UST LAW PRE-WEEK NOTES 2017
QUESTIONS WITH THE SAME TOPIC ASKED IN THE 2015
AND 2016 BAR EXAMINATIONS
JURISDICTION OF COURTS
Lender extended to Borrower a P100,000.00 loan covered
by a promissory note. Later, Borrower obtained another
P100,000.00 loan again covered by a promissory note. Still
later, Borrower obtained a P300,000.00 loan secured by a
real estate mortgage on his land valued at P500,000.00.
Borrower defaulted on his payments when the loans
matured. Despite demand to pay the P500,000.00 loan,
Borrower refused to pay. Lender, applying the totality rule,
filed against Borrower with the Regional Trial Court (RTC)
of Manila, a collection suit for P500,000.00. At the trial,
Borrower's lawyer, while cross-examining Lender,
successfully elicited an admission from the latter that the
two promissory notes have been paid. Thereafter,
Borrower's lawyer filed a motion to dismiss the case on the
ground that as proven, only P300,000.00 was the amount
due to Lender and which claim is within the exclusive
original jurisdiction of the Metropolitan Trial Court. He
further argued that lack of jurisdiction over the subject
matter can be raised at any stage of the proceedings. a.)
Did Lender correctly apply the totality rule and the rule on
joinder of causes of action? b.) Should the court dismiss the
case? (2015 BAR)
a) Yes, Lender correctly applied the totality rule and the rule
on joinder of causes of action. Under the rule on joinder of
causes of action, a party may in one pleading assert as many
causes of action as he may have against an opposing party.
Under the totality rule, where the claims in all the causes of
action are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction. Here, the
causes of action by Lender are all against Borrower and all
the claims are principally for recovery of money. Hence, the
aggregate amount claimed, which is P500,000.00, shall be the
test of jurisdiction and thus, it is the RTC of Manila which has
jurisdiction. Although the rules on joinder of causes of action
state that the joinder shall not include special civil actions,
the remedy resorted to with respect to the third loan was not
foreclosure but collection. Hence, joinder of causes of action
would still be proper.
b) No, the court should not dismiss the case. The Supreme
Court has held that subject-matter jurisdiction is determined
by the amount of the claim alleged in the complaint and not
the amount substantiated during the trial (Dionisio v Sioson
Puerto, 31 October 1974). Here, the amount claimed was
P500,000.00. Even if the claim substantiated during the trial
was only P300,000.00, said amount is not determinative of
subject-matter jurisdiction. Hence, the argument that lack of
subject-matter jurisdiction can be raised at any time is
misplaced since the RTC has jurisdiction.
Juliet, invoking the provisions of the Rule on Violence
Against Women and their Children, filed with the RTC
designated as a Family Court a petition for issuance of a
Temporary Protection Order (TPO) against her husband,
Romeo. The Family Court issued a 30-day TPO against
Romeo. A day before the expiration of the TPO, Juliet filed a
motion for extension. Romeo raised in his opposition,
among others, the constitutionality of R.A. No. 9262 (VAWC
Law) arguing that the law authorizing the issuance of a
TPO violates the equal protection and due process clauses
of the 1987 Constitution. The Family Court judge, in
granting the motion for extension of the TPO, declined to
rule on the constitutionality of R.A. No. 9262. He reasoned
that Family Courts are without jurisdiction to pass upon
constitutional issues as it is a special court of limited
jurisdiction. Moreover, R.A. No. 8369, the law creating the
Family Courts, does not provide for such jurisdiction. Is the
Family Court judge correct when he declined to resolve the
constitutionality of R.A. No. 9262? (2015 BAR)
1
No, the Family Court judge was not correct when he declined
to resolve the constitutionality of R.A. No. 9262.The Supreme
Court has held that despite its designation as a Family Court,
a Regional Trial Court remains to possess authority as a court
of general jurisdiction to resolve the constitutionality of a
statute. (Garcia v. Drilon, June 25, 2013)
State at least five (5) civil cases that fall under the
exclusive original jurisdiction of the Regional Trial Courts
(RTCs). (2016 BAR)
The following civil cases fall under the exclusive original
jurisdiction of the RTCs:
1. Actions where the demand or the value of the property in
controversy exceeds P300,000, or, in Metro Manila, P400,000,
exclusive of damages, attorney’s fees, litigation expenses,
interests, and costs.
2. Real actions where the assessed value of the real property
involved exceeds P20,000, or in Metro Manila, P50,000.
3. Actions whose subject matter is incapable of pecuniary
estimation.
4. Probate cases where the gross value of the estate exceeds
P300,000, or in Metro Manila, P400,000.
5. Actions not falling within the exclusive jurisdiction of any
other court, tribunal, body, or person, exercising judicial or
quasi-judicial functions.
SUMMONS
Circe filed with the RTC a complaint for the foreclosure of
real estate mortgage against siblings Scylla and
Charybdis, co-owners of the property and cosignatories to
the mortgage deed. The siblings permanently reside in
Athens, Greece. Circe tipped off Sheriff Pluto that Scylla is
on a balikbayan trip and is billeted at the Century Plaza
Hotel in Pasay City. Sheriff Pluto went to the hotel and
personally served Scylla the summons, but the latter
refused to receive summons for Charybdis as she was not
authorized to do so. Sheriff Pluto requested Scylla for the
email address and fax number of Charybdis which the
latter readily gave. Sheriff Pluto, in his return of the
summons, stated that "Summons for Scylla was served
personally as shown by her signature on the receiving
copy of the summons. Summons on Charybdis was served
pursuant to the amendment of Rule 14 by facsimile
transmittal of the summons and complaint on defendant's
fax number as evidenced by transmission verification
report automatically generated by the fax machine
indicating that it was received by the fax number to which
it was sent on the date and time indicated therein." Circe,
60 days after her receipt of Sheriff Pluto's return, filed a
Motion to Declare Charybdis in default as the latter did not
file any responsive pleading. On one hand, Scylla
seasonably filed her answer setting forth therein as a
defense that Charybdis had paid the mortgage debt.
a.) Should the court declare Charybdis in default? b.) On
the premise that Charybdis was properly declared in
default, what is the effect of Scylla's answer to the
complaint? (2015 BAR)
a) No, the court should not declare Charybdis in default.
Under the Rules of Court, the amendment of Rule 14 allowing
service of summons by facsimile transmittal refers only to
service of summons upon a foreign private juridical entity
(Section 12, Rule 14), not to a non-resident defendant (Section
15, Rule 14). Service of summons by facsimile cannot be
effected under Section 15 unless leave of court was obtained
specifically permitting service by facsimile transmittal. Here,
the defendant is not a foreign private juridical entity but a
non-resident defendant and no leave of court was obtained to
serve summons by facsimile. Hence, there was no valid
service of summons, and thus, the court could not declare
Charybdis in default.
 REMEDIAL LAW
b) As an effect of Scylla’s answer to the complaint, the court
shall try the case against both Scylla and Charybdis based on
the answer filed by Scylla. Under Section 3(c) of Rule 9, when
a pleading asserting a claim states a common cause of action
against several defending parties, some of whom answer and
the others fail to do so, the court shall try the case against all
upon the answers thus filed and render judgment upon the
evidence presented. Here, there was a common cause of
action against Scylla and Charybdis since both were
cosignatories to the mortgage deed. Hence, the court should
not render judgment by default against Charybdis but should
proceed to try the case upon the answer filed and the
evidence presented by Scylla.
Juan sued Roberto for specific performance. Roberto knew
that Juan was going to file the case so he went out of town
and temporarily stayed in another city to avoid service of
summons. Juan engaged the services of Sheriff Matinik to
serve the summons but when the latter went to the
residence of Roberto, he was told by the caretaker thereof
that his employer no longer resides at the house. The
caretaker is a high school graduate and is the godson of
Roberto. Believing the caretaker's story to be true, Sheriff
Matinik left a copy of the summons and complaint with the
caretaker. Was there a valid substituted service of
summons? Discuss the requirements for a valid service of
summons. (2016 BAR)
Yes, there was a valid service of summons. In a case involving
similar facts, the Supreme Court held that there was a valid
substituted service of summons since the defendant was
engaged in deception to thwart the orderly administration of
justice. Here, the defendant was also engaged in deception
since he temporarily stayed in another city to avoid service of
summons and his caretaker falsely said he no longer resides
in the house. (Sagana v. Francisco, Oct 2, 2009)
The requirements for a valid substituted service of summons
are:
1. The defendant, for justifiable reasons, cannot be
personally served with summons within a reasonable time.
2. Copies of the summons shall be left at the defendant’s
residence with some person of suitable age and discretion
residing therein, or by leaving the copies at defendant’s office
or regular place of business with some competent person in
charge thereof. [Note: The call should be read as referring
only to a valid substituted service of summons; otherwise, the
answer would be kilometric as there are several ways to
serve summons under Rule 14.]
Tristan filed a suit with the RTC of Pasay against Arthur
King and/or Estate of Arthur King for reconveyance of a
lot declared in the name of Arthur King under TCT No.
1234. The complaint alleged that "on account Arthur
King's residence abroad up to the present and the
uncertainty of whether he is still alive or dead, he or his
estate may be served with summons by publication."
Summons was published and nobody filed any responsive
pleading within sixty (60) days therefrom. Upon motion,
defendants were declared in default and judgment was
rendered declaring Tristan as legal owner and ordering
defendants to reconvey said lot to Tristan. Jojo, the court-
designated administrator of Arthur King's estate, filed a
petition for annulment of judgment before the CA praying
that the decision in favor of Tristan be declared null and
void for lack of jurisdiction. He claims that the action filed
by Tristan is an action in personam and that the court did
not acquire jurisdiction over defendants Arthur King
and/or his estate. On the other hand, Tristan claims that
the suit is an action in rem or at least, an action quasi in
rem. Is the RTC judge correct in ordering service of
summons by publication? Explain. (2016 BAR)
Yes, the RTC judge is correct in ordering service of summons
by publication. Under Sect. 15 of Rule 14, extraterritorial
2
service, which includes service by publication, may be availed
of in actions where the subject of which is property within
the Philippines, in which the defendant has or claims a lien or
interest, or in which the relief demanded consists in
excluding the defendant from any interest therein. Here, the
action for reconveyance has for its subject a real property in
the Philippines, in the defendant’s name, and in which the
relief sought is to annul the defendant’s title and vest it in the
plaintiff. While Jojo is correct in saying that the action for
reconveyance is in personam (Republic v. CA, 315 SCRA 600,
606), the test of whether an action is covered by Sec. 15 of
Rule 14 is not its technical characterization as in rem or quasi
in rem but whether it is among those mentioned in said
provision. (See Baltazar v. Court of Appeals, 168 SCRA 354,
363)
MODES OF DISCOVERY
Ernie filed a petition for guardianship over the person and
properties of his father, Ernesto. Upon receipt of the notice
of hearing, Ernesto filed an opposition to the petition.
Ernie, before the hearing of the petition, filed a motion to
order Ernesto to submit himself for mental and physical
examination which the court granted. After Ernie's lawyer
completed the presentation of evidence in support of the
petition and the court's ruling on the formal offer of
evidence, Ernesto's lawyer filed a demurrer to evidence.
Ernie's lawyer objected on the ground that a demurrer to
evidence is not proper in a special proceeding.xxx If
Ernesto defies the court's order directing him to submit to
physical and mental examinations, can the court order his
arrest? (2015 BAR)
No, the court cannot order Ernesto’s arrest. Under Section
3(d) of Rule 29, a court cannot direct the arrest of a party for
disobeying an order to submit to a physical or mental
examination. The court may impose other penalties, such as
rendering judgment by default or issuing an order that the
physical or mental condition of the disobedient party shall be
taken as established in accordance with the claim of the party
obtaining the order.
[a] Briefly explain the procedure on "Interrogatories to
Parties" under Rule 25 and state the effect of failure to
serve written interrogatories. [b] Briefly explain the
procedure on "Admission by Adverse Party" under Rule 26
and the effect of failure to file and serve the request. (2016
BAR)
(a) The procedure on “Interrogatories to Parties” under Rule
25 is briefly explained as follows: (1) A party desiring to elicit
material and relevant facts from an adverse party shall file
and serve upon the latter written interrogatories to be
answered by the latter; (2) The interrogatories shall be
answered fully in writing and shall be signed and sworn to by
the person making them. The interrogatories shall be
answered within 15 days from service thereof. The answers
may be used for the same purposes provided for in Section 4
of Rule 23 on depositions; (3) Objections to any
interrogatories may be made within 10 days after service
thereof. The effect of the failure to serve written
interrogatories is that unless allowed by the court for good
cause shown and to prevent a failure of justice, a party not
served with written interrogatories may not be compelled by
the adverse party to give testimony in open court, or to give a
deposition pending appeal.
(b) The procedure on “Admission by Adverse Party” under
Rule 25 is briefly explained as follows: (1) At any time after
issues have been joined, a party may file and serve upon any
other party a written request for the admission by the latter
of the genuineness of any material and relevant document or
the truth of any material and relevant matter of fact; (2) Each
of the matters of which an admission is requested shall be
deemed admitted unless, within the period designated in the
request, which shall not be less than 15 days after service
thereof, the party to whom the request is directed files and
 UST LAW PRE-WEEK NOTES 2017
serves upon the requesting party a sworn statement either
denying specifically the matters of which an admission is
requested or setting forth in detail why he cannot truthfully
either admit or deny those matter; (3) Objections to any
request for admission shall be submitted to the court within
the period for and prior to the filing of his sworn statement.
The effect of the failure to file and serve request for
admission is that, unless allowed by the court for good cause
shown and to prevent a failure of justice, a party who fails to
file and serve a request for admission on the adverse party of
material and relevant facts at issue which are, or ought to be,
within the personal knowledge of the latter, shall not be
allowed to present evidence on such facts.
[a] What is the "most important witness" rule pursuant to
the 2004 Guidelines of Pre-trial and Use of Deposition-
Discovery Measures? Explain. [b] What is the "one-day
examination of witness" rule pursuant to said 2004
Guidelines? Explain. (2016 BAR)
(a) The “most important witness” rule pursuant to the 2004
Guidelines of Pre-trial and Use of Deposition-Discovery
Measures provides that the judge shall, during the pre-trial
conference, determine the most important witnesses to be
heard and limit the number of witnesses. (b) The “one-day
examination of a witness” rule pursuant to the 2004
Guidelines of Pre-trial and Use of Deposition-Discovery
Measures provides that a witness has to be fully examined in
one day only, subject to the court’s discretion to extend the
direct and/or cross-examination for justifiable reasons.
JUDICIAL AFFIDAVIT RULE
Pedro was charged with theft for stealing Juan's cellphone
worth P10,000.00. Prosecutor Marilag at the pre-trial
submitted the judicial affidavit of Juan attaching the
receipt for the purchase of the cellphone to prove civil
liability. She also submitted the judicial affidavit of Mario,
an eyewitness who narrated therein how Pedro stole
Juan's cellphone. At the trial, Pedro's lawyer objected to
the prosecution's use of judicial affidavits of her witnesses
considering the imposable penalty on the offense with
which his client was charged a.) Is Pedro's lawyer correct
in objecting the use of judicial affidavit of Mario? b.) Is
Pedro's lawyer correct in objecting the use of judicial
affidavit of Juan?
At the conclusion of the prosecution's presentation of
evidence, Prosecutor Marilag orally offered the receipt
attached to Juan's judicial affidavit, which the court
admitted over the objection of Pedro's lawyer. After
Pedro's presentation of his evidence, the court rendered
judgment finding him guilty as charged and holding him
civilly liable for P20,000.00. Pedro's lawyer seasonably
filed a motion for reconsideration of the decision asserting
that the court erred in awarding civil liability on the basis
of Juan's judicial affidavit, a documentary evidence which
Prosecutor Marilag failed to orally offer. c.) Is the motion
for reconsideration meritorious? (2015 BAR)
a) No, Pedro’s lawyer is not correct in objecting the use of
judicial affidavit of Mario. The Judicial Affidavit Rule applies
to criminal actions where the maximum of the imposable
penalty does not exceed six years. Here, the penalty for theft
of property not exceeding P12,000.00 does not exceed 6
years. Hence, the Judicial Affidavit Rule applies.
b) No, Pedro's lawyer is not correct in objecting the use of
judicial affidavit of Juan. The Judicial Affidavit Rule applies
with respect to the civil aspect of the criminal actions,
whatever the penalties involved are. Here, the purpose of
introducing the judicial affidavit of Juan was to prove his civil
liability.
c) No, the motion for reconsideration is not meritorious. A
judicial affidavit is not documentary evidence but a
3
testimonial evidence. It is simply a witness’ testimony
reduced to writing in affidavit form. This is shown by Sec. 6
of the Judicial Affidavit Rule which states that the offer of
testimony in judicial affidavit shall be made at the start of the
presentation of the witness. Hence, the motion for
reconsideration on the ground that Juan’s judicial affidavit
was documentary evidence which was not orally offered is
without merit.
What are the contents of a judicial affidavit? (2016 BAR)
The contents of a judicial affidavit are as follows:
(a) The name, age, residence or business address, and
occupation of the witness;
(b) The name and address of the lawyer who conducts or
supervises the examination of the witness and the place
where the examination is being held;
(c) A statement that the witness is answering the questions
asked of him, fully conscious that he does so under oath, and
that he may face criminal liability for false testimony or
perjury;
(d) Questions asked of the witness and his corresponding
answers, consecutively numbered, that: [1.] show the
circumstances under which the witness acquired the facts
upon which he testifies; [2.] elicit from him those facts which
are relevant to the issues that the case presents;
and [3.] identify the attached documentary and object
evidence and establish their authenticity in accordance with
the Rules of Court;
(e) The signature of the witness over his printed name; and,
(f) A jurat with the signature of the notary public who
administers the oath or an officer who is authorized by law to
administer the same.
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
A law was passed declaring Mt. Karbungko as a protected
area since it was a major watershed. The protected area
covered a portion located in Municipality A of the Province
I and a portion located in the City of Z of Province II.
Maingat is the leader of Samahan ng Tagapag-ingat ng
Karbungko (STK), a people's organization. He learned
that a portion of the mountain located in the City of Z of
Province II was extremely damaged when it was bulldozed
and leveled to the ground, and several trees and plants
were cut down and burned by workers of World Pleasure
Resorts, Inc. (WPRI) for the construction of a hotel and golf
course. Upon inquiry with the project site engineer if they
had a permit for the project, Maingat was shown a copy of
the Environmental Compliance Certificate (ECC) issued by
the DENR-EMB Regional Director (RD-DENR-
EMB).Immediately, Maingat and STK filed a petition for the
issuance of a writ of continuing mandamus against RD-
DENR-EMB and WPRI with the RTC of Province I, a
designated environmental court, as the RD-DENR-EMB
negligently issued the ECC to WPRI. On scrutiny of the
petition, the court determined that the area where the
alleged actionable neglect or omission subject of the
petition took place in the City of Z of Province II, and
therefore, cognizable by the RTC of Province II. Thus, the
court dismissed outright the petition for lack of
jurisdiction. a.) Was the court correct in motu proprio
dismissing the petition? Assuming that the court did not
dismiss the petition, the RD-DENR-EMB, in his Comment,
moved to dismiss the petition on the ground that
petitioners failed to appeal the issuance of the ECC and to
exhaust administrative remedies provided in the DENR
Rules and Regulations. b.) Should the court dismiss the
petition? (2015 BAR)
 REMEDIAL LAW
a) No, the court was not correct in motu proprio dismissing
the petition for lack of jurisdiction. In a case involving similar
facts, the Supreme Court held that the requirement wherein
the petition be filed in the area where the actionable neglect
or omission took place relates to venue and not to subject-
matter jurisdiction. Since what is involved is improper venue
and not subject-matter jurisdiction, it was wrong for the
court to dismiss outright the petition since venue may be
waived. (Dolot v. Paje, August 27, 2013)
b) No, the court should not dismiss the petition. The Supreme
Court has held that in environmental cases, the defense of
failure to exhaust administrative remedies by appealing the
ECC issuance would apply only if the defect in the issuance of
the ECC does not have any causal relation to the
environmental damage. Here, the issuance of the ECC has a
direct causal relation to the environmental damage since it
permitted the bulldozing of a portion of the mountain and the
cutting down and burning of several trees and plants.
(See Paje v. Casiño, February 3, 2015)
Hannibal, Donna, Florence and Joel, concerned residents of
Laguna de Bay, filed a complaint for mandamus against
the Laguna Lake Development Authority, the Department
of Environment and Natural Resources, the Department of
Public Work and Highways, Department of Interior and
Local Government, Department of Agriculture, Department
of Budget, and Philippine National Police before the RTC of
Laguna alleging that the continued neglect of defendants
in performing their duties has resulted in serious
deterioration of the water quality of the lake and
degradation of the marine life in the lake. The plaintiffs
prayed that said government agencies be ordered to clean
up Laguna de Bay and restore its water quality to Class C
waters as prescribed by Presidential Decree No. 1152,
otherwise known as the Philippine Environment Code.
Defendants raised the defense that the cleanup of the lake
is not a ministerial function and they cannot be compelled
by mandamus to perform the same. The RTC of Laguna
rendered a decision declaring that it is the duty of the
agencies to clean up Laguna de Bay and issued a
permanent writ of mandamus ordering said agencies to
perform their duties prescribed by law relating to the
cleanup of Laguna de Bay. [a] Is the RTC correct in issuing
the writ of mandamus? Explain. [b] What is the writ of
continuing mandamus? (2016 BAR)
(a) Yes, the RTC is correct. In MMDA v. Concerned Residents of
Manila Bay, 18 December 2008, the SC held that the cleaning
or rehabilitation of Manila Bay can be compelled by
mandamus. While the term issued by the RTC of Laguna is
a permanent writ of mandamus, this should be considered
only as a semantic error and what the RTC really intended to
issue is a writ of continuing mandamus. There is no such
thing as a permanent writ of mandamus since the writ shall
cease to be effective once the judgment is fully satisfied.
(b) The writ of continuing mandamus is a writ issued by a
court in an environmental case directing any agency or
instrumentality of the government or officer thereof to
perform an act or series of acts decreed by final judgment
which shall remain effective until judgment is fully satisfied.
The officers of "Ang Kapaligiran ay Alagaan, Inc." (AKAI)
availed your services to file an action against ABC Mining
Corporation which is engaged in mining operations in Sta.
Cruz, Marinduque. ABC used highly toxic chemicals in
extracting gold. ABC's toxic mine tailings were accidentally
released from its storage dams and were discharged into
the rivers of said town. The mine tailings found their way
to Calancan Bay and allegedly to the waters of nearby
Romblon and Quezon. The damage to the crops and loss of
earnings were estimated at P1 Billion and the damage to
the environment was estimated at P1 Billion. As lawyer for
the organization, you are requested to explain the
advantages derived from a petition for writ of kalikasan
4
before the Supreme Court over a complaint for damages
before the RTC of Marinduque or vice-versa. What action
will you recommend? Explain. (2016 BAR)
I will recommend the filing of a Petition for the Issuance of a
Writ of Kalikasan. The following are the advantages of such
petition over a civil complaint for damages. Firstly, there will
be no issue regarding the legal standing or legal capacity of
the AKAI to file the action. Section 1, Rule 7 of the Rules of
Procedure for Environmental Cases (RPEC) provides that the
writ of kalikasan is available to a people’s organization, non-
governmental organization, or any public interest group. On
the other hand, the legal capacity of AKAI to file an action for
damages in behalf of its members may be questioned since a
corporation has a personality separate from that of its
members.
Secondly, the petitioner in a petition for writ of kalikasan is
exempt from the payment of docket fees, unlike in a civil
complaint for damages.
Thirdly, in a petition for writ of kalikasan, the petitioners may
avail of the precautionary principle in environmental cases
which provides that when human activities may lead to
threats of serious and irreversible damage to the
environment that is scientifically plausible but uncertain, an
action shall be taken to avoid or diminish the threat. In effect,
the precautionary principle shifts the burden of evidence of
harm away from those likely to suffer harm and onto those
desiring to change the status quo. In a civil complaint for
damages, the burden of proof to show damages is on the
plaintiff.
Finally, the judgment in a petition for writ of kalikasan is
immediately executor, unlike in a civil complaint for
damages.
The advantage of the civil complaint for damages is that the
court may award damages to the petitioners for the injury
suffered which is not the case in a petition for writ of
kalikasan. At any rate, a person who avails of the writ of
kalikasan may also file a separate suit for the recovery of
damages.
VERIFICATION AND CERTIFICATION AGAINST FORUM
SHOPPING
Aldrin entered into a contract to sell with Neil over a
parcel of land. The contract stipulated a P500,000.00
down payment upon signing and the balance payable in
twelve (12) monthly installments of P100,000.00. Aldrin
paid the down payment and had paid three (3) monthly
installments when he found out that Neil had sold the
same property to Yuri for P1.5 million paid in cash. Aldrin
sued Neil for specific performance with damages with the
RTC. Yuri, with leave of court, filed an answer-in-
intervention as he had already obtained a TCT in his name.
After the trial, the court rendered judgment ordering
Aldrin to pay all the instalments due, the cancellation of
Yuri's title, and Neil to execute a deed of sale in favor of
Aldrin. When the judgment became final and executory,
Aldrin paid Neil all the installments but the latter refused
to execute the deed of sale in favor of the former. Aldrin
filed a "Petition for the Issuance of a Writ of Execution"
with proper notice of hearing. The petition alleged, among
others, that the decision had become final and executory
and that he is entitled to the issuance of the writ of
execution as a matter of right. Neil filed a motion to
dismiss the petition on the ground that it lacked the
required certification against forum shopping. Should the
court grant Neil's Motion to Dismiss? (2015 BAR)
No, the court should not grant Neil’s Motion to Dismiss. Under
Section 5 of Rule 7, a certification against forum shopping is
required only for initiatory pleadings or petitions. Here, the
“Petition for the Issuance of a Writ of Execution,” although
 UST LAW PRE-WEEK NOTES 2017
erroneously denominated as a petition, is actually a motion
for issuance of a writ of execution under Rule 39. Hence, the
motion to dismiss on the ground of lack of certification
against forum shopping should be denied.
Tailors Toto, Nelson and Yenyen filed a special civil action
for certiorari under Rule 65 from an adverse decision of
the National Labor Relations Commission (NLRC) on the
complaint for illegal dismissal against Empire Textile
Corporation. The petitoners were terminated on the
ground that they failed to meet the prescribed production
quota at least four (4) times. The NLRC decision was
assailed in a special civil action under Rule 65 before the
Court of Appeals (CA). In the verification and certification
against forum shopping, only Toto signed the verification
and certification, while Atty. Arman signed for Nelson.
Empire filed a motion to dismiss on the ground of defective
verification and certification. Decide with reasons. (2016
BAR)
The motion to dismiss on the ground of defective verification
should be denied. The Supreme Court has held that a lawyer
may verify a pleading in behalf of the client. Moreover,
verification is merely a formal and not a jurisdictional
requirement. The court should not dismiss the case but
merely require the party concerned to rectify the defect.
The motion to dismiss on the ground of defective certification
against forum-shopping should likewise be denied. Under
reasonable or justifiable circumstances, when all the plaintiffs
or petitioners share a common interest and invoke a common
cause of action or defense, the signature of only one of them
in the certification against forum shopping substantially
complies with the Rule. (Jacinto v. Gumaru, June 2,
2014). Here, the petitioners have a common interest and
invoke a common cause of action, that is, their illegal
dismissal by Empire Textile Corporation for failure to meet
production quotas.
JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT
Plaintiff sued defendant for collection of P1 million based
on the latter's promissory note. The complaint alleges,
among others: 1) Defendant borrowed P1 million from
plaintiff as evidenced by a duly executed promissory note;
2) The promissory note reads:
"Makati, Philippines
Dec. 30, 2014
For value received from plaintiff, defendant promises to pay
plaintiff P1 million, twelve (12) months from the above
indicated
date without necessity of demand.
Signed
Defendant"
A copy of the promissory note is attached as Annex "A."
Defendant, in his verified answer, alleged among others:
1) Defendant specifically denies the allegation in
paragraphs 1 and 2 of the complaint, the truth being
defendant did not execute any promissory note in favor of
plaintif; or, 2) Defendant has paid the P1 million claimed
in the promissory note (Annex "A" of the Complaint) as
evidenced by an "Acknowledgment Receipt" duly executed
by plaintiff on January 30, 2015 in Manila with his spouse
signing as witness. A copy of the "Acknowledgment
Receipt" is attached as Annex "1" hereof. The plaintiff filed
a motion for judgment on the pleadings on the ground that
the defendant's answer failed to tender an issue as the
allegations on his defenses are sham for being
inconsistent; hence, no defense at all. Defendant filed an
opposition claiming his answer tendered an issue. a.) Is
judgment on the pleadings proper?
5
Defendant filed a motion for summary judgment on the
ground that there are no triable genuine issues of facts. b.)
Should the court grant defendant's motion for summary
judgment? (2015 BAR)
a) No, judgment on the pleadings is not proper. Under
Section 2 of Rule 8, a party may set forth two or more
statements of a defense, alternatively or hypothetically. The
Supreme Court has held that inconsistent defenses may be
pleaded alternatively or hypothetically provided that each
defense is consistent with itself. (Baclayon v. Court of Appeals,
February 26, 1990) Hence, plaintiff’s contention that
defendant’s answer failed to tender an issue as his defenses
are sham for being inconsistent is without merit.
b) Yes, the court should grant defendant’s motion for
summary judgment. Under Section 2 of Rule 35, a defendant
may at any time, move with supporting admissions for a
summary judgment in his favor. Here, the plaintiff had
impliedly admitted the genuineness and due execution of the
acknowledgment receipt, which was the basis of defendant’s
defense, by failing to specifically deny it under oath. Hence,
the defendant may move for a summary judgment on the
basis that the plaintiff had admitted that the defendant had
already paid his obligation amounting to P1 Million.
Royal Bank (Royal) filed a complaint for a sum of money
against Ervin and Jude (defendants) before the RTC of
Manila. The initiatory pleading averred that on February
14, 2010, Ervin obtained a loan from Royal in the amount
of P1 Million, as evidenced by Promissory Note No. 007
(PN) signed by Ervin. Jude signed a Surety Agreement
binding herself as surety for the loan. Royal made a final
demand on February 14, 2015 for the defendants to pay,
but to no avail. Royal prayed that defendants Ervin and
Jude be ordered to pay the amount of P1 Million plus
interests. In their answer, Ervin admitted that he obtained
the loan from Royal and signed the PN. Jude also admitted
that she signed the Surety Agreement. Defendants pointed
out that the PN did not provide the due date for payment,
and that the loan has not yet matured as the maturity date
was left blank to be agreed upon by the parties at a later
date. The defendants filed a Motion for a Judgment on the
Pleadings on the ground that there is no genuine issue
presented by the parties' submissions. Royal opposed the
motion on the ground that the PN's maturity is an issue
that must be threshed out during trial. (a) Resolve the
motion with reasons. (b) Distinguish "Summary Judgment"
and "Judgment on the Pleadings." (2016 BAR)
(a) The Motion for Judgment on the Pleadings should be
denied. Under the Rules of Civil Procedure, a motion for
judgment on the pleadings may be filed only by the plaintiff
or the claimant. Here, it was the defendants, not the plaintiff
Royal Bank, which filed a motion for judgment on the
pleadings. Hence, the motion should be denied.
(b) A summary judgment is distinguished from a judgment on
the pleadings as follows:
1. A summary judgment is proper even if there is a remaining
issue as to the amount of damages, while a judgment on the
pleadings is proper if it appears that there is no genuine issue
between the parties.
2. A summary judgment is based not only on the pleadings
but also upon affidavits, depositions, and admissions showing
that, except as to the amount of damages, there is no genuine
issue, while a judgment on the pleadings is based exclusively
upon the pleadings without the presentation of any evidence.
3. A motion for summary judgment requires 10-day
notice (Sec. 3, Rule 35), while a motion for judgment on the
pleadings is subject to a 3-day notice rule (Sec. 4, Rule 15).
4. A summary judgment may be prayed for by a defending
party (Sec. 2, Rule 35), while a judgment on the pleadings may
be prayed for only by a plaintiff or claimant.
 REMEDIAL LAW

GENERAL PRINCIPLES

Substantive Law vs. Remedial Law

Substantive Law Remedial Law

Part of the law which creates, defines or regulates rights
concerning life, liberty or property (Primicias v. Ocampo, 81 Phil
650) or the powers of agencies or instrumentalities for the
administration of public affairs, which when violated gives rise to
a cause of action (Bustos v. Lucero, 81 Phil 640).
Creates vested rights
Generally prospective in application
Prescribes the methods of enforcing those rights and obligations
created by substantive law (Bustos v. Lucero, 81 Phil 640) by
providing a procedural system for obtaining redress for the
invasion of rights and creation of duties, and by laying out rules as
to how suits are filed, tried, and decided upon by courts (Riano,
2014).
Does not create vested rights
GR: May be applied retroactively

NOTE: A person has no vested right in any particular remedy, and

a litigant cannot insist on the application to the trial of his case,
other than the existing rules of procedure (Tan Jr. v. CA, G.R. No.
136368, January 16, 2002).

XPNs:
1. The statute itself expressly or by necessary implication
provides that pending actions are excepted from its
operation;
2. If it would impair vested rights;
3. Under appropriate circumstances, courts may deny the
retroactive application of procedural laws in the event that to
do so would not be feasible or would work injustice;
4. If to do so would involve intricate problems of due process or
impair the independence of the courts (Tan Jr. v. CA, G.R. No.
136368, January 16, 2002).
Enacted by Congress The SC is expressly empowered to promulgate procedural rules.

NOTE: If the rule creates a right such as the right to appeal, it

may be classified as substantive law; but if it operates as a
means of implementing an existing right, then the rule deals
merely with procedure (Fabian v. Desierto, G.R. No. 129742,
September 16, 1998).
Rule-Making Power of the Supreme Court
The Supreme Court has the sole prerogative to amend, repeal,
or even establish new rules for a more simplified an
inexpensive process, and the speedy disposition of cases.
(Neypes vs. CA, G.R. No. 141524, September 14, 2005)
Limitations of the Rule-Making Power
The Rules shall –
1. provide a simplified and inexpensive procedure for the
speedy disposition of cases;
2. be uniform for the courts of the same grade; and,
3. not diminish, increase, or modify substantive rights. (Sec.
5(5), Art. VIII, 1987 Constitution)
Doctrine of Non-Interference or Doctrine of Judicial
Stability
No court can interfere by injunction with the judgments or
orders of another court of concurrent jurisdiction having the
power to grant the relief sought by the injunction (Atty. Cabili
v. Judge Balindog, A.M. No. RTJ-10-2225, September 6, 2011).
The doctrine does not apply where a third party claimant is
involved (Santos v. Bayhon, G.R. No. 88643, July 23, 1991).
The rationale for the rule is founded on the concept of
jurisdiction – a court that acquires jurisdiction over the case
and renders judgment therein has jurisdiction over its
judgment, to the exclusion of all other courts, for its execution
and over all its incidents, and to control, in furtherance of
justice, the conduct of ministerial officers acting in connection
with this judgment (De Leon v. Hon. Salvador, et al., 146 Phil.
1051).
Principle of Judicial Hierarchy

Courts of Law vs. Courts of Equity
Courts of Law Courts of Equity
Any tribunal duly Any tribunal administering
administering the laws of the justice outside the law, being
land ethical rather than jural and
belonging to the sphere of
morals rather than of law. It
is grounded on the precepts
of conscience and not on any
sanction of positive law, for
equity finds no room for
application where there is
law (Herrera, 2007).
Decides a case according to Adjudicates a controversy
the promulgated law according to the common
precepts of what is right and
just without inquiring into
the terms of the statutes
The principle provides that lower courts shall initially decide
a case before it is considered by a higher court. A higher court
will not entertain direct resort to it unless the redress desired
cannot be obtained in the appropriate courts (Santiago v.
Vasquez, G.R. Nos. 99289-90, January 27, 1993).
JURISDICTION
Does the filing of pleadings seeking affirmative reliefs
constitute voluntary appearance?
YES. Seeking affirmative relief constitutes voluntary
appearance, and the consequent submission of one’s person
to the jurisdiction of the court. However, pleadings whose
prayer is precisely for the avoidance of the jurisdiction of the
court only leads to a special appearance. These pleadings are:
1. In civil cases, motions to dismiss on the ground of lack of
jurisdiction over the person of the defendant, whether or
not other grounds for dismissal are included;

