Member must state the precise
reason for the inhibition. (d) Whenever two or more Members o the
Division, other than the Member-in-Charge of a
Section 2. Motion to inhibit a Division or a case, inhibit themselves from a case, they shall be
Member of the Court. A motion for inhibition replaced by raffle by Members of the other
must be in writing and under oath and shall state Divisions.
the grounds therefor.
(e) A Member of the Court who inhibits, on the
A motion for inhibition of a Division or a Member of grounds specified in Section 1, shall be assigned
the Court must be acted upon by the Division or an additional case at the next raffle of Division
the Member of the Court concerned, as the case cases.
may be, within ten working days from receipt
thereof except when there is an application for a Section 4. Substitution of Member. When a
temporary restraining order, in which case the Member of the Court is on leave or a vacancy
motion must be acted upon immediately. occurs in a Division, another Member from the
other Divisions shall be designated by the Chief
No motion for inhibition of a Division or a Member Justice by rotation, according to a reverse order of
of the Court shall be granted after a decision on seniority, to act as Member of the Division until the
the merits or substance of the case has been regular Member reports back to work or a newly
rendered or issued by an Division, except for a appointed Member assumes office, as the case
valid or just reason such as an allegation of a graft may be.
and corrupt practice or ground not earlier
apparent. RULE 9
FOLDER OF PLEADINGS, COMMUNICATIONS,
Section 3. Effects of inhibition. The DOCUMENTS AND OTHER PAPERS IN A CASE
consequences of an inhibition of a Member of the
Court shall be governed by these rules: Section 1. The rollo of a case. The original of all
pleadings, communications, documents, and other
(a) Whenever a Member-in-Charge of a case in a papers filed by the parties shall be encased in a
Division inhibits himself for a just and valid reason, rollo, which shall serve as their official repository
the case shall be returned to the Raffle Committee for purposes of the case. The rollo shall be
for re-raffling among the Members of the same properly and sequentially paginated by the Docket
Division other than the Member-in-Charge of a Division of the Judicial Records Office to prevent
case, and the fifth Member of the Division chosen intercalation or detachment of a page.
by raffle among the Members of the Divisions shall
act in place of the inhibiting Member.

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Section 2. Repository of rollos. All rollos shall each rollo indicates the G.R. or UDK number of
be kept in the Rollo Room in the Office of the the case with which the former is consolidated.
Chief Justice. No rollo shall be taken out except
for delivery to any following: (1) the Judicial The Member-in-Charge who finds after study that
Records Office for attachment of a pleading, the cases do not involve common questions of law
communication, document or other papers filed; or of fact may request the Court to have the case
(2) the Office of the Clerk of Court or the Office of or cases returned to the original Member-in-
the Division Clerk of Court, for the preparation of Charge.
the Agenda and to the Minutes of a Court session,
as well for the attachment of the decisions or Bar Exam Question 2011
resolutions to the rollo; (3) the Office of the (67) Which of the following is a correct
Member-in-Charge or the Office of the ponente or application of the rules involved in
writer of the decision or resolution; (4) any Office consolidation of cases? (A) Consolidation of
or official charged with the study of the case. cases pending in different divisions of an
appellate court is not allowed. (B) The court
All personnel charged with the safekeeping and in which several cases are pending
distribution of rollos shall be bound by strict involving common questions of law and
confidentiality on the identity of the Member-in- facts may hear initially the principal case
Charge or the ponente, as well as on the integrity and suspend the hearing in the other
of the rollos, under pain of administrative sanction cases. (C) Consolidation of cases pending in
and criminal prosecution for any breach thereof. different branches or different courts is not
permissible. (D) The consolidation of cases is
Section 3. The expediente. - The Office of the done only for trial purposes and not for
Clerk of Court of the Division Clerk of Court shall appeal.
provide copies of all pleadings, communications,
documents, and other papers of a case to the
Offices of the Members of the Court for the Section 6. Reconstitution of lost rollo. When a
constitution of an expediente to facilitate access rollo is lost and a diligent search for it proves futile,
and easy reference to a case. the personnel-in-charge of the Rollo Room shall
immediately inform the Chief Justice or the proper
Section 4. Confidentiality of identify of Chairperson of the Division of such loss. Without
Member-in-Charge or ponente and of Court prejudice to any administrative or criminal liability
actions. Personnel assigned to the Rollo Room of the personnel responsible for the loss, the Chief
and all other Court personnel handling documents Justice or the Chairperson of the Division
relating to the raffling of cases are bound by strict concerned shall direct the Judicial Records Office
confidentiality on the identify of the Member-in- to reconstitute the rollo and request the counsel
Charge or ponente and on the actions taken on and the parties to personally appear and submit,
the case. on a specified date, legible copies of the
pleadings, communications, documents, and other
Rollo Room personnel may release a rollo only papers filed in the case, and to authenticate their
upon an official written request from the Chief respective submissions.
Judicial Staff Head or the Chief of Office of the
requesting Office. The rollo room personnel may The same procedure shall be observed when the
release a rollo only to an authorized personnel loss of a rollo occurs in the office of a Member of
named in the official written request. All personnel the Court. The Judicial Staff Head concerned shall
handling the rollos are bound by the same strict immediately report the loss.
confidentiality rules.
Entries in the main docket book of the Judicial
Section 5. Consolidation of cases. The Court Records Office, as well as in the Case4
may order the consolidation of cases involving Administration System, shall be used for
common questions of law or of act. The Chief verification purposes.
Justice shall assign the consolidated cases to the
Member-in-Charge to whom the case having the RULE 10
lower or lowest docket number has been raffled, COURT SESSIONS AND HEARINGS
subject to equalization of case load by raffle. The
Judicial Records Office shall see to it that (a) the Section 1. Court sessions. The Court en banc
rollos of the consolidated cases are joined shall hold sessions every Tuesday. The Divisions
together to prevent the loss, misplacement or may meet on Monday s and Wednesdays. Special
detachment of any of them; and (b) the cover of sessions may be held whenever necessary. In

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every session, proceedings shall follow the inclusion of pleadings, motions, and other matters
agenda of cases and matters to be taken up. in the agenda counted from receipt:
Actions taken during sessions shall be duly
reflected in the minutes of the proceedings. (a) motions for extension of time to file petitions
immediately calendared;
Section 2. Confidentiality of court sessions.
Court sessions are executive in character, with (b) appeals in criminal cases under Article 47 of
only the Members of the Court present. Court the Revised Penal Code, as amended, or under
deliberations are confidential and shall not be Rule 122 of the Rules of Court within fifteen days;
disclosed to outside parties, except as may be
provided herein or as authorized by the Court. (c) petitions under Rules 45, 64 and 65 within ten
days, unless a party asks for the issuance of a
The Chief Justice or the Division Chairperson shall temporary restraining order or an extraordinary
record the action or actions taken in each case for writ, immediate inclusion of the case in the
transmittal to the Clerk of Court or Division Clerk Agenda; and
of Court after each session. The notes of the Chief
Justice and the Division Chairperson, which the (d) other pleadings within ten days.
Clerk of Court and the Division Clerks of Court
must treat with strict confidentiality, shall be the The foregoing notwithstanding, the Chief Justice
bases of the minutes of the sessions. may direct the immediate inclusion of any matter
in the agenda.
Section 3. Oral arguments. The Court may hear
any case on oral arguments upon defined issues. Section 3. Minutes of proceedings. The Chief
The petitioner shall argue first, followed by the Justice or the Chairperson of the Division shall
respondent and the amicus curiae, if any. Rebuttal provide the Clerk of Court or the Division Clerk of
arguments may be allowed by the Chief Justice or Court his or her notes on the actions taken by the
the Chairperson. If necessary, the Court may Court. The copy of the Agenda containing the
invite amicus curiae. handwritten notes of the Chief Justice or Division
Chairperson shall serve as the basis for the
Section 4. Transcripts of hearings, recording preparation of the minutes of the session by the
of oral arguments. Oral arguments shall be Office of the Clerk of Court or of the Division
recorded by at least two stenographers, Clerks of Court.
alternately taking stenographic notes of the
proceedings. The stenographers shall transcribe Section 4. Preparation of minutes of
their notes and submit the consolidated transcripts proceedings. Within forty-eight hours from the
to the Clerk of Court or the Division Clerk of Court time the copy of the Agenda containing the
within twenty-four hours from the termination of handwritten actions of the Court is transmitted to
the oral arguments. The Clerk of Court or the him or her, the Clerk of Court or the Division Clerk
Division Clerk of Court shall review the transcripts of Court shall submit the draft of the minutes of the
of stenographic notes, using the tape or electronic session for the approval by the Chief Justice or
of the hearing for verification purposes. the Division Chairperson. The draft of the minutes
of a Court session shall follow the chronological
RULE 11 sequence of the cases in the Agenda. Excerpts of
AGENDA AND MINUTES OF COURT the minutes pertaining to a particular case quoted
SESSIONS in a letter of the Clerk of Court or the Division
Clerk of Court to the parties, and extended
Section 1. Agenda. The Clerk o9f Court and the resolutions showing the actions of the Court on
Division Clerks of Court shall ensure that all the cases on agenda shall be released to the
pleadings, communications, documents, and other parties only after the Chief Justice or the Division
papers duly filed in a case shall be reported in the Chairperson has approved the minutes in writing.
Agenda for consideration by the Court en banc or
the Division. The Agenda items for each case Section 5. Confidentiality of minutes prior to
shall adequately apprise the Court of relevant release. The Offices of the Clerk of Court and of
matters for its consideration. the Division Clerks of Court are bound by strict
confidentiality on the action or actions taken by the
Section 2. Periods for inclusion of pleadings, Court prior to the release of the resolutions
motions, and other matters in the agenda. The embodying the Court action or actions.
Clerk of Court and the Division Clerks of Court
shall observe the following periods for the