6
 UST LAW PRE-WEEK NOTES 2017
2. In criminal cases, motions to quash a complaint on the
ground of lack of jurisdiction over the person of the
accused; and,
3. Motion to quash a warrant of arrest.
The first two are consequences of the fact that failure to file
them would constitute a waiver of the defense of lack of
jurisdiction over the person. The third is a consequence of the
fact that it is the very legality of the court process forcing the
submission of the person of the accused that is the very issue.
(Miranda v. Tuliao, G.R. No. 158763, March 31, 2006).
Can jurisdiction over subject matter be waived?
No, it cannot be waived (Sec. 1, Rule 9), except in exceptional
cases when the other party is barred by estoppel by laches
(Tijam v. Sibonghanoy, G.R. No. L-21450, April 15, 1968).
In jurisdiction over the subject matter, is tenancy
relationship presumed?
Tenancy relationship is not presumed and it is not enough
that it is alleged. There must be evidence to prove that it
exists and that all its elements are established (Salmorin v.
Zaldivar, G.R. No. 169691, July 23, 2008).
When does an error of judgment not render a judgment
void or at least, voidable?
When the party raising the issue is barred by estoppel. (BPI
vs. ALS Management & Development Corporation, G.R. No.
151821, April 14, 2004)
Doctrine of Primary Jurisdiction
Courts will not resolve a controversy involving a question
which is within the jurisdiction of an administrative tribunal,
especially where the question demands the exercise of sound
administrative discretion requiring the special knowledge
and experience of said tribunal in determining technical and
intricate matters of fact (Villaflor v. CA, G.R. No. 95694, October
9, 1997).
Doctrine of Ancillary Jurisdiction
It involves the inherent or implied powers of the court to
determine issues incidental to the exercise of its primary
jurisdiction.
NOTE: Under its ancillary jurisdiction, a court may determine
all questions relative to the matters brought before it,
regulate the manner in which a trial shall be conducted,
determine the hours at which the witnesses and lawyers may
be heard, and grant an injunction, attachment or
garnishment.
Doctrine of Adherence of Jurisdiction or Continuity of
Jurisdiction
Under this doctrine, once jurisdiction has attached, it cannot
be ousted by subsequent happenings or events, although of a
character which would have prevented jurisdiction from
attaching in the first instance. The court, once jurisdiction has
been acquired, retains that jurisdiction, until it finally
disposes of the case (Padlan vs. Dinglasan, G.R. No. 180321,
March 20, 2013). Even the finality of the judgment does not
totally deprive the court of jurisdiction over the case. What
the court loses is the power to amend, modify, or alter the
judgment. Even after the judgment has become final, the
court retains the jurisdiction to enforce and execute it.
(Republic vs. Atlas Farms, G.R. No. 141975, November 20, 2000)
Exceptions to the rule that objections to jurisdiction over
the subject matter may be raised at any stage of the
proceedings and even for the first time on appeal
7
1. Estoppel by laches. SC barred a belated objection to
jurisdiction that was raised only after an adverse
decision was rendered by the court against the party
raising the issue of jurisdiction and after seeking
affirmative relief from the court and after participating
in all stages of the proceedings (Tijam v. Sibonghanoy,
G.R. No. L-21450, April 15, 1968).
2. Public policy. One cannot question the jurisdiction which
he invoked, not because the decision is valid and
conclusive as an adjudication, but because it cannot be
tolerated by reason of public policy (Filipinas Shell
Petroleum Corp. v. Dumlao, G.R. No. L-44888, February 7,
1992).
3. A party who invokes the jurisdiction of the court to
secure affirmative relief against his opponents cannot
repudiate or question the same after failing to obtain
such relief (Tajonera v. Lamaroza, G.R. Nos. L-48907 &
49035, January 19, 1982).
Under the Omnibus Motion Rule, a motion attacking a
pleading like a motion to dismiss shall include all grounds
then available and all objections not so included shall be
deemed waived (Sec. 8, Rule 15). Even in the absence of lack
of jurisdiction raised in a motion to dismiss, a party may,
when he files an answer, still raise the lack of jurisdiction as
an affirmative defense because such defense is not barred
under the Omnibus Motion Rule.
Effect of estoppel on objections to jurisdiction
The Doctrine in Tijam v. Sibonghanoy on estoppel by
laches is NOT the general rule. The ruling in Tijam that a
party is estopped from questioning the jurisdiction applies
only to exceptional circumstances. What is still controlling is
that jurisdiction over the subject matter of the action is a
matter of law and may not be conferred by consent or
agreement of the parties (Calimlim v. Ramirez, G.R. No. L-
34362, November 19, 1982).
How is jurisdiction over the res acquired?
It is acquired either by:
1. The seizure of the property under legal process;
2. As a result of the institution of legal proceedings, in
which the power of the court is recognized and made
effective (Banco Español Filipino v. Palanca, 37 Phil. 291);
3. The court by placing the property of thing under
its custody (custodia legis). Example: attachment of
property; and,
4. The court through statutory authority conferring upon it
the power to deal with the property or thing within the
court’s territorial jurisdiction. Example: Suits involving
the status of the parties or suits involving the property in
the Philippines of non-resident defendants (Riano, 2011).
When is the Totality or Aggregate Rule not applicable?
The totality rule is not applicable if the claims are separate
and distinct from each other and did not arise from the same
transaction. In the case Flores v. Mallare Philips, G.R. No. L-
66620, September 24, 1986, the SC did not apply the totality
test where there are two claims filed by Flores - the first
cause of action was against Ignacio Binongcal and the second
was against Fernando Calion for allegedly refusing to pay an
amount representing cost of truck tires.
When is a claim for damages determinative of the
jurisdictional amount?
If the main action is for the recovery of sum of money and the
damages being claimed are merely the consequences of the
main cause of action, the same are not included in
determining the jurisdictional amount.
 REMEDIAL LAW
However, in cases where the claim for damages is the main
cause of action, or one of the causes of action, the amount of
such claim shall be considered in determining the jurisdiction
of the court (Albano, 2010).
How are appeals from judgments and final orders of quasi-
judicial agencies made?
Appeals from judgments and final orders of quasi-judicial
agencies are now required to be brought to the Court of
Appeals on a verified petition for review, under the
requirements and conditions in Rule 43 which was precisely
formulated and adopted to provide for a uniform rule of
appellate procedure for quasi-judicial agencies.
Where are appeals involving orders arising from
administrative disciplinary cases and criminal cases
originating from the Office of the Ombudsman filed?
1. Administrative cases- before the CA under Rule 43
2. Criminal cases- before the SC under Rule 65
Section 27 of RA 6770 cannot validly authorize an appeal to
the SC from decisions of the Office of the Ombudsman in
administrative disciplinary cases. It consequently violates the
proscription in Sec. 30, Art. VI of the Constitution against a
law which increases the appellate jurisdiction of the SC
(Fabian vs. Desierto, G.R. No. 129742, September 16, 1998).
That the decisions or findings of the Ombudsman are
appealable only to the Supreme Court (Sec. 14(2) R.A. 6770)
was already declared unconstitutional (Conchita Carpio
Morales v. Court of Appeals, G.R. No. 217126-27, November 10,
2015).
CIVIL PROCEDURE
Ordinary civil action
It is one in which a party sues another for the enforcement or
protection of a right or the prevention or redress of a wrong
(Sec. 3(a), Rule 1). It is governed by ordinary rules (Bouvier’s
Law Dictionary, 8th ed.; Words and Phrases, Vol. 2).
Special civil action
It is one in which a party sues another for the enforcement or
protection of a right or the prevention or redress of a wrong
wherein it has special features not found in ordinary civil
actions. It is governed by ordinary rules but subject to
specific rules prescribed under Rules 62-71. (Riano, 2011).
Criminal action
It is one by which the state prosecutes a person for an act or
omission punishable by law (Sec. 3(b), Rule 1).
What are the consequences of the independent character
of actions under Articles 32, 33, 34 and 2176 of the Civil
Code?
a. The right to bring the foregoing actions based on the
Civil Code need not be reserved in the criminal
prosecution, since they are not deemed included
therein.
b. The institution or the waiver of the right to file a
separate civil action arising from the crime charged
does not extinguish the right to bring an independent
civil action.
c. Even if a civil action is filed separately, the ex-delicto
civil liability in the criminal prosecution remains
(Riano, 2011).
8
The "independent" character of these civil actions does not do
away with the reservation requirement. In other words, prior
reservation is a condition sine qua non before any of these
independent civil actions can be instituted (San Ildefonso
Lines, Inc. v. CA, G.R. No. 119771, April 24, 1998) Otherwise,
they will be deemed to have been instituted with the criminal
case (Hambon v. CA, G.R. No. 122150, March 17, 2003).
Can there be a right of action where there is no cause of
action?
The rule is “there is no right of action where there is no cause
of action”.
Cause of Action
It is the act or omission by which a party violates a right of
another (Sec. 2, Rule 2) (1999 Bar).
The question as to whether a plaintiff has a cause of action is
determined by the averments in the pleadings pertaining to
the acts of the defendant. Whether such acts give him a right
of action is determined by substantive law (Herrera, 2007).
NOTE: The test in determining the identity of causes of action
is whether the same evidence would support and establish
both the present and former cause of action (Goodland
Company, Inc., v. Asia United Bank, G.R. No. 191388, March 9,
2011).
Splitting of cause of action
It is the act of instituting two or more suits on the basis of the
same cause of action (Sec. 4, Rule 2). It is the act of dividing a
single or indivisible cause of action into several parts or
claims and bringing several actions thereon (Riano, 2014).
The practice of splitting a cause of action is discouraged
because it breeds multiplicity of suits, clogs the court dockets,
leads to vexatious litigation, operates as an instrument of
harassment, and generates unnecessary expenses to the
parties. It applies not only to complaints but also to
counterclaims and cross-claims (Riano, 2014). (1999, 2005
Bar)
Effect of splitting a cause of action
The filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others (Sec. 4,
Rule 2).
Remedy against splitting of cause of action
File a motion to dismiss, on the ground of litis pendentia or on
the ground of res judicata.
Requisites of joinder of causes of action
1. The party shall comply with the rules on joinder of
parties (Sec. 6, Rule 3);
a. Right to relief arises out of the same transaction or
series of transaction
b. There is common question of law or fact
2. The joinder shall not include special civil actions
governed by special rules;
3. Where the causes of action are between the same parties
but pertain to different venues or jurisdictions, the
joinder may be allowed in the RTC provided one of the
causes of action falls within the jurisdiction of said court
and venue lies therein; and
 UST LAW PRE-WEEK NOTES 2017
4. Where claims in all causes of action are principally for
recovery of money, the aggregate amount claimed shall
be the test for jurisdiction (Sec. 5, Rule 2).
Is joinder of causes of action compulsory?
A joinder of causes of action is only permissive, not
compulsory; hence, a party may desire to file a single suit for
each of his claims (Riano, 2014).
Misjoinder of causes of action
There is a misjoinder when two or more causes of action
were joined in one complaint when they should not be so
joined. This is not a ground for dismissal of an action. A
misjoined cause of action may, on motion of a party, or on the
initiative of the court, be severed and proceeded with
separately (Sec. 6, Rule 2).
PARTIES TO CIVIL ACTIONS
Real party-in-interest
To be a real party-in-interest, the interest must be ‘real,’
which is a present substantial interest as distinguished from a
mere expectancy or a future, contingent subordinate or
consequential interest (Rayo v. Metrobank, G.R. No. 165142,
December 10, 2007). It is an interest that is material and
direct, as distinguished from a mere incidental interest in the
question (Samaniego v. Aguila, G.R. No. 125567, June 27, 2000).
Do resident marine mammals have the legal standing to
sue?
The need to give the resident marine mammals legal standing
has been eliminated by our Rules, which allow any Filipino
citizen, as steward of nature, to bring a suit to enforce
environmental laws. It is worth noting here that the stewards
are joined as real parties in the petition and not just in
representation of the named cetacean species. The stewards
Ramos and Eisma-Osorio, having shown in their petition that
there may be possible violations of laws concerning the
habitat of the resident marine mammals, are therefore
declared to possess the legal standing to file this petition
(Resident Marine Mammals of the Protected Seascape Tanon
Strait v. Secretary Angelo Reyes, G.R. No. 180771, April 21,
2015).
Compulsory joinder of parties
The joinder of parties becomes compulsory when the one
involved is an indispensable party. Clearly, the rule directs a
compulsory joinder of indispensable parties (Riano, 2014).
(2009 Bar)
Requisites for permissive joinder of parties?
1. Right to relief arises out of the same transaction or series
of transactions (connected with the same subject matter
of the suit);
2. There is a question of law or fact common to all the
plaintiffs or defendants (2002 Bar).
Is there a valid judgment if indispensable parties are not
joined?
No valid judgment if they are not joined. The absence of an
indispensable party renders all subsequent actions of the
court null and void for want of authority to act, not only as to
the absent parties but even as to those present (Riano, 2014).
The joinder of all indispensable parties under any and all
conditions, their presence being a sine qua non of the exercise
9
of judicial power (Marcelino Florete, Jr., et al. vs. Rogelio
Florete, et al, G.R. No. 174909, January 20, 2016).
Effect of non-joinder of a necessary party
1. The court may order the inclusion of the omitted
necessary party if jurisdiction over his person may be
obtained;
2. The failure to comply with the order for his inclusion,
without justifiable cause, shall be deemed a waiver of the
claim against such party;
3. The non-inclusion of a necessary party does not prevent
the court from proceeding in the action, and the
judgment rendered therein shall be without prejudice to
the rights of such necessary party.
Is the non-joinder of an indispensable or a necessary party
a ground for the dismissal of the action?
No, it is not ipso facto a ground for the dismissal of the action.
The court should order the joinder of such party and non-
compliance with the said order would be a ground for the
dismissal of the action (Feria & Noche, 2013).
Requisites of a class suit
1. Subject matter of the controversy is one of common or
general interest to many persons;
2. Parties affected are so numerous that it is impracticable
to bring them all before the court;
3. Parties bringing the class suit are sufficiently numerous
or representative of the class and can fully protect the
interests of all concerned;
4. Representatives sue or defend for the benefit of all (Sec.
12, Rule 3; Sulo ng Bayan v. Araneta, G.R. No. L-31061,
August 17, 1976; Oposa v. Factoran, G.R. No. 101083, July
30, 1993) (2005 Bar)
Remedy if the class suit is not proper
The remedy of the parties is either to bring suit individually
or join them all as parties under the rule on permissive
joinder of parties.
Effect of the death of a party upon a pending action
1. Purely personal action – the death of either of the parties
extinguishes the claim and the action is dismissed.
2. Action that is not purely personal – claim is not
extinguished and the party should be substituted by his
heirs, executor or administrator. In case of minor heirs,
the court may appoint a guardian ad litem for them.
3. Action for recovery of money arising from contract and the
defendant dies before entry of final judgment – it shall not
be dismissed but shall instead be allowed to continue
until entry of judgment. A favorable judgment obtained
by the plaintiff shall be enforced in the manner provided
in the rules for prosecuting claims against the estate of a
deceased person (Sec. 20, Rule 3). (1999 Bar)
Is there a need to summon the substitute defendant?
No, he need not be summoned. The order of substitution shall
be served upon the parties substituted for the court to
acquire jurisdiction over the substitute party (Riano, 2014). If
there is notice of death, the court should await the
appointment of legal representative; otherwise, subsequent
proceedings are void. However, formal substitution of the
heirs in place of the deceased is no longer necessary if the
heirs continued to appear and participated in the proceedings
of the case (Cardenas vs. Heirs of the Late Spouses Aguilar, G.R.
No. 191079, March 2, 2016).
---
 REMEDIAL LAW
Under OCA Circular No. 42-2005 and Rule 141 of the Rules
of Court, indigent litigants are exempted from the payment
of legal fees. Because of the aforementioned rule, Good
Shepherd Foundation avails of said exemption on the
ground that it is an association who works with and for
the indigents since 1985. Can the Court grant to the
Foundation who works for indigent and underprivileged
people the same option granted to indigent people?
NO. The clear intent and precise language of the Sec. 21, Rule
3, Rules of Court, and Sec. 19, Rule 141, Rules of Court
indicate that only a natural party litigant may be regarded as
an indigent litigant. The Good Shepherd Foundation, Inc.,
being a corporation vested by the State with a juridical
personality separate and distinct from that of its members, is
a juridical person. Among others, it has the power to acquire
and possess property of all kinds as well as incur obligations
and bring civil or criminal actions, in conformity with the
laws and regulations of their organization. As a juridical
person, therefore, it cannot be accorded the exemption from
legal and filing fees granted to indigent litigants. (Re: Query of
Mr. Roger C. Prioreschi Re Exemption from Legal and Filing
Fees of the Good Shepherd Foundation, Inc., AM. No. 09-6-9-SC,
August 19, 2009, Bersamin, J.)
VENUE
If the non-resident defendant does not reside but is found
in the Philippines, where is the venue of the action filed
against him?
1. Personal actions – the venue is where the plaintiff or any
of the principal plaintiffs resides, or where the non-
resident defendant may be found, at the election of the
plaintiff. (Riano, 2014, citing Sec. 2, Rule 4, Rules of Court).
2. Real actions – shall be commenced and tried in the proper
court which has jurisdiction over the area wherein the
real property involved, or a portion thereof, is situated.
(Id. citing Sec. 1, Rule 4, Rules of Court).
Venue of action if the non-resident defendant does not
reside and is not found in the Philippines
1. If the action affects the personal status of the plaintiff –
the action may be commenced and tried in the court of
the place where the plaintiff resides.
2. If it involves any property of the non-resident defendant –
the action may be commenced and tried where the
property or any portion thereof is situated (Sec. 3, Rule
4).
Effect of a stipulation on venue agreed upon by parties
The mere stipulation on the venue of an action is not enough
to preclude parties from bringing the case in other venue. In
the absence of restrictive words, the stipulation should be
deemed as merely an agreement on an additional forum, not
as limiting venue. While they are considered valid and
enforceable, venue stipulations in a contract do not, as a rule,
supersede the general rule set forth in Rule 4 in the absence
of qualifying or restrictive words. If the language is
restrictive, the suit may be filed only in the place agreed upon
by the parties (Spouses Lantin v. Lantion, G.R. No. 160053,
August 28, 2006).
---
BPI Family Bank (BPI) filed with the RTC of Makati an
action to recover deficiency against the real estate
mortgagors after the extrajudicial foreclosure sale had
resulted in deficiency. The subject realty mortgage was
located in Manila while BPI has its main office in Makati.
The mortgagors filed a motion to dismiss on the grounds
of failure to state a cause of action and res judicata.
However, the RTC denied the motion. Consequently,
10
the mortgagors filed a motion for reconsideration wherein
they reiterated the previous grounds and added the
ground of improper venue, contending that the action for
deficiency was a real action which should have been filed
in Manila. Said motion for reconsideration was denied. The
mortgagors went up to the Court of Appeals (CA) via
petition for certiorari. The CA granted the same and
ordered the dismissal of the action on the ground of
improper venue as the case is a real action that should
have been filed in Manila. Was the CA’s decision correct?
NO. First, an action for recovery of deficiency after
extrajudicial foreclosure of a real estate mortgage is a
personal action since it does not affect the title to or
possession of real property or any interest therein. Hence, the
action was properly brought in Makati where the mortgagee
has its main office. Second, assuming arguendo that there was
improper venue, the ground was waived by the mortgagors
since they did not timely raise it in their motion to dismiss.
Here, the ground for improper venue was raised belatedly in
the motion for reconsideration, not in the motion to dismiss.
Hence, the objection is waived in pursuant to Section, 1, Rule
9 (BPI Family Bank v. Yujuico, July 22, 2015, Bersamin J.)
---
PLEADINGS
Plaintiff sued defendant corporation for non- payment of
hospital equipment delivered to it. The allegations in the
complaint stated that the defendant’s total obligation as of
February 15, 2009 was P123,901,650 but was reduced to
P54,654,195.54 as it already paid 67,357,683.23 to the
plaintiff. The defendant, in its answer, denied said
allegations for lack of knowledge or information sufficient
to form a belief as to the truth or falsity thereof, inasmuch
as the alleged transaction were undertaken during the
term of the office of the past officers of defendant
corporation, subject to its special and affirmative defenses.
Moreover, he raised the special and affirmative defenses of
lack of personal jurisdiction, improper venue, lis pendens,
and forum shopping. Was the manner of denial effective as
a specific denial?
NO. Considering that the allegations in the complaint
contained matters that the defendant ought to know or could
have easily known, the answer did not specifically deny such
material averments. It is settled that denials based on lack of
knowledge or information on matters clearly known to the
pleader, or ought to be known by him, or could have been
easily known by him are insufficient, and constitute
ineffective or sham denials. The fact that the defendant
qualified its admissions and denials by subjecting them to its
special and affirmative defenses of lack of jurisdiction over its
person, improper venue, litis pendentia and forum shopping
was of no moment because these affirmative defenses, by
their nature, involved matters extrinsic to the merits of the
plaintiff’s claim and thus, did not negate the material
averments of the complaint. (Fernando Medical Enterprises v.
Wesleyan University Philippines, 20 January 2016, Bersamin J.)
---
Compulsory Counterclaim vs. Permissive Counterclaim
Compulsory Counterclaim Permissive Counterclaim
One which arises out of or is It does not arise out of nor is
necessarily connected with it necessarily connected
the transaction or with the subject matter of
occurrence that is the the opposing party’s claim.
subject matter of the
opposing party’s claim
(Sec.7, Rule 6)
Barred if not set up in the Not barred even if not set up
action (Sec. 2, Rule 9) in the action
 UST LAW PRE-WEEK NOTES 2017
Need not be answered; No It must be answered,
default otherwise, the party may be
declared in default
Not an initiatory pleading. Initiatory pleading.
The court has jurisdiction Must be within the
to entertain both as to the jurisdiction of the court
amount and nature (Sec. 7, where the case is pending
Rule 6; Ibid.). and cognizable by regular
courts of justice, otherwise,
defendant will have to file
it in separate proceeding
which requires payment of
docket fee.
Test in determining whether a counterclaim is compulsory
1. Issues of fact and law - Are the issues of fact and law
raised by the claim and by the counterclaim largely the
same?
2. Res judicata - Would res judicata bar a subsequent suit
on defendants’ claims, absent the compulsory
counterclaim rule?
3. Evidence - Will substantially the same evidence support
or refute plaintiffs’ claim as well as the defendants’
counterclaim? and
4. Logical relation - Is there any logical relation between
the claim and the counterclaim?
A positive answer to all four questions would indicate that
the counterclaim is compulsory. (Alba, Jr. vs. Malapajo, et al,
G.R. No. 198752, January 13, 2016)
Effects of the dismissal of the complaint
1. If no motion to dismiss has been filed, any of the grounds
for dismissal under Rule 16 may be pleaded as an
affirmative defense in the answer, and in the discretion
of the court, a preliminary hearing may be had thereon
as if a motion to dismiss has been filed (Sec. 6, Rule 16).
After hearing, when the complaint is dismissed, the
counterclaim, whether compulsory or permissive, is not
dismissed.
2. When the plaintiff himself files a motion to dismiss his
complaint after the defendant has pleaded his answer with
a counterclaim. If the court grants the motion, the
dismissal shall be limited to the complaint. It shall be
without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless
within 15 days from notice of the motion, manifests his
preference to have his counterclaim resolved in the same
action (Sec. 2, Rule 17).
3. When the complaint is dismissed through the fault of the
plaintiff and at a time when a counterclaim has already
been set up, the dismissal is without prejudice to the
right of the defendant to prosecute his counterclaim in
the same or separate action (Sec. 3, Rule 17; Riano, 2014).
---
Pilipinas Shell (Shell) filed a petition for extrajudicial
foreclosure against petitioners, who are the mortgagors in
the case. After the foreclosure sale, Shell filed an action for
deficiency against the petitioners in the RTC of Manila. The
petitioners, in the meantime, commenced an action to
annul the extrajudicial foreclosure sale with the RTC of
Makati. The RTC of Manila ruled in favor of Shell and said
judgment became final and executory. Subsequently, the
RTC of Makati ruled in favor of the petitioners and
annulled the said sale as no auction sale was actually
conducted. May the judgment of the RTC of Makati be set
aside and if so, on what ground?
The RTC of Makati should have been earlier disallowed to
proceed on the ground of litis pendentia, or, once the decision
in the Manila case became final, should have been dismissed
11
on the ground of res judicata. In the Manila case, the
petitioners filed a compulsory counterclaim asserting that the
extrajudicial foreclosure of mortgage had been devoid of
basis in fact and in law; and that the foreclosure and the filing
of action had been made in bad faith, and in wanton violation
of his rights. His pleading thereby showed that the cause of
action he later pleaded in the Makati case, (ie., annulment of
foreclosure sale) was identical to the compulsory
counterclaim he had set up in the RTC of Manila (Mendiola v.
Court of Appeals, July 18, 2012, Bersamin J.)
---
Third-party complaint vs. Rules on bringing in new parties
Third-party complaint Rules on bringing in new
parties
It is proper when not one If one or more of the
of the third-party defendants in a
defendants therein is a counterclaim or cross-
party to the main action claim is already a party to
(Riano, 2011). the action, then the other
necessary parties may be
brought in under the rules
on bringing in new
parties.
When should a third party complaint be admitted?
The soundness of admitting a third-party complaint hinges
on causal connection between the claim of the plaintiff in
his complaint and a claim for contribution, indemnity or
other relief of the defendant against the third- party
defendant. (Paramount Life and General Insurance Corp vs.
Castro, et al., G.R. No. 195728, April 19, 2016)
---
Paras was a passenger of a bus operated by Inland. The
Inland bus was bumped by Philtranco bus negligently
driven by its employee. Paras suffered injuries and
incurred substantial hospitalization and medical
expenses. As a result, Paras filed with the RTC a complaint
against Inland based on contract of carriage. Inland, with
leave of court, filed a third-party complaint against
Philtranco based on quasi-delict. The RTC rendered a
judgment absolving Inland from the liability and finding
that the collision was due to the negligence of the
Philtranco driver and ordering Philtranco to pay damages
to Paras. On appeal, Philtranco challenged the decision
contending that it cannot be held liable directly to Paras
since Paras' suit is against Inland and is based on culpa
contractual while Inland’s the third party complaint
against it is based on quasi-delict. Moreover, Philtranco
argues that since it was merely subrogated to Inland,
there should first be a finding of Inland's liability to Paras
before Philtranco can be held liable. Is Philtranco's
argument correct?
NO. Under Section 11, Rule 3, a third-party complaint is a
claim that a defending party may, with leave of court, file
against a person not a party to the action for contribution,
indemnity, subrogation or any other relief, in respect of his
opponent’s claim. Under this rule, a person not a party to the
action may be impleaded by the defendant either (a) on an
allegation of liability to the latter; b) direct liability to the
plaintiff, or (c) both (a) and (b). The first situation is covered
by the phrase "for contribution indemnity or subrogation"
while the second and third are subsumed under the catch-all
"or any other relief in respect of his opponent's claim." It is
worth adding that allowing the recovery of damages by Paras
based on quasi-delict despite his complaint being upon
contractual breach served the judicial policy of avoiding
multiplicity of suits and circuity of actions by disposing of the
 REMEDIAL LAW

entire subject matter in a single litigation. (Philtranco Service If denied -Petition for certiorari
Enterprises v. Paras, April 25, 2012, Bersamin, J.) under Rule 65

What happens once a party files a Motion for Intervention,

and the same was denied but he did not appeal such
denial? Remedies from an order of default

Such party has no standing to appeal the court’s decision. A After judgment before 1. New Trial (Rule 37)
prospective intervenor’s right to appeal applies only to the judgment becomes 2. Appeal (Rule 40 or 41)
denial of his intervention. Not being a party to the case, a final and executory Grounds:
person whose intervention the court denied has no standing
1. Failure of the plaintiff to
to question the decision of the court, but only the trial court's
orders denying his intervention, not the decision itself. prove the material allegations
(Republic vs. Heirs of Diego Lim, et al., G.R. No. 195611, April of the complaint;
18, 2016).
2. Decision is contrary to law;
Forum Shopping 3. The amount of judgment is
excessive or different in kind
It is an act of a party against whom an adverse judgment has
from that prayed for (Otero v.
been rendered in one forum of seeking and possibly getting a
favorable opinion in another forum, other than by appeal or Tan, G.R. No. 200134, August 15,
the special civil action of certiorari (Sps. Carpio v. Rural Bank 2012).
of Sto. Tomas Batangas, G.R. No. 153171, May 4, 2006). (2006
After judgment has 1. Petition for Relief from
Bar)
become final and judgment (Rule 38).
executory 2. Annulment of Judgment (Rule
Elements:
47)
1. Identity of the parties or, at least, of the parties who
represent the same interest in both actions; Defendant has been He may avail of the special civil
2. Identity of the rights asserted and relief prayed for, as wrongly or action of certiorari under Rule 65.
the latter is founded on the same set of facts; and improvidently
3. Identity of the two preceding particulars such that any declared in default
judgment rendered in the other action will amount to res
judicata in the action under consideration or will
constitute litis pendentia. (Commissioner of Customs, et
al. vs. PSCP, et al., G.R. No. 205002, April 20, 2016)

Consequence of forum shopping

If the forum shopping is not considered willful and deliberate,
the subsequent case shall be dismissed without prejudice on
the ground of either litis pendentia or res judicata. However, if
the forum shopping is willful and deliberate, both (or all, if
there are more than two) actions shall be dismissed with
prejudice (Chua v. Metropolitan Bank & Trust Co., G.R. No.
182311, August 19, 2009).
Effect of an order of default for failure to file an answer
1. The party declared in default loses his standing in court
and prevents him from taking part in the trial (Sec. 3(a),
Rule 9);
2. While the defendant can no longer take part in the trial,
he is nevertheless entitled to notices of subsequent
proceedings (Sec. 3(a), Rule 9). It is submitted that he
may participate in the trial, not as a party but as a
witness; and
3. A declaration of default is not an admission of the truth
or the validity of the plaintiff’s claims (Monarch
Insurance v. CA, G.R. No. 92735, June 8, 2000).
Remedies from an order of default
Remedies from an order of default
After notice of order Motion under oath to set aside the
and before judgment order of default on the grounds of
FAME and he has meritorious
defense
If denied – he may move for
reconsideration; Grounds: FAME
When is an amendment a matter of right?
Amendment is considered as a matter of right at any time
before a responsive pleading is served or, in the case of a
reply, at any time within 10 days after it is served (Sec. 2, Rule
10).It is settled that a motion to dismiss is not the responsive
pleading contemplated by the Rule. A plaintiff may file an
amended complaint even after the original complaint was
ordered dismissed, provided that the order of dismissal is not
yet final (Riano, 2014, citing Bautista v. Maya-Maya Cottages,
Inc., G.R. No. 148411, November 29, 2005).
When are amendments required to be with leave of court?
1. If the amendment is substantial (Sec. 3, Rule 10);
2. A responsive pleading had already been served (Siasoco
v. CA, G.R. No. 132753, February 15, 1999).
Instances when an amendment may be made to conform to
or authorize presentation of evidence
1. When issues not raised by the pleadings are tried with
the express or implied consent of the parties;
NOTE: Failure to amend does not affect the result of the
trial of said issue.
2. Amendment may also be made to authorize presentation
of evidence if evidence is objected to at the trial on the
ground that it is not within the issues made by the
pleadings, if the presentation of the merits of the action
and the ends of substantial justice will be subserved
thereby (Sec. 5, Rule 10).
Amended Pleading vs. Supplemental Pleading
Amended Pleading Supplemental Pleading

12
 UST LAW PRE-WEEK NOTES 2017
Refers to the facts existing Refers to facts occurring
at the time of filing of after the filing of the
original pleading original pleading
Supersedes the original Merely supplements the
original pleading
May be amended without Always with leave of court
leave of court before a
responsive pleading is
filed.
When does a specific denial require an oath?
1. A denial of an actionable document except when the
adverse party is not a party to the document or when
compliance with an order for an inspection of the
original document is refused. (Sec. 8, Rule 8) (2000 Bar)
(Riano, 2014);
2. A denial of allegations of usury in a complaint to recover
usurious interest (Sec. 11, Rule 8).
---
FILING AND SERVICE OF PLEADINGS. JUDGMENTS AND
OTHER PAPERS
Fortune Life filed its petition for money claim in the COA,
however, on November 15, 2012, the latter denied said
petition. The petitioner received a copy of the COA decision
on December 14, 2012, and filed its motion for
reconsideration on January 14, 2013, believing that fresh
period rule applies because its Rule 64 petition is akin to a
petition for review brought under Rule 42. However, the
COA denied the motion, the denial being received by the
petitioner on July 14, 2014. Hence, the petitioner filed the
petition for certiorari carrying only the affidavit of service
executed by one Pascua, Jr., who declared that he had
served copies of the petition by registered mail. Did the
petitioner comply with the rule on proof of service?
NO. The petition for certiorari only carried the affidavit of
service executed by one Pascua, Jr., who declared that he had
served copies of the petition by registered mail with
registered receipts attached. The petition only bore, however,
the cut print-outs of what appeared to be the registry receipt
numbers of the registered matters, not the registry receipts
themselves. Section 13, Rule 13 of the Rules of Court requires
to be appended the registry receipts, not their reproductions.
Hence, the cut print-outs did not substantially comply with
the rule. (Fortune Life Insurance Company, Inc. vs. Commission
on Audit (COA) Proper, GR No. 213525, January 27, 2015,
Bersamin, J.)
SUMMONS
What is considered a reasonable time?
To the plaintiff, reasonable time means no more than seven
(7) days since an expeditious processing of a complaint is
what a plaintiff wants. To the sheriff, reasonable time means
15 to 30 days because at the end of the month, it is a practice
for the branch clerk of court to require the sheriff to submit a
return of the summons assigned to the sheriff for service. The
Sheriffs Return provides data to the Clerk of Court, which the
clerk uses in the Monthly Report of Cases to be submitted to
the Office of the Court Administrator within the first ten (10)
days of the succeeding month. Thus, one month from the
issuance of summons can be considered reasonable time with
regard to personal service on the defendant.
Alias Summons
Summons issued by the court when the original summons
cannot be served or when wrongfully served.
Purposes of summons
13
1. Actions in personam
a. To acquire jurisdiction over the person of the
defendant; and
b. To give notice to the defendant that an action has
been commenced against him (Umandap v. Sabio, Jr.,
G.R. No. 140244, August 29, 2000).
2. Actions in rem and quasi in rem – not to acquire
jurisdiction over the defendant but mainly to satisfy the
constitutional requirement of due process (Gomez v. CA,
G.R. No. 127692, March 10, 2004).
Requirements of substituted service of summons
1. The party relying on substituted service or the sheriff
must show that defendant cannot be served promptly or
there is impossibility of prompt service;
2. The sheriff must describe in the Return of Summons the
facts and circumstances surrounding the attempted
personal service;
3. If the substituted service will be effected at defendant’s
house or residence, it should be left with a person of
“suitable age and discretion residing therein” and must
have the “relation of confidence” to the defendant;
4. If the substituted service will be done at defendant’s
office or regular place of business, then it should be
served on a competent person in charge of the place
(Manotoc v. CA, G.R. No. 130974, August 16, 2006).
What is the implication of a defendant’s voluntary
appearance in relation to summons?
The defendant’s voluntary appearance shall be equivalent to
service of summons and the consequent submission of one’s
person to the jurisdiction of the court (Sec. 20, Rule 14).
Voluntary appearance cures the defect in the service of
summons. (Guy vs. Atty. Gacott, G.R. No. 206147, Jnuary 13,
2016)
Personal service of summons proper
It is proper only if the suit is one strictly in personam.
Requisites of extra-territorial service of summons (2009
Bar)
1. The defendant is a non-resident;
2. He is not found in the Philippines; and,
3. The action against him is either in rem or quasi in rem.
If the action is in personam, this mode of service will not be
available. There is no extraterritorial service of summons in
an action in personam. Hence, extraterritorial service upon a
non-resident in an action for injunction which is in personam
is not proper (Kawasaki Port Service Corp. vs. Amores, G.R. No.
58340, July 16, 1991); (Banco Do Brasil vs. CA, G.R. No. 121576-
78, June 16, 2000).
How is summons served upon prisoners and minors?
Service shall be effected upon him by the officer having the
management of such jail or institution who is deemed
deputized as a special sheriff for said purpose (Sec. 9, Rule
14).
Service shall be made upon him personally and on his legal
guardian if he has one, or if none, upon his guardian ad litem
whose appointment shall be applied for by the plaintiff. In the
case of a minor, service may also be made on his father or
mother (Sec. 10, Rule 14).
---
 REMEDIAL LAW

Co filed a libel case against Abante Tonite including its
editors and reporters. The sheriff went to the office of
Abante Tonite in the morning but was informed by the
secretary that the editors were always out and
unavailable and that the reporters were always roving
outside and gathering news. Consequently, the sheriff went
to said office in the afternoon but was again informed by
the secretary with the same reason. Because of said
instance, he left a copy of the summons and complaint with
the secretary. Was there a valid substituted service of
summons?
It is made to the court in behalf of one or the other of the
parties to the action, in the absence and usually without
knowledge of the other party or parties. (Riano, 2014).
NOTE: They are usually permissible in procedural matters
and also in situations and under circumstances of emergency;
and an exception to a rule requiring notice is sometimes
made where notice of the resulting delay might tend to defeat
the objective of the motion (Sarmiento v. Zaratan, G.R No.
167471, February 5, 2007). An example is a motion to set the
case for a pre-trial.

YES. If, for justifiable reasons, the defendant cannot be served
in person within a reasonable time, substituted service of
summons may be effected. Given the circumstance that the
defendants were always out of office, it was clear that
personal service could not be made within a reasonable time.
Substituted service was, thus, justified. (Macasaet v. Co, June
5, 2013, Bersamin J.)
MOTION
Pro-forma motion
It is that which does not comply with the rules on motion and
is considered as one filed merely to delay the proceedings
(Marikina Development Corp., v. Flojo, G.R. No. 110801,
December 8, 1995). Such motion, if filed, is not entitled to
judicial cognizance, and does not stop the running of the
period for filing the requisite pleading (Cruz v. CA, G.R. No.
123340, August 29, 2002).

Contents of a motion MOTION TO DISMISS

1. The relief sought to be obtained; Who shall file a motion to dismiss?

2. The ground upon which it is based; and,
3. If required by the Rules or necessary to prove facts
alleged therein, shall be accompanied by supporting
affidavits and other papers (Sec. 3, Rule 15).
Notice of hearing
A seasonable service of a copy of the motion on the adverse
party with a notice of hearing indicating the time and place of
hearing is a mandatory requirement that cannot be dispensed
with. A motion that does not contain a notice of hearing is a
mere scrap of paper and presents no question which merits
the attention and consideration of the court. It is not even a
motion for it does not comply with the rules, and, hence, even
the clerk has no right to receive it. (Mendez vs. Shari’a District
Court, G.R. No. 201614, January 12, 2016).It is intended to
prevent surprise and to afford the adverse party a chance to
be heard before the motion is resolved by the court. (Ibid.)
Omnibus Motion Rule
All available grounds for objection then available in attacking
a pleading, order, judgment, or proceeding should be invoked,
otherwise, they shall be deemed waived (Sec. 8, Rule 15)
except when the grounds include:
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia;
3. Res judicata; and
4. Prescription (Sec. 1, Rule 9)
A motion must be filed by a party thereto except:
1. Those cases where the court may dismiss a case motu
proprio (i.e. lack of jurisdiction over the subject matter;
litis pendentia; res judicata; and prescription) (Sec. 1,
Rule 9);
2. Failure to prosecute for an unreasonable length of time
(Sec. 3, Rule 17); and
3. Rule on Summary Procedure (Sec. 4, 1991, Revised Rule
on Summary Procedure).
Requisites of Res Judicata
1. The former judgment must be final;
2. The court which rendered it has jurisdiction over the
subject matter and the parties;
3. It is a judgment must be on the merits; and,
4. There is, between the first and second actins, an identity
of parties, subject matter and causes of action.
Res Judicata as a ground for dismissal
It is based on two grounds, namely: (1) public policy and
necessity, which makes it to the interest of the State that
there should be an end to litigation – republicae ut sit litium;
and (2) the hardship on the individual of being vexed twice
for the same cause – neme debet bis vexari et eadem causa
(Fels, Inc. v. Prov. of Batangas, G.R. No. 168557, February 19,
2007).

Litigated motion Motion to Dismiss vs. Demurrer to Evidence in Civil Cases

It is a motion which affects the substantial rights of the Rule 16 (Motion to Rule 33 (Demurrer to
parties and is one made with notice to the adverse party to Dismiss) Evidence in Civil Cases)
give an opportunity to oppose before a ruling on the motion Grounded on Based on insufficiency of
is made by the court. A hearing is required (Sec. 4, Rule 15). preliminary objections evidence
Examples are motion to dismiss; a motion for judgment on May be filed by any May be filed only by the
the pleadings and a summary judgment. defending party against defendant against the
whom a claim is complaint of the plaintiff
Ex-parte motion asserted in the action
Should be filed within May be filed only after the
It is one which does not require that the parties be heard and the time for but prior to plaintiff has completed
which the court may act upon without prejudging the rights the filing of the answer the presentation of his
of the other party. This kind of motion is not covered by the of the defending party evidence (Riano, 2014).
hearing requirement of the Rules (Riano, 2014, citing Sec. 4, to the pleading
Rule 15; Republic v. Diaz-Enriquez, G.R. No. 181458, March 20, asserting the claim
2013).

14
 UST LAW PRE-WEEK NOTES 2017

If denied, defendant If denied, defendant may trial is subject to the sound discretion of a judge. Unless and
answers, or else he may present evidence. until a clear and manifest abuse of discretion is committed by
be declared in default. the judge, his appreciation of a party’s reasons for his
Denial is not appealable nonappearance will not be disturbed (Clodualda D. Daaco V.
If granted, plaintiff may because the order is Valeriana Rosaldo YuG.R. No. 183398 June 22, 2015).
appeal or if subsequent interlocutory (Riano,
case is not barred, he 2014). Effect of failure to file a pre-trial brief
may re-file the case. It
depends on the ground If granted, but on appeal It shall have the same effect as failure to appear at the pre-
if it is with or without the order of dismissal is trial (A.M. No. 03-1-09-SC, July 13, 2004). Hence, if it is the
prejudice (Rule 41, Sec reversed, the defendant plaintiff who fails to file a pre-trial brief, such failure shall be
1). loses his right to present a cause for dismissal of the action. If it is the defendant who
evidence (Riano, 2014). fails to do so, such failure shall be a cause to allow the
plaintiff to present his evidence ex parte.
DISMISSAL OF ACTIONS
The dismissal of the complaint for failure to file pre-trial brief
Two – Dismissal Rule is discretionary on the part of the trial court (Ramos v.
Spouses Lavendia, G.R. No. 176706, October 8, 2008).
It applies when the plaintiff has:
1. Twice dismissed the actions by filing a second notice of Pre-trial in civil case vs. Pre-trial in criminal case
dismissal;
2. Based on or including the same claim; and Pre-trial in civil case Pre-trial in criminal case
3. In a court of competent jurisdiction (Riano, 2014). It is set when the plaintiff It is ordered by the court and
moves ex parte to set the no motion to set the case for
The second notice of dismissal will bar the re-filing of the case for pre-trial (Sec. 1, Rule pre-trial is required from
action because it will operate as an adjudication of the claim 18). either the prosecution or the
upon the merits. defense (Sec. 1, Rule 118).

PRE-TRIAL The motion to set the case The pre-trial is ordered by

for pre-trial is made after the the court after arraignment
Nature of a Pre-trial last pleading has been served and within 30 days from the
and filed (Ibid.) date the court acquires
It is mandatory. (Sec. 2, Rule 18). jurisdiction over the person
of the accused (Ibid.).
Effect of non-compliance with service of notice of pre-trial It considers the possibility of It does not include the
an amicable settlement as an possibility of amicable
If no notice of pre-trial is served, all the proceedings at the important objective (Sec settlement of criminal
pre-trial are null and void. Hence, the absence of the requisite 2(a), Rule 18). liability as one of its
notice of pre-trial to the defendant’s counsel, or to the purposes (Ibid.).
defendant himself, in case he has no counsel, nullifies the Requires the proceeding All agreements or admissions
order allowing the plaintiff to present his evidence ex parte during the preliminary made or entered during the
(Sec. 3, Rule 18.). conference to be recorded in pre-trial conference shall be
the minutes of preliminary reduced in writing and
Effect of failure to appear during pre-trial conference to be signed by signed by both the accused
both parties and/or counsel. and counsel, otherwise, they
Plaintiff’s failure to appear during the pre-trial shall be a The rule allows either the cannot be used against the
cause for dismissal of the action, with prejudice, unless party or his counsel to sign accused (Sec. 2, Rule 118).
otherwise ordered by the court. On the other hand, the minutes (A.M. No. 03-1-
Defendant’s non-attendance during the pre-trial shall be a 09-SC).
cause to allow the plaintiff to present evidence ex parte and Sanctions for non- The sanctions in a criminal
the court to render judgment on the basis thereof (Sec. 5, Rule appearance in a pre-trial are case are imposed upon the
18). imposed upon the plaintiff counsel for the accused or
and the defendant in a civil the prosecutor (Sec. 3, Rule
The legal ramification of defendant's failure to appear for pre- case (Sec. 4, Rule 18). 118).
trial is still detrimental to him while beneficial to the plaintiff. It is specifically required to It is not specifically required
The plaintiff is given the privilege to present his evidence be submitted in a civil case in a criminal case.
without objection from the defendant, the likelihood being (Sec. 6, Rule 18).
that the court will decide in favor of the plaintiff, the
defendant having forfeited the opportunity to rebut or INTERVENTION
present its own evidence. (Metropolitan Bank and Trust
Company vs. Fadcor, Inc., et al., G.R. No. 197970, January 25, It is a legal proceeding by which a third person is permitted
2016) by the court to become a party by intervening in a pending
action after meeting the conditions and requirement set by
The plaintiff can appeal from the order of dismissal. the Rules of Court. This person who intervenes is one who is
Accordingly, it is only when the order of dismissal is without not originally impleaded in the action (First Philippine
prejudice that the remedy is to re-file the complaint (Sec. 1(g), Holdings Corp. v. Sandiganbayan, G.R. No. 88345, February 1,
Rule 41). 1996).

The defendant may move for the reconsideration of the order
and if the denial is tainted with grave abuse of discretion, he
may file a petition for certiorari under Rule 65 (Riano, 2014).
In certain instances, however, the non-appearance of a party
may be excused if a valid cause is shown. What constitutes a
valid ground to excuse litigants and their counsels at the pre-
The motion to intervene may be filed any time before
rendition of judgment by the trial court. A copy of the
pleading-in-intervention shall be attached to the motion and
served on the original parties (Sec. 2, Rule 19).
Is intervention an independent proceeding? (2000 Bar)

15
 REMEDIAL LAW

It is not an independent proceeding but is ancillary and How is a subpoena quashed?

supplemental to an existing litigation (Saw v. CA, G.R. No.
90580, April 8, 1991). Its purpose is to enable a stranger to an
action to become a party to protect his interest (Santiago
Land Development Corporation v. CA, G.R. No. 106194, August
7, 1997).
Denial of a motion to intervene does not constitute res
judicata. The remedy of the intervenor is to file a separate
action.
Can an intervention alter the nature of action?
An intervention cannot alter the nature of the action, and the
issues are already joined (Castro v. David, G.R. No. L-8508,
November 29, 1956; (2011 Bar).
---
May a lawyer intervene in a case in order to protect his
rights under a contingent fee agreement?
YES. The lawyer has right to protect his interests pursuant to
Section 26, Rule 38 (Malvar v. Kraft Foods Phils. Inc., 9
September 2013, Bersamin J.) In this case, a client, entering
into a compromise with the adverse party, filed a motion to
withdraw its case and terminated the services of the law firm.
SUBPOENA
Subpoena duces tecum
A process directed to a person requiring him to bring with
him any books, documents, or other things under his control.
(Sec. 1, Rule 21)
Subpoena duces tecum: Upon motion promptly made and, in
any event, at or before the time specified therein:
1. If it is unreasonable and oppressive;
2. The relevancy of the books, documents or things does not
appear;
3. If the person in whose behalf the subpoena is issued fails to
advance the reasonable cost of the production thereof; (Sec. 4,
Rule 21) or,
4. That the witness fees and kilometrage allowed by the Rules
were not tendered when the subpoena was served.
Subpoena ad testificandum:
1. That the witness is not bound thereby; or
2. That the witness fees and kilometrage allowed by the
Rules were not tendered when the subpoena was served.
(Sec. 4, Rule 21)
MODES OF DISCOVERY
Purpose of the modes of discovery
The modes of discovery are designed to serve as an additional
device aside from a pre-trial, to narrow and clarify the basic
issues between the parties, to ascertain the facts relative to
the issues, and to enable the parties to obtain the fullest
possible knowledge of the issues and facts before civil trials
and thus prevent the said trials to be carried on in the dark. It
is intended to make certain that all issues necessary to the
disposition of a case are properly raised (Tinio v. Manzano,
G.R. No. 132102, May 19, 1999). As contemplated by the Rules,
the device may be used by all the parties to the case.

Subpoena ad testificandum What are the limitations?

It is a process directed to a person requiring him to attend 1. Those matters which are privileged;
and to testify at the hearing or trial of an action or at any 2. Those under protection order;
investigation conducted by competent authority or for the 3. The modes of discovery must not be conducted in bad
taking of his deposition. (Sec. 1, Rule 21) faith.

Deposition Pending By leave of court after jurisdiction has been obtained over any defendant or over property which is
Action the subject of the action, or without such leave after an answer has been served, the testimony of any
(Rule 23)/ Deposition person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral
de benne esse examination or written interrogatories. (2010 Bar)

Note: The attendance of witnesses may be compelled by the use of subpoena.

Depositions before Aperson who desires to perpetuate his own testimony or that of another person regarding any matter
action or pending that may be cognizable in any court of the Philippines, may file a verified petition in the court of the
appeal place of the residence of any expected adverse party. If the court finds that the perpetuation of the
(Rule 24)/Deposition in testimony is proper to avoid a failure or delay of justice, it may make an order allowing the
perpetuam rei depositions to be taken (Sec. 7, Rule 24).
memoriam

Written Under the same conditions specified in Sec. 1, Rule 23, any party desiring to elicit material and relevant
interrogatories to facts from any adverse parties shall file and serve upon the latter written interrogatories to be
adverse parties answered by the party served or, if the party served is a public or private corporation or a partnership
(Rule 25) or association, by any officer thereof competent to testify in its behalf.

16
 UST LAW PRE-WEEK NOTES 2017

Admission by adverse At any time after issues have been joined, a party may file and serve upon any other party a written
party request for the admission by the latter of the genuineness of any material and relevant document or of
(Rule 26) the truth of any material and relevant matter of fact.

NOTES:

There is an implied admission unless, within a period designated in the request, which shall not be
less than 15 days after service thereof, or within such further time as the court may allow on motion,
the party to whom the request is directed has not files and serves upon the party requesting the
admission a sworn statement either denying specifically the matters of which an admission is
requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those
matters (Sec. 2, Rule 26).

The court may allow the party making the admission to withdraw or amend the admission upon such
terms as may be just (Sec. 4, Rule 26).

Any admission made by a party pursuant to such request is for the purpose of the pending action only
and shall not constitute an admission by him for any other purpose nor may the same be used against
him in any other proceeding (Sec. 3, Rule 26).

Production or Upon motion of any party showing good cause therefor, the court in which an action is pending may
inspection of order any party to produce and permit the inspection and copying of any designated documents or
documents or things order any party to permit entry upon designated land or other property in his possession or control
(Rule 27) for the purpose of inspecting or photographing the property or any designated relevant object or
operation thereon. (2002, 2009 Bar).

Physical and mental In an action in which the mental or physical condition of a party is in controversy, the court in which
examination of the action is pending may in its discretion order him to submit to a physical or mental examination by
persons. a physician.(2005 Bar)
(Rule 28)

17
 REMEDIAL LAW

Are the modes of discovery cumulative?

YES, they are cumulative. They are neither alternative nor Production or Inspection of Documents or Things vs.
mutually exclusive. Subpoena Duces Tecum

Do the rules apply to special proceedings? Production or Inspection Subpoena Duces Tecum
of Documents or Things
YES, Rules of Discovery also apply to special proceedings Essentially a mode of Means of compelling
(Sec. 2 Rule 72). (2008 Bar) discovery production of evidence
Effect of substitution of parties? Limited to the parties to the It may be directed to any
action. person whether a party or
It does not affect the right to use depositions previously not.
taken; and when an action has been dismissed and another Issued only upon motion Issued upon an ex parte
action involving the same subject is afterward brought with notice to the adverse application.
between the same parties or their representatives or party.
successors-in-interest, all depositions lawfully taken and duly
filed in the former action may be used in the latter as if
In production or inspections of documents or things, can
originally taken therefor (Sec. 5, Rule 23).
the articles be distrained? Can the person who produced
the same be deprived of its possession?
How are objections to evidence treated under this rule?
This mode of discovery does not authorize the opposing party
A deposition officer has no authority to rule on the objection.
or the clerk of court or other functionaries of the court to
Evidence objected to shall be taken subject to the objection,
distrain the articles or deprive the person who produced the
which will be ruled upon by the court when the deposition is
same of their possession, even temporarily (Tanda v. Aldaya,
offered in evidence (Feria & Noche, 2013).
G.R. No. L-13423, November 23, 1959).
Purpose of interrogatories to parties
Limitations on the request for production or inspection of
documents or things
The framers of the new court rules intended that the rules
should provide ample facilities for discovery of facts before
1. Should not be privileged;
trial so that surprise at the trial and possible miscarriage of
2. Should constitute or contain evidence material to any
justice might be avoided. A purpose of this rule was to obtain
matter involved in the action and which are in his (the
admissions and thus limit subjects of controversy at trial and
party ordered) possession, custody, or control (Sec. 1,
avoid unnecessary testimony and waste of time in
Rule 27);
preparation (Feria & Noche, 2013).
3. In the petition, the papers and documents to be
produced must be sufficiently described.
Can the answers in the interrogatories be treated as
judicial admissions?
---
YES, the answers may now be used as judicial admissions of
Petitioners filed a complaint against respondents Abra
the adverse party (Ibid.).
Valley Colleges, Inc. (Abra Valley) and its officers for
inspection of corporate books and records. Respondents
Depositions Upon Written Interrogatories to Parties (Sec.
filed an answer raising the affirmative defense that
25, Rule 23) vs. Interrogatories to Parties (Rule 25)
petitioners are not stockholders-of-record of Abra Valley.
Petitioners filed a motion for production/inspection of
Depositions Upon Interrogatories documents to compel the respondents to produce the
Written to Parties (Rule stock-and-transfer book (STB), but the RTC denied the
Interrogatories to 25) same on the ground that STB may be examined only by a
Parties (Sec. 25, Rule stockholder-of-record. Was the denial proper?
23)
Deponent Party or ordinary Party only NO, the rules of discovery, including Section 2, Rule 27, are to
witness be accorded with broad and liberal interpretation. The RTC
Procedure With intervention of No intervention should have favorably acted on the petitioner’s motion for
the officer authorized production/inspection of documents in order to enable the
by the court to take Served directly petitioners to obtain the fullest possible knowledge of the
deposition upon the adverse issues and facts to be determined in the case and thereby
party (Sec. 1, Rule prevent the trial from being carried on in the dark. Doing so
Not served upon the 25). would not have caused any prejudice to the respondents,
adverse party directly after all, even the petitioners had not filed the motion for
They are instead production/inspection of documents, the respondents would
delivered to the officer themselves also be expected to produce the STB in court in
before whom the order to substantiate their affirmative defense that the
deposition is to be petitioners were not stockholders-of-record. Verily, the fact
taken (Sec. 26, Rule 23). that there was no entry or record in the STB showing that the
Scope Direct, cross, redirect, Only one set of petitioners be stockholders of Abra Valley is not a valid
re-cross examination interrogatories justification for the respondents not to produce the same.
Interrogato- No fixed time 15 days to answer Otherwise, the disputable presumption under Section 3(e)
ries unless extended Rule 131 that “evidence willfully suppressed would be
or reduced by the adverse if produced” could arise against them. (Insigne v.
court Abra Valley Colleges, Inc., 29 July 2015, Bersamin J.)
Binding Binding to anyone who Binding only to
Effect is present during the the parties.
deposition.

18
 UST LAW PRE-WEEK NOTES 2017

PHYSICAL AND MENTAL

EXAMINATION OF PERSONS
Effect if the party examined requests and obtains a report
on the results of the examination
1. He has to furnish the other party a copy of the report of
any previous or subsequent examination of the same
physical and mental condition (Sec. 3, Rule 28);
2. He waives any privilege he may have in that action or
any other involving the same controversy regarding the
testimony of every other person who has so examined or
may thereafter examine him (Sec. 4, Rule 28).
Consequences of refusal to comply with modes of discovery
NOTE: The remedy of the party, in this case, is to file a motion
to be relieved of the consequences of the implied admission.
The amendment of the complaint per se cannot set aside the
legal effects of the request for admission since its materiality
has not been affected by the amendment.
TRIAL
It is a judicial process of investigating and determining the
legal controversies starting with the production of evidence
by the plaintiff and ending with his closing arguments. Should
there be no amicable settlement or a compromise forged
between the parties, the case will be set for trial. (Riano,
2011)

Refusal to answer any question Requisites of motion to postpone trial

upon oral examination
FOR ABSENCE OF EVIDENCE
1. Order to compel an answer;
2. Contempt; 1. A motion for postponement must be filed;
3. Require payment of reasonable fees incurred by the 2. The motion must be supported by an affidavit or sworn
proponent; certification showing:
4. Designated facts shall be taken to be established for the a. The evidence is material or relevant; and
purposes of the action in accordance with the claim of b. That due diligence has been used to procure it.
the party obtaining the order. (Sec. 3, Rule 30)
5. Dismiss the action or the proceeding;
6. Render a judgment by default against the disobedient NOTE: If the adverse party admits the facts sought to be given
party; in evidence, the trial shall not be postponed even if he objects
7. Refuse to allow the disobedient party to support or or reserves the right to their admissibility.
oppose claims or defenses;
8. Strike out all or any part of the pleading of the FOR ILLNESS OF PARTY OR COUNSEL
disobedient party;
9. Stay further proceedings until order is obeyed; or 1. A motion for postponement must be filed;
10. Order the arrest of the refusing party. 2. The motion must be supported by an affidavit or sworn
Refusal to produce document or thing for inspection, certification showing:
copying or photographing a. The presence of the party or counsel at the trial is
indispensable; and
1. Designated facts shall be taken to be established for the b. That the character of his illness is such as to render
purposes of the action in accordance with the claim of his non-attendance excusable.
the party obtaining the order; (Sec. 4, Rule 30)
2. Refuse to allow the disobedient party to support or
oppose claims or defenses; When does a reverse order of trial occur?
3. Strike out all or any part of the pleading of the
disobedient party; Where the defendant, in his answer, relies upon an
4. Dismiss the action or the proceeding; affirmative defense, a reverse order of trial shall take place.
5. Render a judgment by default against the disobedient Since the defendant admits the plaintiff’s claim but seeks to
party; avoid liability based on his affirmative defense he shall
6. Stay further proceedings until order is obeyed; proceed first to prove his exemption. (Yu v. Mapayo, G.R. No.
7. Render a judgment by default against the disobedient L-29742, March 29, 1972)
party; or
8. Order the arrest of the refusing party. Consolidation vs. Severance
Refusal to submit to
physical or mental examination Consolidation Severance
Involves several actions Contemplates a single action
1. Designated facts shall be taken to be established for the having a common question of having a number of claims,
purposes of the action in accordance with the claim of law or fact which may be counterclaims, cross-claims,
the party obtaining the order; jointly tried (Sec.1, Rule 31). third-party complaints, or
2. Prohibit the disobedient party to introduce evidence of issues which may be
physical and mental conditions; separately tried (Sec. 2, Rule
3. Strike out all or any part of the pleading of the 31).
disobedient party;
4. Dismiss the action or the proceeding; ---
5. Render a Judgment by default against the disobedient
party; Doris filed a complaint for ejectment in the MTC on the
6. Stay further proceedings until order is obeyed; ground of non-payment of rentals against Minda. After 2
7. Render a Judgment by default against the disobedient days, Minda filed in the RTC a complaint against Doris for
party specific performance to enforce the option to purchase the
Refusal to the request for parcel of land subject of the ejectment case. What is the
admission by adverse party effect of Minda's action on Doris' complaint? Explain.
(2000 Bar Question)
1. Each of the matters of which an admission is requested
is deemed admitted (Sec. 5, Rule 26). There is no effect. The ejectment case involves possession de
2. Require payment of reasonable fees incurred by the facto only. The action to enforce the option to purchase will
proponent (Secs. 1-4). not suspend the action of ejectment for non-payment of

19
 REMEDIAL LAW

rentals. (Wilmon Auto Supply Corp. v. CA, G.R. No. 97637, April
10, 1992) Civil Case Criminal Case
How filed After the plaintiff The court may
--- has completed the dismiss the action on
presentation of his the ground of
Delegation to Clerk of Court vs. Trial by Commissioner evidence, the insufficiency of
defendant may move evidence (1) on its
Delegation to Clerk of Trial by Commissioner for dismissal on the own initiative after
Court ground that upon the giving the
Delegation is made during Commissioner can be facts and the law the prosecution the
trial. appointed even after the case plaintiff has shown opportunity to be
has become final and no right to relief (Sec. heard or (2) upon
executory. 1, Rule 33). demurrer to evidence
filed by the accused
Clerk of court must be a Commissioner need not be a with or without leave
lawyer. lawyer. of court (Sec. 23, Rule
119).
Clerk of court cannot rule on Commissioner can rule on Leave of Not required With or Without (Sec.
objections or on the objections or on court 23, Rule 119)
admissibility of evidence. admissibility of evidence.
If granted The plaintiff may The plaintiff cannot
DEMURRER TO EVIDENCE (Civil Case) appeal from the order make an appeal from
of dismissal of the the order of dismissal
After the plaintiff has completed the presentation of his case (Sec. 1, Rule 33). due to the
evidence, the defendant may move for dismissal on the constitutional
ground that upon the facts and the law the plaintiff has shown prohibition against
no right to relief. (Sec. 1, Rule 33). double jeopardy.
If denied The defendant may The defendant may
Effect of the denial of the said motion to dismiss proceed to adduce his adduce his evidence
evidence. only if the demurrer
1. The defendant shall have the right to present his is filed with leave of
evidence (Sec. 1, Rule 33). This means that the denial of court.
the demurrer to evidence does not deprive the defendant
the opportunity to adduce evidence in his behalf; If there was no leave
2. The court shall set the date for the reception of the of court, accused can
defendant’s evidence-in-chief. It should not proceed to no longer present his
grant the relief demanded by the plaintiff (Northwest evidence and submits
Airlines, Inc. v.CA, G.R. No. 112573, February 9, 1995); the case for decision
3. An order denying a demurrer to evidence is not based on the
appealable because it is interlocutory; prosecution’s
evidence (Sec. 23,
NOTE: It can be subject to petition for certiorari in case Rule 119)
of grave abuse of discretion or an oppressive exercise of
judicial authority (Katigbak v. Sandiganbayan, G.R. No. JUDGMENTS AND FINALS ORDERS
140183 July 10, 2003).
Doctrine of Immutability of Judgment or Finality of
4. In election cases, when a party who files a demurrer to Judgment.
evidence is subsequently denied, he cannot insist on the
right to present evidence because the provision of the Settled is the rule that when a judgment is final and
Rules governing demurrer to evidence does not apply to executory, it becomes immutable and unalterable. It may no
an election case (Gementiza v. COMELEC G.R. No. 140884, longer be modified in any respect, except to correct clerical
March 6, 2001). The Rules, under the express dictum in errors or to make nunc pro tunc entries, or when it is a void
Sec. 4 of Rule 1, provides that it shall not apply to judgment. Outside of these exceptions, the court which
election cases, land registration, cadastral, naturalization rendered judgment only has the ministerial duty to issue a
and insolvency proceeding (Riano, 2014). writ of execution. A decision that has attained finality
becomes the law of the case regardless of any claim that it is
What is the effect of its grant? erroneous. An order of execution which varies the tenor of
the judgment or exceeds the terms thereof is a nullity (Mayor
1. The case shall be dismissed; Marcial Vargas and Engr. Raymundo Del Rosario v. Fortunato
Cajucom G.R. No. 171095, June 22, 2015). The doctrine is
NOTE: The plaintiff may file an appeal and if the appeal founded on considerations of public policy and sound
was granted (reversed the order of dismissal), the practice that, at the risk of occasional errors, judgments must
defendant loses his right to present evidence (Sec. 1, Rule become final at some definite point in time. However, the
33; Republic v. Tuvera, G.R. No. 148246, February 16, same is not applicable in order to serve substantial justice
2007). considering:
a. matters of life, liberty, honor or property,
2. Upon appeal, the appellate court reversing the order b. the existence of special or compelling circumstances,
granting the demurrer should not remand the case to the c. the merits of the case,
trial court. Instead, it should render judgment based on d. a cause not entirely attributable to the fault or
the evidence submitted by the plaintiff (Radiowealth negligence of the party favored by the suspension of the
Finance Corporation v. Del Rosario, G.R. No. 138739, July 6, rules,
2000). e. a lack of any showing that the review sought is merely
frivolous and dilatory, and
Demurrer to evidence in a Civil Case v. Demurrer to
evidence in a Criminal Case

20
 UST LAW PRE-WEEK NOTES 2017

f. the other party will not be unjustly prejudiced thereby decision on the whole controversy. It leaves something to be
(Pinewood Marine Inc. v. EMCO Plywood Corporation, G.R. done by the court before the case is finally decided on the
No. 179789, June 17, 2015). merits.

Rendition of Judgment? (2004 Bar) What is the remedy to question an improvident

Rendition of judgment is the filing of the same with the clerk
of court. Even if the judgment has already been put in writing
and signed, it is still subject to amendment if it has not yet
been filed with the clerk of court. Hence, before its filing, it
does not yet constitute the real judgment of the court (Ago v.
CA, G.R. No. L-17898, October 31, 1962).
Could there be a rendition of a judgment based on issues
not raised?
Generally, a judgment must conform to the pleading.
Therefore, a judgment going outside the issues and
purporting to adjudicate something on which the parties
were not heard is invalid. Where a court enters a judgment or
awards relief beyond the prayer of the complaint or the scope
of its allegations, the excessive relief is not merely irregular
but is void for want of jurisdiction, and is open to collateral
attack However, there could be such rendition when such
issues were tried with the express or implied consent of the
parties.
When can there be a judgment without a trial?
1. Where the pleadings of the parties tender no issue at all,
a judgment on the pleadings may be directed by the
court (Rule 34);
2. Where from the pleadings, affidavits, depositions and
other papers, there is actually no genuine issue, the court
may render a summary judgment (Rule 35);
3. Where the parties have entered into a compromise or an
amicable settlement either during the pre-trial or while
the trial is in progress (Rule 18; Art. 2028, NCC);
4. Where the parties agree in writing, upon the facts
involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the
introduction of evidence. If, however, there is no
agreement as to all the facts in the case, trial may be held
only as to the disputed facts (Sec. 6, Rule 30);
5. Where the complaint has been dismissed with prejudice
(Sec. 5, Rule 16; Sec. 3, Rule 17; last. par.; Sec. 5, Rule 7);
6. Where the civil case falls under the operation of the
Rules on Summary Procedure (Rule 17);
7. When the case falls under the Rule on Small Claims.
interlocutory order? (2004 Bar)
File a petition for certiorari under Rule 65 and not under Rule
45. A petition for review under Rule 45 is the proper mode of
redress to question only final judgments. One cannot appeal
an interlocutory order.
NOTE: Partial summary judgments are interlocutory. There is
still something to be done, which is the trial for the
adjudication of damages, but the defendant may properly
challenge said order thru a special civil action for certiorari
under Rule 65. (Province of Pangasinan v. Court of Appeals,
220 SCRA 726 [1993J; Guevarra v. Court of Appeals, 209 Phil.
241 [1983])
Kinds of Judgment
1. Judgment upon compromise – It is one conferred on the
basis of a compromise agreement entered into between
the parties. It is a judgment on the merits. It has the
effect of res judicata and is immediately executory and
not appealable. But it may be set aside on grounds
provided under Art. 2038 of NCC, e.g. mistake, fraud,
violence, intimidation, undue influence or falsity of
documents (Aromin v. Floresca, G.R. No. 160994, July 27,
2006).
2. Judgment by confession – It is one rendered by the court
when a party expressly agrees to the other party’s claim
or acknowledges the validity of the claim against him;
3. Judgment on demurrer to evidence (Rule 33) – A
judgment rendered by the court dismissing a case upon
motion of the defendant, made after plaintiff has rested
his case, on the ground that upon the facts presented by
the plaintiff and the law on the matter, plaintiff has not
shown any right to relief;
4. Conditional judgment – It is one where the effectivity of
which depends upon the occurrence or non-occurrence
of an event;
5. Final judgment – It is one which disposes of the whole
subject matter or terminates the particular proceedings
or action, leaving nothing to be done by the court but to
enforce by execution what has been determined.

Judgment Several Judgment vs. Separate Judgment

Judgment may be understood in 2 senses: Several Judgment Separate Judgment

Proper where the liability of Proper when more than one
1. Judgment that disposes of a case each party is clearly claim for relief is presented
in a manner that leaves nothing more to be done by the separable and distinct from in an action and a
court in respect thereto. In this sense, a final judgment is his co-parties such that the determination as to the
distinguished from an interlocutory order which does claims against each of them issues material to the claim
not finally terminate or dispose of the case. It has also could have been the subject has been made. The action
the effect of ending the litigation, and an aggrieved party of a separate suit, and the shall proceed as to the
may then appeal from the judgment; judgment for or against one remaining claims.
of them will not necessarily
2. By implication from Sec. 1 of Rule affect the other.
9, the word final may refer to a judgment that is no
longer appealable and is capable of being executed NOTE: A several judgment is
because the period to appeal has elapsed without a party not proper in actions against
having perfected an appeal, or if there has been an solidary debtors.
appeal, it has already been resolved by a highest possible
tribunal.
Memorandum Decision
What is an Interlocutory Order? (2006 Bar)
It refers to decisions which adopt by reference the findings of
It is an order which decides some point or matter between facts and conclusions of law of inferior tribunals. In this
the commencement and end of the suit but is not the final jurisdiction, it has been held that memorandum decisions do

21
 REMEDIAL LAW

not transgress the constitutional requirement in Art. VIII, Sec.
14, on clearly and distinctly stating the facts and the law on
which the decision is based. Nonetheless, it would be more
prudent for a memorandum decision not to be simply limited
to the dispositive portion but to:
1. State the nature of the case;
2. Summarize the facts with references to the record; and
3. Contain a statement of the applicable laws and
jurisprudence and the tribunal’s assessments and
conclusions on the case. This practice would better
enable a court to make an appropriate consideration of
whether the dispositive portion of the judgment sought
to be enforced is consistent with the findings of facts and
conclusions of law made by the tribunal that rendered
the decision (Oil and Natural Gas Commission v. CA, G.R.
No. 114323, September 28, 1999).
NOTE: The hearing contemplated (with 10-day notice) is
for the purpose of determining whether the issues are
genuine or not, and not to receive evidence on the issues
set up in the pleadings. The matter may be resolved, and
usually is, on the basis of affidavits, depositions,
admissions (Galicia v. Polo, G.R. No. L-49668, Nov. 14,
1989; Carcon Devt. Corp. v. CA, G.R. No. 88218, December
17, 1989).
2. Except for the amount of damages, there must be no
genuine issue as to any material fact;
NOTE: There is genuine issue when an issue of fact is
presented which requires presentation of evidence as
distinguished from a sham, fictitious, contrived or false
claim (Villuga v. Kelly Hardware and Construction Supply
Inc., G.R. No. 176570, July 18, 2012).

Judgment on the pleadings The party presenting the motion for summary judgment
must be entitled to a judgment as a matter of law.
It is a judgment on the facts as pleaded, and is based
exclusively upon the allegations appearing in the pleadings of How is a partial summary judgment treated?
the parties and the accompanying annexes (Comglasco
Corporation/Aquila Glass V. Santos Car Check Center A partial summary judgment envisioned by the Rules is an
Corporation G.R. No. 202989, March 25, 2015). interlocutory order that was never meant to be treated
separately from the main case. It will not ripen into a final
and executory judgment, despite failure to file a certiorari
Grounds for judgment on the pleadings petition to challenge the judgment. The remedy against a
partial summary judgment is an appeal to be taken by the
1. The answer fails to tender an issue because of: parties once the court a quo has completely resolved all the
a. General denial of the material allegations of the issues involved in the present case in a final judgment.
complaint; (Philippine Business Bank v. Chua, G.R. No. 178899, November
b. Insufficient denial of the material allegations of the 15, 2010).
complaint;
Judgment on the Pleadings vs. Summary Judgment
2. The answer admits material allegations of the adverse
party’s pleadings (Sec. 1, Rule 34). Judgment on the Pleadings Summary Judgment
(Rule 34) (Rule 35)
Denials based on lack of knowledge or information of matters Based solely on the Based on the pleadings,
clearly known to the pleader, or ought to be known to it, or pleadings. depositions, admissions and
could have easily been known by it are insufficient, and affidavits.
constitute ineffective or sham denials (Fernando Medical Generally available only to Available to both plaintiff and
Enterprises, Inc. vs. Wesleyan University Philippines, G.R. No. the plaintiff, unless the defendant.
207970, January 20, 2016, Bersamin J.) defendant presents a
counterclaim.
What are the instances when judgment on the pleadings is
not applicable? The answer fails to tender an There is no genuine issue
issue or there is an between the parties, i.e. there
1. Actions for declaration of nullity of marriage, annulment admission of material may be issues but these are
of marriage or for legal separation; allegations. irrelevant.
2. Unliquidated damages;
3. Insufficiency of fact – amendment is the remedy 3-day notice for motion 10-day notice required.
required.
Summary judgment
On the merits May be interlocutory (i.e.
It is proper where, upon motion filed after the issues had partial summary judgments)
been joined and on the basis of the pleadings and papers filed, or on the merits.
the court finds that there is no genuine issue as to any
material fact except as to the amount of damages (Ley Can summary judgment be rendered when the answer
Construction & Dev. Corp. v. Union Bank of the Phil., G.R. No. does not tender an issue?
133801, June 27, 2000).
Even if the answer does not tender an issue, and therefore a
A claimant may at any time after the pleading in answer
judgment on the pleadings is not proper, a summary
thereto has been served, and the defendant may, at any time,
judgment may still be rendered if the issues tendered are not
move with supporting affidavits, depositions or admissions
genuine, are shams, fictitious, contrived up, set-up in bad
for a summary judgment in his favor upon all or any part faith, patently unsubstantial (Vergara v. Suelto, G.R. No. L-
thereof (Secs. 1 and 2, Rule 35).
74766, December 21, 1987).
Requisites of summary judgment
POST-JUDGMENT REMEDIES
1. The motion shall be served at least 10 days before the The following are remedies before a judgment or final order
time specified for the hearing. The adverse party may becomes final and executor:
serve opposing affidavits, depositions, or admissions at
least 3 days before the hearing; 1. Motion for new trial;
2. Motion for reconsideration; or

22
 UST LAW PRE-WEEK NOTES 2017
3. Appeal
When is the rule on motion for new trial?
This is filed within the period to file an appeal based on the
ground of extrinsic fraud, accident, mistake, excusable
negligence or newly-discovered evidence.
Requisites of newly discovered evidence (Berry Rule)
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered and
produced at the trial with reasonable diligence; and,
3. Such evidence is material, not merely cumulative,
corroborative or impeaching, and is of such weight that if
admitted would probably change the judgment (CIR v. A.
Soriano Corporation, G.R. No. 113703, January 31, 1997).
Are newly discovered evidence necessarily be newly
created ones?
NO. Newly discovered evidence need not be newly created
evidence. It may and does commonly refer to evidence
already in existence prior or during trial but which could not
have been secured and presented during the trial despite
reasonable diligence on the part of the litigant (Tumang v. CA,
G.R. Nos. 82346-47, April 17, 1989). This shall be supported by
affidavits of witnesses or by duly authenticated documents.
Effect if the Motion for New Trial is granted
If the motion for new trial is granted, the original judgment is
vacated and the action shall stand for trial de novo. But the
recorded evidence taken upon the former trial, so far as the
same is material and competent to establish the issues, shall
be used at the new trial without retaking the same (Sec. 6,
Rule 37).
What is the effect of its denial?
If the motion is denied, the remedy is to appeal from the
judgment or final order, and not to appeal the order denying
the motion for new trial, because the order is not appealable
(Sec. 9, Rule 37). The movant has a fresh period of fifteen days
from receipt or notice of the order denying or dismissing the
motion for new trial within which to file a notice of appeal.
When is a Motion for Reconsideration filed?
This is filed within the period for appeal based on any of the
following grounds:
a. damages are excessive;
b. evidence is insufficient; or,
c. the decision or order is contrary to law (Sec. 1, Rule 37).
The motion shall specifically point out the portion of the
judgment not supported by evidence or which are contrary to
law. Otherwise, it will be considered as a pro forma motion
and will not have the effect of suspending or interrupting the
period to appeal.
What is the effect if the motion for reconsideration is
granted?
The court may amend the judgment or final order,
accordingly. The amended judgment is in the nature of a new
judgment which supersedes the original judgment, and is not
a mere supplemental decision (Esquivel v. Alegre, G.R. No.
79425, April 17, 1989).
What is the remedy of its denial?
23
The remedy is to appeal from the judgment or final order and
not to appeal the order denying the motion because it is not
appealable. The movant has a fresh period of 15 days from
receipt or notice of the order denying or dismissing the
motion for reconsideration within which to file a notice of
appeal.
Is a second motion for new trial allowed?
A second motion for new trial, based on a ground not existing
or available when the first motion was made, may be filed
within the time provided in Section 5, Rule 37 excluding the
time during which the first motion had been pending.
Is a second motion for reconsideration of a judgment or
final order allowed?
NO. No party shall be allowed a second motion for
reconsideration of a judgment or final order. (Sec. 5, Rule 37)
When is a second motion for reconsideration allowed?
1. Motion for reconsideration of an interlocutory order,
unless it is a mere reiteration of arguments already
passed upon by the court (San Juan, Jr. v. Cruz, G.R. No.
167321, July 31, 2006)
2. If filed before the Supreme Court, and only after meeting
the following requirements:
a. with express leave
b. for extraordinarily persuasive reasons
c. by a vote of at least 2/3 of the actual membership of
the SC en banc
d. before the ruling sought to be reconsidered
becomes final by operation of law or by the Courts
declaration (League of Cities of the Philippines v.
COMELEC, G.R. No. 176951, June 28, 2011, Bersamin, J.).
Is a motion for new trial or reconsideration a pre-requisite
for an appeal?
NO. The use of the term “may” in Sec. 1, Rule 37 means that
the same is permissive and not mandatory. As such, a party
aggrieved by the trial court’s decision may either move for
reconsideration or appeal to the Court of Appeals. (Heirs of
Timbol, Jr. v. PNB)
NOTE: Generally, the motion for new trial and motion for
reconsideration are unextendible. However, motions for
extension of time to file a motion for new trial or
reconsideration may be filed only in connection with cases
before the SC, which may, in its sound discretion, either grant
or deny the extension requested. No such motion may be filed
before any lower courts (Sps. Rogelio v. PCIB, GR No. 182735,
December 4, 2009).
Fresh Period Rule or Neypes Rule
The Court deems it practical to allow a fresh period of 15
days within which to file the notice of appeal, counted from
the receipt of the order dismissing a motion for new trial or
motion for reconsideration to standardize the appeal periods
provided in the Rules and to afford litigants fair opportunity
to appeal their cases (Neypes v. CA, G.R. No. 141524, September
14, 2005). It applies to:
1. Rule 40 – MTC to RTC
2. Rule 41 – Appeals from RTC
3. Rule 42 – Petition for Review from RTC to CA
4. Rule 43 – Appeals from CTA and Quasi-Judicial Agencies
to CA
5. Rule 45 – Appeals by certiorari to the SC
6. Rule 122, Sec. 6- Appeals in Criminal Cases (Yu v. Samson
Tatad, G.R. No. 170979, Feb. 9, 2011)
The fresh period rule does not apply to:
 REMEDIAL LAW
1. Administrative appeals (San Lorenzo Ruiz Builders and
Developers Group Inc. v. Ma. Cristina F. Bayang, G.R. No.
194702, April 20, 2015).
2. Rule 64 - Review of Judgments and Final Orders or
Resolutions of the Commission on Elections and the
Commission on Audit (Fortune Life Insurance Co., Inc. v.
COA, G.R. No. 213525, January 27, 2015, Bersamin, J.)
Does it apply to administrative proceedings?
NO. The Neypes Rule applies to Rule 40, 41, 42, 43, and 45,
which are judicial proceedings under the Rules of Civil
Procedure. It cannot be made applicable to an appeal from a
decision of the Provincial Adjudicator to the DARAB, as
provided under Section 1, Rule XIV of the 2003 DARA Rules of
Procedure, because the same is not judicial, but
administrative in nature. (Jocson vs. San Miguel, G.R. No.
206941, March 9, 2016)
APPEALS IN GENERAL
Dual Function of Appellate Courts
1. Review for Correctness Function: To review a case on
appeal to render substantial justice. Focuses on the
doctrine of res judicata.
2. Institutional Function: To contribute to the progressive
development of the law for the guidance of the courts in
deciding future similar cases. Focuses on the doctrine of
stare decisis. (Bersamin, Appeal and Review in the
Philippines)
Harmless Error Rule
The court at every stage of the proceeding must disregard
any error or defect which does not affect the substantial
rights of the parties. (Sec. 6, Rule 51)
Matters that are not appealable
1. Order denying a petition for relief or any similar motion
seeking relief from judgment;
2. Interlocutory order;
3. Order disallowing or dismissing an appeal;
4. Order denying a motion to set aside a judgment by
consent, confession or compromise on the ground of
fraud, mistake or duress, or any other ground vitiating
consent;
5. Order of execution;
6. Judgment or final order for or against one or more of
several parties or in separate claims, counterclaims,
cross-claims and third-party complaints, while the main
case is pending, unless the court allows an appeal
therefrom;
7. Order dismissing an action without prejudice, e.g. motion
to dismiss on improper venue (Sec. 1, Rule 41, as
amended by A.M. No. 07-7-12-SC); and
8. A judgment based on compromise is not appealable and
is immediately executory.
9. A decision on a petition for declaration of presumptive
death, being a judgment rendered in a summary
proceeding under the Family Code, is immediately final
and executory. As a matter of course, no appeal can be
had from such judgment in a summary proceeding.
(Republic vs. Sarenogon, Jr., G.R. No. 199194, February 10,
2016)
In those instances where the judgment or final order is not
appealable, the aggrieved party may file the appropriate
special civil action under Rule 65 (Sec. 1, Rule 41).
24
Is appeal considered a right?
An appeal is not a constitutional right, but a mere statutory
privilege. As such, perfection of an appeal in the manner and
within the period permitted by law is not only mandatory,
but jurisdictional. (Orchard Gold & Country Club, et al. vs. Yu
and Yuhico, G.R. No. 191033, January 11, 2016) However,
procedural rules may be waived or dispensed with in order to
serve and achieve substantial justice. Relaxation of the rules
may be had when the appeal:
1. On its face, appears to be absolutely meritorious; or
2. When there are persuasive or compelling reasons to
relieve a litigant of an injustice not commensurate
with the degree of thoughtlessness in not complying
with the prescribed procedure.
Final Judgment Rule
An appeal may be taken from a judgment or final order that
completely disposes of the case, or of a particular matter
therein when declared by these Rules to be appealable (Sec. 1,
Rule 41).
Exceptions to the Final Judgment Rule
1. Statutory Exception: when provided for in the Rules of
Court
2. Discretionary Exception: when allowed or refused by the
Supreme Court, acting pursuant to its appellate
jurisdiction
3. Collateral Order Exception: when the decision
determines a collateral matter regarding rights of the
parties to the action which is too important to be denied
review (e.g. judgment against respondent in indirect
contempt cases)
4. Immediate Harm Exception: when postponement of an
act subject of appeal will produce an immediate and
irreparable harm against the appellant (Bersamin, Appeal
and Review in the Philippines)
MODES OF APPEAL
May a mixed question of law and question of fact be raised
under Rule 45?
A petition for review on certiorari shall raise only questions
of law, which must be distinctly set forth (Sec. 1, Rule 45).
Question of Law vs. Question of Fact
There is a question of law in the given case when the doubt
or difference arises as to what the law is on a certain state of
facts. There is a question of fact when the doubt or
difference arises as to the truth or falsehood of alleged facts.
A question, to be one of law, must not involve an examination
of the probative value of the evidence presented by the litigants
or any of them (Landines vs. People and de Ramon, G.R. No.
167333, January 11, 2016, Bersamin, J.).
XPNs:
1. when the findings are grounded entirely on speculation,
surmises or conjectures;
2. when the inference made is manifestly mistaken, absurd
or impossible;
3. when there is grave abuse of discretion;
4. when the judgment is based on a misapprehension of
facts;
5. when the findings of facts are conflicting;
6. when in making its findings the CA went beyond the
issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee;
7. when the findings are contrary to those of the trial court;
 UST LAW PRE-WEEK NOTES 2017
8. when the findings are conclusions without citation of
specific evidence on which they are based;
9. when the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the
respondent;
10. when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on
record; and
11. when the CA manifestly overlooked certain relevant facts
not disputed by the parties, which, if properly
considered, would justify a different conclusion.
(Landines vs. People and de Ramon, G.R. No. 167333,
January 11, 2016, Bersamin, J.).
What determines the proper remedy of a party?
It is the nature of the case that determines the proper remedy
to be filed and the appellate court where such remedy should
be filed by a party aggrieved by the decisions or orders of the
Office of the Ombudsman. If it is an administrative case,
appeal should be taken to the Court of Appeals under Rule 43
of the Rules of Court. If it is a criminal case, the proper
remedy is to file with the Supreme Court an original petition
for certiorari under Rule 65. (Perez v. Ombudsman, GR. No.
131445, May 27, 2004).
---
P won in an ejectment suit against D. The MTC refused to
give due course to the notice of appeal filed by D and as a
result, the latter filed a special civil action for certiorari in
the RTC. The RTC granted the same. P appealed to the CA
by way of petition for review under Rule 42. The CA
dismissed the appeal holding that the proper remedy was
Rule 41 and not Rule 42. Was the dismissal correct?
YES. A petition for review under Rule 42 is not the proper
remedy to assail a decision of the RTC in a petition for
certiorari under Rule 65, since the RTC in the case acted in
the exercise of its original jurisdiction. The appeal should be
by way of Rule 41, or by an ordinary appeal (Heirs of Garcia v.
Mun. of Iba, Zambales, G.R. No. 162217, July 22, 2015,
Bersamin, J.)
---
Maniebo was formally charged by CSC-RO4 with
possession of spurious report of rating, falsification, grave
misconduct and dishonesty, and was subsequently meted
with the penalty of dismissal from service. She appealed to
the CSC wherein the latter affirmed with the decision of
CSC-RO4. She consequently sought for reconsideration but
the CSC denied her motion. As a result, the petitioner
appealed to the CA through a petition for review attaching
the following annexes:
1) Certified true copy of CSC Resolution denying the
petitioner’s motion for reconsideration;
2) Original copy of the notice of appeal filed in the
CSC;
3) Photocopy of the petitioner’s appeal to the CSC
4) The petitioner’s affidavit of merit.
The CA dismissed the petition for review due to the
petitioner’s failure to accompany it with the requisite
certified true copies of the material portions of the record.
Did the CA err in dismissing the petition based on
technicality?
NO. Section 6, Rule 43 of the Rules of Court clearly requires
the petition for review to be accompanied by a clearly legible
duplicate original or a certified true copy of the award,
judgment, final order or resolution appealed from, together
with certified true copies of such material portions of the
record referred to therein and other supporting papers. The
requirement is intended to immediately enable the CA to
25
determine whether to give due course to the appeal or not by
having all the material necessary to make such determination
before it. An appeal under Rule 43 is a discretionary mode of
appeal, which the CA may either dismiss if it finds the petition
to be patently without merit, or prosecuted manifestly for
delay, or that the questions raised therein are too
unsubstantial to require consideration; or may process by
requiring the respondent to file a comment on the petition.
These rules are not to be belittled or dismissed simply
because their non-observance may result in prejudicing a
party’s substantive rights. (Maniebo vs. Court of Appeals, GR
No. 158708, August 10, 2010, Bersamin, J.)
---
Period of appeal via notice of appeal under Rule 40, 41, 42,
43, and 45
A party-litigant may either file his notice of appeal with the
court that rendered the judgment within 15 days from receipt
of court’s decision, or file it within 15 days from receipt of the
final order denying his motion for new trial or motion for
reconsideration.
Period of appeal in a writ of habeas corpus
Appeal in habeas corpus cases shall be taken within 48 hours
from receipt of the court’s decision or final order denying
motion for reconsideration or new trial.
Period of appeal via record on appeal?
The period is 30 days counted from receipt of court’s decision
or the final order denying his motion for new trial or motion
for reconsideration
Requirements to perfect an appeal
1. The filing of a notice of appeal
2. The payment of docket and other legal fees;
3. In some cases, the filing of a record on appeal; and
4. All of which must be done within the period allowed for
filing an appeal.
Failure to observe any of these requirements is fatal to one’s
appeal. (National Transmission Corp vs. Heirs of Ebesa, G.R. No.
186102, February 24, 2016)
When does the court lose its jurisdiction?
In appeal by notice of appeal, the court loses jurisdiction over
the case upon the perfection of the appeal and the expiration
of the time to appeal of the other parties.
In appeal by record on appeal, the court loses jurisdiction
only over the subject matter thereof upon the approval of the
record on appeal and expiration of the time to appeal of the
other parties.
Effect of a perfected appeal
Judgment is not vacated by appeal, but is merely stayed and
may be affirmed, modified or reversed or findings of facts or
conclusions of law may be adopted by reference. However,
this is not applicable to civil cases under the Rules on
Summary Procedure which provides that the decision of the
RTC in civil cases governed by said Rule. Also including
forcible entry and unlawful detainer cases, shall be
immediately executory without prejudice to a further appeal
that maybe taken therefrom. Also, under Rule 43, an appeal
from quasi-judicial bodies shall not stay the judgment unless
the CA directs otherwise.
Effect of non-payment of appellate docket fees
 REMEDIAL LAW

Payment of docket fee is jurisdictional. Without such APPEAL FROM JUDGMENT

payment, the appellate court does not acquire jurisdiction OR FINAL ORDERS OF THE CA
over the subject matter of the action and the decision sought
to be appealed from becomes final and executory (Regalado v. What are the instances where the CA may act as a trial
Go, G.R. No. 167988, February 6, 2007). court?

XPNs: 1. In annulment of judgment under Secs. 5 and 6, Rule 47.

1. The failure to pay appellate court docket fee within the
reglementary period allows only discretionary dismissal,
not automatic dismissal, of the appeal;
2. Such power should be used in the exercise of the court’s
sound discretion (Rep. v. Sps. Luriz, G.R. No. 158992,
January 26, 2007).
Residual jurisdiction of the court
It refers to the authority of the trial court to issue orders for
the protection and preservation of the rights of the parties
even if the trial court loses jurisdiction over the case or the
subject matter involved in the appeal. Provided, that this is
done by the court prior to the transmittal of the original
records or record on appeal (Fernandez v. CA, G.R. No. 131094,
May 16, 2005).
Duration of the exercise of residual powers
1. Ordinary Appeal – until the records are transmitted to
the appellate court;
2. Petition for review – until the CA gives due course to the
petition.
Should the CA find prima facie merit in the petition, the
same shall be given due course and summons shall be
served on the respondent, after which trial will follow,
where the procedure in ordinary civil cases shall be
observed.
2. When a motion for new trial is granted by the CA, the
procedure in the new trial shall be the same as that
granted by a RTC (Sec. 4, Rule 53).
3. A petition for habeas corpus shall be set for hearing (Sec.
12, Rule 102).
4. In petition for writs of amparo and habeas data, a
hearing can be conducted.
5. Under Sec. 12, Rule 124 of the Rules of Criminal
Procedure, the CA has the power to try cases and
conduct hearings, receive evidence and perform any and
all acts necessary to resolve factual issues which fall
within its original and appellate jurisdiction.
6. The CA can grant a new trial based on the ground of
newly-discovered evidence (Sec. 14, Rule 124).
7. The CA under Sec. 6, Rule 46, whenever necessary to
resolve factual issues, may conduct hearing thereon or
delegate the reception of the evidence of such issues to
any of its members or to an appropriate agency or office.
8. Human Security Act

Petition for Review on Certiorari under Rule 45, Review of Judgments, Final Orders or Resolutions Rule 64 and Certiorari
under Rule 65

Petition for Review on Certiorari
(Rule 45)
Mode of appeal which seeks to review
final judgments and orders (Sec. 2, Rule
41).
Review of Judgments, Final Orders or Special Civil Action for Certiorari
Resolutions (Rule 64) (Rule 65)
Independent Special Civil Action; Special civil action; an original action. It
appellate jurisdiction. may be directed against an interlocutory
order or matters where no appeal may be
taken from (Sec. 1, Rule 41).

It shall be filed within 15 days from
notice of judgment or final order
appealed from.
30 days from the notice of the judgment It shall be filed not later than 60 days from
or final order or resolution sought to be notice of judgment, order or resolution
reviewed. sought to be assailed or from denial of an
MR or MNT.
Non-extendible period
It may be extended for another 60 days
If MR is denied, the petition must be filed
within the remaining period, but which
shall not be less than 5 days reckoned
from notice of denial of MR.

Stays the judgment sought to be
appealed
The parties are the original parties with
the appealing party as the petitioner
and the adverse party as respondent
without impleading the lower court or
its judge (Sec. 4(a), Rule 45).
Filed with the SC.
Does not stay the judgment or order
subject of the petition unless enjoined or
restrained.
The petitioner and private respondent
are the original parties to the action.
The COA and COMELEC shall be
impleaded as public respondents.
Filed with the SC.
Does not stay the judgment or order subject
of the petition unless enjoined or
restrained.
The tribunal, board, officer exercising
judicial or quasi-judicial functions is
impleaded as respondent (Sec. 5 Rule 65).
Filed with the RTC (Sec. 21, BP 129);

With the CA (Sec. 9, BP 129);

With the SC (Sec. 5(1) Article VIII, 1987

Constitution).

26
 UST LAW PRE-WEEK NOTES 2017

RELIEF FROM JUDGMENTS, ORDERS Is an order granting a petition for relief appealable?
AND OTHER PROCEEDINGS
An order granting petition for relief is interlocutory and
Motion for New Trial/Reconsideration vs. Petition for non-appealable (Regalado, 2012).
Relief from Judgment
What should constitute an Affidavit of Merit?
Motion for New Trial / Petition for Relief from
Reconsideration Judgment An affidavit of merit must not only contain facts
(Rule 37) (Rule 38) constituting the movant's good and substantial
Available before judgment Available after judgment defenses but must also state the nature and character
becomes final and has become final and of the fraud, accident, mistake or excusable
executory. executory. negligence on which the motion for relief was based.
Applies to judgments or Applies to judgments, final
final orders only. orders and other A petition for relief without a separate affidavit of merit
proceedings: is sufficient where facts constituting petitioner’s
Grounds for motion for Grounds for petition for substantial cause of action or defense, as the case may
new trial: (FAME + E) relief from judgment: be, are alleged in a verified petition since the oath
1. Fraud, accident, (FAME) elevates the petition to the same category as a separate
mistake or excusable Fraud, accident, mistake affidavit (Samonte v. SF Naguiat Inc. G.R. No. 165544,
negligence (FAME); or excusable negligence. October 2, 2009).
2. Newly discovered
evidence (Sec. 1). When should a petition for relief from judgment be
filed?
Grounds for motion for
reconsideration: A petition for relief from judgment must be filed within
1. The damages 60 days after petitioner learns of the judgment, final
awarded are order, or proceeding and within six (6) months from
excessive; entry of judgment or final order. The double period
2. That the evidence is required under Section 3, Rule 38 is jurisdictional and
insufficient to justify should be strictly complied with. A petition for relief
the decision or final from judgment filed beyond the reglementary period is
order, or dismissed outright. This is because a petition for relief
3. That the decision or from judgment is an exception to the public policy of
final order is contrary immutability of final judgments. (Madarang v. Sps.
to law (Sec. 1). Morales, G.R. No. 199283, June 9, 2014).
Filed within the time to Filed within 60 days from
appeal. knowledge of the ANNULMENT OF JUDGMENTS
judgment and within 6 OR FINAL ORDERS AND RESOLUTIONS
months from entry of
judgment. A petition for annulment of judgment is a remedy in
The order of denial is not The order of denial is not equity so exceptional in nature that it may be availed of
appealable. The remedy is appealable; the remedy is only when:
to appeal from the appropriate special civil 1. Other remedies are wanting; and
judgment or final order on action under Rule 65. 2. Only if the judgment, final order or final resolution
the merits. sought to be annulled was rendered by a court
Motion need not be Petition must be verified. lacking jurisdiction, or through extrinsic fraud or
verified. denial of due process. (Spouses Teano vs.
Municipality of Navotas, G.R. No. 205814, February
Can a party file a petition for relief after the denial of 15, 2016)
a motion for new trial?
Grounds for annulment of judgment
A party who has filed a timely motion for new trial
cannot file a petition for relief after the former is 1. Lack of jurisdiction over the subject matter and over
denied. The two remedies are exclusive of one another the person – This may be barred by estoppel by
(Sec. 9, Rule 38; Francisco v. Puno, G.R. No. L-55694, laches, which is that:
October 23, 1981).