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A resolution is considered officially released once

the envelope containing a final copy of it Section 8. Release of resolutions. All
addressed to the parties has been transmitted to resolutions shall be released within forty-eight
the process server for personal service or to the hours from approval of the Minutes of any session
mailing section of the Judicial Records Office. by the Chief Justice or the Division Chairperson.
Only after its official release may a resolution be Resolutions with the following actions shall be
made available to the public. released immediately to the parties:
Section 6. Preparation of minute resolutions (a) directing the issuance of extraordinary writs;
and unsigned extended resolutions. A minute
resolution quoting an excerpt of the minutes of (b) granting or denying motions for extension of
Court sessions pertinent to a case shall be time to file petitions or subsequent pleadings, or
prepared by the court attorneys in the Office of the other motions of urgent nature;
Clerk of Court or the Division Clerk of Court and
personally reviewed, approved, and initialled by (c) granting applications for a temporary
the Clerk of Court or the Division Clerk of Court restraining order/status quo order/writ of
before submission for final approval by the Chief preliminary injunction;
Justice or the Division Chairperson. An unsigned
extended resolution may be prepared by the (d) preventively suspending judges or court
Office of the Member-in-Charge or by the Office of personnel; and
the Clerk of Court or Division Clerk of Court, upon
instructions of either the Chief Justice or the (e) directing any party, the Office of the Court
Division Chairperson, who shall approve the Administrator, or any other official or agency to
resolution. The Chief Justice and the Division submit a comment, a report or a recommendation
Chairperson shall order the Clerk of Court or the within a non-extendible period.
Division of Clerk of Court to release duly approved
minute and unsigned extended resolutions. RULE 12
VOTING REQUIREMENTS
Section 7. Form of notice of a minute
resolution. A notice of a minute resolution shall Section 1. Voting requirements. (a) All
be embodied in a letter of the Clerk of Court or the decisions and actions in Court en banc cases shall
Division Clerk of Court notifying the parties of the be made up upon the concurrence of the majority
action or actions taken in their case in the of the Members of the Court who actually took part
following form: in the deliberation on the issues or issues involved
and voted on them.
(SUPREME COURT Seal)
(b) All decisions and actions in Division cases
REPUBLIC OF THE PHILIPPINES shall be made upon the concurrence of at least
SUPREME COURT three Members of the Division who actually took
Manila part in the deliberations on the issue or issues
involved and voted on them.1
EN BANC/_____ DIVISION
Section 2. Tie voting in the Court en banc. (a)
NOTICE In civil cases, including special proceedings and
special civil actions, where the Court en banc is
Sirs/Mesdames: equally divided in option or the necessary majority
vote cannot be had, the Court shall deliberate on it
Please take notice that the Court en banc/_____ anew. If after such deliberation still no decision is
Division issued a Resolution dated reached, the Court shall, in an original action filed
______________, which reads as follows: with it, dismiss the case; in appealed cases, it
shall affirm the judgment or order appealed from.
"G.R./UDK/A.M./A.C. NO. _________ (TITLE).
(QUOTE RESOLUTION") (b) In criminal cases, when the Court en banc is
equally divided in option of the necessary majority
Very truly yours, cannot be had, the Court shall deliberate on it
anew. If after such deliberation still no decision is
(Sgd.) reached, the Court shall reverse the judgment of
conviction of the lower court and acquit the
CLERK OF COURT/Division Clerk of Court accused.