27
 REMEDIAL LAW
a. failure to do something which should be done
or to claim or enforce a right at a proper time;
or
b. neglect to do something which one should do
or seek or enforce a right at a proper time.
2. Denial of due process (Alaban v. CA, G.R. No. 156021,
September 23, 2005).
3. Extrinsic fraud or collateral fraud – However, this
could not be a valid ground if it was availed of, or
could have been availed of, in a motion for new
trial or petition for relief.
Effect of a compromise agreement
A compromise agreement has the effect and authority of
res judicata between the parties, and is immediately
final and executory unless rescinded upon grounds that
vitiate consent. Once stamped with judicial imprimatur,
it is more than a mere contract between the parties. Any
effort to annul the judgment based on compromise on
the ground of extrinsic fraud must proceed in
accordance with Rule 47 of the Rules of Court. (Tung
Hui Chung and Tong Hong Chung vs. Shih Chiu Huang,
G.R. No. 170679, March 9, 2016, Bersamin, J.)
Judgment, Final Orders for Resolutions of RTC vs.
Judgments, Final Orders or Resolutions of MTC
Judgments, Final Orders or Judgments, Final Orders or
Resolutions of RTC Resolutions of MTC
As to the court that has exclusive original jurisdiction
CA (B.P. 129, Sec. 9, Par. 2) RTC (B.P. 129, Sec. 19, par.
6)
As to discretion to dismiss the petition outright
The CA may dismiss the The RTC has no discretion.
case outright which is Rule 47, Sec. 10 does not
discretionary (Rule 47, Sec. make Sec. 5 of the same
5.) rule applicable to petitions
for annulment before the
RTC.
---
Remedios, claiming that she is the adopted daughter
of the deceased Toribio, filed with the RTC an action
for partition of Toribio’s estate. Petitioner filed an
answer alleging that Remedios was not validly
adopted as the adoption decree issued by the CFI was
fraudulently secured. The RTC dismissed the action
for partition on the ground that Remedios was not
28
validly adopted. Did the RTC act properly in
dismissing the action on that ground?
NO. The RTC did not have jurisdiction to determine or
to review the validity of the decree of adoption issued
by the erstwhile CFI by virtue of equal rank and
category between the RTC and the CFI. The proper court
with jurisdiction to do was the CA, which has been
vested by Section 9 Batas Pambansa Blg. 129 with the
exclusive original jurisdiction over actions for the
annulment of the judgments of the RTC. (Oribello v. CA, 5
August 2015, Bersamin J.)
---
To whom is the remedy of annulment of judgment
available?
It is available only to a party in whose favor the
remedies of new trial, reconsideration, appeal, and
petition for relief from judgment are no longer available
through no fault of said party. As such, the petitioner,
being a non-party in the case sought to be annulled,
could not bring the action for annulment of judgment
(Dare Adventure Farm Corp. v. CA, G.R. No. 161122,
September 24, 2012 Bersamin, J.)
Rule on collateral attack on a Judgment
GR: The validity of a judgment or order of a court
cannot be collaterally attacked.
XPNs: It may be attacked collaterally on the following
grounds:
1. Lack of jurisdiction; or
2. The irregularity of its entry is apparent from the
face of the record.
EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS
Execution
Execution is a process provided by law for the
enforcement of a final judgment. It is the fruit and end
of suit (Cagayan de Oro Coliseum v. CA, G.R. No. 129713,
Dec. 15, 1999; Ayo v. Violago-Isani, A.M. No. RTJ-99-1445,
June 21, 1999).
A writ of execution must conform substantially to every
essential particular of the judgment promulgated. An
execution not in harmony with the judgment is bereft of
validity. (Stronghold Insurance vs. Pamana Island Resort,
G.R. No. 174838, June 1, 2016)
When is Execution a matter of right?
 UST LAW PRE-WEEK NOTES 2017
1. The judgment has become final and executory (Sec.
1, Rule 39);
2. Judgment debtor has renounced or waived his right
to appeal;
3. The period for appeal has lapsed without an appeal
having been filed;
4. Having been filed, the appeal has been resolved
and the records of the case have been returned to
the court of origin (Florendo v. Paramount
Insurance Corp, now MAA General Insurance Inc.,
G.R. No. 167976, January 20, 2010).
Remedy if a motion for execution is denied
The remedy is mandamus. The issuance of writ of
execution is a ministerial duty of the court under Sec. 1
of Rule 39, compellable by a writ of mandamus (Greater
Metropolitan Manila Solid Waste Management
Committee v. Jancom Environmental Corporation, G.R.
No. 163663, June 30, 2006).
Requisites for Discretionary Execution
1. There must be a motion filed by the prevailing
party with notice to the adverse party;
2. There must be a hearing of the motion for
discretionary execution;
3. There must be good reasons to justify the
discretionary execution; and
4. The good reasons must be stated in a special order
(Sec. 2, Rule 39).
Where is an application for discretionary execution
filed?
1. The motion for discretionary execution shall be
filed with the trial court:
a. While it has jurisdiction over the case; and
b. While it is in possession of either the original
record or the record on appeal; or,
2. After the trial court has lost jurisdiction, the motion
for execution pending appeal may be filed in the
appellate court (Bangkok Republic Company
Limited v. Lee, G.R. No. 159806, January 20, 2006).
In either instance, and whether it is a regular judgment
or a special judgment such as several, separate or
partial judgment, the same procedure and the
requirement of a special order stating good reasons for
discretionary execution shall be observed (Regalado,
2010).
Remedy when the judgment is reversed or annulled
The trial court may, on motion, issue such orders of
restitution or reparation of damages as equity and
29
justice may warrant under the circumstances (Sec. 5,
Rule 39).
How is the discretionary execution stayed?
It may be stayed upon approval by the proper court of a
sufficient supersedeas bond filed by the party against
whom execution is directed, conditioned upon the
performance of the judgment or order allowed to be
executed in case it shall be finally sustained in whole or
in part. The bond thus given may be proceeded against
on motion with notice to the surety (Sec. 3, Rule 39).
Are judgments stayed by appeal?
Generally, a Judgment is stayed by appeal. However,
there are instances when judgment is immediately
executory (IRASO)
1. Injunction
2. Receivership
3. Accounting
4. Support, and
5. Such other judgments declared to be immediately
executory unless otherwise ordered by the trial
court (e.g. Rule 70, Sec. 19).
EXAMINATION OF JUDGMENT OBLIGOR
WHEN JUDGMENT IS UNSATISFIED
Effect when the judgment was returned unsatisfied
1. The judgment creditor may cause examination of
the judgment debtor as to his property and income
(Sec. 36, Rule 39);
2. The judgment creditor may cause examination of
the debtors of the judgment debtor as to any debt
owed by him or to any property of the judgment
debtor in his possession (Sec. 37, Rule 39);
3. If the court finds, after examination, that there is
property of the judgment debtor either in his own
hands or that of any person, the court may order
the property applied to the satisfaction of the
judgment (Sec. 37, Rule 39);
4. If the court finds the earnings of the judgment
debtor are more than sufficient for his family’s
needs, it may order payment in fixed monthly
installments (Sec. 40, Rule 39);
5. The court may appoint a receiver for the property
of the judgment debtor not exempt from execution
or forbid a transfer or disposition or interference
with such property (Sec. 41, Rule 39);
6. If the court finds that the judgment debtor has an
ascertainable interest in real property either as
mortgagor, mortgagee, or otherwise, and his
interest can be ascertained without controversy,
 REMEDIAL LAW
the court may order the sale of such interest (Sec.
42, Rule 39); and,
7. If the person alleged to have the property of the
judgment debtor or be indebted to him, claims an
adverse interest in the property, or denies the debt,
the court may authorize the judgment creditor to
institute an action to recover the property, forbid
its transfer and may punish disobedience for
contempt (Sec. 43, Rule 39).
ENFORCEMENT AND EFFECT OF
FOREIGN JUDGMENTS OR FINAL ORDERS
Effect of a foreign order
1. Against a specific thing – conclusive upon title to
the thing.
2. Against a person – presumptive evidence of a right
as between the parties and their successors-in-
interest by a subsequent title (Sec. 48, Rule 39).
In both instances, the judgment may be repelled by
evidence of want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.
How is a judgment of a foreign court enforced?
Judgment of foreign courts may only be enforced in the
Philippines through an action validly heard in the RTC.
Thus, it is actually the judgment of the Philippine court
enforcing the foreign judgment that shall be executed.
PROVISIONAL REMEDIES
Provisional remedies under the Rules of Court
(SARIR)
1. Preliminary Attachment (Rule 57);
2. Preliminary Injunction (Rule 58);
3. Receivership (Rule 59);
4. Replevin (Rule 60);
5. Support (Rule 61).
PRELIMINARY ATTACHMENT
Kinds of attachment
Prelimin It is one issued at the commencement of the
ary action or at any time before entry of the
judgment, as security for the satisfaction of
Attachm
any judgment that may be recovered in the
ent cases provided for by the Rules. The court
takes custody of the property of the party
against whom the attachment is directed.
30
NOTE: This is the regular form of
attachment which refers to corporeal
property in the possession of the party
(Regalado, 2012).
Levy on It is the act of taking possession and control
executio by the sheriff or proper officer of sufficient
n property of the losing party to satisfy the
decision, order, or award. A sale not
preceded by a valid levy is void and the
purchaser acquires no title.
Garnish It is the levy of money, goods, or chattels,
ment and/or an interest thereon, belonging or
owing to a losing party in the possession or
control of a third party.
The proceeding by garnishment is a specie
of attachment for reaching credits
belonging to the judgment debtor and
owing to him from a stranger to the
litigation. By means of the citation the
stranger becomes a forced intervenor; and
the court, having acquired jurisdiction over
him by means of the citation, requires him
to pay his debt, not to his former creditor,
but to the new creditor, who is the creditor
in the main litigation (Domingo Bautista v.
Jose Ma. Barredo, G.R. No. L-20653, April 30,
1965).
NOTE: Garnishment does not involve the
actual seizure of the property which
remains in the hands of the garnishee. It
refers to money, stocks, credits and other
incorporeal property which belong to the
party but are in the possession or under
control of a third person. Garnishment does
not lie against the funds of the regular
departments or offices of the Government,
but funds of public corporations are not
exempt from garnishment (PNB v. Palaban,
et al., G.R. No. L-33112, June 15, 1978;
Regalado, 2012).
Can a property of an incompetent under
guardianship in custodia legis be attached?
 UST LAW PRE-WEEK NOTES 2017

YES, provided that, a copy of the writ of attachment No claim for damages for the taking or keeping the
shall be filed with the proper court and the notice of property may be enforced against the bond unless the
the attachment shall be served upon the custodian of action is therefor is filed within 120 days from the filing
such property. of the bond (Rule 60, Sec. 7).

How is the writ of preliminary attachment
discharged or dissolved?
Once the preliminary attachment is issued, the same
rule provides for two ways by which it can be
dissolved or discharged. First, the writ of preliminary
attachment may be discharged upon security given,
i.e. a counter-bond. Second, it must be shown to have
been irregularly or improperly issued (Magaling v.
Ong, G.R. No. 173333, August 13, 2008).
Effect when a property is wrongfully attached
Where there is wrongful attachment, the defendant may
recover actual damages even without proof that the
plaintiff acted in bad faith in obtaining the attachment.
However, if it is alleged and established that the
attachment was not merely wrongful but also malicious,
the defendant may recover moral damages and
exemplary damages as well (Spouses Yu v. Ngo Yet Te,
G.R. No. 155868, February 6, 2007).

Remedies available if the property is being claimed PRELIMINARY INJUNCTION

by third person (TII)
Preliminary Injuction vs. Temporary Restraining
1. A terceria or third party claim - The third person Order
whose property was levied on must make an
affidavit of his title thereto, or right to the Preliminary Temporary Restraining
possession thereof, stating the grounds of such Injunction Order
right and title and serves such affidavit upon the Effective during the This is non-extendible
sheriff while the latter has possession of the pendency of the (Sec. 5, Rule 58):
attached property and a copy thereof upon the action unless earlier 1. If issued by RTC/MTC
attaching party; dissolved – 20 days from notice
to the person
GR: The sheriff is not bound to keep the property. NOTE: The trial court, restrained;
the Court of Appeals, 2. If issued by CA – 60
XPN: The sheriff is bound to keep the property when the Sandiganbayan or days from notice;
the attaching party, on demand of the sheriff, files a the Court of Tax 3. If issued by SC – until
bond approved by the court to indemnify the third- Appeals that issued a lifted.
party claimant in a sum not less than the value of the writ of preliminary
property levied upon. injunction against a NOTE: Prohibition against
lower court, board, the renewal applies only if
2. Independent action to recover his property; or officer, or quasi- the same is sought under
3. Motion for intervention – available only before judicial agency shall and by reason of the same
judgment is rendered (Ong v. Tating, G.R. No. L- decide the main case ground for which it was
61042, April 15, 1987). or petition within 6 originally issued
months from the (Regalado, 2008).
Is the timing of the filing of the third-party claim is issuance of the writ
important? (Sec. 5, Rule 58, as
amended by A.M. No.
YES because the timing determines the remedies that 07-7-12-SC).
a third party is allowed to file. A third party claimant Restrains or requires Maintain status quo ante
under Sec. 16 of Rule 39 may vindicate his claim to the performance of
the property in a separate action since intervention is particular acts.
no longer allowed upon rendition of judgment. A Notice and hearing GR: Notice and hearing
third party claimant under Sec. 14 of Rule 57, on the always required (Sec. required
other hand, may vindicate his claim to the property 5, Rule 58).
by intervention because he has a legal interest in the XPN: To prevent
matter in litigation (Fort Bonifacio Development urgent/irreparable injury,
Corporation v. Yllas Lending Corporation, G.R. No. TRO may be issued by an
158997, October 6, 2008). executive judge or
presiding judge for 72
hours and a summary

31
 REMEDIAL LAW

hearing be subsequently GR: Contemporaneous service of summons;- Prior

conducted within such or simultaneous service of summons.
period.
Can be issued to Cannot be issued to XPNs:
compel the compel the performance a. Summons could not be served personally or by
performance of an act of an act substituted service;
b. Adverse party is a resident but is temporarily
When is a Status quo order availed of? absent from the Philippines;
c. Adverse party is a non-resident;
It is resorted to when the projected proceedings in
the case made the conservation of the status quo 5. The plaintiff praying for the writ must further
desirable or essential but the affected party neither establish that he has a present and unmistakable
sought such relief nor did the allegations in his right to be protected and there is a special and
pleading sufficiently make out a case for a TRO. paramount necessity for the writ to prevent
serious damage [Sec. 4 (c), Rule 58].
Temporary Restraining Order vs. Status Quo Order
Preliminary Prohibitory Injunction vs. Preliminary
TRO Status Quo Order Mandatory Injunction
Summary hearing Issued motu proprio on
equitable considerations. Preliminary Prohibitory Preliminary Mandatory
Injunction Injunction
Prevents the doing of More in the nature of a Requires a person to Requires a person to
an act cease and desist order refrain from a particular perform a particular act
since it neither directs act
the doing or undoing of
acts The act has not yet been The act has already been
performed. performed and this act has
Requires the posting Does not require the violated the rights of
of a bond, unless posting of a bond another (Riano, 2012).
exempted by court
Preliminary Injunction vs. Main Action for Injunction
Requisites of writ of preliminary injunction or
temporary restraining order Preliminary Injunction Main Action for
(Ancillary Remedy) Injunction
1. Verified application stating the grounds for its Provisional remedy; Independent/Primary
issuance (Sec. 4, Rule 58); It is not a cause of action Action
itself but merely an
NOTE: The grounds for the issuance of the writ adjunct to a main suit.
of preliminary injunction are exclusive.
Seeks to preserve the Perpetually restraining or
2. Applicant must establish that he has a right to status quo until the merits commanding the
relief, a right in esse or a right to be protected can be heard performance of an act
and the act against which the injunction is after trial
directed is violative of such right;
3. Applicant must establish that there is a need to
---
restrain the commission or continuance of the
acts complained of and if not enjoined would
What is a status quo ante order? How is it
work injustice to the applicant;
distinguished from a TRO?
4. Applicant must post a bond, unless exempted by
the court. This TRO bond is executed in favor of
A status quo ante order is an equitable remedy intended
the person enjoined to answer for all damages
to maintain the status quo ante, i.e. the last actual,
which the latter may sustain by reason of
peaceable, uncontested state of things which
injunction or restraining order if the court
preceded the controversy. It is distinguished from a
should finally decide that the applicant was not
TRO in that it is issued by the court motu proprio, that
entitled to the writ or order;
is, there is no application therefor; or the allegations of
the pleadings do not make out a case for the issuance of

32
 UST LAW PRE-WEEK NOTES 2017

a TRO. Also, unlike a TRO, no bond is required for the

issuance of a status quo ante order. (Mega-World
Properties & Holdings Inc. v. Magestic Finance &
Investment Co., 9 December 2015, Bersamin J.)

---

In a dispute between a developer and the landowner,

the trial court issued a status quo ante order
directing the developer to post security guards on the
property subject of the joint-venture agreement. Was
the issuance of the status quo ante order proper?

NO. The purpose of the status quo ante order is to

maintain the status quo ante, that is, the last actual,
peaceable, uncontested state of things prior to the
controversy. Here, the last actual, peaceable,
uncontested state of things prior to the controversy was
the fact that there were no security guards on the
premises. Furthermore, a status quo ante order, by its
nature, cannot require the doing (or undoing) of acts.
(Mega-World Properties & Holdings Inc. v. Magestic
Finance & Investment Co., 9 December 2015, Bersamin J.)

---

RECEIVERSHIP

It is a provisional remedy wherein the court appoints a

representative to preserve, administer, dispose of and
prevent the loss or dissipation of the real or personal
property during the pendency of an action. It may be the
principal action itself or a mere provisional remedy; it
can be availed of even after the judgment has become
final and executory as it may be applied for to aid
execution or carry judgment into effect.

NOTE: Receivership under Rule 59 is a receivership

that is ancillary to a main action.

Purpose of receivership

Its object is the prevention of imminent danger to the

property. If the action does not require such protection
or preservation, the remedy is not receivership (Evelina
Chavez v. Court of Appeals, G.R. No. 174356, January 20,
2010).

33
 REMEDIAL LAW

Where does receivership under Rule 59 apply?
The receivership under Rule 59 is directed to the property
which is the subject of the action and does not refer to the
receivership authorized under the banking laws and other
rules or laws. Rule 59 presupposes that there is an action and
that the property subject of the action requires its
preservation (Riano, 2012).
Grounds for the discharge of a receiver
1. Posting of counter-bond by adverse party (Sec. 3, Rule
59);
3.
NOTE: Where counter-bond is insufficient or defective,
receiver may be re-appointed (Sec. 5, Rule 59).
NOTE: The affidavit must contain the following:
a. Applicant is the owner of the property claimed,
particular description of such entitlement to
possession;
b. Property is wrongfully detained, alleging cause of
detention according to applicant’s knowledge,
information and belief;
c. Property has not been taken for tax assessment or
fine, or seized by writ of execution, preliminary
attachment, in custodia legis, if so seized, that is
exempt or should be released from custody;
d. Actual market value of the property (Sec. 2, Rule 60).
The applicant must give a bond, executed to the adverse
party and double the value of the property (Sec. 2, Rule
60).

2. Appointment of receiver was made without sufficient
cause (Sec. 3, Rule 59);
3. Insufficient or defective applicant’s bond (Sec. 5, Rule
59);
4. Insufficient or defective receiver’s bond (Sec. 5, Rule 59);
5. Receiver no longer necessary (Sec. 8, Rule 59).
How is a Receivership terminated?
1. By the court motu propio or on motion by either party;
2. Based on the following grounds:
a. Necessity for receiver no longer exists;
b. Receiver asserts ownership over the property
(Martinez v. Graño, G.R. No. L-25437, August 14,
1926);
3. After due notice and hearing to all interested party (Sec.
8, Rule 59).
REPLEVIN
It is an action whereby the owner or person entitled to the
possession of goods or chattels may recover those goods or
chattels from one who has wrongfully distrained, taken or
detained such goods or chattels (Black’s 6th).
Replevin may be a main action or a provisional remedy. As a
principal action its ultimate goal is to recover personal
property capable of manual delivery wrongfully detained by a
person. The main action for replevin is primarily possessory
in nature and generally determines nothing more than the
right of possession (Riano, 2012).
The writ of replevin like the one issued in the present case
may be served anywhere in the Philippines (Fernandez v.
International Corporate Bank, now Union Bank of the
Philippines, G.R. No. 131283, October 7, 1999).
When may the writ be issued?
The writ of replevin may only be obtained when the
defendant in the action has not yet filed his answer to the
complaint where it is necessary to:
Is it required that the applicant be the owner?
The applicant need not be the owner of the property. It is
enough that he has a right to its possession (Yang v. Valdez,
G.R. No. 102998, July 5, 1996).
SPECIAL CIVIL ACTIONS
INTERPLEADER
Requisites of an Interpleader
1. The plaintiff claims no interest in the subject matter or
his claim thereto is not disputed;
2. There must be at least two or more conflicting claimants;
3. The parties to be interpleaded must make effective
claims; and
4. The subject matter must be one and the same (Sec. 1,
Rule 62).
The remedy is afforded not to protect a person against double
liability but to protect him against double vexation in respect
of one’s liability (Beltran v. People’s Homesite & Housing Corp.,
G.R. No. L-25138, August 28, 1969; Regalado, 2008).
DECLARATORY RELIEFS AND SIMILAR REMEDIES
Declaratory relief
It is a special civil action brought by:
a. A person interested under a deed, will, contract or
other written instrument; or
b. Whose rights are affected by a statute, executive
order or regulation, ordinance, or any other
governmental regulation.
When should a declaratory relief be availed of?
This action should be brought before breach or violation,
asking the court to determine any question of construction or
validity arising, and for a declaration of his rights or duties
thereunder (Sec. 1, Rule 63).

1. Protect plaintiff’s right of possession to property;
2. Prevent defendant from destroying, damaging or
disposing of the property.
Requisites for a writ to be issued
1. The application for the writ must be filed at the
commencement of the action or at any time before the
defendant answers (Sec. 1, Rule 60);
2. The application must contain an affidavit where the
applicant particularly describes the property that he is
the owner of the property or that he is entitled to the
possession thereof;
NOTE: The enumeration of subject matter is exclusive.
Can this special civil action converted to an ordinary
action?
YES. If before the final termination of the case, a breach or
violation of an instrument, or a statute, executive order or
regulation, ordinance, or any other governmental regulation
should take place (Sec. 6, Rule 63), an action for declaratory
relief will be converted into an ordinary action.
Declaratory relief is NOT proper if the purpose of the action is
to seek enlightenment of the true import of a judgment. In

34
 UST LAW PRE-WEEK NOTES 2017
this situation, the proper remedy is to file an action for
clarificatory judgment.
Where is it filed?
A party may file an action in the appropriate RTC. Hence, the
SC has no original jurisdiction over petition for declaratory
relief. It may only entertain the petition if it raises questions
that need to be resolved for the common good (Riano, 2013).
Similar remedies?
1. An action for the reformation of an instrument–RTC;
2. An action to quiet title to real property or remove clouds
therefrom – MTC or RTC depending on the assessed
value of the property;
3. An action to consolidate ownership – RTC
REVIEW OF JUDGMENTS AND FINAL ORDERS
OR RESOLUTION OF THE COMELEC AND COA
Mode of review
A judgment or final order or resolution of the Commission on
Elections and the Commission on Audit may be brought by
the aggrieved party to the Supreme Court on certiorari under
Rule 65, except as hereinafter provided (Sec. 2, Rule 64).
When is Rule 64 applicable?
It is only applicable to judgments, final orders, or resolution
of the: (a) COMELEC; and (b) COA. The judgment, final order,
or resolution of the Civil Service Commission is appealable to
the CA by filing a verified petition for review under Rule 43.
Fortune Life filed its petition for money claim in the COA,
however, on November 15, 2012, the latter denied said
petition. The petitioner received a copy of the COA decision
on December 14, 2012, and filed its motion for
reconsideration on January 14, 2013, believing that fresh
period rule applies because its Rule 64 petition is akin to a
petition for review brought under Rule 42. However, the
COA denied the motion, the denial being received by the
petitioner on July 14, 2014. Hence, the petitioner filed the
petition for certiorari carrying only the affidavit of service
executed by one Pascua, Jr., who declared that he had
served copies of the petition by registered mail. Did the
“fresh period rule” apply to the petition for certiorari
under Rule 64?
NO. The reglementary periods under Rule 42 and Rule 64 are
different. In the former, the aggrieved party is allowed 15
days to file the petition for review from receipt of the assailed
decision or final order, or from receipt of the denial of a
motion for new trial or reconsideration. In the latter, the
petition is filed within 30 days from notice of the judgment or
final order or resolution sought to be reviewed. The filing of a
motion for new trial or reconsideration, if allowed under the
procedural rules of the Commission concerned, interrupts the
period; hence, should the motion be denied, the aggrieved
party may file the petition within the remaining period, which
shall not be less than five days in any event, reckoned from
the notice of denial.
The petitioner filed its motion for reconsideration on January
14, 2013, which was 31 days after receiving the assailed
decision of the COA on December 14, 2012. Pursuant to
Section 3 of Rule 64, it had only five days from receipt of the
denial of its motion for reconsideration to file the petition.
Considering that it received the notice of the denial on July
14, 2014, it had only until July 19, 2014 to file the petition.
However, it filed the petition on August 13, 2014, which was
25 days too late. (Fortune Life Insurance Company, Inc. vs.
35
Commission On Audit (COA) Proper, GR No. 213525, January
27, 2015, Bersamin, J.)
CERTIORARI, PROHIBITION AND MANDAMUS
What are the instances when the petitions for certiorari,
mandamus and prohibition are NOT available?
1. Rule on summary procedure as to interlocutory order
issued by the lower court (Sec. 19(g), Rules on Summary
Procedure);
2. Writ of amparo against any interlocutory order (Sec.
11(l), Rule on Writ of Amparo);
3. Petition for writ of habeas data against any interlocutory
order (Sec. 13(l), A.M. No. 08-1-16);
4. Small claims cases against interlocutory order issued by
the lower court (Sec. 14(g) of A.M. No. 08-8-7-SC).
CERTIORARI
Petition for certiorari under Rule 65 is an original action in
itself. It is not the same as petition for review on certiorari
under Rule 45 which is a mode of appeal.
Requisites of a valid certiorari
1. The petition is directed against a tribunal, board or
officer exercising judicial or quasi-judicial functions;
2. Such tribunal, board or officer has acted without or in
excess of jurisdiction or with grave abuse of discretion;
and,
3. There is neither appeal nor any plain, speedy and
adequate remedy in the ordinary course of law for the
purpose of annulling or modifying the proceeding. There
must be capricious, arbitrary and whimsical exercise of
power for it to prosper (Sec. 1 Rule 65; Aggabao v.
Comelec, G.R. No. 163756, January 26, 2005; Riano, 2009).
NOTE: Where the remedy of appeal is available to
the aggrieved party, certiorari will not be
entertained. It cannot be used as replacement for
the lost remedy of appeal.
As a rule, motion for reconsideration is required before filing
a petition for certiorari to give the public the opportunity to
correct errors imputed to it. However, there are cases when
an MR is not required:
1. When the order is a patent nullity;
2. Question raised in the certiorari proceeding has been
duly raised and passed upon in the lower court;
3. Urgent necessity; and
4. The subject matter of the action is perishable.
NOTE: It is an improper remedy to assail the Resolutions in
questions issued by the Energy Regulation Commission in its
quasi-legislative power. (Rosales, et al. vs. ERC, et al. G.R. No.
201852, April 5, 2016)
Causing filed a complaint-affidavit in the Office of the
Regional Election Director claiming that the office order
issued by Mayor Brion was illegal. Subsequently, the
COMELEC En Banc dismissed the complaint-affidavit for
lack of probable cause to charge Mayor Brion. Hence,
Causing filed a petition for certiorari. Did Causing validly
file the petition for certiorari?
NO. The well-established rule is that the motion for
reconsideration is an indispensable condition before an
aggrieved party can resort to the special civil action for
certiorari under Rule 65 of the Rules of Court. The filing of the
motion for reconsideration before the resort to certiorari will
lie is intended to afford to the public respondent the
opportunity to correct any actual or fancied error attributed
 REMEDIAL LAW

to it by way of re-examination of the legal and factual aspects

of the case. Though the rule is not absolute, a perusal of the
circumstances of the case shows that none of the foregoing
exceptions was applicable herein. Hence, Causing should have
filed a motion for reconsideration because there was nothing
in the COMELEC Rules of Procedure that precluded the filing
of a motion for reconsideration in election offense cases.
(Causing vs. Comelec, GR No. 199139, September 09, 2014,
Bersamin, J.)
PROHIBITION
Is there a need for exhaustion of administrative remedies
before mandamus can lie?
Mandamus will not be issued when administrative remedies
are still available except:
1. If the party is in estoppel (Vda. de Tan v. Veterans
Backpay Commission, G.R. No. L-12944, March 30, 1959);
2. Only questions of law are raised (Madrigal v. Lecaroz,
G.R. No. L-46218, October 23, 1990).

This is a preventive remedy unlike a petition for certiorari Is mandamus applicable to discretionary duties?
which is a corrective remedy. The purpose of this petition is
to prevent encroachment, excess usurpation or assumption of Mandamus is only applicable to ministerial duties. However,
jurisdiction on the part of the tribunal, court, body or officer. mandamus can be used to the extent of requiring the
performance of a discretionary duty to act but not to require
Requisites of a valid prohibition performance of such duty in a particular manner except
when:
1. There must be a controversy; 1. There has been gross abuse of discretion;
2. Respondent is exercising judicial, quasi-judicial functions 2. Manifest injustice; or,
or ministerial functions; 3. Palpable excess of authority (Kant Wong v. PCGG, G.R. No.
3. Respondents acted without or in excess of its jurisdiction 79484, December 7, 1987).
or with grave abuse of discretion amounting to lack of
jurisdiction; and, Remedy where a motion to dismiss is wrongfully denied
4. There must be no appeal or other plain, speedy and
adequate remedy (Sec. 2, Rule 65). Prohibition, and not mandamus, is the remedy where a
motion to dismiss is wrongfully denied (Enriquez v.
NOTE: A motion to stay or quash the writ of execution is Macadaeg, G.R. No. L-2422, September 30, 1949).
a plain, speedy, and adequate remedy. Therefore, filing a
special civil action for prohibition without first availing Quo Warranto under Rule 66 vs.
of the same made the petition defective. (Orix Metro Quo Warranto in Electoral Proceedings
Leasing and Finance Corporation vs. Cardline, Inc., et al.,
G.R. No. 201417, January 13, 2016) Quo warranto under Rule Quo warranto in Electoral
66 Proceedings
Will the filing of a prohibition immediately enjoin the Issue is legality of the Issue is eligibility of the
subject? occupancy of the office by person elected (Riano, 2012).
virtue of a legal appointment
The mere filing thereof will not immediately enjoin the (Riano, 2012)
performance of an act sought to be prevented. The party must Grounds: usurpation, Grounds: ineligibility or
file a petition to obtain WPO/TRO pending final resolution of forfeiture, or illegal disqualification to hold the
the petition for prohibition. association (Sec. 1, Rule 66) office (Sec. 253, Omnibus
Election Code)
MANDAMUS Presupposes that the Petition must be filed within
respondent is already 10 days from the
Requisites of a valid mandamus actually holding office and proclamation of the
action must be commenced candidate (Riano, 2012).
1. There must be a clear legal right or duty; within 1 year from cause of
2. The act to be performed must be within the powers of ouster or from the time the
the respondent to perform; right of petitioner to hold
3. The respondent must be exercising a ministerial duty; office arose.
4. The duty or act to be performed must be existing (a Petitioner is person entitled Petitioner may be any voter
correlative right will be denied if not performed by the to office (Riano, 2012). even if he is not entitled to
respondent); and, the office (Riano, 2012).
5. There is no appeal or other plain, speedy and adequate Person adjudged entitled to Actual or compensatory
remedy in the ordinary course of law (Sec. 3, Rule 65). the office may bring a damages are recoverable in
separate action against the quo warranto proceedings
Grounds for mandamus respondent to recover under the Omnibus Election
damage. (Sec 11, Rule 66). Code.
1. When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act NOTE: If the dispute is as to the counting of votes or on
which the law specifically enjoins as a duty resulting matters connected with the conduct of the election, quo
from an office, trust or station; or, warranto is not the proper remedy but an election protest.
2. When any tribunal, corporation, board, officer or
person unlawfully excludes another from the use and Which court has jurisdiction?
enjoyment of a right or office to which the other is
entitled (Sec. 3, Rule 65). 1. It can be brought only in the SC, CA, or in the RTC
exercising jurisdiction over the territorial area where the
Generally, mandamus will not lie to enforce purely private respondent or any of the respondents resides;
contract rights, and will not lie against an individual unless
some obligation in the nature of a public or quasi-public duty NOTE: The petition may be brought in the SB in certain
is imposed. To preserve its prerogative character, mandamus cases but when in aid of its appellate jurisdiction (PD
is not used for the redress of private wrongs, but only in 1606, Sec. 4, as amended by R.A No. 8249; Riano, 2009).
matters relating to the public (Uy Kiao Eng v. Nixon Lee, G.R.
No. 176831, January 15, 2010).

36
 UST LAW PRE-WEEK NOTES 2017
2. When the Solicitor General commences the action, it may
be brought in a RTC in the City of Manila, in the CA, or in
the SC (Sec. 7, Rule 66).
---
Petitioners, who are complainants before the prosecutor’s
office in Davao City, filed a petition for certiorari,
prohibition and mandamus against the Secretary of
Justice to set aside the issuance of a department order
which directed all prosecutors to forward all cases already
filed against Celso de los Angeles of the Legacy Group to
the Secretariat of Special Panel created by the Department
of Justice in Manila. Was the filing of the petition proper?
NO. Petitions for certiorari and prohibition are directed only
to tribunals that exercise judicial or quasi-judicial functions.
The issuance of the department order was purely
administrative or executive function of the Secretary of
Justice. Nor is mandamus proper to control or review the
exercise of discretion. (Dacudao v. Secretary of Justice, 8
January 2013, e.b., Bersamin J.)
EXPROPRIATION
When Expropriation proper?
Only when:
1. The owner refuses to sell; or,
2. If the latter agrees, agreement as to the price cannot be
reached.
Requisites for a valid expropriation
1. Due process of law;
2. Payment of just compensation; and,
3. Taking must be for public use.
Properties subject to expropriation
All properties can be expropriated, except money and choses
in action.
“Choses in action” means
A right to personal things of which the owner has not the
possession, but merely a right of action for their possession
(Black’s Law, 2004).
Two stages in action for expropriation
1. Determination of the authority of the plaintiff to
expropriate – This determination includes an inquiry
into the propriety of the expropriation – its necessity and
the public purpose.
NOTE: The first stage will end in the issuance of an order
of expropriation if the court finds for plaintiff or in
dismissal of the complaint if it finds otherwise.
2. Determination of just compensation through the
court-appointed commissioners (Riano, 2007).
New system of immediate payment of initial just
compensation.
RA 8974 provides a modification of Sec. 2, Rule 67 where the
Government is required to make immediate and direct
payment to the property owner upon the filing of the
complaint to be entitled to a writ of possession. As a relevant
standard for initial compensation, the market value for the
property as stated in the tax declaration or the current
relevant zonal valuation of the BIR, whichever is higher, and
37
the value of the improvements and/or structures using the
replacement cost method.
NOTE: The intent of RA 8974 to supersede the system of
deposit under Rule 67 with the scheme of immediate
payment in cases involving national government
infrastructure projects is indeed very clear (MCWD v. J. King
and Sons, G.R. No. 175983, April 16, 2009).
Just compensation
Just compensation is defined as the full and fair equivalent of
the property sought to be expropriated. The measure is not
the taker’s gain but the owner’s loss. The compensation, to be
just, must be fair not only to the owner but also to the taker.
Even as undervaluation would deprive the owner of his
property without due process, so too would its overvaluation
unduly favor him to the prejudice of the public (National
Power Corporation v. De la Cruz, G.R. No. 156093, February 2,
2007).
Reckoning point for determining just compensation
The value of just compensation shall be determined as of the
date of the taking of the property or the filing of the
complaint, whichever came first (Sec. 4, Rule 67).
Effect of non-payment of just compensation
Non-payment of just compensation does not entitle the
private landowner to recover possession of the expropriated
lots. However, in cases where the government failed to pay
just compensation within 5 years from the finality of
judgment in the expropriation proceedings, the owners
concerned shall have the right to recover possession of their
property (Republic v. Lim, G.R. No. 161656, June 29, 2005).
Inverse condemnation
Inverse condemnation refers to the action for recovery of just
compensation filed by the property owner in a situation
wherein the State, local government, unit or public utility
seizes or takes private property for public use without filing
beforehand a complaint for expropriation. It is called inverse
because it is the property owner rather than the State which
initiated the proceedings for the payment of just
compensation. (National Power Corporation v. Makabangkit,
24 August 2011, Bersamin J.)
FORECLOSURE OF REAL ESTATE MORTGAGE
It is the remedy used for the satisfaction of any monetary
obligation, which a person owes to another, by proceeding
against the property used to secure said obligation.
Requisites of a valid foreclosure of REM
1. A finding of the amount due the plaintiff including
interest, cost and other charges approved by the court;
2. Order to defendant to pay said amount within a period of
not less than 90 days nor more than 120 days from entry
of judgment; and,
3. If the defendant defaults, the court should order the sale
at public auction of the mortgaged property (Sec. 2, Rule
68).
Cause of action in a foreclosure suit
Generally, non-payment of the mortgage loan, but it may be
on other grounds which under the contract warrant the
foreclosure, such as the violation of some of other conditions
therein (Regalado, 2010).
 REMEDIAL LAW

How is the deficiency recovered?
If there is a balance due to the plaintiff after applying the
proceeds of the sale, the court, upon motion, shall render
judgment against the defendant for any balance for which, by
the record of the case, he may be personally liable to the
plaintiff. Execution may issue immediately if the balance is all
due at the time of the rendition of the judgment. If not due,
the plaintiff shall be entitled to execution at such time as the
balance remaining becomes due under the terms of the
original contract, which time shall be stated in the judgment
(Sec. 6, Rule 68; Riano, 2009).
Liability of a third party mortgagor in case of deficiency
judgment
If such third person did not assume personal liability for the
payment of the debt, the extent of recovery in the judgment of
foreclosure shall be limited to the purchase price at the
foreclosure sale and no deficiency judgment can be recovered
against said person (Phil. Trust Co. v. Tan Suisa, 52 Phil 852).
Instances when court cannot render deficiency judgment
1. Case is covered by the Recto Law (Art. 1484, NCC);
2. Mortgagor is a non-resident and who at the time of the
filing of the action for foreclosure and during the
pendency of the proceedings was outside the Philippines,
unless there is attachment;
3. Mortgagor dies, the mortgagee may file his claim with
the probate court under Sec. 7, Rule 86; and,
4. Mortgagee is a third person but not solidarily liable with
the debtor.
Judicial Foreclosure vs. Extrajudicial Foreclosure
Judicial Foreclosure Extrajudicial Foreclosure
Requires court intervention No court intervention
necessary
There is only an equity of Right of redemption exists
redemption except when the
mortgagee is a bank
Governed by Rule 68 Governed by Act 3135
NOTE: A mortgagee may bring a personal action for the
amount due, instead of a foreclosure suit, in which case, he
will be deemed to have waived his right to proceed against
the property in a foreclosure proceeding (Movido v. RFC, G.R.
No. L-11990, May 29, 1959).
Equity of Redemption vs. Right of Redemption
certificate of foreclosure sale which in no case shall be more
than three (3) months after foreclosure, whichever is earlier.
The pendency of the action stops the running of the right of
redemption. Said right continues after perfection of an appeal
until the decision of the appeal (Consolidated Bank and Trust
Corp. v. IAC, G.R. No. 73341, August 21, 1987).
PARTITION
Requisites of a valid partition
1. Right to compel the partition;
2. Complaint must state the nature and extent of plaintiff's
title and a description of the real estate of which
partition is demanded; and,
3. All other persons interested in the property must be
joined as defendants (Sec. 1, Rule 69).
Instances when a co-owner may not demand partition
1. There is an agreement among the co-owners to keep the
property undivided for a certain period of time but not
exceeding ten years (Art. 494, NCC);
2. When partition is prohibited by the donor or testator for
a period not exceeding 20 years (Art. 494; Art. 1083,
NCC);
3. When partition is prohibited by law (Art. 494, NCC);
4. When property is not subject to physical division and to
do so would render it unserviceable for the use for which
it is intended (Art. 495, NCC);
5. When the condition imposed upon voluntary heirs
before they can demand partition has not yet been
fulfilled (Art. 1094, NCC).
Effect of non-inclusion of a co-owner in an action for
partition
1. Before judgment – Not a ground for a motion to
dismiss. The remedy is to file a motion to include the
party.
2. After judgment – Makes the judgment therein void
because co-owners are indispensable parties.
May creditors or assignees of co-owners intervene?
They may intervene and object to a partition affected without
their concurrence. But they cannot impugn a partition
already executed unless there has been fraud or in case it was
made notwithstanding a formal opposition presented to
prevent it (Sec. 12, Rule 69).
What is the prescription of the action?

Equity of Redemption Right of Redemption Action to demand partition of a co-owned property does not
Right of the defendant Right of the debtor, his prescribe. Prescription of action does not run in favor of a co-
mortgagor to extinguish the successor in interest or any owner or co-heir against his co-owner or co-heirs as long as
mortgage and retain judicial creditor or judgment there is a recognition of the co-ownership expressly or
ownership of the property by creditor of said debtor or any impliedly (Art. 494, NCC).
paying the debt within a person having a lien on the
period of not less than 90 nor property subsequent to the NOTE: A co-owner may acquire ownership of the property by
more than 120 days from the mortgage or deed of trust prescription where there exists a clear repudiation of the co-
entry of judgment or even under which the property is ownership and the co-owners are apprised of the claim of
after the foreclosure sale but sold to redeem the property adverse and exclusive ownership (Heirs of Restar v. Heirs of
prior to confirmation within 1 year from the Cichon, 475 SCRA 731; Riano, 2009).
registration of the sheriff’s
certificate of foreclosure sale FORCIBLE ENTRY
Governed by Rule 68 Governed by Secs. 29-31, AND UNLAWFUL DETAINER
Rule 39
Requisites of forcible entry
NOTE: In extrajudicial foreclosure, the mortgagor has the
right to redeem the property within one year from the 1. A person is deprived of possession of any land or
registration of the deed of sale. However, Sec. 47 of the building;
General Banking Act provides that in case of extrajudicial 2. by force, intimidation, threat, strategy, or stealth (FISTS);
foreclosure, juridical persons shall have the right to redeem and,
the property until, but not after, the registration of the

38
 UST LAW PRE-WEEK NOTES 2017

3. Action is brought within one (1) year from the unlawful ruled, however, that the demand upon a tenant may be oral
deprivation (Sec. 1, Rule 70). (Jakihaca v. Aquino, 181 SCRA 67).

Requisites of unlawful detainer Forcibel Entry vs. Unlawful Detainer

1. Possession of any land or building is unlawfully withheld Forcible Entry Unlawful Detainer
from a lessor, vendor, vendee, or other person after the (Detentacion) (Desahucio)
expiration or termination of the right to hold possession Demand to vacate is not Demand is jurisdictional if the
by virtue of any contract express or implied; required before the filing of ground is non-payment of
the action because occupancy rentals or failure to comply
NOTE: It has been held that prior physical possession by is illegal from the very with the lease contract.
the plaintiff is not an indispensable requirement in an beginning (Riano, 2009).
unlawful detainer case brought by a vendee or other The plaintiff must prove that The plaintiff need not have
person against whom the possession of any land is he was in prior physical been in prior physical
unlawfully withheld after the expiration or termination possession of the premises possession.
of a right to hold possession. (William Go v. Albert until he was deprived thereof
Looyuko, G.R. No. 19652, July 1, 2013, citing Sps. Maninang by the defendant.
v. CA, 373 Phil. 304) GR: The 1 year period is Period is counted from the
counted from the date of date of the last demand or last
2. Action is brought within one (1) year after such unlawful actual entry on the land. letter of demand in case of
deprivation or withholding of possession; and, non-payment of rentals or
3. Demand to pay or comply with the conditions of the XPN: When entry is by violation of the conditions of
lease and to vacate is made upon the lessee (Sec. 1, Rule stealth, the period must be the lease (Riano, 2009).
70). counted from the demand to
vacate upon learning of the
NOTE: If the complaint does not allege facts showing stealth (Riano, 2009).
compliance with the prescribed one-year period to file an
action for unlawful detainer, then it cannot properly qualify
as such action over which the MTC can exercise jurisdiction. Accion Interdictal vs. Accion Publiciana vs. Accion
Such allegations are jurisdictional and crucial. It may then be Reivindicatoria
an accion publiciana or accion reivindicatoria (Estate of
Manantan v. Somera, G.R. No. 145867, April 7, 2009). Accion Interdictal Accion Publiciana Accion
Reivindicatoria
Is a formal contract a prerequisite in unlawful detainer? Summary action A plenary action An action for the
for the recovery of for the recovery of recovery of
NO. Even if there is no formal contract between the parties, physical the real right of ownership, which
there can still be an unlawful detainer because implied possession where possession when necessarily
contracts are covered by ejectment proceedings. Possession the dispossession the dispossession includes the
by tolerance creates an implied promise to vacate the has not lasted for has lasted for recovery of
premises upon the demand of the owner (Peran v. CFI of more than 1 year. more than 1 year. possession.
Sorsogon, G.R. No. 57259, October 13, 1983). (possession de (possession de
facto) jure)
When can a lessor proceed against a lessee? All cases of RTC has RTC has
forcible entry and jurisdiction if the jurisdiction if the
Unless otherwise stipulated, such action by the lessor shall be unlawful detainer value of the value of the
commenced only after demand to pay or comply with the irrespective of the property exceeds property exceeds
conditions of the lease and to vacate is made upon the lessee, amount of Php 20,000 or Php Php 20,000 or Php
or by serving written notice of such demand upon the person damages or 50,000 in Metro 50,000 in Metro
found on the premises if no person be found thereon, and the unpaid rentals Manila. Manila.
lessee fails to comply therewith after 15 days in the case of sought to be
land or 5 days in the case of buildings (Sec. 2, Rule 70). recovered should MTC has MTC has
be brought to the jurisdiction if the jurisdiction if the
What constitutes a demand in unlawful detainer? MTC. value of the value of the
property does not property does not
1. To pay and to vacate – If the suit is based on defendant’s exceed the above exceed the above
failure to pay the rentals agreed upon; amounts. amounts.
2. To comply and to vacate – If suit is predicated upon the
defendant’s non-compliance with the conditions of the Ejectment cases are summary proceedings intended to
lease contract (Riano, 2012). provide an expeditious means of protecting actual possession
or right to possession of property.
The notice giving the lessee the alternative either to pay the
increased rental or otherwise vacate the land is not the NOTE: Ejectment suits can be maintained with respect to all
demand contemplated by the Rules of Court in unlawful kinds of land, but agricultural lands under tenancy are now
detainer cases. When after such notice, the lessee elects to subject to the land reform laws, and cases arising thereunder
stay, he thereby merely assumes the new rental and cannot are within the jurisdiction of Regional Trial Court acting as
be ejected until he defaults in said obligation and necessary Special Agrarian Court (Regalado, 2010).
demand is first made (Peñas, Jr. v.Court of Appeals, G.R. No.
112734, July 7, 1994). Rule in case of tacita reconduccion in relation to unlawful
detainer
What is the form of the demand?
Under Art. 1670 of NCC, if at the end of lease, the lessee
The demand may be in the form of a written notice served continues to enjoy the property leased for 15 days with
upon the person found in the premises. The demand may also consent of the lessor, and no notice to the contrary has been
be made by posting a written notice on the premises if no given, it is understood that there is an implied new lease.
person can be found thereon (Sec. 2, Rule 70). It has been

39
 REMEDIAL LAW

When there is tacit reconduccion, the lessee cannot be
deemed as unlawfully withholding the property. There is no
unlawful detainer (Riano, 2012).
Is judgment in forcible entry and unlawful detainer cases
conclusive as to the title to the property?
NO. The judgment rendered in an action for forcible entry or
unlawful detainer is conclusive only as to possession of the
property. Said judgment does not bind the title or affect the
ownership of the land or building. A distinct and separate
action between the same parties respecting title to the land or
building may be had (Sec. 18, Rule 70).
CONTEMPT
It is disobedience to the court by acting in opposition to its
authority, justice and dignity. It signifies not only willful
disregard or disobedience of court’s orders, but such conduct
as tends to bring the authority of court and administration of
law into disrepute or in some manner to impede the due
administration of justice (Regalado v. Go, G.R. No. 167988,
Febraury 6, 2007; Riano, 2012).
Kinds of contempt
any real property by the judgment or process of any
court of competent jurisdiction, enters or attempts or
induces another to enter into or upon such real property,
for the purpose of executing acts of ownership or
possession, or in any manner disturbs the possession
given to the person adjudged to be entitled thereto;
3. Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting
direct contempt under section 1 of this Rule;
4. Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of
justice;
5. Assuming to be an attorney or an officer of a court, and
acting as such without authority;
6. Failure to obey a subpoena duly served;
7. The rescue, or attempted rescue, of a person or property
in the custody of an officer by virtue of an order or
process of a court held by him (Sec. 3, Rule 71).
NOTES:
1. Failure by counsel to inform the court of the death of his
client constitutes indirect contempt within the purview of
Sec. 3, Rule 71, since it constitutes an improper conduct
tending to impede the administration of justice.

1. According to nature (depending on the nature and effect 2. If a person charged with indirect contempt fails to appear
of the contemptuous act) on that date after due notice without justifiable reason, the
a. Civil court does not declare the respondent in default. Instead,
b. Criminal court shall order his arrest just like the accused in a criminal
2. According to the manner of commission case (Riano, 2012).

Direct Contempt vs. Indirect Contempt

Direct Contempt Indirect Contempt

Committed in the When shall imprisonment be imposed?
Not committed in the
presence of or so near a
presence of the court. When the contempt consists in the refusal or omission to do
court.
Summary in nature and no Punished after being an act which is yet in the power of the respondent to perform,
appeal charged and heard he may be imprisoned by order of the court concerned until
Remedy is certiorari or he performs it (Sec.8, Rule 71).
Remedy is appeal
prohibition
Certiorari/Prohibition Does a city council have the power to subpoena witness
Immediately executory and to punish non-attendance for contempt?
suspends execution
unless a bond is filed
provided there is a bond
NO. A city council does not have the power since there is
What court has jurisdiction? neither a constitutional nor statutory conferment on it of
such powers. Unlike Congress whose contempt power is sui
1. Where the act was committed against the RTC or a court generis and inheres in it as a coordinate branch of the
of equivalent or higher rank, or against an officer government, no such power can be implied in the legislative
appointed by it, the charge may be filed with such court; functions delegated to local legislative bodies, especially since
2. Where the act was committed against a lower court, the the contempt power is essentially of a judicial nature (Negros
charge may be filed with the RTC in which the lower Oriental II Electric Cooperative, Inc., et al., v. Sangguniang
court is sitting. It may also be filed in lower court against Panlungsod of Dumaguete, et al., G.R. No. 72492. November 5,
which the contempt was allegedly committed. The 1987).
decision of the lower court is subject to appeal to RTC;
3. Where the act was committed against persons or entities Is contempt akin to libel? May the principle of privileged
exercising quasi-judicial functions, the charge shall be communication be invoked in a contempt proceeding?
filed in RTC of the place wherein the contempt was
committed (Sec. 12, Rule 71; Riano, 2009). In People v. Castelo, the Court ruled that contempt is akin to
libel and that the principle of privileged communication may
What are the acts deemed punishable as indirect be invoked in a contempt proceeding. The Court ruled:
contempt?
While the present case involves an incident of contempt the
After a charge in writing has been filed, and an opportunity same is akin to a case of libel for both constitute limitations
given to the respondent to comment thereon within such upon freedom of the press or freedom of expression
period as may be fixed by the court and to be heard by guaranteed by our Constitution. So what is considered a
himself or counsel, a person guilty of any of the following acts privilege in one may likewise be considered in the other. The
may be punished for indirect contempt: same safeguard should be extended to one whether anchored
in freedom of the press or freedom of expression. Therefore,
1. Misbehavior of an officer of a court in the performance of this principle regarding privileged communications can also
his official duties or in his official transactions; be invoked in favor of the appellant. (Philip Sigrid A. Fortun v.
2. Disobedience of or resistance to a lawful writ, process, Prima Jesusa B. Quinsayas, et al.; G.R. No. 194578. February 13,
order, or judgment of a court, including the act of a 2013)
person who, after being dispossessed or ejected from

40
 UST LAW PRE-WEEK NOTES 2017
SPECIAL PROCEEDINGS
What is a Special Proceeding?
A special proceeding is an action “by which a party seeks to
establish a status, right, or a particular fact,” has one definite
party, who petitions or applies for a declaration of a status,
right, or particular fact, but no definite adverse party.
(Montañer vc CA, G.R. No. 174975, January 20, 2009)
Subject Matter of Special Proceedings
1. Settlement of the estate of deceased persons;
2. Escheat;
3. Guardianship and custody of children;
4. Trustees;
5. Adoption;
6. Rescission and revocation of adoption;
7. Hospitalization of insane persons;
8. Habeas Corpus;
9. Change of name;
10. Voluntary dissolution of corporations;
11. Judicial approval of voluntary recognition of minor
natural children;
12. Constitution of family home;
13. Declaration of absence and death; and
14. Cancellation or correction of entries in the civil
registry (Sec. 1, Rule 72).
NOTE: The list under Rule 72, Section 1 is not exclusive. Any
petition which has for its main purpose the establishment of a
status, right or a particular fact may be included as a special
proceeding. Other special proceedings under various laws
include: summary proceedings under the Family Code,
adoption, liquidation, writs of amparo, habeas data, kalikasan,
etc.
WRIT OF HABEAS CORPUS
Writ of Habeas Corpus
It is a writ directed to the person detaining another and
commanding him to produce the body of the prisoner at a
certain time and place with the day and the cause of his
caption and detention, to do, submit to, and receive
whatsoever, the court or judge awarding the writ shall
consider in that behalf.
Essentially a writ of inquiry, granted to test the right under
which a person is detained, and to relieve a person if such
restrain is illegal.
It is regarded as “palladium of liberty”, a prerogative writ
which does not issue as a matter of right but in the sound
discretion of the court or judge. (Mangila v. Judge Pangilinan,
G.R. No. 160739, July 17, 2013, Bersamin, J.)
Kinds of writ of habeas corpus
1. Preliminary citation is issued when a government
officer has the person in his custody, the illegality of
which is not patent, to show cause why the writ of
habeas corpus should not issue.
2. Peremptory writ is issued when the cause of the
detention appears to be patently illegal and the non-
compliance therewith is punishable (Lee Yick Hon v.
Collector of Customs, G.R. No. 16779, March 30, 1921).
In a habeas corpus petition, the order to present an individual
before the court is a preliminary step in the hearing of the
petition. The respondent must produce the person and
explain the cause of his detention. However, this order is not
a ruling on the propriety of the remedy or on the substantive
41
matters covered by the remedy. Thus, the Court’s order to the
CA to conduct a factual hearing was not an affirmation of the
propriety of the remedy of habeas corpus (In the Matter of the
Petition for Habeas Corpus of Alejano vs. Cabuay, G.R. No.
160792, August 25, 2005).
NOTE: It must be kept in mind that in both habeas corpus and
certiorari proceedings is whether an inferior court has
exceeded its jurisdiction, the former involves a collateral
attack on the judgment and “reaches the body but not the
record,” while the latter assails directly the judgment and
“reaches the record but not the body.” (Velasco vs. CA
G.R.No.118644 July 7, 1995)
What is the scope of the writ?
Habeas corpus extends to:
1. Cases of illegal confinement or detention by which a
person is deprived of his liberty; and
2. Cases by which the rightful custody of the person is
withheld from the person entitled thereto (Sec. 1, Rule
102).
Ormilla, together with Rivera and Navarro, were convicted
of two counts of rape and sentenced to reclusion perpetua
for each count. He is presently confined at the National
Penitentiary in Muntinlupa and has served approximately
17 years of his sentence. Ormilla filed a petition for the
issuance of a writ of habeas corpus so he could apply for
pardon or parole. However, the Director of Bureau of
Corrections contended that the penalty imposed under R.A.
No. 8353 for rape committed by two or more persons
is reclusion perpetua to death. Under Article 70 of the RPC,
the duration of perpetual penalties is 30 years. Since
Ormilla was sentenced to reclusion perpetua for each
count of rape, the aggregate of the two penalties is 60
years. Ormilla has yet to complete the service of his first
sentence, as he has been in confinement for only 17 years.
May the writ of habeas corpus be granted to Ormilla?
NO. The writ of habeas corpus may also be availed of where,
as a consequence of a judicial proceeding, (a) there has been a
deprivation of a constitutional right resulting in the restraint
of a person; (b) the court had no jurisdiction to impose the
sentence; or (c) an excessive penalty has been imposed, as
such sentence is void as to such excess. None of the
mentioned circumstances is present in the instant case. (In
The Matter Of The Application For The Writ Of Habeas Corpus
Reclassifying Sentence To R.A. No. 8353 In Behalf Of, Rogelio
Ormilla, Et. Al v. The Director, Bureau of Corrections, G.R. No.
170497, January 22, 2007)
Anita Mangila and four others were charged with
syndicated estafa and the cases were filed in the Municipal
Trial Court in Cities. They were alleged to be recruiting
and promising employment without lawful authority from
the POEA. Judge Pangilinan conducted a preliminary
investigation on the complainants. After examining
Palayon, one of the complainants, he issued a warrant of
arrest of Mangila and her cohorts. Mangila was arrested
and detained in the headquarters of the NBI. Mangila filed
in the Court of Appeals a petition for habeas corpus to
obtain her release from detention. Her petition averred
that the remedy was available. Is she correct?
NO. A writ of habeas corpus is a prerogative writ which is
issued in the sound discretion of the court or judge. Judge
Pangilinan issued the order of arrest after examining Palayon,
one of the complainants, against Mangila and her cohorts. If
he, as the investigating judge, considered Palayon’s evidence
sufficient for finding probable cause against Mangila and her
cohorts wherein the Court justifiably presumes from his act
of referring the case to the Office of the City Prosecutor on the
day immediately following the preliminary investigation he
conducted, her petition for habeas corpus could not be the
 REMEDIAL LAW
proper remedy by which she could assail the adequacy of the
adverse finding. A restraint that is lawful and pursuant to a
court process cannot be inquired through habeas corpus.
(Mangila v. Judge Pangilinan, G.R. No. 160739, July 17, 2013,
Bersamin, J.)
What is the purpose of the writ?
The essential object and purpose of the writ of habeas corpus
is to inquire into all manner of involuntary restraint as
distinguished from voluntary and to relieve a person
therefrom if such restraint is illegal.
Jurisprudence has laid down additional purposes of the writ,
to wit:
1. To obtain relief from illegal confinement;
2. To liberate those who may be imprisoned without
sufficient cause; and,
3. To deliver them from unlawful custody. (Villavicencio v.
Lukban, G.R. No. L-14639, March 25, 1919)
NOTE: The writ of habeas corpus is not designed to interrupt
the orderly administration of the laws by a competent court
acting within the limits of its jurisdiction, but is available only
for the purpose relieving from illegal restraint.
While generally, the writ of habeas corpus will not be granted
when there is an adequate remedy like writ of error, appeal,
or certiorari, it may still be available in exceptional cases
(Herrera, citing 39 C.J.S. Habeas corpus §13, 486-488)
Is the writ of habeas corpus and certiorari ancillary to
each other?
Yes. The writ of habeas corpus and certiorari may be ancillary
to each other where necessary to give effect to the
supervisory powers of the higher courts. A writ of habeas
corpus reaches the body and the jurisdictional matters, but
not the record. A writ of certiorari reaches the record but not
the body. Hence, a writ of habeas corpus may be used with the
writ of certiorari for the purpose of review (Galvez v. CA, G.R.
No. 114046, Oct. 24, 1994).
The person released by virtue of habeas corpus may no longer
be imprisoned again for the same offense, except by the
lawful order or process of a court having jurisdiction of the
cause or offense (Sec. 17, Rule 102).
What kind of restraint is contemplated under the writ?
Actual and effective and not merely nominal or moral
restraint is required. (Zagala v. Illustre, G.R. No. 23999
November 21, 1926)
Is actual physical restraint always required?
NO. Actual physical restraint is not always required; any
restraint which will prejudice freedom of action is sufficient.
(Moncupa v. Enrile, G.R. No. L-63345, January 30, 1986)
GR: Release of detained person, whether permanent or
temporary, makes the petition for habeas corpus moot.
XPNs:
a. Doctrine of Constructive Restraint – Unless there are
restraints attached to his release which precludes
freedom of action in which case the Court can still
inquire into the nature of his involuntary restraint
The essential object and purpose of the writ of habeas
corpus is to inquire into all manner of involuntary
restraint. Any restraint which will preclude freedom of
action is sufficient. (Villavicencio v. Lukban, G.R. No. L-
14639, March 25, 1919)
42
b. Violation of freedom from threat by the apparent threat
to life, liberty and security of their person from the
following facts:
a. Threat of killing their families if they tried to escape
b. Failure of the military to protect them from
abduction
c. Failure of the military to conduct effective
investigation (Secretary of Justice v. Manalo, G.R. No.
180906, October 7, 2008)
May temporary release constitute restraint?
Yes, provided the following elements are present:
a. Where a person is continued to be unlawfully denied
one or more of his constitutional rights;
b. Where there is present denial of due process;
c. Where the restraint is not merely involuntary but
appear to be unnecessary; and,
d. Where a deprivation of freedom originally valid has in
light of subsequent developments become arbitrary
(Moncupa v. Enrile, G.R. No. L-63345, January 30, 1986)
Can the Supreme Court and Court of Appeals take
cognizance of a case of habeas corpus with respect to
custody of minors?
Yes. Although the Family Court where the petitioner resides
or where the minor may be found has exclusive and original
jurisdiction to hear petitions for habeas corpus with respect
to custody of minors, the SC and the CA can take cognizance
of such petition in order that it can be enforceable within the
Philippines.
However, the return can be heard in the FC/RTC (if there is
no FC in the judicial region), and there is no need to file a
separate petition for custody because the issue can be
ventilated in the petition for the writ.
NOTE: The general rule is that parents should have custody
over their minor children. But the State has the right to
intervene where the parents, rather than care for such
children, treat them cruelly and abusively, impairing their
growth and well-being and leaving them emotional scars that
they carry throughout their lives unless they are liberated
from such parents and properly counselled. (In The Matter Of
The Petition For Habeas Corpus Of Minor Shang Ko Vingson Yu
Shirly Vingson Shirly Vingson Demaisip V. Jovy Cabcaban. Udk
No. 14817, January 13, 2014)
From November 7, 2009 to December 19, 2009, Salibo and
other Filipinos were allegedly in Saudi Arabia for the Haji
Pilgrimage. Salibo returned to the Philippines on
December 20, 2009. On August 3, 2010, Salibo learned that
police officers of Datu Hofer Police Station in Maguindanao
suspected him to be Butukan S. Malang. Malang was one of
the 197 accused of 57 counts of murder for allegedly
participating in the November 23, 2009 Maguindanao
Massacre and had a pending warrant of arrest issued by
the trial court.
Salibo presented himself before the police officers to clear
his name and explain that he was not Malang and that he
could not have participated in the massacre because he
was at Saudi Arabia at that time. He presented his
passport, boarding passes and other documents to prove
that Salibo was in Saudi from November 7 to December 19,
2009. However, the police officers apprehended Salibo.
Does the writ of habeas corpus apply in a case of mistaken
identity?
YES. Habeas Corpus is the proper remedy for a person
deprived of liberty due to mistaken identity. In such cases, the
person is not under any lawful process and is continuously
 UST LAW PRE-WEEK NOTES 2017
being illegally detained. Salibo was not arrested by virtue of
any warrant charging him of an offense. He was not
restrained under a lawful process or an order of the court. He
was illegally deprived of liberty and has correctly availed
himself of a Petition for Habeas Corpus. (In the Matter of the
Petition for Habeas Corpus of Datukan Malang Salibo v.
Warden, Quezon City Jail, G.R. No. 197597, April 08, 2015)
Who may apply for the petition of the writ?
1. The party for whose relief it is intended; or
2. By some person on his behalf (Rule 102, Sec. 3)
 Some person – any person who has a legally justified
interest in the freedom of the person whose liberty is
restrained or who shows some authorization to make
the application (Velasco v. CA, G.R. No. 118644, July 7,
1995)
NOTE: The writ may also be availed by judicial guardians
(Hernandez v. San Juan-Santos, G.R. No. 166470, August 07,
2009).
Who makes the Return and what are its Contents?
It is made by the person or officer in whose custody the
prisoner is found, alleging the following:
1. Whether he has or has not the party in his custody or
power, or under restraint
2. If he has the party in his custody or power, or under
restraint, the authority and the true and whole cause
thereof, set forth at large, with a copy of the writ, order
execution, or other process, if any, upon which the party
is held
3. If the party is in his custody or power or is restrained by
him, and is not produced, particularly the nature and
gravity of the sickness or infirmity of such party by
reason of which he cannot, without danger, be bought
before the court or judge
What must be alleged in the Return if the person or officer
has custody of the prisoner and transferred the custody of
the latter to another?
If he has the party in his custody or power, or under restraint,
and has transferred such custody or restraint to another,
particularly to whom, at what time, for what cause, and by
what authority such transfer was made. (Rule 102, Sec. 10)
NOTE: The return or statement shall be signed by the person
who makes it; and shall also be sworn by him if the prisoner
is not produced, and in all other cases, unless the return is
made and signed by a sworn public officer in his official
capacity. (Rule 102, Sec. 11)
When is the Return considered as an evidence and when is
it considered only a plea?
When the prisoner is in custody under a warrant of
commitment in pursuance of law, the return shall be
considered prima facie evidence of the cause of restraint.
If he is restrained of his liberty by any alleged private
authority, the return shall be considered only as a plea of the
facts therein set forth, and the party claiming the custody
must prove such facts. (Rule 102, Sec. 13)
When is the writ disallowed or discharged?
1. The person alleged to be restrained of his liberty is in
custody of an officer or Under process issued by the
court or judge or By virtue of a judgment or order of a
court of record and said court had jurisdiction to issue
the process, render the judgment or make the order; or
43
2. If jurisdiction appears after the writ is allowed despite
any informality or defect in the process, judgment, or
order; or
3. Person is charged with or convicted of an offense in the
Philippines; or
4. Suffering from imprisonment under lawful judgment.
(Rule 102, Sec. 4)
5. If it appears that the prisoner was lawfully committed,
and is plainly and specifically charged in the warrant of
commitment with an offense punishable by death (Rule
102, Sec. 14)
6. Even if the arrest of a person is illegal, due to
supervening events may bar release:
a. Issuance of a judicial process (Sayo v. Chief of Police
of Manila, G.R. No. L-2128, May 12, 1948)
Judicial process is defined as a writ, warrant,
subpoena, or other formal writing issued by
authority of law. (Malaloan v. CA, G.R. No. 104879,
May 6, 1994)
b. The filing before a trial court a complaint which
issued a hold departure order and denied motion to
dismiss and to grant bail (Velasco v. CA, G.R. No.
118644, July 7, 1995)
c. Filing of an information for the offense for which the
accused is detained bars the availability of writ of
habeas corpus (Velasco v. CA, G.R. No. 118644, July 7,
1995)
When is habeas corpus not applicable?
Habeas corpus is not applicable when the purpose is to:
1. Enforce a right of service;
2. Determine whether a person has committed a crime;
3. Determine a disputed interstate boundary line;
4. Punish respondent;
5. Recover damages or other money award;
6. Assert or vindicate denial of right to bail (In re: Azucena
Garcia, G.R. No. 141443, Nov. 18, 2000);
7. Correct errors in appreciation of facts or law; and,
8. To enforce marital rights including coverture and living
in conjugal dwelling (Ilusorio v. Bildner, G.R. No. 139808,
May 12, 200).
WRIT OF AMPARO
A.M. NO. 07-9-12-SC
What is a Writ of Amparo?
It is a remedy available to any person whose right to life,
liberty and security is violated or threatened with violation
by an unlawful act or omission of a public official or
employee, or of a private individual or entity. The writ shall
cover extralegal killings and enforced disappearances or
threats thereof (Sec. 1, A.M. No. 07-9-12-SC).
The remedy provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence
to make the appropriate reliefs available to the petitioner. It
is not an action to determine criminal guilt requiring proof
beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative responsibility
requiring substantial evidence that will require full and
exhaustive proceedings (Deliberations of the Committee on the
Revision of the Rules of Court, Aug. 10, 2007, Aug. 24, 2007,
Aug. 31, 2007 and September 20, 2008).
Who may file?
1. Aggrieved party; or,
2. Qualified person or entity in the following order:
a. Any member of the immediate family namely: the
spouse, children and parents of the aggrieved party;
b. Any ascendant, descendant or collateral relative of
the aggrieved party within the fourth civil degree of
 REMEDIAL LAW
consanguinity or affinity, in default of those
mentioned in the preceding paragraph; or
c. Any concerned citizen, organization, association or
institution if there is no known member of the
immediate family or relative of the aggrieved party
Effect of filing of the writ
The filing of a petition by the aggrieved party suspends the
right of all other authorized parties to file similar petitions.
(Sec. 2)
Where should the petition be filed?
1. RTC where the threat, act or omission was committed or
any of its element occurred; or
2. Sandiganbayan—unlike the writ of habeas corpus,
because public officials and employees will be
respondents in amparo petitions; or
3. Court of Appeals; or
4. Supreme Court; or
5. Any justice of such courts (Sec. 3)
NOTE: May be filed on any day, including Saturdays, Sundays,
and holidays; from morning until evening.
Where is the writ enforceable?
The writ shall be enforceable anywhere in the Philippines.
(Sec. 3)
Are docket fees required to be paid when filing the
petition?
No. Petitioner shall be exempted from payment of docket fees
and other lawful fees when filing the petition. (Sec. 4)
Contents of the petition
1. The personal circumstances of the petitioner;
2. The name and personal circumstances of the respondent
responsible for the threat, actor omission or if the name
is unknown or uncertain, the respondent may be
described by an assumed appellation;
3. The right to life, liberty and security of the aggrieved
party violated or threatened with violation by an
unlawful act or omission of the respondent, and how
such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
4. The investigation conducted, if any, specifying the
names, the personal circumstances and addresses of the
investigating authority or individuals, as well as the
manner and conduct of the investigation, together with
any report;
5. The actions and recourses taken by the petitioner to
determine the fate or whereabouts of the aggrieved
party and the identity of the person responsible for the
threat, act or omission; and,
6. The relief prayed for.
May include a general prayer and equitable reliefs.
When shall the writ be issued?
Upon filing of petition, the writ shall be immediately issued if
on its face it ought to issue.
What is the quantum of proof in the application for the
issuance of the writ?
For the protective writ of amparo to issue, allegation and
proof that the persons subject thereof are missing are not
enough. It must also be shown and proved by substantial
evidence that the disappearance was carried out by, or with
the authorization, support or acquiescence of, the State or a
political organization, followed by a refusal to acknowledge
44
the same or give information on the fate or whereabouts of
said missing persons, with the intention of removing them
from the protection of the law for a prolonged period of time.
Simply put, the petitioner in an amparo case has the burden
of proving by substantial evidence the indispensable element
of government participation. (Egardo Navia, Ruben Dio and
Andrew Buising vs. Virginia Pardico, for and in behalf in
representation of Benhur Pardico., G.R. No. 184467, June 19,
2012)
What are the contents of the return?
1. The lawful defenses to show that the respondent did not
violate or threaten with violation the right to life, liberty
and security of the aggrieved party, through any act or
omission;
2. The steps or actions taken by the respondent to
determine the fate or whereabouts of the aggrieved
party and the person responsible for the threat, act or
omission;
3. All relevant information in the possession of the
respondent pertaining to the threat, act or omission
against the aggrieved party; and,
4. If the respondent is a public official or employee the
return shall further state the actions that have been or
will still be taken:
a. to verify the identity of the aggrieved party;
b. to recover and preserve evidence related to the
death or disappearance of the person identified in
the petition which may aid in the prosecution of the
person or persons responsible;
c. to identify witnesses and obtain statements from
them concerning the death or disappearance;
d. to determine the cause, manner, location and time
of death or disappearance as well as any pattern or
practice that may have brought about the death or
disappearance;
e. to identify and apprehend the person or persons
involved in the death or disappearance; and
f. to bring the suspected offenders before a competent
court.; and
5. The return shall also state matters relevant to the
investigation, its resolution and the prosecution of the
case.
When should the Return be filed?
Respondent must file a verified written return within 72
hours after service of writ, together with supporting
affidavits. No general denial allowed. (Sec. 9)
What is the effect of failure to file a return?
In case the respondent fails to file a return, the court, justice,
or judge shall proceed to hear the petition ex parte. (Sec. 12)
What is the Omnibus Waiver Rule?
The Omnibus Waiver Rule states that all defenses not raised
in the return (answer) are deemed waived (Sec. 10, Ibid.). It is
different from the Omnibus Motion Rule which states that
defenses not raised in a Motion to Dismiss are deemed
waived.
NOTE: A motion to dismiss is a prohibited pleading in an
application for a writ of amparo. The filing of a motion to
dismiss even on the ground of lack of jurisdiction over the
subject matter and the parties is proscribed to avoid undue
delay. The grounds of a motion to dismiss should be included
in the return and resolved by the court, using its reasonable
discretion as to the time and merit of the motion (Sec. 11,
Ibid.).
Return is the proper responsive pleading; memorandum is
a prohibited pleading
 UST LAW PRE-WEEK NOTES 2017
The insistence on filing an answer was inappropriate. It is the
return that serves as the responsive pleading for petitions for
the issuance of Writs of Amparo. The requirement to file an
answer is contrary to the intention of the court to provide a
speedy remedy to those whose right to life, liberty and
security are violated or are threatened to be violated (Ibid).
A memorandum, on the other hand, is a synthesis of the
claims of the party litigants and is a final pleading usually
required before the case is submitted for decision. One
cannot substitute for the other since these submissions have
different functions in facilitating the suit. More importantly, a
memorandum is a prohibited pleading under the Rule on the
writ of Amparo (Ibid).
Archiving and Revival of Cases
If the case cannot proceed for valid cause, the court shall not
dismiss the petition but shall archive it. If after the lapse of
two (2) years from the notice of archiving, the petition shall
be dismissed for failure to prosecute. (Sec. 20)
What are Extralegal killings?
These are killings committed without due process of law,
legal safeguards or judicial proceedings (Secretary of National
Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008).
What is enforced disappearance? What are its elements?
(1) The arrest, detention, or abduction of persons;
(2) By, or with the authorization, support or acquiescence of,
a State or a political organization;
(3) Followed by a refusal to acknowledge that deprivation of
freedom or to give information on the fate or
whereabouts of those persons;
(4) With the intention of removing from the protection of
the law for a prolonged period of time [Section 3(g) of RA
No. 9851; Edgardo Navia vs. Virginia Pardico, G.R. No.
184467, June 19, 2012]
Is a petition for a writ of amparo the proper recourse for
obtaining parental authority and custody of a minor child?
NO. The writ of amparo is confined only to cases of
extrajudicial killings and enforced disappearances, or to
threats thereof. (Infant Julian Yusa Y Caram, Represented By
His Mother, Ma. Christina Yusa y Caram v. Atty. Marijoy D.
Segui, Atty. Sally D. Escutin, Vilma B. Cabrera, AND Celia C.
Yangco, G.R. No. 193652, 05 August 2014)
Distinguish the Privilege of the Writ of Amparo from the
Actual Order called the Writ of Amparo
The privilege includes the availment of the entire procedure
outlined in the Rule. After examining the petition and its
attached affidavits, the return and the evidence presented in
the summary hearing, the judgment should detail the
required acts from the respondent that will mitigate, if not
totally eradicate, the violation of or threat to the petitioner’s
life, liberty or security.
A judgment which simply grants “the privilege of the writ”
cannot be executed. It is tantamount to a failure of the judge
to intervene and grant judicial succour to the petitioner.
Petitions filed to avail of the privilege of the writ of amparo
arise out of very real and concrete circumstances. Judicial
responses cannot be as tragically symbolic or ritualistic as
granting the privilege of the writ of amparo (Secretary Leila
M. De Lima, Director Nonnatus R. Rojas and Deputy Director
Reynaldo O. Esmeralda v. Magtanggol B. Gatdula; G.R. No.
204528, February 19, 2013).
45
What is the effect of the Doctrine of Command
Responsibility in amparo proceedings?
If command responsibility were to be invoked and applied to
these proceedings, it should, at most, be only to determine the
author who, at the first instance, is accountable for, and has
the duty to address, the disappearances or harassments
complained of, so as to enable the Court to devise remedial
measure that may be appropriate under the premises to
protect rights covered by the writ of amparo (Rubrico v.
Macapagal-Arroyo, GR. No. 183871, February 18, 2010).
The doctrine of command responsibility may be used to
determine whether respondents are accountable for and have
the duty to address the abduction of petitioner in order to
enable the courts to devise remedial measures to protect his
rights (Rodriguez v. Arroyo, GR. No. 191805 and 193160,
November 15, 2011).
Is a separate action barred?
NO. The Rule shall neither preclude the filing of separate
criminal, civil or administrative actions (Sec. 21)
But a claim for damages should instead be filed in a proper
civil action.
Is the amparo proceeding criminal in nature? What step
should be taken in case of criminal prosecution?
NO. The amparo proceeding is not criminal in nature and will
not determine the criminal guilt of the respondent. If the
evidence so warrants, the amparo court may refer the case to
the Department of Justice for criminal prosecution.
Effect of filing a criminal action
When a criminal action has been commenced, no separate
petition for the writ shall be filed.
Reliefs under the writ shall be available by motion in a
criminal case.
Procedure under this Rule shall govern the disposition of the
reliefs available under the writ of amparo. (Sec. 22)
Explain the Rules on Consolidation.
When a criminal action is filed subsequent to the filing of a
petition for the writ, the latter shall be consolidated with the
criminal action.
When a criminal action and a separate civil action are filed
subsequent to a petition for a writ of amparo, the latter shall
be consolidated with the criminal action.
After consolidation, the procedure under this Rule shall
continue to apply to the disposition of the reliefs on the
petition. (Sec. 23)
What are the interim reliefs available to the petitioner?
When shall it be issued?
1. Temporary Protection Order (TPO). It is issued upon
motion or motu proprio.
2. Inspection Order. Issued only upon verified motion and
after due hearing.
3. Production Order. Issued only upon verified motion and
after due hearing.
4. Witness Protection Order. Issued upon motion or motu
proprio.
What are the grounds for opposition on the Production
Order?
 REMEDIAL LAW
It is a matter of (1) National Security or (2) Privileged
Information.
What are the interim reliefs available to the respondent?
The Inspection Order (Sec. 14) and Production Order (Sec.
15).
WRIT OF HABEAS DATA
(A.M. No. 08-1-16-SC)
What is a Writ of Habeas Data?
It is a remedy available to any person whose right to privacy
in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of
a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved
party (Sec. 1, A.M. No. 08-1-16-SC).
It is an independent and summary remedy designed to
protect the image, privacy, honor, information, and freedom
of information of an individual, and to provide a forum to
enforce one’s right to the truth and to informational privacy.
It seeks to protect a person’s right to control information
regarding oneself, particularly in instances in which such
information is being collected through unlawful means in
order to achieve unlawful ends. (Gamboa v. Chan, G.R. No.
193636, July 24, 2012)
The writ of habeas data was conceptualized as a judicial
remedy enforcing the right to privacy, most especially the
right to informational privacy of individuals. The writ
operates to protect a person’s right to control information
regarding himself, particularly in the instances where such
information is being collected through unlawful means in
order to achieve unlawful ends (Roxas v. Macapagal Arroyo,
G.R. No. 189155, September 7, 2010).
Who may file the petition?
Any aggrieved party may file a petition for the writ of habeas
data.
However, in cases of extralegal killings and enforced
disappearances, the petition may be filed by:
a. Any member of the immediate family of the aggrieved
party, namely: the spouse, children and parents; or
b. Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those mentioned
in the preceding paragraph (Sec. 2)
Where should the petition be filed?
i. RTC
a. Where petitioner resides; or
b. Where respondent resides; or
c. Which has jurisdiction over the place where the data
or information is gathered, collected or stored, at the
option of the petitioner.
ii. SC, CA, SB (when action concerns public data files of
government offices). (Sec. 4)
Where is the writ enforceable?
The writ shall be enforceable anywhere in the Philippines.
(Sec. 4)
Are indigent petitioners required to pay docket fees and
other lawful fees?
46
No docket and other lawful fees shall be required from an
indigent petitioner. The petition of the indigent shall be
docked and acted upon immediately, without prejudice to
subsequent submission of proof of indigency not later than
fifteen (15) days from the filing of the petition. (Sec. 5)
When must a Return be filed?
The respondent shall file a verified written return together
with supporting affidavits within five (5) work days from
service of the writ, which period may be reasonably extended
by the Court for justifiable reasons.
What are the contents of the Return?
1. The lawful defenses such as national security, state
secrets, privileged communication, confidentiality of the
source of information of media and others;
2. In case of respondent in charge, in possession or in
control of the data or information subject of the petition:
a. Disclosure of the date or information about the
petitioner: the nature of such data or information,
and the purpose of its collection;
b. the steps or actions taken by the respondent to
ensure the security and confidentiality of the data or
information; and
c. the currency and accuracy of the date or
information held; and
3. Other allegations relevant to the resolution of the
proceeding.
A general denial of the allegations in the petition shall not be
allowed. (Sec. 10)
When is a petition for habeas data dismissible?
A Habeas Data Petition is dismissible if it fails to adequately
show that there exists a nexus between the right to privacy
on the one hand, and the right to life, liberty or security on
the other. Moreover, it is equally dismissible if it is not
supported by substantial evidence showing an actual or
threatened violation of the right to privacy in life, liberty or
security of the victim. (Joy Margate Lee vs. P/Supt. Neri A.
Ilaga G.R. No. 203254, October 08, 2014)
What are the instances when the petition may be heard in
chambers?
A hearing in chambers may be conducted:
1. Where the respondent invokes the defense that the
release of the data or information in question shall
compromise national security or state secrets, or
2. When the data or information cannot be divulged to the
public due to its nature or privileged character. (Sec. 12)
Explain the Rule on Consolidation.
When a criminal action is filed subsequent to the filing of a
petition for the writ, the latter shall be consolidated with the
criminal action.
When a criminal action and a separate civil action are filed
subsequent to a petition for a writ of habeas data, the petition
shall be consolidated with the criminal action. (Sec. 21)
What is the effect of filing a criminal action?
When a criminal action has been commenced, no separate
petition for the writ shall be filed. The reliefs under the writ
shall be available to an aggrieved party by motion in the
criminal case.
 UST LAW PRE-WEEK NOTES 2017
The procedure under this Rule shall govern the disposition of
the reliefs available under the writ of habeas data. (Sec. 22)
Institution of Separate Action
The filing of a petition for the writ of habeas data shall not
preclude the filing of separate criminal, civil or administrative
actions. (Sec. 20)
CRIMINAL PROCEDURE
What are the requisites for the exercise of criminal
jurisdiction?
1. Jurisdiction over the subject matter;
2. Jurisdiction over the territory; and
3. Jurisdiction over the person of the accused.
INJUNCTION TO RESTRAIN CRIMINAL PROSECUTION
GR: The long-standing doctrine that writs of injunction or
prohibition will not lie to restrain a criminal prosecution for
the reason that public interest requires that criminal acts be
immediately investigated and prosecuted for the protection
of society. (Domingo v. Sandiganbayan, G.R. No. 109376,
January 20, 2000)
XPNs:
1. To prevent the use of the strong arm of the law in an
oppressive and vindictive manner (Ibid.);
2. To afford adequate protection to constitutional rights
(Ibid.);
3. For the orderly administration of justice (Hernandez v.
Albano, G.R. No. 19272,
January 25, 1967);
4. To avoid multiplicity of actions (Ibid.);
5. In proper cases, because the statute relied upon is
unconstitutional, or was held invalid (Ibid.);
6. When the acts of the officer are without or in excess of
authority (Planas v. Gil, G.R. No. L-46440, January 18,
1939);
7. When the court has no jurisdiction over the offense
(Lopez v. City Judge, G.R. No. L-25795, October 29, 1966);
8. When there is a prejudicial question which is sub judice
(before a court or judge for consideration);
9. Where the prosecution is under an invalid law,
ordinance or regulation;
10. When double jeopardy is clearly apparent;
11. Where it is a case of persecution rather than
prosecution;
12. Where the charges are manifestly false and motivated
by lust for vengeance; and
13. Where there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied.
PROSECUTION OF OFFENSES
RULE 110
How are criminal actions instituted?
1. Filing the complaint with the proper officer for the
purpose of conducting the requisite preliminary
investigation for offenses where a preliminary
investigation is required; or
2. For all other offenses, by filing the complaint or
information directly with the MTC and MCTC, or the
complaint with the office of the prosecutor.
(Sec. 1, Rule 110)
SUFFICIENCY OF COMPLAINT OR INFORMATION
It is fundamental that every element of which the offense is
comprised must be alleged in the information. (Estrellado-
Mainar vs. People; GR No. 184320; July 29, 2015)
47
When is a complaint or information deemed sufficient?
It is sufficient if it states the: (NANPAD)
1. Name of the accused;
2. Designation of the offense given by the statute;
3. Acts or omissions complained of as constituting the
offense;
4. Name of the offended party;
5. Approximate date of the commission of the offense; and
6. Place where the offense was committed.
(Sec. 6, Rule 110)
---
The Office of the Ombudsman filed two (2) informations
charging Disini in the Sandiganbayan with corruption of
public officials penalized under the Revised Penal Code
and with a violation of R.A. No. 3019 or the Anti-Graft and
Corrupt Practices Act. Disini filed a motion to quash,
alleging that the information did not conform to the
prescribed form. Is Disini’s contention correct?
NO. It is axiomatic that a complaint or information must state
every single fact necessary to constitute the offense charged;
otherwise, a motion to dismiss or to quash on the ground that
the complaint or information charges no offense may be
properly sustained. The test does not require absolute
certainty as to the presence of the elements of the offense;
otherwise, there would no longer be any need for the
Prosecution to proceed to trial. The information for
corruption of public officials and violation of Section 4(a) of
RA No. 3019 have sufficiently complied with the
requirements of Section 6, Rule 110 of the Rules of Court.
(Disini v. Sandiganbayan, G.R. Nos. 169823-24, September 11,
2013, Bersamin, J.)
---
CONTROL OF PROSECUTION
Who controls the prosecution of criminal actions?
GR: The public prosecutor shall prosecute, direct and control
all criminal actions commenced by a complaint or
information.
XPN: The private prosecutor (private counsel) may prosecute
the case provided that:
1. The public prosecutor has heavy work schedule; or
2. There is lack of public prosecutors;
3. The private prosecutor must be authorized in writing by
the Chief Prosecution Office or Regional State
Prosecution; and,
4. Such will be subject to the court’s approval. (Sec. 5, Rule
110)
What are the matters within the control and supervision of
the prosecutor?
1. What charge to file;
2. Whom to prosecute;
3. Manner of prosecution; and
4. Right to withdraw information before arraignment even
without notice and hearing.
NOTE: Once a complaint or information is filed in court, any
disposition of the case as its dismissal or the conviction or
acquittal of the accused rests in the sound discretion of the
court. Although the fiscal retains the direction and control of
the prosecution of criminal cases even while the case is
already in court, he cannot impose his opinion on the trial
court.
 REMEDIAL LAW

Gerald’s mother filed a complaint for reckless imprudence

AMENDMENT OR SUBSTITUTION OF COMPLAINT OR resulting in serious physical injuries against the attending
INFORMATION physicians. Upon finding of probable cause, the
prosecutor’s office filed an information solely against Dr.
Amendment Substitution Solidum. Both the RTC and CA found Dr. Solidum guilty of
May involve either formal or Involves substantial change the crime charged and adjudged Ospital ng Maynila jointly
substantial changes. from the original charge. and severally liable with Dr. Solidum for damages. Is the
Amendment before the plea It must be with leave of court Ospital ng Maynila civilly liable?
is entered can be effected as the original information
without leave of court. has to be dismissed. NO. In criminal prosecutions, the civil action for the recovery
of civil liability that is deemed instituted with the criminal
An amendment as to form Substitution of the
action refers only to that arising from the offense charged. It
will not require another information entails another
is puzzling, therefore, how the RTC and the CA could have
preliminary investigation preliminary investigation
adjudged Ospital ng Maynila jointly and severally liable with
and retaking of plea of the and plea to the new
Dr. Solidum for the damages despite the obvious fact that
accused. information.
Ospital ng Maynila, being an artificial entity, had not been
An amended information Requires or presupposes that
charged along with Dr. Solidum. The lower courts thereby
refers to the same offense the new information involves
acted capriciously and whimsically, which rendered their
charged in the original a different offense which
judgment against Ospital ng Maynila void as the product of
information or to an offense does not include or is not
grave abuse of discretion amounting to lack of jurisdiction.
which necessarily includes or necessarily included in the
(Solidum v. People, G.R. No. 192123, March 10, 2014,
is necessarily included in the original charge; hence the
Bersamin, J.)
original charge, hence accused cannot claim double
substantial amendments to jeopardy.
---
the information after the plea
has been taken cannot be Hanz was brought to the hospital for an emergency
made over the objection of appendectomy. Dr. Lumantas performed circumcision on
the accused, for if the original Hanz after his appendectomy. He also urinated
would be withdrawn, the abnormally after Dr. Lumantas forcibly removed the
accused could invoke double catheter. Several days after, Hanz was discharged from the
jeopardy. hospital and was again confined because of the abscess
formation between the base and the shaft of his penis.
What is the rule on amendment made before plea? Hanz was diagnosed to have a damaged urethra and
underwent cystostomy, and thereafter was operated for
If the amendment is made before the accused enters his plea, three times to repair his damaged urethra. When his
the complaint or information may be amended in form or damaged urethra could not be fully repaired and
substance, without the need for leave of court. (Riano, 2011) reconstructed, Hanz’s parents brought a criminal charge
against Dr. Lumantas for reckless imprudence resulting in
However, leave of court is still necessary even if the serious physical injuries. The RTC acquitted Dr. Lumantas
amendment is made before the accused enters his plea when: of the crime charged for insufficiency of evidence but held
a. The amendment downgrades the nature of the Dr. Lumantas liable for moral damages. The CA affirmed
offense charged; or the decision of the RTC. Is Dr. Lumantas still civilly liable
b. The amendment excludes any accused from the despite his acquittal?
complaint or information.
YES. It is axiomatic that every person criminally liable for a
Is amendment after plea AND during trial allowed? felony is also civilly liable. Nevertheless, the acquittal of an
accused of the crime charged does not necessarily extinguish
This is allowed provided that amendment is made with: his civil liability. In Manantan v. Court of Appeals, the Court
a. leave of court; and elucidates on the two kinds of acquittal recognized by our law
b. It does not cause prejudice to the rights of the as well as on the different effects of acquittal on the civil
accused. liability of the accused. First is an acquittal on the ground that
the accused is not the author of the act or omission
Therefore, after plea, only formal amendment is allowed and complained of. This instance closes the door to civil liability,
substantial amendment is proscribed except if the same is for a person who has been found to be not the perpetrator of
beneficial to the accused. (Riano, 2011) any act or omission cannot and can never be held liable for
such act or omission. There being no delict, civil liability ex
NOTE: Substantial amendment after the plea has been taken delicto is out of the question, and the civil action, if any, which
cannot be made over the objection of the accused, for if the may be instituted must be based on grounds other than the
original would be withdrawn, the accused could invoke delict complained of. This is the situation contemplated in
double jeopardy. (Pacoy v. Cajical, G.R. No. 1574772, Rule 111 of the Rules of Court. The second instance is an
September 28, 2007) acquittal based on reasonable doubt on the guilt of the
accused. In this case, even if the guilt of the accused has not
PROSECUTION OF CIVIL ACTIONS been satisfactorily established, he is not exempt from civil
RULE 111 liability which may be proved by preponderance of evidence
only. (Lumantas v. Calapiz, G.R. No. 163753, January 15, 2014,
RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH Bersamin, J.)
CRIMINAL ACTION
---
Gerald was born with an imperforate anus. Two days after
his birth, Gerald underwent colostomy. Gerald, then three WHEN A CIVIL ACTION MAY PROCEED INDEPENDENTLY
years old, was admitted at the Ospital ng Maynila for a
pull-through operation. The anaesthesiologists included What are the instances when civil actions may proceed
Dr. Solidum. During the operation, Gerald experienced independently? (2005, 2010 Bar)
bradycardia, and went into a coma. His coma lasted for
two weeks, but he regained consciousness only after a 1. Arising from breach of contract; and,
month. He could no longer see, hear or move. Thus,

48
 UST LAW PRE-WEEK NOTES 2017
2. Independent civil actions or those based on Arts. 32,
33, 34 and Art. 2176 of the NCC or quasi-delict.
(Herrera, 2007)
NOTE: The failure to reserve the right to file the enumerated
actions does not amount to a waiver to institute a separate
civil action. (Herrera, 2007)
SUSPENSION OF THE SEPARATE CIVIL ACTION
When is a separate civil action suspended?
GR: If the civil action is instituted before the institution of the
criminal action, the pending civil action, in whatever stage it
may be found, shall be suspended until final judgment of the
criminal action has been rendered. (Sec. 2, Rule 111)
XPNs:
1. In cases of independent civil actions based on Arts. 32,
33, 34 and 2176 of the Civil Code;
2. In cases where the civil action presents a prejudicial
question; and,
3. Where the civil action is not one intended to enforce
the civil liability arising from the offense.
PREJUDICIAL QUESTION
What is a prejudicial question?
It is an issue involved in a civil action which is similar or
intimately related to the issue raised in a criminal action, the
resolution of which determines whether or not the criminal
action may proceed.
NOTE: The prejudicial question may be raised during the
preliminary investigation of the offense or in court before the
prosecution rests its case.
The petition for suspension by reason of prejudicial question
is filed with the Office of the Prosecutor or court where the
criminal action has been filed for trial at any time before the
prosecution rests. (Sec. 6, Rule 111)
What are the elements of a prejudicial question?
1. The civil action must be instituted prior to the criminal
action;
2. The civil action involves an issue similar or intimately
related to the issue raised in the subsequent criminal
action; and,
3. The resolution of such issue determines whether or not
the criminal action may proceed. (Sec. 7, Rule 111)
NOTE: For the principle of prejudicial question to apply, it is
essential that there be two cases involved, invariably a civil
case and a criminal case. If the two cases are both civil or if
they are both criminal, the principle does not apply. The law
limits a prejudicial question to a previously instituted civil
action not to a subsequent one.
---
San Miguel Properties (SMP) purchased from BF Homes
130 residential lots situated in its subdivision BF Homes
Parañaque. BF Homes, however, refused to deliver the 20
TCTs despite demands. Thus, SMP filed a complaint-
affidavit with the Office of the City Prosecutor charging the
directors and officers of BF Homes with non-delivery of
titles in violation of Section 25, in relation to Section 39,
both of P.D. No. 957. At the same time, SMP sued BF Homes
for specific performance in the HLURB praying to compel
BF Homes to release the 20 TCTs in its favor. The OCP
dismissed the criminal complaint on the ground that the
implementation of the provisions of P.D. No. 957
exclusively pertained under the jurisdiction of the HLURB
49
and that there existed a prejudicial question necessitating
the suspension of the criminal action until after the issue
on the liability of the BF Homes was first determined by the
SEC en banc or by the HLURB. Does the administrative case
for specific performance in the HLURB raise a prejudicial
question?
YES. The determination of whether the proceedings ought to
be suspended because of a prejudicial question rested on
whether the facts and issues raised in the pleadings in the
specific performance case were so related with the issues
raised in the criminal complaint for the violation of P.D. No.
957, such that the resolution of the issues in the former
would be determinative of the question of guilt in the
criminal case. The action for specific performance in the
HLURB would determine whether or not San Miguel
Properties was legally entitled to demand the delivery of the
remaining TCTs, while the criminal action would decide
whether or not BF Homes’ directors and officers were
criminally liable for withholding the TCTs. The resolution of
the former must obviously precede that of the latter, should
the HLURB hold San Miguel Properties to be not entitled to
the delivery of the TCTs because Atty. Orendain did not have
the authority to represent BF Homes in the sale due to his
receivership having been terminated by the SEC, the basis for
the criminal liability for the violation of P.D. No. 957 would
evaporate, thereby negating the need to proceed with the
criminal case. (San Miguel Properties, Inc. v. Perez, G.R. No.
166836, September 4, 2013, Bersamin, J.)
---
RULES ON FILING FEES
1. Actual damages
GR: No filing fee is required.
XPN: B.P. 22 cases, wherein the amount of the filing fees
shall be equivalent to the amount of the check involved.
2. Liquidated, moral, nominal, temperate or exemplary
damages – The filing fee shall be based on the amount
alleged in the complaint or information. [Sec. 1(4), Rule
111]
PRELIMINARY INVESTIGATION
RULE 112
When is preliminary investigation required? (2004 Bar)
Preliminary Investigation is required to be conducted before
filing of complaint or information for an offense where the
penalty prescribed by law is at least 4 years, 2 months and 1
day without regard to fine.
When is preliminary investigation not required?
A preliminary investigation shall not be required under the
following:
1. When the penalty prescribed by law for the offense
involves an imprisonment of less than 4 years, 2
months and 1 day; and,
2. If a person is arrested lawfully without a warrant
involving an offense which requires preliminary
investigation, an information or complaint may be
filed against him without need for a preliminary
investigation provided an inquest has been conducted
in accordance with existing rules. (Sec. 6 Rule 112 as
amended by A.M. No. 05-08-26-SC, August 30, 2005)
 REMEDIAL LAW