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Should a Member object to the request, the Court

(c) When, in an administrative case against any of shall grant a final extension of thirty days within
the Justices of the appellate courts or any of the the Member-in-Charge shall report the case for
Judges of the trial Courts, the impossible penalty deliberation, falling which, the case shall be re-
is dismissal and the Court en banc is equally raffled to another Member who shall submit the
divided in opinion or the majority vote required by report within thirty days from assignment.
the Constitution for dismissal cannot be had, the
Court shall deliberate on the case anew. If after Section 2. List of cases submitted for decision
such deliberation still no decision is reached, the or resolution. The Clerk of Court and the
Court shall dismiss the administrative case, unless Division Clerks of Court shall maintain a system
a majority vote decides to impose a lesser penalty. for apprising the Court periodically, at least six
months before the last day of the twenty-four-
(d) Where the Court en banc is equally divided in month period for deciding or resolving a case, of
opinion of the majority vote required by the the approach of such cut off date.
Constitution for annulling any treaty, international
or executive agreement, law, presidential decree, Section 3. Actions and decisions, how
proclamation, order, instruction, ordinance, or reached. The actions and decisions of the Court
regulation cannot be had, the Court shall whether en banc or through a Division, shall be
deliberate on the case anew. If such deliberation arrived at as follows:
still no decision is reached, the Court shall deny
the challenge to the constitutionally of the act. (a) Initial action on the petition or complaint. After
a petition or complaint has been placed on the
(e) In all matters incidental to the main action agenda for the first time, the Member-in-Charge
where the Court en banc is equally divided in shall except in urgent cases, submit to the other
opinion, the relief sought shall be denied. Members at least three days before the initial
deliberation in such case, a summary of facts, the
Section 3. Failure to obtain required votes in issue or issues involved, and the arguments that
Division. Where the necessary majority of three the petitioner presents in support of his or her
votes is not obtained in a case in a Division, the case. The Court shall, in consultation with its
case shall be elevated to the Court en banc. Members, decide on what action it will take.
Section 4. Leaving a vote. A Member who goes (b) Action on incidents. The Member-in-Charge
on leave or is unable to attend the voting on any shall recommend to the Court the action to be
decision, resolution, or matter may leave his or her taken on any incident during the pendency of the
vote in writing, addressed to the Chief Justice or case.
the Division Chairperson, and the vote shall be
counted, provided that he or she took part in the (c) Decision or Resolution. When a case is
deliberation. submitted for decision or resolution, the Member-
in-Charge shall have the same placed in the
RULE 13 agenda of the Court for deliberation. He or she
DECISION-MAKING PROCESS shall submit to the other Members of the Court, at
least seven days in advance, a report that shall
Section 1. Period for deciding or resolving contain the facts, the issue or issues involved, the
cases. The Court shall decide or resolve all arguments of the contending parties, and the laws
cases within twenty-four months from the date of and jurisprudence that can aid the Court in
submission for resolution. A case shall be deemed deciding or resolving the case. In consultation, the
submitted for decision or resolution upon the filling Members of the Court shall agree on the
of the last pleading, brief, or memorandum that the conclusion or conclusions in the case, unless the
Court or its Rules require. said Member requests a continuance and the
Court grants it.
The Member-in-charge, assigned to oversee the
progress and disposition of a case, who is unable Section 4. Continuance in deliberations. The
to decide or resolve the oldest cases within that deliberation on a case may be adjourned to
period shall request the Court en banc for an another date to enable the Member who
extension of the period, stating the ground for the requested it to further study the case; provided,
request. The Court shall act on the request as it however, that the total period of continuances
sees fit, according to the circumstances of the shall not exceed three months from the date was
case. first adjourned. This rule shall likewise apply to
actions on months for reconsideration of the

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decisions and resolutions of the Court, unless a (2) denies petition filed under Rule 45 of
Member, whose vote in the original decision of a the said Rules, citing as legal basis the
divided Court matters, is about to retire. In such a absence of reversible error committed in
situation, the action on the motion for the challenged decision, resolution, or
reconsideration submitted for resolution shall be order of the court below;
made before his or her retirement. (3) Dismisses an administrative complaint,
citing as legal basis failure to show a
Section 5. Ponente or Opinion writer. prima facie case against the respondent;
Immediately upon arriving at a conclusion (4) denies a motion for reconsideration,
regarding the issue or issues in the case, the citing as legal basis the absence of a
Court shall assign a Member to write the opinion compelling or cogent reason to grant the
of the Court. Should the majority vote of the court motion, or the failure to raise any
on such conclusion be different from or contrary to substantial argument to support such
the conclusion arrived at by the ponente, the motion; and
writing of the new opinion shall be assigned to a (5) dismisses a petition on technical
ponente chosen by the majority. grounds or deficiencies.
Section 6. Manner of adjudication. The Court Section 7. Dissenting separate or concurring