When is the right to preliminary investigation waived? information. It is not yet a trial on the merits, for its only
purpose is to determine whether a crime has been committed
While the right to preliminary investigation is a substantive and whether there is probable cause to believe that the
right and not a mere formal or technical right of the accused, accused is guilty thereof. The scope of the investigation does
nevertheless, the right to preliminary investigation is deemed not approximate that of a trial before the court; hence, what
waived when the accused fails to invoke it before or at the is required is only that the evidence be sufficient to establish
time of entering a plea at arraignment. (People v. Buluran, G.R. probable cause that the accused committed the crime
No. 113940, February 15, 2000) charged, not that all reasonable doubt of the guilt of the
accused be removed. (Enrile v. Manalastas, G.R. No. 166414,
NOTE: The waiver, whether express or implied, must be in a October 22, 2014, Bersamin, J.)
clear and unequivocal manner. (Herrera, 2007)
---
What are the remedies available to the accused if there
was no preliminary investigation conducted pursuant to a
lawful warrantless arrest? Summary of the remedies available to the aggrieved
party
1. Before the complaint or information is filed, the
person arrested may ask for a preliminary
investigation but he must sign a waiver of the Resolution of the Office of the Prosecutor
provisions of Art. 125 of the RPC, as amended, in the
presence of his counsel;
MOTION FOR APPEAL
NOTE: Art. 125 of the RPC deals with the period of
RECONSIDERATION - Before the
delay in the delivery of detained persons to the proper - Before the Office Secretary of
judicial authorities. (Art. 125, RPC) of the Prosecutor Justice within 15
within 15 days days from receipt
Accused may file a certiorari if preliminary from receipt of of assailed
investigation is refused; assailed resolution resolution or 15
days from receipt
The waiver by the person lawfully arrested of the of denial of MR.
provisions of Art. 125 of the RPC does not preclude
him from applying for bail;

2. After the filing of the complaint or information in court

without a preliminary investigation, the accused may, PETITION FOR APPEAL
within 5 days from the time he learns of its filing, ask CERTIORARI - Before the Office of
for a preliminary investigation with the same right to - before the CA the President
under Rule 65 and
adduce evidence in his evidence as provided in this
only where the
Rule. (Sec. 6, Rule 112) decision of the APPEAL
3. Refuse to enter a plea upon arraignment and object to Secretary is - Before the CA
further proceedings upon such ground; tainted with grave under Rule 43
4. Raise lack of preliminary investigation as error on abuse of
appeal (US v. Banzuela, G.R. No. 10172, October 1, discretion
1915); and, APPEAL BY CERTIORARI
5. File for prohibition (Conde v. CFI, G.R. No. 21236, - Before the SC
October 1, 1923). under Rule 45

NOTE: Appeals before the Office of the

---
President may only be taken under the
following conditions:
Josefina, Rommel and Perla charged the respondents in 1. The offense involved is punishable by
the MTC with frustrated homicide (victim being Rommel); reclusion perpetua to death;
with less serious physical injuries (victim being Josefina); 2. New and material issues are raised which
and with less serious physical injuries (victim being Perla). were not presented before the DOJ;
The MTC found probable cause for less serious physical 3. The prescription of the offense is not due
injuries. The respondents filed a motion to quash which to lapse within 6 months from notice of
was denied by the MTC. Both the MTC and RTC ruled that the questioned resolution; and
4. The appeal or petition for review is filed
the issues raised in the motion to quash are matters of within 30 days from notice.
defense that could only be threshed out in a full blown trial
on the merits. Indeed, proof of the actual healing period of
the alleged injuries of the complainants could only be
INQUEST
established in the trial of the cases filed against them by
means of competent evidence. Is the ruling of the MTC and
An informal and summary investigation conducted by a
RTC correct?
public prosecutor in criminal cases involving persons
arrested and detained without the benefit of a warrant of
YES as the MTC and RTC rightly held that the presentation of
arrest issued by the court for the purpose of determining
the medical certificates to prove the duration of the victims’
whether or not said persons should remain under custody
need for medical attendance or of their incapacity should take
and correspondingly be charged in court. (Sec. 1, DOJ Circular
place only at the trial, not before or during the preliminary
No. 61)
investigation. According to Cinco v. Sandiganbayan, the
preliminary investigation, which is the occasion for the
Instances when production of a detained person before the
submission of the parties’ respective affidavits, counter-
inquest officer is dispensed with:
affidavits and evidence to buttress their separate allegations,
is merely inquisitorial, and is often the only means of
1. If he is confined in a hospital;
discovering whether a person may be reasonably charged
2. If he is detained in a place under maximum security;
with a crime, to enable the prosecutor to prepare the

50
 UST LAW PRE-WEEK NOTES 2017

3. If production of the detained person will involve security When is a warrant of arrest NOT necessary?
risks; or,
4. If the presence of the detained person is not feasible by 1. Accused is already under detention;
reason of age, health, sex and other similar factors. (Sec. 2. Complaint or information was filed pursuant to a valid
6, Part II, Manual for Prosecutors) warrantless arrest; and,
3. Complaint or information is for an offense penalized by
ARREST fine only. (Sec. 5(c), Rule 112)
RULE 113
What are the instances of a valid warrantless arrest?
The issuance by the trial court of the warrant of arrest upon
filing of the information and supporting papers implies the 1. When in the presence of the arresting person, the person
determination of probable cause for the offense charged. to be arrested has committed, is actually committing or
(Balindong vs. CA; G.R. No. 177600, October 19, 2015) is attempting to commit an offense (in flagrante delicto
arrest);
How is arrest effected?
2. When an offense has in fact been committed and the
Method of arrest Exception to the rule on arresting person has probable cause to believe based on
giving information personal knowledge of facts and circumstances that the
Arrest by officer by virtue of a warrant person to be arrested has committed it (doctrine of hot
(Sec. 7, Rule 113) pursuit);
The officer shall inform 1. When the person to
the person to be arrested be arrested flees; NOTE: There must be compliance with the element of
of the cause of the arrest 2. When he forcibly immediacy between the time of the commission of the
and the fact that the resists before the crime and the time of arrest. (People v Salvatiera, G.R. No.
warrant has been issued officer has an 104663, July 24, 1997)
for his arrest. opportunity to
inform him; and 3. When the person to be arrested is a prisoner who has
NOTE: The officer need 3. When the giving of escaped from a penal establishment or place where he is
not have the warrant in such information will serving final judgment or temporarily confined while his
his possession at the imperil the arrest. case is pending or has escaped while being transferred
time of the arrest but from one confinement to another (escapee exception)
must show the same (Sec. 5, Rule 113)
after the arrest, if the
person arrested so When is illegality of the arrest waived?
requires.
Any objection to the legality of the arrest is waived when the
It must also be noted person arrested submits to arraignment without any
that warrant is not objection. Therefore, any objection involving arrest or the
jurisdictional. procedure in the court’s acquisition of jurisdiction over the
person of an accused must be made before he enters his plea.
Arrest by officer without a warrant (People v. Aminola, G.R. No. 178062, September 8, 2010)
(Sec. 8, Rule 113)
The officer shall inform 1. When the person to Probable Cause
the person to be arrested be arrested is engaged
of his authority and the in the commission of Such facts sufficient to engender a well-founded belief that a
cause of the arrest an offense or is crime has been committed and that respondent is probably
without a warrant. pursued immediately guilty thereof. The determination of the existence of probable
after its commission; cause lies within the discretion of the prosecuting officers
2. When he has escaped, after a preliminary investigation. (Cam vs. Casimiro; G.R. No.
flees, or forcibly 184130, June 29, 2015)
resists before the
officer has an Distinguish probable cause of a prosecutor from that of a
opportunity to do so judge
inform him; and
3. When the giving of Probable Cause as Probable Cause as
such information will determined by the determined by the
imperil the arrest. Prosecutor Judge
Purpose For the filing of an For the issuance of
Arrest by a private person (Sec. 9, Rule 113) information in court warrant to determine
The private person shall 1. When the person to by determining whether there is a
inform the person to be be arrested is engaged whether there is necessity for placing
arrested of the intention in the commission of reasonable ground to the accused under
to arrest him and the an offense or is believe that the immediate custody in
cause of the arrest. pursued immediately accused is guilty of order not to frustrate
after its commission; the offense charged the ends of justice.
NOTE: The private 2. When he has escaped, and should be held (P/Supt. Cruz v. Judge
person must deliver the flees, or forcibly for trial. Areola, A.M. No. RTJ-
arrested person to the resists before the 01-1642, March 6,
nearest police station or officer has an 2002)
jail, otherwise, he may be opportunity to do so Function Executive function Judicial function
held criminally liable for inform him; and Basis Reasonable ground The report and the
illegal detention. 3. When the giving of to believe that a supporting
such information will crime has been documents
imperil the arrest. committed. submitted by the
prosecutor during

51
 REMEDIAL LAW
the preliminary
investigation and the
supporting affidavits
that may be required
to be submitted.
BAIL
RULE 114
The decision whether to detain or release an accused before
and during trial is ultimately an incident of the judicial power
to hear and determine his criminal case. The strength of the
prosecution's case, albeit a good measure of the accused's
propensity for flight or for causing harm to the public, is
subsidiary to the primary objective of bail, which is to ensure
that the accused appears at trial. (Enrile vs. Sandiganbayan;
G.R. No. 213847, August 18, 2015)
Basis of the right to bail
The right to bail flows from the right to be presumed
innocent. It is accorded to a person in the custody of the law
who may be allowed provisional liberty upon filing of a
security to guarantee his appearance before any court, as
required under specified conditions. (Tanog vs. Balindong;
G.R. No. 187464, November 25, 2015)
When can the court increase or decrease the amount of
bail?
After the accused is admitted to bail, the court may, upon
good cause, either increase or reduce its amount. When
increased, the accused may be committed to custody if he
does not give bail in the increased amount within a
reasonable period. (Sec. 20, Rule 114)
When is bail not allowed?
1. A person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment,
shall not be admitted to bail when evidence of guilt is
strong;
2. After judgment of conviction has become final; or,
3. After the accused as commenced to serve his sentence.
When is bail a matter of right? (1999, 2006 Bar)
1. Before or after conviction by the MeTC and MTC;
2. Before conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment;
3. Before final conviction by all children in conflict with
the law for an offense not punishable by reclusion
perpetua or life imprisonment.
When is bail a matter of discretion?
1. Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment;
2. Regardless of the stage of the criminal prosecution, a
person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment,
when evidence of guilt is not strong (Sec. 7, Rule 114);
and,
3. A child in conflict with the law charged with an offense
punishable by death, reclusion perpetua or life
imprisonment when evidence of guilt is not strong. (Sec.
28, A.M. No. 02-1-18-SC)
When is bail NOT necessary or when recognizance is
sufficient?
1. When the offense charged is for violation of an
ordinance, a light, or a criminal offense, the imposable
52
penalty of which does not exceed 6 months
imprisonment and/or Php2,000 fine;
2. Where a person has been in custody for a period equal
to or more than the minimum of the imposable
principal penalty, without application of the
Indeterminate Sentence Law or any modifying
circumstance (Sec. 16, Rule 114);
3. Where the accused has applied for probation, pending
the resolution of the case but no bail was filed or the
accused is incapable of filing one (Sec. 24, Rule 114);
4. In case of a youthful offender held for a physical and
mental examination, trial, or appeal, if he is unable to
furnish bail and under circumstances envisaged in PD
603 (Child and Youth Welfare Code) as amended; and,
5. Before final conviction, all juveniles charged with
offenses falling under the Revised Rule on Summary
Procedure shall be released on recognizance to the
custody of their parents or other suitable person who
shall be responsible for the juveniles’ appearance in
court whenever required. (Sec. 15, A.M. No. 02-1-18-SC)
---
Enrile and several others were charged with plunder in the
Sandiganbayan on the basis of their purported
involvement in the diversion and misuse of appropriations
under the Priority Development Assistance Fund (PDAF).
On the same day that the warrant for his arrest was
issued, Enrile voluntarily surrendered. Consequently,
Enrile filed a Motion to Fix Bail which was likewise denied
by the Sandiganbayan. Is Enrile entitled to bail?
YES. The Sandiganbayan arbitrarily ignored the objective of
bail to ensure the appearance of the accused during the trial;
and unwarrantedly disregarded the clear showing of the
fragile health and advanced age of Enrile. As such, the
Sandiganbayan gravely abused its discretion in denying
Enrile’s Motion to Fix Bail. The Court is further mindful of the
Philippines’ responsibility in the international community
arising from the national commitment under the Universal
Declaration of Human Rights to uphold the fundamental
human rights as well as value the worth and dignity of every
person. In the Court’s view, his social and political standing
and his immediate surrender to the authorities upon his
being charged in court indicate that the risk of his flight or
escape from this jurisdiction is highly unlikely. (Enrile v.
Sandiganbayan, G.R. No.21384, August 18, 2015, Bersamin, J.)
---
NOTE: The prosecution cannot adduce evidence for the
denial of bail where it is a matter of right. However, where
the grant of bail is discretionary, the prosecution may show
proof to deny the bail.
Whether bail is a matter of right or of discretion, reasonable
notice of hearing is required to be given to the prosecutor or
fiscal, or at least he must be asked for his recommendation.
Recommendation is necessary because in fixing the amount
of bail, the judge is required to take into account a number of
factors, such as the applicant’s character and reputation,
forfeiture of other bonds or whether he is a fugitive from
justice.
HEARING OF APPLICATION FOR BAIL IN CAPITAL
OFFENSES
May a person charged with a capital offense be admitted
to bail?
It depends. No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of
 UST LAW PRE-WEEK NOTES 2017
guilt is strong, regardless of the stage of the criminal
prosecution.
What are the duties of the trial judge in an application for
bail in offenses punishable by reclusion perpetua, life
imprisonment or death?
1. Reasonably notify the prosecutor of the hearing of the
application for bail or require him to submit his
recommendation (Sec. 18, Rule 114);
2. Conduct a hearing of the application for bail regardless
of whether or not the prosecution refuses to present
evidence to show that the guilt of the accused is strong
for the purpose of enabling the court to exercise its
sound discretion (Secs. 7 and 8, Rule 114);
3. Decide whether the evidence of guilt of the accused is
strong based on the summary of evidence of the
prosecution (Baylon v. Sison, A.M. No. 92-7-360-0, April
6, 1995); and,
4. If the guilt of the accused is not strong, discharge the
accused upon the approval of the bail bond. Otherwise,
petition should be denied (Sec. 19, Rule 114).
FORFEITURE AND CANCELLATION OF BAIL
Effects of failure of the accused to appear in court when so
required
1. The bail shall be declared forfeited; and,
2. The bondsmen are given 30 days within which to:
a. Produce the body of their principal or give the
reason for his non-production; and,
b. Explain why the accused did not appear before the
court when first required to do so. (Sec. 21, Rule
114)
When is bail deemed cancelled?
1. Upon the application of the bondsmen, with due notice
to the prosecutor, the bail may be cancelled upon:
a. Surrender of the accused; or,
b. Proof of his death.
2. The bail shall be deemed automatically cancelled
upon:
a. Acquittal of the accused;
b. Dismissal of the case; or,
c. Execution of the judgment of conviction. (Sec. 22,
Rule 114)
Does an application for bail bar objections on illegal
arrest, lack of or irregular preliminary investigation?
No. An application for bail is not a bar to objections in illegal
arrest or irregularity or lack of preliminary investigation,
provided that he raises them before entering his plea. The
court shall resolve the matter as early as possible, not later
than the start of the trial on the case. (Sec. 26, Rule 114)
HOLD DEPARTURE ORDER AND BUREAU OF
IMMIGRATION WATCHLIST
Remedy of a person who is not the same person whose
name appears in the Hold Departure Order/Watch List
Order
Any person who is prevented from leaving the country
because his/her name appears to be the same as the one that
appears in the HDO/WLO may upon application under oath
obtain a Certification to the effect that said person is not the
same person whose name appears in the issued HDO/WLO
upon submission of the following requirements:
1. Affidavit of Denial;
2. Photocopy of the page of the passport bearing the
personal details;
53
3. Latest clearance from the National Bureau of
Investigation; and,
4. Clearance from the court or appropriate government
agency when applicable.
ARRAIGNMENT AND PLEA
RULE 116
Grounds for suspension of arraignment
Upon motion by the proper party, the arraignment shall be
suspended in the following cases:
1. The accused appears to be suffering from an
unsound mental condition which effectively renders him
unable to fully understand the charge against him and
to plead intelligently thereto;
2. There exists a valid prejudicial question;
3. A petition for review of the resolution of the
prosecutor is pending at the Department of Justice or
the Office of the President (Sec. 11, Rule 116); Provided
that the period of suspension shall not exceed 60 days
counted from the filing of the petition; and,
4. There are pending incidents such as:
a. Motion to Quash
b. Motion for Inhibition
c. Motion for Bill of Particulars
NOTE: The period of suspension shall not exceed sixty (60)
days counted from the filing of the petition with the
reviewing office. (Sec. 11, Rule 116)
When should a plea of not guilty be entered?
1. When the accused so pleaded;
2. When he refuses to plead (Sec. 1(c));
3. When he enters a conditional plea of guilty (Sec. 1(c));
4. Where after a plea of guilty but presents exculpatory
circumstances, his plea shall be deemed withdrawn and
a plea of not guilty shall be entered for him (Sec. 1(d));
5. When the plea is indefinite or ambiguous.
When may the accused enter a plea of guilty to a lower
offense?
1. During arraignment
a. If the offended party is present, the latter must
consent with the prosecutor to the plea; and
b. That the lesser offense is necessarily included in the
offense charged.
2. After arraignment but before trial provided the following
requisites are present:
a. The plea of guilty is withdrawn;
b. The plea of not guilty and the withdrawal of the
previous guilty plea shall be made before trial;
c. The lesser offense is necessarily included in the
offense charged; and,
d. The plea must have the consent of the prosecutor
and the offended party (Sec. 2, Rule 116).
NOTE: No amendment of complaint or information is
necessary (Sec. 2). A conviction under this plea shall be
equivalent to a conviction of the offense charged for
purposes of double jeopardy. (People v. Magat, G.R. No.
130026, May 31, 2000)
3. After prosecution rests – Allowed only when the
prosecution does not have sufficient evidence to
establish guilt for the crime charged.
When is a plea considered an improvident plea?
1. Plea of guilty was compelled by violence or
intimidation;
 REMEDIAL LAW

2. The accused did not fully understand the meaning and XPNs:
consequences of his plea; 1. Double jeopardy; or,
3. Insufficient information to sustain conviction of the 2. Criminal liability is extinguished. (Sec. 6, Rule 117)
offense charged;
4. Information does not charge an offense; or, NOTE: The prohibition against double jeopardy refers to the
5. Court has no jurisdiction. same offense and not to the same act. The offense charged in
the two prosecutions must be the same in law and in fact,
Preliminary Investigation, Inquest proceeding and because the same acts may be violative of two or more
Arraignment provisions of the criminal law.

Preliminary Inquest Arraignment Effect of double jeopardy on the civil aspect of the case
investigation proceeding
Conducted to To determine To inform the The offended party and the accused may appeal the civil
determine whether the accused of the aspect of the case because the concept of double jeopardy
probable cause. accused should nature of the evidently has reference only to the criminal case and has no
remain under accusation against effect on the civil liability of the accused. (Riano, 2011)
custody and be him.
charged in Does double jeopardy apply to administrative cases?
court.
The rule on double jeopardy does not apply to a controversy
SEARCHING INQUIRY where one is an administrative case and the other is criminal
in nature. (Riano, 2011, citing Icasiano v. Sandiganbayan, G.R.
The court must conduct a searching inquiry. The inquiry is No. 95642, May 28, 1992)
not a simple question and answer exercise; it must be
searching. To search means to look into or over carefully or Motion to quash vs. Demurrer to evidence
thoroughly in an effort to find something. This looking into
carefully and thoroughly, in the matter under consideration, Motion to quash Demurrer to evidence
must be focused on: (1) the voluntariness of the plea; and (2) Filed before the defendant Filed after the prosecution
the full comprehension of the consequences of said plea enters his plea. has rested its case.
(People v. Chua, G.R. No. 137841, October 1, 2001).
Does not go into the merits Based on the ground of
Purpose of searching inquiry of the case but is anchored insufficiency of evidence
on matters not directly adduced by the
To determine whether the plea of guilty was made voluntarily related to the question of prosecution in support of
and whether the accused understood fully the consequence of guilt or innocence of the the accusation.
his plea. accused.

MOTION TO QUASH Governed by Rule 117 of Governed by Rule 119 of

RULE 117 the Rules of Court. the Rules of Court.

It is a special pleading filed by the defendant before entering Does not require a prior May be filed by the
his plea, which hypothetically admits the truth of the facts leave of court. accused either with leave
spelled out in the complaint or information and, if duly or without leave of court.
proved, would preclude further proceedings. (Look for case
definition) PRE-TRIAL
RULE 118
Grounds to quash the complaint or information (18 times
asked in the Bar) Matters to be considered during pre-trial

1. That the facts charged do not constitute an offense; 1. Plea bargaining;

2. That the court trying the case has no jurisdiction over
the offense charged;
3. That the court has no jurisdiction over the person of the
accused (2000 Bar);
4. That the officer who filed the information had no
authority to do so;
5. That the information does not conform substantially to
the prescribed form;
6. That more than one offense is charged except when a
single punishment for various offense is prescribed by
law (2005 Bar);
7. That the criminal action or liability has been
extinguished;
8. That it contains various averments which if true would
constitute legal excuse or justification;
9. That the accused has been previously convicted or
acquitted of the offense charged, or the case against him
was dismissed or otherwise terminated without his
express consent (double jeopardy) (Sec. 3, Rule 117).
NOTE: The enumeration is exclusive.
GR: An order sustaining the motion to quash is not a bar to
another prosecution for the same offense.
2. Stipulation of facts;
NOTE: In order for the accused to be bound, it must be
signed by him.
3. Marking for identification of evidence of parties;
4. Waiver of objections to admissibility of evidence;
5. Modification of the order of the trial if one of the accused
admits the charge but interposes a lawful defense
(reverse trial); and,
6. Such other matters as will promote a fair and
expeditious trial of the civil and criminal aspects of the
case (Sec. 1, Rule 118).
NOTE: If the accused has pleaded not guilty to the crime
charged, he may state whether he interposes a negative or
affirmative defense. A negative defense shall require the
prosecution to prove the guilt of the accused beyond
reasonable doubt, while an affirmative defense may modify
the order of trial and require the accused to prove such
defense by clear and convincing evidence. (Sec. 3, Speedy Trial
Act)

54
 UST LAW PRE-WEEK NOTES 2017
What is the effect of non-appearance of counsel for the
accused or the prosecutor during the pre-trial without
valid justification?
The court may impose proper sanctions or penalties in the
form of reprimand, fines or imprisonment the counsel does
not offer an acceptable excuse for his lack of cooperation.
(Sec. 3, Rule 118; Sec. 5, Speedy Trial Act)
NOTE: Unless otherwise required by the court, personal
appearance of the accused at the conference is not
indispensable.
What is the rule on pre-trial agreement?
All agreements or admissions made or entered into during
the pre-trial conference shall be reduced in writing and
signed by the accused and counsel, otherwise the same
cannot be used against the accused. (Sec. 2, Rule 118)
When is plea-bargaining not applicable?
Plea bargaining is inapplicable in violations of the Dangerous
Drugs Act regardless of the imposable penalty (Sec. 23, RA
9165).
Pending deliberation on whether or not to adopt the
statutory provision in toto or a qualified version thereof, we
deem it proper to declare as invalid the prohibition against
plea bargaining on drug cases until and unless it is made part
of the rules of procedure through an administrative circular
duly issued for the purpose. (Estipona, Jr. v. Hon. Frank E.
Lobrigo, G.R. No. 226679, August 15, 2017)
What should the court do when prosecution and offended
party agree to the plea offered by the accused?
The court shall:
1. Issue an order which contains the plea bargaining
arrived at;
2. Proceed to receive evidence on the civil aspect of the
case; and
3. Render and promulgate judgment of conviction,
including the civil liability or damages duly established
by the evidence. (A.M. No. 03-1-09-SC)
REFERRAL OF SOME CASES TO COURT ANNEXED
MEDIATION AND JUDICIAL DISPUTE RESOLUTION
Cases covered by CAM and JDR
1. All civil cases and the civil liability of criminal cases
covered by the Rule on Summary Procedure, except
those which by law may not be compromised;
2. Special proceedings for the settlement of estates;
3. All civil and criminal cases filed with a certificate to file
action issued by the Punong Barangay or the Pangkat ng
Tagapagkasundo under the Revised Katarungang
Pambarangay Law;
4. The civil aspect of quasi-offenses;
5. The civil aspect of less grave felonies punishable by
correctional penalties not exceeding 6 years
imprisonment where the offended party is a private
person;
6. The civil aspect of estafa, theft and libel;
7. All civil cases and probate proceedings, testate and
intestate, brought on appeal from the exclusive and
original jurisdiction granted to the first level courts;
8. All cases of forcible entry and unlawful detainer brought
on appeal from the exclusive and original jurisdiction
granted to the first level courts;
9. All civil cases involving title to or possession of real
property or an interest therein brought on appeal from
the exclusive and original jurisdiction granted to the
first level courts; and,
55
10. All habeas corpus cases decided by the first level courts
in the absence of the RTC judge that are brought up on
appeal from the special jurisdiction granted to the first
level courts.
TRIAL
RULE 119
When does trial commence?
1. After a plea of not guilty is entered, the accused shall
have at least 15 days to prepare for trial. The trial shall
commence within 30 days from receipt of pre-trial order.
(Sec. 1, Rule 119)
2. If the accused is to be tried again pursuant to an order of
a new trial, the trial shall commence within 30 days from
notice of the order granting a new trial (Sec. 5, Rule 119).
NOTE: Under Sec. 7 of the Rule 114, accused is entitled as for
right to at least two days to prepare for trial. Denial of this
right to prepare is reversible error; the proper remedy from a
judgment of conviction under such case is appeal and not
certiorari nor habeas corpus. (Montilla v. Arellano, G.R. No.
123872, January 30, 1998)
What is reverse trial and when may it be resorted to?
(2007 Bar)
When the accused admits the act or omission charged in the
complaint or information but interposes a lawful defense, the
trial court may allow the accused to present his defense first
and thereafter give the prosecution an opportunity to present
its rebuttal evidence. A departure from the order of the trial is
not reversible error as where it was agreed upon or not
seasonably objected to, but not where the change in order of
the trial was timely objected by the defense.
Trial in Absentia
Sec. 14 (2), Art. III of the Constitution provides that trial may
proceed notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear is
unjustifiable. (Parada v. Veneracion, A.M. No.RTJ-96-1353,
March 11, 1997)
Requisites of trial in absentia
1. The accused has been arraigned;
2. He has been notified of the trial; and,
3. His failure to appear is unjustified. (Sec. 14(2), Art. III,
1987 Constitution of the Phiippines; Bernardo v. People,
G.R. No. 166980, April 4, 2007)
Remedy when accused is not brought to trial within the
prescribed period
If the accused is not brought to trial within the time limit
required by Sec. 1(g), Rule 116, the information may be
dismissed on motion of the accused on the ground of denial of
his right to speedy trial. (Sec. 9, Rule 117)
Requisites before trial can be suspended on account of
absence of witness
The following must be present:
1. Witness is essential and appears to the court to be so;
2. His absence is brought by either of the following:
a. His whereabouts are unknown; or,
b. His whereabouts cannot be determined by due
diligence.
Requisites before an accused may become a State witness
The trial court must be satisfied that:
 REMEDIAL LAW

1. There is absolute necessity for the testimony of the The motion for leave of court
accused whose discharge is requested; to file a demurrer to
2. There is no other direct evidence available for the proper evidence shall specifically
prosecution of the offense committed, except the state its grounds and shall be
testimony of the said accused; filed within a non-extendible
3. The testimony of said accused can be substantially period of 5 days after the
corroborated in its material points; prosecution rests its case.
4. Said accused does not appear to be the most guilty; and, The prosecution may oppose
5. Said accused has not at any time been convicted of any the motion within a non-
offense involving moral turpitude. (Sec. 17, Rule 119) extendible period of 5 days
from its receipt.
Effects of the discharge of an accused as state witness
If leave of court is granted,
1. Discharge of accused operates as an acquittal and bar the accused may file the
to further prosecution for the same offense (Sec. 18, demurrer to evidence within
Rule 119); 10 days. The prosecution
2. Evidence adduced in support of the discharge shall may however, oppose the
automatically form part of the trial (Sec. 17, Rule 119); demurrer to evidence within
and, a non-extendible period of
3. If the court denies the motion to discharge the accused 10 days from the receipt of
as State witness, his sworn statement shall be the demurrer. (Sec. 23, Rule
inadmissible in evidence. (Sec. 17, Rule 119) 119)

DEMURRER TO EVIDENCE JUDGMENT

RULE 119 RULE 120

A demurrer to evidence is actually a motion to dismiss that is
filed by the accused after the prosecution has rested its case.
The demurrer to evidence in criminal cases is “filed after the
prosecution had rested its case” and when the same is
granted, it calls for an appreciation of the evidence adduced
by the prosecution and its sufficiency to warrant conviction
beyond reasonable doubt, resulting in a dismissal of the case
on the merits, tantamount to an acquittal of the accused. Such
dismissal of a criminal case by the grant of demurrer to
evidence may not be appealed, for to do so would be to place
the accused in double jeopardy. The verdict being one of
acquittal, the case ends there. (Asistio Y Consino vs. People;
G.R. No. 200465; 20 April 2015)
What are the requisites of a valid judgment?
It must be:
1. Written in official language;
2. Personally and directly prepared by the judge;
3. Signed by the judge; and,
4. Contain clearly and distinctly a statement of the facts and
the law upon which it is based. (Sec. 1, Rule 120)
NOTE: The jurisdictional requirements before a judgment
may be validly rendered are jurisdiction over the subject
matter, territory and the person of the accused. (Antiporda, Jr.
v. Garchitorena, G.R. No. 133289, December 23, 1999)
What are the instances when judgment may be
promulgated even if the accused is not present?

Effect of filing a demurrer with leave of court v. Filing a
demurrer without leave
Demurrer With Leave of
Court
If leave of court is denied,
the accused may proceed
with the presentation of his
evidence.
If demurrer is granted, the
case is dismissed and the
effect is an acquittal.
Demurrer Without Leave
of Court
If demurrer to evidence is
denied, it is tantamount to a
waiver of the accused’s right
to present evidence and as a
consequence the case will be
submitted for judgment on
the basis of the evidence for
the prosecution.
If demurrer is granted, the
case is dismissed and the
effect is an acquittal.
1. A judgment of acquittal.
2. Judgment is for a light offense, in which case judgment
may be promulgated in the presence of the counsel for
the accused or a representative.
3. Accused fails to attend the promulgation despite due
notice or if he jumped bail or escaped from prison. Notice
must be given to the bondsmen, warden, accused’s bailor
and counsel (Sec. 6, Rule 120)
FINALITY OF JUDGMENT
When does judgment become final?
1. After the lapse of time for perfecting an appeal;
NOTE: In case of death penalty is imposed, the CA shall
automatically review the judgment before it becomes
final.
2. When the sentence has been partially or totally satisfied;
3. When the accused has expressly waived in writing his
right to appeal;
4. When the accused has applied for probation (Sec. 7, Rule
120)

NEW TRIAL OR RECONSIDERATION

RULE 121

New trial Reconsideration

Rehearing of a case already decided but before the judgment of May be filed in order to correct errors of law or fact in
conviction therein rendered has become final, whereby errors of law the judgment. It does not require any further proceeding.
or irregularities are expunged from the record or new evidence is
introduced, or both steps are taken.

56
 UST LAW PRE-WEEK NOTES 2017
Grounds:
1. Errors of law or irregularities prejudicial to the
substantial rights of the accused have been
committed during the trial.
2. New and material evidence has been discovered
which the accused could not, with reasonable
diligence, have discovered and produced at the
trial and which if introduced and admitted would
probably change the judgment. (Sec. 2, Rule 121)
3. Other grounds which the court may consider in the
exercise of its jurisdiction:
a. Negligence or incompetency of counsel or mistake which is
so gross amounting to deprivation of the substantial rights of
the accused and due process (Aguilar v. CA GR No. 114282,
November 28, 1995);
b. Recantation of a witness where there is no evidence
sustaining the judgment of conviction other than the
testimony of such witness (Tan Ang Bun v. CA G.R. No. L-
47747, February 15, 1990);
c. Improvident plea of guilty which may be withdrawn;
d. Disqualification of attorney de officio to represent accused in
trial; and,
e. Interest of justice (Sec. 6, Rule 121)
What are the requisites before a new trial may be granted
on the ground of newly discovered evidence? (Berry Rule)
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered and
produced at the trial even with the exercise of
reasonable diligence;
3. It is a new and material evidence;
4. If introduced and admitted, it would probably change the
judgment if admitted. (Riano, 2011)
NOTE: A new trial may be granted at any time before the
judgment of conviction becomes final:
1. On motion of the accused.
2. On motion of the court but with consent of the accused.
What is meant by the Fresh Period Rule?
A fresh period of 15 days to appeal is counted from the denial
of the motion for reconsideration or new trial. (Neypes v. CA,
G.R. No. 141524, September 14, 2005)
NOTE: The reason for the "fresh period rule" is to standardize
the appeal period provided in the Rules and do away with the
confusion as to when the 15-day appeal period should be
counted.
Instances where fresh period rule is inapplicable:
1. It is settled that the “fresh period rule” applies only to
judicial appeals and not to administrative appeals (San
Lorenzo Ruiz Builders and Developers Group, Inc. and Oscar
Violago v. Ma. Cristina F. Bayang, G.R. No. 194702, April 20,
2015).
2. Appeal is filed out of time. Neypes is inapplicable to the
present case, although procedural laws may be given
retroactive effect to actions pending and undetermined at the
time of their passage; there being no vested rights in the rules
of procedure, said retroactive application of procedural rule
does not extend to actions that have already become final and
executory, like the Order of the trial court in the instant case.
(National Power Corporation vs. Laohoo, 593 SCRA 564, July
23, 2009 )
---
Sanico and Batiquin were convicted by the MCTC of the
crimes of trespassing and theft of minerals. Sanico’s
counsel filed a notice of appeal in the MCTC. Consequently,
57
Grounds:
1. Errors of law; or,
2. Errors of fact. (Sec. 3, Rule 121)
NOTE: The principle underlying this rule is to afford the
trial court the opportunity to correct its own mistakes
and to avoid unnecessary appeals from being taken. The
grant by the court of reconsideration should require no
further proceedings, such as taking of additional proof.
the RTC ordered Sanico to file his memorandum on appeal.
For failure to comply with the said order, the RTC
dismissed the appeal. The RTC also denied Sanico’s motion
for reconsideration. Sanico filed a petition for review in the
CA, contesting his conviction, and assailing the dismissal of
his appeal for failure to file the memorandum on appeal.
However, the CA denied the petition. The motion for
reconsideration was likewise denied. Was the dismissal of
the appeal for failure to file a memorandum of appeal
correct?
NO. The failure to file the memorandum on appeal is a ground
for the RTC to dismiss the appeal only in civil cases. The same
rule does not apply in criminal cases, because Section 9(c),
Rule 122 of the Rules of Court imposes on the RTC the duty to
decide the appeal "on the basis of the entire record of the case
and of such memoranda or briefs as may have been filed"
upon the submission of the appellate memoranda or briefs, or
upon the expiration of the period to file the same. Hence, the
dismissal of the Sanico’s appeal cannot be properly premised
on the failure to file the memorandum on appeal. (Sanico v.
Court of Appeals, G.R. No. 198753, March 25, 2015, Bersamin,
J.)
---
Pedro Buado y Cipriano Jr. was found guilty by the RTC of
Valenzuela of two counts of rape committed against his
two minor daughters, 10 years old and 8 years old. He was
sentenced to suffer in each case the death penalty. He
elevated the case to the Court of Appeals (April 27, 2005).
The CA affirmed the conviction, but reduced the death
penalty to reclusion perpetua. Hence, the appeal.
(1) Did the court erred in convicting the accused-appelant
of the crime charged despite the fact that his guilt was
not proven beyond reasonable doubt?
(2) Did the trial court gravely erred in imposing the death
penalty upon the accused-appellant despite the
prosecution’s failure to prove the special qualifying
circumstances of relationship and minority?
(1) NO. The trial records entirely supported the lower
court’s findings in favor of the credibility of the two
daughters’ recollections. On the other hand, the accused
did not bring to the Court’s attention any facts and
circumstances of weight that, if properly considered,
would change the result into one favorable to him.
Moreover, long silence and delay in reporting the crime
of rape to the proper authorities have not always been
considered as an indication of a false accusation. The
 REMEDIAL LAW

Court discussed that, the essence of rape is the carnal Warrant of Arrest vs. Search Warrant
knowledge of a female either against her will (through
force or intimidation) or without her consent (where the Warrant of Arrest Search Warrant
female is deprived of reason or otherwise unconscious, Order directed to the peace Order in writing in the name
or is under 12 years of age, or is demented). The accused officer to execute the warrant of the People of the
may then be convicted solely on the basis of the victim’s by taking the person stated Philippines signed by the
credible, natural and convincing testimony. therein into custody so that judge and directed to the
he may be bound to answer peace officer to search
(2) During the trial, the Prosecution adduced no evidence to for the commission of the personal property described
establish the minority of one of the raped daughters in offense. therein and to bring it to
Crim. Case No. 912-V-99. Hence, the court concurs with court.
the CA’s conclusion that the accused could not be Does not become stale. Validity is for 10 days only.
properly found guilty of qualified rape. Accordingly, the May be served on any day To be served only in daytime
CA correctly prescribed Reclusion Perpetua as the and at any time of day or unless the affidavit alleges
penalty. night. that the property is on the
person or in the place to be
On the other hand, in Crim. Case No. 974-V-99, it searched.
sufficiently stated the minority of the other daughter and Searching examination of The judge must personally
her being a legitimate daughter of the accused. witnesses is not necessary. conduct an examination of
Accordingly, the CA correctly affirmed the penalty of the complainant and the
death. witnesses.
Judge is merely called upon to Examination must be
But, with the intervening passage on June 24, 2006 of examine and evaluate the probing. Not enough to
R.A. No. 9346, the imposition of the death penalty has report of the prosecutor and merely adopt the questions
become prohibited. Thus, the retroactive application of the evidence. and answers asked by a
the prohibition against the death penalty must be made previous investigator.
here because it is favorable to the accused. (People v.
Buado, Jr. y Cipriano, G.R. No. 17063, January 8, 2013, NOTE: In general, the requirements for the issuance of a
Bersamin, J.) search warrant are more stringent than the requirements for
--- the issuance of a warrant of arrest. The violation of the right
to privacy produces a humiliating effect which cannot be
SEARCH AND SEIZURE rectified anymore. This is why there is no other justification
RULE 126 for a search, except a warrant. On the other hand, in a
warrant of arrest, the person to be arrested can always post
What is a general warrant? bail to prevent the deprivation of liberty (See also: Dr.
Nemesio E. Prudente v. The Hon. Executive Judge Abelardo M.
A general warrant is one which vaguely describes and does Dayrit, RTC Manila, Branch 33 And People Of The Philippines,
not particularize the personal properties to be seized without G.R. No. 82870, December 14, 1989).
definite guidelines to the searching team as to what items
might be lawfully seized, thus giving the officers of the law What is the extent of a search incident to lawful arrest?
discretion regarding what articles they should seize.
This includes searching the person who is arrested, in order
Is a general warrant valid? to find and seize the things connected with the crime as fruits
or as the means by which it was committed.
No. A general warrant is not valid as it infringes on the
constitutional mandate requiring particular description of the What are the personal properties that can be a subject of a
things to be seized. search warrant?

What is a scatter-shot search warrant? 1. Personal property subject of the offense;

2. Personal property stolen or embezzled and other
A scatter-shot warrant is a warrant issued for more than one proceeds, or fruits of the offense; or,
offense. It is invalid because it violates what the law requires 3. Personal property used or intended to be used as a
in a warrant of arrest. means of committing an offense.

What are the requisites before a warrant may be issued? What are objects subject to seizure during a search
incidental to an arrest of a person even without a search
1. It must be issued upon probable cause; warrant? (2003 Bar)
2. Probable cause must be determined by the issuing judge
personally; 1. Dangerous weapons; and,
3. The judge must have personally examined, in the form of 2. Anything which may be used as proof of the commission
searching questions and answers, the applicant and his of an offense.
witnesses;
4. The warrant issued must particularly describe the place NOTE: In searches incident to lawful arrest, the arrest must
to be searched and the persons or things to be seized; precede the search and the process cannot be reversed,
and unless the police officers have probable cause to make the
5. It must be in connection with one specific offense; and, arrest at the outset of the search.
6. The sworn statements together with the affidavits
submitted by witnesses must be attached to the record. What are the exceptions to the search warrant
(Prudente v. Dayrit, G.R. No. 82870, December 14, 1989) requirement?

NOTE: The warrant must not have been issued more than 10 1. Search incident to lawful arrest;
days prior to the search made pursuant thereto. 2. Plain view doctrine;
3. Immediate control test;
4. Consented search (waiver of right);
5. Search of moving vehicle;

58
 UST LAW PRE-WEEK NOTES 2017
6. Checkpoints; body checks in airports;
7. Stop and frisk situations (Terry doctrine);
8. Enforcement of custom laws;
9. Exigent and emergency circumstances; and,
10. Inspection of buildings and other premises for the
enforcement of fire, sanitary, and building regulations.
What is the Plain View Doctrine?
Objects falling in the plain view of an officer has a right to be
in the position to have that view are subject to seizure and
may be presented as evidence.
For the doctrine to apply, the following requisites must be
met:
a. s
What does the ‘inadvertence’ requirement under the plain
view doctrine mean?
It means that the officer must not have known in advance of
the location of the evidence and intend to seize it. Discovery
should not be anticipated. (United Laboratories v. Isip, G.R. No.
163858. June 28, 2005)
The plain view doctrine does not apply where officers did not
just accidentally discover the evidence but actually searched
for it. The plain view doctrine may not be used to launch
unbridled searches and indiscriminate seizures or to extend a
general exploratory search made solely to find evidence of
defendant’s guilt. (Valeroso v. CA, G.R. No. 164815, September
3, 2009)
---
Acting on a tip by an informant, a buy bust operation was
planned against Gonzales. PO1 Eduardo Dimla acted as
the poseur-buyer and marked the buy bust money with his
initials “ED”. Gonzales handed PO1 Dimla a small plastic
sheet containing a white substance and PO1 Dimla gave
Gonzales the marked money. PO1 Dimla gave the signal
and Gonzales was arrested. PO1 Dimla marked the sachet
with his initials, “ED”. The Bulacan Provincial Crime
Laboratory Office certified that the contents were 0.194
gram of shabu. With only PO1 Dimla as the sole
prosecution witness, the RTC convicted Gonzales which the
CA affirmed. Was the conviction proper?
NO. PO1 Dimla failed to allege that the marking was done in
the presence of Gonzales or upon his arrest and who took
custody of the confiscated item after he marked it. Marking,
which is the affixing on the dangerous drugs or related items
by the apprehending officer or the poseur-buyer of his initials
or signature or other identifying signs, should be made in the
presence of the apprehended violator immediately upon
arrest. The indeterminateness of the identities of the
individuals who could have handled the sachet of shabu after
PO1 Dimla’s marking broke the chain of custody, and tainted
the integrity of the shabu ultimately presented as evidence to
the trial court. By way of exception, Republic Act No. 9165
and its IRR both state that the non-compliance with the
procedures thereby delineated and set would not necessarily
invalidate the seizure and custody of the dangerous drugs
provided there were justifiable grounds for the non-
compliance, and provided that the integrity of the evidence of
the corpus delicti was preserved. (People v. Gonzales, G.R. No.
182417, April 3, 2013, Bersamin, J.)
---
STOP AND FRISK SITUATIONS
What is Terry Search Doctrine?
59
A valid “stop” by an officer requires that he has a reasonable
belief that a criminal activity has happened or is about to
happen. The “frisk” made after the “stop” must be done
because of a reasonable belief that the person stopped is in
possession of a weapon that will pose danger to the officer
and other. (Riano, 2011)
NOTE: The officer may search the outer clothing of the
person in an attempt to discover weapons which might be
used to assault him. (Manalili v. CA, G.R. No. 113447, October 9,
1997)
Police officers must not rely on a single suspicious
circumstance. There should be presence of more than one
seemingly innocent activity, which, taken together, warranted
a reasonable inference of criminal activity. (Comerciante y
Gonzales vs. People; G.R. No. 205926, July 22, 2015)
What is the effect of an illegal search and seizure?
Fruit of the poisonous tree doctrine – The effect of an illegal
search and seizure is the exclusion of the evidence obtained
from being used against the person whose rights were
violated by the search.
What are the remedies against an unlawful search and/or
seizure?
1. Motion to quash the search warrant;
2. Motion to suppress as evidence the objects illegally taken
(exclusionary rule – any evidence obtained through
unreasonable searches and seizures shall be inadmissible
for any purpose in any proceeding);
3. Replevin, if the objects are legally possessed; and
4. Certiorari, where the search warrant is a patent nullity.
NOTE: The remedies are alternative.
PROVISIONAL REMEDIES IN CRIMINAL CASES
RULE 127
What are the Provisional Remedies available in criminal
cases?
1. Attachment (Rule 57);
2. Preliminary injunction (Sec. 58);
3. Receivership (Rule 59); and,
4. Replevin (Rule 60);
The provisional remedies in civil actions, insofar as they are
applicable, may be availed of in connection with the civil
action deemed instituted with the criminal action. (Sec. 1,
Rule 127)
NOTE: If the civil action has been waived, reserved, or
instituted separately, the provisional remedy may not be
availed of in the criminal action. Instead, it should be applied
for in the separate civil action instituted.
EVIDENCE
Evidence is the means, sanctioned by the Rules of Court, of
ascertaining in a judicial proceeding the truth respecting a
matter of fact (Sec. 1, Rule 128).
To what proceedings does the rules on evidence apply?
The rules of evidence, being part of the Rules of Court, apply
only to judicial proceedings (Sec. 1, Rule 128).
It does not apply to administrative or quasi-judicial
proceedings as administrative bodies are not bound by the
technical niceties of the rules obtaining in the court of law. (El
Greco Ship Maning and Management Corporation vs.
Commissioner of Customs, G.R. No. 177188, December 4, 2008)
 REMEDIAL LAW

GR: The Rules of Court shall not apply to: (NICOLE) Collateral matters are matters other than the facts in issue
1. Naturalization Proceedings; and which are offered as a basis for inference as to the
2. Insolvency Proceedings; existence or non-existence of the facts in issue (Regalado,
3. Cadastral Proceedings; Remedial Law Compendium).
4. Other cases as may be provided by law;
5. Land registration cases; and It may be admitted if it tends in any reasonable degree to
6. Election cases establish the probability or improbability of the fact in issue.
(Sec. 4, Rule 128)
XPNs:
1. by analogy; Is there such a thing as multiple admissibility? What are
2. in a suppletory character; and the instances illustrating the same?
3. whenever practicable and convenient(Sec. 4, Rule 1).
Yes. When a proffered evidence is admissible for 2 or more
Distinguish Evidence in civil cases from Evidence in purposes. For instance, a declaration of a dying person may
criminal cases be offered as:
a. a dying declaration;
Evidence in Civil Case Evidence in Criminal Case b. part of the res gestae; or,
The party having the burden The guilt of the accused has c. declaration against interest.
of proof must prove his claim to be proven beyond
by a preponderance of reasonable doubt (Sec. 1, It applies also when evidence may be inadmissible for one
evidence (Sec. 1, Rule 133). Rule 133). purpose but admissible for another. An example is a person's
An offer of compromise is The same may be received in bad reputation for truth, honesty or integrity is objectionable
not an admission of any evidence as an admission of if offered to prove that he committed the crime charged but
liability, and not admissible guilt except those involving admissible to impeach his credibility as a witness.
in evidence against the quasi-offenses (criminal
offeror (Sec. 27, Rule 130). negligence) or those allowed Can evidence be conditionally admitted?
by law to be compromised
(Sec. 27, Rule 130). YES. When the relevance of the evidence is not apparent at
The concept of presumption The accused enjoys the the time it is offered but may be readily seen when connected
of innocence does not apply constitutional presumption to other pieces of evidence not yet offered, the proponent of
and generally there is no of innocence (Sec. 14, Art. III, the evidence may ask the court that said evidence be
presumption for or against a 1987 Constitution). conditionally admitted in the meantime, subject to the
party exept in certain cases condition that he is going to establish its relevancy and
provided by law. competency at a later time.

Differentiate Proof from Evidence. Curative Admissibility

Proof is mere probative effect or result of an evidence; there
can be proof only because there is evidence. On the other
hand, Evidence is a medium of proof, the means of having a
fact proved or disproved.
What is the difference between Factum Probans and
Factum Probandum?
It allows a party to introduce an otherwise inadmissible
evidence to answer the opposing party's previous
introduction of inadmissible evidence if it would remove any
unfair prejudice caused by the admission of the earlier
inadmissible evidence.
Evidence considered as positive and as negative evidence

Factum Probans: (the evidence) refers to the material/facts
evidencing the fact to be established; refers to the probative
or evidentiary fact tending to prove the fact in issue. While
Factum Probandum: (what you are supposed to prove, i.e.,
the elements of the cause of action); refers to the fact to be
proven, or the fact/proposition to be established.
An evidence is POSITIVE when a witness affirms that a
certain state of facts exists or that a certain event happened.
An evidence is NEGATIVE when a witness states that a certain
event did not occur or that the state of facts alleged to exist
does not actually exist.

What are the Requisites for Admissibility of Evidence? Admissible Evidence and Credible Evidence

1. The evidence is relevant to the issue; and Evidence is admissible when it is relevant to the issue and is
2. The evidence is not excluded by the rules (competent). not excluded by the law or rules. (Sec. 3, Rule 128)

How is relevancy and competency determined? NOTE: Admissible evidence is not necessarily credible
evidence. Admissibility does not guarantee credibility. (Riano,
It is relevant if “it has such a relation to the fact in issue as to 2016)
induce belief in its existence or non-existence” (Sec. 4, Rule
128). Credibility refers to worthiness of belief, that quality which
renders a witness worthy of belief. (Black’s Law Dictionary,
Competency is determined by the prevailing exclusionary 5th Ed., p.330)
rules of evidence.
Burden of Proof vs Burden of Evidence
What are collateral matters? When are they allowed?
Burden of proof Burden of evidence
A matter is collateral when it is on a “parallel or diverging Duty of a party to present Duty of the party to go
line,” merely “additional” or “auxiliary” (Black Law’s evidence to establish his forward with the evidence to
Dictionary, 5th Ed., p. 237). This term connotes an absence of a claim or evidence by the overthrow the prima facie
direct connection between the evidence and the matter in amount of evidence required evidence against him
dispute. by law (Supreme Transliner, (Bautista v. Sarmiento, G.R.
Inc. v. CA, G.R. No. 125356, No. L-45137, September 23,
November 21, 2001). 1985).

60
 UST LAW PRE-WEEK NOTES 2017

fDoes not shift and remains The burden of going forward

throughout the entire case with the evidence may shift
exactly where the pleadings from party to party as the
originally placed it. exigencies of the trial require
(Chamberlayne, Sec. 203, 108,
169).
Generally determined by the Generally determined by the
pleadings filed by the party. developments of the trial, or
by the provisions of
substantive law or
procedural rules which may
relieve the party from
presenting evidence on the
facts alleged.
The burden of proof lies with the party who asserts his/her
right. In a counterclaim, the burden of proving the existence
of the claim lies with the defendant. (Ogawa v. Menigishi, 676
SCRA 14, 21, July 9, 2012)
Presumptions
These are inferences of the existence or non-existence of a
fact which courts are permitted to draw from the proof of
other facts (In the matter of the Intestate Estates of Delgado
and Rustia, G.R. No. 175733, January 27, 2006).
NOTE: A presumption shifts the burden of going forward
with the evidence. It imposes on the party against whom it is
directed the burden of going forward with evidence to meet
or rebut the presumption (Bautista, 2004, citing Mueller and
Kirkpatrick, §3.4.).
Effect of a Presumption
A party in whose favor the legal presumption exists may rely
on and invoke such legal presumption to establish a fact in
issue. One need not introduce evidence to prove the fact for a
presumption is prima facie proof of the fact presumed (Diesel
Construction, Inc v. UPSI Property Holdings, Inc., G.R. No.
154937, March 24, 2008).
Explain each kind of presumptions of law.
Conclusive presumptions (presumptions juris et de jure) are
those which are irrebuttable, and any evidence tending to
rebut the presumption is not admissible. This presumption is
in reality a rule of substantive law (Riano, 2009).
Disputable presumptions (presumptions juris tantum)are
those which are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence (Sec. 3, Rule
131; Regalado, 2008).
Classes of conclusive presumptions
1. Estoppel in pais (Equitable Estoppel) – Whenever a party
has, by his own declaration, act or omission,
intentionally and deliberately led another to believe a
particular thing to be true, and to act upon such belief, he
cannot, in any litigation arising out of such declaration,
act or omission, be permitted to falsify it (Sec. 2, (par. a),
Rule 131);
2. Estoppel by deed – A party to a property deed is
precluded from asserting, as against another party to the
deed, any right or title in derogation of the deed, or from
denying the truth of any material fact asserted in the
deed e.g. The tenant is not permitted to deny the title of
his landlord at the time of the commencement of the
relation of landlord and tenant between them (Sec. 2
(par. b), Rule 131).
QUANTUM OF EVIDENCE
Weight of Evidence
It is the probative value given by the court to particular
evidence admitted to prove a fact in issue.
PROOF BEYOND REASONABLE DOUBT
Proof beyond reasonable doubt does not mean such a degree
of proof as, excluding possibility of error, produces absolute
certainty. Moral certainty only is required, or that degree of
proof which produces conviction in an unprejudiced mind
(Sec. 2, Rule 133).
Should the identity of the accused be proven beyond
reasonable doubt for a judgment of conviction?
YES. When the identity of the accused is not established
beyond reasonable doubt, acquittal necessarily follows.
Conviction for a crime rests on the strength of the
prosecution’s evidence, never on the weakness of that of the
defense (People vs. Jalon, G.R. No. 93729, November 13, 1992).
NOTE: In every criminal prosecution, the prosecution must
prove two things:
1. The commission of the crime; and,
2. The identification of the accused as the perpetrator of the
crime. What is needed is positive identification made with
moral certainty as to the person of the offender (People v.
Maguing, G.R. No. 144090, June 26, 2003).
Prosecution witnesses positively identified Johnny as the
assailant of Chris. Hence, he was convicted of homicide.
However, he contends that the State failed to present
sufficient evidence against him in court. He sufficed that
should the knife he held during a fight against his long-
time enemies, brothers Chris and Michael, had been
presented, it would show the difference that Chris’ knife,
although smaller than Johnny’s, had more blood stains but
which size fits best on the mortal wound inflicted on
himself. It would thereby be ascertained that Chris
accidentally stabbed himself upon losing his balance
during such aggressive fight. Is Johnny’s contention
meritorious?
NO. The non-identification and non-presentation of the
weapon actually used in the killing did not diminish the merit
of the conviction on the ground that other competent
evidence and the testimonies of witnesses had directly and
positively identified and incriminated Johnny as the assailant
of Chris. The presentation of the weapon is not a prerequisite
for conviction. Positive identification of the accused is
sufficient for the judgment of conviction despite the non-
presentation of the weapon used in the commission of the
offense. Thus, the establishment beyond reasonable doubt of
Johnny’s guilt for the homicide did not require the production
of the weapon used in the killing as evidence in court.
(Medina vs. People, G.R. No. 161308, January 15, 2014)
PREPONDERANCE OF EVIDENCE
It is the weight, credit, and value of the aggregate evidence on
either side and is usually considered to be synonymous with
the term “greater weight of the evidence” or “greater weight
of the credible evidence”. It is a phrase which, in the last
analysis, means probability of the truth, evidence which is
more convincing to the court as worthy of belief than that
which is offered in opposition thereto (Philippine Commercial
International Bank v. Balmaceda, G.R. No. 158143, September
21, 2011).
NOTE: A judgment cannot be entered in the plaintiff’s favor if
his evidence still does not suffice to sustain his cause of
action. (Ibid.)

61
 REMEDIAL LAW
Did the Republic preponderantly show that the
Bakunawas had acquired ill-gotten wealth during Luz
Bakunawa’s employment during the Marcos
administration?
NO. The Sandiganbayan correctly ruled that the evidence of
the Republic was able to establish, at best, that Luz Bakunawa
had been an employee in Malacañang Palace during the
Marcos administration, and did not establish her having a
close relationship with the Marcoses, or her having abused
her position or employment in order to amass the assets
subject of this case. (Republic Of The Philippines, Represented
By The Presidential Commission
(Republic Of The Philippines, Represented By The Presidential
Commission On Good Government vs. Luz Reyes Bakunawa, Et
Al., G.R. No. 180418, August 28, 2013, Bersamin, J.)
FEBTC filed a case against Chan to recover the unpaid
balance of the amount fraudulently withdrawn from
Chan’s Current Account with the use of his ATM card. It
was alleged that at the time of the ATM withdrawal
transactions, there was a "system bug" whose nature had
allowed Chan to successfully withdraw funds in excess of
his current credit balance of P198,511.70; and that Chan
had taken advantage of the system bug to do the
withdrawal transactions. On his part, Chan denied
liability. Although admitting his physical possession of Far
East Card, he denied making the ATM withdrawals and
instead insisted that he had been actually home at the time
of the withdrawals. He alluded to a possible "inside job" as
the cause of the supposed withdrawals. The RTC rendered
judgment in favor of FEBTC. Did FEBTC preponderantly
prove Chan’s liability for the supposedly fraudulent
withdrawals?
NO. Although there was no question that Chan had the
physical possession of ATM card at the time of the
withdrawals, the exclusive possession of the card alone did
not suffice to preponderantly establish that he had himself
made the withdrawals, or that he had caused the withdrawals
to be made. In his answer, he denied using the card to
withdraw funds from his account on the dates in question,
and averred that the withdrawals had been an "inside job."
His denial effectively traversed FEBTC’s claim of his direct
and personal liability for the withdrawals, that it would lose
the case unless it competently and sufficiently established
that he had personally made the withdrawals himself, or that
he had caused the withdrawals. In other words, it carried the
burden of proof. (Far East Bank Trust Company, vs. Roberto
Mar Chante, A.K.A. Robert Mar G. Chan, G.R. NO. 170598,
October 9, 2013, Bersamin, J.)
SUBSTANTIAL EVIDENCE
Is an evidence that should constitute that amount of relevant
evidence which a reasonable mind might accept as adequate
to justify a conclusion. (Sec. 5, Rule 133)
To what cases does substantial evidence apply?
It applies to cases filed before the administrative or quasi-
judicial bodies and which requires that in order to establish a
fact.
NOTE: In a petition for a writ of amparo, the parties shall
establish their claims by substantial evidence. (Sec 17, The
Rule on the Writ of Amparo, effective October 24, 2007)
CLEAR AND CONVINCING EVIDENCE
It is that degree of evidence that produces in the mind of the
trier of fact a firm belief or conviction as to allegations sought
to be established. It is intermediate, being more than
preponderance, but not to the extent of such certainty as is
62
required beyond reasonable doubt as in criminal cases.
(Black’s Law Dictionary)
This standard should be lower than proof beyond reasonable
doubt but higher than preponderance of evidence. The
potential extraditee must prove by "clear and convincing
evidence" that he is not a flight risk and will abide with all the
orders and processes of the extradition court.
(Government of Hongkong Special Administrative Region v.
Olalia Jr., G.R. No. 153675, April 19, 2007)
XPN: Under Art. 1387, NCC, certain alienations of property
are presumed fraudulent.
CIRCUMSTANTIAL EVIDENCE
Circumstantial evidence is sufficient if:
(a) there is more than one circumstance;
(b) the facts from which the inferences are derived have been
proven; and,
(c) the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. (Rule 133,
Sec. 4; Marie Callo-Claridad v. Philip Ronald P. Esteban And
Teodora Alyn Esteban, G.R. No. 191567, March 20, 2013)
The pieces of evidence must be consistent with the
hypothesis that the respondents were probably guilty of the
crime and at the same time inconsistent with the hypothesis
that they were innocent, and with every rational hypothesis
except that of guilt.
The records show that the circumstantial evidence linking
Philip to the killing of Chase derived from the bare
recollections of Ariane and of Guray and Corpus respectively,
about seeing Chase board the white Honda Civic at around
7:00 p.m. of February 27, 2007, and about Philip being the
driver of the said car. But there was nothing else after that,
because the circumstances revealed by the other witnesses
could not even be regarded as circumstantial evidence
against Philip. Some of the affidavits were unsworn. The
statements subscribed and sworn to before the officers of the
Philippine National Police (PNP) x x x undeniably lacked the
requisite certifications to the effect that such administering
officers had personally examined the affiants, and that such
administering officers were satisfied that the affiants had
voluntarily executed and understood their affidavits. (Marie
Callo-Claridad v. Philip Ronald P. Esteban And Teodora Alyn
Esteban, G.R. No. 191567, March 20, 2013, Bersamin, J.)
JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
What are the facts that need not be proved?
1. Those of which the courts may take judicial notice (Rule
129);
2. Those that are judicially admitted (Rule 129);
3. Those that are conclusively presumed (Rule 131);
4. Those that are disputably presumed but uncontradicted
(Rule 131);
5. Immaterial allegations; and,
6. Facts admitted or not denied provided they have been
sufficiently alleged (Sec. 1, Rule 8).
7. Res ipsa loquitur
Judicial notice
It is the cognizance of certain facts which judges may
properly take and act upon without proof because they are
supposed to be known to them. It is based on considerations
of expediency and convenience. It displaces evidence, being
equivalent to proof (Regalado, 2008).
Judicial Notice is mandatory
 UST LAW PRE-WEEK NOTES 2017

When the matter is subject to a mandatory judicial notice, no Ikdal and Ministry of Public Health – Kuwait vs. Ma. Josefina
motion or hearing is necessary for the court may take judicial Echin, G.R. No. 178551, October 11, 2010). While the foreign
notice of a fact. law was properly pleaded in the case at bar, it was, however,
proven not in the manner provided by Section 24, Rule 132 of
Matters subject to mandatory judicial notice (EPOL-APOL- the Revised Rules of Court. While a photocopy of the foreign
MG) statute relied upon by the court a quo to relieve the common
carrier from liability, was presented as evidence during the
1. Existence and territorial extent of states; trial, the same however was not accompanied by the required
2. Political history, forms of government and symbols of attestation and certification. (Nedlloyd Lijnen B.V. Rotterdam
nationality; And The East Asiatic Co., Ltd. Vs. Glow Laks Enterprises, LTD.
3. Law of nations; G.R. No. 156330, November 19, 2014)
4. Admiralty and maritime courts of the world and their
seals; Judicial admissions
5. Political constitution and history of the Philippines;
6. Official acts of legislative, executive and judicial These are admissions, verbal or written, made by a party in
departments of the Philippines; the course of the proceedings in the same case, which does
7. Laws of nature; not require proof (Sec. 4, Rule 129).
8. Measure of time; and
9. Geographical divisions (Sec. 1, Rule 129) Judicial Admissions vs. Extrajudicial Admissions

When may judicial notice of a fact be taken? Judicial Admissions Extrajudicial Admissions
Those made in the course of Those made out of court or in
1. During trial; the proceeding in the same a judicial proceeding other
2. After trial and before judgment; or, case than the one under
3. Appeal. consideration.
Do not require proof and may Regarded as evidence and
In all instances, the court may act on its own initiative or be contradicted only by must be offered as such,
on request of a party (Sec. 3, Rule 129). showing that it was made otherwise, the court will not
through palpable mistake or consider it in deciding the
Generally speaking, matters of judicial notice have three that no such admission was case.
material requisites: made (Sec. 4, Rule 129).
1. the matter must be one of common and general Judicial admissions need not Requires formal offer for it to
knowledge; be offered in evidence since it be considered.
2. it must be well and authoritatively settled and not is not evidence. It is superior
doubtful or uncertain; and, to evidence and shall be
3. it must be known to be within the limits of the considered by the court as
jurisdiction of the court. The principal guide in established.
determining what facts may be assumed to be judicially Conclusive upon the admitter Rebuttable
known is that of notoriety. (Latip v. Chua, G.R. No. Admissible even if self- Not admissible if self-serving
177809, October 16, 2009) serving
Subject to cross-examination Not subject to cross-
Mandatory Judicial Notice vs. Discretionary Judicial
examination
Notice
Requisites of judicial admission
Mandatory Judicial Discretionary
Notice Judicial Notice 1. It must be made by a party to the case or his counsel;
Court is compelled to Court is not compelled 2. It must be made in the course of the proceedings in the
take judicial notice to take judicial notice same case; and,
Takes place at court’s May be at court’s own 3. It can be verbal or written admission. There is no
initiative initiative or on particular form required (Regalado, 2008).
request of a party
No hearing Needs hearing and It is an established principle that judicial admissions cannot
presentation of be contradicted by the admitter who is the party himself and
evidence binds the person who makes the same, absent any showing
that this was made through palpable mistake, no amount of
Do Philippine courts take judicial notice of foreign laws? rationalization can offset it. (Philippine Charter Insurance
Corporation v. Central Colleges of the Philippines, 666 SCRA
GR: Courts cannot take judicial notice of foreign laws. They 540)
must be alleged and proved.
OBJECT (REAL) EVIDENCE
XPN: When said laws are within the actual knowledge of the
court and such laws are: Object evidence, also known as real evidence, demonstrative
evidence, autoptic preference and physical evidence, is that
1. Well and generally known; evidence which is addressed to the senses of the court (Sec. 1,
2. Actually ruled upon in other cases before it; and none of Rule 130). It is not limited to the view of an object. It covers
the parties claim otherwise (PCIB v. Escolin, G.R. Nos. L- the entire range of human senses: hearing, taste, smell, and
27860, L-278896, March 29, 1974). touch (Riano, 2013).

What is the Doctrine of Processual Presumption? Requisites for the admissibility of Object Evidence

In international law, the party who wants to have a foreign 1. It must be relevant and competent;
law applied to a dispute or case has the burden of proving the 2. Authenticated;
foreign law. Where a foreign law is not pleaded or even if 3. The authentication must be made by a competent
pleaded, is not proved, the presumption is that the foreign witness who should identify the object to be the actual
law is same as ours (ATCI Overseas Corporation, Amalia G. thing involved;

63
 REMEDIAL LAW

4. The object must be formally offered in evidence (Riano, The chain of custody is essential to ensure that doubts
2013). regarding the identity of the evidence are removed through
the monitoring and tracking of the movements of the seized
An object evidence, when offered in accordance with the drugs from the accused, to the police, to the forensic chemist,
requisites for its admissibility, becomes evidence of the and finally to the court (People v. Sitco, G.R. No. 178202, May
highest order and speaks more eloquently than witnesses put 14, 2010). Ergo, the existence of the dangerous drug is a
together. The presence of the victim’s ravished body in a deep condition sine qua non for conviction. What is essential is “the
ravine with handcuffs on her wrist is a physical evidence that preservation of the integrity and the evidentiary value of the
bolsters the testimony of the witness. (People v. Larrahaga, seized items, as the same would be utilized in the
G.R. Nos. 138874-75, July 21, 2005) determination of the guilt or innocence of the accused (People
vs. Cardenas, G.R. No. 190342. March 21, 2012). The failure to
establish, through convincing proof, that the integrity of the
Real Evidence vs. Demonstrative Evidence seized items has been adequately preserved through an
unbroken chain of custody is enough to engender reasonable
Real evidence Demonstrative Evidence doubt on the guilt of an accused (People v. De Guzman y
Tangible object that played Tangible evidence that Danzil, G.R. No. 186498, March 26, 2010).
some actual role in the merely illustrates a matter
matter that gave rise to the of importance in the NOTE: In case there is a failure to comply with the
litigation litigation requirements of the law in the handling of confiscated drugs,
Intends to prove that the Intends to show that the the implementing rules require the following:
object is used in the demonstrative object fairly
underlying event represents or illustrates a 1. Non-compliance must be because of justifiable
real evidence grounds; and
Illustration: Where a 2. The apprehending officer/team must have properly
drawing is presented to preserved the integrity and evidentiary value of the
illustrate the relative seized items.
positions of the
protagonists and If sufficient explanation is given by the prosecution for the
witnesses to the killing, the non-compliance with the required procedure in the handling
foundation for of the seized items, such non-compliance shall not render the
demonstrative evidence seizure and custody of the seized items void and invalid.
will normally consist of the Nonetheless, it must be accompanied by proof (People v. Dela
testimony of an eyewitness Cruz, G.R. No. 177222, October 29, 2008).
or investigator stating that
the drawing was indeed After a buy-bust operation involving the accused Recto
fairly represents the Angngao and Robert Carlin and the apprehender SPO4
position of those present in Marquez Madlon, the confiscated substances brought to
the event. (Francisco, 1996) the Benguet Provincial Crime Laboratory Office were
identified and testified positive for marijuana resin and
What is the meaning of View of an Object or Scene? hashish oil. The Office of the City Prosecutor filed in the
RTC two (2) information against the accused, charging
When an object is relevant to the fact in issue, it may be them with illegal sale and possession of said dangerous
exhibited to, examined or viewed by the court. (Sec 1, Rule drugs. The RTC convicted Angngao but acquitted Carlin.
130) The CA affirmed the RTC’s ruling. Was the chain of custody
substantially complied with?
Where the object in question cannot be produced in court
because it is immovable or inconvenient to remove, it is NO. It is beyond dispute, for one, that no photograph was
proper for the tribunal to go to the object in its place and taken of the recovered items for documentation purposes. It
there observe it (Francisco, 1996). An ocular inspection was also not shown why, despite the requirement of the law
conducted by the judge without the presence of the parties or itself, no representative from the media, from the Department
due notice is not valid, as an ocular inspection is part of the of Justice, or any elective official was present to serve as a
trial. (Regalado, 2008, citing Adan vs. Abucejo-Luzano, et al., witness during the arrest. The Prosecution’s testimonial
A.M. No. MTJ-00-1298, August 3, 2000) evidence is actually bereft of the showing of the efforts
undertaken by the law enforcers to see to the presence of any
Explain the chain of custody in relation to Section 21 of the of such representatives during the operation against the
Comprehensive Dangerous Drugs Act of 2002 (as amended appellant from his apprehension until the seizure of the
by R.A. 10640) drugs. (People Of The Philippines vs. Recto Angngao And
Robert Carlin, G.R. No. 189296, March 11, 2015, Bersamin, J.)
It is the duly recorded authorized movements and custody of
seized drugs or controlled chemicals or plant sources of Acting on a tip by an informant, a buy bust operation was
dangerous drugs or laboratory equipment of each stage: planned. PO1 Eduardo Dimla acted as the poseur-buyer
and marked the buy bust money, two Php 100.00 bills with
1. From the time of seizure/confiscation to; his initials “ED”. PO1 Dimla, along with the rest of the
2. Receipt in the forensic laboratory to; team, proceeded to respondent Alberto Gonzales’ house.
3. Safekeeping to; Gonzales handed PO1 Dimla a small plastic sheet
4. Presentation in court for destruction. containing a white substance and PO1 Dimla gave
Gonzales the marked money. PO1 Dimla gave the signal
Such record of movements and custody of seized item shall and Gonzales was arrested. PO1 Dimla marked the sachet
include the identity and signature of the person who held with his initials, “ED”. The Bulacan Provincial Crime
temporary custody of the seized item, the date and time when Laboratory Office certified that the contents was 0.194
such transfer of custody were made in the course of gram of shabu. With only PO1 Dimla as the sole
safekeeping and used in court as evidence and the final prosecution witness, the RTC convicted Gonzales which the
disposition (Sec. 1, DDB Reg. No. 1, Series of 2002). CA affirmed. Was the sachet of shabu properly marked?

64
 UST LAW PRE-WEEK NOTES 2017
NO. Although PO1 Dimla, the State’s lone witness, testified
that he had marked the sachet of shabu with his own initials
of "ED" following Gonzales’ arrest, he did not explain, either
in his court testimony or in the joint affidavit of arrest,
whether his marking had been done in the presence of
Gonzales, or done immediately upon the arrest of Gonzales.
Nor did he show by testimony or otherwise who had taken
custody of the sachet of shabu after he had done his marking,
and who had subsequently brought the sachet of shabu to the
police station, and, still later on, to the laboratory. The
indeterminateness of the identities of the individuals who
could have handled the sachet of shabu after PO1 Dimla’s
marking broke the chain of custody, and tainted the integrity
of the shabu ultimately presented as evidence to the trial
court. (People Of The Philippines v. Alberto Gonzales Y Santos
aka TAKYO G.R. No. 182417, April 3, 2013, Bersamin, J.)
Martin denied the allegations against him and clarified
that it was impossible for two blocks of marijuana to fit
inside his bag. He added that it would only be possible if
said blocks were pressed but that would cause the plastic
bags and its contents to explode inside. However, one of
the policemen testified that the bag seized from Martin
was a sling bag and that there was nothing else inside it
but the two blocks of marijuana well-covered with plastic
bags. Upon examination by the forensic chemist, the two
blocks of marijuana were indeed covered with plastic and
intact with no holes nor wrinkles which could identify that
they were tightened or pressed. The same were presented
as evidence in court. Nonetheless, the trial court ruled that
Martin is guilty of illegal possession of marijuana under
Republic Act No. 6425. Is the trial court correct?
NO. Under the Rules of Court, evidence, to be relevant, must
throw light upon, or have a logical relation to, the facts in
issue to be established by one party or disproved by the
other. The test of relevancy is satisfied if there is some logical
connection either directly or by inference between the fact
offered and the fact to be proved. In here, the Prosecution
failed to establish the linkage between the blocks of
marijuana supposedly seized by the policemen from Martin’s
bag and the blocks of marijuana that the Prosecution later
presented. That linkage was indispensable because the failure
to prove that the specimens of marijuana submitted to the
forensic chemist for examination were the same marijuana
allegedly seized from Martin irreparably broke the chain of
custody that linked the confiscated marijuana to the
marijuana ultimately presented as evidence during the trial.
Thus, the credibility of the evidence of the corpus delicti in a
prosecution for illegal possession of marijuana depends on
the integrity of the chain of custody of the marijuana from the
time of its seizure until the time of its presentation as
evidence in court. (People vs. Belocura, G.R. No. 173474,
August 29, 2012, Bersamin, J.)
What are the guidelines to be used by courts in assessing
the probative value of DNA evidence? What is the so-called
Vallejo Standard? (2010, 2009 Bar)
1. How the samples were collected;
2. How they were handled;
3. The possibility of contamination of the samples;
4. The procedure followed in analyzing the samples;
5. Whether the proper standards and procedures were
followed in conducting the tests; and,
6. The qualification of the analyst who conducted the tests
(People v. Vallejo, G.R. No. 144656, May 9, 2002).
A rape-slay case of a 9-year old girl, admitted in evidence the
DNA samples of the victim which were found in the blood-
stained garments of the accused. Vaginal swabs taken from
the victim were also admitted and were found to show the
DNA profile of the accused who was subsequently convicted.
(People v. Vallejo, 382 SCRA 192)
65
NOTE: Even if a person has already been convicted under a
final and executory judgment, he may still avail of DNA
testing provided that (a) a biological sample exists; (b) such
sample is relevant to the case; and (c) the testing would
probably result in the reversal or modification of the
judgment of conviction. (2012 Bar)
DOCUMENTARY EVIDENCE
Documents as evidence consist of writings or any material
containing letters, words, numbers, figures, symbols, or other
modes of written expressions, offered as proof of their
contents (Sec. 2, Rule 130).
Distinguish the admissibility of document as documentary
evidence and/or object evidence.
It is object evidence, when it is addressed to the senses of the
court or when it is presented in order to establish certain
physical evidence or characteristics that are visible on the
paper and the writings that comprise the document. On the
other hand, it is considered as documentary evidence when it
is offered as proof of its contents.
BEST EVIDENCE RULE
GR: When the subject of the inquiry is the contents of the
document, no evidence shall be admissible other than the
original document itself.
XPNs: (LCNP)
1. When the original has been lost or destroyed, or cannot
be produced in court, without bad faith on the part of the
offeror;
2. When the original is in the custody or under the control
of the party against whom the evidence is offered, and
the latter fails to produce it after reasonable notice;
3. When the original consists of numerous accounts or
other documents which cannot be examined in court
without great loss of time and the fact sought to be
established from them is only the general result of the
whole;
4. When the original is a public record in the custody of a
public officer or is recorded in a public office (Sec. 3, Rule
130).
Only a photocopy of the Employee Clearance was presented
in evidence. The Court held that the photocopy is admissible
as evidence since an exception to the best evidence rule is
when the document sought to be presented is in the
possession of the person against whom it is to be offered and
such party fails to present it even after reasonable notice.
(Pacasum vs. People, G.R. No. 180314, April 16, 2009)
NOTE: Where the issue is only as to whether such a
document was actually executed, or exists, or on the
circumstances relevant to or surrounding its execution or
delivery, the best evidence rule does not apply (Moran, 1980).
During trial for the complaint filed by the of Heirs of
Maximo Alvarez and Valentina Clave for quieting of title
and damages against Margarita Prodon, the custodian of
the records of the property attested that the copy of the
deed of sale with right to repurchase could not be found in
the files of the Register of Deeds of Manila. The RTC
rendered judgment in favor of the Heirs of Prodon. It
opined that although the deed itself could not be presented
as evidence in court, its contents could nevertheless be
proved by secondary upon proof of its execution or
existence and of the cause of its unavailability being
without bad faith. It found that the defendant had
established the execution and existence of the deed. The
RTC concluded that the original copy of the deed of sale
with right to repurchase had been lost, and that earnest
 REMEDIAL LAW
efforts had been exerted to produce it before the court.
Does the Best Evidence Rule apply to the case?
NO. The Best Evidence Rule applies only when the terms of
writing are in issue. When the evidence sought to be
introduced concerns external facts, such as the existence,
execution or delivery of the writing, without reference to its
terms, the Best Evidence Rule cannot be invoked. In such a
case, secondary evidence may be admitted even without
accounting for the original.
The action for quieting of title may be based on the fact that a
deed is invalid, ineffective, voidable, or unenforceable. The
terms of the writing may or may not be material to an action
for quieting of title, depending on the ground alleged by the
plaintiff. For instance, when an action for quieting of title is
based on the unenforceability of a contract for not complying
with the Statute of Frauds, Article 1403 of the Civil Code
specifically provides that evidence of the agreement cannot
be received without the writing, or a secondary evidence of
its contents. There is then no doubt that the Best Evidence
Rule will come into play. (Heirs Of Margarita Prodon vs. Heirs
Of Maximo S. Alvarez And Valentina Clave, G.R. NO. 170604,
September 2, 2013, Bersamin, J.)
ORIGINAL DOCUMENT
Original document
1. The original of a document is one the contents of which
are the subject of inquiry;
2. When a document is in two or more copies executed at
or about the same time, with identical contents,
including signed carbon copies, all such copies are
equally regarded as originals; or,
NOTE: When carbon sheets are inserted between two or
more sheets of paper with the writing and the signature
on the first sheet being reproduced in the sheets beneath
by the same stroke of pen or writing medium, all the
sheets are considered original (Trans-pacific Industrial
Supplies v. CA, G.R. No. 109172, August 19, 1994).
3. When an entry is repeated in the regular course of
business, one being copied from another at or near the
time of the transaction, including entries in journals and
ledgers, all the entries are likewise equally regarded as
originals (Sec. 4, Rule 130).
SECONDARY EVIDENCE
What is the so called “Laying the basis” or “Laying the
predicate”?
It means that the contents of an original document may be
proved by secondary evidence. Provided, that the offeror is
able to prove the following:
1. Execution or existence of the original document;
2. The cause of its unavailability; and
3. The unavailability of the original is not due to bad faith on
his part. (Sec. 5, Rule 130)
NOTE: Accordingly, the correct order of proof is as follows:
existence, execution, loss, and contents. This order may be
changed if necessary at the sound discretion of the court.
(Citibank, N.A. MasterCard v. Teodoro, G.R. No. 150905,
September 23, 2003)
ELECTRONIC EVIDENCE
Explain the Rules on Electronic Evidence (A.M. No. 01-7-01-
SC)
66
An electronic document shall be regarded as the equivalent of
an original document under the Best Evidence Rule if it is a
printout or output readable by sight or other means, shown
to reflect the data accurately (Sec. 1, Rule 4).
The copies of the printout or output readably by sight are also
deemed originals where the copies were executed at or about
the same time with identical contents, or is a counterpart
produced by the same impression as the original or from the
same matrix or by other means and which accurately
reproduces the original (Sec.2, Rule 4).
NOTE: The authenticity of any private electronic document
must be proved by evidence that it had been digitally signed
and other appropriate security measures have been applied
(Sec. 2, Rule 5).
The evidence offered by NAPOCOR were photocopies. The
Court held that the photocopies were not equivalent to the
original documents based on the Rules on Electronic
Evidence. The information contained in the photocopies
submitted by NAPOCOR will reveal that not all of the contents
therein, such as the signatures of the persons who
purportedly signed the documents, may be recorded or
produced electronically. (National Power Corporation vs.
Codilla, G.R. No. 170491. April 3, 2007)
The Court held that the print-out and/or photocopies of
facsimile transmissions are not electronic evidence. Thus, it is
consequential that the same may not be considered as the
functional equivalent of their original as decreed in the law.
(MCC Industrial Sales Corporation vs. Ssangyong Corporation,
G.R. No. 170633. October 17, 2007)
PAROL EVIDENCE RULE
When the terms of an agreement have been reduced to
writing, it is considered as containing all the terms agreed
upon and there can be, between the parties and their
successors-in-interest, no evidence of such terms other than
the contents of the written agreement (Sec. 9, Rule 130).
Exceptions to Parol Evidence Rule
A party may present evidence to modify, explain or add to the
terms of the written agreement if he puts in issue in his
pleadings the following: (IF-VE)
1. An intrinsic ambiguity, mistake or imperfection in the
written agreement;
2. Failure of the written agreement to express the true
intent of the parties thereto;
3. Validity of the written agreement; or
4. Existence of other terms agreed to by the parties or their
successors in interest after the execution of the written
agreement (Sec. 9, Rule 130).
The parol evidence rule is predicated on the existence of a
document embodying the terms of an agreement. A receipt is
not such a document as it merely attests to the receipt of
money and it is not and could have not been intended by the
parties to be the sole memorial of their agreement. (Cruz vs.
CA, 192 SCRA 209)
Serrano introduced parol evidence to prove that he was
merely acting as an agent without any consideration. The
Court held that Serrano can introduce such parole evidence
because the case at bar is not one where the evidence offered
varies, alters, modifies, or contradicts the terms of
indorsement admittedly existing. (Maulini vs. Serrano, 28 Phil
640)
 UST LAW PRE-WEEK NOTES 2017

Parol Evidence Rule vs. Best Evidence Rule
Parol Evidence Rule
Presupposes that the
original document is
available in court
Prohibits the varying of the
terms of a written
agreement
Applies only to documents
which are contractual in
nature including wills
Can be invoked only when
the controversy is between
the parties to the written
agreement, their privies, or
any party affected thereby
like a cestui que trust
AUTHENTICATION AND PROOF OF DOCUMENTS
Best Evidence Rule
The original document is
not available or there is a
dispute as to whether said
writing is original
Prohibits the introduction
of secondary evidence in
lieu of the original
document regardless of
whether it varies the
contents of the original
Applies to all kinds of
writings
Can be invoked by any
party to an action whether
he has participated in the
writing involved
wills and testaments; and
3. Public records, kept in
the Philippines, of private
documents required by law
to be entered therein (Sec.
19, Rule 132).
As to authenticity and admissibility as evidence
Admissible as evidence Before any private
without need of further document offered as
proof of its genuineness authentic is received in
and due execution evidence, its due execution
and authenticity must first
be proved.
As to persons bound
Evidence even against third Binds only the parties who
persons, of the fact which executed them or their
gave rise to its due privies, insofar as due
execution and to the date of execution and date of the
the latter document are concerned
As to validity of certain transactions
Certain transactions must
be contained in a public
document; otherwise they
will not be given any
validity.