shall adjudicate cases as follows: opinion. A Member who disagrees with the
majority opinion, its conclusions, and the
(a) By decision, when the Court disposes of disposition of the case may submit to the Chief
the case on its merits and its rulings have Justice or Division Chairperson a dissenting
significant doctrinal values; resolve novel opinion, setting forth the reason for such dissent.
issues; or impact on the social, political, and A Member who agrees with the result of the case,
economic life of the nation. The decision shall but based on different reason or reasons may
state clearly and distinctly the facts and the submit a separate opinion; a concurrence "in the
law on which it is based. It shall bear the result" should state the reason for the qualified
signatures of the members who took part in concurrence. A Member who agrees with the main
the deliberation. opinion, but opts to express other reasons for
concurrence may submit a concurring opinion.
(b) By signed resolution, when the Court The dissenting, separate, or concurring opinion
comprehensively resolves the motion for must be within one week from the date the writer
reconsideration filed in the case or when a of the majority opinion presents the decision for
dissenting opinion is registered against such the signature of the Members.
resolution. The signed resolution shall no
longer discuss issues resolved in the decision Section 8. Attestations and certifications on
and need not repeat the facts and the law consultations held. In cases decided by a
stated in it. It shall also bear the signatures of Division, the Division Chairperson shall issue an
the Members who took part in the deliberation. attestation regarding the conduct of consultation
among its Members and the assignment of the
(c) By unsigned resolution when the Court writing of the decision to a Member after such
disposes of the case on the merits, but its consultation. In all decided cases, whether by the
ruling is essentially meaningful only to the Court en banc or by a Division, the Chief shall
parties; has no significant doctrinal value; or is issue a certification regarding the conduct of
minimal interest to the law profession, the consultant among the Members of the Court and
academe, or the public. The resolution shall the assignment of the writing of the decision to a
state clearly and distinctly the facts and the Member after such consultation.
law on which it is based.
Section 9. Submission of decisions and
(d) By minute resolution when the Court resolutions. The original of all decisions and
resolutions as well as separate, concurring, or
(1) dismisses a petition filed under Rule dissenting opinions shall be submitted to the Chief
64 or 65 of the Rules of Court, citing as Justice, accompanied by electronic copies. The
legal basis the failure of the petition to Judicial Staff Head of the Office of the ponente or
show that the tribunal, board or officer the writer of the majority opinion shall certify, in
exercising or quasi-judicial functions has writing, the authenticity of the electronic copies,
acted without or in excess of jurisdiction, which shall be placed in a separately marked,
or with grave abuse of discretion dated, and signed envelop.
amounting to lack or excess of jurisdiction;