When is the authentication of documents NOT required? Who may prove the due execution and authenticity of
private documents?
1. When the writing is an ancient document (Sec. 21, Rule
132); 1. By anyone who saw the document executed or written; or
2. By evidence of the genuineness of the signature or
NOTE: A document is ancient when it is more than thirty handwriting of the maker.
years old, is produced from a custody in which it would
naturally be found if genuine, and is unblemished by any Any other private document need only be identified as that
alterations or circumstances of suspicion, no other which it is claimed to be, i.e. ancient documents.
evidence of its authenticity need be given.
When is evidence of authenticity not required of a private
2. When the genuineness and authenticity of an actionable writing?
have not been specifically denied under oath by the
adverse party;
1. The writing is an ancient document (Sec. 21, Rule 132);
3. When the genuineness and authenticity of the document
2. The authenticity and due execution of the document has
have been admitted; and
been expressly admitted or impliedly admitted by failure to
4. When the document is not being offered as authentic
deny the same under oath;
(Riano, 2013).
3. When such genuineness and due execution are immaterial
to the issue.
Respondent Rances failed to submit any attestation issued by
the proper Dubai official having legal custody of the original
Requisites of ancient document/authentic document rule
of the decision of the Dubai Court that the copy presented by
said respondent is a faithful copy of the original decision,
1. That the private document be more than 30 years old;
which attestation must furthermore be authenticated by a
2. That it be produced from a custody in which it would
Philippine Consular Officer having jurisdiction in Dubai. The
naturally be found if genuine; and
transmittal letter, signed by Mohd Bin Saleh, Honorary Consul
3. That it is unblemished by any alteration or circumstances
for Philippines’ does not comply with the requirements of
of suspicion (Sec. 21, Rule 132; Heirs of Lacsa vs. Court of
either the attestation under Section 26 or the authentication
Appeals, 197 SCRA 234, 1991).
envisaged by Section 25. (Pacific Asia Overseas Shipping Corp.
vs. NLRC, 161 SCRA 122, 1988)
NOTE: This rule applies only if there are no other witnesses
to determine authenticity.
Public Document vs. Private Document
How is the genuineness of a handwriting proven?
Public Document Private Document
What comprises it 1. It may be proved by any witness who actually saw the
1. The written official acts, All other writings are person writing the instrument;
or records of the official private (Sec. 19, Rule 132). 2. By any person who is familiar or has acquired knowledge
acts of the sovereign of the handwriting of such person, his opinion as to the
authority, official bodies handwriting being an exception to the opinion rule
and tribunals, and public under Secs. 48 & 50 of Rule 130;
officers, whether of the 3. By a comparison of the questioned handwriting from the
Philippines, or of a foreign admitted genuine specimens thereof; or
country; 4. By expert witness (Secs. 20 & 22, Rule 132; Sec. 49, Rule
2. Documents 130).
acknowledged before a
notary public except last

67
 REMEDIAL LAW
Opinion of Handwriting Experts
The opinion of handwriting experts are not necessarily
binding upon the court, the expert’s function being to place
before the court data upon which the court can form its own
opinion. This principle holds true especially when the
question involved is mere handwriting similarity or
dissimilarity, which can be determined by a visual
comparison of specimens of the questioned signatures with
those of the currently existing ones. A finding of forgery does
not depend entirely on the testimonies of handwriting
experts, because the judge must conduct an independent
examination of the questioned signature in order to arrive at
a reasonable conclusion as to its authenticity (Betty Gepulle-
Garbo v. Spouses Victorey Antonio Garabato And Josephine S.
Garabato, G.R. No. 200013, January 14,
What are Proof of public records? (2009 Bar)
Written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public
officers, e.g. a written foreign law, may be evidenced by:
1. If it is within the Philippines:
a. An official publication thereof; or
b. By a copy attested by the officer having the legal custody of
the record, or by his deputy.
2. If it is kept in a foreign country:
a. An official publication thereof; or
b. By a copy attested by the officer having the legal custody of
the record or by his deputy and accompanied with a
certificate that such officer has the custody. The certificate
may be made by a secretary of the embassy or legation,
consul general, consul, vice consul, or consular agent or by
any officer in the foreign service of the Philippines stationed
in the foreign country in which the record is kept, and
authenticated by the seal of his office (Sec. 24, Rule 132).
NOTE: Upon failure to comply with the above-mentioned
requirements, courts will apply the doctrine of processual
presumption.
Ellen Harper and her son, Jonathan Harper, filed a case for
damages against Shangri-La Hotel and Resort, Inc. for the
death of Christian Harper. To prove their heirship, they
presented several documents (Birth Certificates, Marriage
Certificate, and Certificate from the Oslo Probate Court)
which were all kept in Norway. The documents had been
authenticated by the Royal Norwegian Ministry of Foreign
Affairs and also bore the official seal of the Ministry and
signature of one, Tanja Sorlie. The documents were also
accompanied by an Authentication by the Consul, Embassy
of the Republic of the Philippines in Stockholm, Sweden to
the effect that, Tanja Sorlie was duly authorized to legalize
official documents for the Ministry. Shangri-La Hotel,
however, questioned their filiation with the deceased. It
argued that the documents presented were incompetent
for being unauthenticated. Is Shangri-La Hotel’s
contention correct?
NO. Although the documents were not attested by the officer
having the legal custody of the record or by his deputy in the
manner required in Section 25 of Rule 132, and said
documents did not comply with the requirement under
Section 24 of Rule 132 to the effect that if the record was not
kept in the Philippines a certificate of the person having
custody must accompany the copy of the document that was
duly attested stating that such person had custody of the
documents, the deviation was not enough reason to reject the
utility of the documents for the purposes they were intended
to serve. The official participation in the authentication
process of Tanja Sorlie of the Royal Ministry of Foreign
68
Affairs of Norway and the attachment of the official seal of
that office on each authentication indicated that the
documents were of a public nature in Norway, not merely
private documents.
That rules of procedure may be mandatory in form and
application does not forbid a showing of substantial
compliance under justifiable circumstances, because
substantial compliance does not equate to a disregard of
basic rules. For sure, substantial compliance and strict
adherence are not always incompatible and do not always
clash in discord. (Makati Shangri-La Hotel and Resort, Inc. Vs.
Ellen Johanne Harper, Jonathan Christopher Harper, And
Rigoberto Gillera, G.R. No. 189998, August 29, 2012, Bersamin,
J.)
What must be stated whenever a copy of a document or
record is attested for the purpose of evidence?
1. That the copy is a correct copy of the original, or a specific
part thereof, as the case may be;
2. It must be under the official seal of the attesting officer, if
there be any, or if he be the clerk of a court having a seal,
under the seal of such court (Sec. 25, Rule 132).
What must a Proof of Lack of Record contain?
The Proof of lack of record of a document consists of written
statement signed by an officer having custody of an official
record or by his deputy. The written statement must contain
the following matters:
1. There has been a diligent search of the record;
2. That despite the diligent search, no record of entry of a
specified tenor is found to exist in the records of his office.
NOTE: The written statement must be accompanied by a
certificate that such officer has the custody of official records
(Sec. 28, Rule 132). (2003 Bar)
What are the grounds for the Impeachment of a judicial
record? (WCF) (2009 Bar)
1. Want of jurisdiction in the court or judicial officer;
2. Collusion between the parties (e.g. legal separation,
annulment cases); or
3. Fraud in the party offering the record, in respect to the
proceedings (Sec. 29, Rule 132).
NOTE: Fraud refers to extrinsic fraud, which is a ground for
annulment of judgment.
How are alterations in a document explained?
A party producing a document as genuine which has been
altered and appears to have been altered after its execution
must account for the alteration. He may show that the
alteration:
1. Was made by another, without his concurrence;
2. Was made with the consent of the parties affected by it;
3. Was otherwise properly or innocently made; or
4. That the alteration did not change the meaning or language
of the instrument.
NOTE: Failure to do at least one of the above will make the
document inadmissible in evidence (Sec. 31, Rule 132).
Are documentary evidence in an unofficial language
admissible?
Documents written in an unofficial language shall not be
admitted as evidence unless accompanied with a translation
into English or Filipino (Sec. 33, Rule 132).
TESTIMONIAL EVIDENCE
 UST LAW PRE-WEEK NOTES 2017

When an offense directly attacks or directly and vitally

It is sometimes called viva voce evidence which literally
means “living voice” or by word of mouth. In this kind of
evidence, a human being (witness) is called to the stand, is
asked questions, and answers the question asked of him
(Riano, 2013).
When must the witness possess the qualifications of a
witness?
impairs, the conjugal relation, it comes within the exception
to the statute that one shall not be a witness against the other
except in a criminal prosecution for a crime committed by
one against the other. Using the criterion, it can be concluded
that in the law of evidence the rape perpetrated by the father
against his daughter is a crime committed by him against his
wife (the victim’s mother). (Ordono vs. Saquigan, 62 SCRA
270)

The qualifications and disqualifications of witnesses are How does the disqualification by reason of death or
determined as of the time said witnesses are produced for insanity of the adverse party or the Dead Man’s
examination in court or at the taking of their depositions Statute/Surviving Party Rule apply?
(Regalado, 2008).
1. The defendant in the case is the executor or
The acceptance of a witness depends on the quality of his administrator or a representative of the deceased or the
perceptions and the manner he can make them known to the person of unsound mind;
court. The testimony of Soria was positive, clear, plain, 2. The suit is upon a claim by the plaintiff against the estate
coherent and credible despite her slurred speech and the use of said deceased or person of unsound mind;
of leading questions. (People vs. Solomon, 229 SCRA 402) 3. The witness is the plaintiff, or an assignor of that party,
or a person in whose behalf the case is prosecuted; and
Competency of Witness vs. Credibility of Witness 4. The subject of the testimony is as to any matter of fact
occurring before the death of such deceased person or
Competency Credibility before such person became of unsound mind (Sec. 23,
of Witness of Witness Rule 130).
Refers to a witness who can Refers to a witness whose
perceive, and in perceiving, testimony is believable Under the Dead Man’s Statute Rule, if one party to the alleged
can make known his transaction is precluded from testifying by death, insanity, or
perception to others other mental disabilities, the other party is not entitled to the
Is a matter of law or a matter Refers to the weight and undue advantage of giving his own uncontradicted and
of rule trustworthiness or reliability unexplained account of the transaction. Thus, the alleged
of the testimony admission of the deceased Pedro Caparas that he entered into
It also includes the absence a sharing of leasehold rights with Modesta Garcia and Cristina
of any of the disqualifications Salamat cannot be used as evidence against Dominga Caparas
imposed upon a witness. as the latter would be unable to contradict or disprove the
(Riano, 2013) same. (Apolonio Garcia, In Substitution of his Deceased Mother,
Modesta Garcia, and Cristina Salamat V. Dominga Robles Vda.
De Caparas, G.R. No. 180843, April 17, 2013)
Witnesses disqualified by reason of mental incapacity or
immaturity The Dead Man’s Statute disqualifies only parties or assignors
of parties; officers and/or stockholders of a corporation,
The following persons cannot be witnesses: therefore, are not disqualified from testifying for or against
the corporation which is a party to an action upon a claim or
1. Those whose mental condition, at the time of their demand against the estate of a deceased person, as to any
production for examination, is such that they are matter of fact occurring before the death of such person.
incapable of intelligently making known their perception (Lichauco vs. Atlantic Gulf, 84 Phil. 330)
to others (Sec. 21 (a), Rule 130);
2. Children whose mental maturity is such as to render them Purpose of Dead Man’s Statute?
incapable of perceiving the facts respecting which they
are examined and of relating them truthfully (Sec. 21 (b), It is designed to close the lips of the party plaintiff when
Rule 130). death has closed the lips of the party defendant, in order to
remove from the surviving party the temptation to do
Requisites for the disqualification by reason of marriage falsehood and the possibility of fictitious claims against the
to apply (Marital Disqualification) deceased (Goñi v. CA, G.R. No. L-27434, September 23, 1986).

1. That the spouse for or against whom the testimony of the
other is offered is a party to the case;
2. That the spouses are legally married (valid until
annulled);
3. That the testimony is offered or made during the
existence of a valid marriage; and,
4. That the case is not one against the other (Herrera, 1999;
(Sec. 22, Rule 130)).
Enumerate the exceptions to Spousal Immunity.
1. Consent is given by the party-spouse;
2. In a civil case filed by one against the other;
3. In a criminal case for a crime committed by one against
the other or the latter’s direct descendants or ascendants
(Sec. 22, Rule 130); or
4. Where the testimony was made after the dissolution of
the marriage (Riano, 2013).
To what cases do the disqualification by reason of
privileged communication apply?
The disqualification by reason of privileged communication
applies to both civil and criminal cases except as to the
doctor-patient privilege, which is applicable only in civil
cases. Unless waived, the disqualification under Sec. 24
remains even after the various relationships therein have
ceased to exist.
Requisites for the Marital Privilege to apply
1. There must be a valid marriage between the husband
and wife;
2. There is a communication received in confidence by one
from the other;
3. The confidential communication was received during the
marriage (Riano, 2013); and,

69
 REMEDIAL LAW

4. The spouse against whom such evidence is being offered 3. Such person acquired the information while he was
has not given his or her consent to such testimony attending to the patient in his professional capacity;
(Regalado, 2008). 4. The information was necessary to enable him to act in
that capacity; and
NOTE: Where a privileged communication from one spouse 5. The information was confidential and, if disclosed, would
to another comes into the hands of a third party, whether blacken the reputation of the patient (Krohn v. CA, G.R.
legally or not, without collusion and voluntary disclosure on No. 108854, June 14, 1994, citing Lim v. CA, G.R. No. 91114,
the part of either of the spouses, the privilege is thereby September 25, 1992).
extinguished and the communication, if otherwise competent,
becomes admissible. (People vs. Carlos 47 Phil. 626, 1925) NOTE: Where the person against whom the privilege is
claimed is the patient’s husband who testifies on a document
Marital Disqualification Rule vs. Marital Privileged executed by medical practitioners, his testimony does not
Communication Rule have the force and effect of the testimony of the physician
who examined the patient and executed the report. Plainly,
Marital Disqualification Marital Privileged this does not fall within the prohibition. (Krohn vs. Court of
Rule (Sec. 22, Rule 130) Communication Rule Appeals, 233 SCRA 146, 1994)
(Sec. 24 (a), Rule 130)
Can be invoked only if one of Can be claimed whether Is a confession by a penitent to a priest privileged
the spouses is a party to the or not the other spouse is information? If so, how does it apply? (Sec. 24(d), Rule
action a party to the action 130)
Applies only if the marriage is Can be claimed even after
existing at the time the the marriage is dissolved YES. It is called Priest-Penitent Privilege.
testimony is offered. 1. The confession must have been made to the priest in his
Constitutes a total prohibition Applies only to professional character according to the discipline of the
for or against the spouse of confidential church to which the priest or minister belongs (Sec.
the witness communications between 24(d), Rule 130); and
the spouses 2. Communications made must be confidential and must be
The objection would be raised The married person is on penitentialin character(Regalado, 2008).
on the ground of marriage. the stand but the
The married witness would objection of privilege is Are communications made in official confidence privileged
not be allowed to take the raised when the information? (Sec. 24(e), Rule 130)
stand at all because of the confidential marital
disqualification. Even if the communication is YES, provided that the following must be complied with:
testimony is for or against the inquired into. 1. The holder of the privilege is the government, acting
objecting spouse, the spouse through a public officer;
witness cannot testify. 2. The communication was given to the public officer in
official confidence;
When is communication covered under the Attorney-Client 3. The communication was given during the term of office
Privilege? of the public officer or afterwards;
4. The public interest would suffer by the disclosure of the
The period to be considered is the date when the privileged communication (Herrera, 1999).
communication was made by the client to the attorney in
relation to either a crime committed in the past or with NOTE: The privilege under Section 21, Rule 130 is intended
respect to a crime intended to be committed in the future. in not for the protection of public officers but for the protection
other words, If the client seeks his lawyer’s advice with of public interest. Where there is no public interest that
respect to a crime that the former has theretofore committed, would be prejudiced, this rule will not be applicable. The rule
he is given the protection of a virtual confessional seal which that a public officer cannot be examined as to
the attorney-client privilege declares cannot be broken by the communications made to him in official confidence does not
attorney without the client’s consent. (People vs. apply when there is nothing to show that the public interest
Sandiganbayan, 275 SCRA 505, 1997) would suffer by the disclosure question. (Banco Filipino vs.
Monetary Board, 142 SCRA 523, 1986)
Is an information made by the client to his attorney that is
intended to be communicated to a third person? What does the Parental and Filial Privilege state?

NO. It will be noted that the evidence in question concerned
the dealings of the plaintiff’s attorney with a third person. A
communication made by a client to his attorney for the
express purpose of its being communicated to a third person
is essentially inconsistent with the confidential relation. Such
communication is between the third person and the client,
the attorney being merely an agent. (Uy Chico vs. Union Life,
29 Phil. 163, 1915)
No person may be compelled to testify against his parents,
other direct ascendants, children or other direct descendants.
(Sec. 25, Rule 130).
The Family Code provides that no descendant shall be
compelled, in a criminal case, to testify against his parents
and grandparents. As an exception, the descendant may be
compelled to give his testimony in the following instances:

Physician and Patient Privilege (Sec. 24(c), Rule 130)
1. The privilege is claimed in a civil case;
NOTE: This privilege cannot be claimed in a criminal
case presumably because the interest of the public in
criminal prosecution should be deemed more important
than the secrecy of the communication (Riano, 2013).
2. The person against whom the privilege is claimed is one
duly authorized to practice medicine, surgery or
obstetrics;
1. When such testimony is indispensable in a crime
committed against said descendant; or
2. In a crime committed by one parent against the other
(Riano, 2013, citing Art. 215, Family Code).
Explain the rules on the examination of a witness.
GR: The examination of witnesses presented in a trial or
hearing shall be done in open court, and under oath or
affirmation. Unless the witness is incapacitated to speak, or
the question calls for a different mode of answer, the answers
of the witness shall be given orally (Sec. 1, Rule 132).

70
 UST LAW PRE-WEEK NOTES 2017
XPNs:
The testimony of the witness may not be given in open court
in the following cases:
1. In civil cases, by depositions pursuant to and under the
limitations of Rules 23 and 24 (Regalado, 2008);
2. In criminal cases, by depositions or conditional
examinations, pursuant to Secs. 12-15, Rule 119, and Sec.
1, Rule 123, or by the records of the preliminary
investigation, under the circumstances of Sec. 1(f) of
Rule 115 (Regalado, 2008);
3. In criminal cases covered by the Rule on Summary
Procedure, the affidavits of the parties shall constitute
the direct testimonies of the witnesses who executed the
same (Riano, 2013, citing Sec. 15, Rule on Summary
Procedure);
4. In civil cases covered by the Rule on Summary
Procedure, the parties are merely required to submit the
affidavits of their witnesses and other pieces of evidence
on the factual issues, together with their position papers,
setting forth the law and the facts relied upon (Riano,
2013, citing Sec. 9, Rule on Summary Procedure); and
5. Under the Judicial Affidavit Rule, the judicial affidavit
shall take the place of direct testimonies of witnesses
(Sec. 2, Judicial Affidavit Rule).
JUDICIAL AFFIDAVIT RULE
To what actions do the Judicial Affidavit Rule (A.M. No. 12-
8-8-SC) apply?
This shall apply to all actions (criminal or civil), proceedings,
or incidents requiring the reception of evidence. It applies to
all courts other than the Supreme Court, and applicable also
to certain non-judicial bodies like the IBP. It is however not
applicable to small claims cases.
NOTE: In criminal cases, the Rule is applicable if the
maximum imposable penalty does not exceed six years.
However, even if penalty exceeds six years, the Rule will still
apply if the accused agrees to the use of judicial affidavit.
The judicial affidavit must conform to the content
requirements of Sec. 3 of the Rule, otherwise, it shall not be
admitted by the court in evidence. However, non-conformity
thereto shall not absolutely bar the submission of a compliant
replacement judicial affidavit as long as the replacement shall
be submitted before the hearing.
Rules on number of days before a JA can be filed
The parties shall file with the court and serve on the adverse
party, personally or by licensed courier service, not later than
5 days before pre-trial or preliminary conference or the
scheduled hearing with respect to motions and incidents, the
following:
1. The judicial affidavits of their witnesses, which shall take
the place of such witnesses' direct testimonies; and
2. The parties' documentary or object evidence, if any, which
shall be attached to the judicial affidavits and marked as
Exhibits A, B, C, and so on in the case of the complainant or
the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of
the respondent or the defendant (Sec. 2, JAR).
NOTE: Under Section 10, parties are to be penalized if they do
not conform to the provisions of the JAR. Parties are however
allowed to resort to the application of a subpoena pursuant to
Rule 21 of the Rules of Court in Section 5 of the JAR in certain
situations. Section 5 of the JAR contemplates a situation
where there is a (a) government employee or official or (b)
requested witness who is not the (1) adverse party’s witness
nor (2) a hostile witness. If this person either (a)
71
unjustifiably declines to execute a judicial affidavit or (b)
refuses without just cause to make the relevant documents
available to the other party and its presentation to court,
Section 5 allows the requesting party to avail of issuance of
subpoena ad testificandum or duces tecum under Rule 21 of
the Rules of Court. Thus, adverse party witnesses and hostile
witnesses being excluded they are not covered by Section 5.
Expressio unius est exclusion alterius: the express mention of
one person, thing, or consequence implies the exclusion of all
others. (Nang Meng Teng vs China Banking Corporation, G.R
No. 214054, , August 5, 2015 )
Contents of a Judicial Affidavit
A judicial affidavit shall be prepared in a language known to
the witness and, if not in English or Filipino, accompanied by
a translation in English or Filipino, and shall contain the
following:
1. The name, age, residence or business address, and
occupation of the witness;
2. The name and address of the lawyer who conducts or
supervises the examination of the witness and the place
where the examination is being held;
3. A statement that the witness is answering the questions
asked of him, fully conscious that he does so under oath, and
that he may face criminal liability for false testimony or
perjury;
4. Questions asked of the witness and his corresponding
answers, consecutively numbered, that:
a. Show the circumstances under which the witness
acquired the facts upon which he testifies;
b. Elicit from him those facts which are relevant to
the issues that the case presents; and
c. Identify the attached documentary and object
evidence and establish their authenticity in accordance with
the Rules of Court;
5. The signature of the witness over his printed name; and
6. A jurat with the signature of the notary public who
administers the oath or an officer who is authorized by law to
administer the same (Sec. 3, JAR).
Effect of non-compliance with the JAR
1. A party who fails to submit the required judicial
affidavits and exhibits on time shall be deemed to have
waived their submission. The court may, however, allow only
once the late submission of the same provided, the delay is
for a valid reason, would not unduly prejudice the opposing
party, and the defaulting party pays a fine of not less than
Php1,000.00 nor more than Php5,000.00, at the discretion of
the court;
2. The court shall not consider the affidavit of any witness
who fails to appear at the scheduled hearing of the case as
required. Counsel who fails to appear without valid cause
despite notice shall be deemed to have waived his client's
right to confront by cross-examination the witnesses there
present;
3. The court shall not admit as evidence judicial affidavits
that do not conform to the content requirements of Sec. 3 and
the attestation requirement of Sec. 4 above. The court may,
however, allow only once the subsequent submission of the
complaint replacement affidavits before the hearing or trial
provided the delay is for a valid reason and would not unduly
prejudice the opposing party and provided further, that
public or private counsel responsible for their preparation
and submission pays a fine of not less than Php1,000.00 nor
more than Php5,000.00, at the discretion of the court (Sec. 10,
JAR)
Effects of JAR on Other Rules
 REMEDIAL LAW

As to Rules of Court and Rules of Procedure governing
investigating officers and bodies authorized by the
Supreme Court to receive evidence - They are repealed or
modified insofar as they are inconsistent with the provisions
of the Judicial Affidavit Rule (Sec. 11, JAR).
As to Rules of procedure governing quasi-judicial bodies
which are inconsistent with it - They are thereby
disapproved (Ibid.).
RIGHTS AND OBLIGATIONS OF A WITNESS
How shall Laying the predicate apply in impeaching a
witness by evidence of prior inconsistent statements?
1. The prior inconsistent statements must be related to him,
with the circumstances of the times and places and the
persons present;
2. The witness must be asked whether he made such
statements, and if so, allowed to explain them; and,
3. If the statements be in writing it must be shown to the
witness before any question is put to him concerning them
(Sec. 13, Rule 132). (1996 Bar)

Rights of a witness Is evidence on the good character of a witness admissible?

1. To be protected from irrelevant, improper, or insulting
questions, and from harsh or insulting demeanor;
2. Not to be detained longer than the interests of justice
require;
3. Not to be examined except only as to matters pertinent to
the issue;
4. Not to give an answer which will tend to subject him to a
penalty for an offense unless otherwise provided by law
(right against self-incrimination);
Evidence of the good character of a witness is not admissible
until such character has been impeached (Sec. 14, Rule 132).
RECALLING A WITNESS
GR: After the examination of a witness by both sides has been
concluded, the witness cannot be recalled without leave of
court. The court will grant or withhold leave in its discretion,
as the interests of justice may require (Sec. 9, Rule 132).

NOTE: This refers to immunity statutes wherein the witness XPNs:

is granted immunity from criminal prosecution for offenses
admitted in his testimony, e.g. under Sec. 8, R.A. 1379, the law
providing for the forfeiture of unlawfully acquired property;
and under P.D. 749, in prosecutions for bribery and graft
(Regalado, 2008).
1. The examination has not been concluded; or,
2. If the recall of the witness was expressly reserved by a
party with the approval of the court. In these two cases
the recall of a witness is a matter of right (Regalado,
2008).

5. Not to give an answer, which will tend to degrade his
reputation, unless it be to the very fact at issue or to a fact
from which the fact in issue would be presumed. But a
witness must answer to the fact of his previous final
conviction for an offense (Sec. 3, Rule 132).
LEADING AND MISLEADING QUESTIONS
When is a leading question allowed?
Section 14, Rule 132 of the Rules of Court explicitly provides
that the court may grant or withhold leave to recall a witness,
in its discretion, as the interests of justice may require; and
We believe that it was the better part of discretion and
caution on the part of the trial court to have denied as it did,
the request of the defense to recall Ceribo. The record is
loaded with circumstances tending to show insidious
attempts, too obvious to be overlooked, to tamper with the
witnesses for the prosecution.

1. On cross-examination; Under the circumstances, to allow such a procedure would

2. On preliminary matters;
3. When there is difficulty in getting direct and intelligible
answers from a witness who is ignorant, or a child of tender
years, or is of feeble mind, or a deaf-mute;
4. Of an unwilling witness or hostile witness;
only encourage the perversion of truth and make a mockery
of court proceedings. (People vs. Del Castillo, 25 SCRA)
Differentiate offer of compromise as admission of liability
in civil cases and in criminal cases

NOTE: A witness may be considered as unwilling or hostile Civil Case vs. Criminal Case
only if so declared by the court upon adequate showing of his
adverse interest, unjustified reluctance to testify or his having Civil Case Criminal Case
misled the party into calling him to the witness stand. (Sec. It is NOT an admission of GR: It may be received in
12, Rule 132) any liability and is NOT evidence as an implied
admissible against the admission of guilt (Ibid.).
5. Of a witness who is an adverse party or an officer, director, offeror
or managing agent of a public or private corporation or of a (Sec. 27, Rule 130). XPNs:
partnership or association which is an adverse party (Sec. 10, 1. In quasi-offenses where
Rule 132); or there is no criminal intent
6. In all stages of examination of a child if the same will (negligence), such as
further the interests of justice (Sec. 20, Rule on Examination of reckless imprudence;
a Child Witness, A.M. No.004-07-SC). 2. In criminal cases allowed
by law to be compromised
IMPEACHING A WITNESS such as:
a. NIRC (Sec. 7c) – The
What does Laying the predicate mean in impeaching a CIR has the power to
witness? compromise minor
criminal violations as
It means that it is the duty of a party trying to impugn the may be determined by
testimony of a witness by means of prior or subsequent the Secretary of
inconsistent statements, whether oral or in writing, to give Finance;
the witness a chance to reconcile his conflicting declarations, b. LGC (Sec. 408) –
such that it is only when no reasonable explanation is given Allowed in minor
by him that he should be deemed impeached. (People v. offenses whose
Sambahon, G.R. No. 182789, August 3, 2010) penalties do not
exceed one year;

72
 UST LAW PRE-WEEK NOTES 2017

c. RPC (Art. 266-C) – In b. The declaration or act must relate to the conspiracy;
cases of marital rape, and
where subsequent c. The conspiracy must be shown by evidence other than
forgiveness by the wife such declaration or act.
extinguishes the
criminal action or The rule regarding statements made by a co-conspirator
penalty (Suarez and De refers to statements made by one conspirator during the
la Banda, 2006). pendency of the unlawful enterprises and in furtherance of its
object and not to a confession made long after the conspiracy
NOTE: No compromise is valid in the following cases: had been brought to an end. Under the rule on multiple
admissibility of evidence, the confession of a co-accused may
1. Civil status of persons; be inadmissible against his co-accused for being hearsay but
2. Validity of a marriage or legal separation; may nevertheless be admissible against the declarant’s own
3. Any ground for legal separation; guilt. (People vs. Yatco, 97 Phil. 941, 1955)
4. Future support;
5. Jurisdiction of courts; 3. Admission by privies (Sec. 31, Rule 130).
6. Future legitime;
7. Habeas corpus; and a. There must be an act, declaration or omission by a
8. Election cases (Herrera, 1999). predecessor-in-interest;
b. The act, declaration or omission of the predecessor must
Explain the admissibility of plea or offer. have occurred while he was holding (not after) the title
to the property; and,
Offer or Plea vs. Admisibility c. The act, declaration or omission must be in relation to
the property.
Offer or Plea Admissibility
Plea of guilty later Not admissible in evidence ADMISSION BY A PARTY
withdrawn by the accused against the accused who
made the plea Requisites for the admissibility of an admission
Offer by the accused to Not admissible in evidence
plead guilty to a lesser against the accused who 1. The act, declaration or omission must have been made by a
offense but unaccepted by made the offer party or by one by whom he is legally bound;
prosecution 2. The admission must be as to a relevant fact; and,
Offer to pay or payment of Not admissible in evidence 3. The admission may only be given in evidence against him
medical, hospital or other as proof of civil or criminal (Ibid.; Herrera, 1999).
expenses occasioned by liability for the injury
injury (Good Samaritan (Suarez and De la Banda, Admission by Silence
Rule) Evidence: A Lawyer’s
Companion, 2006 ed.) There is admission by silence when a party does or says
nothing when he hears or observes an act or declaration
RES INTER ALIOS ACTA RULE made in his presence when such act or declaration is such as
naturally to call for action or comment if not true, and when
This principle literally means “things done between strangers proper and possible for him to do so. Such may be given in
ought not to injure those who are not parties to them” evidence against him (Sec. 32, Rule 130).
(Black’s Law Dictionary, 5th Ed.; Dynamic Signmaker Outdoor
Advertising Services, Inc. v. Potongan, 461 SCRA 328). Requisites of an admission by silence

What are the two (2) branches of res inter alios acta rule?
1. The rights of a party cannot be prejudiced by an act,
declaration, or omission of another (Sec. 28, Rule 130);
2. Evidence that one did or did not do a certain thing at one
time is not admissible to prove that he did or did not do
the same or similar thing at another time (Sec. 34, Rule
130).
What are the exceptions to the res inter alios acta rule
(first branch):
1. He must have heard or observed the act or declaration of
the other person;
2. He must have had the opportunity to deny it (People v.
Ranario, 49 Phil. 220);
3. He must have understood the statement;
4. He must have an interest to object, such that he would
naturally have done so, if the statement was not true;
5. The facts were within his knowledge; and
6. The fact admitted or the inference to be drawn from his
silence is material to the issue (People v. Paragsa, G.R. No. L-
44060, July 20, 1978; Sec. 32, Rule 130; Regalado, 2008).

1. Admission by a co-partner or agent (Sec. 29, Rule 130) CONFESSIONS

a. The declaration or act of the partner or agent must
have been made or done within the scope of his
authority;
b. The declaration or act of the partner or agent must
have been made or done during the existence of the
partnership or agency (while the person making the
declaration was still a partner or an agent); and,
c. The existence of the partnership or agency is proven
by evidence other than the declaration or act of the
partner or agent.
2. Admission by a co-conspirator (Sec. 30, Rule 130)
a. The declaration or act be made or done during the
existence of the conspiracy;
What are the requisites for the admissibility of a
confession?
1. It must involve an express and categorical
acknowledgement of guilt (U.S. v. Corrales, 28 Phil. 362);
2. Facts admitted must be constitutive of a criminal offense
(U.S. v. Flores, 26 Phil. 262);
3. It must have been given voluntarily (People v. Nishishima,
57 Phil. 26);
4. It must have been intelligently made (Bilaan v. Cusi, G.R.
No. L-18179, June 29, 1962), the accused realizing the
importance or legal significance of his act (U.S. v. Agatea,
40 Phil. 596); and
5. There must have been no violation of Sec. 12, Art. III,
1987 Constitution (Regalado, 2008).

73
 REMEDIAL LAW

6. It must be in writing and signed by such person in the 5. Testimony or deposition at a former proceeding (Sec.
presence of his counsel or in the latter’s absence, upon a 47);
valid waiver, and in the presence of any of the parents, 6. Family reputation or tradition regarding pedigree (Sec.
elder brothers and sisters, his spouse, the municipal 40);
mayor, the municipal judge, district school supervisor or 7. Common reputation (Sec. 41);
priest or minister of the gospel as chosen by him (Sec. 8. Parts of Res gestae (Sec. 42);
2(d), R.A. 7438). 9. Entries in official records (Sec. 44);
10. Commercial lists and the like (Sec. 45);
What are the requirements for an admission of guilt of an 11. Learned treatises (Sec. 46);
accused during a custodial investigation to be admitted as 12. Independently Relevant Statement
evidence?
As a general rule, the extrajudicial declaration of an accused,
1. The admission must be voluntary (Sec. 12(1), 1987 although deliberately made, is not admissible and does not
Constitution); have probative value against his co- accused. It is merely
2. The admission must be in writing (R.A. 7438); hearsay evidence as far as the other accused are concerned.
3. The admission must be made with the assistance of (People vs. Alegre, 94 Phil. 109, 1979)
competent, independent counsel (Sec. 12, 1987
Constitution); NOTE: Items 1 to 5 require death or unavailability of
4. The admission must be express (People vs. Prinsipe, G.R. declarant.
No. 135862, May 2, 2002);
5. In case the accused waives his rights to silence and to Independently Relevant Statement
counsel, such waiver must be in writing, executed with
the assistance of competent, independent counsel (R.A. Under the doctrine of independently relevant statements,
7438). regardless of their truth or falsity, the fact that such
statements have been made is relevant. The hearsay rule does
Doctrine of Interlocking Confessions not apply, and the statements are admissible as evidence.
Evidence as to the making of such statement is not secondary
It states that extrajudicial confessions independently made but primary, for the statement itself may constitute a fact in
without collusion which are identical with each other in their
issue or be circumstantially relevant as to the existence of
essential details and corroborated by other evidence against
such a fact. (People vs. Estibal, GR No. 208749, Nov. 26, 2014
the persons implicated, are admissible to show the
probability of the latter’s actual participation in the citing People vs. Velasquez)
commission of the crime (People v. Mulit, G.R. No. 181043,
NOTE: Evidence regarding the making of
October 8, 2008).
independently relevant statement is not secondary but
Admission vs. Confession primary, because the statement itself may (1) constitute a fact
in issue or (2) be circumstantially relevant as to the existence
Admission Confession of that fact. (Bayani vs. People, GR No. 155619, Aug. 14, 2007 of
A statement of fact which A statement of fact which IRS)
does not involve an involves an acknowledgment
acknowledgment of guilt or of guilt or liability.
The ban on hearsay does not cover independently relevant
liability.
statements, which consist of statements that are
May be made by third Can be made only by the
independently relevant of the truth asserted therein. They
persons and in certain cases, party himself and, in some
belong to two classes: The first class are 1) those statements
are admissible against a instances, are admissible
which are the very facts in issue; 2) those statements which
party against his co-accused
are circumstantial evidence of the facts in issue. The second
Applies to both criminal and Applies only to criminal
class includes the following: Statement of a person showing
civil cases cases
his state of mind; Statement of a person showing his physical
May be express or tacit Must be express condition; Statement of a person to infer a state of mind of
another person; Statements which may identify the date,
HEARSAY RULE place and person in question; Statements to show a lack of
credibility of a witness. (U.S. vs. Zenni, 492 F. Supp. 464, 1980)
It states that a witness can testify only to those facts which he
knows of based on his personal knowledge or those which are How does the Dying declaration apply?
derived from his own perception (Sec. 36, Rule 130).
1. The declaration is one made by a dying person;
What is the reason for the exclusion of Hearsay Evidence? 2. The declaration was made by said dying person under a
consciousness of his impending death;
There is no opportunity to cross-examine the outside 3. The declaration refers to the cause and circumstances
declarant. surrounding the death of the declarant and not of anyone
else;
In criminal cases, its admission would be a violation of the 4. The declaration is offered in a case wherein the
constitutional provision that the accused shall enjoy the right declarant’s death is the subject of the inquiry;
of being confronted with the witnesses testifying against him 5. The declarant is competent as a witness had he survived
and to cross-examine them. Moreover, the court is without (Geraldo v. People, G.R. No. 173608, November 20, 2008);
opportunity to test the credibility of hearsay statements by 6. That the statement is complete in itself – “Doctrine of
observing the demeanor of the person who made them Completeness” (People v. De Joya, G.R. No. 75028,
(People v. Pruna, G.R. No. 138471, October 10, 2002) November 8, 1991); and
7. The declarant should have died. If he survives, his
Exceptions to the hearsay rule declaration may be admissible as part of the res gestae
(Riano, 2013).
1. Dying declaration (Sec. 37);
2. Declaration against interest (Sec. 38); Is interval of time from the making of a dying declaration
3. Act or declaration about pedigree (Sec. 39); always material?
4. Entries in the course of business (Sec. 43);

74
 UST LAW PRE-WEEK NOTES 2017

2. The common reputation must have been ancient, i.e. 30

GR: The intervening time from the making of a dying years old;
declaration up to the time of death is immaterial in its 3. The reputation must have been one formed among a
admissibility, as long as it was made under the consciousness class of persons who were in a position to have some
of impending death. sources of information and to contribute intelligently to
the formation of the opinion; and
XPN: The interval of time between the declaration and the 4. The common reputation must have been existing
death of the declarant may be taken into account where the previous to the controversy.
declaration is ambiguous as to whether the declarant
believed that his death was imminent when he made such Requisites of Part of the Res Gestae
declaration (Regalado, 2008).
1. That the principal act, the res gestae, be a startling
Declaration Against Interest occurrence;
2. That the statements were made before the declarant had
1. The declarant is dead or unable to testify; time to contrive or devise falsehood; and
2. Declaration relates to a fact against the interest of the 3. That the statements must concern the occurrence in
declarant; question and its immediately attending circumstances (Sec.
3. At the time he made said declaration, he was aware that 42, Rule 130; People v. Balbas, 122 SCRA 859; People Of The
the same was contrary to his interest; and Philippines vs. Anecito Estibal Y Calungsag G.R. No. 208749,
4. Declarant had no motive to falsify and believed such November 26, 2014).
declaration to be true.
The declaration of the deceased is not admissible as an ante-
To admit declarations against interest as exceptions to the mortem declaration since the deceased was in doubt as to
hearsay rule: (a) the declarant must not be able to testify due whether he would die or not. x x x It may be admitted,
to death, mental incapacity or physical incompetence rather however, as part of the res gestae since the statement was
than mere absence from the courts; (b) the declaration must made immediately after the incident and the deceased had no
concern a matter of fact cognizable by the declarant; (c) the sufficient time to concoct a charge against the accused.
circumstances render it improbable that a motive to falsify (People vs. Laquinon, 135 SCRA 91, 1985)
exists. (Fuentes vs. CA, 253 SCRA 430, 1996)
Part of Res Gestae vs. Dying Declaration
Requisites of act or declaration about pedigree
Part of Res Gestae Dying Declaration
1. The declarant is dead or unable to testify; It is the event itself which A sense of impending death
2. The pedigree should be in issue; speaks takes the place of an oath
3. The declarant must be a relative of the person whose and the law regards the
pedigree is in question, either by birth or marriage; declarant as testifying
4. The declaration must be made ante litem motam or May be made by the killer Can be made by the victim
before the controversy occurred; and after or during the killing or only
5. The relationship between the declarant and the person that of a third person
whose pedigree is in question must be shown by May precede, or accompany Confined to matters
evidence other than such act or declaration (Tecson v. or follow the principal act occurring after the homicidal
COMELEC, G.R. No. 161434, March 3, 2004). act
Justification is the Justification is the
Requisites of family reputation or tradition regarding spontaneity of the statement trustworthiness, being given
pedigree by the person who was
aware of his impending
1. There is controversy in respect to the pedigree of any death
member of the family;
2. The reputation or tradition of the pedigree of the Verbal Acts vs. Spontaneous Statements
person concerned existed previous to the controversy;
3. The statement is about the reputation or tradition of the Verbal Acts Spontaneous Statements
family in respect to the pedigree of any member of the Utterances which accompany Statements or exclamations
family; and some act or conduct to which made immediately after
4. The witness testifying to the reputation or tradition it is desired to give legal some exciting occasion by a
regarding pedigree of the person concerned must be a effect; When such act has participant or spectator and
member of the family of said person either by intrinsically no definite legal asserting the circumstances
consanguinity or affinity (Sec. 40, Rule 130). significance, or only an of that occasion as it is
ambiguous one, its legal observed by him.
How to establish family reputation or tradition with purport or tenor may be
respect to one’s pedigree? ascertained by considering
the words accompanying it,
1. Through testimony in open court of a witness who must and these utterances thus
be a member of the family either by consanguinity or enter merely as verbal part
affinity; of the act.
2. Through entries in: The res gestae is the The res gestae is the startling
a. Family bible; equivocal act. occurrence.
b. Family books or charts;
Verbal act must be May be prior to,
c. Engravings on rings; or
contemporaneous with or simultaneous with, or
d. Family portraits and the like.
must accompany the subsequent to the startling
equivocal act to be occurrence.
Requisites of Common Reputation
admissible.
Requisites: Requisites:
1. The facts must be of public or general interest and more
1. There must be a startling 1. The principal act to be
than 30 years old;
occurrence; characterized must be
The statement must equivocal;

75
 REMEDIAL LAW

relate to the 2. The equivocal act must 1. Witness whose testimony is offered in evidence is dead
circumstances of the be material to the issue; or unable to testify;
startling occurrence or 3. The statement must 2. The testimony or deposition was given in a former case
that the statement must accompany the equivocal or proceeding, judicial or administrative, between the
concern the occurrence act; and same parties or those representing the same interests;
in question and its The statement gives a 3. Former case involved the same subject as that in the
immediate attending legal significance to the present case, although on different causes of action;
circumstances; and equivocal act (Talidano v. 4. Issue testified to by the witness in the former trial is the
Falcom Maritime & Allied same issue involved in the present case; and
2. The statement must be Services, Inc., G.R. No. 5. Adverse party had an opportunity to cross-examine the
spontaneous and were 172031, July 14, 2008). witness in the former case (Regalado, 2008).
made before the
declarant had the time to NOTE: The reason for the
contrive or devise a admissibility of Explain the Opinion Rule.
falsehood (Talidano v. spontaneous statements
Falcom Maritime & Allied is trustworthiness and GR: The opinion of a witness is not admissible. The witness
Services, Inc., G.R. No. necessity, because must testify to facts within their knowledge and may not state
172031, July 14, 2008). statements are made their opinion, even on their cross-examination.
instinctively, and
NOTE: The reason for the because said natural and XPNs:
admissibility of verbal acts is spontaneous utterances 1. Opinion of expert witness;
that the motive, character are more convincing than 2. The opinion of an ordinary witness for which proper
and object of an act are the testimony of the basis is given, may be received in evidence regarding:
frequently indicated by what same person on the a. Identity of person about whom he has adequate
was said by the person stand. knowledge;
engaged in the act. b. A handwriting with which he has sufficient
familiarity;
c. The mental sanity of a person with whom he is
Requisites of Entries in the course of business or the Shop- sufficiently acquainted; and
Book Rule d. The witness’ impressions of the emotion, behavior,
condition or appearance (EBCA) of a person.
1. The person who made the entry must be dead or unable
to testify; Explain the admissibility of Character evidence.
2. The entries were made at or near the time of the
transactions to which they refer; GR: Character evidence is NOT admissible in evidence.
3. The entrant was in a position to know the facts stated in
the entries; XPNs:
4. The entries were made in his professional capacity or in 1. Subject to certain exceptions in criminal cases;
the performance of a duty, whether legal, contractual, 2. In civil cases;
moral or religious; and 3. In case the character of a witness has been
5. The entries were made in the ordinary or regular course previously impeached.
of business or duty (Regalado, 2008).
Explain Character evidence in criminal cases.
Requisites of Entries in official records
As to the Accused As to the As to the
1. Entries were made by a public officer in the performance Prosecution Offended Party
of his duties or by a person in the performance of a duty He may prove his They may not His good or bad
especially enjoined by law; good moral prove the bad moral character
2. Entrant had personal knowledge of the facts stated by character which is moral character of may be proved as
him or such facts were acquired by him from reports pertinent to the the accused which long as it tends to
made by persons under a legal duty to submit the same; moral trait is pertinent to the establish in any
and involved in the moral trait reasonable degree
3. Such entries were duly entered in a regular manner in the offense charged. involved in the the probability or
official records (Ibid.). offense charged, improbability of
unless in rebuttal, the offense
Requisite of Commercial lists and the like when the accused charged
opens the issue by
1. Statements of matters of interest to persons engaged in introducing
an occupation; evidence of his
2. Statements must be contained in a list, register, good moral
periodical, or other published compilation; character.
3. Compilation is published for use by persons engaged in
that occupation; and Explain Character evidence in civil cases.
4. Such is generally relied upon by them.
GR: The moral character of either party thereto cannot be
Are Learned treatises admissible in evidence? proved

Yes, provided that: XPN:

1. the court can take judicial notice of them; or 1. Unless it is pertinent to the issue of character involved in
2. an expert witness testifies that the author of such is the case (Sec. 51, Rule 130).
recognized as expert in that profession (Sec. 46, Rule 130). 2. Unless the good moral character of a witness is
impeached.
Requisites of a testimony or deposition at a former trial
RULE ON EXAMINATION OF A CHILD WITNESS
(A.M. No. 004-07-SC)

76
 UST LAW PRE-WEEK NOTES 2017

3. Documents or affidavits used in deciding quasi-judicial

Who is a child witness? or administrative cases;
4. Lost objects previously marked, identified, described in
A child witness is any person who at the time of giving the record, and testified to by witnesses who had been
testimony is below the age of 18 years. It includes those who subjects of cross-examination in respect to said objects.
are over 18 years but is found by the court as unable to fully (2012 Bar)
take care of himself or protect himself from abuse, neglect,
cruelty, exploitation, or discrimination, because of a physical When should a party make an offer?
or mental disability or condition (Sec. 4(a)).
Testimonial Evidence Documentary and Object
Paul, a five-year-old boy, testified that Rolando boxed his wife Evidence
then burned her. The testimony of Paul shows that he is of Offer must be made at the Must be made after the
above average intelligence, that he is capable of giving time the witness is called to presentation of party’s
responsive answers, of recalling events, and of relating his testify. testimonial evidence, and
recollections. For a child witness to be competent, it must be before resting his case (Sec.
shown that he has the capacity of (1) observation, (2) of 35, Rule 132).
recollection, and (3) of communication. (People vs. Mendoza, Every time a new witness is The evidence is only offered
254 SCRA 18) called to testify, there must once, after all the testimonial
be an offer of evidence. evidence are offered and
What is the presumption regarding the rule? prior to the resting of the
case for a party.
The Rule on Examination of a Child Witness specifies that
every child is presumed qualified to be a witness. To rebut NOTE: The presentation of a
this presumption, the burden of proof lies on the party documentary or object
challenging the child’s competence. Petitioners’ flimsy evidence for marking and
objections on Rachel’s lack of education and inability to read identification during the
and tell time carry no weight and cannot overcome the clear course of trial is not the offer
and convincing testimony of Rachel as to who killed her contemplated in the rules
father. (People Of The Philippines v. Edwin Ibanez Y Albante, Et (Riano, 2013).
Al. G.R. No. 197813, September 25, 2013)
The RTC could not take the declaration of Villas into
What is Live-link TV testimony of a child witness? consideration because Villas’ extra-judicial sworn statement
containing the declaration had not been offered and admitted
The court may order that the testimony of the child be taken as evidence by either side. The CA stressed that only evidence
by live-link television if there is a substantial likelihood that that was formally offered and made part of the records could
the child would suffer trauma from testifying in the presence be considered; and that in any event, the supposed
of the accused, his counsel or the prosecutor as the case may contradiction between the extra-judicial sworn statement
be. The trauma must be of a kind which would impair the and the court testimony should be resolved in favor of the
completeness or truthfulness of the testimony of the child latter. The CA’s negative treatment of the declaration
(Sec. 25). contained in Villas’ extra-judicial sworn statement was in
accord with prevailing rules and jurisprudence. Pursuant to
Explain the Sexual Abuse Shield Rule. Section 34, Rule 132 of the Rules of Court. (Emeritu C. Barut
vs. People Of The Philippines, G.R. No. 167454, September 24,
GR: It states that the following evidence is not admissible in 2014, Bersamin, J.)
any criminal proceeding involving alleged child sexual abuse:
When should objection be made?
1. Evidence offered to prove that the alleged victim
engaged in other sexual behavior; and, Testimonial Evidence Documentary and Object
2. Evidence offered to prove the sexual predisposition Evidence
of the alleged victim (Sec. 30(a)). 1st: When the offer was When the document is
made; offered in evidence.
XPN: Evidence of specific instances of sexual behavior by the 2nd: When an objectionable
alleged victim to prove that a person other than the accused question is asked of the
was the source of semen, injury, or other physical evidence witness.
shall be admissible (Sec. 30(b)).
By his testimony imputing the commission of the crime
OFFER AND OBJECTION against his wife, the husband is considered to have waived all
his objections to the testimony of his wife. It is to be expected
Is formal offer required before the court may consider an that after giving such a testimony, it is but normal for his wife
evidence? to rebut the allegation. (People vs. Francisco, 78 Phil. 694)
YES. Under the Rules, the court shall consider only the Tender of excluded evidence
evidence which has been formally offered. The purpose for
which the evidence is offered must be specified (Sec. 34, Rule When an attorney is not allowed by the court to present
132). testimony which he thinks is competent, material, and
necessary to prove his case, he must make an offer of proof.
NOTE: The failure to formally offer evidence must be This is the method of properly preserving the record to the
objected to, otherwise, this constitutes as waiver. end that the question may be saved for purposes of review
(Caraig, 2004).
When is formal offer of evidence NOT required?
How is tender of excluded evidence made?
1. In a summary proceeding, since it is a proceeding
where there is no full-blown trial; 1. As to documentary or object evidence: It may have the
2. Documents judicially admitted or taken judicial notice same attached to or made part of the record (Sec. 40,
of; Rule 132).

77
 REMEDIAL LAW

2. As to oral evidence: It may state for the record the name

and other personal circumstances of the witness and the
substance of the proposed testimony (Sec. 40, Rule 132).

Offer of Proof vs. Offer of Evidence

Offer of Proof / Tender of Offer of Evidence

Excluded Evidence
Only resorted to if admission Refers to testimonial,
is refused by the court for documentary or object
purposes of review on evidence that are presented
appeal or offered in court by a party
so that the court can consider
his evidence when it comes
to the preparation of the
decision

NOTE: The Rules allows the presentation of additional

evidence even after the case has rested (Republic v.
Sandiganbayan, G.R. No. 152375, December 13, 2011).

78