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Section 10. Promulgation of decisions and (c) scan any handwritten notes on the
resolutions. The Clerk of Court or the Division signature page, such as "In the result," and
Clerk of Court shall promulgated every decision or include signature page with the same
resolution within forty-eight hours from receipt of handwritten notes for posting;
the same from the Office of the Chief Justice,
indicating the date and hour of promulgation and (d) take note of any typographical error in the
affixing his or her signature underneath such date magnetic or electronic file of the decision or
and hour. In the absence of the Clerk of Court, the resolution, and immediately bring it to the
First Division Clerk of Court shall promulgated the attention of the writer of the decision or
decisions of the Court en banc. resolution, or the Chief Justice in case of a per
curiam decision or when the writer has ceased
Section 11. Authentication of decisions and to serve the Court;
resolutions. All decisions, resolutions, and other
Court issuances shall be released to the parties (e) immediately furnish the Library with soft
concerned only after these shall have been copies of all decisions and resolutions for
authenticated by the Clerk of Court of Division archival purposes.
Clerk of Court through a bar code at the bottom of
each page, which he or she shall personally affix, Section 5. Service and dissemination of
or by other means to protect the authenticity and decisions and signed resolutions. The Clerk of
integrity of such document. They shall also initial Court or the Division Clerk of Court shall see to
every page of per curiam decisions, minute the service of authenticated copies of the
resolutions, and unsigned extended resolutions. promulgated decision or signed resolution upon
the parties in accordance with the provisions of
RULE 14 the Rules of Court. The Clerk of Court of the
HANDLING AND DISSEMINATION OF Division Clerk of Court shall also immediately
DECISIONS AND RESOLUTIONS provide hard copies of the same to the Public
Information Office, Office of the Court
Section 1. Promulgation. A decision or Administrator, Office of the Chief Attorney,
resolution shall deemed promulgated on the date Philippine Judicial Academy, and the Library.
it is received and acknowledged by the Clerk of
Court or Division Clerk of Court from the Office of Section 6. Safekeeping of original hard copy of
the Chief Justice or the Division Chairperson. decision and drafting of syllabus of each
promulgated decision. As soon as hard copies
Section 2. Report of promulgation. Within of the decision or resolution shall have been
twenty-four hours from the promulgation of a served on the parties and disseminated in
decision or resolution, the Clerk of Court or the accordance with these Rules, the Clerk of Court or
Division Clerk of Court shall formally inform the the Division Clerk of Court shall deliver to the
Chief Justice or the Division Chairperson of such Office of the Reporter (a) the original hard copy of
promulgation. each signed decision or resolution for
safekeeping, and (b) a reproduction of such hard
Section 3. Electronic dissemination of decision copy for the preparation of the concise synopsis
or resolution. Upon receipt of the report of and syllabus of each decision or resolution duly
promulgation, the Chief Justice shall direct the approved by the writer of the decision or by the
Chief Justice’s Staff Head to deliver immediately Chief Justice if the writer has retired or is no
the magnetic or electronic copy of the decision or longer in the judicial service, prior to publication in
resolution to the Management Information the Philippine Reports. The Office of the Reporter
Systems Office (MISO). shall (a) see to the secured safekeeping of original
decisions that shall be collated and bound on a
Section 4. Responsibilities of the MISO. Upon monthly basis, and (b) be responsible for the
receipt of a copy of a promulgated decision or updated publication of the Philippine Reports.
resolution, the MISO shall
Section 7. Publication of decisions and
(a) log the date and time of receipt; resolutions. A decision and signed resolution of
the Court shall be published in the Philippine
(b) format the decision or resolution in such a Reports, with the synopsis and syllabus prepared
way as to make it readable on the Supreme by the Office of the Reporter. Other decisions and
Court website; signed resolutions not so published may also be
published in the Philippine Reports in the form of
memoranda prepared by the Office of the

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Reporter. The Public Information (PIO) may final order? (1%) (A) At anytime within 15
choose and submit significant decisions and days from notice of denial of the first motion
resolutions for publication in the Official Gazette. for reconsideration. (B) Only in the presence
of extraordinarily persuasive reasons and
RULE 15 only after obtaining express leave from
FINALITY OF DECISION AND RESOLUTIONS the ruling court.
(C) A party is not allowed to fi le a second
Section 1. Finality of decisions and motion for reconsideration of a final
resolutions. A decision or resolution of the Court judgment or final order. (D) A party is allowed
may be deemed final after the lapse of fifteen as a matter of right to fi le a second motion
days from receipt by the parties of a copy of the for reconsideration of a judgment or final
same subject to the following: order. (E) None of the above. SUGGESTED
ANSWER: (B), A second motion for
(a) the date of receipt indicated on the registry reconsideration is allowed but only when
return card signed by the party-or, in case he or there are extraordinary persuasive reasons
she is represented by counsel, by such counsel or and only after an express leave shall have
his or her representative- shall be the reckoning been obtained (Suarez vs. Judge Dilag,
date for counting the fifteen-day period; and A.M. No. RTJ-06-2014, August 16, 2011;
League of Cities vs. COMELEC, G.R. No.
(b) if the Judgment Division is unable to retrieve 176951, June 28, 2011).
the registry return card within fifteen days from
mailing, it shall immediately inquire from the Bar Exam Question 2012
receiving post office on (i) the date when the
63. Under Rule 52, a Second Motion for
addressee received the mailed decision or
Reconsideration is a prohibited pleading.
resolution; and (ii) who received the same, with
However,· where may such Motion be
the information provided by authorized personnel
allowed?
of the said post office serving as the basis for the
a. the Sandiganbayan;
computation of the fifteen-day period.
b. the Office of the President;
Section 2. Motion for reconsideration. A c. the Supreme Court;
motion for reconsideration filed within the fifteen- d. None of the above.
day period from receipt of a copy of the decision SUGGESTED ANSWER:
or resolution shall stay the execution of such (c), Under Rule 52, a second Motion for
decision or resolution unless, for good reasons Reconsideration is a prohibited pleading.
shown, the Court directs otherwise. However, the Supreme Court en banc may
entertain the same in the higher interest
Section 3. Second motion for reconsideration. of justice upon a vote of at least two-
The Court shall not entertain a second motion for thirds of its actual membership. There is
reconsideration, and any exception to this rule can reconsideration “in the highest interest of
only be granted in the higher interest of justice justice” when the assailed decision is not
by the Court en banc upon a vote of at least two- only legally erroneous but is likewise
thirds of its actual membership. There is patently unjust and potentially capable of
reconsideration "in the higher interest of justice" causing unwarranted and irremediable
when the assailed decision is not only legally injury or damage to the parties. A second
erroneous, but is likewise patently unjust and motion for reconsideration can only be
potentially capable of causing unwarranted and entertained before the ruling sought to be
irremediable injury or damage to the parties. A reconsidered becomes final by operation
second motion for reconsideration can only be of law or by the Court‟s declaration.
entertained before the ruling sought to be (Sec.3, Rule 15, Internal Rules of the
reconsidered becomes final by operation of law or Supreme Court). In the Division, a vote of
by the Court’s declaration. three Members shall be required to elevate
In the Division, a vote of three Members shall be to a second motion for reconsideration to
required to elevate a second motion for the Court En Banc. (Aliviado vs. Proctor
reconsideration to the Court En Banc. and Gamble Phils., Inc., et al, G.R. No.
160506, June 6, 2011, Del Castillo, J.).

XIV. When may a party fi le a second motion
for reconsideration of a final judgment or RULE 16

________________________________________________________________________________________________
ENTRY OF JUDGEMENT immediately above the corrected or cancelled

word. The writer of the decision or the Chief
Section 1. Entry of judgment. The entry of Justice, as the case may be, shall authenticate the
judgment covering the final decisions and correction by affixing his or her initials and the
resolutions of the Court shall be made in date or correction immediately below the
accordance with the Rules of Court. The date of correction.
entry of judgment shall be the date such decision
or resolution becomes executory, unless the Court Section 2. Report of corrections made. The
directs its immediate execution. Reporter and the MISO Chief shall submit to the
Court, through the Clerk of Court, a quarterly
Section 2. How entry of judgment is made. The report of cases where the decisions and
entry of judgment shall be in the form of a resolutions have been corrected. The Clerk of
certification indicating the date when the final Court shall thereafter include the report in the
decision or resolution of the Court has become Agenda of the Court en banc for confirmation of
executory and entered in the book of judgments. the correction.
The entry shall restate the dispositive portion of
the judgment of final resolution, and be duly RULE 18
signed by the Chief of the Judicial Records Office EFFECTIVITY
as the Deputy Clerk of Court. The Judicial
Records Office shall furnish the parties with a Section 1. Effectivity. These Rules shall take
photocopy of the entry of judgment, which shall be effect fifteen (15) days after publication in a
authenticated by the Chief of the Judicial Records newspaper of general circulation in the
Office in the same manner that decisions and Philippines.
resolutions are authenticated.
Section 3. Time frame for entry of judgment. INSERT PERTINENT PORTIONS OF

Unless the Court requires an immediate entry of JUDICIARY ACT OF 1948.
judgment, the Judicial records Office shall enter
judgment within fifteen days from the expiration of INSERT ALTERNATIVE DISPUTE RESOLUTION
the fifteen-day reglementary period for filling a (RA 9285)
motion for reconsideration.
INSERT REVISED RULES ON SUMMARY
Section 4. Return of case records to lower PROCEDURE
court. The records of every decided case shall be
returned to the court where it originated for INSERT AM No. 03-1-09-SC
execution of judgment on the same day that entry
of judgment is made. Alternative Dispute Resolution; Court
Diversion; Stages (2012)
RULE 17 No.VIII.B. Discuss the three (3) Stages of
CORRECTION OF TYPOGRAPHICAL ERRORS Court Diversion in connection with
IN DECISIONS AND RESOLUTIONS Alternative Dispute Resolution. (5%)
SUGGESTED ANSWER: The three stages of
Section 1. Correction of typographical errors diversion are Court-Annexed Mediation
in decisions and resolutions. Typographical (CAM), Judicial Dispute Resolution, and
errors discovered after the promulgation or even Appeals Court Mediation (ACM). During
after the publication of a decision or signed CAM, the judge refers the parties to the
resolution may be corrected as follows: Philippine Mediation Center (PMC) for the
mediation of their dispute by trained and
(a) The Reporter and the MISO shall, with the accredited mediators. If CAM fails, the
authority of the writer of the decision or resolution, JDR is undertaken by the JDR judge,
make the necessary correction of typographical acting as a mediator-conciliator-early
errors. In per curiam decisions and in unsigned neutral evaluator. The third case is during
resolutions, or when the ponente has retired, appeal, where covered cases are referred
resigned or is no longer in the judicial service, the to ACM. A.M. No. 09-6-8-SC.
authority shall be given by the Chief Justice.
(b) The correction of typographical errors shall be X. Which among the following is not subject
made by crossing out the incorrect word and
to mediation for judicial dispute resolution?
inserting by hand the appropriate correction
(1%) (A) The civil aspect of B.P. Blg. 22 cases.
________________________________________________________________________________________________
(B) The civil aspect of theft penalized under DEC. 25, 2011
Article 308 of the Revised Penal Code. (C) 12:45 AM
The civil aspect of robbery. (D) Cases
cognizable by the Lupong Tagapamayapa
under the Katarungang Pambarangay Law.
(E) None of the above. SUGGESTED
ANSWER: (C), Under A.M. No. 04-1-12-SC-
Philja, all of the above, except for Robbery
is subject to JDR, to wit: This pilot-test
shall apply to the following cases: (1) All
civil cases, settlement of estates, and
cases covered by the Rule on Summary
Procedure, except those which by law may
not be compromised; (2) Cases cognizable
by the Lupong Tagapamayapa and those
cases that may be referred to it by the
judge under Section 408. Chapter VII of
the R.A No. 7160, otherwise known as the
1991 Local Government Code: (3) The civil
aspect of BP 22 cases; (4) The civil aspect
of quasi-offenses under Titl 14 of the
Revised Penal Code; and (5) The civil
aspect of Estafa, Libel, Theft Moreover,
robbery is considered a grave felony
punishable by imprisonment of more than
six-years (Article 294, Par. 5, Revised
Penal Code).
Under A.M. No. 11-1-6-SC-PHILJA dated
January 11, 2001, only the civil aspect of
less grave felonies punishable by
correctional penalties not exceeding six
years imprisonment are required to
undergo Court-Annexed Mediation (CAM)
and be subject of Judicial Dispute
Resolution (JDR) proceedings. Hence, the
civil aspect of robbery is not subject to
mediation or Judicial Dispute Resolution
(JDR).
NOTE: SUBSTANTIALLY COMPLETED ON:
OCTOBER 29, 2011

Saturday 5: PM
JANNYCER M. AUZA
BACHELOR OF LAWS
POB. SAN MIGUEL, BOHOL
# O9091289995
FINISHED:

________________________________________________________________________________________________

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

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

cases where the issues have already been

LAW Remedial Law; Concept (2006)

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

Exception: In an ejectment case where the Bar Exam Question 2012

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 5

Jurisdiction; Subdivision Homeowner (2006)  Acquired either by the seizure of the

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 6

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

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

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

The doctrine does not apply where the DOCTRINE OF ADHERENCE TO

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 9

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

Promulgate rules concerning the

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

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

CLASSIFICATION OF ACTIONS NOTE: The distinction is important in determining

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

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

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

performance would still be considered a real RC NOT APPLICCABLE IN: (C-L-I-N-E)

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 13

GR: Liberal construction.

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 14

EQUITY JURISDICTION Delict or wrongful act Remedial right or right

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

to do whatever is necessary to recover at least MATTER

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 17

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 18

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 19

(c) Under the same premise as paragraph (b)

SPLITTING CAUSE JOINDER OF

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 20

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

The case may be Section 4. Spouses as parties. —

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 22

shall be joined either as plaintiffs or Complaint. (B) suspension of proceedings.

The non- joinder of an indispensable or a

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 23

impracticable to join all as parties, a number

Requisites of a class suit (clue words only)

b. Numerous persons making it impractical to Bar Exam Question 2011

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 24

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 25

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 26

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 27

NOTE: Rule 63, Section 3. Notice on Solicitor General. — Venue of Actions

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 28

It should be viewed or understood in its popular Venue; Personal Actions (1997)

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 29

Bar Exam Question 2011

JANNYCER M. AUZA & GENESIS M. AUZA – Remedial Law Reviewer 30

Section 1. Uniform procedure. — The

Within 10 days from

PROHIBITED PLEADINGS/MOTIONS UNDER

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